Just as important as the openness of a forum to listeners is its openness to speakers. Parks and sidewalks are paradigmatic loci of First Amendment values in large part because they permit speakers to communicate with a wide audience at low cost. One can address members of the public in a park for little more than the cost of a soapbox, and one can distribute handbills on the sidewalk for little more than the cost of a pen, paper, and some photocopies. See Martin v. City of Struthers, 319 U.S. 141, 146 (1943) ("Door to door distribution of circulars is essential to the poorly financed causes of little people."); Laurence H. Tribe, American Constitutional Law Sec. 12-24 at 987 (2d ed. 1988) ("The 'public forum' doctrine holds that restrictions on speech should be subject to higher scrutiny when, all other things being equal, that speech occurs in areas playing a vital role in communication such as in those places historically associated with first amendment activities, such as streets, sidewalks, and parks especially because of how indispensable communication in these places is to people who lack access to more elaborate (and more costly) channels."); Daniel A. Farber, Free Speech without Romance: Public Choice and the First Amendment, 105 Harv. L. Rev. 554, 574 n.86 (1991) (noting that traditional public fora "are often the only place where less affluent groups and individuals can effectively express their message"); Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 30 ("[T]he parade, the picket, the leaflet, the sound truck, have been the media of communication exploited by those with little access to the more genteel means of communication."). Similarly, given the existence of message boards and free Web hosting services, a speaker can, via the Internet, address the public, including patrons of public libraries, for little more than the cost of Internet access. As the Supreme Court explained in Reno v. ACLU, 521 U.S. 844 (1997), "the Internet can hardly be considered a 'scarce' expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds." Id. at 870. Although the cost of a home computer and Internet access considerably exceeds the cost of a soapbox or a few hundred photocopies, speakers wishing to avail themselves of the Internet may gain free access in schools, workplaces, or the public library. As Professor Lessig has explained: The "press" in 1791 was not the New York Times or the Wall Street Journal. It did not comprise large organizations of private interests, with millions of readers associated with each organization. Rather, the press then was much like the Internet today. The cost of a printing press was low, the readership was slight, and anyone (within reason) could become a publisher and in fact an extraordinary number did. When the Constitution speaks of the rights of the "press," the architecture it has in mind is the architecture of the Internet.
Lawrence Lessig, Code 183 (1999). While public libraries' provision of Internet access shares many of the speech-promoting qualities of traditional public fora, it also facilitates speech in ways that traditional public fora cannot. In particular, whereas the architecture of real space limits the audience of a pamphleteer or soapbox orator to people within the speaker's immediate vicinity, the Internet renders the geography of speaker and listener irrelevant: Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.
Reno, 521 U.S. at 870 . By providing patrons with Internet access, public libraries in effect open their doors to an unlimited number of potential speakers around the world, inviting the speech of any member of the public who wishes to communicate with library patrons via the Internet. Due to the low costs for speakers and the irrelevance of geography, the volume of speech available to library patrons on the Internet is enormous and far exceeds the volume of speech available to audiences in traditional public fora. See id. at 868 (referring to "the vast democratic forums of the Internet"). Indeed, as noted in our findings of fact, the Web is estimated to contain over one billion pages, and is said to be growing at a rate of over 1.5 million pages per day. See id. at 885 (noting "[t]he dramatic expansion of this new marketplace of ideas"). This staggering volume of content on the Internet "is as diverse as human thought," id. at 870, and "is thus comparable, from the reader's viewpoint, to . . . a vast library including millions of readily available and indexed publications," id. at 853. As a result of the Internet's unique speech-facilitating qualities, "it is hard to find an aspiring social movement, new or old, of left, right, or center, without a website, a bulletin board, and an email list." Kreimer, supra n.27, at 125. "[T]he growth of the Internet has been and continues to be phenomenal." Reno, 521 U.S. at 885.
This extraordinary growth of the Internet illustrates the extent to which the Internet promotes First Amendment values in the same way that the historical use of traditional public fora for speaking, handbilling, and protesting testifies to their effectiveness as vehicles for free speech. Cf. Martin, 319 U.S. at 145 ("The widespread use of this method of communication [door-to-door distribution of leaflets] by many groups espousing various causes attests its major importance."); Schneider v. State, 308 U.S. 147, 164 (1939) ("[P]amphlets have proved most effective instruments in the dissemination of opinion."). The provision of Internet access in public libraries, in addition to sharing the speech-enhancing qualities of fora such as streets, sidewalks, and parks, also supplies many of the speech-enhancing properties of the postal service, which is open to the public at large as both speakers and recipients of information, and provides a relatively low-cost means of disseminating information to a geographically dispersed audience. See Lamont v. Postmaster Gen., 381 U.S. 301 (1965) (invalidating a content-based prior restraint on the use of the mails); see also Blount v. Rizzi, 400 U.S. 410 (1971) (same). Indeed, the Supreme Court's description of the postal system in Lamont seems equally apt as a description of the Internet today: "the postal system . . . is now the main artery through which the business, social, and personal affairs of the people are conducted . . . ." 381 U.S. at 305 n.3.
