Applying these principles to public libraries, we agree with the government that generally the First Amendment subjects libraries' content-based decisions about which print materials to acquire for their collections to only rational review. In making these decisions, public libraries are generally free to adopt collection development criteria that reflect not simply patrons' demand for certain material, but also the library's evaluation of the material's quality. See Bernard W. Bell, Filth, Filtering, and the First Amendment: Ruminations on Public Libraries' Use of Internet Filtering Software, 53 Fed. Comm. L.J. 191, 225 (2001) ("Librarians should have the discretion to decide that the library is committed to intellectual inquiry, not to the satisfaction of the full range of human desires."). Thus, a public library's decision to use the last $100 of its budget to purchase the complete works of Shakespeare even though more of its patrons would prefer the library to use the same amount to purchase the complete works of John Grisham, is not, in our view, subject to strict scrutiny. Cf. NEA v. Finley, 524 U.S. 569 (1998) (subjecting only to rational basis review the government's decision to award NEA grants on the basis of, inter alia, artistic excellence). Nonetheless, we disagree with the government's argument that public libraries' use of Internet filters is no different, for First Amendment purposes, from the editorial discretion that they exercise when they choose to acquire certain books on the basis of librarians' evaluation of their quality. The central difference, in our view, is that by providing patrons with even filtered Internet access, the library permits patrons to receive speech on a virtually unlimited number of topics, from a virtually unlimited number of speakers, without attempting to restrict patrons' access to speech that the library, in the exercise of its professional judgment, determines to be particularly valuable. Cf. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 834 (1995) (applying strict scrutiny to viewpoint-based restrictions where the state "does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers"). See generally supra Section IV.C.
In those cases upholding the government's exercise of editorial discretion in selecting certain speech for subsidization or inclusion in a state-created forum, the state actor exercising the editorial discretion has at least reviewed the content of the speech that the forum facilitates. Thus, in Finley the NEA examined the content of those works of art that it chose to subsidize, and in Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998), the public broadcaster specifically reviewed and approved each speaker permitted to participate in the debate. See id. at 673 ("In the case of television broadcasting, . . . broad rights of access for outside speakers would be antithetical, as a general rule, to the discretion that stations and their editorial staff must exercise to fulfill their journalistic purpose and statutory obligations."); Finley, 524 U.S. at 586 ("The NEA's mandate is to make esthetic judgments, and the inherently content-based 'excellence' threshold for NEA support sets it apart from the subsidy at issue in Rosenberger which was available to all student organizations that were 'related to the educational purpose of the University . . . .'") (quoting Rosenberger, 515 U.S. at 824); see also Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 804 (1985) ("The Government's consistent policy has been to limit participation in the [Combined Federal Campaign] to 'appropriate' voluntary agencies and to require agencies seeking admission to obtain permission from federal and local Campaign officials. . . . [T]here is no evidence suggesting that the granting of the requisite permission is merely ministerial."). The essence of editorial discretion requires the exercise of professional judgment in examining the content that the government singles out as speech of particular value.
This exercise of editorial discretion is evident in a library's decision to acquire certain books for its collection. As the government's experts in library science testified, in selecting a book for a library's collection, librarians evaluate the book's quality by reference to a variety of criteria such as its accuracy, the title's niche in relation to the rest of the collection, the authority of the author, the publisher, the work's presentation, and how it compares with other material available in the same genre or on the same subject. Thus, the content of every book that a library acquires has been reviewed by the library's collection development staff or someone to whom they have delegated the task, and has been judged to meet the criteria that form the basis for the library's collection development policy. Although some public libraries use "approval plans" to delegate the collection development to third-party vendors which provide the library with recommended materials that the library is then free to retain or return to the vendor, the same principle nonetheless attains.
