United States Supreme Court Reports

UNITED STATES v. AMERICAN LIBRARY ASSN., INC., 539 U.S. 194
(2003) 123 S.Ct. 2297 UNITED STATES et al. v. AMERICAN
LIBRARY ASSOCIATION, INC., et al. APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA No. 02-361. Argued March 5, 2003 Decided
June 23, 2003

Two forms of federal assistance help public libraries
provide patrons with Internet access: discounted rates
under the E-rate program and grants under the Library
Services and Technology Act (LSTA). Upon discovering that
library patrons, including minors, regularly search the
Internet for pornography and expose others to pornographic
images by leaving them displayed on Internet terminals or
printed at library printers, Congress enacted the
Children’s Internet Protection Act (CIPA), which forbids
public libraries to receive federal assistance for
Internet access unless they install software to block
obscene or pornographic images and to prevent minors from
accessing material harmful to them. Appellees, a group of
libraries, patrons, Web site publishers, and related
parties, sued the Government, challenging the
constitutionality of CIPA’s filtering provisions. Ruling
that CIPA is facially unconstitutional and enjoining the
Government from withholding federal assistance for failure
to comply with CIPA, the District Court held, inter alia,
that Congress had exceeded its authority under the
Spending Clause because any public library that complies
with CIPA’s conditions will necessarily violate the First
Amendment; that the CIPA filtering software constitutes a
content-based restriction on access to a public forum that
is subject to strict scrutiny; and that, although the
Government has a compelling interest in preventing the
dissemination of obscenity, child pornography, or material
harmful to minors, the use of software filters is not
narrowly tailored to further that interest.

Held: The judgment is reversed.

201 F. Supp.2d 401, reversed.

Chief Justice Rehnquist, joined by Justice O’Connor,
Justice Scalia, and Justice Thomas, concluded:

1. Because public libraries’ use of Internet filtering
software does not violate their patrons’ First Amendment
rights, CIPA does not induce libraries to violate the
Constitution, and is a valid exercise of Congress’
spending power. Congress has wide latitude to attach
conditions to the receipt of federal assistance to further
its policy objectives, South Dakota v. Dole, 483 U.S. 203,
206, but may not “induce” the recipient “to engage in
activities that would themselves be unconstitutional,”
id., at Page 195 210. To determine whether libraries
would violate the First Amendment by employing the CIPA
filtering software, the Court must first examine their
societal role. To fulfill their traditional missions of
facilitating learning and cultural enrichment, public
libraries must have broad discretion to decide what
material to provide to their patrons. This Court has held
in two analogous contexts that the Government has broad
discretion to make content-based judgments in deciding
what private speech to make available to the public.
Arkansas Ed. Television Comm’n v. Forbes, 523 U.S. 666,
672-674; National Endowment for Arts v. Finley, 524 U.S.
569, 585-586. Just as forum analysis and heightened
judicial scrutiny were incompatible with the role of
public television stations in the former case and the role
of the National Endowment for the Arts in the latter, so
are they incompatible with the broad discretion that
public libraries must have to consider content in making
collection decisions. Thus, the public forum principles on
which the District Court relied are out of place in the
context of this case. Internet access in public libraries
is neither a “traditional” nor a “designated” public
forum. See, e.g., Cornelius v. NAACP Legal Defense & Ed.
Fund, Inc., 473 U.S. 788, 802-803. Unlike the “Student
Activity Fund” at issue in Rosenberger v. Rector and
Visitors of Univ. of Va., 515 U.S. 819, 834, Internet
terminals are not acquired by a library in order to create a
public forum for Web publishers to express themselves.
Rather, a library provides such access for the same
reasons it offers other library resources: to facilitate
research, learning, and recreational pursuits by
furnishing materials of requisite and appropriate quality.
The fact that a library reviews and affirmatively chooses
to acquire every book in its collection, but does not
review every Web site that it makes available, is not a
constitutionally relevant distinction. The decisions by
most libraries to exclude pornography from their print
collections are not subjected to heightened scrutiny; it
would make little sense to treat libraries’ judgments to
block online pornography any differently. Moreover,
because of the vast quantity of material on the Internet
and the rapid pace at which it changes, libraries cannot
possibly segregate, item by item, all the Internet material
that is appropriate for inclusion from all that is not.
While a library could limit its Internet collection to
just those sites it found worthwhile, it could do so only
at the cost of excluding an enormous amount of valuable
information that it lacks the capacity to review. Given
that tradeoff, it is entirely reasonable for public
libraries to reject that approach and instead exclude
certain categories of content, without making
individualized judgments that everything made available has
requisite and appropriate quality. Concerns over filtering
software’s tendency to erroneously “overblock” access to
constitutionally protected speech that falls outside the
categories Page 196 software users intend to block are
dispelled by the ease with which patrons may have the
filtering software disabled. Pp. 203-209.