In short, public libraries, by providing their patrons with access to the Internet, have created a public forum that provides any member of the public free access to information from millions of speakers around the world. The unique speech-enhancing character of Internet use in public libraries derives from the openness of the public library to any member of the public seeking to receive information, and the openness of the Internet to any member of the public who wishes to speak. In particular, speakers on the Internet enjoy low barriers to entry and the ability to reach a mass audience, unhindered by the constraints of geography. Moreover, just as the development of new media "presents unique problems, which inform our assessment of the interests at stake, and which may justify restrictions that would be unacceptable in other contexts," United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813 (2000), the development of new media, such as the Internet, also presents unique possibilities for promoting First Amendment values, which also inform our assessment of the interests at stake, and which we believe, in the context of the provision of Internet access in public libraries, justify the application of heightened scrutiny to content-based restrictions that might be subject to only rational review in other contexts, such as the development of the library's print collection. Cf. id. at 818 ("Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.").
A faithful translation of First Amendment values from the context of traditional public fora such as sidewalks and parks to the distinctly non-traditional public forum of Internet access in public libraries requires, in our view, that content-based restrictions on Internet access in public libraries be subject to the same exacting standards of First Amendment scrutiny as content-based restrictions on speech in traditional public fora such as sidewalks, town squares, and parks: The architecture of the Internet, as it is right now, is perhaps the most important model of free speech since the founding. . . . Two hundred years after the framers ratified the Constitution, the Net has taught us what the First Amendment means. . . . The model for speech that the framers embraced was the model of the Internet distributed, noncentralized, fully free and diverse. Lessig, Code, at 167, 185. Indeed, "[m]inds are not changed in streets and parks as they once were. To an increasing degree, the more significant interchanges of ideas and shaping of public consciousness occur in mass and electronic media." Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 802-03 (1996) (Kennedy, J., concurring in the judgment).
In providing patrons with even filtered Internet access, a public library is not exercising editorial discretion in selecting only speech of particular quality for inclusion in its collection, as it may do when it decides to acquire print materials. By providing its patrons with Internet access, public libraries create a forum in which any member of the public may receive speech from anyone around the world who wishes to disseminate information over the Internet. Within this "vast democratic forum[]," Reno, 521 U.S. at 868, which facilitates speech that is "as diverse as human thought," id. at 870, software filters single out for exclusion particular speech on the basis of its disfavored content. We hold that these content- based restrictions on patrons' access to speech are subject to strict scrutiny. 4. Application of Strict Scrutiny Having concluded that strict scrutiny applies to public libraries' content-based restrictions on patrons' access to speech on the Internet, we must next determine whether a public library's use of Internet software filters can survive strict scrutiny. To survive strict scrutiny, a restriction on speech "must be narrowly tailored to promote a compelling Government interest. If a less restrictive alternative would serve the Government's purpose, the legislature must use that alternative." United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813 (2000) (citation omitted); see also Fabulous Assocs., Inc. v. Pa. Pub. Util. Comm'n, 896 F.2d 780, 787 (3d Cir. 1990) (holding that a content-based burden on speech is permissible "only if [the government] shows that the restriction serves a compelling interest and that there are no less restrictive alternatives"). The application of strict scrutiny to a public library's use of filtering products thus requires three distinct inquiries. First, we must identify those compelling government interests that the use of filtering software promotes. It is then necessary to analyze whether the use of software filters is narrowly tailored to further those interests. Finally, we must determine whether less restrictive alternatives exist that would promote the state interest. 1. State Interests We begin by identifying those legitimate state interests that a public library's use of software filters promotes.
1. Preventing the Dissemination of Obscenity, Child Pornography, and Material Harmful to Minors
On its face, CIPA is clearly intended to prevent public libraries' Internet terminals from being used to disseminate to library patrons visual depictions that are obscene, child pornography, or in the case of minors, harmful to minors. See CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(1)(A) & (B)), Sec. 1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(B) & (C)) (requiring any library that receives E-rate discounts to certify that it is enforcing "a policy of Internet safety that includes the operation of a technology protection measure with respect to any of its computers with Internet access that protects against access through such computers to visual depictions" that are "obscene" or "child pornography," and, when the computers are in use by minors, also protects against access to visual depictions that are "harmful to minors").
The government's interest in preventing the dissemination of obscenity, child pornography, or, in the case of minors, material harmful to minors, is well-established. Speech that is obscene, under the legal definition of obscenity set forth in the margin, is unprotected under the First Amendment, and accordingly the state has a compelling interest in preventing its distribution. See Miller v. California, 413 U.S. 15, 18 (1973) ("This Court has recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material."); Stanley v. Georgia, 394 U.S. 557, 563 (1969) ("[T]he First and Fourteenth Amendments recognize a valid governmental interest in dealing with the problem of obscenity."); Roth v. United States, 354 U.S. 476, 485 (1957) ("We hold that obscenity is not within the area of constitutionally protected speech of press."). The First Amendment also permits the state to prohibit the distribution to minors of material that, while not obscene with respect to adults, is obscene with respect to minors. See Ginsberg v. New York, 390 U.S. 629, 637 (1968) (holding that it is constitutionally permissible "to accord minors under 17 a more restricted right than that assured to adults to judge and determine for themselves what sex material they may read or see"). Proscribing the distribution of such material to minors is constitutionally justified by the government's well-recognized interest in safeguarding minors' well-being. See Reno v. ACLU, 521 U.S. 844, 869-70 (1997) ("[T]here is a compelling interest in protecting the physical and psychological well-being of minors which extend to shielding them from indecent messages that are not obscene by adult standards . . . .") (internal quotation marks and citation omitted); New York v. Ferber, 458 U.S. 747, 756-57 (1982) ("It is evident beyond the need for elaboration that a State's interest in safeguarding the physical and psychological well-being of a minor is compelling.") (internal quotation marks and citation omitted); Ginsberg, 390 U.S. at 640 ("The State . . . has an independent interest in the well-being of its youth.").