Cybertelecom Federal Internet Law & Policy An Educational Project

Notes: First Amendment

This Page Is Under Construction. These notes have not been kept up to date nor do they cover all First Amendment subjects. These might be useful as a starting place, but they are not a stopping place. Information found on this page should be thoroughly researched and reviewed.First Amendment Doctrines * Federal Agency Implementation of Law

First Amendment

The First Amendment states that "Congress shall make no law ... abridging the freedom of speech." This provision embodies "[o]ur profound national commitment to the free exchange of ideas." Harte Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 686, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). "[A]s a general matter, 'the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.' " Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983) (quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)). However, this principle, like other First Amendment principles, is not absolute. Cf. Hustler Magazine v. Falwell, 485 U.S. 46, 56, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988).
- Ashcroft, V. American Civil Liberties Union, No. 00 1293, __ S.Ct. __ (May 13, 2002)

Government Actor

Langdon v. Google, Inc (D Del Mar 7, 2007) (holding that Google did not violate the First Amendment - is not a state actor - where it refused to carry ads in its ad network that Google found objectionable)

Federal Agency Implementation of Law

Administrative agencies may, under certain circumstances and at their discretion, consider the constitutionality of implementing statutes. Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215 (1994). See also In the Matter of Brunson Communications, Inc. v. RCN Telecom Services, Inc., Channel Positioning Complaint, 15 FCC Rcd 8992 (rel. May 23, 2000) (declining to consider the constitutionality of an implementing statute). In general, however, administrative agencies should presume that implementing statutes are constitutional and refrain from questioning their legality. Johnson v. Robinson, 415 U.S. 361, 368 (1974).

Freedom to Think

The government "cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts." First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought. - Free Speech Coalition, 535 U.S. at 252-53 (quoting Stanley v. Georgia, 394 U.S. 557, 566 (1969))

Ex parte Nyabwa, 366 S.W.3d 710, 711-12 (Tex. Crim. App. 2012) (Keller, P.J., dissenting to refusal of defendant's PDR) (addressing the purported narrowing of the improper photography statute based on the defendant's intent to arouse or gratify sexual desires; "It is not enough to say that the statute is directed only at intent, if the intent consists of thought that is protected by the First Amendment. There are limits to the freedom of thought protected by the First Amendment . . . . But in the statute before us, the person photographed could be a fully-clothed adult walking down a public street. The breadth of this statute is breathtaking, and the type of intent that it regulates is not inherently exempt from First Amendment protection.")

Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67-68 (1973) ("The fantasies of a drug addict are his own and beyond the reach of government, but government regulation of drug sales is not prohibited by the Constitution; stating that regulations aimed at conduct which have only an incidental effect on thought do not violate the First Amendment's freedom of mind mandate.").

GEORGE ORWELL, 1984 bk. 1, ch. 1 ("The thought police would get him just the same. He had committed-would have committed, even if he had never set pen to paper-the essential crime that contained all others in itself. Thoughtcrime, they called it. Thoughtcrime was not a thing that could be concealed forever. You might dodge successfully for a while, even for years, but sooner or later they were bound to get you.").

"A man's thoughts are his own; he may sit in his armchair and think salacious thoughts, murderous thoughts, discriminatory thoughts, whatever thoughts he chooses, free from the "thought police."[72] It is only when the man gets out of his armchair and acts upon his thoughts that the law may intervene.[73] To protect the right of citizens to think freely and to protect speech for its own sake, the Supreme Court's cases "draw vital distinctions between. . . ideas and conduct." - EX PARTE LO, Tex: Court of Criminal Appeals 2013

Freedom to Listen

Right not to Listen

"repeatedly held that individuals are not required to welcome unwanted speech into their homes and that the government may protect this freedom." Frisby v. Schultz, 487 US 474, 485

"In the privacy of the home, ... the individual's right to be left alone plainly outweighs the First Amendment right of an intruder." FCC v Pacifica, 438 US 726, 748 (1978)

"Nothing in the Constitution compels us to listen to or to view any unwanted communication. . . . We categorically reject the notion that a vendor has a right under the Constitution or otherwise to send any unwanted communication into the home of another. . . . We repeat, the asserted right of a mailer stops at the outer boundary of every person's domain." Rowan v. Post Office Dept., 397 U.S. 728 (1970).

Freedom not to speak

govt can not force you to endorse any symbol or slogan. If you don't believe, don't have to say it. "Live free or die"

N: if mandatory state bar lobbies with regard to abortion, member has right to opt out and get refund. cannot be force to speak.

No Legislative Deference

"To the extent that the federal parties suggest that we should defer to Congress' conclusion about an issue of constitutional law, our answer is that while we do not ignore it, it is our task in the end to decide whether Congress has violated the Constitution. This is particularly true where the Legislature has concluded that its product does not violate the First Amendment. "Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake." Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843, 98 S.Ct. 1535, 1543, 56 L.Ed.2d 1 (1978). " -- Sable v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 2838 (1989)

Student Speech

• Bowler v. Town of Hudson , 05-11007-PBS (DCMA Oct 4, 2007) Students poster linked to violent images; School defended and moved for summary judgment; court granted in part and denied in part defendants motion. First Amendment.

• Requa v. Kent School District No. 415, 2007 WL 1531670 (W.D. Wash. May 24, 2007) (upholding suspension of student who made video of teacher and posted it on YouTube, where punishment was premised on sexual harassment of teacher)
• Wisniewski v. Board of Education of the Weedsport Central School District, No. 06-3394 (2d Cir. July 5, 2007) (upholding suspension of student who IMed friend with an ICON that said "Kill [teacher's name]", court held that school may reasonably supress speech it reasonably believed would materially and substantially disrupt the work and discipline in the school)
• [Children are entitled First Amendment Rights.] Erznoznik v. City of Jacksonville, 422 US 205, 212-213 (1975). See ALA Minors Rights to Receive Information Under the First Amendment

Spending Clause Restrictions

"There are a number of potential entry points into the analysis, but the most logical is the spending clause jurisprudence in which the seminal case is South Dakota v. Dole, 483 U.S. 203 (1987). Dole outlines four categories of constraints on Congress's exercise of its power under the Spending Clause, but the only Dole condition disputed here is the fourth and last, i.e., whether CIPA requires libraries that receive LSTA funds or E-rate discounts to violate the constitutional rights of their patrons. As will appear, the question is not a simple one, and turns on the level of scrutiny applicable to a public library's content-based restrictions on patrons' Internet access. Whether such restrictions are subject to strict scrutiny, as plaintiffs contend, or only rational basis review, as the government contends, depends on public forum doctrine." -- ALA v. United States, CA No. 01-1303 (EDPA May 31, 2002)

Prevention of Crime

See Kingsley Int'l Pictures Corp. v. Regents of Univ. of NY, 360 US 684, 689 (1959) ("Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgement of the rights of free speech") -- Ashcroft v. Free Speech Coalition, Slip-op, No. 00-795, 535 U.S. __, Sec. II (April 16, 2002)

Content based restriction of free speech

Burden of Proof

Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people. To guard against that threat the Constitution demands that con-tent-based restrictions on speech be presumed invalid, R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992), and that the Government bear the burden of showing their constitu-tionality. United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 817 (2000).- Ashcroft v. ACLU, 542 U. S. ____, slip op. 2 (2004)

Statutes that regulate the content of speech—as this statute most assuredly does—are presumed to be invalid, and it is the State, not appellant, that must establish its validity. - United States v. Playboy Entm't Grp., 529 U.S. 803, 817 (2000)

Strict Scrutiny: Compelling State Interest

"As we did in Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983), we distinguish Pacifica from the cases before us and reiterate that "the government may not 'reduce the adult population ... to ... only what is fit for children.' " 463 U.S., at 73, 103 S.Ct., at 2883, quoting Butler v. Michigan, supra, 352 U.S., at 383, 77 S.Ct., at 525. " -- Sable v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 2837 (1989)

FCC v. League of Women Voters, 468 U.S. 364, 376 (1984).