In contrast, in providing patrons with even filtered Internet access, a public library invites patrons to access speech whose content has never been reviewed and recommended as particularly valuable by either a librarian or a third party to whom the library has delegated collection development decisions. Although several of the government's librarian witnesses who testified at trial purport to apply the same standards that govern the library's acquisition of print materials to the library's provision of Internet access to patrons, when public libraries provide their patrons with Internet access, they intentionally open their doors to vast amounts of speech that clearly lacks sufficient quality to ever be considered for the library's print collection. Unless a library allows access to only those sites that have been preselected as having particular value, a method that, as noted above, was tried and rejected by the Westerville Ohio Public Library, see supra at 46-47, even a library that uses software filters has opened its Internet collection "for indiscriminate use by the general public." Perry Educ. Ass'n v. Perry Local Educs. Ass'n, 460 U.S. 37, 47 (1983). "[M]ost Internet forums including chat rooms, newsgroups, mail exploders, and the Web are open to all comers." Reno v. ACLU, 521 U.S. 844, 880 (1997).
The fundamental difference between a library's print collection and its provision of Internet access is illustrated by comparing the extent to which the library opens its print collection to members of the public to speak on a given topic and the extent to which it opens its Internet terminals to members of the public to speak on a given topic. When a public library chooses to carry books on a selected topic, e.g. chemistry, it does not open its print collection to any member of the public who wishes to write about chemistry. Rather, out of the myriad of books that have ever been written on chemistry, each book on chemistry that the library carries has been reviewed and selected because the person reviewing the book, in the exercise of his or her professional judgment, has deemed its content to be particularly valuable. In contrast, when a public library provides Internet access, even filtered Internet access, it has created a forum open to any member of the public who writes about chemistry on the Internet, regardless of how unscientific the author's methods or of how patently false the author's conclusions are, regardless of the author's reputation or grammar, and regardless of the reviews of the scientific community. Notwithstanding protestations in CIPA's legislative history to the contrary, members of the general public do define the content that public libraries make available to their patrons through the Internet. Any member of the public with Internet access could, through the free Web hosting services available on the Internet, tonight jot down a few musings on any subject under the sun, and tomorrow those musings would become part of public libraries' online offerings and be available to any library patron who seeks them out.
In providing its patrons with Internet access, a public library creates a forum for the facilitation of speech, almost none of which either the library's collection development staff or even the filtering companies have ever reviewed. Although filtering companies review a portion of the Web in classifying particular sites, the portion of the Web that the filtering companies actually review is quite small in relation to the Web as a whole. The filtering companies' harvesting process, described in our findings of fact, is intended to identify only a small fraction of Web sites for the filtering companies to review. Put simply, the state cannot be said to be exercising editorial discretion permitted under the First Amendment when it indiscriminately facilitates private speech whose content it makes no effort to examine. Cf. Bell, supra, at 226 ("[C]ourts should take a much more jaundiced view of library policies that block Internet access to a very limited array of subjects than they take of library policies that reserve Internet terminals for very limited use."). While the First Amendment permits the government to exercise editorial discretion in singling out particularly favored speech for subsidization or inclusion in a state-created forum, we believe that where the state provides access to a "vast democratic forum[]," Reno, 521 U.S. at 868, open to any member of the public to speak on subjects "as diverse as human thought," id. at 870, and then selectively excludes from the forum certain speech on the basis of its content, such exclusions are subject to strict scrutiny. These exclusions risk fundamentally distorting the unique marketplace of ideas that public libraries create when they open their collections, via the Internet, to the speech of millions of individuals around the world on a virtually limitless number of subjects.
