We are sympathetic to the position of the government, believing that it would be desirable if there were a means to ensure that public library patrons could share in the informational bonanza of the Internet while being insulated from materials that meet CIPA's definitions, that is, visual depictions that are obscene, child pornography, or in the case of minors, harmful to minors. Unfortunately this outcome, devoutly to be wished, is not available in this less than best of all possible worlds. No category definition used by the blocking programs is identical to the legal definitions of obscenity, child pornography, or material harmful to minors, and, at all events, filtering programs fail to block access to a substantial amount of content on the Internet that falls into the categories defined by CIPA. As will appear, we credit the testimony of plaintiffs' expert Dr. Geoffrey Nunberg that the blocking software is (at least for the foreseeable future) incapable of effectively blocking the majority of materials in the categories defined by CIPA without overblocking a substantial amount of materials. Nunberg's analysis was supported by extensive record evidence. As noted above, this inability to prevent both substantial amounts of underblocking and overblocking stems from several sources, including limitations on the technology that software filtering companies use to gather and review Web pages, limitations on resources for human review of Web pages, and the necessary error that results from human review processes.
Because the filtering software mandated by CIPA will block access to substantial amounts of constitutionally protected speech whose suppression serves no legitimate government interest, we are persuaded that a public library's use of software filters is not narrowly tailored to further any of these interests. Moreover, less restrictive alternatives exist that further the government's legitimate interest in preventing the dissemination of obscenity, child pornography, and material harmful to minors, and in preventing patrons from being unwillingly exposed to patently offensive, sexually explicit content. To prevent patrons from accessing visual depictions that are obscene and child pornography, public libraries may enforce Internet use policies that make clear to patrons that the library's Internet terminals may not be used to access illegal speech. Libraries may then impose penalties on patrons who violate these policies, ranging from a warning to notification of law enforcement, in the appropriate case. Less restrictive alternatives to filtering that further libraries' interest in preventing minors from exposure to visual depictions that are harmful to minors include requiring parental consent to or presence during unfiltered access, or restricting minors' unfiltered access to terminals within view of library staff. Finally, optional filtering, privacy screens, recessed monitors, and placement of unfiltered Internet terminals outside of sight- lines provide less restrictive alternatives for libraries to prevent patrons from being unwillingly exposed to sexually explicit content on the Internet. In an effort to avoid the potentially fatal legal implications of the overblocking problem, the government falls back on the ability of the libraries, under CIPA's disabling provisions, see CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(3)), CIPA Sec.1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(D)), to unblock a site that is patently proper yet improperly blocked. The evidence reflects that libraries can and do unblock the filters when a patron so requests. But it also reflects that requiring library patrons to ask for a Web site to be unblocked will deter many patrons because they are embarrassed, or desire to protect their privacy or remain anonymous. Moreover, the unblocking may take days, and may be unavailable, especially in branch libraries, which are often less well staffed than main libraries. Accordingly, CIPA's disabling provisions do not cure the constitutional deficiencies in public libraries' use of Internet filters.
Under these circumstances we are constrained to conclude that the library plaintiffs must prevail in their contention that CIPA requires them to violate the First Amendment rights of their patrons, and accordingly is facially invalid, even under the standard urged on us by the government, which would permit us to facially invalidate CIPA only if it is impossible for a single public library to comply with CIPA's conditions without violating the First Amendment. In view of the limitations inherent in the filtering technology mandated by CIPA, any public library that adheres to CIPA's conditions will necessarily restrict patrons' access to a substantial amount of protected speech, in violation of the First Amendment. Given this conclusion, we need not reach plaintiffs' arguments that CIPA effects a prior restraint on speech and is unconstitutionally vague. Nor do we decide their cognate unconstitutional conditions theory, though for reasons explained infra at note 36, we discuss the issues raised by that claim at some length. For these reasons, we will enter an Order declaring Sections 1712(a)(2) and 1721(b) of the Children's Internet Protection Act, codified at 20 U.S.C. Sec. 9134(f) and 47 U.S.C. Sec. 254(h)(6), respectively, to be facially invalid under the First Amendment and permanently enjoining the defendants from enforcing those provisions.II. Findings of Fact 1. Statutory Framework 1. Nature and Operation of the E-rate and LSTA Programs In the Telecommunications Act of 1996 ("1996 Act"), Congress directed the Federal Communications Commission ("FCC") to take the steps necessary to establish a system of support mechanisms to ensure the delivery of affordable telecommunications service to all Americans. This system, referred to as "universal service," is codified in section 254 of the Communications Act of 1934, as amended by the 1996 Act. See 47 U.S.C. Sec. 254. Congress specified several groups as beneficiaries of the universal service support mechanism, including consumers in high-cost areas, low-income consumers, schools and libraries, and rural health care providers. See 47 U.S.C. Sec. 254(h)(1). The extension of universal service to schools and libraries in section 254(h) is commonly referred to as the Schools and Libraries Program, or "E-rate" Program.