Minors

See also Child Pornography

"The Government may, however, regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest. We have recognized that there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards. Ginsberg v. New York, 390 U.S. 629, 639-640, 88 S.Ct. 1274, 1280-81, 20 L.Ed.2d 195 (1968); New York v. Ferber, 458 U.S. 747, 756-757, 102 S.Ct. 3348, 3354-55, 73 L.Ed.2d 1113 (1982). The Government may serve this legitimate interest, but to withstand constitutional scrutiny, "it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms. Hynes v. Mayor of **2837 Oradell, 425 U.S. [610], at 620 [96 S.Ct. 1755, 1760, 48 L.Ed.2d 243]; First National Bank of Boston v. Bellotti, 435 U.S. 765, 786 [98 S.Ct. 1407, 1421, 55 L.Ed.2d 707] (1978)." Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637, 100 S.Ct. 826, 836, 63 L.Ed.2d 73 (1980). It is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends." -- Sable v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 2836-37 (1989)

the First Court of Appeals stated that "[t]he prevention of sexual exploitation and abuse of children addressed by the Texas online solicitation of a minor statute constitutes a government objective of surpassing importance." Maloney v. State, 294 S.W.3d 613, 627 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd) (holding that Section 33.021(c) was not unconstitutionally overbroad because it punished speech that solicited the commission of an illegal sexual act with a minor).

the protection of children is agreed as a legitimate government interest. Sable, 492 U.S. at 126 (citing Ginsberg v. New York, 390 U.S. 629, 639-640, 88 S. Ct. 1274, 1280-81, 20 L.Ed.2d 195 (1968); New York v. Ferber, 458 U.S. 747, 756-757, 102 S. Ct. 3348, 3354-55, 73 L.Ed.2d 1113 (1982)); Alliance for Community Media, 56 F.3d at 124.

New York v. Ferber, 458 U.S. 747, 757 (1982). "The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance."

Seduction of Minor

United States v. Tykarsky, 446 F.3d 458, 472-73 (3d Cir. 2006) (upholding constitutionality of federal statute prohibiting actual or attempted persuasion of a minor to engage in illicit sexual activity and traveling for the purpose of engaging in illicit sexual activity);

United States v. Thomas, 410 F.3d 1235, 1243-44 (10th Cir. 2005) (federal solicitation-of-a-minor statute prohibits conduct—the request that a minor commit an illegal sex act—not merely speech);

United States v. Johnson, 376 F.3d 689, 694-95 (7th Cir. 2004) (federal child-pornography statute is not overbroad because it does not punish constitutionally protected speech);

United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000) (no overbreadth or ambiguity problems in federal child-solicitation law because statute applies only to those who target minors, and "the Defendant simply does not have a First Amendment right to attempt to persuade minors to engage in illegal sexual acts");

Podracky v. Commonwealth, 662 S.E.2d 81, 84-85 (Va. Ct. App. 2008) (upholding solicitation-of-a-minor statute and quoting the Supreme Court: "Offers to engage in illegal transactions are categorically excluded from First Amendment protection.");

People v. Smith, 806 N.E.2d 1262, 1265 (Ill. Ct. App. 2004) (upholding solicitation-of-a-minor statute);

People v. Hsu, 99 Cal. Rptr. 2d 184, 194-96 (Cal. Ct. App. 2000) (upholding internet solicitation of a minor statute because it required that defendant act "with the intent, or for the purpose of seducing a minor");

People v. Foley, 731 N.E.2d 123, 128-31 (N.Y. 2000) (upholding statute prohibiting the dissemination of indecent material to a minor because (1) the forbidden material was defined as being obscene, and (2) the actor "importunes, invites or induces a minor to engage in" various listed sex acts);

State v. Green, 724 S.E.2d 664, 667-69 (S.C. 2012) (solicitation of a minor statute that required actor to have the "intent of persuading, inducing, enticing, or coercing the [minor] to engage or participate in a sexual activity" was not overbroad or vague because applied only to situations in which the actor intentionally targets a minor for an illegal purpose);

State v. Hatton, 985 So.2d 709 (La. 2008) (solicitation-of-child statute required communications "for the purpose of or with intent to persuade, induce, entice, or coerce the person to engage or participate in sexual conduct or a crime of violence");

Hatch v. Superior Court, 94 Cal.Rptr.2d 453 (Cal. 2000) (upholding dissemination of harmful materials to a minor when that person acts "with the intent or for the purpose of seducing a minor").

Intermediate Scrutiny: Commercial Speech

27. In deciding U S WEST v. FCC, the court analyzed the CPNI Order using the constitutional standards applicable to governmental regulations of commercial speech articulated in Central Hudson Gas & Elec. Corp. v. Public Service Commission. 78 In order to determine whether restrictions on commercial speech survive "intermediate scrutiny," Central Hudson sets out a four part test. 79 Central Hudson asks first whether the speech in question concerns illegal activity or is misleading, in which case the government may freely regulate the speech. If the speech is not misleading and does not involve illegal activity, the court applies the rest of the four part test to the government's regulation. 80 The second prong of Central Hudson examines whether the government has a substantial interest in regulating the speech. Third, the government must show that the restriction on commercial speech directly and materially advances that interest. Finally, the regulation must be narrowly drawn. 81
-- In the Matter of Implementation of the Telecommunications Act of 1996 Telecommunications Carriers' Use of Customer Proprietary Network Information and Other Customer Information; CC Docket No. 96-115, CC Docket No. 96-149, CC Docket No. 00 257, Third Report and Order and Third Further Notice of Proposed Rulemaking, para 27 (July 25, 2002)

Overbreath

Ashcroft, V. American Civil Liberties Union, No. 00 1293, __ S.Ct. __ (May 13, 2002)

Respondents argue that COPA is "unconstitutionally overbroad" because it will require Web publishers to shield some material behind age verification screens that could be displayed openly in many communities across the Nation if Web speakers were able to limit access to their sites on a geographic basis. Brief for Respondents 33 34. "[T]o prevail in a facial challenge," however, "it is not enough for a plaintiff to show 'some' overbreadth." Reno, supra, at 896, 117 S.Ct. 2329 (O'CONNOR, J., concurring in judgment in part and dissenting in part). Rather, "the overbreadth of a statute must not only be real, but substantial as well." Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). At this stage of the litigation, respondents have failed to satisfy this burden, at least solely as a result of COPA's reliance on community standards.[16] Because Congress has narrowed the range of content restricted by COPA in a manner analogous to Miller's definition of obscenity, we conclude, consistent with our holdings in Hamling and Sable, that any variance caused by the statute's reliance on community standards is not substantial enough to violate the First Amendment.

[16.] Justice STEVENS' conclusion to the contrary is based on little more than "speculation." See, e.g., post, at 8 (KENNEDY, J., concurring in judgment). The only objective evidence cited in the dissenting opinion for the proposition that COPA "will restrict a substantial amount of protected speech that would not be considered harmful to minors in many communities" are various anecdotes compiled in an amici brief. See post, at 10 (citing Brief for Volunteer Lawyers for the Arts et al. as Amici Curiae 4 10). Justice STEVENS, however, is not even willing to represent that these anecdotes relate to material restricted under COPA, see post, at 10, and we understand his reluctance for the vast majority of the works cited in that brief, if not all of them, are likely unaffected by the statute. See Brief for Volunteer Lawyer for the Arts et al. as Amici Curiae 4 10 (describing, among other incidents, controversies in various communities regarding Maya Angelou's I Know Why The Caged Bird Sings, Judy Blume's Are You There God? It's Me, Margaret, Aldous Huxley's Brave New World, J.D. Salinger's Catcher in the Rye, 1993 Academy Award Best Picture nominee The Piano, the American Broadcasting Corporation television network's NYPD Blue, and songs of the "popular folk rock duo" the Indigo Girls). These anecdotes are therefore of questionable relevance to the matter at hand and certainly do not constitute a sufficient basis for invalidating a federal statute. Moreover, we do not agree with Justice KENNEDY's suggestion that it is necessary for the Court of Appeals to revisit this question upon remand. See post, at 8 9. The lack of evidence in the record relevant to the question presented does not indicate that "we should vacate for further consideration." Post, at 9. Rather, it indicates that respondents, by offering little more than "speculation," have failed to meet their burden of demonstrating in this facial challenge that COPA's reliance on community standards renders the statute substantially overbroad.

According to the First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a "substantial" amount of protected speech "judged in relation to the statute's plainly legitimate sweep." Virginia v. Hicks, 539 U.S. 113, 118-19 (2003).

Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002).

The State may not justify restrictions on constitutionally protected speech on the basis that such restrictions are necessary to effectively suppress constitutionally unprotected speech, such as obscenity, child pornography, or the solicitation of minors.

"The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse."