2. CIPA does not impose an unconstitutional condition on
libraries that receive E-rate and LSTA subsidies by
requiring them, as a condition on that receipt, to
surrender their First Amendment right to provide the
public with access to constitutionally protected speech.
Assuming that appellees may assert an “unconstitutional
conditions” claim, that claim would fail on the merits.
When the Government appropriates public funds to establish
a program, it is entitled to broadly define that program’s
limits. Rust v. Sullivan, 500 U.S. 173, 194. As in Rust, the
Government here is not denying a benefit to anyone, but is
instead simply insisting that public funds be spent for
the purpose for which they are authorized: helping public
libraries fulfill their traditional role of obtaining
material of requisite and appropriate quality for
educational and informational purposes. Especially because
public libraries have traditionally excluded pornographic
material from their other collections, Congress could
reasonably impose a parallel limitation on its Internet
assistance programs. As the use of filtering software
helps to carry out these programs, it is a permissible
condition under Rust. Appellees mistakenly contend, in
reliance on Legal Services Corporation v. Velazquez, 531
U.S. 533, 542-543, that CIPA’s filtering conditions
distort the usual functioning of public libraries. In
contrast to the lawyers who furnished legal aid to the
indigent under the program at issue in Velazquez, public
libraries have no role that pits them against the
Government, and there is no assumption, as there was in
that case, that they must be free of any conditions that
their benefactors might attach to the use of donated
funds. Pp. 210-214.

Justice Kennedy concluded that if, as the Government
represents, a librarian will unblock filtered material or
disable the Internet software filter without significant
delay on an adult user’s request, there is little to this
case. There are substantial Government interests at stake
here: The interest in protecting young library users from
material inappropriate for minors is legitimate, and even
compelling, as all Members of the Court appear to agree.
Given this interest, and the failure to show that adult
library users’ access to the material is burdened in any
significant degree, the statute is not unconstitutional on
its face. If some libraries do not have the capacity to
unblock specific Web sites or to disable the filter or if
it is shown that an adult user’s election to view
constitutionally protected Internet material is burdened
in some other substantial way, that would be the subject
for an as-applied challenge, not this facial challenge.
Pp. 214-215.

Justice Breyer agreed that the “public forum” doctrine is
inapplicable here and that the statute’s filtering
software provisions do not violate Page 197 the First
Amendment, but would reach that ultimate conclusion through
a different approach. Because the statute raises special
First Amendment concerns, he would not require only a
“rational basis” for the statute’s restrictions. At the
same time, “strict scrutiny” is not warranted, for such a
limiting and rigid test would unreasonably interfere with
the discretion inherent in the “selection” of a library’s
collection. Rather, he would examine the constitutionality
of the statute’s restrictions as the Court has examined
speech-related restrictions in other contexts where
circumstances call for heightened, but not “strict,”
scrutiny — where, for example, complex, competing
constitutional interests are potentially at issue or
speech-related harm is potentially justified by unusually
strong governmental interests. The key question in such
instances is one of proper fit. The Court has asked
whether the harm to speech-related interests is
disproportionate in light of both the justifications and
the potential alternatives. It has considered the legitimacy
of the statute’s objective, the extent to which the
statute will tend to achieve that objective, whether there
are other, less restrictive ways of achieving that
objective, and ultimately whether the statute works
speech-related harm that is out of proportion to that
objective. The statute’s restrictions satisfy these
constitutional demands. Its objectives — of
restricting access to obscenity, child pornography, and
material that is comparably harmful to minors — are
“legitimate,” and indeed often “compelling.” No clearly
superior or better fitting alternative to Internet
software filters has been presented. Moreover, the statute
contains an important exception that limits the
speech-related harm: It allows libraries to permit any adult
patron access to an “overblocked” Web site or to disable
the software filter entirely upon request. Given the
comparatively small burden imposed upon library patrons
seeking legitimate Internet materials, it cannot be said
that any speech-related harm that the statute may cause is
disproportionate when considered in relation to the
statute’s legitimate objectives. Pp. 215-220.

