[DISCLAIMER: (Skip Auld) I identified the Justices from handwritten notes I made during the oral arguments. I knew exactly which Justice was speaking at any given time. However, the one-hour debate was fast and furious and my ability to keep up was limited. Therefore, some of the identifications of Justices below may be inaccurate.]
The official version is available at: http://supremecourtus.gov/oral_arguments/argument_transcripts/02-361.pdf , and was provided as a permanent archive by the Courtís contract reporter, Alderson Reporting Company 1111 14th Street, N. W. Suite 400 1-800-FOR-DEPO Washington, DC 20005.
Pages 1--59 from 02-361. United States v. American Library Assn., Inc. (03/05/03)
IN THE SUPREME COURT OF THE UNITED STATES
UNITED STATES, ET AL. , :
AMERICAN LIBRARY ASSOCIATION, :
INC. , ET AL. :
Washington, D. C.
Wednesday, March 5, 2003
The above-entitled matter came on for oral argument before the Supreme Court of the United States at
10: 25 a. m.
THEODORE B. OLSON, ESQ. , Solicitor General, Department of
Justice, Washington, D. C. ; on behalf of the
PAUL M. SMITH, ESQ. , Washington, D. C. , on behalf of the
C O N T E N T S
ORAL ARGUMENT OF THEODORE B. OLSON, ESQ.
On behalf of the Petitioners 3
PAUL M. SMITH, ESQ.
On behalf of the Respondents 25
REBUTTAL ARGUMENT OF
THEODORE B. OLSON, ESQ.
On behalf of the Petitioners 56
P R O C E E D I N G S ( 10: 25 a. m. )
CHIEF JUSTICE REHNQUIST: We'll hear argument first this morning in No. 02-361, the United States v. the American Library Association. General Olson.
ORAL ARGUMENT OF THEODORE B. OLSON ON BEHALF OF THE PETITIONERS
MR. OLSON: Mr. Chief Justice, and may it please
When libraries block Internet pornography from their computer terminals, they are simply declining to put onto their computer screens the same content they have traditionally excluded from their bookshelves. By offering Internet access without pornography, freedom of speech is expanded, not abridged. Under the Children's Internet Protection Act, or CIPA, no Internet speech is prohibited, inhibited, threatened, or chilled. Libraries are simply exercising their discretion as to the content that their libraries will contain, the historic discretion to exercise that --that authority, and to how their library resources will be used.
QUESTION (Souter): Mr. Olson, you have a number of important legal concepts to address. I have three factual questions. I've been through the extensive opinion of the
district court, and --and they may be important for me. Three different things. When the library patron requests that the filter be disabled, does he have to explain why he wants it disabled?
MR. OLSON: No. Shall I wait until you've asked --
QUESTION (Souter): Go ahead.
MR. OLSON: It's my understanding that the -- the library patron would not have to explain any reason why he was asking a site to be unblocked or the filtering to be disabled.
QUESTION (Souter): That's the next question. Do you ask site by site or can I --can the library patron say, unblock the whole thing?
MR. OLSON: The library patron, if the patron is an adult, can ask the --the entire filtering to be disabled, and the library may disable --I mean, eliminate the filtering with respect to specific sites either on their own or at the request of a patron.
QUESTION (Souter): All right. And third, the district court said in some cases it takes 24 hours to a week. Is that the usual thing or does --in many cases can the librarian just push a button?
MR. OLSON: I think that it is --it is --the record is not clear on that, and I --but my --my experience and my judgment in connection with our preparation is that it need not be a very difficult thing. It's something that libraries can do without a great deal of difficulty. But to the extent that it took any time at all, it would be the same as asking for a book that is not on the shelf or asking for an inter-library loan, the kind of customary things that library patrons do when they ask for a book or a resource in a library.
QUESTION (Souter): Is --is there anything in the statute that would prohibit a library from doing the following? Any adult who wants to watch the thing without the screen, come up and ask, do you want to do it, and you --we can tell you, don't watch these obscene child pornography, et cetera. Then we disconnect it. Does the statute prohibit the library from doing that?
MR. OLSON: If I understand your question correctly, I --I know of nothing in the statute that would prohibit the library from doing that, provided that the --the person asks and the patron asking is an adult. The First Amendment does not require libraries to sponsor the viewing of pornography. When Government gives financial aid to speech on Government premises, it may make rational choices as to what not to finance.
Those --that --that doctrine is consistent with this Court's previous decisions. In connection with this particular content, Congress and this Court have found that Government has --the Government has a compelling interest in preventing the dissemination of obscenity, child pornography, and in the case of minors, material that is harmful to children. Such material has been traditionally excluded from public libraries, and Government has a basic, fundamental right in addition not to associate with or finance pornography.
QUESTION (Souter): Isn't part of the problem that a lot more is being excluded? I mean, as I understand it, the statute requires that a --a filter of some sort be used. Filters are not sold --the blocking devices are not sold or prepared apparently in terms of the concepts that the statute uses. The companies that do prepare them will not even disclose what in fact they are blocking so that it seems that an inevitable price of this is blocking more than --than the statute requires, and that's even without getting into the question of blocking material for adults as --as opposed --that --that might be unsuitable for children, but certainly aren't for adults. How do you --how do you get over the problem of the --sort of the --the imprecision, the crudity, the overkill of the blocking devices?
MR. OLSON: Justice Souter, that is --that is true that any system is going to involve some over- blocking and under-blocking because it's impossible to know what is going to be coming over the Internet or impossible to make systems that are perfect. But that's consistent with what --the historical decisions that libraries have made.
QUESTION (Souter): But there's one thing that is clearly inconsistent I think, and that is when the libraries make --historically have made these decisions, they've known what they weren't buying or weren't stocking on their shelves, and here they don't --
MR. OLSON: Well --
QUESTION (Souter): --because they --the blocking makers regard that as proprietary information.
MR. OLSON: It's --there's several answers to that it seems to me. In the first place, libraries have known that they have not stocked pornography, and it's not because of space, popularity, or expense. They have chosen traditionally not to stock that type of material. Every time a library decides not to subscribe to a magazine, it is over-blocking in a sense. A magazine may have three pornographic pictures in it or sexually explicit pictures in --
QUESTION (Souter): But it --but it does know what the
magazine is, and here it does not know what the website is.
MR. OLSON: It knows what the magazine has been. It may not know what the magazine is in the future. Furthermore, librarians don't read every book.
QUESTION (Souter): No, but it --you know, it knows it's Playboy or whatever the magazine is, and here it doesn't know what the website is that's being excluded.
MR. OLSON: Yes, but it can --it can test this --what we're saying here with respect to that is over- blocking or under-blocking is a necessary part of the library function of making appropriateness judgments with respect to content generally. That's the type of distinction --
QUESTION (Kennedy): Well, I --I have a problem with -- with that. It --it seems to me a large part of your argument is you want us to think of this just in the same context of the librarian going through a list of books and deciding what books to buy. But the Internet isn't like that. What is it? There's a --1.5 million new entries into the system every day? This is a whole new medium. It's not like a library.