Thus, in Ashcroft v. Free Speech Coalition, the Supreme Court rejected the government's argument that a statute criminalizing the distribution of constitutionally protected "virtual" child pornography[33] was necessary to further the state's interest in prosecuting the dissemination of constitutionally unprotected child pornography that used "real" children. The government had argued that "the possibility of producing images by using computer imaging makes it very difficult for [the government] to prosecute those who produce pornography using real children."[34] Thus, according to the government, the protected speech (virtual child pornography) could be banned along with the unprotected speech (real child pornography). The Supreme Court rejected that notion entirely: "The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process."[35] Free Speech Coalition tells us that a ban upon constitutionally protected speech may not be upheld on the theory that "law enforcement is hard,"[36] and the State may not punish speech simply because that speech increases the chance that "a pervert" might commit an illegal act "at some indefinite future time."[37] -- EX PARTE LO, Tex: Court of Criminal Appeals 2013

This rule reflects the judgment that "[t]he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted[.]" Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).

If the law burdens more free speech than is necessary for a compelling interest, it violates the 1A. See Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800, 104 S.Ct. 2118, 80 L.Ed.2d 772, 783 (1984) (defining overbreadth); New York v. Ferber, 458 U.S. 747, 772, 73 L.Ed.2d 1113, 102 S.Ct. 3348 (1982) (defining overbreadth).

ACLU v. Johnson, 194 F.3d 1149, 1158-60 (10th Cir. 1999) (law criminalizing internet dissemination of non-obscene, sexually explicit materials to minors was overbroad; distinguishing Ginsberg and following Reno);

Psinet, Inc. v. Chapman, 362 F.3d 227, 234-36 (4th Cir. 2004) (although prior statute prohibiting sale of material harmful to children had been upheld, amended version that proscribed dissemination of material harmful to children over the internet was overbroad as it would have a chilling effect upon otherwise protected speech; those who communicate in chat rooms or post sexually explicit materials on the internet cannot prevent juveniles from accessing the material).

Vagueness

If a law gives no clear notice of what is prohibited, it violates due process. SeeGrayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) ("It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined").

As stated in the Interactive Working Group Report to Senator Leahy,

Neither the Congress nor the Supreme Court have ever established a single definition for what constitutes "indecent" material. The FCC has offered different definitions for indecency depending on the communications medium. Embarking on such a process for interactive media would be fraught with Constitutional disputes and challenges in court. Efforts to ban indecency on dial-a-porn services lead to ten years of constitutional litigation, thus delaying the enforcement of those regulations considerably. - IWG Report, supra note 24, at 4.

Least Restrictive Means

A statute that “effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another . . . is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.” Reno, 521 U. S., at 874. When plaintiffs challenge a content-based speech restriction, the burden is on the Government to prove that the proposed alternatives will not be as effective as the challenged statute. Id., at 874.

In considering this question, a court assumes that certain protected speech may be regulated, and then asks what is the least restrictive alternative that can be used to achieve that goal. The purpose of the test is not to con-sider whether the challenged restriction has some effect in achieving Congress’ goal, regardless of the restriction it imposes. The purpose of the test is to ensure that speech is restricted no further than necessary to achieve the goal, for it is important to assure that legitimate speech is not chilled or punished. For that reason, the test does not begin with the status quo of existing regulations, then ask whether the challenged restriction has some additional ability to achieve Congress’ legitimate interest. Any re-striction on speech could be justified under that analysis. Instead, the court should ask whether the challenged regulation is the least restrictive means among available, effective alternatives.

. . . . .

The primary alternative considered by the District Court was blocking and filtering software. Blocking and filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children’s access to materials harmful to them. The District Court, in granting the preliminary injunction, did so primarily because the plaintiffs had proposed that filters are a less restrictive alternative to COPA and the Government had not shown it would be likely to disprove the plaintiffs’ contention at trial. Ibid.

Filters are less restrictive than COPA. They impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Under a filtering regime, adults without children may gain access to speech they have a right to see without having to identify them-selves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Above all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. All of these things are true, moreover, regardless of how broadly or narrowly the definitions in COPA are construed.

Filters also may well be more effective than COPA. First, a filter can prevent minors from seeing all pornog-raphy, not just pornography posted to the Web from America. The District Court noted in its factfindings that one witness estimated that 40% of harmful-to-minors content comes from overseas. Id., at 484. COPA does not prevent minors from having access to those foreign harm-ful materials. That alone makes it possible that filtering software might be more effective in serving Congress’ goals. Effectiveness is likely to diminish even further if COPA is upheld, because the providers of the materials that would be covered by the statute simply can move their operations overseas. It is not an answer to say that COPA reaches some amount of materials that are harmful to minors; the question is whether it would reach more of them than less restrictive alternatives. In addition, the District Court found that verification systems may be subject to evasion and circumvention, for example by minors who have their own credit cards. See id., at 484, 496–497. Finally, filters also may be more effective be-cause they can be applied to all forms of Internet commu-nication, including e-mail, not just communications avail-able via the World Wide Web.

That filtering software may well be more effective than COPA is confirmed by the findings of the Commission on Child Online Protection, a blue-ribbon commission created by Congress in COPA itself. Congress directed the Com-mission to evaluate the relative merits of different means of restricting minors’ ability to gain access to harmful materials on the Internet. Note following 47 U. S. C. §231. It unambiguously found that filters are more effective than age-verification requirements. See Commission on Child Online Protection (COPA), Report to Congress, at 19–21, 23–25, 27 (Oct. 20, 2000) (assigning a score for “Effectiveness” of 7.4 for server-based filters and 6.5 for client-based filters, as compared to 5.9 for independent adult-id verification, and 5.5 for credit card verification). Thus, not only has the Government failed to carry its burden of showing the District Court that the proposed alternative is less effective, but also a Government Com-mission appointed to consider the question has concluded just the opposite. That finding supports our conclusion that the District Court did not abuse its discretion in enjoining the statute.

Ashcroft v. ACLU, 542 U. S. ____, slip op. 7-11 (2004)

---

"In Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957), a unanimous Court reversed a conviction under a statute which made it an offense to make available to the general public materials found to have a potentially harmful influence on minors. The Court found the law to be insufficiently tailored since it denied adults their free speech rights by allowing them to read only what was acceptable for children. As Justice Frankfurter said in that case, "[s]urely this is to burn the house to roast the pig." Id., at 383, 77 S.Ct., at 525. In our judgment, this case, like Butler, presents us with "legislation not reasonably restricted to the evil with which it is said to deal." Ibid. " -- Sable v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 2837 (1989)

Regulation of this form of speech must be by the least restrictive means possible in order to further a compelling government interest. Sable, 492 U.S. at 126. "Supreme Court precedent certainly rejects the notion that a content-based regulation of speech will survive regardless of the burden on speech simply because it is the most effective means to achieve a compelling state interest." Alliance for Community Media, 56 F.3d at 136 (J. Wald, dissenting opinion).

In so regulating indecent speech, "the government may not 'reduce the adult population ... to ... only what is fit for children.'" Sable, 492 U.S. at 128 (citing Bolger v. Youngs Drug Products Corp., 463 U.S. at 73, 103 S.Ct. at 2883; Butler v. Michigan, 352 U.S. 380, 383 (1957)). According to the Conference Report, the government may, however, force adults to change the way in which they communicate to each other.

[P]rohibiting indecency merely focuses speakers to re-cast their message into less offensive terms, but does not prohibit or disfavor the essential meaning of the communication. Pacifica, 438 U.S. at 743, n. 18. Likewise, requiring that access restrictions be imposed to protect minors from exposure to indecent material does not prohibit or disfavor the essential meaning of the indecent communication, it merely puts it in its appropriate place: away from children.

Conferece Report, supra note 30 (discussing Sec. 502).

When technology presents a solution, that solution must be selected against government intrusion. Sable, 492 U.S. 130-31.