Rehnquist, C.J., announced the judgment of the Court and
delivered an opinion, in which O’Connor, Scalia, and
Thomas, JJ., joined. Kennedy, J., post, p. 214, and Breyer,
J., post, p. 215, filed opinions concurring in the
judgment. Stevens, J., filed a dissenting opinion, post, p.
220. Souter, J., filed a dissenting opinion, in which
Ginsburg, J., joined, post, p. 231.

Solicitor General Olson argued the cause for appellants.
With him on the briefs were Assistant Attorney General
Page 198 McCallum, Deputy Solicitor General Kneedler,
Irving L. Gornstein, Barbara L. Herwig, and Jacob M. Lewis.

Paul M. Smith argued the cause for appellees. With him on
the brief for appellees American Library Association, Inc.,
et al. were Theresa A. Chmara, Daniel Mach, Elliot M.
Mincberg, and Lawrence S. Ottinger. Christopher A. Hansen,
Ann Beeson, Steven R. Shapiro, Charles S. Sims, Stefan
Presser, and David L. Sobel filed a brief for appellees
Multnomah County Public Library et al.[fn*]

[fn*] Briefs of amici curiae urging reversal were filed for
the State of Texas by Greg Abbott, Attorney General, Barry
R. McBee, First Assistant Attorney General, Jeffrey S.
Boyd, Deputy Attorney General, Philip A. Lionberger,
Solicitor General, Amy Warr, Assistant Solicitor General,
and Ryan D. Clinton, Assistant Solicitor General; for the
American Center for Law and Justice et al. by Jay Alan
Sekulow, Colby M. May, Ben Bull, James M. Henderson, Joel
H. Thornton, John P. Tuskey, and Laura B. Hernandez; for
the American Civil Rights Union by Peter Ferrara; for
Cities, Mayors, and County Commissioners by Kelly
Shackelford; for the Greenville, South Carolina Public
Library et al. by Kenneth C. Bass III; for the National Law
Center for Children and Families et al. by Kristina A.
Bullock, Bruce A. Taylor, and Janet M. LaRue; and for Sen.
Trent Lott et al. by Brian Fahling, Stephen M. Crampton,
and Michael J. DePrimo.

Briefs of amici curiae urging affirmance were filed for the
Association of American Publishers, Inc., et al. by R.
Bruce Rich, Jonathan Bloom, and John B. Morris, Jr.; for
the Brennan Center for Justice by Burt Neuborne, Laura K.
Abel, and David S. Udell; for the Cleveland Public Library
et al. by David W. Ogden; and for Partnership for Progress
on the Digital Divide et al. by Marjorie Heins.

Briefs of amici curiae were filed for the National School
Boards Association et al. by Julie Underwood, Naomi
Gittins, and Stuart L. Knade; for the Online Policy Group,
Inc., et al. by Daniel H. Bromberg and Charles R. A. Morse;
and for Jonathan Wallace d/b/a The Ethical Spectacle by
Michael B. Green and Jonathan D. Wallace.

CHIEF JUSTICE REHNQUIST announced the judgment of the Court
and delivered an opinion, in which JUSTICE O’CONNOR,
JUSTICE SCALIA, and JUSTICE THOMAS joined.

To address the problems associated with the availability of
Internet pornography in public libraries, Congress enacted
Page 199 the Children’s Internet Protection Act (CIPA), 114
Stat. 2763A-335. Under CIPA, a public library may not
receive federal assistance to provide Internet access
unless it installs software to block images that constitute
obscenity or child pornography, and to prevent minors from
obtaining access to material that is harmful to them. The
District Court held these provisions facially invalid on
the ground that they induce public libraries to violate
patrons’ First Amendment rights. We now reverse.

