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

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TABLE OF CONTENTS

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INTRODUCTION AND SUMMARY OF ARGU-

TEESE SERRA Sg A ONT DT MENS 3

(TERI ARE ee Re SION PITS Meer Oe Men TT ‘a ee 4

1 THe Mission OF PuBLIC LIBRARIES AND THE

ROLE OF LIBRARIANS SERVE THE OVERRIDING

PURPOSE OF ENSURING THAT INDIVIDUAL LI-

BRARY PATRONS OBTAIN THE INFORMATION

|, 5 ne MBE cn ome. tl 4

i. CIPA SUBVERTS THE TRADITIONAL FUNCTION

ST ie 10

Il. LIBRARIES ALREADY SAPEGUARD THE INTER-

: ESTS CONGRESS SEEKS TO PRotTECT IN CIPA,

sr AND THE VAST MAJORITY OF LIBRARIES Do SO

ii WITHOUT MANDATORY FILTERING, ......ccccccccccececeeeeeeeee 15

ray IV. CIPA Is UNCONSTITUTIONAL BECAUSE Tt IN-

yw? puces Liprari7s To Viotare Time First

AMENDMENT RIGHTS OF THEIR PATRONS, .................. 17

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TABLE OF AUTHORITIES

CASES

Page(s)

American Library Ass'n v. United States, 201 F.

Supp. 2d 401 (E.D. Pa. 2002) ..........ccesceesseseeees passim

Arkansas Educational Television Commission y.

Forbes, 523 U.S. 666 (1998) .......cceeceeeeee 19, 20, 21, 22

Board of Education v. Pico, 457 U.S. 853 (1982) oo... 5

Butler v. Michigan, 352 U.S. 380 (1957) oo..eccccccccccecceeceee 22

Cornelius v. NAACP Legal Defense & Education

Fund, Inc., 473 U.S. 788 (1985) ..........ccccccccccccceeeeseeess 20

Griswold v. Connecticut, 381 U.S. 479 (1965)... 20

International Society for Krishna Consciousness,

EL, , 21

Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir.

EE aa ee a 4

Legal Services Corp. v. Velasquez, 531 U.S. 533

EES a 14, 15

Minarcini v. Strongsville, 541 F.2d 577 (6th Cir.

ESE EEA ESS a vee 5

National Endowment for the Arts v. Finley, 524 U.S.

EE ee 19

Perry Educators Ass'n v. Perry Local Education

RE Te 21

Reno v. ACLU, 521 U.S. 844 (1997) oo... ceeeeeeeeees 10, 20, 23

Rust v. Sullivan, S00 U.S. 173 (1991) ou... ceeeeeeeeeeeeeeeeeeeees 6

South Dakota v. Dole, 483 U.S. 203 (1987) .........ccccccceeeeees 18

Stanley v. Georgia, 394 U.S. 557 (1969) ........cccsececeeeeeeeees 20

Talley v. California, 362 U.S. 60, 64, 65 (1960) ............... 24

Watchtower Bible & Tract Society v. Village of

I, DEE: SEPEIIIEED scecccccvccccsescsecccccssssescncees 24

STATUTES

TT Ee 23

GF UA. § SIGE) cevesesccesececescccscessssecsessnccovensssoscsssess il

TABLE OF AUTHORITIES—Continued

"ee 23

Children’s Internet Protection Act, Pub. L. 106-554,

114 Stat. 2673 (2000) ...........ccccceceeeeeees seniuaeiemmmentmmeneel 3

AGENCY MATERIALS

In re Federal State Joint Board on Universal Ser-

vice: Children’s Internet Protection Act, CC

Docket No. 96-45, Report and Order, FCC O1-

eee 11

BOOKS, ARTICLES & INTERNET

About the Library of Congress, available at

http://www.loc.gov/ about (last visited Feb. 8,

ITT Uiicniicanensnasnennnemssnenbesnnenmmecnnsenenssnenenpansecssnsnenscssnevecetel 7

ALA Code of Ethics, available at http://www.ala

org/alaorg/Oif/ethics. Html ..........ccccccccceeeeeeereeeeeeeeeeereeeeees

ALA Freedom to Read Statement, available at

http://www.ala.org/alaorg/oif/freeread. html .............. 6,8

ALA Libraries & the Internet Toolkit, available

at _http://www.ala.org/alaorg/oif/2002toolkit

MEF enntscsenscnnsnnnmtmseserssmansccsenpemnsssermnneses 10, 11, 15, 16, 17

ALA Library Bill of Rights, available at hitp://

www.ala.org/work/freedom/Ibr. html .............c.0000000 6,8

Sutton, Ellen D. & Leslie Edmonds Holt, “The Ref-

erence Interview,” in Richard E. Bopp & Linda

C. Smith, Reference and Information Services:

An Introduction (2d €d. 1995) .........cccccccccececseeeneeeeeeeeeees &

Broadus, Robert N., Selecting Materials for Librar-

FD EID scccanescncsassssenssccnenscezsnsncasssenssasescssesenesesecessesees 5,6

Evans, G. Edward, Developing Library Collections

SOU ceccesdtenncsnindanenesnesemanenanseneneennennsennnseseensnnssnensensecenest 4

iV

Guidelines for Behavioral Performance of

Reference and Information Services

Professionals, available at http://www.ala.org/

pumafetend WateAeC AMIE cccccccscsccscsccssecesccsssssnscnscscsscseseess 8

Katz, William A., Collection Development: The Se-

lection of Materials for Libraries (1980) .............. 5,7,9

| Katz, William A., /ntroduction to Reference Work

GD cxnsccnssssnsscensrenemmenesemamnengeensneiitinatnnnnianuannaneeen 7

Library of Congress Online Catalog, available at

http://catalog.loc.gov/ (last visited Feb. 8, 2003)........... 7

Ogden, David W. & Nichols, Joel A., The Right to

Anonymity Under the First Amendment, 49 Fed.

