From here on out, the National Gallery in Washington, D.C., for example, would be required to display the art of all would-be artists on a first-come-first-served basis and would not be able to exercise any content control over its collection through evaluations of quality. Such a conclusion, of course, strikes us as absurd, but that is only because we feel that the government should be free to establish public cultural institutions guided by standards such as "quality." . . . While the First Amendment articulates a deep fear of government intervention in the marketplace of ideas (because of the risk of distortion), it also seems prepared to permit state-sponsored and -supported cultural institutions that exercise considerable control over which art to fund, which pictures to hang, and which courses to teach. That these choices necessarily involve judgments about favored and disfavored content judgments clearly prohibited in the realm of censorship is indisputable.
Lee C. Bollinger, Public Institutions of Culture and the First Amendment: The New Frontier, 63 U. Cin. L. Rev. 1103, 1110-15 (1995). In both of these cases, the taxation scheme at issue effectively subsidized a vast range of publications, and singled out for penalty only a handful of speakers. See Arkansas Writers' Project, 460 U.S. at 228-29 (noting that "selective taxation of the press . . . [by] targeting individual members of the press poses a particular danger of abuse by the State" and explaining that "this case involves a more disturbing use of selective taxation than Minneapolis Star, because the basis on which Arkansas differentiates between magazines is particularly repugnant to First Amendment principles: a magazine's tax status depends entirely on its content"); Minneapolis Star, 460 U.S. at 591 ("Minnesota's ink and paper tax violates the First Amendment not only because it singles out the press, but also because it targets a small group of newspapers."); see also Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 660 (1994) ("The taxes invalidated in Minneapolis Star and Arkansas Writers' Project . . . targeted a small number of speakers, and thus threatened to distort the market for ideas.") (internal quotation marks and citation omitted). [P]atrons at a library do not have the right to make editorial decisions regarding the availability of certain material. It is the exclusive authority of the library to make affirmative decisions regarding what books, magazines, or other material is placed on library shelves, or otherwise made available to patrons. Libraries impose many restrictions on the use of their systems which demonstrate that the content of the library's offerings are not determined by the general public.
S. Rep. No. 106-141, at 8-9 (1999). In distinguishing restrictions on public libraries' print collections from restrictions on the provision of Internet access, we do not rely on the rationale adopted in Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 2 F. Supp. 2d 783 (E.D. Va. 1998). The Loudoun Court reasoned that a library's decision to block certain Web sites fundamentally differs from its decision to carry certain books but not others, in that unlike the money and shelf space consumed by the library's provision of print materials, "no appreciable expenditure of library time or resources is required to make a particular Internet publication available" once the library has acquired Internet access. Id. at 793-94. We disagree. Nearly every librarian who testified at trial stated that patrons' demand for Internet access exceeds the library's supply of Internet terminals. Under such circumstances, every time library patrons visit a Web site, they deny other patrons waiting to use the terminal access to other Web sites. Just as the scarcity of a library's budget and shelf space constrains a library's ability to provide its patrons with unrestricted access to print materials, the scarcity of time at Internet terminals constrains libraries' ability to provide patrons with unrestricted Internet access:
The same budget concerns constraining the number of books that libraries can offer also limits the number of terminals, Internet accounts, and speed of access links that can be purchased, and thus the number of Web pages that patrons can view. This is clear to anyone who has been denied access to a Website because no terminal was unoccupied.
Mark S. Nadel, The First Amendment's Limitations on the Use of Internet Filtering in Public and School Libraries: What Content Can Libraries Exclude?, 78 Tex. L. Rev. 1117, 1128 (2000). We have found that approximately 14.3 million Americans access the Internet at a public library, and Internet access at public libraries is more often used by those with lower incomes than those with higher incomes. We found that about 20.3% of Internet users with household family income of less than $15,000 per year use public libraries for Internet access, and approximately 70% of libraries serving communities with poverty levels in excess of 40% receive E-rate discounts. The widespread availability of Internet access in public libraries is due, in part, to the availability of public funding, including state and local funding and the federal funding programs regulated by CIPA. We acknowledge that traditional public fora have characteristics that promote First Amendment values in ways that the provision of Internet access in public libraries does not. For example, a significant virtue of traditional public fora is their facilitation of face-to-face communication. "In a face-to- face encounter there is a greater opportunity for the exchange of ideas and the propagation of views . . . ." Cornelius, 473 U.S. at 798. Face-to-face exchanges also permit speakers to confront listeners who would otherwise not actively seek out the information that the speaker has to offer. In contrast, the Internet operates largely by providing individuals with only that information that they actively seek out. Although the Internet does not permit face-to-face communication in the same way that traditional public fora do, the Internet, as a medium of expression, is significantly more interactive than the broadcast media and the press. "[T]he Web makes it possible to establish two-way linkages with potential sympathizers. Unlike the unidirectional nature of most mass media, websites, bulletin boards, chatrooms, and email are potentially interactive." Seth F. Kreimer, Technologies of Protest: Insurgent Social Movements and the First Amendment in the Era of the Internet, 150 U. Pa. L. Rev. 119, 130 (2001). We acknowledge that the Internet's architecture is a human creation, and is therefore subject to change. The foregoing analysis of the unique speech-enhancing qualities of the Internet is limited to the Internet as currently constructed. Indeed, the characteristics of the Internet that we believe render it uniquely suited to promote First Amendment values may change as the Internet's architecture evolves. See Lawrence Lessig, Reading the Constitution in Cyberspace, 45 Emory L.J. 869, 888 (1996) ("Cyberspace has no permanent nature, save the nature of a place of unlimited plasticity. We don't find cyberspace, we build it."); see also Lawrence Lessig, The Death of Cyberspace, 57 Wash. & Lee L. Rev. 337 (2000). For First Amendment purposes, obscenity is "limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value." Miller v. California, 413 U.S. 15, 24 (1973). The Supreme Court in Reno explained:
The District Court found that at the time of trial existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults. The Court found no effective way to determine the age of a user who is accessing material through e-mail, mail exploders, newsgroups, or chat rooms. As a practical matter, the Court also found that it would be prohibitively expensive for noncommercial as well as some commercial speakers who have Web sites to verify that their users are adults. These limitations must inevitably curtail a significant amount of adult communication on the Internet.