A public library's content-based restrictions on patrons' Internet access thus resemble the content-based restrictions on speech subsidized by the government, whether through direct funding or through the creation of a designated public forum, that the Supreme Court has subjected to strict scrutiny, as discussed above in Section IV.C. Although the government may subsidize a particular message representing the government's viewpoint without having to satisfy strict scrutiny, see Rust v. Sullivan, 500 U.S. 173 (1991), strict scrutiny applies to restrictions that selectively exclude particular viewpoints from a public forum designed to facilitate a wide range of viewpoints, see Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995). Similarly, although the state's exercise of editorial discretion in selecting particular speakers for participation in a state-sponsored forum is subject to rational basis review, see Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666 (1998), selective exclusions of particular speakers from a forum otherwise open to any member of the public to speak are subject to strict scrutiny, see City of Madison Joint School Dist. No. 8 v. Wis. Employment Relations Comm'n, 429 U.S. 167 (1976). And while the government may, subject only to rational basis review, make content-based decisions in selecting works of artistic excellence to subsidize, see NEA v. Finley, 524 U.S. 569 (1998), the Supreme Court has applied heightened scrutiny where the government opens a general-purpose municipal theater for use by the public, but selectively excludes disfavored content, see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975), where the government facilitates the speech of public broadcasters on a virtually limitless number of topics, but prohibits editorializing, see FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984), and where the government funds a wide range of legal services but restricts funding recipients from challenging welfare laws, see Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001). Similarly, where a public library opens a forum to an unlimited number of speakers around the world to speak on an unlimited number of topics, strict scrutiny applies to the library's selective exclusions of particular speech whose content the library disfavors. 2. Analogy to Traditional Public Fora
Application of strict scrutiny to public libraries' use of software filters, in our view, finds further support in the extent to which public libraries' provision of Internet access promotes First Amendment values in an analogous manner to traditional public fora, such as sidewalks and parks, in which content-based restrictions on speech are always subject to strict scrutiny. The public library, by its very nature, is "designed for freewheeling inquiry." Bd. of Education v. Pico, 457 U.S. 853, 915 (1982) (Rehnquist, J., dissenting). As such, the library is a "mighty resource in the free marketplace of ideas," Minarcini v. Strongsville City Sch. Dist., 541 F.2d 577, 582 (6th Cir. 1976), and represents a "quintessential locus of the receipt of information." Kreimer v. Bureau of Police for Morristown, 958 F.2d 1242, 1255 (3d Cir. 1992); see also Sund v. City of Wichita Falls, 121 F. Supp. 2d 530, 547 (N.D. Tex. 2000) ("The right to receive information is vigorously enforced in the context of a public library . . . ."); cf. Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 681 (1992) ("[A] traditional public forum is property that has as 'a principal purpose . . . the free exchange of ideas.'") (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800 (1985)).
We acknowledge that the provision of Internet access in a public library does not enjoy the historical pedigree of streets, sidewalks, and parks as a vehicle of free expression. Nonetheless, we believe that it shares many of the characteristics of these traditional public fora that uniquely promote First Amendment values and accordingly warrant application of strict scrutiny to any content-based restriction on speech in these fora. Regulation of speech in streets, sidewalks, and parks is subject to the highest scrutiny not simply by virtue of history and tradition, but also because the speech-facilitating character of sidewalks and parks makes them distinctly deserving of First Amendment protection. Many of these same speech-promoting features of the traditional public forum appear in public libraries' provision of Internet access. First, public libraries, like sidewalks and parks, are generally open to any member of the public who wishes to receive the speech that these fora facilitate, subject only to narrow limitations. See Kreimer, 958 F.2d at 1260 (noting that a public library does not retain unfettered discretion "to choose whom it will permit to enter the Library," but upholding the library's right to exclude patrons who harass patrons or whose offensive personal hygiene precludes the library's use by other patrons). Moreover, like traditional public fora, public libraries are funded by taxpayers and therefore do not charge members of the public each time they use the forum. The only direct cost to library patrons who wish to receive information, whether via the Internet or the library's print collection, is the time spent reading.
By providing Internet access to millions of Americans to whom such access would otherwise be unavailable, public libraries play a critical role in bridging the digital divide separating those with access to new information technologies from those that lack access. See generally National Telecommunications and Information Administration, U.S. Department of Commerce, Falling Through the Net: Defining the Digital Divide (1999), available at http://www.ntia.doc.gov/ntiahome/fttn99/contents.html. Cf. Velazquez, 531 U.S. at 546 (invalidating a content-based restriction on the speech of federally funded legal services corporations and noting that given the financial hardship of legal services corporations' clients, "[t]he restriction on speech is even more problematic because in cases where the attorney withdraws from a representation, the client is unlikely to find other counsel"). Public libraries that provide Internet access greatly expand the educational opportunities for millions of Americans who, as explained in the margin, would otherwise be deprived of the benefits of this new medium.