[To help public libraries provide their patrons with
Internet access,] Congress offers two forms of federal
assistance. First, the E-rate program established by the
Telecommunications Act of 1996 entitles qualifying
libraries to buy Internet access at a discount. 110 Stat.
71, 47 U.S.C. § 254(h)(1)(B). In the year ending
June 30, 2002, libraries received $58.5 million in such
discounts. Redacted Joint Trial Stipulations of All Parties
in Nos. 01-CV-1303, etc. (E.D.Pa.), § 128, p. 16
(hereinafter Jt. Tr. Stip.). Second, pursuant to the
Library Services and Technology Act (LSTA), 110 Stat.
3009-295, as amended, 20 U.S.C. § 9101 et seq., the
Institute of Museum and Library Services makes grants to
state library administrative agencies to “electronically
lin[k] libraries with educational, social, or information
services,” “assis[t] libraries in accessing information
through electronic networks,” and “pa[y] costs for
libraries to acquire or share computer systems and
telecommunications technologies.” §§
9141(a)(1)(B), (C), (E). In fiscal year 2002, Congress
appropriated more than $149 million in LSTA grants. Jt. Tr.
Stip. § 185, p. 26. These programs have succeeded
greatly in bringing Internet access to public libraries: By
2000, 95% of the Nation’s libraries provided public
Internet access. J. Bertot & C. McClure, Public Libraries
and the Internet 2000: Summary Findings and Data Tables, p.
3 (Sept. 7, 2000),
http://www.nclis.gov/statsurv/2000plo.pdf (all Internet
materials as visited Mar. 25, 2003, and available in Clerk
of Court’s case file). Page 200

By connecting to the Internet, public libraries [provide
patrons with a vast amount of valuable information.] But
there is also an enormous amount of pornography on the
Internet, much of which is easily obtained. 201 F. Supp.2d
401, 419 (E.D.Pa. 2002). The accessibility of this material
has created serious problems for libraries, which have
found that patrons of all ages, including minors, regularly
search for online pornography. Id., at 406. Some patrons
also expose others to pornographic images by leaving them
displayed on Internet terminals or printed at library
printers. Id., at 423.

Upon discovering these problems, Congress became concerned
that the E-rate and LSTA programs were facilitating access
to illegal and harmful pornography. S. Rep. No. 105-226, p.
5 (1998). Congress learned that adults “us[e] library
computers to access pornography that is then exposed to
staff, passersby, and children,” and that “minors acces[s]
child and adult pornography in libraries.”[fn1]

But Congress also learned that filtering software that
blocks access to pornographic Web sites could provide a
reasonably effective way to prevent such uses of library
resources. Id., at 20-26. By 2000, before Congress enacted
CIPA, almost 17% of public libraries used such software on
at least some of their Internet terminals, and 7% had
filters on all of them. Library Research Center of U. Ill.,
Survey of Internet Access Management in Public Libraries
8, http://alexia.lis.uiuc.edu/gslis/research/internet.pdf.
A library can Page 201 set such software to block
categories of material, such as “Pornography” or
“Violence.” 201 F. Supp.2d, at 428. When a patron tries to
view a site that falls within such a category, a screen
appears indicating that the site is blocked. Id., at 429.
But a filter set to block pornography may sometimes block
other sites that present neither obscene nor pornographic
material, but that nevertheless trigger the filter. To
minimize this problem, a library can set its software to
prevent the blocking of material that falls into categories
like “Education,” “History,” and “Medical.” Id., at
428-429. A library may also add or delete specific sites
from a blocking category, id., at 429, and anyone can ask
companies that furnish filtering software to unblock
particular sites, id., at 430.

Responding to this information, Congress enacted CIPA. It
provides that a library may not receive E-rate or LSTA
assistance unless it has “a policy of Internet safety for
minors that includes the operation of a technology
protection measure . . . that protects against access” by
all persons to “visual depictions” that constitute
“obscen[ity]” or “child pornography,” and that protects
against access by minors to “visual depictions” that are
“harmful to minors.” 20 U.S.C. § 9134(f)(1)(A)(i)
and (B)(i); 47 U.S.C. § 254(h)(6)(B)(i) and (C)(i).
The statute defines a “[t]echnology protection measure” as
“a specific technology that blocks or filters Internet
access to material covered by” CIPA. § 254(h)(7)(I).
CIPA also permits the library to “disable” the filter “to
enable access for bona fide research or other lawful
purposes.” 20 U.S.C. § 9134(f)(3); 47 U.S.C.
§ 254(h)(6)(D). Under the E-rate program, disabling
is permitted “during use by an adult.” §
254(h)(6)(D). Under the LSTA program, disabling is
permitted during use by any person. 20 U.S.C. §
9134(f)(3).

