claim, we think that our findings of fact on public
libraries, their use of the Internet, and the technological
limitations of Internet filtering software, see supra
Subsections ii.D-E, and our framing of the legal
issue here, would allow the Supreme Court to decide
the issue if it deems it necessary to resolve this
case. The doctrine of unconstitutional conditions
“holds that 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.”
Bd. of County Comm’rs v. Umbehr, 518 U.S.
668, 674 (1996) (quoting Perry v. Sindermann,
408 U.S. 593, 597 (1972)). In this case, the
plaintiffs argue that CIPA imposes an unconstitutional
condition on libraries who 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. Under this
theory, even if it does not violate the First Amendment
for a public library to use filtering software, it
nonetheless violates the First Amendment for the federal
government to require public libraries to use filters
as a condition of the receipt of federal funds.
The government contends that this case does not fall
under the unconstitutional conditions framework because:
(1) as state actors, the recipients of the funds (the
public libraries) are not protected by the First Amendment,
and therefore are not being asked to relinquish any
constitutionally protected rights; and (2) although
library patrons are undoubtedly protected by the First
Amendment, they are not the funding recipients in this
case, and libraries may not rely on their patrons’
rights in order to state an unconstitutional conditions
claim. It is an open question in this Circuit
whether Congress may violate the First Amendment by
restricting the speech of public entities, such as
municipalities or public libraries. The only
U.S. Supreme Court opinion to weigh in on the
issue is a concurrence by Justice Stewart, joined
by Chief Justice Burger and Justice Rehnquist, in
which he opined that municipalities and other arms
of the state are not protected by the First Amendment
from governmental interference with their expression.
See Colum. Broad. Sys., Inc. v. Democratic
Nat’l Comm., 412 U.S. 94, 139 (1973) (Stewart,
J., concurring) ("The First Amendment protects the
press from governmental interference; it confers no
analogous protection on the Government."); see also
id. at 139 n.7 ("The purpose of the First Amendment
is to protect private expression and nothing in the
guarantee precludes the government from controlling
its own expression or that of its agents.”) (quoting
Thomas Emerson, The System of Freedom of Expression
700 (1970) (internal quotation marks omitted)).
The Court has subsequently made it clear, however,
that it considers it to be an open question whether
municipalities acting in their capacity as employers