Narrowly Draw

The regulation must "do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms." Sable, 492 U.S at 126 (citing Hynes v. Mayor of Oradell, 425 U.S. 610, 620, 96 S. Ct. 1755, 1760, 48 L.Ed.2d 243); First National Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S. Ct. 1407, 1421, 55 L.Ed.2d 707 (1978); Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637, 100 S. Ct. 826, 836, 63 L.Ed.2d 73 (1980)). See also Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 540, 100 S.Ct. 2326, 2334-35, 65 L.Ed.2d 319 (1980); Alliance for Community Media, 56 F.3d at 124 (stating that balancing analysis must be conducted between compelling state interest of protecting children from indecency and "interest of adults in having access to such material").

the government "may not reduce the adupt population . . . to reading only what is fit for children." Butler v. Michigan, 352 US 380 (1957)

If Technological Solution, then not Narrowly Tailored

" For all we know from this record, the FCC's technological approach to restricting dial-a-porn messages to adults who seek them would be extremely effective, and only a few of the most enterprising and disobedient young people would manage to secure access to such messages. [FN10] If this is the case, *131 it seems to us that s 223(b) is not a narrowly tailored effort to serve the compelling interest of preventing minors from being exposed to indecent telephone messages. Under our precedents, s 223(b), in its present form, has the invalid effect of limiting the content of adult telephone conversations to that which is suitable for children to hear. It is another case of "burn[ing] the house to roast the pig." Butler v. Michigan, 352 U.S., at 383, 77 S.Ct., at 525. " -- Sable v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 2839 (1989)

Offensive Speech

It is also well established that speech may not be prohibited because it concers subjects offending our sensibilitties. See FCC v Pacifica Foundation, 438 US 726, 745 (1978) ("[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it"); see also Reno v. American Civil Liberties Union, 521 US 844, 874 (1997) ("In evaluating the free speech rights of adults, we have made it perfectly clear that '[s]exual expression which is indecent but not obscene in protected by the First Amendment'") (quoting Sable Communications of Cal., Inc. v. FCC, 492 US 115, 126 (1989); Carey v. Population Services Int'l, 431 US 678, 701 (1977) ("[T]he fact that protected speech may be offesnive to some does not justify its suppression"). -- Ashcroft v. Free Speech Coalition, Slip-op, No. 00-795, 535 U.S. __, Sec. II (April 16, 2002)

Indecency

Defined

An indecent program is one that "describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the cable medium." Implementation of Section 10 of the Cable Consumer Protection and Competition Act of 1992, 58 Fed.Reg. 7990, 7993 (1993) (to be codified at 47 C.F.R. ' 76.701(g)). As all agree, this definition of indecency does not encompass all of the elements of obscenity. A work is legally obscene, according to Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614- 15, 37 L.Ed.2d 419 (1973), if (a) " 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, ..."; (b) "the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law"; and (c) "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." -- Alliance for Community Media v. FCC, 56 F.3d 105, 113, 312 U.S.App.D.C. 141, 149 (D.C. Cir. 1995) affirmed in part and rvsd in part Sub. Nom. Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 116 S.Ct. 471 (1995)

"In enforcing section 1464 of the Radio Act, the Federal Communications Commission defines "broadcast indecency" as language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs. In re Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. ' 1464, 8 FCCR. 704, 705 n. 10 (1993) ("1993 Report and Order ")." This definition has remained substantially unchanged since it was first enunciated in In re Pacifica Foundation, 56 FCC2d 94, 98 (1975)." -- Action for Children's Television v. FCC, 58 F.3d 654, 657, 313 U.S.App.D.C. 94, 97 (D.C. Cir. 1995), cert. denied, 116 S.Ct. 701 (1996).

'[i]ndecency' is not confined merely to material that borders on obscenity-- 'obscenity lite.' Unlike obscenity, indecent material includes literarily, artistically, scientifically, and politically meritorious material. Indeed, by definition, it includes all 'patently offensive' material that has any of these kinds of merit, and cannot be branded as obscene under the standard established by the Supreme Court in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614-15, 37 L.Ed.2d 419 (1973). -- Alliance for Community Media, 56 F.3d at 130 (J. Wald, dissenting opinion).

"Pacifica takes issue with the Commission's definition of indecency, but does not dispute the Commission's preliminary determination that each of the components of its definition was present. Specifically, Pacifica does not quarrel with the conclusion that this afternoon broadcast was patently offensive. Pacifica's claim that the broadcast was not indecent within the meaning of the statute rests entirely on the absence of prurient appeal." 438 U.S. 726, *739, 98 S.Ct. 3026, **3035

"FN15. Indeed, at one point, he used "indecency" as a shorthand term for "patent offensiveness," 370 U.S., at 482, 82 S.Ct., at 1434, a usage strikingly similar to the Commission's definition in this case. 56 FCC2d, at 98." 438 U.S. 726, *740, 98 S.Ct. 3026, **3036

Indecency is defined as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs." 47 C.F.R. ' 76.701(g); In re Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. ' 1464, 8 FCCR. 704, 705 n.10 (1993).

"It is true that the Commission's order may lead some broadcasters to censor themselves. At most, however, the Commission's definition of indecency will deter only the broadcasting of patently offensive references to excretory and sexual organs and activities. [FN18] While some of these references may be protected, they surely lie at the periphery of First Amendment concern. Cf. Bates v. State Bar of Arizona, 433 U.S. 350, 380-381, 97 S.Ct. 2691, 2707- 2708, 53 L.Ed.2d 810. Young v. American Mini Theatres, Inc., 427 U.S. 50, 61, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310. The danger dismissed so summarily in Red Lion, in contrast, was that broadcasters would respond to the vagueness of the regulations by refusing to present programs dealing with important social and political controversies. Invalidating any rule on the basis of its hypothetical application to situations not before the Court is "strong medicine" to be applied "sparingly and only as a last resort." Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830. We decline to administer that medicine to preserve the vigor of patently offensive sexual and excretory speech." Pacifica 438 U.S. 726, *743, 98 S.Ct. 3026, **3037

"FN6. Chairman Wiley concurred in the result without joining the opinion. Commissioners Reid and Quello filed separate statements expressing the opinion that the language was inappropriate for broadcast at any time. Id., at 102-103. Commissioner Robinson, joined by Commissioner Hooks, filed a concurring statement expressing the opinion: "[W]e can regulate offensive speech to the extent it constitutes a public nuisance. . . . The governing idea is that 'indecency' is not an inherent attribute of words themselves; it is rather a matter of context and conduct. . . . If I were called on to do so, I would find that Carlin's monologue, if it were broadcast at an appropriate hour and accompanied by suitable warning, was distinguished by sufficient literary value to avoid being 'indecent' within the meaning of the statute." Id., at 107-108, and n. 9." 438 U.S. 726, *732, 98 S.Ct. 3026, **3031

"The Commission characterized the language used in the Carlin monologue as "patently offensive," though not necessarily obscene, and expressed the opinion that it should be regulated by principles analogous to those found in the law of nuisance where the "law generally speaks to channeling behavior more than actually prohibiting it. . . . [T]he concept of 'indecent' is intimately connected with the exposure of children to language that describes,in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs at times of the day when there is a reasonable risk that children may be in the audience." 56 FCC2d, at 98. Thus, the Commission suggested, if an offensive broadcast had literary, artistic, political, or scientific value, and were preceded by warnings, it might not be indecent in the late evening, but would be so during the day, when children are in the audience. 56 FCC2d, at 98. -- FCC v. Pacifica Foundation, 438 U.S. 726, 732, 98 S.Ct. 3026, 3031(1978).

Nudity

"nudity itself is not per se indecent." WPBN/WTOM License Subsidiary, Inc., Memorandum Opinion & Order, 15 FCC Rcd 1838, 1841 ¶ 11 (2000)

A function of Context

"The first argument fails because our review is limited to the question whether the Commission has the authority to proscribe this particular broadcast. As the Commission itself emphasized, its order was "issued in a specific factual context." 59 FCC2d, at 893. That approach is appropriate for courts as well as the Commission when regulation of indecency is at stake, for indecency is largely a function of context--it cannot be adequately judged in the abstract." Pacifica, 438 U.S. 726, *742, 98 S.Ct. 3026, **3037

Vagueness

Much was made about the vagueness of the term indecency. However, First Amendment cases usually turn on issues other than the vaguness of this term. As Sen. Grassley pointed out, "the Supreme Court has never-not even once-ruled that the indecency standard is unconstitutional." 142 Cong. Rec. S687 (daily ed. February 1, 1996).

"The First and Fifth Amendments protect speakers "from arbitrary and discriminatyr enforcement of vague standards" in law and regulations. Nat'l Endowment for the Arts v Finley, 524 US 569, 588 (1998). Standards are unconstitutionally vague if they do not "gove the person of ordinary intelligence a reasonable opportunity to know what is prohibited..." Grayned v. City of Rockford, 408 US 104, 108 (1972). "The First Amendment places a special burden on the government to ensure that restrictions on speech are not impermissibly vague." Fox, 613 F.3d at 327." ABC v FCC Slip p 7 (2nd Cir. 2011).