Appellees are a group of libraries, library associations,
library patrons, and Web site publishers, including the
American Library Association (ALA) and the Multnomah County
Public Library in Portland, Oregon (Multnomah). They Page
202 sued the United States and the Government agencies and
officials responsible for administering the E-rate and LSTA
programs in District Court, challenging the
constitutionality of CIPA’s filtering provisions. A
three-judge District Court convened pursuant to §
1741(a) of CIPA, 114 Stat. 2763A-351, note following 20
U.S.C. § 7001.

After a trial, the District Court ruled that CIPA was
facially unconstitutional and enjoined the relevant
agencies and officials from withholding federal assistance
for failure to comply with CIPA. The District Court held
that Congress had exceeded its authority under the Spending
Clause, U.S. Const., Art. I, § 8, cl. 1, because, in
the court’s view, “any public library that complies with
CIPA’s conditions will necessarily violate the First
Amendment.” 201 F. Supp.2d, at 453. The court acknowledged
that “generally the First Amendment subjects libraries’
content-based decisions about which print materials to
acquire for their collections to only rational [basis]
review.” Id., at 462. But it distinguished libraries’
decisions to make certain Internet material inaccessible.
“The central difference,” the court stated, “is that by
providing patrons with even filtered Internet access, the
library permits patrons to receive speech on a virtually
unlimited number of topics, from a virtually unlimited
number of speakers, without attempting to restrict patrons’
access to speech that the library, in the exercise of its
professional judgment, determines to be particularly
valuable.” Ibid. Reasoning that “the provision of Internet
access within a public library . . . is for use by the
public . . . for expressive activity,” the court analyzed
such access as a “designated public forum.” Id., at 457
(citation and internal quotation marks omitted). The
District Court also likened Internet access in libraries to
“traditional public fora . . . such as sidewalks and parks”
because it “promotes First Amendment values in an analogous
manner.” Id., at 466.

Based on both of these grounds, the court held that the
filtering software contemplated by CIPA was a
content-based Page 203 restriction on access to a public
forum, and was therefore subject to strict scrutiny. Ibid.
Applying this standard, the District Court held that,
although the Government has a compelling interest “in
preventing the dissemination of obscenity, child
pornography, or, in the case of minors, material harmful to
minors,” id., at 471, the use of software filters is not
narrowly tailored to further those interests, id., at 479.
We noted probable jurisdiction, 537 U.S. 1017 (2002), and
now reverse.

Congress has wide latitude to attach conditions to the
receipt of federal assistance in order to further its
policy objectives. South Dakota v. Dole, 483 U.S. 203, 206
(1987). But Congress may not “induce” the recipient “to
engage in activities that would themselves be
unconstitutional.” Id., at 210. To determine whether
libraries would violate the First Amendment by employing
the filtering software that CIPA requires,[fn2] we must
first examine the role of libraries in our society.

Public libraries pursue the [worthy missions] of
facilitating [learning and cultural enrichment.] Appellee
ALA’s Library Bill of Rights states that libraries should
provide “[b]ooks and other . . . resources . . . for the
interest, information, and enlightenment of all people of
the community the library Page 204 serves.” 201 F.
Supp.2d, at 420 (internal quotation marks omitted). [To
fulfill their traditional missions, public [libraries must
have broad discretion to decide what material to provide to
their patrons.] Although they seek to provide a wide array
of information, their goal has never been to provide
“universal coverage.” Id., at 421. Instead, public
libraries seek to provide materials “that would be of the
greatest direct benefit or interest to the community.”
Ibid. To this end, libraries [collect only those materials
deemed to have “requisite and appropriate quality.”] Ibid.
See W. Katz, Collection Development: The Selection of
Materials for Libraries 6 (1980) (“The librarian’s
responsibility . . . is to separate out the gold from the
garbage, not to preserve everything”); F. Drury, Book
Selection xi (1930) (“[I]t is the aim of the selector to
give the public, not everything it wants, but the best that
it will read or use to advantage”); App. 636 (Rebuttal
Expert Report of Donald G. Davis, Jr.) (“A hypothetical
collection of everything that has been produced is not only
of dubious value, but actually detrimental to users trying
to find what they want to find and really need”).

