Amicus Curiae Brief — United States v. American Library Assn., Inc.

No. 02-361

IN THE

Supreme Court of the United States

UNITED STATES, et al.,

Appellants,

v

AMERICAN LIBRARY ASSOCIATION, INC., et al.,

Appellees.

On APPEAL FROM THE UNiTED States District Court

FOR THE EASTERN District OF PENNSYLVANIA

BrieF OF Amicus Curi4E THE BRENNAN CENTER FOR

Justice at New York UNIVERSITY SCHOOL oF Law

IN SUPPORT OF APPELLEES

Burt NEUBORNE

Counsel of Record

Craic L. SieGet

LAURA K. ABEL

Davip S. UDELL

BRENNAN CENTER FOR JUSTICE AT

New York University SCHOOL oF Law

161 Avenue of the Americas, Twelfth Floor

New York, NY 10013

(212) 998-6730

Attorneys for Amicus Curiae

The Brennan Center for Justice

at New York University School of Law

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NSE PRES‘

SU_6RSY

BEST AVAILABLE COPY

i

TABLE OF CONTENTS

nn a ot ctecbedaneas

Interest of Amicus Curiae .........cccccccccees

I By Requiring Federally Subsidized

Public Libraries to Censor Private Speech

on Internet-Connected Computers, the

Government Distorts the Traditional Function

of Public Libraries in Violation of the

Unconstitutional Conditions Doctrine. ....

A. The Unconstitutional Conditions

Doctrine Bars the Government from

Using Its Subsidy Programs to Suppress

Private Speech in Ways that Distort the

Underlying Forum. ................

B. Subsidized Speech in Public Libraries

Deserves the Same Vigorous First

Amendment Protection Afforded

Subsidized Speech in Public Universities,

Public Broadcasting Systems and the

Gs “ebdec cecksessdscsesscsoses

ii

Contents

Page

C. By Requiring Public Libraries to

Censor Private Speech, the Government

Distorts the Traditional Function of

Public Libraries in Violation of the

Unconstitutional Conditions Doctrine. 12

D. Rust Does Not Apply in This Case,

Because Only Private Speech Is at Stake.

i ieee eek ete beeen s 19

Il. By Prohibiting Public Libraries From Using

Their Own Non-Federal Funds to Provide

Full Access to the Internet, the Government

Violates the Unconstitutional Conditions

RN a 21

ET Se 27

iii

TABLE OF CITED AUTHORITIES

Page

CASES

American Library Ass'n v. United States, 201

F. Supp. 2d 401 (E.D. Pa. 2002) (three-judge

GUD ccccccccccnncccccqcesccceccesccess passim

Arkansas Educ. Television Comm'n v. Forbes,

Fe es ED cccucccdcccscccccoccese 5, 6, 18

Board of Educ., Island Trees Union Free Sch. Dist.

No. 26 v. Pico, 457 U.S. 853 (1982) ....... 10, 11, 16

Board of Regents of Univ. of Wis. v. Southworth,

Fe a ET GED Seccccncetsevocsccsces passim

City of Ladue v. Gilleo, 512 U.S. 43 (1994) ...... 25

Dobbins v. Legui Servs. Corp., 01 Civ. 8371 (FB)

(E.D.N.Y. filed Dec. 14, 2001) ............... 2

FCC v. League of Women Voters, 468 U.S. 364

GRRE occccccovcccecceccoccecccuscececes passim

Keyishian v. Board of Regents of Univ. of State of

N.Y., 385 U.S. 589 (1967) ... 2.2... 6c eee 3, 9, 10, 11

Lowe v. SEC, 472 U.S. 181 (1985) ...........4.. 22

Mainstream Loudon v. Board of Trs. of Loudon

County Library, 2 F. Supp. 2d 783 (E.D. Va. 1998)

GESEIDED ce ccccccchececescosccccescesees 15

iv

Cited Authorities

Page

Mainstream Loudon v. Board of Trs. of Loudon

County Library, 24 F. Supp. 2d 552 (E.D. Va.

PEGE ocadecesuscesneséseéeesasi 17

McConnell v. FEC, Civ. No. 02-582 (CKK, KLH,

RJL) (D.D.C. argued Dec. 4-5, 2002) (three-judge

SEE Stdodenesesesenscncéesweestdeduneues 2

Miller v. French, 530 U.S. 327 (2000) ........... 22

NEA v. Finley, 524 U.S. 569 (1998) .......... 2, 5, 7, 18

New York v. Ferber, 458 U.S. 747 (1982) ........ 12

Regan v. Taxation With Representation of Wash.,

See SPEED occGnccuccobevdsouscesses 4,24

Reno v. ACLU, 521 U.S. 844 (1997) ............ 15, 20

Rosenberger v. Rector & Visitors of Univ. of Va.,

Se es SPEED Soccovececssecteséuses passim

Rust v. Sullivan, 500 U.S. 173 (1991) .......... passim

Sweezy v. New Hampshire, 354 U.S. 234 (1957)

SedeRSESSseresaseooordesbosesesoosessose 10

United States v. Playboy Entm t Group, 529 U.S. 803

SEP Ne vescascuescecesaseducsebeseuses ba 22, 26

_ = —_——— —_—

v

Cited Authorities

Page

Velazquez v. Legal Servs. Corp., 985 F. Supp. 323

(E.D.N.Y. 1997), aff'd in part, rev'd in part, 164

F.3d 757 (2d Cir. 1999), aff'd, 531 U.S. 533

GRESED occccesceccccececs peeséevvccocsece passim

Watchtower Bible & Tract Socy. of N.Y. v. Village

of Stratton, 536 U.S. 150, 122 S. Ct. 2080 (2002)

seneeedndensecoeéhnceeenecebssdsoocess 21

Unitep States CONSTITUTION

PEE oc cwcccccccoccccceecsvceces passim

STATUTES

ee UMNO, cccccccccccccccesvess 12

Be PEED cceccccceccescccesscess 22

TO SOOPUEEED ccccccccccvescccccss 12

GF Ge BED Seccwwcecccecocccoccecccecess 12

47 U.S.C. § 254(hY(6)(B) ... 2... 6c eee eee eee 12, 22

47 U.S.C. § 254(hY(6MC) ... 6... eee eee eee 12, 22

Pub. L. No. 106-554, Div. B, Tit. XVII, 114 Stat.

