to allow access to speech falling outside of these categories, Congress could have drafted the disabling provisions with greater precision, expressly permitting libraries to disable the filters “to enable access for any material that is not obscene, child pornography, or in the case of minors, harmful to minors,” rather than “to enable access for bona fide research or other lawful purposes,” which is the language that Congress actually chose.

At bottom, however, we need not definitively construe CIPA’s disabling provisions, since it suffices in this case to assume without deciding that the disabling provisions permit libraries to allow a patron access to any speech that is constitutionally protected with respect to that patron.  Although this interpretation raises fewer constitutional problems than a narrower interpretation, this interpretation of the disabling provisions nonetheless fails to cure CIPA’s lack of narrow tailoring.  Even if the disabling provisions permit public libraries to allow patrons to access speech that is constitutionally protected yet erroneously blocked by the software filters, the requirement that library patrons ask a state actor’s permission to access disfavored content violates the First Amendment.  The Supreme Court has made clear that content-based restrictions that require recipients to identify themselves before being granted access to disfavored speech are subject to no less scrutiny than outright bans on access to such speech.  In Lamont v.  Postmaster General, 381 U.S. 301 (1965), for example, the Court held that a federal statute requiring the Postmaster General to halt delivery of communist propaganda unless the addressee affirmatively requested the material violated the First Amendment:  We rest on the narrow ground that the addressee in order to receive his mail must request in writing that it be delivered.  This amounts in our judgment to an unconstitutional abridgment of the addressee’s First Amendment rights.  The addressee carries an affirmative obligation which we do not think the Government may impose on him.  This requirement is almost certain to have a deterrent effect, especially as respects those who have sensitive positions.  Id. at 307.

Similarly, in Denver Area Educational Telecommunications Consortium, Inc. v.  FCC, 518 U.S. 727 (1996), the Court held unconstitutional a federal law requiring cable operators to allow access to patently offensive, sexually explicit programming only to those subscribers who requested access to the programming in advance and in writing.  Id. at 732-33.  As in Lamont, the Court in Denver reasoned that this content-based restriction on recipients’ access to speech would have an impermissible chilling effect:  “[T]he written notice requirement will . . . restrict viewing by subscribers who fear for their reputations should the operator, advertently or inadvertently, disclose the list of those who wish to watch the ‘patently offensive’ channel.”  Id. at 754;