We have held in two analogous contexts that the government
has broad discretion to make content-based judgments in
deciding what private speech to make available to the
public. In Arkansas Ed. Television Comm’n v. Forbes, 523
U.S. 666, 672-673 (1998), we held that public forum
principles do not generally apply to a public television
station’s editorial judgments regarding the private speech
it presents to its viewers. “[B]road rights of access for
outside speakers would be antithetical, as a general rule,
to the discretion that stations and their editorial staff
must exercise to fulfill their journalistic purpose and
statutory obligations.” Id., at 673. Recognizing a broad
right of public access “would [also] risk implicating the
courts in judgments that should be left to the exercise of
journalistic discretion.” Id., at 674. Page 205

Similarly, in National Endowment for Arts v. Finley, 524
U.S. 569 (1998), we upheld an art funding program that
required the National Endowment for the Arts (NEA) to use
content-based criteria in making funding decisions. We
explained that “[a]ny content-based considerations that may
be taken into account in the grant-making process are a
consequence of the nature of arts funding.” Id., at 585. In
particular, “[t]he very assumption of the NEA is that
grants will be awarded according to the `artistic worth of
competing applicants,’ and absolute neutrality is simply
inconceivable.” Ibid. (some internal quotation marks
omitted). We expressly declined to apply forum analysis,
reasoning that it would conflict with “NEA’s mandate . . .
to make esthetic judgments, and the inherently
content-based `excellence’ threshold for NEA support.” Id.,
at 586.

The principles underlying Forbes and Finley also apply to a
public library’s exercise of judgment in selecting the
material it provides to its patrons. Just as forum analysis
and heightened judicial scrutiny are incompatible with the
role of public television stations and the role of the NEA,
they are also incompatible with the discretion that public
libraries must have to fulfill their [traditional missions.]
Public library staffs necessarily consider content in
making collection decisions and enjoy broad discretion in
making them.

The public forum principles on which the District Court
relied, 201 F. Supp.2d, at 457-470, are out of place in the
context of this case. Internet access in public libraries
is neither a “traditional” nor a “designated” public forum.
See Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473
U.S. 788, 802 (1985) (describing types of forums). First,
this resource — which did not exist until quite
recently — has not “immemorially been held in trust
for the use of the public and, time out of mind, . . . been
used for purposes of assembly, communication of thoughts
between citizens, and discussing public questions.”
International Soc. for Krishna Consciousness, Inc. v. Lee,
505 U.S. 672, 679 (1992) (internal quotation Page 206
marks omitted). We have “rejected the view that traditional
public forum status extends beyond its historic confines.”
Forbes, supra, at 678. The doctrines surrounding
traditional public forums may not be extended to situations
where such history is lacking.

Nor does Internet access in a public library satisfy our
definition of a “designated public forum.” To create such a
forum, the government must make an affirmative choice to
open up its property for use as a public forum. Cornelius,
supra, at 802-803; Perry Ed. Assn. v. Perry Local
Educators’ Assn., 460 U.S. 37, 45 (1983). “The government
does not create a public forum by inaction or by permitting
limited discourse, but only by intentionally opening a
non-traditional forum for public discourse.” Cornelius,
supra, at 802. The District Court likened public libraries’
Internet terminals to the forum at issue in Rosenberger v.
Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995).
201 F. Supp.2d, at 465. In Rosenberger, we considered the
“Student Activity Fund” established by the University of
Virginia that subsidized all manner of student publications
except those based on religion. We held that the fund had
created a limited public forum by giving public money to
student groups who wished to publish, and therefore could
not discriminate on the basis of viewpoint.

The situation here is very different. A public library does
not acquire Internet terminals in order to create a public
forum for Web publishers to express themselves, any more
than it collects books in order to provide a public forum
for the authors of books to speak. It provides Internet
access, not to “encourage a diversity of views from private
speakers,” Rosenberger, supra, at 834, but for the same
reasons it offers other library resources: to facilitate
research, learning, and recreational pursuits by furnishing
materials of requisite and appropriate quality. See
Cornelius, supra, at 805 (noting, in upholding limits on
participation in the Combined Federal Campaign (CFC), that
“[t]he Government did not Page 207 create the CFC for
purposes of providing a forum for expressive activity”). As
Congress recognized, “[t]he Internet is simply another
method for making information available in a school or
library.” S. Rep. No. 106-141, p. 7 (1999). It is “no more
than a technological extension of the book stack.”
Ibid.[fn3]

