Having identified the relevant state interests that could justify content-based restrictions on public libraries' provision of Internet access, we must determine whether a public library's use of software filters is narrowly tailored to further those interests. "It is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends." Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989). "[M]anifest imprecision of [a] ban . . . reveals that its proscription is not sufficiently tailored to the harms it seeks to prevent to justify . . . substantial interference with . . . speech." FCC v. League of Women Voters of Cal., 468 U.S. 364, 392 (1984). The commercially available filters on which evidence was presented at trial all block many thousands of Web pages that are clearly not harmful to minors, and many thousands more pages that, while possibly harmful to minors, are neither obscene nor child pornography. See supra, Subsection II.E.7. Even the defendants' own expert, after analyzing filtering products' performance in public libraries, concluded that of the blocked Web pages to which library patrons sought access, between 6% and 15% contained no content that meets even the filtering products' own definitions of sexually explicit content, let alone the legal definitions of obscenity or child pornography, which none of the filtering companies that were studied use as the basis for their blocking decisions. Moreover, in light of the flaws in these studies, discussed in detail in our findings of fact above, these percentages significantly underestimate the amount of speech that filters erroneously block, and at best provide a rough lower bound on the filters' rates of overblocking. Given the substantial amount of constitutionally protected speech blocked by the filters studied, we conclude that use of such filters is not narrowly tailored with respect to the government's interest in preventing the dissemination of obscenity, child pornography, and material harmful to minors.
To be sure, the quantitative estimates of the rates of overblocking apply only to those four commercially available filters analyzed by plaintiffs' and defendants' expert witnesses. Nonetheless, given the inherent limitations in the current state of the art of automated classification systems, and the limits of human review in relation to the size, rate of growth, and rate of change of the Web, there is a tradeoff between underblocking and overblocking that is inherent in any filtering technology, as our findings of fact have demonstrated. We credit the testimony of plaintiffs' expert witness, Dr. Geoffrey Nunberg, that no software exists that can automatically distinguish visual depictions that are obscene, child pornography, or harmful to minors, from those that are not. Nor can software, through keyword analysis or more sophisticated techniques, consistently distinguish web pages that contain such content from web pages that do not.
In light of the absence of any automated method of classifying Web pages, filtering companies are left with the Sisyphean task of using human review to identify, from among the approximately two billion web pages that exist, the 1.5 million new pages that are created daily, and the many thousands of pages whose content changes from day to day, those particular web pages to be blocked. To cope with the Web's extraordinary size, rate of growth, and rate of change, filtering companies that rely solely on human review to block access to material falling within their category definitions must use a variety of techniques that will necessarily introduce substantial amounts of overblocking. These techniques include blocking every page of a Web site that contains only some content falling within the filtering companies' category definitions, blocking every Web site that shares an IP-address with a Web site whose content falls within the category definitions, blocking "loophole sites," such as anonymizers, cache sites, and translation sites, and allocating staff resources to reviewing content of uncategorized pages rather than re-reviewing pages, domain names, or IP-addresses that have been already categorized to determine whether their content has changed. While a filtering company could choose not to use these techniques, due to the overblocking errors they introduce, if a filtering company does not use such techniques, its filter will be ineffective at blocking access to speech that falls within its category definitions. Thus, while it would be easy to design, for example, a filter that blocks only ten Web sites, all of which are either obscene, child pornography, or harmful to minors, and therefore completely avoids overblocking, such a filter clearly would not comply with CIPA, since it would fail to offer any meaningful protection against the hundreds of thousands of Web sites containing speech in these categories. As detailed in our findings of fact, any filter that blocks enough speech to protect against access to visual depictions that are obscene, child pornography, and harmful to minors, will necessarily overblock substantial amounts of speech that does not fall within these categories.
This finding is supported by the government's failure to produce evidence of any filtering technology that avoids overblocking a substantial amount of protected speech. Where, as here, strict scrutiny applies to a content-based restriction on speech, the burden rests with the government to show that the restriction is narrowly tailored to serve a compelling government interest. See Playboy, 529 U.S. at 816 ("When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions."); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) ("Content-based regulations are presumptively invalid."). Thus, it is the government's burden, in this case, to show the existence of a filtering technology that both blocks enough speech to qualify as a technology protection measure, for purposes of CIPA, and avoids overblocking a substantial amount of constitutionally protected speech. Here, the government has failed to meet its burden. Indeed, as discussed in our findings of fact, every technology protection measure used by the government's library witnesses or analyzed by the government's expert witnesses blocks access to a substantial amount of speech that is constitutionally protected with respect to both adults and minors. In light of the credited testimony of Dr. Nunberg, and the inherent tradeoff between overblocking and underblocking, together with the government's failure to offer evidence of any technology protection measure that avoids overblocking, we conclude that any technology protection measure that blocks a sufficient amount of speech to comply with CIPA's requirement that it "protect[] against access through such computers to visual depictions that are (I) obscene; (II) child pornography; or (III) harmful to minors" will necessarily block substantial amounts of speech that does not fall within these categories. CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(1)(A)). Hence, any public library's use of a software filter required by CIPA will fail to be narrowly tailored to the government's compelling interest in preventing the dissemination, through Internet terminals in public libraries, of visual depictions that are obscene, child pornography, or harmful to minors.