Not Obscenity

An indecent program is one that "describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the cable medium." Implementation of Section 10 of the Cable Consumer Protection and Competition Act of 1992, 58 Fed.Reg. 7990, 7993 (1993) (to be codified at 47 C.F.R. ' 76.701(g)). As all agree, this definition of indecency does not encompass all of the elements of obscenity. A work is legally obscene, according to Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614- 15, 37 L.Ed.2d 419 (1973), if (a) " 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, ..."; (b) "the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law"; and (c) "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." -- Alliance for Community Media v. FCC, 56 F.3d 105, 113, 312 U.S.App.D.C. 141, 149 (D.C. Cir. 1995) affirmed in part and rvsd in part Sub. Nom. Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 116 S.Ct. 471 (1995)

Constitutionally Protected

Speech “which is indecent but not obscene is protected by the First Amendment” Sable Commc’ns v. FCC, 492 U.S. 115, 126 (1989). See also ABC v FCC Slip p 7 (2nd Cir. 2011).

Industry Guidance, 16 F.C.C.R. 7999, at ¶ 3 (“[I]ndecent speech is protected by the First Amendment, and thus, the government must both identify a compelling interest for any regulation it may impose on indecent speech and choose the least restrictive means to further that interest.”).

EX PARTE LO, Tex: Court of Criminal Appeals 2013: ""Sexual expression which is indecent but not obscene is protected by the First Amendment." Sable Communications of California, Inc, 492 U.S. at 126; Roth v. United States, 354 U.S. 476, 487 (1957) ("[S]ex and obscenity are not synonymous."). Subsection (b) covers a whole cornucopia of "titillating talk" or "dirty talk." But it also includes sexually explicit literature such as "Lolita,"[44] "50 Shades of Grey,"[45] "Lady Chatterly's Lover,"[46] and Shakespeare's "Troilus and Cressida." It includes sexually explicit television shows, movies, and performances such as "The Tudors," "Rome," "Eyes Wide Shut," "Basic Instinct," Janet Jackson's "Wardrobe Malfunction" during the 2004 Super Bowl, and Miley Cyrus's "twerking" during the 2013 MTV Video Music Awards. It includes sexually explicit art such as "The Rape of the Sabine Women," "Venus De Milo," "the Naked Maja," or Japanese Shunga. Communications and materials that, in some manner, "relate to" sexual conduct comprise much of the art, literature, and entertainment of the world from the time of the Greek myths extolling Zeus's sexual prowess, through the ribald plays of the Renaissance, to today's Hollywood movies and cable TV shows."

Obscenity

Material Harmful to Minors

Statutory

COPA: The "harmful to minors" standard is based on the definition of obscenity. It is defined as, with respect to minors,

any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that

(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;

(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post‑pubescent female breast; and

(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

[47 U.S.C. § 231(e)(6)]

47 USC 151 Note Internet Tax Freedom Act, Sec. 1101(d)(3)(F)

"(F) Material that is harmful to minors.-The term 'material that is harmful to minors' means any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that-

"(i) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;

"(ii) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

"(iii) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

"(G) Minor.-The term 'minor' means any person under 17 years of age.

Caslelaw

In Ginsberg, we upheld the constitutionality of a New York statute that prohibited selling to minors under 17 years of age material that was considered obscene as to them even if not obscene as to adults. We rejected the defendant's broad submission that "the scope of the constitutional freedom of expression secured to a citizen to read or see material concerned with sex cannot be made to depend on whether the citizen is an adult or a minor." 390 U. S., at 636. In rejecting that contention, we relied not only on the State's independent interest in the well-being of its youth, but also on our consistent recognition of the principle that "the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society." - Reno v. ACLU, 521 US 844, Sec. IV (1997).

"constitutional rights do not mature and come into being magically only when one attains the statedefined age of majority." Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976)

mature minors possess close to the "full capacity for individual choice which is the presupposition of First Amendment guarantees." Bellotti v. Baird, 443 U.S. 622, 635 n.13 (quoting Ginsberg, 390 U.S. at 649).

"children have First Amendment rights." Am. Amusement Mach. Ass'n v. Kendrick, 244 F.3d 572, 576 (7th Cir. 2001), cert. denied, 534 U.S. 994 (2001).

State v. Stone, 137 S.W.3d 167, 181-82 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) (relying on Ginsberg in holding that law prohibiting a person from exhibiting to children material deemed to be obscene as to them, although not to adults, was neither overbroad nor vague).

Papers

Catherine Ross, An Emerging Right for Mature Minors to Receive Information, 2 U. Pa. J. Const. L. 223 (1999).

See also Protection of Children :: CIPA :: COPA :: Taxes :: Truth in Domain Names :: dot Kids ::

Profane

The last catagory is the "profane." This word is not in common usage in the caselaw. Most cases turn on obscenity and indecency. Indeed, I could not find a definition for the "profane" until back in 1931. See cite list attached (listing cases where "1464" and "profane" are found, all lacking definitions of the word "profane"). In 1931, the Ninth Circuit defined "profane" as the equivolent of sacrilidges. Duncan v. United States, 48 F.2d 128, 132 (9th Cir. 1931) cert. denied 283 U.S. 863, 51 S.Ct. 656. In that case, the court recognized the definition of "profane" as

"Irreverent toward God or holy things; speaking or spoken, acting or acted, in manifest or implied contempt of sacred things; blasphemous: as, profane language; profane swearing." . . . "any words importing an imprecation of divine vengence or implying divine condemnation, so used as to constitute a public nuisance, would suffice."

Id. at 133.

Cursing

Finally, it has been recognized by the Courts that mere cursing is not a type of speech which can be restricted by the sovereign. In Duncan, the case where the Court was willing to suppress profane speech, the court stated

course, vulgar, and indecent [speech] was not within the purview of the statute because its tendency was to excite anger and condemn and repel rather then excite feelings of an impure, lascivious, or unchaste character.

Duncan, 48 F.2d at 132.

"As stated by Judge Baker of the United States District Court of Indiana in U.S. v. Males, 51 F. 41, 43: 'It seems to me that the statute under consideration was intended to prohibit the dissemination by the mails of printed or written matter or pitcotiral productions calculated to excite the animal passions, and to corrupt and debauch the mind, and not such as are merely coarse, vulgar, or indecent in the popular sense of those terms.' In that case he held that the language used, although coarse, vulgar and indecent, was not within the purview of the statute because its tendency was to excite anger and condemn and repel rather thhen excite feelings of an impure, lascivious, or unchaste character. See, alse, U.S. v. Clark (D.C.) 43 F. 574; Griffin v. U.S. (C.C.A.) 248 F. 6; Knowles v. U.S. (C.C.A.) 107 F. 409; Dysart v. U.S. (C.C.A.) 4 F. (2d) 765; Krause v. U.S. (C.C.A.) 29 F. (2d) 248."

- Duncan v. United States, 48 F.2d 128, 132 (9th Cir. 1931) cert. denied 283 U.S. 863, 51 S.Ct. 656..

"The question of what constitutes profane language has been before the courts for centuries. The subject is usually dealt with as a branch of the comon-law offense of blasphemy, but in the United States particularly it has been a frequent subject of legislation. In the Century Dictionary, 'profane' is defined as follows: 'Irreverent toward God or holy things; speaking or spoken, acting or acted, in manifest or implied contempt of sacred things; blasphemous: as, profane language; profane swearing.' In Gaines v. State, 7 Lea (75 Tenn.) 410, 40 Am. Rep. 64, decided in 1881, the defendant was charged with uttering a profane oath in a public place, Etc. It was said: 'Any words importing an imprecation of divine vengence or implying divine condemnation, so used as to constitute a public nuisance, would suffice. Isom v. State, September Term, 1880; Holcomb v. cornish, 8 conn. 375.'"

Duncan v. United States, 48 F.2d 128, 132 (9th Cir. 1931) cert. denied 283 U.S. 863, 51 S.Ct. 656. .