Lawyer 44 (Mar/Apr. 2002) ..........:ccccccccsesscseseeeeeeeeees 24

Rhode Island Library Ass’n Intellectual Freedom

Committee Report on the Children’s Internet

Protection Act (Mar. 25, 2001) ............cccccceeees 10, 15, 16

Vision & Mission Statement, University of Wiscon-

sin-Madison School of Library and Information

Studies, available at http://polyglot.lss.wisc.edu

ne ee ET 6

IN THE

Supreme Court of the United States

No. 02-361

UNITED STATES OF AMERICA, ET AL.,

Appellants,

Vv.

AMERICAN LIBRARY ASSOCIATION, INC., ET AL.,

Respondents.

On Appeal from the

f United States District Court

for the Eastern District of Pennsylvania

BRIEF FOR AMICI CURIAE

THE CLEVELAND PUBLIC LIBRARY,

THE RHODE ISLAND LIBRARY ASSOCIATION,

AND THIRTEEN DEANS AND DIRECTORS OF

UNIVERSITY SCHOOLS OF LIBRARY SCIENCE

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICI'

The individual amici are the Cleveland Public Library,

the Rhode Island Library Association (a professional associa-

tion of librarians, library trustees, and library supporters

whose purpose is to promote the profession of librarianship),

' Counsel! for amici curiae authored this brief in its entirety. No

person or entity other than amici curiae, their members, and their counsel

made a monetary contribution to the preparation or submission of the

brief. The written consent of all parties to the filing of this brief has been

filed with the Clerk of this Court.

2

Dean Michael Eisenberg of the Information School of the

University of Washington, Dean Gustav Friedrich of the

School of Communications, Information and Library Science

at Rutgers University, Dean Ronald Larsen of the School of

Information Sciences of the University of Pittsburgh, Direc-

tor Louise S. Robbins of the School of Library and Informa-

tion Studies of the University of Wisconsin-Madison, Direc-

tor W. Michael Havener of the Graduate School of Li

and Information Studies of the University of Rhode Island,

Dean Michael E.D. Koenig of the Palmer School of Li

& Information Science at the University of Long Island,

Dean Beth M. Paskoff of the School of Library and Informa-

tion Science at Louisiana State University, Director David

Eichmann of the School of Library and Information Science

of the University of lowa, Dean Philip M. Turner of the

School of Library and Information Sciences of the University

of North Texas, Director Consuelo Figueras of the Graduate

School of Information Sciences and Technologies of the

University of Puerto Rico, Dean Raymond F. von Dran of

the School of Information Studies at Syracuse University,

Dean Joanne Gard Marshall of the School of Information

and Library Science at the University of North Carolina at

Chapel Hill, Director Vicki L. Gregory of the School of Li-

brary and Information Science at the University of South

Florida, and Dean Prudence W. Dalrymple of the Graduate

School of Library and Information Science at Dominican

University. As members of the nation’s library community,

amici agree with the decision of the district court below and

believe that mandatory filtering of Internet access in public

libraries is antithetical to the historical mission of public li-

braries and destructive of their traditional functioning. Ac-

cordingly, they believe that the decision of the district court

should be affirmed.

3

INTRODUCTION AND SUMMARY OF ARGUMENT

This case may appear to present an issue about the avail-

ability of a narrow category of expression (“harmful to mi-

nors” material) through a single medium (the Internet), but in

fact it implicates an issue of great importance to the intellec-

tual and political life of our nation: the role of the public li-

brary, long a vital center for the acquisition of information

and the exploration of ideas. As a condition of receiving fed-

eral funds, Congress has—with the Children’s Internet Pro-

tection Act (“CIPA”), Pub. L. No. 106-554, 114 Stat. 2763

(2000)—insisted that public libraries affirmatively censor

constitutionally-protected material. By demanding that li-

braries be censors and devote resources—not to facilitating—

but to interfering with patrons’ pursuit of information and

ideas, Congress has subverted the role of librarians and pub-

lic libraries and violated the First Amendment rights of li-

brary patrons.

Public libraries exist to meet the information needs of

their patrons, not to censor information in accordance with a

predetermined agenda. Imposition of mandatory filtering on

public libraries impairs the ability of librarians to fulfill the

purpose of public libraries—namely, assisting liorary patrons

in their quest for information—and distorts public libraries’

traditional function by interfering with local control over the

management of their resources. Mandatory filtering also im-

poses unwarranted restrictions on the use of the Internet, a

library resource not subject to the spatial and budgetary con-

straints that typically restrict print collections. Far from be-

ing “just another collections decision,” mandatory censorship

of the Internet proscribes access to constitutionally-protected

expressive materials without any resource-scarcity justifica-

tion. Moreover, through ingenuity and adherence to the

long-established values that guide the profession of library

science, public libraries have developed techniques for pro-

tecting minors from harmful materials on the Internet that are

more effective than mandatory filtering.

4

For all of these reasons, CIPA is unconstitutional. Con-

gress cannot condition public libraries’ receipt of funds on

their agreement to violate the First Amendment rights of li-

brary patrons. The public library is the quintessential forum

for the receipt of information. With respect to a medium like

the Internet that is subject to virtually no resource limitations,

content-based exclusions of constitutionally-protected mate-

rial are subject to strict scrutiny. CIPA cannot survive such

scrutiny because mandatory filtering is not narrowly-tailored

to achieve a compelling purpose. Specifically, CIPA is both

grossly overinclusive and significantly underinclusive in the

material it censors, and prohibits access by adults to informa-

tion they have a constitutional right to receive. Less restric-

tive approaches, including those already used by public li-

braries throughout the United States, are as or more effective

in protecting children while interfering far less with the rights

of adults.

ARGUMENT

I. THE Mission OF PUBLIC LIBRARIES AND THE ROLE

OF LIBRARIANS SERVE THE OVERRIDING PURPOSE OF

ENSURING THAT INDIVIDUAL LIBRARY PATRONS OB-

TAIN THE INFORMATION THEY SEEK.