Where, as here, strict scrutiny applies, the government may not justify restrictions on constitutionally protected speech on the ground that such restrictions are necessary in order for the government effectively to suppress the dissemination of constitutionally unprotected speech, such as obscenity and child pornography. "The argument . . . that protected speech may be banned as a means to ban unprotected speech . . . . turns the First Amendment upside down. The Government may not suppress lawful speech as the means to suppress unlawful speech." Ashcroft, 122 S. Ct. at 1404. This rule reflects the judgment that "[t]he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted . . . ." Broadrick v. Oklahoma, 413 U.S. at 612.
Thus, in Ashcroft, the Supreme Court rejected the government's argument that a statute criminalizing the distribution of constitutionally protected "virtual" child pornography, produced through computer imaging technology without the use of real children, was necessary to further the state's interest in prosecuting the dissemination of constitutionally unprotected child pornography produced using real children, since "the possibility of producing images by using computer imaging makes it very difficult for [the government] to prosecute those who produce pornography using real children." Ashcroft, 122 S. Ct. at 1404; see also Stanley, 394 U.S. at 567-58 (holding that individuals have a First Amendment right to possess obscene material, even though the existence of this right makes it more difficult for the states to further their legitimate interest in prosecuting the distribution of obscenity). By the same token, even if the use of filters is effective in preventing patrons from receiving constitutionally unprotected speech, the government's interest in preventing the dissemination of such speech cannot justify the use of the technology protection measures mandated by CIPA, which necessarily block substantial amounts of constitutionally protected speech.
CIPA thus resembles the Communications Decency Act, which the Supreme Court facially invalidated in Reno v. ACLU, 521 U.S. 844 (1997). Although on its face, the CDA simply restricted the distribution to minors of speech that was constitutionally unprotected with respect to minors, as a practical matter, given Web sites' difficulties in identifying the ages of Internet users, the CDA effectively prohibited the distribution to adults of material that was constitutionally protected with respect to adults. Similarly, although on its face, CIPA, like the CDA, requires the suppression of only constitutionally unprotected speech, it is impossible as a practical matter, given the state of the art of filtering technology, for a public library to comply with CIPA without also blocking significant amounts of constitutionally protected speech. We therefore hold that a library's use of a technology protection measure required by CIPA is not narrowly tailored to the government's legitimate interest in preventing the dissemination of visual depictions that are obscene, child pornography, or in the case of minors, harmful to minors. For the same reason that a public library's use of software filters is not narrowly tailored to further the library's interest in preventing its computers from being used to disseminate visual depictions that are obscene, child pornography, and harmful to minors, a public library's use of software filters is not narrowly tailored to further the library's interest in protecting patrons from being unwillingly exposed to offensive, sexually explicit material. As discussed in our findings of fact, the filters required by CIPA block substantial numbers of Web sites that even the most puritanical public library patron would not find offensive, such as http://federo.com, a Web site that promotes federalism in Uganda, which N2H2 blocked as "Adults Only, Pornography," and http://www.vvm.com/~bond/home.htm, a site for aspiring dentists, which was blocked by Cyberpatrol as "Adult/Sexually Explicit." We list many more such examples in our findings of fact, see supra, and find that such erroneously blocked sites number in at least the thousands.
Although we have found large amounts of overblocking, even if only a small percentage of sites blocked are erroneously blocked, either with respect to the state's interest in preventing adults from viewing material that is obscene or child pornography and in preventing minors from viewing material that is harmful to minors, or with respect to the state's interest in preventing library patrons generally from being unwillingly exposed to offensive, sexually explicit material, this imprecision is fatal under the First Amendment. Cf. Reno, 521 U.S. at 874 ("[T]he CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech."); League of Women Voters, 468 U.S. at 398 ("[E]ven if some of the hazards at which [the challenged provision] was aimed are sufficiently substantial, the restriction is not crafted with sufficient precision to remedy those dangers that may exist to justify the significant abridgement of speech worked by the provision's broad ban . . . .").