SPP NEED occccccccccsccccesccceses 12

vi

Cited Authorities

Page

OTHER AUTHORITY

Vartan Gregorian, Libraries as Acts of Civic Renewal,

Address at the Kansas City Club (Oct. 17, 2002),

at http://www.kclibrary.org/gregorianspeech. ... 11

l

INTEREST OF AMICUS CURIAE

The Brennan Center for Justice at New York University

School of Law (“Brennan Center’) submits this amicus curiae

brief in support of the American Library Association, the

Multnomah County Library Association and the other

Appellees.’

The Brennan Center is a nonpartisan institute dedicated

to implementing an agenda of scholarship, public education,

and legal action that promotes equality and human dignity,

while safeguarding fundamental freedoms. The Center was

established in 1995 to honor the extraordinary legacy of

Justice William J. Brennan, Jr.

The Brennan Center takes a particular interest in this

case because it presents the Court with two important issues

concerning the power of government to assert control over

private speakers in subsidized speech settings. First, may the

government censor constitutionally protected private speech

in subsidized public libraries by ousting the professional

editorial judgment of local librarians and replacing it with

judgments dictated by elected federal officials? Second, may

Congress displace librarians’ judgments even when the

constitutionally protected private speech is privately funded?

The Brennan Center has participated in a series of

cases before this Court involving the relationship between

1. Pursuant to Supreme Court Rule 37.3(a), consent by the

parties for the filing of this amicus curiae brief has been granted and

their consents are being lodged herewith. Pursuant to Supreme Court

Rule 37.6, amicus states that no counsel for a party authored this

brief in whole or in part, and that no person or entity, other than

amicus, has contributed monetarily to the preparation or submission

of this brief.

2

the First Amendment and government speech subsidies,

including as lead counsel in Legal Servs. Corp. v. Velazquez,

$31 U.S. 533 (2001), and as both counsel for amici and one

of the amici in Board of Regents of Univ. of Wis. v.

Southworth, 529 U.S. 217 (2000), and in NEA v. Finley,

524 U.S. 569 (1998). The Brennan Center is currently

participating as co-counsel in three district court cases in

which the unconstitutional conditions doctrine plays a

prominent role: McConnell v. FEC, Civ. No. 02-582 (CKK,

KLH, RJL) (D.D.C. argued Dec. 4-5, 2002) (three-judge

court); Dobbins v. Legal Servs. Corp., 01 Civ. 8371 (FB)

(E.D.N.Y. filed Dec. 14, 2001); and Velazquez v. Legal Servs.

Corp., 985 F. Supp. 323 (E.D.N.Y. 1997), aff'd in part, rev'd

in part, 164 F.3d 757 (2d Cir. 1999), aff'd, 531 U.S. 533

(2001).

In this case, the district court declined to decide the

unconstitutional conditions issues, preferring to rule on

forum grounds. American Library Ass'n v. United States, 201

F. Supp. 2d 401, 490 n.36 (E.D. Pa. 2002) (three-judge court).

The Center believes that the district court’s forum analysis

is correct and that this Court need not reach the

unconstitutional conditions issues. However, in the event that

the Court determines to address these issues, the Center files

this amicus curiae brief with the hope that its perspective on

the unconstitutional conditions doctrine wil! assist the Court.

3

SUMMARY OF ARGUMENT

Under this Court’s unconstitutional conditions

jurisprudence, the law challenged in this appeal—the Children’s

Internet Protection Act—cannot survive because it conditions

the receipt of government funding on the sacrifice of

fundamentally important First Amendment rights. The law

wreaks this constitutional havoc in the public library, a uniquely

important institution in our democratic culture whose defining

feature is its solemn promise to provide each citizen with equal

and unfettered access to explore, within the constraints of budget

and the professional judgment of librarians, the sweep of human

thought and experience.

This Court’s unconstitutional conditions precedents have

consistently recognized that the substantiai power of the

government’s purse is utimately constrait.ed by the First

Amendment—the government cannot purchase the First

Amendment rights of those who participate in government-

funded programs, whether the setting is the public university,

as in Keyishian v. Board of Regents of Univ. of State of N. ¥., the

public airwaves, as in FCC v. League of Women Voters, or the

courts, as in Velazquez. Where a challenged law distorts the

traditional functioning of private expression in a forum that is

essential to the functioning of a free society, this Court has made

clear that the law must fall.

Just as in those landmark subsidy cases—where one law

told professors what to teach, one law told the media what to

say, and one law told lawyers what to argue—the law challenged

here imposes state-sponsored censorship that tells library patrons

what they can read, what they can think, and what they can

view in their local public library. The censoring software

mandated by the law bars research on a variety of subjects:

certain churches and religious groups, certain pulitical candidates

Pn a ee S| Renee ERE A ee

4

and municipal governments, certain health issues and scientific

matters, information about educational and employment

opportunities, and even facts about sports and travel.

