choices as to whether to purchase, for example, books on
gardening or books on golf. Such content-based decisions, even
the plaintiffs concede, are subject to rational basis review and
not a stricter form of First Amendment scrutiny. In the
government's view, the fact that the Internet reverses the
acquisition process and requires the libraries to, in effect,
purchase the entire Internet, some of which (e.g., hardcore
pornography) it does not want, should not mean that it is
chargeable with censorship when it filters out offending
material.
The legal context in which this extensive factual record is
set is complex, implicating a number of constitutional doctrines,
including the constitutional limitations on Congress's spending
clause power, the unconstitutional conditions doctrine, and
subsidiary to these issues, the First Amendment doctrines of
prior restraint, vagueness, and overbreadth. There are a number
of potential entry points into the analysis, but the most logical
is the spending clause jurisprudence in which the seminal case is
South Dakota v. Dole, 483 U.S. 203 (1987). Dole outlines four
categories of constraints on Congress's exercise of its power
under the Spending Clause, but the only Dole condition disputed
here is the fourth and last, i.e., whether CIPA requires
libraries that receive LSTA funds or E-rate discounts to violate
the constitutional rights of their patrons. As will appear, the
question is not a simple one, and turns on the level of scrutiny
applicable to a public library's content-based restrictions on
patrons' Internet access. Whether such restrictions are subject
to strict scrutiny, as plaintiffs contend, or only rational basis
review, as the government contends, depends on public forum
doctrine.