The public library serves a unique and critical role in our

democratic society: it is the “quintessential locus of the re-

ceipt of information.” Kreimer v. Bureau of Police, 958 F.2d

1242, 1255 (3d Cir. 1992) (emphasis added). People turn to

the public library when they wish to explore a broad area of

knowledge or research a particular question. Assisting li-

brary patrons in their pursuit of information is the singular

institutional purpose of public libraries, the mission of public

librarians, and the animating principle of their collections

development decisions. See G. Edward Evans, Developing

Library Collections 19 (1979) (“[P]roviding the information

that a patron wants, regardless of its format or location is . . .

the reason for the existence of libraries, and indeed, of li-

brarians.”). Due to this longstanding institutional commit-

5

ment to the information needs of library patrons, public li-

braries are literally “designed for freewheeling inquiry,”

Board of Educ. v. Pico, 457 U.S. 853, 915 (1982), and are

“mighty resource[s] in the free marketplace of ideas.”

Among all our public institutions, public libraries are “spe-

cially dedicated to broad dissemination of ideas.” Minarcini

v. Strongsville, 541 F.2d 577, 582-83 (6th Cir. 1976).

CIPA disregards this unique role of public libraries. Far

from identifying the information needs of patrons as the pub-

lic library’s raison d'etre, CIPA would cast public libraries

and librarians as moral guardians and censors—and Appel-

lants and their amici defend it in just these terms. See, e.g.,

App. Br. 21-22 (librarians should play the role of gatekeepers

who “give the public, not everything it wants, but the best of

what it will read or use to advantage” (internal quotation

marks and citation omitted)). This is not merely incorrect as

a matter of librarianship; it also subverts the democracy-

promoting premise of public libraries—that they exist to

serve individuals’ interests in obtaining information, not a

governmental agenda or orthodoxy. See William A. Katz,

Collection Development: The Selection of Materials for Li-

braries 105 (1980) (librarians select materials on the basis of

what the “library audience will enjoy reading,” not “on the

basis what people ought to read” or “what they ought not to

read” (emphases in original)). Contrary to the assertions of

Appellants and their amici, the information needs of patrons

are fundamental to the mission of public libraries and the role

of librarians.

The mission of public libraries has long been so defined.

See Robert N. Broadus, Selecting Materials for Libraries 36

(1981) (“Go back as far as 1894. The librarian of the St.

Louis Public Library states his position in simple terms: ‘In

the first place, we try to provide the books people want—not

those we think they ought to read.’”). Both the American

Library Association (“ALA”) Library Bill of Rights, first

adopted in 1948, and the ALA Freedom to Read Statement,

6

which dates to 1953, affirm that libraries should provide a

wide array of materials based on patrons’ informational

needs. ALA Library Bill of Rights, available at http://www.

ala.org/ work/ freedom/ Ibr.html; ALA Freedom to Read

Statement, available at http://www.ala.org/alaorg/oif/

freeread.html. A broad and balanced collection obviously is

more likely to contain information useful to and desired by a

public library’s varied patron base, and to afford adequate

coverage of all sides of important issues. See Broadus, sy-

pra, at 46 (“In order to be fair and to insure the presentation

of as much truth as possible, there should be some materials

on all (or just about all) sides of controversial issues.”).

To serve patrons’ informational needs fully, public li-

braries embody “society’s commitment to the preservation

and transmission of the cultural record.” See Vision & Mis-

sion Statement, University of Wisconsin-Madison School of

Library and Information Studies, available at http://polyglot.

Iss.wisc.edu/slis/about/vision.html. For this reason, public

libraries are a “source of last resort” for materials from our

own or earlier times that are out of print, too expensive for

purchase, or unavailable for any other reason.

This Court has recognized that universities serve as “tra-

ditional sphere|s} of free expression” that are “fundamental

to the functioning of our society.” Rust v. Sullivan, 500 U.S.

173, 200 (1991). Public libraries, too, undergird our system

of free expression by enabling a “/arge segment of citizens

[to] inform themselves.” Broadus, supra, at 33 (emphasis in

original). Indeed, public libraries may reach even more

broadly than universities because they are free.

Appellants are simply wrong that iibraries typically sub-

ordinate patrons’ information needs to their own official

agenda of promoting “worthwhile and appropriate” reading.

App. Br. 12, 20-21. To the contrary, librarians are commit-

ted to the principle that patrons “should be able to find the

reading matter and other media formats which [they] want[],

educational or not.” Broadus, supra, at 37. Indeed, without

7

rendering judgment or imposing content-based limitations on

the materials sought, public libraries “routinely provide pa-

trons with access to materials not in their collections through

the use of bibliographic access tools and interlibrary loan

programs.” American Library Ass'n v. United States, 201 F.

Supp. 2d 401, 421 (E.D. Pa. 2002). If a public library does

not have a resource in its collection, librarians assist patrons

in obtaining access to the source. The sole exception to this

practice is where the work is clearly illegal. Id.

Thus, the first and central principle governing public li-

braries’ provision of reference services is “to provide the in-

formation sought by the user.” 2 William A. Katz, /ntroduc-

tion to Reference Work 14 (2001) (emphasis added). Rather

than assume that a particular work has little value for every

patron, a reference librarian assisting a patron seeking a

source “ask(s) questions that help define the user’s own

. Thus, amici National Center for Children and Families, et al. are —

simply incorrect when they assert that “[I]ibraries have no right, nor duty,

to provide any and all available information to patrons.” Amici Br. 21.

Nor does any evidence in the record support Appellants’ assertion that the

mission of public libraries invariably requires the exclusion of sexually-

explicit work or any other category of constitutionally-protected speech.

App. Br. 22. To the contrary, if some libraries do not maintain sexually-

explicit works, this may simply reflect the lack of articulated demand for

such materials from the community. See Katz, Collection Development,

supra, at 187 (“[I}f there really is popular demand for, say, Playboy, [the

title] should be purchased.... Any heavily read title should be given

consideration, no matter what its editorial content. It should be accepted

or rejected on community need.”). %

In any event, including such materials in a public library’s collec-

tion is simply not inconsistent with the historical and traditional mission

of public libraries. The Library of Congress, for instance, collects sexu-

ally-oriented materials consistently with its mission of “preserv[ing] a

universal collection of knowledge and creativity for future generations.”