The District Court disagreed because, whereas a library
reviews and affirmatively chooses to acquire every book in
its collection, it does not review every Web site that it
makes available. 201 F. Supp.2d, at 462-463. Based on this
distinction, the court reasoned that a public library
enjoys less discretion in deciding which Internet materials
to make Page 208 available than in making book
selections. Ibid. We do not find this distinction
constitutionally relevant. A library’s failure to make
quality-based judgments about all the material it furnishes
from the Web does not somehow taint the judgments it does
make. [A library’s need to exercise judgment in making
collection decisions depends on its traditional role in
identifying suitable and worthwhile material; it is no less
entitled to play that role when it collects material from
the Internet than when it collects material from any other
source.] Most libraries already exclude pornography from
their print collections because they deem it inappropriate
for inclusion. We do not subject these decisions to
heightened scrutiny; it would make little sense to treat
libraries’ judgments to block online pornography any
differently, when these judgments are made for just the
same reason.]

Moreover, because of the vast quantity of material on the
Internet and the rapid pace at which it changes, libraries
cannot possibly segregate, item by item, all the Internet
material that is appropriate for inclusion from all that is
not. While a library could limit its Internet collection to
just those sites it found worthwhile, it could do so only at
the cost of excluding [an enormous amount of valuable
information] that it lacks the capacity to review. Given
that tradeoff, it is entirely reasonable for public
libraries to reject that approach and instead exclude
certain categories of content, without making
individualized judgments that everything they do make
available has requisite and appropriate quality.

Like the District Court, the dissents fault the tendency of
filtering software to “overblock” — that is, to
erroneously block access to constitutionally protected
speech that falls outside the categories that software
users intend to block. See post, at 1-3 (opinion of
Stevens, J.); post, at 3-4 (opinion of Souter, J.). Due to
the software’s limitations, “[m]any erroneously blocked
[Web] pages contain content Page 209 that is completely
innocuous for both adults and minors, and that no rational
person could conclude matches the filtering companies’
category definitions, such as `pornography’ or `sex.'” 201
F. Supp.2d, at 449. [Assuming that such erroneous blocking
presents constitutional difficulties,] any such concerns
are dispelled by the ease with which patrons may have the
filtering software disabled. When a patron encounters a
blocked site, he need only ask a librarian to unblock it or
(at least in the case of adults) disable the filter. As the
District Court found, libraries have the capacity to
permanently unblock any erroneously blocked site, id., at
429, and the Solicitor General stated at oral argument that
a “library may . . . eliminate the filtering with respect
to specific sites . . . at the request of a patron.” Tr. of
Oral Arg. 4. With respect to adults, CIPA also expressly
authorizes library officials to “disable” a filter
altogether “to enable access for bona fide research or
other lawful purposes.” 20 U.S.C. § 9134(f)(3)
(disabling permitted for both adults and minors); 47 U.S.C.
§ 254(h)(6)(D) (disabling permitted for adults). The
Solicitor General confirmed that a “librarian can, in
response to a request from a patron, unblock the filtering
mechanism altogether,” Tr. of Oral Arg. 11, and further
explained that a patron would not “have to explain . . .
why he was asking a site to be unblocked or the filtering
to be disabled,” id., at 4. The District Court viewed
unblocking and disabling as inadequate because some patrons
may be too embarrassed to request them. 201 F. Supp.2d, at
411. But the Constitution does not guarantee the right to
acquire information at a public library without any risk of
embarrassment.[fn4] Page 210

Appellees urge us to affirm the District Court’s judgment
on the alternative ground that CIPA imposes an
unconstitutional condition on the receipt of federal
assistance. Under this doctrine, “the government `may not
deny a benefit to a person on a basis that infringes his
constitutionally protected . . . freedom of speech’ even if
he has no entitlement to that benefit.” Board of Comm’rs,
Wabaunsee Cty. v. Umbehr, 518 U.S. 668, 674 (1996) (quoting
Perry v. Sindermann, 408 U.S. 593, 597 (1972)). Appellees
argue that CIPA imposes an unconstitutional condition on
libraries that receive E-rate and LSTA subsidies by
requiring them, as a condition on their receipt of federal
funds, to surrender their First Amendment right to provide
the public with access to constitutionally protected
speech. The Government counters that this claim fails
because Government entities do not have First Amendment
rights. See Columbia Broadcasting System, Inc. v.
Democratic National Committee, 412 U.S. 94, Page 211 139
(1973) (Stewart, J., concurring) (“The First Amendment
protects the press from governmental interference; it
confers no analogous protection on the government”); id.,
at 139, n. 7 (“`The purpose of the First Amendment is to
protect private expression'” (quoting T. Emerson, The
System of Freedom of Expression 700 (1970))). See also
Warner Cable Communications, Inc., v. Niceville, 911 F.2d
634, 638 (CA11 1990); Student Govt. Assn. v. Board of
Trustees of the Univ. of Mass., 868 F.2d 473, 481 (CA1
1989); Estiverne v. Louisiana State Bar Assn., 863 F.2d
371, 379 (CA5 1989).