Under the E-rate Program, "[a]ll telecommunications carriers serving a geographic area shall, upon a bona fide request for any of its services that are within the definition of universal service . . ., provide such services to elementary schools, secondary schools, and libraries for educational purposes at rates less than the amounts charged for similar services to other parties." 47 U.S.C. Sec. 254(h)(1)(B). Under FCC regulations, providers of "interstate telecommunications" (with certain exceptions, see 47 C.F.R. Sec. 54.706(d)), must contribute a portion of their revenue for disbursement among eligible carriers that are providing services to those groups or areas specified by Congress in section 254. To be eligible for the discounts, a library must: (1) be eligible for assistance from a State library administrative agency under the Library Services and Technology Act, see infra; (2) be funded as an independent entity, completely separate from any schools; and (3) not be operating as a for-profit business. See 47 C.F.R. Sec. 54.501(c). Discounts on services for eligible libraries are set as a percentage of the pre-discount price, and range from 20% to 90%, depending on a library's level of economic disadvantage and its location in an urban or rural area. See 47 C.F.R. Sec. 54.505. Currently, a library's level of economic disadvantage is based on the percentage of students eligible for the national school lunch program in the school district in which the library is located.
The Library Services and Technology Act ("LSTA"), Subchapter II of the Museum and Library Services Act, 20 U.S.C. Sec. 9101 et seq., was enacted by Congress in 1996 as part of the Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208. The LSTA establishes three grant programs to achieve the goal of improving library services across the nation. Under the Grants to States Program, LSTA grant funds are awarded, inter alia, in order to assist libraries in accessing information through electronic networks and pay for the costs of acquiring or sharing computer systems and telecommunications technologies. See 20 U.S.C. Sec. 9141(a). Through the Grants to States program, LSTA funds have been used to acquire and pay costs associated with Internet-accessible computers located in libraries. 2. CIPA The Children's Internet Protection Act ("CIPA") was enacted as part of the Consolidated Appropriations Act of 2001, which consolidated and enacted several appropriations bills, including the Miscellaneous Appropriations Act, of which CIPA was a part. See Pub. L. No. 106-554. CIPA addresses three distinct types of federal funding programs: (1) aid to elementary and secondary schools pursuant to Title III of the Elementary and Secondary Education Act of 1965, see CIPA Sec. 1711 (amending Title 20 to add Sec. 3601); (2) LSTA grants to states for support of libraries, see CIPA Sec. 1712 (amending the Museum and Library Services Act, 20 U.S.C. Sec. 9134); and (3) discounts under the E-rate program, see CIPA Sec. 1721(a) & (b) (both amending the Communications Act of 1934, 47 U.S.C. Sec. 254(h)). Only sections 1712 and 1721(b) of CIPA, which apply to libraries, are at issue in this case.