MR. OLSON: Yes. And, Justice Kennedy, it seems to --it seems to the Government and it seemed --it seemed to Congress that gross judgments are going to have
to be made. These libraries, as the record reflects and the findings of the district court reveal, traditionally or --or customarily block e-mail, chat, gambling, gaming, dating services, and some of them, as reflected --I think it's on page 37, 38 of the appendix to the jurisdictional statement --make --make judgments with respect to what's appropriate, what's offensive. Those types of judgments are being made. Yes, this is a new medium and it's --
QUESTION (Rehnquist): Well, but General Olson, there are supposed to be 90,000 books a year published in the United States. Do you think librarians know the contents or even know of the existence of all of those 90,000 books?
MR. OLSON: No, that --Mr. Chief Justice, that's our point. This is a difference in quantity, but it is not a difference generically from what libraries traditionally have done.
QUESTION (Souter): But when the library makes a book decision, doesn't it make a decision that says, we will not put God's Little Acre on our shelves? It's a yes or no decision with respect to the book. It's quite true there are lots of books out there that the library not -- may not know about, but when it makes a decision not to put it on the shelf, it knows what it's deciding not to do, and here it doesn't.
MR. OLSON: Well, in a specific situation, a library might know that. A library might decide that it would just stock history books or just stock --stock novels of a particular period. There's nothing to suggest that libraries don't have the right to make those decisions and customarily make those decisions.
QUESTION (Souter): Sure, but somebody along the line knows what they've decided to buy within the category and what they haven't decided to buy.
MR. OLSON: Well, that's right, but the traditional decisions that libraries have made --and the appellees do not dispute this --is that libraries have not chosen to stock the types of material on their shelves that they're now being asked to keep out with respect to the Internet. This is a similar decision with a different medium.
QUESTION (Souter): No, but that's --that's true. But I think the thing that --one of the things that's troubling us is they're --they're --they are --they are forced, by virtue of that decision, not to stock a lot of other material, and they don't even know what it is and there's no way for them to find out.
MR. OLSON: But, Justice Souter, they --they may on their own --there's a --there's --one of the materials that's in the record is someone that made a
study of several hundred thousand sites and decided which ones were properly blocked or improperly blocked. Those types of studies may be used to unblock sites, to modify the filtering system. Libraries could get together and create their own filtering system rather than the ones that are --
QUESTION (Ginsberg): Could the library in --General Olson, in view of what you answered earlier, you said any patron could say, I want to unblock everything. Could the library say, well, we want our staff to have access to everything? Therefore, we are going to unblock everything for the computers that we use internally. I thought the answer to that question was no, but it seems inconsistent with the answer that you gave. A patron says, I want to see everything. Fine.
MR. OLSON: Well, I --I believe that the answer is that, A, the librarian can, in response to a request from a patron, unblock the filtering mechanism altogether. And secondly, I think it's not entirely --it's not --the statute doesn't get into it, but it --but it seems entirely consistent with what I've just said, and I think consistent with the import of your question is that the library staff can disable the filter in order to make judgments about whether something has been, quote, properly or improperly blocked.
QUESTION (Ginsberg): Because one of the things that was criticized about this statute was that every terminal, even the ones in the librarian's own office, closed office, has to have this filtering. But your answer is, no, they don't. You --you make it sound like it's really the library's option. If they want to put everything on, they can.
MR. OLSON: I --I was answering your question with respect to what the staff may review in making the administrative decisions with respect to unblocking or other decisions with respect to the implementation of the statute. The statute speaks in terms of having in place this technological mechanism by which this material can be filtered out or is designed and calculated to do that. It doesn't --the statute does not require perfection. It doesn't require librarians to act in --
QUESTION (Ginsberg): General Olson, if I understand the situation correctly, the libraries are wasting a lot of money litigating. They could simply hire somebody to come into the library every day and say, please unblock everything, and then they could do it.
MR. OLSON: With respect to that patron. I mean, the --the --if my answer suggested that the library could just switch off the filter on a daily basis, I didn't mean to say anything remotely like that.
QUESTION (Ginsberg): Oh, okay.
MR. OLSON: It --this --particular patrons may say, I'm investigating breast cancer. This --the sites --some of the sites that I'm looking for I can't find, and they appear to be on block. Can those sites --or I've heard about these sites --be unblocked?
QUESTION (Scalia): Or --or he can say, according to you, what do you care what I'm investigating? I just want the site unblocked. Isn't that right?
MR. OLSON: That's --that's correct. Yes, that's correct.
QUESTION (Scalia): I wonder how --how effective that -- that system is in --in achieving some of the goals of the statute which --which is not just that --that some people using the --the Net happen to stumble across pornographic stuff but also, passing by, see it, and -- and including children.
MR. OLSON: That --that may happen, Justice Scalia. The system is not perfect. It is not going to be perfect. But what it does, it's a reasonable, rational articulation by Congress of an attempt to decide --
QUESTION (Kennedy): Why couldn't the --why couldn't the children be protected by having two screens? One screen for the kids; the other for the adults. One is blocked; the other isn't.
MR. OLSON: Well, I think that is --again, is a practical judgment that may work in some libraries. It might require a great deal more resources from librarians. It might require establishing different screens and mechanisms. Yes, there are ways in which Congress could have done this differently, but this is a rational judgment, consistent with --
QUESTION (Souter): May I go back to Justice Ginsburg's question with respect to the library staff on the unblocking? I --I think her original question was, could the library say, we want our staff to have free access on the computers that they use, not that we want them to be able to look behind the block to see what's being kept out. We just want them to have a free computer. Is --is that a violation of the statute? I had thought it was --
MR. OLSON: I think that the --my answer to your question, if I understand it correctly, is that the computers in the library, if the library uses the --the Federal funds with either respect to the discounts or the subsidies, direct subsidies, all the computers in that library must be equipped with the technology protection measure with respect to each of those computers.
QUESTION (Souter): And that would include the staff computers.
MR. OLSON: Yes. But that does not preclude the
staff from determining, in connection with specific requests --
QUESTION (Souter): Yes, but that's not the question. The question is can the library say, this is ridiculous blocking this stuff for our staff. We're not going to block them. The staff computers are either going to have no blocks or every morning we will press the button that unblocks the staff computers.
MR. OLSON: Well --
QUESTION (Souter): That would violate the statute, wouldn't it?
MR. OLSON: Well, one could --you're in an area, it seems to me, that --where there might be an as- applied challenge. We're talking about a facial challenge to the constitutionality of the statute.
QUESTION (Souter): And we want to know the extent of the statutory prohibition.
MR. OLSON: I --I understand that. I --and the --your --the import of your question suggests that in this situation a librarian might exercise this discretion with respect to a filter. I don't think in the first place --
QUESTION (Souter): All I want to know is whether they can do it without violating the statute.