While the First Amendment does not demand perfection when the government restricts speech in order to advance a compelling interest, the substantial amounts of erroneous blocking inherent in the technology protection measures mandated by CIPA are more than simply de minimis instances of human error. "The line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn. Error in marking that line exacts an extraordinary cost." Playboy, 529 U.S. at 817 (internal quotation marks and citation omitted). Indeed, "precision of regulation must be the touchstone in an area so closely touching our most precious freedoms." Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603 (1967) (internal quotation marks and citation omitted); see also Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66 (1963) ("The separation of legitimate from illegitimate speech calls for sensitive tools.") (internal quotation marks and citation omitted). Where the government draws content-based restrictions on speech in order to advance a compelling government interest, the First Amendment demands the precision of a scalpel, not a sledgehammer. We believe that a public library's use of the technology protection measures mandated by CIPA is not narrowly tailored to further the governmental interests at stake. Although the strength of different libraries' interests in blocking certain forms of speech may vary from library to library, depending on the frequency and severity of problems experienced by each particular library, we conclude, based on our findings of fact, that any public library's use of a filtering product mandated by CIPA will necessarily fail to be narrowly tailored to address the library's legitimate interests. Because it is impossible for a public library to comply with CIPA without blocking substantial amounts of speech whose suppression serves no legitimate state interest, we therefore hold that CIPA is facially invalid, even under the more stringent standard of facial invalidity urged on us by the government, which would require upholding CIPA if it is possible for just a single library to comply with CIPA's conditions without violating the First Amendment. See supra Part III. 3. Less Restrictive Alternatives
The constitutional infirmity of a public library's use of software filters is evidenced not only by the absence of narrow tailoring, but also by the existence of less restrictive alternatives that further the government's legitimate interests. See Playboy, 529 U.S. at 813 ("If a less restrictive alternative would serve the Government's purpose, the legislature must use that alternative."); Sable, 492 U.S. at 126 ("The Government may . . . regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest."). As is the case with the narrow tailoring requirement, the government bears the burden of proof in showing the ineffectiveness of less restrictive alternatives. "When a plausible, less restrictive alternative is offered to a content- based speech restriction, it is the Government's obligation to prove that the alternative will be ineffective to achieve its goals." Playboy, 529 U.S. at 816; see also Reno, 521 U.S. at 879 ("The breadth of this content-based restriction of speech imposes an especially heavy burden on the Government to explain why a less restrictive provision would not be as effective . . . ."); Fabulous Assocs., Inc. v. Pa. Pub. Util. Comm'n, 896 F.2d 780, 787 (3d Cir. 1990) ("We focus . . . on the more difficult question whether the Commonwealth has borne its heavy burden of demonstrating that the compelling state interest could not be served by restrictions that are less intrusive on protected forms of expression.") (internal quotation marks and citation omitted).
We find that there are plausible, less restrictive alternatives to the use of software filters that would serve the government's interest in preventing the dissemination of obscenity and child pornography to library patrons. In particular, public libraries can adopt Internet use policies that make clear to patrons that the library's Internet terminals may not be used to access illegal content. Libraries can ensure that their patrons are aware of such policies by posting them in prominent places in the library, requiring patrons to sign forms agreeing to comply with the policy before the library issues library cards to patrons, and by presenting patrons, when they log on to one of the library's Internet terminals, with a screen that requires the user to agree to comply with the library's policy before allowing the user access to the Internet. Libraries can detect violations of their Internet use policies either through direct observation or through review of the library's Internet use logs. In some cases, library staff or patrons may directly observe a patron accessing obscenity and child pornography. Libraries' Internet use logs, however, also provide libraries with a means of detecting violations of their Internet use policies. These logs, which can be kept regardless whether a library uses filtering software, record the URL of every Web page accessed by patrons. Although ordinarily the logs do not link particular URLs with particular patrons, it is possible, using access logs, to identify the patron who viewed the Web page corresponding to a particular URL, if library staff discover in the access logs the URL of a Web page containing obscenity or child pornography. For example, David Biek, Director of Tacoma Public Library's main branch, testified that in the course of scanning Internet use logs he has found what looked like attempts to access child pornography, notwithstanding the fact that Tacoma uses Websense filtering software. In two cases, he communicated his findings to law enforcement and turned over the logs to law enforcement in response to a subpoena.
Once a violation of a library's Internet use policy is detected through the methods described above, a library may either issue the patron a warning, revoke the patron's Internet privileges, or notify law enforcement, if the library believes that the patron violated either state obscenity laws or child pornography laws. Although these methods of detecting use of library computers to access illegal content are not perfect, and a library, out of respect for patrons' privacy, may choose not to adopt such policies, the government has failed to show that such methods are substantially less effective at preventing patrons from accessing obscenity and child pornography than software filters. As detailed in our findings of fact, the underblocking that results from the size, rate of change, and rate of growth of the Internet significantly impairs the software filters from preventing patrons from accessing obscenity and child pornography. Unless software filters are themselves perfectly effective at preventing patrons from accessing obscenity and child pornography, "[i]t is no response that [a less restrictive alternative] . . . may not go perfectly every time." Playboy, 529 U.S. at 824; cf. Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 759 (1996) ("No provision . . . short of an absolute ban, can offer certain protection against assault by a determined child.").
The government has not offered any data comparing the frequency with which obscenity and child pornography is accessed at libraries that enforce their Internet use policies through software filters with the frequency with which obscenity and child pornography is accessed at public libraries that enforce their Internet use policies through methods other than software filters. Although the government's library witnesses offered anecdotal accounts of a reduction in the use of library computers to access sexually explicit speech when filtering software was mandated, these anecdotal accounts are not a substitute for more robust analyses comparing the use of library computers to access child pornography and material that meets the legal definition of obscenity in libraries that use blocking software and in libraries that use alternative methods. Cf. Playboy, 529 U.S. at 822 ("[T]he Government must present more than anecdote and supposition.").