See About the Library of Congress, available at hitp://www.loc.gov/

about (last visited Feb. 8, 2003); see also Library of Congress Online

Catalog, available at http://catalog.loc.gov/ (showing listings for Play-

boy, Hustler, and Penthouse magazine) (last visited Feb. 8, 2003).

8

evaluative criteria” and focuses the information search on the

user’s specific needs. Ellen D. Sutton & Leslie Edmonds

Holt, “The Reference Interview,” in Richard E. Bopp &

Linda C. Smith, Reference and Information Services: An In-

troduction 47 (2d ed. 1995).

A second and related tenet of library science is that li-

brarians must exercise their professional judgment without

giving sway to personal bias. The vast majority of public

libraries have adopted the ALA Library Bill of Rights, which

states that library sources “should not be proscribed or re-

moved because of partisan or doctrinal disapproval.” ALA

Library Bill of Rights, supra; see also ALA Code of Ethics,

available at http://www.ala.org/alaorg/oif/ethics.html (“VII.

We distinguish between our personal convictions and profes-

sional duties and do not allow our personal beliefs to inter-

fere with fair representation of the aims of our institutions or

the provision of access to their information resources.”) (last

modified Dec. 13, 2001); Guidelines for Behavioral Perform-

ance of Reference and Information Services Professionals

3.9, available at http://www.ala.org/rusa/stnd_behavior.html.

(“As a good communicator, the librarian . . . [mJaintains ob-

jectivity and does not interject value judgments about subject

matter or the nature of the question into the transaction.”)

(last modified Mar. 1, 2002).

The principle of neutrality in the exercise of professional

judgment is so crucial that librarians have an ethical duty not

only to refrain from denying access to information because of

disapproval of its content, but also “to 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.” ALA Freedom to Read Statement, supra, at 3;

ALA Code of Ethics, supra (“II. We uphold the principles of

intellectual freedom and resist all efforts to censor library

resources.”); see also 201 F. Supp. 2d at 421 (“Reference li-

brarians are trained to assist patrons without judging the pa-

9

tron’s purpose in seeking information, or the content of the

information that the patron is seeking.”).

For this reason, amici Greenville, SC et al. are incorrect

when they assert that “[t]he essence of librarianship is, in

short, inconsistent with one of the basic tenets of traditional

First Amendment jurisprudence that content-based decisions

regarding speech are suspect.” Amici Br. of Greenville, SC,

et al. 5-6. Librarians do not make content-based decisions

reflecting their own values or tastes and certainly not reflect-

ing a government-imposed orthodoxy. To the contrary, the

principles described above ensure that librarians’ decisions

about collection-building are driven by the overriding pur-

pose of meeting patrons’ information needs. See Broadus,

supra, at 30 (“The first rule in selection is that libraries exist

for patrons, not for librarians.”’).

Because collections decisions are driven by the needs

and interests of patrons, they are necessarily made at the lo-

cal level, closest to the patrons themselves. See Evans, su-

pra, at 19 (“Every library’s collection . . . must be assembled

and developed with its unique patron community in mind.”);

Katz, Collections Development, supra, at 88 (“[T]he librarian

must always be careful not to use national assumptions for

local selection.”). Moreover, contrary to Appellants’ asser-

tion, App. Br. 32, delegation of collections decisions to third

parties is both rare and highly circumscribed in order to en-

sure that collections decisions are made by individuals with

knowledge about and experience with the needs of the com-

munity. See Katz, Collection Development, supra, at 111-12

(“No matter what system is employed the librarian should

have the final professional word in the selection process.”);

see also 201 F. Supp. 2d at 421 (libraries “do not generally

delegate their selection decisions to parties outside of the

public library or its governing body”).

Critically, collections decisions are not analogous to

mandatory filtering software. Professional and ethical stan-

dards guide collection development, unlike the decisions that

10

determine which web sites filtering software will block,

which are unconstrained by such standards. See id. at 433;

see also Rhode Island Library Ass’n Intellectual Freedom

Committee Report on the Children’s Internet Protection Act

2 (Mar. 25, 2001) (“RILA Report”) (“Filtering . . . . is unable

to make subjective or legal decisions, and therefore, does not

know and often does not recognize the difference between

illegal and legal speech.”). Most important, unlike the cen-

sorship mandated by CIPA, collections decisions do not

place obstacles in the way of patrons’ access to information.

To the contrary, because of the availability of interlibrary

loans and the Internet itself, libraries can and will facilitate

access to materials their own institutions do not maintain. In

short, librarians are not censors, but facilitators of patrons’

access to the world of information and expressive materials.

CIPA, in contrast, mandates censorship.

Il. CIPA SUBVERTS THE TRADITIONAL FUNCTION OF

PUBLIC LIBRARIES,

As the foregoing demonstrates, the provision of unfet-

tered Internet access by public libraries is entirely compatible

with their traditional mission, and this mission requires the

provision of such access without imposing mandatory filter-

ing. As this Court has recognized, the Internet offers indi-

viduals an expansive “new marketplace of ideas,” Reno v.

ACLU, 521 U.S. 844, 885 (1997), allowing them to explore

contents “as diverse as human thought.” /d. at 852 (citation

omitted). “No other medium has provided us with so much

information so easily.” ALA Libraries & the Internet Toolkit

at 3, available at _ http://www.ala.org/alaorg/oif/

2002toolkit.pdf.

For this reason, Internet access is virtually ubiquitous in

public libraries. As of 2000, 95% of “all public libraries

[were] provid{ing] public access to the Internet.” 201 F.

Supp. 2d at 422 (citing Bertot & McClure, Public Libraries

and the Internet 2000, Report to the Nat’! Comm’n on Li-

braries and Information Science). Fully 10% of Americans

who access the Internet do so from their public library, id.,

and just as the public library is a “source of last resort” for

hard-to-find materials, the public library is also a critical

source of Internet access for many lower-income Americans.