MR. OLSON: My answer to your question is that
to the extent that librarians are disabling the filter for the performance of their administrative function --
QUESTION (Souter): That's not my question. The library simply says, we want our staff to have free computers.
MR. OLSON: I don't think so, Justice Souter.
QUESTION (Souter): That would violate it.
MR. OLSON: That's right. But remember, this is in the context of --of material that's been traditionally excluded by libraries, that libraries are free to put on their shelves in the form of books anytime they want. It --the --the position of the district court and the position of the appellees is that the libraries, by doing this, violate the First Amendment right of their patrons. I don't think that would be an issue in that context, and we're suggesting that the patrons have a right to Internet access anywhere they want outside the federally subsidized library. And the library has several choices it may make here. The library might not have Internet. Maybe it's not appropriate for that particular library. The library may have Internet with the filtering and accept Federal money with respect to putting in the computers. Or the library --
QUESTION (Souter): Could the library do this? Could the library say, okay, we're --we're certainly going to
comply with the statute for the library, but we are going to --we are going to establish --or the city says, we will establish a separate office? It's called the --the computer viewing office. It has a separate budget from the library. It's in a separate building. It has a separate staff. Administratively it's different. And with respect to the computers in --in that establishment, we're not going to ask for any Federal subsidies and the computers are going to be wide open. Any reason they couldn't do it?
MR. OLSON: I --I think they could. They could either have a separate branch where separate Federal funds are not being obtained, or you're talking about a separate administrative ability --
QUESTION (Souter): Yes.
MR. OLSON: --facility. I don't --I don't believe that the statute would prohibit that set of operations.
QUESTION (Stevens): Yes, but it would apply if they had, say, ten computers and nine of them were financed by the Federal subsidy and one of them was independently financed. That one would be covered by the statute.
MR. OLSON: Yes, it would, Justice Stevens, although --
QUESTION (Stevens): And if you rely on the --on the
Spending Clause to justify this restriction, how do you -- how does that justification apply to that tenth computer?
MR. OLSON: Because it's a reasonable condition to the operation of the funds. In the first place, Justice Stevens, in --the Internet is going to come through one opening, and the --the various different computers will be plugged up to that one opening so that the --the technological answer in part to your question is it's --the --the library would have to decide --
QUESTION (Stevens): Well, you --you could have it on a separate phone line, it seems to me.
MR. OLSON: Yes, the library could do that sort of thing, but it would --
QUESTION (Stevens): The statute would still apply.
MR. OLSON: Yes, it would. Yes, it would.
QUESTION (Stevens): And how do you justify that under the Spending Clause?
MR. OLSON: We believe that it's a reasonable condition that Congress reasonably --the patrons may not be able to distinguish where the --
QUESTION (Stevens): Well, wouldn't it be equally unreasonable if we said it applies to separate facilities too? I don't know why --I don't understand the distinction between a branch library that has one computer in it and a big central library with 10 computers, one of
which is separately financed.
MR. OLSON: Well, again, as we said in our briefs, that to the extent that that is an issue, it should be made --that point should be made in a --in an as-applied challenge to the statute, as opposed to a challenge on the face. We don't think it's technologically going to be a problem and we do think that Congress can reasonably have assumed we're using Federal money to finance Internet in this library. Patrons are going to be exposed. If you're going to take the money, we would like patrons not to be exposed in this manner to that material, and the Congress could well have decided that it --the taxpayers don't want to be associated with a subsidy of that types of material --that type of material which has traditionally been excluded from the libraries in any event.
QUESTION (Scalia): Well, you're saying not only that they --that they don't want to be associated with the subsidizing of it, but they --you're saying they don't want to subsidize an operation which includes some non-subsidized material of this sort. Don't you have to say that in --
MR. OLSON: I --well, I think that that would be a reasonable choice for Congress to make.
QUESTION (Scalia): You say they've made it.
MR. OLSON: Well, with respect to all of the computers in the library in --in that narrow context, yes, but I do think that that's the --we're getting down to the refinements of particular applications and those types of challenges have not yet been made.
QUESTION (Ginsberg): General Olson, the words of the statute itself, though --there is some ambiguity. It's --with regard to disabling the filter, the words are for bona fide research or other lawful use. And am I right in thinking that your prior answer meant other lawful use means anything? So, in effect, for an adult anything but obscenity would be a lawful use.
MR. OLSON: I believe that that's --that's -- well, child pornography would also be excluded. Both obscenity and child pornography --
QUESTION (Ginsberg): Yes.
MR. OLSON: --there are Federal criminal statutes with respect to both of those. And --and again, this is a reasonable effort by the library --by the Congress to make rational decisions with respect to allowing for some escape for people who are doing research or for other appropriate purposes.
QUESTION (Ginsberg): Yes, but --but how would that authorize the unblocking entirely which would let in not just the material that's useful for research, but also
obscenity, also child pornography? How is that allowing a --a lawful use? That's allowing an unlawful use, isn't it?
MR. OLSON: Well, I --I agree with that, but --
QUESTION (Scalia): So if you agree with it, it means that --that --
MR. OLSON: If --if --excuse me, Justice Scalia.
QUESTION (Scalia): No. I think if you agree with it, it --it means that you can't unblock a whole channel. You can say, I'll let you have this material, but I can't unblock this channel.
MR. OLSON: The --the --
QUESTION (Scalia): God knows what else there is out there.
MR. OLSON: The statute put it in terms of bona fide research or other lawful purposes. That --there's bound to be some interpretive --given the joints there. And again, to the extent that that would trigger a funding decision with respect to the enforcement authority or something, that's appropriately raised in an as-applied challenge. I think it's important to stress the converse of what the appellees are asking for here. They're asking this Court to make a judgment that the First Amendment
prohibits them from exercising the discretion to make that kind of choice with respect to the Internet that they've always made or traditionally made with respect to the books on their shelf. The consequence of that, it seems to me, would be strict scrutiny applicable to librarians' judgments with respect to not just the Internet, but microfilm, television, other medium that might --other media that might come into the library, and that librarians, instead of spending money on books, are going to be spending money on lawyers defending cases brought by authors saying, you --you violated my First Amendment right not to have strict scrutiny, and that instead of librarians making these --
QUESTION (Stevens): But, General Olson, Justice White wrote a number of opinions in the First Amendment area where he started out saying, this is a case about billboards, or this is a case about something else. I would think this is a case about the Internet. It's not a case about books.
MR. OLSON: Well, it might be if the decision was written that way, Justice Stevens, but if --if the appellees are right, the types of decisions that librarians have been making, appropriateness is --is the word, quality, appropriateness, and appropriate decisions
--it's --it's in the record. Those types of decisions the librarians are saying --asking this Court to say are subject to strict scrutiny and violate the Constitution. This Court would have to make a First Amendment distinction between the selection of a book and the selection of another source of information.