We acknowledge that some library staff will be uncomfortable using the "tap-on-the-shoulder" method of enforcing the library's policy against using Internet terminals to access obscenity and child pornography. The Greenville County Library, for example, experienced high turnover among library staff when staff were required to enforce the library's Internet use policy through the tap-on-the-shoulder technique. Given filters' inevitable underblocking, however, even a library that uses filtering will have to resort to a tap-on-the-shoulder method of enforcement, where library staff observes a patron openly violating the library's Internet use policy, by, for example, accessing material that is obviously child pornography but that the filtering software failed to block. Moreover, a library employee's degree of comfort in using the tap-on-the-shoulder method will vary from employee to employee, and there is no evidence that it is impossible or prohibitively costly for public libraries to hire at least some employees who are comfortable enforcing the library's Internet use policy. We also acknowledge that use of a tap on the shoulder delegates to librarians substantial discretion to determine which Web sites a patron may view. Nonetheless, we do not believe that this putative "prior restraint" problem can be avoided through the use of software filters, for they effectively delegate to the filtering company the same unfettered discretion to determine which Web sites a patron may view. Moreover, as noted above, violations of a public library's Internet use policy may be detected not only by direct observation, but also by reviewing the library's Internet use logs after the fact, which alleviates the need for library staff to directly confront patrons while they are viewing obscenity or child pornography.
Similar less restrictive alternatives exist for preventing minors from accessing material harmful to minors. First, libraries may use the tap-on-the-shoulder method when minors are observed using the Internet to access material that is harmful to minors. Requiring minors to use specific terminals, for example in a children's room, that are in direct view of library staff will increase the likelihood that library staff will detect minors' use of the Internet to access material harmful to minors. Alternatively, public libraries could require minors to use blocking software only if they are unaccompanied by a parent, or only if their parent consents in advance to their child's unfiltered use of the Internet. "A court should not assume that a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act." Playboy, 529 U.S. at 824. In contrast to the "harmful to minors" statute upheld in Ginsberg v. New York, 390 U.S. 629 (1968), which permitted parents to determine whether to provide their children with access to material otherwise prohibited by the statute, CIPA, like the Communications Decency Act, which the Court invalidated in Reno, contains no exception for parental consent: [W]e noted in Ginsberg that "the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children." Under the CDA, by contrast, neither the parents' consent nor even their participation in the communication would avoid the application of the statute.
Reno, 521 U.S. at 865 (citation omitted); see also Ginsberg, 390 U.S. at 639 ("It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944))).
The Court in Playboy acknowledged that although a regime of permitting parents voluntarily to block cable channels containing sexually explicit programming might not be a completely effective alternative to the challenged law, which effectively required cable operators to transmit sexually explicit programming only during particular hours, the challenged law itself was not completely effective in serving the government's interest: There can be little doubt, of course, that under a voluntary blocking regime, even with adequate notice, some children will be exposed to signal bleed; and we need not discount the possibility that a graphic image could have a negative impact on a young child. It must be remembered, however, that children will be exposed to signal bleed under time channeling as well. . . . The record is silent as to the comparative effectiveness of the two alternatives.
Playboy, 529 U.S. at 826. Similarly, in this case, the government has offered no evidence comparing the effectiveness of blocking software and alternative methods used by public libraries to protect children from material harmful to minors. Finally, there are other less restrictive alternatives to filtering software that further public libraries' interest in preventing patrons from unwillingly being exposed to patently offensive, sexually explicit content on the Internet. To the extent that public libraries are concerned with protecting patrons from accidentally encountering such material while using the Internet, public libraries can provide patrons with guidance in finding the material they want and avoiding unwanted material. Some public libraries also offer patrons the option of using filtering software, if they so desire. Cf. Rowan v. Post Office Dept., 397 U.S. 728 (1970) (upholding a federal statute permitting individuals to instruct the Postmaster General not to deliver advertisements that are "erotically arousing or sexually provocative").
With respect to protecting library patrons from sexually explicit content viewed by other patrons, public libraries have used a variety of less restrictive methods. One alternative is simply to segregate filtered from unfiltered terminals, and to place unfiltered terminals outside of patrons' sight-lines and areas of heavy traffic. Even the less restrictive alternative of allowing unfiltered access on only a single terminal, well out of the line of sight of other patrons, however, is not permitted under CIPA, which requires the use of a technology protection measure on every computer in the library. See CIPA Sec. 1721(b)(6)(C) (codified at 47 U.S.C. Sec. 254(h)(6)(C)), CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(1)(A)) (requiring a public library receiving E-rate discounts or LSTA grants to certify that it "has in place a policy of Internet safety that includes the operation of a technology protection measure with respect to any of its computers with Internet access . . . ." (emphasis added)); In re Federal-State Joint Board on Universal Service: Children's Internet Protection Act, CC Docket No. 96-45, Report and Order, FCC 01-120, 30 (Apr. 5, 2001) ("CIPA makes no distinction between computers used only by staff and those accessible to the public.").