By interfering in this way with the work of researchers, scholars,

librarians, and web site publishers, the law effectively scissors

out—on command of the national government, and without

regard to a librarian’s professional judgment or a local

community’s need—key chapters in the dynamic and vast

encyclopedia of the Internet. Under the unconstitutional

conditions doctrine, this extreme distortion of the library

function plainly violates the First Amendment.

An equally troubling aspect of the challenged law is its

application to every single computer in a public library—even

those compuiers the library pays for with its own private funds.

At least since Regan v. Taxation With Representation of Wash.

and League of Women Voters, this Court has made absolutely

clear that the unconstitutional conditions doctrine does not allow

the government to condition the receipt of a subsidy on the

sacrifice of private expression that is privately financed—the

government must always afford speakers an adequate channel

for such expression. The government insists in this case that

libraries possess such an adequate channel in that they remain

free to operate unfiltered computers in physically separate library

facilities. Even if the challenged law permitted this, and it does

not, forcing researchers to travel to remote facilities and to forego

other key library resources, when the government offers no

constitutionally cognizable justification, would impose an undue

burden on researchers, make it less likely that valuable web

sites will ever be accessed, and interfere with the administration

and independence of libraries themselves. This interference with

privately funded First Amendment-—protected expression

constitutes an additional and independent violation of the

unconstitutional conditions doctrine.

~

5

ARGUMENT

I. BY REQUIRING FEDERALLY SUBSIDIZED

PUBLIC LIBRARIES TO CENSOR PRIVATE

SPEECH ON INTERNET-CONNECTED

COMPUTERS, THE GOVERNMENT DISTORTS

THE TRADITIONAL FUNCTION OF PUBLIC

LIBRARIES IN VIOLATION OF THE

UNCONSTITUTIONAL CONDITIONS DOCTRINE.

A. The Unconstitutional Conditions Doctrine Bars

the Government from Using Its Subsidy

Programs to Suppress Private Speech in Ways

that Distort the Underlying Forum.

Throughout its unconstitutional conditions juris-

prudence, this Court has held that the government may not

use its subsidy programs to suppress private speech in a way

that distorts the underlying forum for that speech, particularly

where, as here, the integrity of the forum is essential to the

functioning of a free society. See, e.g., Velazquez, 531 U.S.

533; Southworth, 529 U.S. 217; Finley, 524 U.S. 569;

Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666

(1998); Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819 (1995); Rust v. Sullivan, 500 U.S. 173 (1991);

FCC v. League of Women Voters, 468 U.S. 364 (1984).

In League of Women Voters, for example, the Court

invalidated a federal law that had prohibited privately owned

public broadcasting stations from engaging in editorializing

if they received a grant of funds from the Corporation for

Public Broadcasting. The Court held that since the purpose

of public broadcasting is to offer a “wide variety” of views

6

on important social issues, the law’s suppression of the

opinions of one set of speakers—the station owners and

managers—violated the First Amendment because “‘its effect

is plainly to diminish rather than augment the volume and

quality” of speech inherent in the medium of public

broadcasting. 468 U.S. at 396, 399 (internal quotation marks

and citation omitted).

In Forbes, another case involving public broadcasting,

the Court upheld a restriction on government-subsidized

private speech where the restriction advanced the proper

functioning of the underlying forum for speech. The case

involved the ability of a state-owned public television station,

as a protected speaker, to exercise its First Amendment-based

editorial judgment to exclude from a televised debate a

Congressiona! candidate with insufficient political support.

The Court reasoned that while a debate broadcast on public

television is a form of government speech subsidy, the

station’s reasonable exclusion of certain speakers promoted

effective public education by preventing a “cacophony” of

candidate voices from garbling the intelligibility of the

debate, an outcome that would have discouraged stations

from airing future debates. 523 U.S. at 681.

In the context of public universities, the Court in

Rosenberger overturned a University of Virginia policy that

had prohibited student activity fees from being used to

subsidize student publications that expressed religious

editorial viewpoints. The Court’s opinion made clear that

this policy was unconstitutional because it undermined both

the function of the university’s student activity fee, which is

to “encourage a diversity of views from private speakers,”

and the traditional function of the university itself, which is

7

to promote “free speech and creative inquiry.” 515 U.S. at

834, 836. More recently, in Southworth, the Court upheld a

public university’s policy conditioning admission on a

student’s contributing to a fund that subsidized an array of

campus groups, even though some students objected to being

forced to fund certain groups’ speech with which they

disagreed. The Court sustained the policy because it advanced

the university’s mission of stimulating an intellectual

marketplace of ideas both in and out of the classroom.

529 U.S. at 233.’

In Velazquez, the Court drew together this line of

precedents to hold that when the government designs a

subsidy program to facilitate the communication of private,

nongovernmental speech—as it did in these cases—the First

Amendment forbids the government from imposing

restrictions to “suppress speech inherent in the nature of the

medium,” particularly where the medium—like public

universities, public broadcasting and the courts—is integral

to the functioning of a free society. 531 U.S. at 543, 546

(invalidating restriction on subsidized speech in part because

it “threatens severe impairment of the judicial function”).’

2. In the context of government arts grants, the Court in Finley

upheld a federal statute requiring the NEA to consider general

standards of decency and respect in awarding grants to artists.

The Court’s decision rested in part on the fact that these non-binding

standards did not interfere with the NEA’s fundamental ability to

pursue its mission of “encouraging freedom of thought, imagination,

and inquiry,” by subsidizing even private artistic expression “deemed

indecent or disrespectful.” 524 U.S. at 573, 580 (internal quotation

marks and citations omitted).