QUESTION (Souter): But isn't there a practical distinction that's got to be taken into consideration in your argument? And that is, not every library can have every book. Something has got to be excluded. So we start with the assumption that the librarians have got to make these judgments. We don't start with that assumption in the case of the Internet at all. And the question in the case of the Internet is the different one. Can you require them to exclude certain materials that it would be illegal for them to have as --as an abstract matter? Sure, I suppose. But the --the tough question is, can you require them necessarily to exclude a great deal more about which they make no decision whatsoever and which would be perfectly legal for them to have?
MR. OLSON: Justice Scalia --I mean, Justice Souter --
QUESTION (Souter): You do me a great honor. But I -- ( Laughter. )
QUESTION (Souter): I am Souter.
MR. OLSON: I think I was expecting the next question. ( Laughter. )
QUESTION (Scalia): I wasn't even leaning forward.
MR. OLSON: Nothing is being -- ( Laughter. )
MR. OLSON: Nothing is being required of the library. The library, if it chooses --
QUESTION (?): If --if they want them. But you're --but you're right, sure.
MR. OLSON: If it wants to. But the case comes to this Court in the posture that the district court has held and the appellees are arguing that for the library voluntarily to make that choice on their own, irrespective of any Federal Government subsidy or anything, would violate the First Amendment rights of their patrons.
QUESTION (O'Connor): General Olson, what does the record disclose is the percentage of lawful material that is excluded under these software programs as opposed to material that is unlawful for the library to --
MR. OLSON: Well, the --the testimony was varied, Justice O'Connor. One of the --one of the findings of the district court was that tens of thousands
of pages of material may be erroneously blocked. Now, the problem with that is that different filters might block different things. Sites may be unblocked. The filter may be set aside. But even if it's tens of thousands of the --of the 2 billion pages of material that is on the Internet, we're talking about one two-hundredths of 1 percent, even if it's 100,000, of materials would be blocked. If it --if it please the Court, I would like to reserve the remainder of my time.
QUESTION (Rehnquist): Very well, General Olson. Mr. Smith, we'll hear from you.
ORAL ARGUMENT OF PAUL M. SMITH ON BEHALF OF THE RESPONDENTS
MR. SMITH: Mr. Chief Justice, and may it please
The Children's Internet Protection Act is unconstitutional for two separate reasons. First, the act does require libraries accepting Federal funds to engage in conduct that is itself at least presumptively unconstitutional. Strict scrutiny does apply, we say, because the --
QUESTION (?): What --what cases are you relying on to say that the libraries would be required to engage in --in conduct that is presumptively unconstitutional?
MR. SMITH: This Court's whole series of cases involving the public forum doctrine, Your Honor, which I noticed was --was not really mentioned by my colleague, Mr. Olson. The Internet, when it comes into the library, is --all of the information available on the Internet, as diverse as human thought --immediately available to the patron. It is the most pure form of public forum that you can possibly imagine.
QUESTION (Scalia): Yes, but it begs the question. The --the point is that the Government is saying, if you want to get our money, you don't let it all come in. So it is not --it is not a public forum once --once the --once the blocking is applied.
MR. SMITH: Well, Your Honor, the whole question about whether the library could do it this way depends on how you view the public forum doctrine. And the --what the Court has said again and again is in deciding whether something is or is not a public forum, you look at whether the access is selective or general. That --that's what the terminology was in the Court's case --
QUESTION (Rehnquist): You're not relying, at any rate, on cases dealing with libraries as such.
MR. SMITH: No. No, Your Honor.
QUESTION (Rehnquist): You're relying on a more general --
MR. SMITH: Applying the Court's general holdings in --in a whole series of cases to try to decide whether this is a public forum, a designated public forum, created --
QUESTION (Rehnquist): You conclude that --you conclude that a library is a designated public forum.
MR. SMITH: The Internet terminals in the library are a designated public forum, Your Honor.
QUESTION (Rehnquist): Not the whole library?
MR. SMITH: Certainly not. We do not say that strict scrutiny applies to the decisions that the library makes about which book to buy because when the library buys books, it chooses books one by one. It engages in selective access as opposed to general access. With the Internet, on the other hand, the entire world of --of content that is on the Internet is there available to the patrons. It has not been selected --
QUESTION (Scalia): Not --
MR. SMITH: --by the library in any way.
QUESTION (Scalia): Not necessarily. I mean, a library says --and some have --some did this before --before the Federal statute was in effect. A library says, there's this whole wide world of the Internet out there, but we don't want all of it. Some of it is garbage, and therefore we're going to block the obscenity. We're going
to block the child pornography, and we're going to block the --the pornography that's harmful to children. Now, once they've made that decision, hey, presto, it is not a public forum anymore.
MR. SMITH: That --that --with respect, Justice Scalia, the way the public forum doctrine works in our judgment --and we're basing this as --as close as we can on this Court's cases --is that the one thing that Government can't do is allow all content under the sun, not even knowing what content is there, and then exclude, cull out one area of disfavored content. If --if you say that that exclusion, that --that pointing at that one particular area of content and excluding it, is the same as not making it a public forum, then --then the public forum doctrine no longer has any meaning.
QUESTION (Breyer): Is it also a public forum if it's a public school library?
MR. SMITH: The --the case of a public school library is a --is a more difficult case.
QUESTION (Breyer): I just want a yes or no answer. On your theory is it or is it not a public forum if it's in a public school library?
MR. SMITH: I think, Your Honor, I can't give you a yes or no answer.
QUESTION (Breyer): Well, I need a yes or no. You either
do think it is or you don't think it is.
MR. SMITH: I would have to know how the policies are of the school --
QUESTION (Breyer): No, no. Exactly everything is the same. I just want to know on your theory of the public forum doctrine is the 10th grade library or in an elementary school or a high school --they have --they do exactly what the libraries do here. Is it a public forum?
MR. SMITH: Then I --then I do say it's a public forum, Your Honor. If they allow students --
QUESTION (Breyer): All right. So on your theory of the case --
MR. SMITH: Yes.
QUESTION (Breyer): --then if it is a public forum, the elementary school, Addison Hill Elementary School, has to let the worst possible pornography go over the computers that come into the public school library.
MR. SMITH: Certainly not, Your Honor.
QUESTION (Breyer): Because?
MR. SMITH: Certainly not.
QUESTION (Breyer): That's what I want my answer to --
MR. SMITH: First of all, all that holding that it's a public forum does is --is give you the level of scrutiny that applies to the rule. Then you have to look at the rule, apply the usual standards of narrow
tailoring, less restrictive alternatives, compelling interests --
QUESTION (Breyer): No. We make all those same arguments that you've just made and say, look, there would be all these other alternatives and all --all the --I'm --I'm just --I'm not putting a --I'm putting a difficult -- what to me is --is a difficult problem with your doctrine. And I --I want to see how it works here.
MR. SMITH: But I think the Constitution analysis may well come out differently with respect to young children, Your Honor.
QUESTION (Breyer): Well, but I --I need to know fairly specifically because I don't want if there --if --to me frankly if --if your theory of it means that every public school has to have a computer attachment which bring this material into the school, I suppose a lot of schools wouldn't have computers at all in their libraries. And -- and that is worrying me. So I'd appreciate --
MR. SMITH: Well --
QUESTION (Breyer): --a fairly definite answer on this.
