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These magazines are targeted to gay and bisexual men, although they may also have some female readers, and may include male-male and occasionally male-male-female content and/or male-female content. Such publications provide photographs or other illustrations of nudity and sexual activities, including oral sex, anal sex, and other various forms of such activities. These magazines primarily serve to stimulate sexual thoughts and emotions. Some magazines are very general in their variety of illustrations, while others may be more specific and focus on particular activities or fetishes.
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The government hired expert witness Cory Finnell to study the Internet logs compiled by the public libraries systems in Tacoma, Washington; Westerville, Ohio; and Greenville, South Carolina. Each of these libraries uses filtering software that keeps a log of information about individual Web site requests made by library patrons. Finnell, whose consulting firm specializes in data analysis, has substantial experience evaluating Internet access logs generated on networked systems. He spent more than a year developing a reporting tool for N2H2, and, in the course of that work, acquired a familiarity with the design and operation of Internet filtering products.
In analyzing the constitutionality of a public library's use of Internet filtering software, we must first identify the appropriate level of scrutiny to apply to this restriction on patrons' access to speech. While plaintiffs argue that a public library's use of such filters is subject to strict scrutiny, the government maintains that the applicable standard is rational basis review. If strict scrutiny applies, the government must show that the challenged restriction on speech is narrowly tailored to promote a compelling government interest and that no less restrictive alternative would further that interest. United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813 (2000). In contrast, under rational basis review, the challenged restriction need only be reasonable; the government interest that the restriction serves need not be compelling; the restriction need not be narrowly tailored to serve that interest; and the restriction "need not be the most reasonable or the only reasonable limitation." Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 808 (1985).
In this case, the patron plaintiffs are not asserting a First Amendment right to compel public libraries to acquire certain books or magazines for their print collections. Nor are the Web site plaintiffs claiming a First Amendment right to compel public libraries to carry print materials that they publish. Rather, the right at issue in this case is the specific right of library patrons to access information on the Internet, and the specific right of Web publishers to provide library patrons with information via the Internet. Thus, the relevant forum for analysis is not the library's entire collection, which includes both print and electronic media, such as the Internet, but rather the specific forum created when the library provides its patrons with Internet access.
Application of strict scrutiny to public libraries' use of software filters, in our view, finds further support in the extent to which public libraries' provision of Internet access promotes First Amendment values in an analogous manner to traditional public fora, such as sidewalks and parks, in which content-based restrictions on speech are always subject to strict scrutiny. The public library, by its very nature, is "designed for freewheeling inquiry." Bd. of Education v. Pico, 457 U.S. 853, 915 (1982) (Rehnquist, J., dissenting). As such, the library is a "mighty resource in the free marketplace of ideas," Minarcini v. Strongsville City Sch. Dist., 541 F.2d 577, 582 (6th Cir. 1976), and represents a "quintessential locus of the receipt of information." Kreimer v. Bureau of Police for Morristown, 958 F.2d 1242, 1255 (3d Cir. 1992); see also Sund v. City of Wichita Falls, 121 F. Supp. 2d 530, 547 (N.D. Tex. 2000) ("The right to receive information is vigorously enforced in the context of a public library . . . ."); cf. Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 681 (1992) ("[A] traditional public forum is property that has as 'a principal purpose . . . the free exchange of ideas.'") (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800 (1985)).
In light of the facts that we discuss above regarding the operation of public libraries, and the limits of Internet filtering software, see supra Sections II.D-E, we believe that the plaintiffs have a good argument that this case is more analogous to League of Women Voters, Arkansas Writers' Project, and Velazquez than it is to Rust, Finley and Taxation with Representation. Like the law invalidated in League of Women Voters, which targeted editorializing, and the law invalidated in Arkansas Writers' Project, which targeted general interest magazines but not "religious, professional, trade, and sports journals," the law in this case places content-based restrictions on public libraries' possible First Amendment right to provide patrons with access to constitutionally protected material. See Arkansas Writers' Project, 481 U.S. at 229 ("[T]he basis on which Arkansas differentiates between magazines is particularly repugnant to First Amendment principles: a magazine's tax status depends entirely on its content. Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.") (internal quotation marks and citations omitted); League of Women Voters, 468 U.S. at 383 ("[T]he scope of [the challenged statute's] ban is defined solely on the basis of the content of the suppressed speech."). See generally Rosenberger, 515 U.S. at 828 ("It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys."). Because of the technological limitations of filtering software described in such detail above, Congress's requirement that public libraries use such software is in effect a requirement that public libraries block a substantial amount of constitutionally protected speech on the basis of its content.