3. See also Rust, 500 U.S. at 200 (upholding restriction

applicable to government-subsidized physicians, but contrasting the

university as “a traditional sphere of free expression so fundamental

(Cont'd)

8

Velazquez addressed the constitutionality of a law that

had prohibited federally subsidized legal aid lawyers from

challenging welfare reform laws in the course of representing

individual clients seeking welfare benefits. The Court

declared the law unconstitutional because it prevented

lawyers engaged in advancing private speech from “advising

their clients and .. . presenting arguments and analyses to

the courts,” thereby “distort[ing] the legal system by altering

the traditional role of the attorneys.” Jd. at 544. The Court

added that by “seeking to prohibit the analysis of certain legal

issues and to truncate presentation to the courts, the

enactment under review prohibits speech and expression upon

which courts must depend for the proper exercise of the

judicial power.” Jd. at 545. The Court distinguished its

decision in Rust upholding a speech restriction applied to

government-subsidized family planning physicians, on the

ground that the physicians were advancing governmental

speech as contrasted with private speech. The legal aid

subsidy program, on the other hand, was subsidized by

government “to facilitate [the] private speech” of the lawyers’

clients, “not to promote a governmental message.” /d. at 542.

In Velazquez, and in each of the cases discussed above,

the government had enacted a restriction on private speech

in order to regulate the use of public funds. The Velazquez

decision, taken together with the “unconstitutional

conditions” cases discussed herein, establishes the principle

that the First Amendment bars the government from imposing

restrictions on private speech in subsidized speech settings

(Cont'd)

to the functioning of our society that the Government’s ability to

control speech within that sphere by means of conditions attached to

the expenditure of Government funds is restricted by the .. . First

Amendment.”)

9

when the restrictions distort the proper functioning of the

underlying forum, especially when the integrity of that forum

is essential to a free society. /d. at 543.

B. Subsidized Speech in Public Libraries Deserves

the Same Vigorous First Amendment Protection

Afforded Subsidized Speech In Public

Universities, Public Broadcasting Systems and

the Courts.

Public libraries are analogous to public universities,

public broadcasting systems, and the courts as vital

institutions in a free society. For this reason, this Court should

hold that Congress’ power to control subsidized private

speech in local public libraries is no greater than in these

three settings.

Consider the example of public universities. In the

university setting, the Court has consistently rejected

government restrictions on speech that interfere with a public

university’s traditional role of educating students “through

wide exposure to [a] robust exchange of ideas. . . rather than

through any kind of authoritative selection.” Keyishian v.

Board of Regents of Univ. of State of N.Y., 385 U.S. 589, 603

(1967) (internal quotation marks and citation omitted).

See also Rosenberger, 515 U.S. at 835-36 (discussing

heightened need to protect free speech in universities, which

are “the center of our intellectual and philosophic tradition”).

In so holding, this Court has declared academic freedom in

this subsidized setting to be of “special concern” to the First

Amendment:

To impose any strait jacket upon the intellectual

leaders in our colleges and universities would

10

imperil the future of our Nation. No field of

education is so thoroughly comprehended by man

that new discoveries cannot yet be made.

Particularly is that true in the social sciences,

where few, if any, principles are accepted as

absolutes. Scholarship cannot flourish in an

atmosphere of suspicion and distrust. Teachers and

students must always remain free to inquire, to

study and to evaluate, to gain new maturity and

understanding; otherwise our civilization will

stagnate and die.

Keyishian, 385 U.S. at 603 (quoting Sweezy v. New

Hampshire, 354 U.S. 234, 250 (1957)).

This theory applies equally, if not more forcefully,

to protect freedom of speech in public libraries.

Like universities, America’s public libraries have traditionally

functioned as islands of free intellectual inquiry dedicated

to the acquisition of knowledge by an autonomous citizenry.

As the “principal locus” of our freedom to study, explore

and test the full range of human thought and experience,

libraries perform a unique institutional role; they allow us to

engage in purely voluntary “self-education and individual

enrichment,” limited not by government restraints but merely

by the boundaries of our own curiosity and imagination.

Board of Educ., Island Trees Union Free Sch. Dist. No. 26 v.

Pico, 457 U.S. 853, 868, 869 (1982). See also id. at 915

(Rehnquist, J., dissenting) (noting that “public libraries” are

“designed for freewheeling inquiry”). As the past president

of the New York Public Library, Vartan Gregorian, recently

observed:

Libraries contain the heritage of humanity, the

record of its triumphs and failures, its intellectual,

1]

scientific and artistic achievements and its

collective memory. They are a source of

knowledge, scholarship and wisdom. They are an

institution, withal, where the left and the right,

God and the Devil, are together classified and

retained, in order to teach us what to emulate and

what not to repeat. Libraries are, thus, the most

tolerant institutions we have, the good and the evil

are here, and the library makes no value judgments

about them.

Vartan Gregorian, Libraries as Acts of Civic Renewal,

Address at the Kansas City Club (Oct. 17, 2002), at http://

www.kclibrary.org/gregorianspeech (last visited Feb. 9,

2003).

Libraries play an institutional role similar to that of

universities by providing a forum for the unfettered

intellectual inquiry and exploration that is essential to the

functioning of a free and self-governing society. Indeed, this

Court has recognized that, unlike the classroom, where

faculty necessarily exercise some degree of control over the

content of discussion and debate, libraries offer unique

opportunities both to “discover areas of interest and thought

not covered by [any] prescribed curriculum,” and to “test or

expand upon ideas presented . . . in or out of the classroom.”

