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Id. at 777. In view of the foregoing, the notion that public libraries may assert First Amendment rights for the purpose of making an unconstitutional conditions claim is clearly plausible, and may well be correct. But even if it is not, we think it plausible that they could rely on their patrons' rights, even though their patrons are not the ones who are directly receiving the federal funding. In similar cases, the Supreme Court has entertained unconstitutional conditions claims both by the organizations that receive federal funding and by their constituents. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 537 (2001) (
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Lawyers employed by New York City LSC grantees, together with private LSC contributors, LSC indigent clients, and various state and local public officials whose governments contribute to LSC grantees, brought suit . . . to declare the restriction [on LSC lawyers' ability advocate the amendment of or to challenge the constitutionality of existing welfare law] . . . invalid. ); Rust v. Sullivan, 500 U.S. 173, 181 (1991) (
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Petitioners are Title X grantees and doctors who supervise Title X funds suing on behalf of themselves and their patients. . . . Petitioners challenged the regulations on the grounds that . . . they violate the First and Fifth Amendment rights of Title X clients and the First Amendment rights of Title X health providers. ); FCC v. League of Women Voters of Cal., 468 U.S. 364, 370 n.6 (1984) (reviewing a First Amendment challenge to conditions on public broadcasters' receipt of federal funds, in which the plaintiffs included not only the owner of a public television station, but also viewers of the station's programs, including the League of Women Voters, and
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Congressman Henry Waxman, . . . a regular listener and viewer of public broadcasting ). The question whether CIPA's requirement that libraries use filtering software constitutes an unconstitutional condition is not an easy one. The Supreme Court has held that it violates the First Amendment for the federal government to require public broadcasting stations that receive federal funds not to editorialize, see League of Women Voters, 468 U.S. at 366, 402; for states to subsidize
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but not
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Ark. Writers' Project, Inc. v. Ragland, 481 U.S. 221, 223 (1987); for a state university to subsidize student publications only on the condition that they do not
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Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 823 (1995); and for the federal government to prevent legal services providers who receive federal funds from seeking to
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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
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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
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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
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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 (
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) (internal quotation marks and citations omitted); League of Women Voters, 468 U.S. at 383 (
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). See generally Rosenberger, 515 U.S. at 828 (
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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 support in the role that public libraries have traditionally served in maintaining First Amendment values. As evidenced by the many public libraries that have endorsed the Freedom to Read Statement and the Library Bill of Rights, see supra Subsection II.D.1, public libraries seemingly have a duty to challenge prevailing orthodoxy and make available to the public controversial, yet constitutionally protected material, even if it means drawing the ire of the community. See Bd. of Educ. v. Pico, 457 U.S. 853, 915 (1982) (Rehnquist, J., dissenting) (noting that
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are