MR. SMITH: Your Honor, I think that --that, first of all, classrooms are different from libraries even in the school context because a school classroom -- library --a computer is obviously not used for independent research. If the --in the library situation
in the school, you would have different age groups. You'd have different considerations. You'd have different policies. There's a lot of different things that could be distinguished from this case. And I think it --it's important --
QUESTION (Breyer): So your answer is that in your opinion now you think it probably would be constitutional as applied to school libraries but not as to public libraries?
MR. SMITH: It --it may well be, Your Honor, depending on the age group, depending on the circumstances, depending on the way the --the library is used by the students.
QUESTION (O'Connor): Mr. Smith, why shouldn't we be conscious of the holding of this Court in Denver Area v. the FCC where the Court concluded it might be premature to apply forum analysis due to changes taking place in the law, the technology, and the industrial structure related to telecommunications? I mean, this too seems to me an area for caution, is it not, in importing wholesale public forum analysis in the library?
MR. SMITH: Well, Your Honor --
QUESTION (O'Connor): I would think Denver Area would have some bearing on that.
MR. SMITH: Denver Area has a substantial
bearing and I think it's one of the strongest cases supporting our position. It is true that the Court did not go --it --the --the plurality opinion in --in the case did not go so far as to say we're going to apply a public forum analysis and strict scrutiny, but --but Justice Breyer's opinion went much --very close to that and said we're going to apply very heightened scrutiny. We're going to look very carefully at this. And this was a law that is in many ways closely analogous to what's going on here. It was a law that said, we have a public access station. Anybody from the outside world can come in and put whatever programming they want on that station, but we're going to exclude indecency, just that one area of content, because we don't think that belongs in the home.
QUESTION (Breyer): But the --the other part --assuming it's some kind of stricter than just reasonable, however that is brought about, the --I'm very much concerned also about something Justice Kennedy raised. If all that this statute means is that a person who wants access to the 10,000 deep --whatever it's called --what's the --some special word. It's --it's deeply like Star Wars almost. It's some kind of like an extra galaxy that's very hard to get to. All right. These 10,000 pages which now were
blocked --what he has to do --that person --is he goes to the desk and says, please unblock it. I want to use -- I want to do research and this is blocking things that I want. I'm not going to look at material that is absolutely unlawful, such as this very obscene material, child pornography. And then the library is free --will say, fine.
MR. SMITH: Well, Your Honor --
QUESTION (Breyer): Now, if all that's necessary, you have to go to the desk, what is the great burden on speech? After all, I grew up in a world where they used to keep certain materials in a special place in the library and you had to go and ask for them. So?
MR. SMITH: Well, Your Honor, the --the way the disabling provision is set up, first of all, is it's designed to give the library some job to determine whether your purpose is bona fide or not. It says bona fide research or other lawful purpose. So the first problem is you go to the librarian's supervisor who has the authority under the statute to turn off the filter and you have to explain to them what your purpose is to look at the --
QUESTION (Breyer): General Olson said no, you don't have to explain.
MR. SMITH: Well, the --the statute on the face of it says the library is required to inquire into your
purpose and make a decision about whether it is a bona fide research purpose or other lawful purpose for looking at the material which has been filtered out by the --by the filter. So you have a discretion problem of severe proportions, I submit. Plus, you have a stigma problem, very much like the one --
QUESTION (Breyer?): But not if you read other lawful purpose to mean everything except the specific categories, child pornography, obscenity.
MR. SMITH: They will presumably have to have some information about what sites you're interested in looking at in order to determine whether that would be lawful or not. So they will then have to inquire into, well, what's --what is it you need to get that's being blocked? Why are you looking at it? Is it lawful?
QUESTION (Breyer): It doesn't say that in the statute. All it says in the statute is that the administrator may disable a technology protection to enable access for a lawful purpose. So why couldn't you just sign a piece of paper saying I do not want to use this for an unlawful purpose? Period. End of the matter. What in the statute prevents the library from accepting that?
MR. SMITH: Well, clearly the library is responsible for determining whether or not you fall within
the exception. Even if --even if they're empowered under the statute --and I think this is unclear --just to accept your representation without any further explanation, you still have the problem that you're going up to the --to the librarian and saying please turn off the smut filter. I need to get access to some material. So that --that you're being required to do that. There's a stigma problem very much like --
QUESTION (Rehnquist?): Is there any other problem?
MR. SMITH: There's a third problem, which is you have --a lot of times this will only come up in the middle of your research session. You won't know that you're going to be blocked getting access to the Republican National Committee site or to the site for some orphanage that is trying to raise money. There's --since the --many of the blocks are so irrational, you can't anticipate it. So you'll have to stop your session and go talk to a librarian about getting this thing turned off or getting this site unblocked. Somebody will then have to look at the site --
QUESTION (O'Connor): But in a library, when you're looking for a book, it might not be there, and you might have to go to the librarian and order it or borrow it from another institution. I don't think that's atypical of what happens in research.
MR. SMITH: But certainly, Your Honor. But -- but our submission is that you shouldn't just willy-nilly compare the Internet in the public library to books and how they're handled by libraries because the Internet is a public forum. It is all of this content that has not been pre-screened or pre-selected by the Government which they are making available to you --
QUESTION (O'Connor): But in this context, perhaps we should not import public forum analysis. It creates lots of problems --
MR. SMITH: Well, perhaps --
QUESTION (O'Connor): --for instance, in public schools, as has already been discussed. So it's --and there is no case from this Court saying that having an Internet in a library creates a public forum. That's what we're here to decide I think.
MR. SMITH: Indeed, Your Honor. And --and the Court has repeatedly cautioned that when you're making a decision about whether something is a public forum, you have to look at the particular medium of communication that is at issue, not the broader context. So, for example, when the Court in Cornelius was looking at the Combined Federal Campaign and trying to decide whether that was a public forum, the Government said, well, it's the Federal work force. The Federal work
force is not a public forum. But the Court said, no, we have to look and see what kinds of people have been given access to the Combined Federal Campaign and allowed to solicit funding from the Federal --the Federal workers and has it been done on a selective basis or a general basis. Because it was selective, the Court ultimately determined that it's not a public forum. It may well be that --
QUESTION (O'Connor?): Well, if you say that the world we look at is the people using these programs under the Federal law requirements in libraries, then it isn't a public forum.
MR. SMITH: Well, Your Honor, if you allow the Government to define its forum as all content under sun -- under the sun ever invented by mankind except the piece that they don't like, then I submit that --that will be the end of the public forum doctrine because there will never be any situation in which the Government will be constrained in any way to censor out a particular piece of content that it --from the public forum.
QUESTION (Rehnquist): Designated public forum doctrine.
MR. SMITH: Yes, Your Honor.
QUESTION (Rehnquist): Traditional public forums will always be public forums.