Pico, 457 U.S. at 869 (internal quotation marks and citation

omitted). In this respect, the heightened constitutional

protection afforded speech within the privileged sphere of

the university should apply with even greater force to bar

the government from censoring subsidized private speech in

public libraries. As in Keyishian, merely because the

government subsidizes professors in public universities, or

librarians in public libraries, it may not exercise a degree of

control over their First Amendment activities.

12

C. By Requiring Public Libraries to Censor Private

Speech, the Government Distorts the Traditional

Function of Public Libraries in Violation of the

Unconstitutional Conditions Doctrine.

The government, through the Children’s Internet Protection

Act (“CIPA”),* censors private speech by requiring public

libraries that receive either of two forms of federal benefits—

federal grants pursuant to the Library Services and Technology

Act’ (“LSTA”), or discounts for Internet access pursuant to the

Telecommunications Act of 1996° (“E-rate program”)—to

certify that they are using on all Internet-connected computers

a “technology protection measure that prevents patrons from

accessing visual depictions that are obscene, child pornography,

or in the case of minors, harmful to minors.” American Library

Ass'n, 201 F. Supp. 2d at 407 (quoting 20 U.S.C. § 9134(f)(1 (A)

(LSTA) and 47 U.S.C. § 254(h)(6)(B) & (C) (E-rate program))

(internal quotation marks omitted).

The law’s explicit intent is to ban three very limited and

narrow categories of visual expression from the Internet in

public libraries—obscenity, child pornography and visual

depictions harmful to minors—each of which falls beyond

the scope of First Amendment protection. See, e.g., New York

v. Ferber, 458 U.S. 747 (1982) (holding child pornography

not entitled to First Amendment protection). However, as

the three-judge district court found, CIPA’s ultimate effect is

to require public libraries, by installing an4 operating filtering

software, to necessarily block “a very substantial amount”

4. Pub. L. No. 106-554, Div. B, Tit. XVII, 114 Stat. 2763A-335

(2000).

5. 20 U.S.C. § 9101, ef seg.

6. 47 U.S.C. § 254(h).

13

of constitutionally protected speech based solely on its

content. American Library Ass'n, 201 F. Supp. 2d at 448,

490. See also id. at 454 (“Software filters, by definition, block

access to speech on the basis of its content.”). This direct

censorship of valuable speech is caused by the inherent

technological limitations of filtering software programs,

which, as the district court found, “erroneously block a huge

amount of speech that is protected by the First Amendment.”

Id. at 448. The district court explained further:

Any currently available filtering product that is

reasonably effective in preventing users from

accessing content within the filter’s category

definitions will necessarily block countless

thousands of Web pages, the content of which does

not match the filtering company’s category

definitions, much less the legal definitions of

obscenity, child pornography, or harmful to

minors. Even [the government’s] expert witness

... found that between 6% and 15% of the blocked

Web sites in the public libraries that he analyzed

did not contain content that meets even the

filtering products’ own definitions of sexually

explicit content, let alone CIPA’s [narrower]

definitions.

Id. See also id. at 427-37 (describing how filtering software

necessarily blocks more information than it is intended to

block).

Following are just some of the numerous types of

constitutionally protected speech that the district court found

14

blocked by the leading filtering software programs available

to public libraries:

¢ Speech by and about churches and religious

groups, including web sites for a Knights of

Columbus chapter affiliated with St. Patrick’s

church in Fallon, Nevada; a Christian

orphanage in Honduras; and a lesbian and gay

Jewish Center in California;

* Speech about politics and government,

including web sites for individyal candidates

for state and local office in Massachusetts and

California; the government of Adams County,

Pennsylvania; Wisconsin Right to Life; and an

anti-death penalty group in Denmark;

¢ Speech about health issues, including web sites

aout allergies and halitosis, for the Willis-

Knighton Cancer Center in Louisiana, and

about health information provided by

Columbia University;

* Speech about education and careers, including

web sites about home schooling, about careers

for social workers, about careers in dentistry,

and for a gay and lesbian chamber of commerce

in Nevada;

¢ Speech about sports, including web sites about

the first African American professional hockey

player, an Australian football club, and a fan’s

site for the Toronto Maple Leafs hockey team;

and

15

* Speech about travel, including web sites for a

bed and breakfast in North Carolina, a nature

tour operator in Namibia, a fly fishing outfitter

in Canada, and @ travel service for gay men.

Id. at 446-47.

This censorship interferes with the ability of government-

subsidized public libraries to communicate a set of

constitutionally protected private messages to their patrons

in the same way that the law in Velazquez interfered with the

ability of government-subsidized lawyers to communicate a

client’s private message to the courts. In both instances, the

censorship suppresses speech vital to the proper functioning

of the relevant forum. See Velazquez, 531 U.S. at 545

(concluding restriction on lawyers’ speech prohibits

“expression upon which courts must depend for the proper

exercise of the judicial power’’).’ This interference alters the

usual functioning of public libraries, in violation of the

unconstitutional conditions doctrine, by requiring libraries

to do exactly what they are not supposed to do: censor

7. The Supreme Court has recognized that the Internet, itself,

creates “a vast democratic for{um]” for the communication of private

speech by “millions of readers, viewers, researchers, and buyers.”

See Reno v. ACLU, 521 U.S. 844, 853, 868 (1997). By subsidizing

participation in this forum through the LSTA and E-rate programs, the

government facilitates the communication of private speech and not any

particular governmental message. See Section |.D. below. The speakers

in this case therefore include not only the public libraries, but also the

censored web site publishers, librarians, library patrons, and donors to

the libraries. The effect of filtering software in censoring thousands of

Internet publications has been characterized by one court as the

equivalent of blackening out significant portions of a set of

encyclopedias. See Mainstream Loudon v. Board of Trs. of Loudon

County Library, 2 F. Supp. 2d 783, 793 (E.D. Va. 1998) (Loudon /).