As explained in more detail below, CIPA requires libraries that participate in the LSTA and E-rate programs to certify that they are using software filters on their computers to protect against visual depictions that are obscene, child pornography, or in the case of minors, harmful to minors. CIPA permits library officials to disable the filters for patrons for bona fide research or other lawful purposes, but disabling is not permitted for minor patrons if the library receives E-rate discounts. 1. CIPA's Amendments to the E-rate Program
Section 1721(b) of CIPA imposes conditions on a library's participation in the E-rate program. A library "having one or more computers with Internet access may not receive services at discount rates," CIPA Sec. 1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(A)(i)), unless the library certifies 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 (I) obscene; (II) child pornography; or (III) harmful to minors," and that it is "enforcing the operation of such technology protection measure during any use of such computers by minors." CIPA Sec. 1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(B)). CIPA defines a "technology protection measure" as "a specific technology that blocks or filters access to visual depictions that are obscene, . . . child pornography, . . . or harmful to minors." CIPA Sec. 1703(b)(1) (codified at 47 U.S.C. Sec. 254(h)(7)(I)).
To receive E-rate discounts, a library must also certify that filtering software is in operation during adult use of the Internet. More specifically, with respect to adults, a library must 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 (I) obscene; or (II) child pornography," and that it is "enforcing the operation of such technology protection measure during any use of such computers." CIPA Sec. 1721(b) (codified at 47 U.S.C. Sec. 254(h)(6)(C)). Interpreting the statutory terms "any use," the FCC has concluded that "CIPA makes no distinction between computers used only by staff and those accessible to the public." 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). With respect to libraries receiving E-rate discounts, CIPA further specifies 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)). 2. CIPA's Amendments to the LSTA Program Section 1712 of CIPA amends the Museum and Library Services Act (20 U.S.C. Sec. 9134(f)) to provide that no funds made available under the Act "may be used to purchase computers used to access the Internet, or to pay for direct costs associated with accessing the Internet," unless such library "has in place" and 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." CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(1)). Section 1712 contains definitions of "technology protection measure," "obscene," "child pornography," and "harmful to minors," that are substantially similar to those found in the provisions governing the E-rate program. CIPA Sec. 1712 (codified at 20 U.S.C. Sec. 9134(f)(7)); see also supra note 2.
As under the E-rate program, "an 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 (codified at 20 U.S.C. Sec. 9134(f)(3)). Whereas CIPA's amendments to the E-rate program permit disabling for bona fide research or other lawful purposes only during adult use, the LSTA provision permits disabling for both adults and minors. 2. Identity of the Plaintiffs 1. Library and Library Association Plaintiffs Plaintiffs American Library Association, Alaska Library Association, California Library Association, Connecticut Library Association, Freedom to Read Foundation, Maine Library Association, New England Library Association, New York Library Association, and Wisconsin Library Association are non-profit organizations whose members include public libraries that receive either E-rate discounts or LSTA funds for the provision of Internet access. Because it is a prerequisite to associational standing, we note that the interests that these organizations seek to protect in this litigation are central to their raison d'κtre.
Plaintiffs Fort Vancouver Regional Library District, in southwest Washington state; Multnomah County Public Library, in Multnomah County, Oregon; Norfolk Public Library System, in Norfolk, Virginia; Santa Cruz Public Library Joint Powers Authority, in Santa Cruz, California; South Central Library System ("SCLS"), centered in Madison, Wisconsin; and the Westchester Library System, in Westchester County, New York, are public library systems with branch offices in their respective localities that provide Internet access to their patrons. The Fort Vancouver Regional Library District, for over three years from 1999-2001, received $135,000 in LSTA grants and $19,500 in E-rate discounts for Internet access. The Multnomah County Public Library received $70,000 in E-rate discounts for Internet access this year, and has applied for $100,000 in E-rate discounts for the upcoming year. The Norfolk Public Library System received $90,000 in E-rate discounts for Internet access this year, and has received a $200,000 LSTA grant to put computer labs in eight of its libraries. The Santa Cruz Public Library Joint Powers Authority received $20,560 in E-rate discounts for Internet access in 2001-02. The SCLS received between $3,000 and $5,000 this year in E-rate discounts for Internet access. The Fort Vancouver Regional Library District Board is a public board whose members are appointed by elected county commissioners. The Multnomah County Library is a county department, whose board is appointed by the county chair and confirmed by the other commissioners. The SCLS is an aggregation of 51 independently governed statutory member public libraries, whose relationship to SCLS is defined by state law. The governing body of the SCLS is the Library Board of Trustees, which consists of 20 members nominated by county executives and ratified by county boards of supervisors. 2. Patron and Patron Association Plaintiffs