See id. at 422 (“About 20.3% of Internet users with house-

hold family income of less than $15,000 per year use public

libraries for Internet access.”); ALA Libraries & the Internet

Toolkit, supra, at 21 (“[F]or people without Internet access at

home, school or work, public libraries are the number one

point of access” (citing Falling Through the Net, NTIA

2000)). Consistent with the principles described above, 93%

of public libraries provide this Internet access without impos-

ing mandatory filtering on their patrons’ use. See 201 F.

Supp. 2d at 426. |

By requiring the installation of filtering software on all

Internet-connected computer terminals in the library, includ-

ing both staff terminals and those for use by the public, see

47 U.S.C. § 254(h)(6)(C); In re Federal State Joint Bd. on

Universal Serv.: Children’s Internet Protection Act, CC

Docket No. 96-45, Report and Order, FCC 01-120, 4 30

(Apr. 5, 2001), CIPA subverts the traditional functioning of

public libraries in three significant ways: (1) it mandates

unwarranted restrictions on an information resource, the

Internet, that is not subject to budgetary and space limitations

comparable to those that limit a library’s print collection; (2)

it supersedes local decision-making and replaces it with the

decisions of third persons without training in library science;

and (3) it impairs the ability of librarians to aid patrons seek-

ing information. Indeed, far from functioning like “just an-

other collections decision,” CIPA is fundamentally incom-

patible with the historic mission and long-standing operation

of public libraries.

First, CIPA flatly prohibits patrons from accessing a

wide variety of materials through public library Internet fa-

cilities, and this censorship is completely unjustified accord-

ing to library selection standards. As plaintiffs’ trial expert

made clear, “the main reason that selection is done in the first

12

place ... is to make the best use of scarce budget and space

resources. Librarians select in an environment of scarcity,”

Expert Witness Rep. of Mary K. Chelton 4 14. Absent the

constraints of space and cost, no principle of librarianship

justifies excluding material from a library’s collection. Such

scarce budget and space limitations do not impinge on the

provision of Internet access as they do on a library’s print

collection. Once a library has purchased the Internet service,

it need not pay extra for additional web sites. The addition of

web sites to the Internet does not occasion a need for more

computer terminals, the way adding books to a collection re-

quires more shelf space.’ Thus, application of content-based

selection criteria to the Internet is not warranted by the pro-

fessional standards that govern librarians. CIPA distorts the

traditional functioning of libraries by requiring content re-

strictions in the absence of the historically critical factors of

limited space and budget.

Second, in CIPA, Congress simply overrides the local,

professional decision-making that is the hallmark of a public

library’s operation. Appellants blithely turn this situation on

its head when they suggest that “[a] public library’s judgment

that [filtering] best serves its historic mission is entitled to

substantial deference ....” App. Br. 30. Of course, if public

libraries filter Internet access pursuant to CIPA, they will nos

have made a judgment that filtering best serves their historic

missions; rather, they will be filtering because Congress, pur-

suant to CIPA, requires them to do so. Appellants cannot

defend CIPA by invoking the deference due professional

judgments made by local librarians. CIPA’s central facet is

its disregard for such judgments, and for local librarians’ ex-

> For this reason, the imposition of time limits on Internet access at

public libraries does not “constrain [] libraries’ ability to provide patrons

with unrestricted Internet access,” 201 F. Supp. 2d at 465 n.25, in the

same way that spatial and budgetary restrictions circumscribe a library's

print collection.

13

pertise about what kinds of resources best serve the interests

of their communities.

Third, CIPA disrupts the traditional function of public

libraries by interfering with librarians’ ability to aid patrons.

CIPA requires filtering software to be installed even on staff

computer terminals. See 201 F. Supp. 2d at 413. This obvi-

ously prevents librarians from aiding patrons who encounter

a blocked website. For instance, librarians cannot even ac-

cess blocked web sites to ascertain whether they actually

contain unprotected speech.’ Moreover, librarians cannot

resort to other resources to confirm the unprotected nature of

the blocked web site because “no one but the filtering com-

panies has access to the complete list of [blocked] URLs in

any category.” Jd. at 430. Indeed, the filtering software

companies consider these lists to be “proprietary informa- —

tion” and therefore keep them secret. /d. Librarians obvi-

ously cannot assist patrons effectively when they are ex-

cluded from the web site filtering process, and when that

process is conducted according to a set of procedures that

deviates from librarians’ professional standards.

Indeed, by relegating the censorship decisions to filter-

ing software companies, see id. at 433, CIPA entrusts con-

tent-based decisions to processes uninformed by the rigorous

professional standards to which librarians adhere. For exam-

ple, “one [filtering software] company admitted to categoriz-

ing some Web pages without any human review.” /d. The

other filtering software companies employ “limited” staff

whose training and qualifications are not reflected in the re-

cord and who have not been “instruct[ed] to take community

standards into account when making categorization deci-

* For this reason, none of the libraries that use filtering software

proffered by Appellants at trial install filtering software on staff termi-

nals. 201 F. Supp. 2d at 427. Indeed, “[a] few of the defendants’ prof-

fered libraries represented that individual librarians would have the dis-

cretion to allow a patron to have full Internet access on a staff computer

upon request... .” /d

14

sions.” /d. Moreover, as explained above, supra at 9 del

gation of these kinds of substantive decisions is flatly con.

trary to established library practices. :

For all of these reasons, the violence CIPA

traditional function of the public libraries pam -h fe

declared unconstitutional. “Where the [Government uses or

attempts to regulate a particular medium, we have been in-

formed by its accepted usage in determining whether a par-

ticular restriction on speech is necessary for the program’s

purposes and limitations.” Legal Servs. Corp. v. Velasquez

$31 U.S. 533, 543 (2001). “The First Amendment forb{ids]

the Government from using the forum in an unconventional

way to suppress speech inherent in the nature of the me-

dium.” /d. By forcing public libraries to exclude constity-

tionally-protected material based on official disapproval of

its content and absent any space or resource justification,

CIPA “suppress[es] speech inherent in the nature of the me-

dium” and thus violates the First Amendment.

Appellants cannot rehabilitate CIPA by arguing that it

merely “define[s] the limits” of the funding program at issue.