16

valuable information that they would make available but for

a government directive.

As the government concedes in this case, America’s

diverse public libraries share a common mission of providing

patrons with a wide array of information and ideas. Brief for

the United States (hereinafter “U.S. Br.”) at 20 (“Consistent

with their missions, public libraries seek to provide a wide

array of information to the public.”). See also American

Library Ass'n, 201 F. Supp. 2d at 420. This mission requires

public libraries to provide local communities with access to

“materials and information presenting all points of view on

current and historical issues.” American Library Ass'n, 201

F. Supp. 2d at 420 (quoting American Library Ass’n, Library

Bill of Rights (1980)). Although resource limitations

obviously thwart public libraries from providing universal

coverage within the space of their physical collections, public

libraries nevertheless attempt to assist “patrons in obtaining

access to a// materials except those that are illegal,” by

utilizing interlibrary loan systems, referrals to other libraries

and, today, with the help of the federal government, the

Internet. Jd. at 421 (empliasis added).

Insofar as local librarians, as a practical matter, must

make content-based decisions about which books to acquire

for their libraries’ physical collections, these decisions are

guided by professional standards that strive for balance in a

library’s collection, while counseling acquisition of materials

of “requisite and appropriate quality. ... that would be of

the greatest direct benefit or interest to the community.”

Id. These standards bar librarians from making collection

decisions based on “‘partisan or doctrinal disapproval’” of

materials. Jd. at 420 (quoting American Library Ass’n,

Library Bill of Rights). See also Pico, 457 U.S. at 870

(barring elected officials from removing school library books

17

based on “narrowly partisan or political” objections).

These standards state that librarians must provide access to

“*the widest diversity of views and expressions, including

those that are unorthodox or unpopular with the majority,’”

and that they must “‘contest encroachments upon th[e]

freedom [to read] by individuals or groups seeking to impose

their own standards or tastes upon the community at large.”

American Library Ass'n, 201 F. Supp. 2d at 420 (quoting

American Library Ass’n, Freedom to Read Statement (2000)).

See also Mainstream Loudon v. Board of Trs. of Loudon

County Library, 24 F. Supp. 2d 552, 563 (E.D. Va. 1998)

(Loudon II) (quoting local government resolution stating

purpose of county’s public library system is to offer

“the widest possible diversity of views and expressions” and

not to censor ideas).

Here, the government effectively forces public libraries

to abandon this mission by requiring them to deny patrons

access to a substantial amount of valuable information on

the Internet that the libraries have decided should be made

available. It is no answer to say that since librarians are able

to exercise proper editorial judgments about which books to

acquire for their libraries’ collections, the federal government

can dictate those judgments. See U.S. Br. at 50. This is clear

from Velazquez, where this Court struck down a regulation

precluding civil legal aid lawyers from making certain

arguments in court. The fact that legal aid lawyers exercise

their professional judgment, in ways similar to librarians, in

determining what arguments to advance in court on behalf

of their clients, did not authorize the federal government to

dictate those judgments merely because the government

subsidized the lawyers’ speech. See 531 U.S. at 544.

18

To the contrary, by usurping the professional editorial

judgment of local librarians about the material that should

be kept in public libraries, and replacing it with judgments

dictated by elected federal officials, CIPA distorts the basic

functioning of public libraries. See U.S. Br. at 20 (conceding

that to “fulfill their traditional missions, public libraries must

have broad discretion to decide what material to provide their

patrons.”).* A librarian’s exercise of her editorial discretion

is a form of protected speech activity. Cf, Forbes, 523 U.S.

at 5674 (“When a public broadcaster exercises editorial

discretion in the selection and presentation of its

programming, it engages in speech activity.”). By supplanting

that discretion with the government’s decision to remove

materials from a library’s collection—a decision that is

imposed without regard to whether censored web sites

contain valuable information that is protected by the

Constitution and of direct benefit or interest to the

community—the government violates the First Amendment.

Cf. Finley, 524 U.S. at 580-81, 586 (upholding decency and

respect criteria for government arts grants because criteria

are “merely hortatory” and do not supplant the aesthetic

judgments made by expert panelists in awarding grants).

The government suggests that by subsidizing Internet

access Congress was merely furthering public libraries’

“traditional role of obtaining requisite and appropriate

material for educational and informational purposes,”

8. The district court observed that, among the various ways that

public libraries have voluntarily chosen to respond to the availability

of sexually explicit content on the Internet, approximately 93%

have rejected using filtering software. American Library Ass'n, 201

F. Supp. 2d at 406. Forcing libraries to install filtering software would

consequently have a dramatic effect on the usual operation of public

libraries in America.

- —a

19

U.S. Br. at 50, however, this argument is unavailing for

at least two reasons. First, the government’s brief cites no

support in the statute or the legislative record for this

proposition. Second, CIPA’s speech regulation, rather than

merely limiting the type of material that may be obtained

with federal funds, is more accurately described as an attempt

by Congress to override the professional judgments of local

librarians by forcing them to remove material that they have

already decided to obtain.

D. Rust Does Not Apply in This Case, Because Only

Private Speech Is at Stake.

The government’s reliance on Rust for the proposition

that CIPA is an appropriate law because it merely defines

the limit and scope of a government subsidy program,

U.S. Br. at 50, is misplaced. See Velazquez, 531 U.S. at 547

(rejecting government attempt to “recast a condition on

funding as a mere definition of its program” because the

condition implicates “central First Amendment concerns.”).

