Id. at 776. The Court thus concluded that corporations are entitled to assert First Amendment claims as speakers, noting that "[t]he inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual." Id. at 777. In view of the foregoing, the notion that public libraries may assert First Amendment rights for the purpose of making an unconstitutional conditions claim is clearly plausible, and may well be correct. But even if it is not, we think it plausible that they could rely on their patrons' rights, even though their patrons are not the ones who are directly receiving the federal funding. In similar cases, the Supreme Court has entertained unconstitutional conditions claims both by the organizations that receive federal funding and by their constituents. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 537 (2001) ("Lawyers employed by New York City LSC grantees, together with private LSC contributors, LSC indigent clients, and various state and local public officials whose governments contribute to LSC grantees, brought suit . . . to declare the restriction [on LSC lawyers' ability advocate the amendment of or to challenge the constitutionality of existing welfare law] . . . invalid."); Rust v. Sullivan, 500 U.S. 173, 181 (1991) ("Petitioners are Title X grantees and doctors who supervise Title X funds suing on behalf of themselves and their patients. . . . Petitioners challenged the regulations on the grounds that . . . they violate the First and Fifth Amendment rights of Title X clients and the First Amendment rights of Title X health providers."); FCC v. League of Women Voters of Cal., 468 U.S. 364, 370 n.6 (1984) (reviewing a First Amendment challenge to conditions on public broadcasters' receipt of federal funds, in which the plaintiffs included not only the owner of a public television station, but also viewers of the station's programs, including the League of Women Voters, and "Congressman Henry Waxman, . . . a regular listener and viewer of public broadcasting"). The question whether CIPA's requirement that libraries use filtering software constitutes an unconstitutional condition is not an easy one. The Supreme Court has held that it violates the First Amendment for the federal government to require public broadcasting stations that receive federal funds not to editorialize, see League of Women Voters, 468 U.S. at 366, 402; for states to subsidize "newspaper and religious, professional, trade, and sports journals," but not "general interest magazines," Ark. Writers' Project, Inc. v. Ragland, 481 U.S. 221, 223 (1987); for a state university to subsidize student publications only on the condition that they do not "primarily promote[] or manifest[] a particular belief in or about a deity or an ultimate reality," Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 823 (1995); and for the federal government to prevent legal services providers who receive federal funds from seeking to "amend or otherwise challenge existing welfare law." Velazquez, 531 U.S. at 537. On the other hand, the Supreme Court has held that it does not violate the First Amendment for the federal government to require healthcare providers who receive federal funds not to "encourage, promote or advocate abortion as a method of family planning," Rust, 500 U.S. at 180; for the federal government to subsidize charitable organizations only if they do not engage in lobbying activity, see Regan v. Taxation with Representation, 461 U.S. 540 (1983); and for the National Endowment for the Arts, in awarding grants on the basis of artistic excellence, to "take into consideration general standards of decency and respect for the diverse beliefs and values of the American Public." NEA v. Finley, 524 U.S. 569, 572 (1998). In light of the facts that we discuss above regarding the operation of public libraries, and the limits of Internet filtering software, see supra Sections II.D-E, we believe that the plaintiffs have a good argument that this case is more analogous to League of Women Voters, Arkansas Writers' Project, and Velazquez than it is to Rust, Finley and Taxation with Representation. Like the law invalidated in League of Women Voters, which targeted editorializing, and the law invalidated in Arkansas Writers' Project, which targeted general interest magazines but not "religious, professional, trade, and sports journals," the law in this case places content-based restrictions on public libraries' possible First Amendment right to provide patrons with access to constitutionally protected material. See Arkansas Writers' Project, 481 U.S. at 229 ("[T]he basis on which Arkansas differentiates between magazines is particularly repugnant to First Amendment principles: a magazine's tax status depends entirely on its content. Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.") (internal quotation marks and citations omitted); League of Women Voters, 468 U.S. at 383 ("[T]he scope of [the challenged statute's] ban is defined solely on the basis of the content of the suppressed speech."). See generally Rosenberger, 515 U.S. at 828 ("It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys."). Because of the technological limitations of filtering software described in such detail above, Congress's requirement that public libraries use such software is in effect a requirement that public libraries block a substantial amount of constitutionally protected speech on the basis of its content. Plaintiffs' argument that the federal government may not require public libraries who receive federal funds to restrict the availability of constitutionally protected Web sites solely on the basis of the sites' content finds further support in the role that public libraries have traditionally served in maintaining First Amendment values. As evidenced by the many public libraries that have endorsed the Freedom to Read Statement and the Library Bill of Rights, see supra Subsection II.D.1, public libraries seemingly have a duty to challenge prevailing orthodoxy and make available to the public controversial, yet constitutionally protected material, even if it means drawing the ire of the community. See Bd. of Educ. v. Pico, 457 U.S. 853, 915 (1982) (Rehnquist, J., dissenting) (noting that "public libraries" are "designed for freewheeling inquiry"). By interfering with public libraries' discretion to make available to patrons as wide a range of constitutionally protected speech as possible, the federal government is arguably distorting the usual functioning of public libraries as places of freewheeling inquiry. The Velazquez Court, in invalidating the federal government's restrictions on the ability of federally funded legal services providers to challenge the constitutionality of welfare laws, relied on the manner in which the restrictions that the federal government placed on legal services' attorneys' speech distorted the usual functioning of the judicial system:
[T]he Government seeks to use an existing medium of expression and to control it, in a class of cases, in ways which distort its usual functioning. . . . The First Amendment forb[ids] the Government from using the forum in an unconventional way to suppress speech inherent in the nature of the medium.
531 U.S. at 543. By the same token, CIPA arguably distorts the usual functioning of public libraries both by requiring libraries to: (1) deny patrons access to constitutionally protected speech that libraries would otherwise provide to patrons; and (2) delegate decision making to private software developers who closely guard their selection criteria as trade secrets and who do not purport to make their decisions on the basis of whether the blocked Web sites are constitutionally protected or would add value to a public library's collection. At all events, CIPA clearly does not seem to serve the purpose of limiting the extent of government speech given the extreme diversity of speech on the Internet. Nor can Congress's decision to subsidize Internet access be said to promote a governmental message or constitute governmental speech, even under a generous understanding of the concept. As the Court noted in Reno v. ACLU, 521 U.S. 844 (1997), "t is no exaggeration to conclude that the content on the Internet is as diverse as human thought." Id. at 852 (internal quotation marks omitted). Even with software filters in place, the sheer breadth of speech available on the Internet defeats any claim that CIPA is intended to facilitate the dissemination of governmental speech. Like in Velazquez, "there is no programmatic message of the kind recognized in Rust and which sufficed there to allow the Government to specify the advice deemed necessary for its legitimate objectives." Velazquez, 531 U.S. at 548. In sum, we think that the plaintiffs have good arguments that they may assert an unconstitutional conditions claim by relying either on the public libraries' First Amendment rights or on the rights of their patrons. We also think that the plaintiffs have a good argument that CIPA's requirement that public libraries use filtering software distorts the usual functioning of public libraries in such a way that it constitutes an unconstitutional condition on the receipt of funds. We do not decide these issues, confident that our findings of fact on the functioning of public libraries, their use of the Internet, and the technological limitations of Internet filtering software, see supra Sections II.D-E, would allow the Supreme Court to decide the unconstitutional conditions claim if the Court deems it necessary.
CIPA Sec. 1712(a)(2) contains a provision titled "Separability," which is codified in the Library Services and Technology Act, 20 U.S.C. Sec. 9134(f)(6), and provides: "If any provision of this subsection is held invalid, the remainder of this subsection shall not be affected thereby." CIPA section 1721(e) also contained a similar provision that applied to E-rate funding, although it was not codified in the Communications Act. That section, also titled "Separability," provided: "If any provision of paragraph (5) or (6) of section 254(h) of the Communications Act of 1934, as amended by this section, or the application thereof to any person or circumstance is held invalid, the remainder of such paragraph and the application of such paragraph to other persons or circumstances shall not be affected thereby." CIPA Sec. 1721(e).