the federal government to prevent legal services providers
who receive federal funds from seeking to “amend
or otherwise challenge existing welfare law.”
Velazquez, 531 U.S. at 537. On the other hand,
the Supreme Court has held that it does not violate
the First Amendment for the federal government to
require healthcare providers who receive federal funds
not to “encourage, promote or advocate abortion
as a method of family planning,” Rust, 500 U.S.
at 180; for the federal government to subsidize charitable
organizations only if they do not engage in lobbying
activity, see Regan v. Taxation with Representation,
461 U.S. 540 (1983); and for the National Endowment
for the Arts, in awarding grants on the basis of artistic
excellence, to “take into consideration general
standards of decency and respect for the diverse beliefs
and values of the American Public.” NEA
v. Finley, 524 U.S. 569, 572 (1998). 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. Plaintiffs’ argument that
the federal government may not require public libraries
who receive federal funds to restrict the availability
of constitutionally protected Web sites solely on
the basis of the sites’ content finds further