App. Br. 50 (internal quotation marks and citation omitted).

Appellants concede that in Velasquez, this Court struck down

funding limitations on Legal Services Corporation (“LSC”)

lawyers because “the role of lawyers supported by [the] fed-

eral funds ... is to advocate against the government, and

there was thus an assumption that counsel would be free of

state control.” /d. at 51-52 (emphasis in appellants’ brief).

Public libraries, like LSC, are institutions whose independ-

ence from official orthodoxy is necessary to the service they

provide. LSC happened to manifest this independence by

advocating against the government, but nothing requires that

Opposition be the litmus test of independence. To the con-

trary, appellants have missed the “salient point” in

Velasquez: what mattered was not that the LSC attorneys

were arguing against the government, but rather that “the

LSC program was designed to facilitate private speech, not to

promote a governmental message.” 531 U.S. at 542 (empha-

15

sis added). Here, as in Velasquez, the funding is intended to

“facilitate private speech” activities—private decisions by

library patrons to seek out and receive the information and

expressive materials of their choice. Public libraries’ neutral

facilitation of those constitutionally-protected “private

h” activities is as central to libraries’ traditional role as

the oppositional speech of LSC lawyers was to theirs.

[1]. LIBRARIES ALREADY SAFEGUARD THE INTERESTS

CONGRESS SEEKS TO Protect IN CIPA, AND THE

vast Masority OF Lisraries Do SO WITHOUT

MANDATORY FILTERING.

Public libraries share the legitimate goals expressed in

CIPA. In particular, libraries do not intend to facilitate expo-

sure to obscenity, child pornography, or, with respect to chil-

dren, material that is “harmful,” and thus legally proscribed.

See ALA Libraries & the Internet Toolkit, supra, at 14 (“Li-

brarians care deeply about children. Libraries already have

policies and programs to ensure children have an enriching

and safe online experience. And librarians are there to help ©

them.”). Public libraries overwhelmingly safeguard these

interests without resort to mandatory filtering. See id. at 15

(“Education is more effective than filters—kids need to make

good decisions about what they read and view, no matter

where they are.”); see also RILA Report at 2 (“Filtering

software ... gives parents and guardians a false sense of se-

curity” because it “often fails to block the type of site it

claims it will block.”). Of particular significance is the fact

that public libraries achieve these results using techniques

that are consistent with their unique purpose and function.

* In addition to being both over- and underinclusive with respect to

material that is legally prohibited for children, the mandatory fikering

software required by CIPA fails to take into account the important inter-

est served when minors learn techniques for safely and efficiently using

the Internet and other information technologies. “The Internet is good for

kids. The Internet is changing how we live, learn, work and interact with

16

“Few libraries report having difficulties with people

looking at pornography.” ALA Libraries & the Internet

Toolkit, supra, at 14. Moreover, public libraries have devel-

oped effective techniques for managing patrons’ use of the

Internet that enjoy wide currency. The vast majority of li-

braries opt for one or more of the following non-exhaustive

list of alternatives to mandatory filtering:

e developing an Internet “use” policy and guidelines,

which set forth the conditions for Internet use and

the penalties for noncompliance, and which is

posted prominently in the library;

e adopting special use policies that apply to children

and facilitate parental control over children’s Inter-

net usage;

e providing training to patrons about how to use the

Internet or guided searches of the Internet;

¢ optional linking from the library’s home web page

to a “white list” of recommended web sites that li-

brarians have selected using the criteria and profes-

sional standards applicable to collection decisions

generally;

e installing privacy screens on computer terminals

with Internet access or placing such terminals in

sunken desktops, both of which prevent passers-by

from viewing the computer screen;

® continuing to innovate. For example, public librar-

ies are experimenting with the use of personally-

tailored, optional filtering in the form of “special li-

brary cards with computer chips that allow individ-

ual library users to control Internet access for them-

one another. If today’s children are to succeed, they must learn informa-

tion literacy skills for ever-changing technologies.” ALA Libraries & the

Internet Toolkit, supra, at 14.

17

selves and their children.” ALA Libraries & the

Internet Toolkit, supra, at 25.°

Unlike mandatory filtering, these techniques for manag-

ing patrons’ use of the Internet are not “one size fits all.”

Rather, they permit public libraries individually to tailor the

management of their resources to the needs and demands of

their communities and in accordance with their professional

standards. Thus, through creativity, perseverance, and ad-

herence to the professional standards and values that have

long guided the profession, public libraries have devised

means of managing patrons’ use of the Internet that are more

effective than the mandatory filtering required by CIPA.

Public libraries’ choice to implement these techniques—in

contrast to CIPA’s federal fiat—is indeed a “judgment ...

entitled to substantial deference, not judicial suspicion.”

App. Br. 30.

IV. CIPA Is UNCONSTITUTIONAL BECAUSE IT INDUCES

LIBRARIES TO VIOLATE THE FIRST AMENDMENT

RIGHTS OF THEIR PATRONS.

Internet access available in libraries is a designated pub-

lic forum that provides general access for a class of speakers

and listeners—web publishers and library patrons—and li-

braries therefore cannot exclude speakers or prevent the re-

ceipt of certain information on the basis of the content of the

speech without satisfying strict scrutiny.’ Because CIPA

® amici American Center for Law and Justice 2f>al., plainly are

wrong in asserting (Br. 10) that libraries would forgo providing Internet

access altogether in the absence of mandatory filtering. As shown by the

record in this case, 201 F. Supp. 2d at 424-26, public libraries do not

simply discontinue offering Internet service in the absence of mandatory

filtering. Rather, they adopt policies and practices that more effectively

safeguard the interests they share with Congress than does CIPA.

” Any suggestion that striking down CIPA on First Amendment

grounds threatens the independence and authority of public libraries is

unfounded. See Amici Br. of Greenville, SC et al. 7 (application of the

fails strict scrutiny, Congress’ requirement that public librar

ies implement mandatory filtering as a condition of receivin

federal funds induces public libraries to violate the First

Amendment rights of their patrons. See South Dakota y

Dole, 483 U.S. 203, 208 (1987) (“[O]ther constitutional pro.

visions [like the First Amendment] may provide an inde-

pendent bar to the conditional grant of federal funds.”’) (cita-

tions omitted).