MR. SMITH: Right, but I'm --we're here in the
context of designated public forums. And if you allow content --
QUESTION (Rehnquist): I've always had trouble with that doctrine anyway.
MR. SMITH: If --if you allow the content -- ( Laughter. )
MR. SMITH: --to be defined as everything but, that's okay. Then there --there is no doctrine.
QUESTION (Rehnquist?): So --so a --a library that chooses not to get the Internet at all is not a public forum. It's only when it gets Internet terminals that it becomes a public forum?
MR. SMITH: Well, and it --and then it has to make another decision. Is it going to just turn the Internet on or is it going to do what it could do, which is to say we are going to treat websites like we treat books. We're going to look at them one by one and decide whether they should be available, whether they meet our collection development policies.
QUESTION (Rehnquist?): But I thought --you said there are two reasons why you should prevail, and we're still on the first.
MR. SMITH: I appreciate that, Your Honor. ( Laughter. )
QUESTION (Rehnquist?): But --but you --you said at the --
at the outset that it would be --as I understood it, that it would be unconstitutional for you to do this on your own initiative. And now you're saying that you could?
MR. SMITH: No, no, no. It would be --it would trigger strict scrutiny for a library to do exactly what the statute requires. That's our submission, which is to say if they allow the whole Internet in except this one piece of content under the public forum doctrine --or perhaps the Court wants to apply the kind of public forum doctrine light of the whole question of whether --
QUESTION (Kennedy): I just want to be --I just want to be clear. Suppose this is a general public library.
MR. SMITH: Yes, sir.
QUESTION (Kennedy): Could it voluntarily do exactly what the statute tells it it must do?
MR. SMITH: Our position is that that would trigger strict scrutiny that they would then have to satisfy and --
QUESTION (Kennedy): Well, and how would the strict scrutiny come out?
MR. SMITH: Excuse me? Well, in --in most, if not all, cases it would come out against it. It would be unconstitutional, clearly, because they're blocking a vast amount of speech that is not even sexually explicit. And so we have a narrow tailoring problem. And there are much
more --much more effective, less restrictive alternatives which we had all this evidence at trial about.
QUESTION (Kennedy): And that --and that is --and that is because legally you would be a state entity denying access to a designated forum to a --a listener who is a member of the public.
MR. SMITH: Exactly, Your Honor.
QUESTION (Kennedy): Okay.
QUESTION (?): What was your --
QUESTION (Souter): What if the --what if the facts were changed in this way? The library --I'm sorry. Did I -- no. Please go ahead.
QUESTION (Souter): No. I think we're still pursuing the first --
MR. SMITH: Yes. I'm trying to make sure I get the --
QUESTION (Rehnquist): Sooner or later, I want you to get to the second --
MR. SMITH: I appreciate it, Your Honor. ( Laughter. )
QUESTION (Souter?): Okay. One last question before you get to the second one. What if the library said, we're not letting in the whole Internet? We think there are some sites that it would be valuable for our research patrons to have. We've
got to --we're simply going to select 100 websites or 1,000 out of the millions that are there and we're going to let them in. Would that be a violation of designated public forum?
MR. SMITH: Clearly not, Your Honor.
QUESTION (Souter?): Okay.
MR. SMITH: There's no --there's no argument that we --we'd make that that would be unconstitutional. They would then be letting them in as they would books, using their collection development policies, deciding what's valuable, and that would not be a violation.
QUESTION (Souter?): But --but how did --I mean, it's fine to say it's no violation of the Constitution. But you're also saying yet it remains a designated public forum.
MR. SMITH: No, Your Honor.
QUESTION (Souter?): Oh, it --you agree it would not be a designated public forum.
MR. SMITH: Absolutely not. If they're not letting everybody in, as --as general access. They're exercising selective access.
QUESTION (Scalia): But don't --don't many libraries already exclude, for example, chat rooms?
MR. SMITH: It's not a question of exclusion. It's a question of affirmative inclusion through
QUESTION (Scalia): No, no. I mean, but --but my understanding was that some libraries that --that have access to the Web do not allow access to chat rooms. They don't think that that's a proper library --library function or whatever. At least as to those libraries, I assume you would acknowledge that there's no designated public forum.
MR. SMITH: No, Your Honor. We don't acknowledge that excluding --
QUESTION (Scalia): I didn't think you would.
MR. SMITH: --excluding an area of content can take it out of the forum doctrine. Let me get to my second point, though, which -- which is --
QUESTION (Rehnquist?): When you start on your second point, let me just ask you to comment on one thing because I want to be --I want the Solicitor General also to comment on the same thing. Do you think, given the state of the record now, if we agreed with the Government's submission that the district court's rationale was wrong, would it be proper for us to decide to rule on the second theory?
MR. SMITH: Oh, clearly, Your Honor. I don't think there are any --any facts that it would be necessary for the Court that haven't been brought out in
that --that trial and that lengthy opinion. Now, our position with respect to point two is --
QUESTION (Rehnquist?): What is point two?
MR. SMITH: It is that libraries -- ( Laughter. )
MR. SMITH: --even --even if the Internet is precisely analogous to books in the library context, that something about the library context lets librarians in the exercise of professional judgment that they ordinarily exercise, even in deciding to edit the Internet, that the Federal Government under the First Amendment has no business using the spending power to try to distort that medium and push librarians away from their professional judgment toward the most restrictive possible policy on information flow into the library setting. In other words, our second point is that a library is very much like a public university which this Court has several times indicated is a --is a special sphere set off for the governmental promotion of private and free expression, that in that kind of a setting, the Federal Government should not use the spending power to impose a one-size-fits-all policy about --
QUESTION (Kennedy?): Is this a federalism concept and you --and you would cite our cases like Printz and so forth?
MR. SMITH: No, Your Honor. I'm citing only First Amendment cases. I believe it is a First Amendment concept that there are certain kinds of relationships or certain kinds of institutions in which the amount of speech that is being allowed is decided by the people who are designated as professionals to run that institution. For example --
QUESTION (Kennedy): So --so your argument would be the same if the --if the State of California were doing it. It's not just the Federal Government.
MR. SMITH: Yes, Your Honor. If it was done by statute. But --but, for example, professors should set the curriculum at a public university. I don't think that the Congress can say to the universities of this country, we've given you money, you therefore have to cut your departments. If you --if you take the money --
QUESTION (Kennedy): How about --can the board of regents set the curriculum?
MR. SMITH: I think it --when you get to the people who run the --run the university as their job, that's fine, yes, Your Honor.
QUESTION (Rehnquist?): I mean, that's pretty far-reaching. It's very interesting. But the --the question --I'm -- I don't suppose you object to the Federal Government
saying, even if it's money to be spent on books, you cannot spend this money for material that it is unlawful for the student to see, such as child pornography. Are you objecting to that? Suppose the Federal Government were to say, no child pornography.
MR. SMITH: Certainly not, Your Honor.