Alternatively, libraries can use privacy screens or recessed monitors to prevent patrons from unwillingly being exposed to material viewed by other patrons. We acknowledge that privacy screens and recessed monitors suffer from imperfections as alternatives to filtering. Both impose costs on the library, particularly recessed monitors, which, according to the government's library witnesses, are expensive. Moreover, some libraries have experienced problems with patrons attempting to remove the privacy screens. Privacy screens and recessed monitors also make it difficult for more than one person to work at the same terminal. These problems, however, are not insurmountable. While there is no doubt that privacy screens and recessed terminals impose additional costs on libraries, the government has failed to show that the cost of privacy screens or recessed terminals is substantially greater than the cost of filtering software and the resources needed to maintain such software. Nor has the government shown that the cost of these alternatives is so high as to make their use prohibitive. With respect to the problem of patrons removing privacy screens, we find, based on the successful use of privacy screens by the Fort Vancouver Regional Library and the Multnomah County Public Library, that it is possible for public libraries to prevent patrons from removing the screens. Although privacy screens may make it difficult for patrons to work at the same terminal side by side with other patrons or with library staff, a library could provide filtered access at terminals that lack privacy screens, when patrons wish to use a terminal with others. Alternatively, a library can reserve terminals outside of patrons' sight lines for groups of patrons who wish unfiltered access.
We therefore conclude that the government has failed to show that the less restrictive alternatives discussed above are ineffective at furthering the government's interest either in preventing patrons from using library computers to access visual depictions that are obscene, child pornography, or in the case of minors, harmful to minors, or in preventing library patrons from being unwillingly exposed to patently offensive, sexually explicit speech. 4. Do CIPA's Disabling Provisions Cure the Defect? The Government argues that even if the use of software filters mandated by CIPA blocks a substantial amount of speech whose suppression serves no legitimate state interest, and therefore fails strict scrutiny's narrow tailoring requirement, CIPA's disabling provisions cure any lack of narrow tailoring inherent in filtering technology. The disabling provision applicable to libraries receiving LSTA grants states that "[a]n administrator, supervisor, or other authority may disable a technology protection measure . . . to enable access for bona fide research or other lawful purposes." CIPA Sec. 1712(a)(2) (codified at 20 U.S.C. Sec. 9134(f)(3)). CIPA's disabling provision with respect to libraries receiving E-rate discounts similarly states that "[a]n administrator, supervisor, or other person authorized by the certifying authority . . . may disable the technology protection measure concerned, during use by an adult, to enable access for bona fide research or other lawful purpose." CIPA Sec. 1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(D)).
To determine whether the disabling provisions cure CIPA's lack of narrow tailoring, we must first determine, as a matter of statutory construction, under what circumstances the disabling provisions permit libraries to disable the software filters. It is unclear to us whether CIPA's disabling provisions permit libraries to disable the filters any time a patron wishes to access speech that is neither obscenity, child pornography, or in the case of a minor patron, material that is harmful to minors. Whether CIPA permits disabling in such instances depends on the meaning of the provisions' reference to "bona fide research or other lawful purpose." On the one hand, the language "to enable access for bona fide research or other lawful purpose" could be interpreted to mean "to enable access to all constitutionally protected material." As a textual matter, this reading of the disabling provisions is plausible. If a patron seeks access to speech that is constitutionally protected, then it is reasonable to conclude that the patron has a "lawful purpose," since the dissemination and receipt of constitutionally protected speech cannot be made unlawful.
Moreover, since a narrower construction of the disabling provision creates more constitutional problems than a construction of the disabling provisions that permits access to all constitutionally protected speech, the broader interpretation is preferable. "[I]f an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is fairly possible, we are obligated to construe the statute to avoid such problems." INS v. St. Cyr, 121 S. Ct. 2271, 2279 (2001) (internal quotation marks and citations omitted). On the other hand, interpreting CIPA's disabling provisions to permit disabling for access to all constitutionally protected speech presents several problems. First, if "other lawful purpose" means "for the purpose of accessing constitutionally protected speech," then this reading renders superfluous CIPA's reference to "bona fide research," which clearly contemplates some purpose beyond simply accessing constitutionally protected speech. In general, "courts should disfavor interpretations of statutes that render language superfluous." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253 (1992). Furthermore, Congress is clearly capable of explicitly specifying categories of constitutionally unprotected speech, as it did when it drafted CIPA to require funding recipients to use technology protection measures that protect against visual depictions that are "obscene," "child pornography," or, in the case of minors, "harmful to minors." CIPA Sec. 1712(a) (codified at 20 U.S.C. Sec. 9134(f)(1)(A)(i)(I)-(III)); CIPA Sec. 1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(B)(i)(I)-(III)). If Congress intended CIPA's disabling provisions simply to permit libraries to disable the filters to allow access to speech falling outside of these categories, Congress could have drafted the disabling provisions with greater precision, expressly permitting libraries to disable the filters "to enable access for any material that is not obscene, child pornography, or in the case of minors, harmful to minors," rather than "to enable access for bona fide research or other lawful purposes," which is the language that Congress actually chose.