The district court properly identified the forum at issue

as “the library’s provision of Internet access.” 201 F. Supp

2d at 455. Appellants do not currently dispute this definition

of the forum. In their post-trial brief in the district court, Ap-

pellants argued for a narrow forum limited to “the content”

that “the Internet delivers . . . to patrons.” Def. Post-Trial Br.

19-20. On appeal, however, Appellants staked out a broader

position: “any ‘forum’ that results from installing computers

and connecting them to the Internet must take account of the

fact that the computers and the access to the Internet they af-

ford thereby become part of the resources of a library,” App.

Br. 39-40. Though Appellants appear to argue that this

broader definition warrants reversal of the district court, de-

fining the forum as the provision of Internet access in the

public library is wholly consistent with the district court’s

holding.*

Appellants argue that the forum is properly classified as

nonpublic; their argument is wrong, and the cases Appellants

First Amendment will make the federal judiciary the “national Supreme

Librarian”). C/PA, not the First Amendment, tramples the independence

and authority of public libraries and casts Congress as the “national Su-

preme Librarian.” Striking down CIPA on First Amendment grounds

restores, rather than upsets, the traditional balance.

* Similarly, amici American Center for Law and Justice, et al. de-

fine the relevant forum as “the specific forum created when the library

provides its patrons with Internet access.” Br. 2. This also accords with

the district court’s holding.

19

cite are inapposite. Far from supporting Appellants’ argu-

ment, Arkansas Educational Television Commission v.

Forbes makes clear why a public library’s provision of Inter-

net access is a designated public forum. Unlike Internet ac-

cess in public libraries, which creates “general access for a

class of speakers,” the televised debate in Forbes permitted

only “selective access for individual speakers.” 523 U.S.

666, 679 (1998). Ifa public library permitted patrons to ac-

cess only the web sites of preapproved web publishers, for

instance, then the forum at issue might be nonpublic, like the

forum in Forbes. But computer terminals providing Internet

access to a prescreened selection of web sites is not the fo-

rum at issue. The record is clear that the overwhelming ma-

jority of public libraries make the Internet available to adult

patrons without content restrictions.

Appellants’ reliance on National Endowment for the Arts

v. Finley is misplaced for the same reason. This Court de-

clined to classify the NEA funding program as a designated

public forum because Congress had not permitted general

access to the funding program to a class of speakers. Rather,

as this Court explained, “[a}lthough the scarcity of NEA

funding does not distinguish this case from Rosenberger [v.

Rector, 515 U.S. 819 (1995), in which a university created a

limited public forum], the competitive process according to

which the grants are allocated does.” 524 U.S. 569, 586

(1998) (citation omitted) (emphasis added). In other words,

because artists had to compete for NEA funds, the funding

program permitted only “selective access for individual

speakers,” Forbes, 523 U.S. at 679, and was therefore prop-

erly classified as a non-public forum. Again, such is not the

situation at hand.

As the record in the district court makes clear, “the pro-

vision of Internet access within a public library in particular,

is ‘for use by the public .. . for expressive activity,’ namely,

the dissemination and receipt by the public of a wide range

of information.” 201 F. Supp. 2d at 457 (citation omitted).

20

Under standards promulgated by this Court, “[t]o create a

[designated public} forum . . . the government must intend to

make the property ‘generally available’ to a class of speak-

ers.” Forbes, 523 U.S. at 678 (citation omitted); see also

Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473

U.S. 788, 802 (1985) (the government creates a public forum

when it “intentionally open[s] a non-traditional forum for

public discourse.”). One would be hard-pressed to find a

designated public forum that more closely meets the criteria

of having been “intentionally openied] ... for public dis-

course” than Internet access in a public library. /d.

Appellants miss the point in asserting that “[a] public

library does not make computers available to obtain material

from the Internet in order to create a public forum for Web

publishers to speak.” App. Br. 26. Appellants ignore the dis-

trict court’s explicit finding that Internet access in public li-

braries creates a designated public forum for both the dis-

semination and receipt of information. See 201 F. Supp. 2d

at 457. The First Amendment’s protection of the right to re-

ceive information is so well-established as to be beyond

question. See, e.g., Reno v. ACLU, 521 U.S. 844, 874 (1997)

(Communications Decency Act violates the First Amend-

ment where it “effectively suppresses a large amount of

speech that adults have a constitutional right to receive”);

Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“[The] right to

receive information and ideas, regardless of their social

worth . . . is fundamental to our free society.”) (citation omit-

ted); see also supra at 4 (public libraries are a “quintessential

locus” for the receipt of information); cf Griswold v. Con-

necticut, 381 U.S. 479, 482 (1965) (“[T]he State may not,

consistently with the spirit of the First Amendment, contract

the spectrum of available knowledge.”). Public libraries are

of their essence a public forum for the receipt of information.

Having correctly identified the forum at issue and its

character as a designated public forum, the district court

properly determined that strict scrutiny applies because (a)

21

public libraries make Internet access generally available to a

class of speakers or listeners, 201 F. Supp. 2d at 462, and (b)

CIPA requires libraries to “single out for exclusion from the

forum particular speech whose content is disfavored.” /d. at

461. Application of strict scrutiny is mandated under this

Court’s precedents:

[R]egulation of speech on government property that

has traditionally been available for public expres-

sion is subject to the highest scrutiny.... The sec-

ond category of public property is the designated

public forum, whether of a limited or unlimited

character—property that the State has opened for

expressive activity by part or all of the public.

Regulation of such property is subject to the same

limitations as that governing a traditional public fo-

rum.

International Soc'’y for Krishna Consciousness, Inc. v. Lee, —

505 U.S. 672, 678 (1992) (emphasis added) (citations omit-

ted); see also Perry Educators Ass'n v. Perry Local Educ.