In Rust, the Court upheld federal regulations barring

government-subsidized doctors from discussing abortion

when providing family planning advice, explaining that the

federal program, by definition, was designed to “lead to

conception and childbirth.” 500 U.S. at 193. In post-Rust

cases, this Court has clarified that Rust does not apply in

situations where, as here, the government subsidizes private

speech, as contrasted with government speech intended to

advance a particular governmental message. In Velazquez,

for example, the Court explicitly distinguished Rust as relying

on the “rationale that the counseling activities of the doctors

under Title X amounted to governmental speech.” 531 U.S.

at 541. See also Southworth, 529 U.S. at 229 (explaining

that unlike Rust, Southworth “does not raise the issue of the

20

government’s right ... to use its own funds to advance a

particular message”); Rosenberger, 515 U.S. at 834

(distinguishing Rust as inapplicable in cases where the

government “does not itself speak or subsidize transmittal

of a message it favors but instead expends funds to encourage

a diversity of views from private speakers”).

In this case, the government does not, and could not,

dispute that by designing the LSTA and E-rate programs to

provide “Internet access to ... libraries in low-income

communities,” American Library Ass'n, 201 F. Supp. 2d at

407, Congress has created a subsidy program not to

communicate any particular governmental message, but to

facilitate public libraries providing patrons with access to

the “vast amount” of private speech available on the Internet.

U.S. Br. at 3. See also Reno v. ACLU, 521 U.S. 844,

868 (1997) (stating that the Internet is a vast forum

for private speech). Thus, unlike the regulations upheld in

Rust, CIPA restricts private, nongovernmental speech.

Rust consequently does not control this case. See Velazquez,

531 U.S. at 542-43.°

For the aforementioned reasons, the government’s

requirement that federally subsidized public libraries install

9. The government also misreads Velazquez as distinguishing

Rust solely on the ground that “the role of lawyers supported by

federal funds who represent clients in welfare disputes is to advocate

against the government, and there was thus an assumption that

counsel would be free of state control.” U.S. Br. at 51-52 (emphasis

in original). Rather, the Velazquez Court repeatedly stated its holding

more broadly as relying on the “salient point” that, “like the program

in Rosenberger,” which did not involve speech against

the government, “the LSC program was designed to facilitate private

speech, not to promote a governmental message.” Velazquez,

531 U.S. at 542.

21

filtering software on all computers, censoring a substantial

amount of private speech, distorts the traditional functioning

of public libraries in violation of the unconstitutional

conditions doctrine.'®

Il. BY PROHIBITING PUBLIC LIBRARIES FROM

USING THEIR OWN NON-FEDERAL FUNDS

TO PROVIDE FULL ACCESS TO THE

INTERNET, THE GOVERNMENT VIOLATES THE

UNCONSTITUTIONAL CONDITIONS DOCTRINE.

By requiring public libraries to filter Internet access even

on computers financed entirely with their own non-federal

funds, the law imposes an additional unconstitutional

condition. In League of Women Voters, the Court invalidated

a statute that had imposed a flat ban against editorializing

by privately owned public broadcasting stations that received

federal grants. The Court explained that the statute imposed

an unconstitutional condition because it failed to provide any

mechanism allowing the stations to use private funds for First

Amendment activity. The Court observed that a station

receiving “only 1% of its overall income from [federal] grants

is barred absolutely from all editorializing. ... The station

has no way of limiting the use of its federal fuiids to all

noneditorializing activities, and, more importantly, is barred

from using even wholly private funds to finance its editorial

activity.” 468 U.S. at 400.

10. It is not necessary for the Court to determine the precise

level of scrutiny to apply in this case, because under any constitutional

balancing test, no government purpose can justify the law’s ban on

private speech in public libraries. See Watchtower Bible & Tract Socy.

of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 122 S. Ct. 2080,

2088 (2002) (declining to decide precise standard of review, because

regulation was invalid under any level of First Amendment scrutiny).

22

Much as in League of Women Voters, the law challenged

here also violates the First Amendment by requiring a public

library that receives federal funds to operate filtering software

“with respect to any of its computers with Internet access”

during “any use of such computers.” 20 U.S.C. § 9134(f)(1);

47 U.S.C. § 254(h)(6)(B) & (C) (emphases added).

This requirement imposes a flat ban against a library’s use

of even private funds to operate unfiltered computers in an

effort to provide patrons with access to the full range of

constitutionally protected speech on the Internet. This flat

ban against the use of private funds to pursue First

Amendment activity, on penalty of the loss of federal funding,

imposes an unconstitutional condition on public libraries.

See League of Women Voters, 468 U.S. at 399-400.

The government’s attempt to rescue the statute by

interpreting it to permit libraries to use non-federal funds to

operate unfiltered computers, so long as they do so in

physically separate facilities or branches, U.S. Br. at 51,

fails for at least two reasons. First, the government’s

interpretation contradicts CIPA’s plain terms, which expressly

require a subsidized library to operate filtering software on

all of its Internet-connected computers, without regard to

funding source. Congress authorized no exceptions, including

for privately funded computers. While courts have a duty to

avoid constitutional questions through statutory construction,

they are not “free to redraft statutory schemes in ways not

anticipated by Congress solely to avoid constitutional

difficulties.” Lowe v. SEC, 472 U.S. 181, 213 (1985) (White,

J., concurring). See also Miller v. French, 530 U.S. 327, 341

(2000) (“[T]he canon of constitutional doubt permits us to

avoid such questions only where the saving construction is

not plainly contrary to the intent of Congress.”) (internal

quotation marks and citation omitted). The government’s

a ee ab PE a

23

attempt to redraft CIPA in clear violation of Congress’ explicit

intent must be rejected.