At bottom, however, we need not definitively construe CIPA's disabling provisions, since it suffices in this case to assume without deciding that the disabling provisions permit libraries to allow a patron access to any speech that is constitutionally protected with respect to that patron. Although this interpretation raises fewer constitutional problems than a narrower interpretation, this interpretation of the disabling provisions nonetheless fails to cure CIPA's lack of narrow tailoring. Even if the disabling provisions permit public libraries to allow patrons to access speech that is constitutionally protected yet erroneously blocked by the software filters, the requirement that library patrons ask a state actor's permission to access disfavored content violates the First Amendment. The Supreme Court has made clear that content-based restrictions that require recipients to identify themselves before being granted access to disfavored speech are subject to no less scrutiny than outright bans on access to such speech. In Lamont v. Postmaster General, 381 U.S. 301 (1965), for example, the Court held that a federal statute requiring the Postmaster General to halt delivery of communist propaganda unless the addressee affirmatively requested the material violated the First Amendment: We rest on the narrow ground that the addressee in order to receive his mail must request in writing that it be delivered. This amounts in our judgment to an unconstitutional abridgment of the addressee's First Amendment rights. The addressee carries an affirmative obligation which we do not think the Government may impose on him. This requirement is almost certain to have a deterrent effect, especially as respects those who have sensitive positions. Id. at 307.
Similarly, in Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996), the Court held unconstitutional a federal law requiring cable operators to allow access to patently offensive, sexually explicit programming only to those subscribers who requested access to the programming in advance and in writing. Id. at 732-33. As in Lamont, the Court in Denver reasoned that this content-based restriction on recipients' access to speech would have an impermissible chilling effect: "[T]he written notice requirement will . . . restrict viewing by subscribers who fear for their reputations should the operator, advertently or inadvertently, disclose the list of those who wish to watch the 'patently offensive' channel." Id. at 754; see also Fabulous Assocs., Inc. v. Pa. Pub. Util. Comm'n, 896 F.2d 780, 785 (3d Cir. 1990) (considering the constitutionality of a state law requiring telephone users who wish to listen to sexually explicit telephone messages to apply for an access code to receive such messages, and invalidating the law on the ground that "[a]n identification requirement exerts an inhibitory effect"). We believe that CIPA's disabling provisions suffer from the same flaws as the restrictions on speech in Lamont, Denver, and Fabulous Associates. By requiring library patrons affirmatively to request permission to access certain speech singled out on the basis of its content, CIPA will deter patrons from requesting that a library disable filters to allow the patron to access speech that is constitutionally protected, yet sensitive in nature. As we explain above, we find that library patrons will be reluctant and hence unlikely to ask permission to access, for example, erroneously blocked Web sites containing information about sexually transmitted diseases, sexual identity, certain medical conditions, and a variety of other topics. As discussed in our findings of fact, software filters block access to a wide range of constitutionally protected speech, including Web sites containing information that individuals are likely to wish to access anonymously.
That library patrons will be deterred from asking permission to access Web sites containing certain kinds of content is evident as a matter of common sense as well as amply borne out by the trial record. Plaintiff Emmalyn Rood, who used the Internet at a public library to research information relating to her sexual identity, testified that she would have been unwilling as a young teen to ask a librarian to disable filtering software so that she could view materials concerning gay and lesbian issues. Similarly, plaintiff Mark Brown stated that he would have been too embarrassed to ask a librarian to disable filtering software if it had impeded his ability to research surgery options for his mother when she was treated for breast cancer. As explained in our findings of fact, see supra at Subsection II.D.2.b, the reluctance of patrons to request permission to access Web sites that were erroneously blocked is further established by the low number of patron unblocking requests, relative to the number of erroneously blocked Web sites, in those public libraries that use software filters and permit patrons to request access to incorrectly blocked Web sites. Cf. Fabulous Assocs., 896 F.2d at 786 ("On the record before us, there is more than enough evidence to support the district court's finding that access codes will chill the exercise of some users' right to hear protected communications."). To be sure, the government demonstrated that it is possible for libraries to permit patrons to request anonymously that a particular Web site be unblocked. In particular, the Tacoma Public Library has configured its computers to present patrons with the option, each time the software filter blocks their access to a Web page, of sending an anonymous email to library staff requesting that the page be unblocked. Moreover, a library staff member periodically scans logs of URLs blocked by the filters, in an effort to identify erroneously blocked sites, which the library will subsequently unblock. Although a public library's ability to permit anonymous unblocking requests addresses the deterrent effect of requiring patrons to identify themselves before gaining access to a particular Web site, we believe that it fails adequately to address the overblocking problem.
