Although it was not proffered as evidence in this trial,
(and hence we do not rely on it to inform our findings), we note that Youth, Pornography, and the Internet, a congressionally commissioned study by the National Research Council, a division of the National Academies of Science, see Pub. L. 105-314, Title X, Sec. 901, comes to a conclusion similar to the one that we reach regarding the effectiveness of Internet filters. The commission concludes that:
All filtersthose of today and for the foreseeable futuresuffer (and will suffer) from some degree of overblocking (blocking content that should be allowed through) and some degree of underblocking (passing content that should not be allowed through). While the extent of overblocking and underblocking will vary with the product (and may improve over time), underblocking and overblocking result from numerous sources, including the variability in the perspectives that humans bring to the task of judging content.
Youth, Pornography, and the Internet (Dick Thornburgh & Herbert S. Lin, eds., 2002), available at http://bob.nap.edu/html/youth_internet/.
Because
we find that the plaintiff public libraries are
funded and controlled by state and local governments,
they are state actors, subject to the constraints
of the First Amendment, as incorporated by the Due
Process Clause of the Fourteenth Amendment.
The Supreme
Court has recognized that the First Amendment
encompasses not only the right to speak, but also
the right to receive information. See Reno v.
ACLU, 521 U.S. 844, 874 (1997) (invalidating a statute
because it “effectively suppresses a large amount
of speech that adults have a constitutional right to
receive and to address to one another"); Stanley v.
Georgia, 394 U.S. 557, 564 (1969) ("[The] right to
receive information and ideas, regardless of their
social worth . . . is fundamental to our free society.");
see also Bd. of Educ. v. Pico, 457 U.S. 853,
867-68 (1982) (plurality opinion) ("[T]he right to
receive ideas follows ineluctably from the sender’s
First Amendment right to send them.").
Indeed,
if the First Amendment subjected to strict
scrutiny the government’s decision to dedicate
a forum to speech whose content the government judges
to be particularly valuable, many of our public institutions
of culture would cease to exist in their current form:
From here on out, the National Gallery in Washington, D.C., for example, would be required to display the art of all would-be artists on a first-come-first-served basis and would not be able to exercise any content control over its collection through evaluations of quality. Such a conclusion, of course, strikes us as absurd, but that is only because we feel that the government should be free to establish public cultural institutions guided by standards such as “quality.” . . . While the First