We need not decide this question because, even assuming
that appellees may assert an “unconstitutional conditions”
claim, this claim would fail on the merits. Within broad
limits, “when the Government appropriates public funds to
establish a program it is entitled to define the limits of
that program.” Rust v. Sullivan, 500 U.S. 173, 194 (1991).
In Rust, Congress had appropriated federal funding for
family planning services and forbidden the use of such
funds in programs that provided abortion counseling. Id.,
at 178. Recipients of these funds challenged this
restriction, arguing that it impermissibly conditioned the
receipt of a benefit on the relinquishment of their
constitutional right to engage in abortion counseling. Id.,
at 196. We rejected that claim, recognizing that “the
Government [was] not denying a benefit to anyone, but [was]
instead simply insisting that public funds be spent for the
purposes for which they were authorized.” Ibid.

The same is true here. The E-rate and LSTA programs were
intended to help public libraries fulfill their traditional
role of obtaining material of requisite and appropriate
quality for educational and informational purposes.[fn5]
Congress Page 212 may certainly insist that these “public
funds be spent for the purposes for which they were
authorized.” Ibid. Especially because public libraries have
traditionally excluded pornographic material from their
other collections, Congress could reasonably impose a
parallel limitation on its Internet assistance programs. As
the use of filtering software helps to carry out these
programs, it is a permissible condition under Rust.

Justice Stevens asserts the premise that “[a] federal
statute penalizing a library for failing to install
filtering software on every one of its Internet-accessible
computers would unquestionably violate [the First]
Amendment.” Post, at 8. See also post, at 12. But —
assuming again that public libraries have First Amendment
rights — CIPA does not “penalize” libraries that
choose not to install such software, or deny them the right
to provide their patrons with unfiltered Internet access.
Rather, CIPA simply reflects Congress’ decision not to
subsidize their doing so. To the extent that libraries wish
to offer unfiltered access, they are free to do so without
federal assistance. “`A refusal to fund protected activity,
without more, cannot be equated with the imposition of a
“penalty” on that activity.'” Rust, supra, at 193 (quoting
Harris v. McRae, 448 U.S. 297, 317, n. 19 (1980)). “`[A]
legislature’s decision not to subsidize the exercise of a;
fundamental; right does not infringe the right. Rust,
supra, at 193 (quoting Regan v. Taxation With
Representation of Wash., 461 U.S. 540, 549 (1983)).[fn6]
Page 213

Appellees mistakenly contend, in reliance on Legal
Services Corporation v. Velazquez, 531 U.S. 533 (2001),
that CIPA’s filtering conditions “[d]istor[t] the [u]sual
[f]unctioning of [p]ublic [l]ibraries.” Brief for Appellees
ALA et al. 40 (citing Velazquez, supra, at 543); Brief for
Appellees Multnomah et al. 47-48 (same). In Velazquez, the
Court concluded that a Government program of furnishing
legal aid to the indigent differed from the program in Rust
“[i]n th[e] vital respect” that the role of lawyers who
represent clients in welfare disputes is to advocate
against the Government, and there was thus an assumption
that counsel would be free of state control. 531 U.S., at
542-543. The Court concluded that the restriction on
advocacy in such welfare disputes would distort the usual
functioning of the legal profession and the federal and
state courts before which the lawyers appeared. Public
libraries, by contrast, have no comparable role that [pits]
them against the Government, and there is no comparable
assumption that they must be free of any conditions that
their benefactors might attach to the use of donated funds
or other assistance.[fn7] Page 214

Because public libraries’ use of Internet filtering
software does not violate their patrons’ First Amendment
rights, CIPA does not induce libraries to violate the
Constitution, and is a valid exercise of Congress’ spending
power. Nor does CIPA impose [an unconstitutional condition
on public libraries.] Therefore, the judgment of the
District Court for the Eastern District of Pennsylvania is

Reversed.