there to allow the Government to specify the advice deemed necessary for its legitimate objectives.”  Velazquez, 531 U.S. at 548.  In sum, we think that the plaintiffs have good arguments that they may assert an unconstitutional conditions claim by relying either on the public libraries’ First Amendment rights or on the rights of their patrons.  We also think that the plaintiffs have a good argument that CIPA’s requirement that public libraries use filtering software distorts the usual functioning of public libraries in such a way that it constitutes an unconstitutional condition on the receipt of funds.  We do not decide these issues, confident that our findings of fact on the functioning of public libraries, their use of the Internet, and the technological limitations of Internet filtering software, see supra Sections ii.D-E, would allow the Supreme Court to decide the unconstitutional conditions claim if the Court deems it necessary.

       CIPA Sec. 1712(a)(2) contains a provision titled
“Separability,” which is codified in the Library Services and Technology Act, 20 U.S.C.  Sec. 9134(f)(6), and provides:  “If any provision of this subsection is held invalid, the remainder of this subsection shall not be affected thereby.”  CIPA section 1721(e) also contained a similar provision that applied to E-rate funding, although it was not codified in the Communications Act.  That section, also titled “Separability,” provided:  “If any provision of paragraph (5) or (6) of section 254(h) of the Communications Act of 1934, as amended by this section, or the application thereof to any person or circumstance is held invalid, the remainder of such paragraph and the application of such paragraph to other persons or circumstances shall not be affected thereby.”  CIPA Sec. 1721(e).

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