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)).