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We intimate no opinion on the constitutionality of [a less restrictive alternative to the challenged law] . . ., inasmuch as we consider merely [its] comparative restrictiveness . . . . ). Whereas the disabling provision applicable to libraries that receive LSTA grants permits disabling for both adults and minors, the disabling provision applicable to libraries that receive E-rate discounts permits disabling only during adult use. Thus, the disabling provision applicable to libraries receiving E-rate discounts cannot cure the constitutional infirmity of CIPA's requirement that libraries receiving E-rate discounts use software filters when their Internet terminals are in use by minors. Software filters sometimes incorrectly block access to, inter alia, Web sites dealing with issues relating to sexual identity. For example, the
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Gay and Lesbian Chamber of Southern Nevada, http://www.lambdalv.com,
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was blocked by N2H2 as
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Adults Only, Pornography. The home page of the Lesbian and Gay Havurah of the Long Beach, California Jewish Community Center, http://www.compupix.com/gay/havurah.htm, was blocked by N2H2 as
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Adults Only, Pornography, by Smartfilter as
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Sex, and by Websense as
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Sex. Among the types of Web sites that filters erroneously block are Web sites dealing with health issues, such as the Web site of the Willis-Knighton Cancer Center, a Shreveport, Louisiana cancer treatment facility, http://cancerftr.wkmc.com, which was blocked by Websense under the
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Sex category. Although in light of our disposition of the plaintiffs' Dole claim, we do not rule upon plaintiffs' contention that CIPA's conditioning of funds on the installation of filtering software violates the doctrine of unconstitutional conditions, we are mindful of the need to frame the disputed legal issues and to develop a full factual record for the certain appeal to the Supreme Court. Cf. Ashcroft v. ACLU, 2002 U.S. LEXIS 3421 (May 13, 2002) (remanding the case to the Court of Appeals to review the legal and factual bases on which the District Court granted plaintiffs' motion for a preliminary injunction after vacating its opinion that relied on a different ground from the ones used by the District Court). Although we do not decide the plaintiffs' unconstitutional conditions claim, we think that our findings of fact on public libraries, their use of the Internet, and the technological limitations of Internet filtering software, see supra Subsections II.D-E, and our framing of the legal issue here, would allow the Supreme Court to decide the issue if it deems it necessary to resolve this case. The doctrine of unconstitutional conditions
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Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 674 (1996) (quoting Perry v. Sindermann, 408 U.S. 593, 597 (1972)). In this case, the plaintiffs argue that CIPA imposes an unconstitutional condition on libraries who receive E-rate and LSTA subsidies by requiring them, as a condition on their receipt of federal funds, to surrender their First Amendment right to provide the public with access to constitutionally protected speech. Under this theory, even if it does not violate the First Amendment for a public library to use filtering software, it nonetheless violates the First Amendment for the federal government to require public libraries to use filters as a condition of the receipt of federal funds. The government contends that this case does not fall under the unconstitutional conditions framework because: (1) as state actors, the recipients of the funds (the public libraries) are not protected by the First Amendment, and therefore are not being asked to relinquish any constitutionally protected rights; and (2) although library patrons are undoubtedly protected by the First Amendment, they are not the funding recipients in this case, and libraries may not rely on their patrons' rights in order to state an unconstitutional conditions claim. It is an open question in this Circuit whether Congress may violate the First Amendment by restricting the speech of public entities, such as municipalities or public libraries. The only U.S. Supreme Court opinion to weigh in on the issue is a concurrence by Justice Stewart, joined by Chief Justice Burger and Justice Rehnquist, in which he opined that municipalities and other arms of the state are not protected by the First Amendment from governmental interference with their expression. See Colum. Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 139 (1973) (Stewart, J., concurring) (
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The First Amendment protects the press from governmental interference; it confers no analogous protection on the Government. ); see also id. at 139 n.7 (
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The purpose of the First Amendment is to protect private expression and nothing in the guarantee precludes the government from controlling its own expression or that of its agents. ) (quoting Thomas Emerson, The System of Freedom of Expression 700 (1970) (internal quotation marks omitted)). The Court has subsequently made it clear, however, that it considers it to be an open question whether municipalities acting in their capacity as employers have First Amendment rights, suggesting that the question whether public entities are ever protected by the First Amendment also remains open. See City of Madison Joint Sch. Dist. No. 8 v. Wisc. Employment Relations Comm'n, 429 U.S. 167, 175 n.7 (1976) (
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We need not decide whether a municipal corporation as an employer has First Amendment rights to hear the views of its citizens and employees. ). Several courts of appeals have cited Justice Stewart's concurrence in Columbia Broadcasting Systems and have, with little discussion or analysis, concluded that a
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Warner Cable Communications, Inc. v. City of Niceville, 911 F.2d 634, 638 (11th Cir. 1990); see also NAACP v. Hunt, 891 F.2d 1555, 1565 (11th Cir. 1990) (
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); Student Gov't Ass'n v. Bd. of Trustees of the Univ. of Mass., 868 F.2d 473, 481 (1st Cir. 1989) (concluding that the legal services organization run by a state university,
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); Estiverne v. La. State Bar Ass'n, 863 F.2d 371, 379 (5th Cir. 1989) (noting that