To clear up some issues, I thought it would be good to look at what the USSC said in 2003. I just skimmed the case, so this may not be 100% accurate. Regardless, it doesnÂ’t clear up many issues.
The US government and the First Amendment are most clearly implicated by the fact that the federal government subsidizes internet use in libraries. It is also generally agreed that the US government cannot use its spending power to facilitate other entities (e.g., libraries) in their restricting of constitutional liberties. After that, it gets hazy.
Four justices (Rehnquist, Scalia, Thomas, OÂ’Connor) said that libraries can decide what they want to keep in the library and suggest (but donÂ’t go quite so far as to state unabashedly) that libraries just have to be rational in their selection of library materials. Libraries and the internet they provide do not rise to the level of a public forum (like a park) so there is no special First Amendment protection.
Kennedy doesnÂ’t want to get into any serious constitutional issues. For him, it is enough that libraries can unblock internet sites quickly at the behest of patrons, so even if there is a First Amendment issue (which he declines to decide), no First Amendment protection is denied in this case.
Breyer says the libraries are bound by the heightened restrictions of the 1st Amendment, but here the ability to unblock materials is adequate, no 1st Amendment violation.
Stevens, Ginsberg and Souter donÂ’t think the government can condition giving money on the basis of a library limiting the 1st Amendment.
Anyway, there we have it.
Are libraries on their own allowed to restrict view-point materials and face no 1st Amendment constraints? It isnÂ’t clear. 4 say yes. 1 says nothing. 1 says not really. 3 say probably not.
Can the government use its spending power to compel libraries to block certain materials without 1st amendment concern? It isnÂ’t clear. 4 say yes. 1 says nothing. 4 say no.
Can libraries use filtering technology even if it captures perfectly innocuous information? 4 say yes. 2 say yes, provided the filters can be turned off when asked. 3 say no.
Anway, I am sure that my skimming overlooked important issues, but this is what the case seems to say to me.
http://www.cdt.org/speech/cipa/030623decision.pdf