In particular, even allowing anonymous requests for unblocking burdens patrons' access to speech, since such requests cannot immediately be acted on. Although the Tacoma Public Library, for example, attempts to review requests for unblocking within 24 hours, requests sometimes are not reviewed for several days. And delays are inevitable in libraries with branches that lack the staff necessary immediately to review patron unblocking requests. Because many Internet users "surf" the Web, visiting hundreds of Web sites in a single session and spending only a short period of time viewing many of the sites, the requirement that a patron take the time to affirmatively request access to a blocked Web site and then wait several days until the site is unblocked will, as a practical matter, impose a significant burden on library patrons' use of the Internet. Indeed, a patron's time spent requesting access to an erroneously blocked Web site and checking to determine whether access was eventually granted is likely to exceed the amount of time the patron would have actually spent viewing the site, had the site not been erroneously blocked. This delay is especially burdensome in view of many libraries' practice of limiting their patrons to a half hour or an hour of Internet use per day, given the scarcity of terminal time in relation to patron demand.
The burden of requiring library patrons to ask permission to view Web sites whose content is disfavored resembles the burden that the Supreme Court found unacceptable in Denver, which invalidated a federal law requiring cable systems operators to block subscribers' access to channels containing sexually explicit programming, unless subscribers requested unblocking in advance. The Court reasoned that "[t]hese restrictions will prevent programmers from broadcasting to viewers who select programs day by day (or, through 'surfing,' minute by minute) . . . ." Denver, 518 U.S. at 754. Similarly, in Fabulous Associates, the Third Circuit explained that a law preventing adults from listening to sexually explicit phone messages unless they applied in advance for access to such messages would burden adults' receipt of constitutionally protected speech, given consumers' tendency to purchase such speech on impulse. See Fabulous Assocs., 896 F.2d at 785 (noting that officers of two companies that sell access to sexually explicit recorded phone messages "testified that it is usually 'impulse callers' who utilize these types of services, and that people will not call if they must apply for an access code"). In sum, in many cases, as we have noted above, library patrons who have been wrongly denied access to a Web site will decline to ask the library to disable the filters so that the patron can access the Web site. Moreover, even if patrons requested unblocking every time a site is erroneously blocked, and even if library staff granted every such request, a public library's use of blocking software would still impermissibly burden patrons' access to speech based on its content. The First Amendment jurisprudence of the Supreme Court and the Third Circuit makes clear that laws imposing content-based burdens on access to speech are no less offensive to the First Amendment than laws imposing content-based prohibitions on speech: It is of no moment that the statute does not impose a complete prohibition. 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. . . . When the purpose and design of a statute is to regulate speech by reason of its content, special consideration or latitude is not afforded to the Government merely because the law can somehow be described as a burden rather than outright suppression.
United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 812, 826 (2000) (invalidating a federal law requiring cable television operators to limit the transmission of sexually explicit programming to the hours between 10:00 p.m. and 6:00 a.m.); see also Fabulous Assocs., 896 F.2d at 785 ("[H]ere . . . there is no outright prohibition of indecent communication. However, the First Amendment protects against government inhibition as well as prohibition.") (internal quotation marks and citation omitted). Even if CIPA's disabling provisions could be perfectly implemented by library staff every time patrons request access to an erroneously blocked Web site, we hold that the content-based burden that the library's use of software filters places on patrons' access to speech suffers from the same constitutional deficiencies as a complete ban on patrons' access to speech that was erroneously blocked by filters, since patrons will often be deterred from asking the library to unblock a site and patron requests cannot be immediately reviewed. We therefore hold that CIPA's disabling provisions fail to cure CIPA's lack of narrow tailoring. 5. Conclusion; Severability
Based upon the foregoing discussion, we hold that a public library's content-based restriction on patrons' access to speech on the Internet is subject to strict scrutiny. Every item in a library's print collection has been selected because library staff, or a party to whom staff delegates the decision, deems the content to be particularly valuable. In contrast, the Internet, as a forum, is open to any member of the public to speak, and hence, even when a library provides filtered Internet access, it creates a public forum in which the vast majority of the speech has been reviewed by neither librarians nor filtering companies. Under public forum doctrine, where the state creates such a forum open to any member of the public to speak on an unlimited number of subjects, the state's decision selectively to exclude certain speech on the basis of its content, is subject to strict scrutiny, since such exclusions risk distorting the marketplace of ideas that the state has created. Application of strict scrutiny to public libraries' content- based restrictions on their patrons' access to the Internet finds further support in the analogy to traditional public fora, such as sidewalks, parks, and squares, in which content-based restrictions on speech are always subject to strict scrutiny. Like these traditional public fora, Internet access in public libraries uniquely promotes First Amendment values, by offering low barriers to entry to speakers and listeners. The content of speech on the Internet is as diverse as human thought, and the extent to which the Internet promotes First Amendment values is evident from the sheer breadth of speech that this new medium enables. To survive strict scrutiny, a public library's use of filtering software must be narrowly tailored to further a compelling state interest, and there must be no less restrictive alternative that could effectively further that interest. We find that, given the crudeness of filtering technology, any technology protection measure mandated by CIPA will necessarily block access to a substantial amount of speech whose suppression serves no legitimate government interest. This lack of narrow tailoring cannot be cured by CIPA's disabling provisions, because patrons will often be deterred from asking the library's permission to access an erroneously blocked Web page, and anonymous requests for unblocking cannot be acted on without delaying the patron's access to the blocked Web page, thereby impermissibly burdening access to speech on the basis of its content.
