patrons with the option, each time the software filter blocks their access to a Web page, of sending an anonymous email to library staff requesting that the page be unblocked.  Moreover, a library staff member periodically scans logs of URLs blocked by the filters, in an effort to identify erroneously blocked sites, which the library will subsequently unblock.  Although a public library’s ability to permit anonymous unblocking requests addresses the deterrent effect of requiring patrons to identify themselves before gaining access to a particular Web site, we believe that it fails adequately to address the overblocking problem.

In particular, even allowing anonymous requests for unblocking burdens patrons’ access to speech, since such requests cannot immediately be acted on.  Although the Tacoma Public Library, for example, attempts to review requests for unblocking within 24 hours, requests sometimes are not reviewed for several days.  And delays are inevitable in libraries with branches that lack the staff necessary immediately to review patron unblocking requests.  Because many Internet users “surf” the Web, visiting hundreds of Web sites in a single session and spending only a short period of time viewing many of the sites, the requirement that a patron take the time to affirmatively request access to a blocked Web site and then wait several days until the site is unblocked will, as a practical matter, impose a significant burden on library patrons’ use of the Internet.  Indeed, a patron’s time spent requesting access to an erroneously blocked Web site and checking to determine whether access was eventually granted is likely to exceed the amount of time the patron would have actually spent viewing the site, had the site not been erroneously blocked.  This delay is especially burdensome in view of many libraries’ practice of limiting their patrons to a half hour or an hour of Internet use per day, given the scarcity of terminal time in relation to patron demand.

The burden of requiring library patrons to ask permission to view Web sites whose content is disfavored resembles the burden that the Supreme Court found unacceptable in Denver, which invalidated a federal law requiring cable systems operators to block subscribers’ access to channels containing sexually explicit programming, unless subscribers requested unblocking in advance.  The Court reasoned that “[t]hese restrictions will prevent programmers from broadcasting to viewers who select programs day by day (or, through ‘surfing,’ minute by minute) . . . .”  Denver, 518 U.S. at 754.  Similarly, in Fabulous Associates, the Third Circuit explained that a law preventing adults from listening to sexually explicit phone messages unless they applied in advance for access to such messages would burden adults’ receipt of constitutionally protected speech, given consumers’ tendency to purchase such speech on impulse.  See Fabulous Assocs., 896 F.2d at 785 (noting that officers of two