QUESTION (Rehnquist): Certainly not, okay. So then what you're objecting to is we let them cut that stuff out, but you're objecting to the requirement of a particular technology where the technology may exclude some other things.
MR. SMITH: Well --
QUESTION (Rehnquist): That's your objection.
MR. SMITH: --first of all, let me address the book question. What this law is analogous to is, as applied to the book context, a law where the Government says we're going to help you buy books. Here's 10 percent of your book budget a year, and it doesn't just say you can't spend our money on books of a particular content. It says you can't have in your library books of a particular content. It starts to try to invade the professional judgments of librarians about what books would need to be to their patrons. And we have here a situation where 93 percent of the libraries have made a more liberal, more open policy
decision than the one that the Congress favors, and they're now using the spending power to push them in --
QUESTION (Rehnquist): Well, what if --what if the Federal Government said, we're going to give you 10 percent of your annual appropriation and you can't use that money to acquire a particular class of books?
MR. SMITH: I think as long as it was viewpoint neutral, Your Honor, and otherwise a legitimate line, that would be not a problem. But --but here --
QUESTION (Rehnquist): Well, supposing you --you can't use it to acquire soft pornography.
MR. SMITH: To the extent one could define that concept, I think that generally the Government --the Court has said the Government can decide what --what the money that it uses to subsidize the --the local government with --what it will be spent on, but it can't, I think, then expand the subsidy into attempting to regulate things like the other book decisions that the library might make.
QUESTION (O'Connor): Well, even in areas where it's already against the law to have materials that are obscene or harmful to minors? You think the Government has no authority to prohibit its aid to be used for that?
MR. SMITH: Of course not, Your Honor. Certainly the Government can say that you shouldn't make
available materials to people that --that --for whom they have no constitutional right to see them, obscenity for adults --
QUESTION (O'Connor): Right. Now, should we make any allowance here? Is there any leeway, if you will, simply because the technology is not yet available to filter perfectly where it's evident that there isn't a huge percentage amount of things that are being excluded, but the software isn't perfect?
MR. SMITH: Well --
QUESTION (O'Connor): Should --should our doctrine take that into account, do you suppose?
MR. SMITH: If --if I might, just in answer to that question, Your Honor, take a moment to describe what --what it really is that the record shows about how these filters operate because I --I think that that's really very helpful. What these --these filters are, are lists of -- of sites that are banned for access in the --in the setting where they're --where they're in effect, and the --the findings are that there's about 100,000 sexually explicit sites on the Internet at the time of trial. And so we can assume that some high percentage of that 100,000 are on the list, 90,000 perhaps, because there were some that they missed constantly.
Now, in addition, the court found that the -- the very same list blocks at least tens of thousands of additional sites that are not sexually explicit at all or, if they have sexually explicit materials, are educational. They --they teach people about gay sexuality or they teach them about safe sex techniques. And so we have -- on these lists is a proportion, a huge proportion, perhaps 25, perhaps 50 percent of the sites that are blocked that are not illegal even for children. Now, of the 90,000 or so that are blocked that are sexually explicit, there isn't a shred of evidence in this trial record that the Government attempted to put in about whether any of those are obscene. There was no showing of any kind that the filters ever actually find speech that is illegal for adults. And there's good reason to think that there isn't a lot of it on there because clearly illegal material is distributed in a different way than the --than the way that would allow the filtering --
QUESTION (Ginsberg): Mr. Smith, you used --you said perhaps 50 percent. This --and General Olson said tens of thousands of pages, but consider the --
MR. SMITH: Well --
QUESTION (Ginsberg): --in relation to the Internet. In this record, at least in this opinion, this
was the finding made more often than any other by that three-judge court, but every time they used the word substantial --and they don't give us any 50 percent. Substantial over-blocking is the word that's come up over and over again. I think you must have said it in at least a dozen findings.
MR. SMITH: If I could --if I could address that, Your Honor. The --the court did say at least tens of thousands and they used the word pages at that point. But it's quite evident, if you look at the way they were reasoning from the evidence, that they meant sites. And the evidence is that there's about 11 million websites on the Internet, in --in the accessible part of the Internet and that 100,000 of those are the sexually explicit ones and that the --there are at least tens of thousands more that are on the list. So it's --the Government also says in their brief that about one percent of the Internet is over- blocked, which would be about 100,000 sites. So it is a substantial percentage. It is also a substantial amount. And most importantly, it's a very large percentage of what they're blocking is not what they intend to block.
QUESTION (?): Mr. Smith --
QUESTION (?): Oh, you mean the Government --
QUESTION (Scalia): --can I ask you a question about -- about the public forum doctrine? As I understood your earlier answer, the Internet is not a public forum if a library does not take all of it and chooses to exclude chat boxes.
MR. SMITH: No, that is not my answer.
QUESTION (Scalia): Oh, that isn't your answer.
MR. SMITH: No. Our answer is --
QUESTION (Scalia): It --it remains a designated public forum even if you don't take all of it, you say. Chat rooms. We don't want them.
MR. SMITH: The way for it not to be a public forum is for them to decide affirmatively what they do want to include, not simply to say we'll take the --the content of 400 million people contributing to the Internet, but we'll carve out one thing. If you allow that, then there is no designated public forum doctrine, and the Court has repeatedly said the distinction between a public forum and not is whether or not there's been selective access, which --by which it means case by case --
QUESTION (Scalia): Why isn't that selective access? I --we don't want chat rooms. And it's not a total free- for-all, anybody wants to come in and talk. No, we don't want chat rooms.
MR. SMITH: Maybe chat rooms are okay because the question is whether that's a content-based exclusion. But clearly, here you have a content-based exclusion.
QUESTION (Scalia): It isn't content-based. No. Okay. It's not a content-based --
MR. SMITH: And it --
QUESTION (Scalia): Now, so if they say no chat rooms, it doesn't become a designated public forum. Why does it remain a designated public forum if what they say is, in addition to chat rooms, we don't want that portion of the Internet that runs a risk of bringing into our computers obscenity, child pornography, material harmful to children? We don't --I don't really know what it is but it's not worth it to us. So we don't want chat rooms and we don't want this --you say it's over- inclusive. It's not over-inclusive. It's whatever it takes to keep out of what we're bringing into our library those harmful materials. Now, why does that mean I've created a public forum?
MR. SMITH: The fact that they may --may or may not think they have a good reason for doing it can't factor into the analysis, Your Honor. The way the --the public forum doctrine works is you look at whether or not they --they have allowed access generally or not, and if they have allowed access generally and then they say, but
we don't want this, then that's a violation or at least it triggers strict scrutiny.
QUESTION (Scalia?): And that would also be a violation if the Government paid for 100 percent of the cost of the computer, both the hardware and the monthly billing for the Internet.
MR. SMITH: Yes, because it lets in everything in the world. Every commercial site, every catalog, everybody's personal website, and a million other things I can't even conjure up are all being allowed in and provided to people in that setting. And then they're saying, except you can't have this. Now, if that's permitted under the forum doctrine, how can Southeastern Promotions be right where they said you can have any --any play except Hair? We don't like Hair.