Moreover, less restrictive alternatives exist to further a public library's legitimate interests in preventing its computers from being used to access obscenity, child pornography, or in the case of minors, material harmful to minors, and in preventing patrons from being unwillingly exposed to patently offensive, sexually explicit speech. Libraries may use a variety of means to monitor their patrons' use of the Internet and impose sanctions on patrons who violate the library's Internet use policy. To protect minors from material harmful to minors, libraries could grant minors unfiltered access only if accompanied by a parent, or upon parental consent, or could require minors to use unfiltered terminals in view of library staff. To prevent patrons from being unwillingly exposed to offensive, sexually explicit content, libraries can offer patrons the option of using blocking software, can place unfiltered terminals outside of patrons' sight lines, and can use privacy screens and recessed monitors. While none of these less restrictive alternatives are perfect, the government has failed to show that they are significantly less effective than filtering software, which itself fails to block access to large amounts of speech that fall within the categories sought to be blocked.
In view of the severe limitations of filtering technology and the existence of these less restrictive alternatives, we conclude that it is not possible for a public library to comply with CIPA without blocking a very substantial amount of constitutionally protected speech, in violation of the First Amendment. Because this conclusion derives from the inherent limits of the filtering technology mandated by CIPA, it holds for any library that complies with CIPA's conditions. Hence, even under the stricter standard of facial invalidity proposed by the government, which would require us to uphold CIPA if only a single library can comply with CIPA's conditions without violating the First Amendment, we conclude that CIPA is facially invalid, since it will induce public libraries, as state actors, to violate the First Amendment. Because we hold that CIPA is invalid on these grounds, we need not reach the plaintiffs' alternative theories that CIPA is invalid as a prior restraint on speech and is unconstitutionally vague. Nor need we decide whether CIPA is invalid because it requires public libraries, as a condition on the receipt of federal funds, to relinquish their own First Amendment rights to provide the public with unfiltered Internet access, a theory that we nonetheless feel constrained to discuss (at length) in the margin.
Having determined that CIPA violates the First Amendment, we would usually be required to determine whether CIPA is severable from the remainder of the statutes governing LSTA and E-rate funding. Neither party, however, has advanced the argument that CIPA is not severable from the remainder the Library Services and Technology Act and Communications Act of 1934 (the two statutes governing LSTA and E-rate funding, respectively), and at all events, we think that CIPA is severable. "The inquiry into whether a statute is severable is essentially an inquiry into legislative intent." Minn. v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999). "Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." Buckley v. Valeo, 424 U.S. 1, 108 (1976) (internal quotation marks and citation omitted). There is no doubt that if we were to strike CIPA from the sections of the United States Code where it is currently codified, the remaining statutory sections, providing eligible public libraries with E- rate discounts and LSTA grants, would be fully operative as law. Indeed, the LSTA and E-rate programs existed prior to the enactment of CIPA in substantially the same form as they would exist were we to strike CIPA and leave the rest of the programs intact.
The second question, whether Congress would in this case have chosen to repeal the LSTA and E-rate subsidy programs instead of continuing to fund them if it had known that CIPA's limitations on these programs were constitutionally invalid, is less clear. CIPA contains "separability" clauses that state that if any of its additions to the statutes governing the LSTA and E- rate programs are found to be unconstitutional, Congress intended to effectuate as much of CIPA's amendments as possible. We interpret these clauses to mean, for example, that if a court were to find that CIPA's requirements are unconstitutional with respect to adult patrons, but permissible with respect to minors, that Congress intended to have the court effectuate only the provisions with respect to minors. These separability clauses do not speak to the situation before us, however, where we have found that CIPA is facially unconstitutional in its entirety.
Nevertheless, the government has not pointed to anything in the legislative history or elsewhere to suggest that Congress intended to discontinue funding under the LSTA and E-rate programs unless it could effectuate CIPA's restrictions on the funding. And Congress's decision, prior to CIPA's enactment, to subsidize Internet access through the LSTA and E-rate programs without such restrictions, counsels that we reach the opposite conclusion. At bottom, we think that it is unclear what Congress's intent was on this point, and in the absence of such information, we exercise a presumption in favor of severability. Regan v. Time, Inc., 468 U.S. 641, 653 (1984) ("[T]he presumption is in favor of severability."); cf. Velazquez v. Legal Servs. Corp., 164 F.3d 757, 773 (2d Cir. 1999), aff'd 531 U.S. 533 (2001) (applying a presumption in favor of severability in the face of uncertainty whether Congress intended to fund the Legal Services Corporation even if a restriction on the funding was to be declared invalid). For the foregoing reasons, we will enter a final judgment declaring Sections 1712(a)(2) and 1721(b) of the Children's Internet Protection Act, codified at 20 U.S.C. Sec. 9134(f) and 47 U.S.C. Sec. 254(h)(6), respectively, to be facially invalid under the First Amendment and permanently enjoining the defendants from enforcing those provisions.
___________________________ Edward R. Becker, Chief Circuit Judge