Second, while the government’s unauthorized

interpretation of the statute should be disregarded, the

interpretation itself conflicts with the First Amendment by

imposing an undue burden on the rights of libraries, patrons,

librarians, library donors, and web site publishers without

any government justification. See United States v. Playboy

Entm t Group, 529 U.S. 803, 812 (2000) (“The distinction

between laws burdening and laws banning speech is but a

matter of degree. The Government’s content-based burdens

must satisfy the same rigorous scrutiny as its content-based

bans.”). There is no serious question that requiring financially

strapped public libraries in low-income communities to build

or rent additional facilities, and to pay for net increases in

utility, maintenance, administrative and personnel costs,

would impose a substantial burden. In addition, requiring

librarians, scholars and researchers to shuttle back and forth

between physically separate facilities according to the

particular thought in their mind or the topic they are trying

to research, introduces a substantial additional level of burden

(presenting a scenario having more in common with a Monty

Python skit than with traditional scholarly inquiry).

Moreover, the government has offered no justification

for imposing such a burden on the ability of public libraries

to use their own private and other non-federal funds to

facilitate private speech. The government argues that, under

Rust, Congress may “ensure the integrity” of its LSTA and

E-rate programs by requiring that federally funded and non-

federally funded Internet-connected computers be housed in

physically separate facilities. U.S. Br. at 51 (quotation marks

24

and citation omitted). However, Regan v. Taxation With

Representation of Wash., 461 U.S. 540 (1983), and League

of Women Voters, both indicate that physical separation

between federally and non-federally funded activities is not

required to ensure the integrity of government subsidy

programs. And Rust, which upheld as reasonable a physical

separation requirement in the setting of a federal family

planning program, does not control this case.

Thus, in Zaxation With Representation, this Court

stressed that Congress may not unduly interfere with the

ability of subsidized private speakers to use non-federal funds

to pursue First Amendment activities. The Court held that

Congress’ requirement that certain tax-exempt entities

establish a legally separate affiliate in order to conduct

lobbying activities was “not unduly burdensome,” given the

government’s interest in not subsidizing lobbying activities.

461 U.S. at 544 n.6. However, in a concurring opinion, Justice

Blackmun warned that this holding was premised on the

understanding that the government did not require any

additional separation measures. /d. at 553 (Blackmun, J.,

concurring) (warning that the imposition of additional

controls beyond bookkeeping separation “would negate the

saving effect of [the legally separate affiliate avenue]”

and pose intolerable burdens on the “constitutional right

[of organizations] to speak and to petition the Government”).

Similarly, in League of Women Voters, this Court

reiterated that the First Amendment guarantees recipients of

federal subsidies the right to use private funds to engage in

First Amendment-protected speech. In overturning a law that

had absolutely barred public broadcasting stations that

accepted federal subsidies from editorializing, the Court

stated that the constitutional violation caused by the absolute

ll a cg

~— om.

25

bar would be cured if Congress permitted stations to use non-

federal funds “to establish ‘affiliate’ organizations which could

then use the station’s facilities to editorialize with nonfederal

funds,” i.e., Congress could require legal, but not physical,

separation. 468 U.S. at 400.

Rust is the only decision of this Court upholding a

requirement that “physically separate” facilities be maintained

in order to take advantage of the First Amendment night to use

non-federal funds for protected activities. Rust holds that where

separate physical facilities are shown to be necessary to preserve

the fiscal integrity of a federal program and to prevent public

confusion about who sponsors a particular program, a

requirement of physical separation may be justified, despite the

economic burden it imposes on the use of non-federal funds.

500 U.S. at 188-90.

However, as discussed in Section I.D. above, Rust does not

apply here. Rust involved a subsidy program designed to

communicate a particular governmental message, and the Court

held that physical separation was justified by the government’s

need to avoid confusing the public about the content of the

government’s message. 500 U.S. at 188. But in programs such

as CIPA, where government is not the “speaker,” but rather is

subsidizing private speakers, Rust does not apply. See, e.g.,

Velazquez, 533 U.S. at 541; Rosenberger, 515 U.S. at 834. In

the absence of a governmental message, this Court has never

approved a requirement of physical separation like that suggested

by the government in this case. Such a requirement would

directly interfere with free expression in public libraries and is

not justifiable. Under traditional First Amendment analysis,

burdens on First Amendment freedoms will not be tolerated

unless they: (1) advance an extremely important governmental

interest, see, e.g., City of Ladue v. Gilleo, 512 U.S. 43, 54(1994)

26

(finding an asserted interest valid but not compelling); and

(2) are no more extensive than necessary to advance the

government’s interest, see Playboy, 529 U.S. at 803.

The government’s physically separate facilities proposal fails

both tests, because the government has no constitutionally

cognizable justification for imposing such a burdensome

requirement.

CONCLUSION

By requiring federally subsidized public libraries to

censor private speech on Internet-connected computers, the

government distorts the traditional function of public libraries

in violation of the unconstitutional conditions doctrine.

By prohibiting public libraries from using their own non-

federal funds to provide full access to the Internet, the

government also violates the unconstitutional conditions

doctrine. The judgment of the district court should be

affirmed.

Respectfully submitted,

Burt NEUBORNE

Counsel of Record

Craic L. Siecer

Laura K. ABEL

Davin S. UDELL

BRENNAN CENTER FOR JUSTICE AT

New York University SCHOOL or Law

161 Avenue of the Americas, Twelfth Floor

New York, NY 10013

(212) 998-6730

Attorneys for Amicus Curiae

The Brennan Center for Justice

at New York University School of Law