"Under these decisions, the indictment having alleged that the language is profane, the defendent having referred to an individual as 'damned,' having used the expression 'By God' irreverently, and having announced his intention to call down the curse of God upon certain individuals, was properly convicted of using profane language within the meaning of that term as used in the act of Congress prohibiting the use of profane language in radio broadcasting." Duncan v. United States, 48 F.2d 128, 132 (9th Cir. 1931) cert. denied 283 U.S. 863, 51 S.Ct. 656.

Press

A primary purpose of the First Amendment is "to preserve an untrammeled press as a vital source of public information." Grosjean, 297 U.S. at 250, 56 S.Ct. at 449. The free press clause protects not only the words which appear on a newspaper's pages, but its printing and circulation as well. As Justice Stewart has written:

[T]he Free Press guarantee is in essence a structural provision of the Constitution. Most of the other provisions in the Bill of Rights protect specific liberties or specific rights of individuals: freedom of speech, freedom of worship, the right to counsel, the privilege against compulsory self-incrimination, to name a few. In contrast, the Free Press Clause extends protection to an institution.

Potter Stewart, "Or of the Press," 26 Hastings L.J. 631, 633 (1975) (emphasis added).
Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685, 693 (SDFl Nov. 8, 2000)

When the Constitution was proposed without an explicit guarantee of freedom of the press, the antifederalists objected. Richard Henry Lee, one of Virginia's leading anti-Federalists, had been a signer of the Declaration of Independence and president of the Continental Congress. Within a month after adjournment of the Constitutional Convention, he published what quickly became the most popular and influential anti-ratificationist tract, Letters from the Federal Farmer. Subsequently, he published An Additional Number of Letters, which included a discussion of freedom of the press:

All parties apparently agree, that the freedom of the press is a fundamental right, and ought not to be restrained by any taxes, duties, or in any manner whatever. Why should not the people, in adopting a federal constitution, declare this, even if there are only doubts about it ... Printing, like all other business, must cease when taxed beyond its profits; and it appears to me, that a power to tax the press at discretion, is a power to destroy or restrain the freedom of it. There may be other powers given, in the exercise of which this freedom may be effected; and certainly it is of too much importance to be left thus liable to be taxed, and constantly to constructions and inferences. A free press is the channel of communication as to mercantile and public affairs; by means of it the people in large countries ascertain each others sentiments; are enabled to unite, and become formidable to those rulers who adopt improper measures.

Richard Henry Lee, "Letter XVI, January 20, 1788," in An Additional Number of Letters from the Federal Farmer to the Republican 151-53 (Chicago: Quadrangle Books, 1962) (1788); see also Leonard W. Levy, Freedom of the Press from Zenger to Jefferson 142-44 (Carolina Academic Press, 1996). Concerns voiced by the anti-Federalists led to the adoption of the Bill of Rights, including the First Amendment, in 1791. [FN3]
Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685, 695 (SDFl Nov. 8, 2000)

incitement to immediate violence

fighting words: must be addressed to someone who might hit back. triggers to violence. in fact all fighting words statutes are unconsti vague and or overbroad.

Content Neutral Restrictions on Speech

Under U.S. v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), a content-neutral regulation will be sustained if:

[I]t furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Id. at 377, 88 S.Ct. at 1679.
When the government defends a regulation on speech it must demonstrate that the harm it seeks to prevent is real, not merely conjectural, and that the regulation will alleviate the harm in a direct and material way. See Edenfield v. Fane, 507 U.S. 761, 770-71, 113 S.Ct. 1792, 1800-01, 123 L.Ed.2d 543 (1993). A court may not simply assume that an ordinance will advance the asserted state interests sufficiently to justify its abridgment of expressive activity. See Preferred Communications, 476 U.S. at 496, 106 S.Ct. at 2038. While a legislative body is entitled to substantial deference, in First Amendment cases the deference afforded to legislative findings does not foreclose independent judgment of the facts bearing on an issue of constitutional law. See Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843, 98 S.Ct. 1535, 1543-44, 56 L.Ed.2d 1 (1978).
-- Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685, 697 (SDFl Nov. 8, 2000)

Proper Time Place Manner

Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 130 (1992) (“A government regulation that allows arbitrary application is inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view.”);

Specific Mediums

Internet

Market Place of Ideas

Abrams v. United States , 250 U.S. 616, 630 (1919) (Holmes J., dissenting) (“[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market.”)

It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country -- and indeed the world -- has yet seen. The plaintiffs in these actions correctly describe the "democratizing” effects of Internet communication: individual citizens of limited means can speak to a worldwide audience on issues of concern to them. Federalists and Anti-Federalists may debate the structure of their government nightly, but these debates occur in newsgroups or chat rooms rather than in pamphlets. Modern-day Luthers still post their theses, but to electronic bulletin boards rather than the door of the Wittenberg Schlosskirche. More mundane (but from a constitutional perspective, equally important) dialogue occurs between aspiring artists, or French cooks, or dog lovers, or fly fishermen. . . . [T]he Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion. -- ACLU v. Reno , 929 F.Supp. 825 (ED.Pa. 1996), aff'd, 521 U.S. 844 (1997)

Oren Bar-Gill & Gideon Parchomovsky, A Marketplace for Ideas?, 84 TEX. L. REV. 395 (2005)

Vincent Blasi, Holmes and the Marketplace of Ideas, 2004 SUP. CT. REV. 1;

Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE L.J. 1 (1984). 

Value of Internet

"The Internet ... offer[s] a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity." 47 U.S.C. § 230(a)(3) (1994 ed., Supp. V). While "surfing" the World Wide Web, the primary method of remote information retrieval on the Internet today, [1] see App. in No. 99 1324(CA3), p. 180 (hereinafter App.), individuals can access material about topics ranging from aardvarks to Zoroastrianism. One can use the Web to read thousands of newspapers published around the globe, purchase tickets for a matinee at the neighborhood movie theater, or follow the progress of any Major League Baseball team on a pitch by pitch basis.

[1]For a thorough explanation of the history, structure, and operation of the Internet and World Wide Web, see Reno v. American Civil Liberties Union, 521 U.S. 844, 849 853, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997).

- Ashcroft, V. American Civil Liberties Union, No. 00 1293, __ S.Ct. __ (May 13, 2002)

The Internet provides easy access to anyone who wishes to provide or distribute information to a worldwide audience; it is used by more than 143 million Americans. Indeed, much of the world's knowledge accumulated over centuries is available to Internet users almost instantly. -- ALA v. United States, CA 01-1303 Sec. 1 (ED PA May 31, 2002) http://www.paed.uscourts.gov/documents/opinions/02D0415P.HTM

"As we noted at the outset, the Internet is a vast, interactive medium consisting of a decentralized network of computers around the world. The Internet presents low entry barriers to anyone who wishes to provide or distribute information. Unlike television, cable, radio, newspapers, magazines or books, the Internet provides an opportunity for those with access to it to communicate with a worldwide audience at little cost. At least 400 million people use the Internet worldwide, and approximately 143 million Americans were using the Internet as of September 2001. Nat'l Telecomm. & Info. Admin., A Nation Online: How Americans Are Expanding Their Use of the Internet (February 2002), available at http://www.ntia.doc.gov/ntiahome/dn/." - ALA v. United States, CA No. 01-1303 (EDPA May 31, 2002)

"The Internet is both a source of promise for our children and a source of concern. The Internet provides convenient access to a highly diverse library of educational resources, enables collaborative study, and offers opportunities for remote dialog with subject-matter experts. It provides information about hobbies and sports, and it allows children to engage with other people on a near-infinite variety of topics. Through online correspondence, their circles of friendship and diversity of experience can achieve a rich and international scope." - Youth, Pornography and the Internet, p. 1 Computer Science and Technology Board, National Academies Press (2002)

Problem of the Internet

"While the beneficial effect of the Internet in expanding the amount of information available to its users is self-evident, its low entry barriers have also led to a perverse result - facilitation of the widespread dissemination of hardcore pornography within the easy reach not only of adults who have every right to access it (so long as it is not legally obscene or child pornography), but also of children and adolescents to whom it may be quite harmful. The volume of pornography on the Internet is huge, and the record before us demonstrates that public library patrons of all ages, many from ages 11 to 15, have regularly sought to access it in public library settings. There are more than 100,000 pornographic Web sites that can be accessed for free and without providing any registration information, and tens of thousands of Web sites contain child pornography. " -- ALA v. United States, CA No. 01-1303 Sec. 1 (EDPA May 31, 2002)

