if what is left is fully operative as a law.”  Buckley v.  Valeo, 424 U.S. 1, 108 (1976) (internal quotation marks and citation omitted).  There is no doubt that if we were to strike CIPA from the sections of the United States Code where it is currently codified, the remaining statutory sections, providing eligible public libraries with E-rate discounts and LSTA grants, would be fully operative as law.  Indeed, the LSTA and E-rate programs existed prior to the enactment of CIPA in substantially the same form as they would exist were we to strike CIPA and leave the rest of the programs intact.

The second question, whether Congress would in this case have chosen to repeal the LSTA and E-rate subsidy programs instead of continuing to fund them if it had known that CIPA’s limitations on these programs were constitutionally invalid, is less clear.  CIPA contains “separability” clauses that state that if any of its additions to the statutes governing the LSTA and E-rate programs are found to be unconstitutional, Congress intended to effectuate as much of CIPA’s amendments as possible.  We interpret these clauses to mean, for example, that if a court were to find that CIPA’s requirements are unconstitutional with respect to adult patrons, but permissible with respect to minors, that Congress intended to have the court effectuate only the provisions with respect to minors.  These separability clauses do not speak to the situation before us, however, where we have found that CIPA is facially unconstitutional in its entirety.

Nevertheless, the government has not pointed to anything in the legislative history or elsewhere to suggest that Congress intended to discontinue funding under the LSTA and E-rate programs unless it could effectuate CIPA’s restrictions on the funding.  And Congress’s decision, prior to CIPA’s enactment, to subsidize Internet access through the LSTA and E-rate programs without such restrictions, counsels that we reach the opposite conclusion.  At bottom, we think that it is unclear what Congress’s intent was on this point, and in the absence of such information, we exercise a presumption in favor of severability.  Regan v.  Time, Inc., 468 U.S. 641, 653 (1984) ("[T]he presumption is in favor of severability."); cf.  Velazquez v.  Legal Servs.  Corp., 164 F.3d 757, 773 (2d Cir. 1999), aff’d 531 U.S. 533 (2001) (applying a presumption in favor of severability in the face of uncertainty whether Congress intended to fund the Legal Services Corporation even if a restriction on the funding was to be declared invalid).  For the foregoing reasons, we will enter a final judgment declaring Sections 1712(a)(2) and 1721(b) of the Children’s Internet Protection Act, codified at 20 U.S.C.  Sec. 9134(f) and 47 U.S.C.  Sec. 254(h)(6), respectively, to be facially invalid under the First Amendment and permanently enjoining the defendants from enforcing those provisions.

___________________________
Edward R. Becker, Chief Circuit
Judge

In the United states district court