Ass'n, 460 U.S. 37, 46 (1983) (“Although a state is not re-

quired to [create and maintain a designated public forum], as

long as it does so it is bound by the same standards as apply

in a traditional public forum.”). “If the government excludes

a speaker who falls within the class to which a designated

public forum is made generally available, its action is subject

to strict scrutiny.” Forbes, 523 U.S. at 677 (citation omit-

ted). The record below is clear that, because of intractable

technological issues relating to the operation of filtering

software, CIPA requires the content-based exclusion of sub-

stantial amounts of information that “falls within the class to

which [the] designated public forum [at issue] is made gener-

ally available.” Jd. Because this exclusion is content-based,

CIPA is subject to strict scrutiny. /d.

CIPA cannot survive such scrutiny because it clearly is

not narrowly tailored. Filtering software is intrinsically inac- |

curate: “The commercially available filters on which evi-

meee aa

22

dence was presented at trial all block many thousands of Web

pages that are clearly not harmful to minors, and many thou-

sands more pages that, while possibly harmful to minors are

neither obscene nor child pornography.” 201 F. Supp. 2d at

475. In addition, material that is “harmful” as a legal matter

certainly slips through. /d. at 406 (filtering software pro-

grams “are blunt instruments that .. . ‘underblock,’ i.e., fail

to block access to substantial amounts of content that the |i-

brary boards wish to exclude ....”). Moreover, because of

inherent limitations in the nature of the technology, “it is cur-

rently impossible, given the Internet’s size, rate of growth

rate of change, and architecture, and given the state of the art

of automated classification systems, to develop a filter that

neither underblocks nor overblocks a substantial amount of

speech.” /d. at 437.

The upshot is that Congress’s requirement that public

libraries use mandatory filtering software impermissibly re-

stricts adults from receiving information to which they are

constitutionally entitled access. Like the Communications

Decency Act, which “on its face . . . simply restricted the dis-

tribution to minors of speech that was constitutionally unpro-

tected with respect to minors,” CIPA also “as a practical mat-

ter, . . . effectively prohibit[s] the distribution to adults of ma-

terial that [is] constitutionally protected with respect to

adults.” /d. at 478. It is axiomatic that CIPA is not narrowly

tailored if it “reduce[s] the adult population ... to reading

only what is fit for children.” Butler v. Michigan, 352 U.S.

380, 383 (1957). Moreover, given the clumsiness of filtering

software, CIPA denies adults access to information that even

children have a constitutional right to receive. Further, by

mandating filtering software in lieu of more sensitive deci-

sions by local librarians about how to protect children from

“harmful” images, CIPA mandates the use a crude one-size-

fits-all solution in lieu of a more sensitive community-by-

community approach.

23

The complaints of amici that the district court misap-

lied strict scrutiny are meritless. First, amici Greenville,

SC, et al. (Br. 13) object that “[bJefore a particular restriction

can be held unconstitutional, the court must find that there is

an alternative that is less restrictive with respect to the pro-

tected speech, but equally effective at regulating the unpro-

tected speech.” It is clear, however, that “the government

bears the burden of proof in showing the ineffectiveness of

less restrictive alternatives.” 201 F. Supp. 2d at 480 (empha-

sis added). Moreover, this burden is “especially heavy.”

Reno v. ACLU, 521 U.S. at 879. In light of the glaring in-

adequacies of filtering software, and the successful commu-

nity-sensitive alternative approaches already used by public

libraries, see supra at 16-17, the district court’s ruling that

Appellants failed to carry this burden is manifestly correct.

See 201 F. Supp. 2d at 484.

Second, amici American Center for Law and Justice, ef

al. take issue with the district court’s conclusion that CIPA’s

disabling provisions do not cure the constitutional infirmity,’

claiming that the district court’s analysis amounts to award-

ing library patrons “a constitutional right to immediate,

anonymous access to materials in a public library’s collection

....” Amici Br. of Am. Ctr. for Law & Justice 18. This ar-

gument is incorrect. As the district court found, this provi-

sion unreasonably requires the patron to identify himself and

his desire to access blocked material. Thus, it violates this

Court’s long-standing precept that “content-based restrictions

that require recipients to identify themselves before being

granted access to disfavored speech are subject to no less

> CIPA permits “[a]n administrator, supervisor, or other person au-

thorized by the certifying authority . . . [to] disable the technology protec-

tion measure concerned, during use by an adult to enable access for bona

fide research or other lawful purpose.” 47 U.S.C. § 254(h\(6\(D) (E-

rate); see also 20 U.S.C. § 9134(f(3) (LSTA) (permitting both adults and

minors to request that blocking be disabled). ~

24

scrutiny than outright bans on access to such speech.” 201 F. Respectfully submitted,

Supp. 2d at 486 (citing, inter alia, Lamont v. Postmaster

General, 381 U.S. 301 (1965)). The constitutional problem

is akin to that posed by laws that ban anonymous speech by | DAVID W. OGDEN

unpopular speakers— it imposes an intolerable chilling effect Counsel of Record

on protected expressive activity. See Talley v. California, a MAYA ALEXANDRI

362 U.S. 60, 64, 65 (1960); Watchtower Bible & Tract Soci- MARC BLITZ

ety v. Village of Stratton, 536 U.S. 150 (2002); see generally WILMER, CUTLER & PICKER

David W. Ogden & Joel A. Nichols, The Right to Anonymity 2445 M Street, N.W.

Under the First Amendment, 49 Fed. Lawyer 44 (Mar./Apr. Washington, D.C. 20037

2002). Thus, identifying oneself to disable Internet filtering (202) 663-6000

software is not, as amici suggest, like identifying oneself to

obtain a library card or an interlibrary loan, Amici Br. of Am. Counsel for Amici Curiae the Cleveland Public Library,

Ctr. for Law & Justice 18, neither of which constitute con- Rhode Island Library Association, and Thirteen Deans «

tent-based restrictions on access to speech and impose no Directors of University Schools of Library Science

chilling effect.

CONCLUSION FEBRUARY 2003

For the foregoing reasons, the judgment of the District

Court for the Eastern District of Pennsylvania should be af-

firmed.