QUESTION (Breyer): Well, you can have it. You just have to go up to the desk and ask for it.
MR. SMITH: And you have to deal with exactly the --the discretion of --of the librarian and about whether or not he or she is going to allow you --allow it. You have to deal with the stigma, and you have to take the time out from your research session to go do that if it turns out in the middle of your research session that --that some site that you need to go to. And you
have to decide to do it not seeing the site because you can't see it to know whether it's valuable to you. So when you're surfing the Internet, the vastly more likely outcome will be that anything that's blocked people will just bypass and go on to something else.
QUESTION (Souter): What would your response be if --if you start where Mr. Olson started and said, you don't have to go through all of this? All you have to do is walk up to the librarian and say, I'm an adult. I want it unblocked. And it will be unblocked. Where --where does that leave your position?
MR. SMITH: Well, it's not clear that the librarian would say yes. The librarian certainly doesn't have to say yes.
QUESTION (Souter?): I --I think Mr. Olson's suggestion was that the librarian, absent some extraneous reason, would say yes. So --so let's add that to the mix. The librarian says yes, unblock. What is --where's your position?
MR. SMITH: It seems he's on a horn --the horns of a dilemma. Either that is something that has got a lot of stigma to it that very few people are going to do, so it has the --the effect of suppressing speech, or everybody --
QUESTION (Souter?): Is that your position --
MR. SMITH: That is my position.
QUESTION (Souter?): --that even to do that would be stigma?
MR. SMITH: Yes.
QUESTION (Souter?): So that doesn't solve the problem.
MR. SMITH: Sure. You've got to go up and say please turn off the porn filter, Your Honor.
QUESTION (Souter?): That isn't what he says.
MR. SMITH: Well, that's what it is.
QUESTION (Souter?): He says, look, you block a lot of stuff. Just please unblock it.
MR. SMITH: Well, if it turns out that people wouldn't be stigmatized by that --and I think the court below was correct to conclude that they will be --then -- then there's the second problem, which is what --what is the purpose that you've accomplished by requiring people to go through this meaningless exercise other than to deter them. That is apparently then the only purpose of it and --
QUESTION (Kennedy): Well, it distinguishes an adult from a child.
MR. SMITH: You can do that in many different ways, Your Honor, that don't require anybody to approach anybody. You simply have a --a card that they put in the computer that shows their age, and then it gives them
whatever access the library decides is appropriate or whatever the parents may have decided is appropriate for the children. There are many less restrictive alternatives including use of the filtering technology as an option, at the parents' option for different ages that --that can be considered and which were explored in depth by the district court, which I must say looked at this issue very carefully, was very sympathetic to the problems that arise with the --with the sexually explicit content. It said the one thing we can't do is have one across-the-board answer even in one library, especially nationally, to have Congress which has no knowledge at all about what conditions may prevail in any given library, saying, well, we're going to push you, through the budgetary process, toward our position even though 93 percent of the librarians have found a much more suitable set of solutions in less restrictive, somewhat more subtle, more mixed policies than the one that Congress decided in its wisdom it should try to force on the library community using the spending power.
QUESTION (?): Mr. Smith, this --this law covers elementary and secondary schools as well, but this challenge relates only to libraries.
MR. SMITH: Only to public libraries, Your Honor.
QUESTION (Rehnquist?): Thank you, Mr. Smith. General Olson, you have 5 minutes remaining.
REBUTTAL ARGUMENT OF THEODORE B. OLSON ON BEHALF OF THE PETITIONERS
MR. OLSON: I would like to invite the Court's attention to page 37a of the appendix to the jurisdictional statement which is the decision of the court below. In the first full paragraph, the court found approximately 95 percent of libraries with public Internet access have some form of acceptable use policy or Internet use policy governing patrons' use of the Internet. Now, what the libraries are saying here is the exercise of certain discretion violates the First Amendment rights of their patrons, and therefore every time they exercise that type of discretion in this context, they're subject to strict scrutiny. What this statute does is gives the libraries the right, if they choose to accept Federal funds, to make what kind of decisions, to exclude pornography which there's no dispute in the record libraries have, from time immemorial, chosen not to put in their libraries. So the decision that they're making is the same one they have already voluntarily made over the years. It would inhibit their decisions to exclude e-mail, chat, gambling, dating services, and the other
things that this part of the court below's decision held that they are doing already. It's the traditional type of discretion that libraries have exercised with respect to whether they be --want to be a fiction library or a library that's specializing in this or that or technology or anything along those lines. So the type of discretion that the librarians are saying violate their First Amendment rights are the types of discretion precisely that they've been exercising for years.
QUESTION (?): General Olson, I hate to use part of your rebuttal time. But would you tell me whether the Government thinks we should address the unconstitutional conditions issue that's discussed at length in the footnote if we agree with you on your principal submission?
MR. OLSON: I --we have no problem if the Court decides it, although it wasn't briefed and it wasn't the decision below, but we don't think it's remotely possible for this Court to decide that question in this context against the Government. If --if the libraries are right, they're saying they don't have a First --they can't have it both ways. They don't have a First Amendment right to make this discretion --discretionary decision with respect to their --the --the materials in their library, and then they turn around and say, allowing us to make
that is an unconstitutional --or giving us an incentive to make that very decision is an unconstitutional condition. This is a condition that's connected with libraries' traditional decisions. It's in an area where the Government --the Congress of the United States and this Court has said the Government has a compelling governmental interest already. It's a condition to the use of the funds. This is not extracting from libraries some separate, unconnected decision. It's connected with the actual use of the funds. And it does not say that libraries may not stock pornography. If they want to abandon the years of tradition of not stocking pornography on their bookshelves or in some other form, movies, whatever it might be, they can still do that without violating this condition. So the libraries have plenty of choices. They can not accept the public money. They can accept the public money and use it in --in the way that Congress decided, which is consistent with their traditional exercise of discretion. There's many distinguishing factors between this case and the cases in --in which the Court has exercised --expressed some concern with respect to the First Amendment issues here. It is not --this case is not a
regulation of speech, but the actions of a Government acting in a proprietary capacity --a library to make its own decisions, deciding what to subsidize, what speech to have in that library, what speech not to have in that library. The Government is merely --is making a content decision, not a viewpoint decision. There's no contention that there's a viewpoint decision. The type of decision that they say is being forced upon them, which is actually voluntary, is the same type of decision that libraries -- librarians customarily make. The Federal statute and the library policy that they're complaining about expands information, it doesn't contract information. And this Court said in the Arkansas Educational Television case, a jurisprudence that would result in the constriction of speech, rather than the expansion of speech, would be a repression of First Amendment rights. If Congress can't put this condition --
QUESTION (Rehnquist?): Thank you, General Olson.
MR. OLSON: Thank you.
CHIEF JUSTICE REHNQUIST: The case is submitted.
( Whereupon, at 11: 26 a. m. , the case in the above-entitled matter was submitted. )
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