Reno, 521 U.S. at 876-77 (citation omitted). To the extent that filtering software is effective in identifying URLs of Web pages containing obscenity or child pornography, libraries may use filtering software as a tool for identifying URLs in their Internet use logs that fall within these categories, without requiring patrons to use filtering software. As the study of Benjamin Edelman, an expert witness for the plaintiffs, demonstrates, it is possible to develop software that automatically tests a list of URLs, such as the list of URLs in a public library's Internet use logs, to determine whether any of those URLs would be blocked by a particular software filter as falling within a particular category. Alternatively, library staff can review the Internet use logs by hand, skimming the list of URLs for those that are likely to correspond to Web pages containing obscenity or child pornography, as is the practice of Tacoma's David Biek, who testified as a government witness. Under either method, public libraries can assure patrons of their privacy by tracing a given URL to a particular patron only after determining that the URL corresponds to a Web site whose content is illegal. We need not decide whether these less restrictive alternatives would themselves be constitutional. See Fabulous Assocs., Inc. v. Pa. Pub. Util. Comm'n, 896 F.2d 780, 787 n.6 (3d Cir. 1990) ("We intimate no opinion on the constitutionality of Only a few cases address the question whether municipalities or other state subdivisions or agencies have any First Amendment rights. . . . The question is an open one in this circuit, and we do not consider the answer completely free from doubt. For many purposes, for example diversity jurisdiction and Fourteenth Amendment liability, municipalities are treated by the law as if they were persons. Monell v. Department of Social Services, 436 U.S. 658, 690 (1978); Moor v. County of Alameda, 411 U.S. 693, 717-18 (1973). There is at least an argument that the marketplace of ideas would be unduly curtailed if municipalities could not freely express themselves on matters of public concern, including the subsidization of housing and the demographic makeup of the community. To the extent, moreover, that a municipality is the voice of its residentsis, indeed, a megaphone amplifying voices that might not otherwise be audiblea curtailment of its right to speak might be thought a curtailment of the unquestioned First Amendment rights of those residents. See Meir Dan-Cohen, "Freedoms of Collective Speech: A Theory of Protected Communications by Organizations, Communities, and the State," 79 Calif. L. Rev. 1229, 1261-63 (1991); cf. Student Government Ass'n v. Board of Trustees, supra, 868 F.2d at 482. Thus if federal law imposed a fine on municipalities that passed resolutions condemning abortion, one might suppose that a genuine First Amendment issue would be presented. Against this suggestion can be cited the many cases which hold that municipalities lack standing to invoke the Fourteenth Amendment against actions by the state. E.g., Coleman v. Miller, 307 U.S. 433, 441 (1939); Williams v. Mayor & City Council of Baltimore, 289 U.S. 36, 40 (1933); City of East St. Louis v. Circuit Court for the Twentieth Judicial Circuit, 986 F.2d 1142, 1144 (7th Cir. 1993). But it is one thing to hold that a municipality cannot interpose the Fourteenth Amendment between itself and the state of which it is the creature, Anderson v. City of Boston, 380 N.E.2d 628, 637-38 (Mass. 1978), appeal dismissed for want of a substantial federal question, 439 U.S. 1060 (1979), and another to hold that a municipality has no rights against the federal government or another state. Township of River Vale v. Town of Orangetown, 403 F.2d 684, 686 (2d Cir. 1968), distinguishes between these two types of cases. Creek v. Village of Westhaven, 80 F.3d 186, 192-93 (7th Cir. 1996). We also note that there is no textual support in the First Amendment for distinguishing between, for example, municipal corporations, and private corporations, which the Court has recognized have cognizable First Amendment rights. First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 775-76 (1978). Unlike other provisions in the Bill of Rights, which the Supreme Court has held to be "purely personal" and thus capable of being invoked only by individuals, the First Amendment is not phrased in terms of who holds the right, but rather what is protected. Compare U.S. Const. amend V ("No person shall be held to answer . . .") (emphasis added) with U.S. Const. amend I ("Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ."); see also United States v. White, 322 U.S. 694, 698-701 (1944) (holding that the privilege against self- incrimination applies only to natural persons). The Supreme Court relied on this distinction (i.e., that the First Amendment protects a class of speech rather than a class of speakers) in a similar context in Bellotti. There, the Court invalidated a Massachusetts statute that prohibited corporations from spending money to influence ballot initiatives that did not bear directly on their "property, business or assets." Id. at 768. In so holding, the Court rejected the argument that the First Amendment protects only an individual's expression. The Court wrote: The Constitution often protects interests broader than those of the party seeking their vindication. . . . The proper question therefore is not whether corporations "have" First Amendment rights and, if so, whether they are coextensive with those of natural persons. Instead, the question must be whether [the government is] abridg[ing] expression that the First Amendment was meant to protect.