There is a vast amount of sexually explicit material available via the Internet and the Web. Sexually explicit material on the Internet is easy to access using any public search engine, such as, for example, Google or AltaVista. Although much of the sexually explicit material available on the Web is posted on commercial sites that require viewers to pay in order to gain access to the site, a large number of sexually explicit sites may be accessed for free and without providing any registration information. Most importantly, some Web sites that contain sexually explicit content have innocuous domain names and therefore can be reached accidentally. A commonly cited example is http://www.whitehouse.com. Other innocent-sounding URLs that retrieve graphic, sexually explicit depictions include http://www.boys.com, http://www.girls.com, http://www.coffeebeansupply.com, and http://www.BookstoreUSA.com. Moreover, commercial Web sites that contain sexually explicit material often use a technique of attaching pop-up windows to their sites, which open new windows advertising other sexually explicit sites without any prompting by the user. This technique makes it difficult for a user quickly to exit all of the pages containing sexually explicit material, whether he or she initially accessed such material intentionally or not.
The percentage of Web pages on the indexed Web containing sexually explicit content is relatively small. Recent estimates indicate that no more than 1-2% of the content on the Web is pornographic or sexually explicit. However, the absolute number of Web sites offering free sexually explicit material is extremely large, approximately 100,000 sites.
-- ALA v. United States, CA No. 01-1303 Finding of Fact: Internet (EDPA May 31, 2002)

"Yet press reports have suggested to many that their children are vulnerable to harm on the Internet. While only a small fraction of material on the Internet could reasonably be classified as inappropriate for children, that small fraction is highly visible and controversial.1 If the full educational potential of the Internet for children is to be realized, such concerns must be reasonably addressed." - Youth, Pornography and the Internet, p. 1 Computer Science and Technology Board, National Academies Press (2002)

Government Interest: Pornography and Children

The Web also contains a wide array of sexually explicit material, including hardcore pornography. See, e.g., American Civil Liberties Union v. Reno, 31 F.Supp.2d 473, 484 (E.D.Pa.1999). In 1998, for instance, there were approximately 28,000 adult sites promoting pornography on the Web. See HRRep No. 105 775, p. 7 (1998). Because "[n]avigating the Web is relatively straightforward," Reno v. American Civil Liberties Union, 521 U.S. 844, 852, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and access to the Internet is widely available in homes, schools, and libraries across the country,[2] see App. 177 178, children may discover this pornographic material either by deliberately accessing pornographic Web sites or by stumbling upon them. See 31 F.Supp.2d, at 476 ("A child with minimal knowledge of a computer, the ability to operate a browser, and the skill to type a few simple words may be able to access sexual images and content over the World Wide Web").

[2]. When this litigation commenced in 1998, "[a]pproximately 70.2 million people of all ages use[d] the Internet in the United States." App. 171. It is now estimated that 115.2 million Americans use the Internet at least once a month and 176.5 million Americans have Internet access either at home or at work. See More Americans Online, New York Times, Nov. 19, 2001, p. C7.

- Ashcroft, V. American Civil Liberties Union, No. 00 1293, __ S.Ct. __ (May 13, 2002)

Problem of Filters

"As our extensive findings of fact reflect, the plaintiffs demonstrated that thousands of Web pages containing protected speech are wrongly blocked by the four leading filtering programs, and these pages represent only a fraction of Web pages wrongly blocked by the programs. The plaintiffs' evidence explained that the problems faced by the manufacturers and vendors of filtering software are legion. The Web is extremely dynamic, with an estimated 1.5 million new pages added every day and the contents of existing Web pages changing very rapidly. The category lists maintained by the blocking programs are considered to be proprietary information, and hence are unavailable to customers or the general public for review, so that public libraries that select categories when implementing filtering software do not really know what they are blocking.
"There are many reasons why filtering software suffers from extensive over- and underblocking, which we will explain below in great detail. They center on the limitations on filtering companies' ability to: (1) accurately collect Web pages that potentially fall into a blocked category (e.g., pornography); (2) review and categorize Web pages that they have collected; and (3) engage in regular re-review of Web pages that they have previously reviewed. These failures spring from constraints on the technology of automated classification systems, and the limitations inherent in human review, including error, misjudgment, and scarce resources, which we describe in detail infra at 58-74. One failure of critical importance is that the automated systems that filtering companies use to collect Web pages for classification are able to search only text, not images. This is crippling to filtering companies' ability to collect pages containing "visual depictions" that are obscene, child pornography, or harmful to minors, as CIPA requires. As will appear, we find that it is currently impossible, given the Internet's size, rate of growth, rate of change, and architecture, and given the state of the art of automated classification systems, to develop a filter that neither underblocks nor overblocks a substantial amount of speech. " ALA v. United States, CA No. 01-1303 intro (EDPA May 31, 2002) http://www.paed.uscourts.gov/documents/opinions/02D0415P.HTM

Mainstream Loudoun v. Board of Trustees of the Loudon County Library Civil Action No. 97-2049-A (ED Va 1998) ("unconstitutional for library to impose filtering software on all users, including adult users.")

Communications Decency Act

   

Congress first attempted to protect children from exposure to pornographic material on the Internet by enacting the Communications Decency Act of 1996(CDA), 110 Stat. 133. The CDA prohibited the knowing transmission over the Internet of obscene or indecent messages to any recipient under 18 years of age. See 47 U.S.C. § 223(a). It also forbade any individual from knowingly sending over or displaying on the Internet certain "patently offensive" material in a manner available to persons under 18 years of age. See § 223(d). The prohibition specifically extended to "any comment, request, suggestion, proposal, image, or other communication that, in context, depict [ed] or describ[ed], in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." § 223(d)(1).
The CDA provided two affirmative defenses to those prosecuted under the statute. The first protected individuals who took "good faith, reasonable, effective, and appropriate actions" to restrict minors from accessing obscene, indecent, and patently offensive material over the Internet. See § 223(e)(5)(A). The second shielded those who restricted minors from accessing such material "by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number." § 223(e)(5)(B).
Notwithstanding these affirmative defenses, in Reno v. American Civil Liberties Union, we held that the CDA's regulation of indecent transmissions, see § 223(a), and the display of patently offensive material, see § 223(d), ran afoul of the First Amendment. We concluded that "the CDA lack[ed] the precision that the First Amendment requires when a statute regulates the content of speech" because, "[i]n order to deny minors access to potentially harmful speech, the CDA effectively suppress[ed] a large amount of speech that adults ha[d] a constitutional right to receive and to address to one another." 521 U.S., at 874, 117 S.Ct. 2329.
Our holding was based on three crucial considerations. First, "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." Id., at 876, 117 S.Ct. 2329. Second, "[t]he breadth of the CDA's coverage [was] wholly unprecedented." Id., at 877, 117 S.Ct. 2329. "Its open ended prohibitions embrace[d]," not only commercial speech or commercial entities, but also "all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors." Ibid. In addition, because the CDA did not define the terms "indecent" and "patently offensive," the statute "cover[ed] large amounts of nonpornographic material with serious educational or other value." Ibid. As a result, regulated subject matter under the CDA extended to "discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalog of the Carnegie Library." Id., at 878, 117 S.Ct. 2329. Third, we found that neither affirmative defense set forth in the CDA "constitute[d] the sort of 'narrow tailoring' that [would] save an otherwise patently invalid unconstitutional provision." Id., at 882, 117 S.Ct. 2329. Consequently, only the CDA's ban on the knowing transmission of obscene messages survived scrutiny because obscene speech enjoys no First Amendment protection. See id., at 883, 117 S.Ct. 2329.
- Ashcroft, V. American Civil Liberties Union, No. 00 1293, __ S.Ct. __ (May 13, 2002)

The amendments made by the CDA have been declared unconstitutional. ACLU v. Reno, 929 F.Supp. 824 (EDPa 1996); Shea v. Reno, 930 F.Supp. 916 (S.D.N.Y. 1996). See also Robert Cannon, Communications Decency Act Declared Unconstitutional, FCBA News (September 1996) (discussing court decision).

Children's Online Protection Act

After our decision in Reno v. American Civil Liberties Union, Congress explored other avenues for restricting minors' access to pornographic material on the Internet. In particular, Congress passed and the President signed into law the Child Online Protection Act, 112 Stat. 2681 736 (codified in 47 U.S.C. § 231 (1994 ed., Supp. V)). COPA prohibits any person from "knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, mak[ing] any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors." 47 U.S.C. § 231(a)(1).
Apparently responding to our objections to the breadth of the CDA's coverage, Congress limited the scope of COPA's coverage in at least three ways. First, while the CDA applied to communications over the Internet as a whole, including, for example, e mail messages, COPA applies only to material displayed on the World Wide Web. Second, unlike the CDA, COPA covers only communications made "for commercial purposes."[3] Ibid. And third, while the CDA prohibited "indecent" and "patently offensive" communications, COPA restricts only the narrower category of "material that is harmful to minors." Ibid.
Drawing on the three part test for obscenity set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), COPA defines "material that is harmful to minors" as

"any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that
"(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;
"(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post pubescent female breast; and
"(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." 47 U.S.C. § 231(e)(6).

Like the CDA, COPA also provides affirmative defenses to those subject to prosecution under the statute. An individual may qualify for a defense if he, "in good faith, has restricted access by minors to material that is harmful to minors (A) by requiring the use of a credit card, debit account, adult access code, or adult personal identification number; (B) by accepting a digital certificate that verifies age; or (C) by any other reasonable measures that are feasible under available technology." § 231(c)(1). Persons violating COPA are subject to both civil and criminal sanctions. A civil penalty of up to $50,000 may be imposed for each violation of the statute. Criminal penalties consist of up to six months in prison and/or a maximum fine of $50,000. An additional fine of $50,000 may be imposed for any intentional violation of the statute. § 231(a).

[3.] The statute provides that "[a] person shall be considered to make a communication for commercial purposes only if such person is engaged in the business of making such communications." 47 U.S.C. § 231(e)(2)(A) (1994 ed., Supp. V). COPA then defines the term "engaged in the business" to mean a person:

"who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person's sole or principal business or source of income)." § 231(e)(2)(B).

- Ashcroft, V. American Civil Liberties Union, No. 00 1293, __ S.Ct. __ (May 13, 2002)

---

The scope of our decision today is quite limited. We hold only that COPA's reliance on community standards to identify "material that is harmful to minors" does not by itself render the statute substantially overbroad for purposes of the First Amendment. We do not express any view as to whether COPA suffers from substantial overbreadth for other reasons, whether the statute is unconstitutionally vague, or whether the District Court correctly concluded that the statute likely will not survive strict scrutiny analysis once adjudication of the case is completed below. While respondents urge us to resolve these questions at this time, prudence dictates allowing the Court of Appeals to first examine these difficult issues.
Petitioner does not ask us to vacate the preliminary injunction entered by the District Court, and in any event, we could not do so without addressing matters yet to be considered by the Court of Appeals. As a result, the Government remains enjoined from enforcing COPA absent further action by the Court of Appeals or the District Court.
For the foregoing reasons, we vacate the judgment of the Court of Appeals and remand the case for further proceedings.
- Ashcroft, V. American Civil Liberties Union, No. 00 1293, __ S.Ct. __ (May 13, 2002)

COPA History

The District Court granted respondents' motion for a preliminary injunction, barring the Government from enforcing the Act until the merits of respondents' claims could be adjudicated. 31 F.Supp.2d, at 499. Focusing on respondents' claim that COPA abridged the free speech rights of adults, the District Court concluded that respondents had established a likelihood of success on the merits. Id., at 498. The District Court reasoned that because COPA constitutes content based regulation of sexual expression protected by the First Amendment, the statute, under this Court's precedents, was "presumptively invalid" and "subject to strict scrutiny." Id., at 493. The District Court then held that respondents were likely to establish at trial that COPA could not withstand such scrutiny because, among other reasons, it was not apparent that COPA was the least restrictive means of preventing minors from accessing "harmful to minors" material. Id., at 497.
The Attorney General of the United States appealed the District Court's ruling. American Civil Liberties Union v. Reno, 217 F.3d 162 (C.A.3 2000). The United States Court of Appeals for the Third Circuit affirmed. Rather than reviewing the District Court's "holding that COPA was not likely to succeed in surviving strict scrutiny analysis," the Court of Appeals based its decision entirely on a ground that was not relied upon below and that was "virtually ignored by the parties and the amicus in their respective briefs." Id., at 173 174. The Court of Appeals concluded that COPA's use of "contemporary community standards" to identify material that is harmful to minors rendered the statute substantially overbroad. Because "Web publishers are without any means to limit access to their sites based on the geographic location of particular Internet users," the Court of Appeals reasoned that COPA would require "any material that might be deemed harmful by the most puritan of communities in any state" to be placed behind an age or credit card verification system. Id., at 175. Hypothesizing that this step would require Web publishers to shield "vast amounts of material," ibid., the Court of Appeals was "persuaded that this aspect of COPA, without reference to its other provisions, must lead inexorably to a holding of a likelihood of unconstitutionality of the entire COPA statute." Id., at 174.
We granted the Attorney General's petition for certiorari, 532 U.S. 1037, 121 S.Ct. 1997, 149 L.Ed.2d 1001 (2001), to review the Court of Appeals' determination that COPA likely violates the First Amendment because it relies, in part, on community standards to identify material that is harmful to minors, and now vacate the Court of Appeals' judgment.
- Ashcroft, V. American Civil Liberties Union, No. 00 1293, __ S.Ct. __ (May 13, 2002)

Childrens Internet Protection Act CIPA

"CIPA requires that libraries, in order to receive LSTA funds or E-rate discounts, certify that they are using a "technology protection measure" that prevents patrons from accessing "visual depictions" that are "obscene," "child pornography," or in the case of minors, "harmful to minors." 20 U.S.C. § 9134(f)(1)(A) (LSTA); 47 U.S.C. § 254(h)(6)(B) & (C) (E-rate)." -- ALA v. United States, CA No. 01-1303 (EDPA May 31, 2002) http://www.paed.uscourts.gov/documents/opinions/02D0415P.HTM

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 § 1711 (amending Title 20 to add § 3601); (2) LSTA grants to states for support of libraries, see CIPA § 1712 (amending the Museum and Library Services Act, 20 U.S.C. § 9134); and (3) discounts under the E-rate program, see CIPA § 1721(a) & (b) (both amending the Communications Act of 1934, 47 U.S.C. § 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.
a. 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 § 1721(b) (codified at 47 U.S.C. § 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 § 1721(b) (codified at 47 U.S.C. § 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 § 1703(b)(1) (codified at 47 U.S.C. § 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 § 1721(b) (codified at 47 U.S.C. § 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 §1721(b) (codified at 47 U.S.C. § 254(h)(6)(D)).
b. CIPA's Amendments to the LSTA Program
Section 1712 of CIPA amends the Museum and Library Services Act (20 U.S.C. § 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 § 1712 (codified at 20 U.S.C. § 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 § 1712 (codified at 20 U.S.C. § 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 § 1712 (codified at 20 U.S.C. § 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.
-- ALA v. United States, CA No. 01-1303 Finding of Fact II.A.2. (EDPA May 31, 2002) http://www.paed.uscourts.gov/documents/opinions/02D0415P.HTM

Library Internet Access = Public Forum = Strict Scrutiny

"Plaintiffs respond that the government's ability to restrict speech on its own property, as in the case of restrictions on Internet access in public libraries, is not unlimited, and that the more widely the state facilitates the dissemination of private speech in a given forum, the more vulnerable the state's decision is to restrict access to speech in that forum. We agree with the plaintiffs that public libraries' content-based restrictions on their patrons' Internet access are subject to strict scrutiny. In providing even filtered Internet access, public libraries create a public forum open to any speaker around the world to communicate with library patrons via the Internet on a virtually unlimited number of topics. Where the state provides access to a "vast democratic forum[]," Reno v. ACLU, 521 U.S. 844, 868 (1997), open to any member of the public to speak on subjects "as diverse as human thought," id. at 870 (internal quotation marks and citation omitted), the state's decision selectively to exclude from the forum speech whose content the state disfavors is subject to strict scrutiny, as such exclusions risk distorting the marketplace of ideas that the state has facilitated. Application of strict scrutiny finds further support in the extent to which public libraries' provision of Internet access uniquely promotes First Amendment values in a manner analogous to traditional public fora such as streets, sidewalks, and parks, in which content-based restrictions are always subject to strict scrutiny." ALA v. United States, CA No. 01-1303 intro (EDPA May 31, 2002) http://www.paed.uscourts.gov/documents/opinions/02D0415P.HTM