public library is not exercising editorial discretion in
selecting only speech of particular quality for inclusion in its
collection, as it may do when it decides to acquire print
materials. By providing its patrons with Internet access, public
libraries create a forum in which any member of the public may
receive speech from anyone around the world who wishes to
disseminate information over the Internet. Within this "vast
democratic forum[]," Reno, 521 U.S. at 868, which facilitates
speech that is "as diverse as human thought," id. at 870,
software filters single out for exclusion particular speech on
the basis of its disfavored content. We hold that these content-
based restrictions on patrons' access to speech are subject to
strict scrutiny.
4. Application of Strict Scrutiny
Having concluded that strict scrutiny applies to public
libraries' content-based restrictions on patrons' access to
speech on the Internet, we must next determine whether a public
library's use of Internet software filters can survive strict
scrutiny. To survive strict scrutiny, a restriction on speech
"must be narrowly tailored to promote a compelling Government
interest. If a less restrictive alternative would serve the
Government's purpose, the legislature must use that alternative."
United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813
(2000) (citation omitted); see also Fabulous Assocs., Inc. v. Pa.
Pub. Util. Comm'n, 896 F.2d 780, 787 (3d Cir. 1990) (holding that
a content-based burden on speech is permissible "only if [the
government] shows that the restriction serves a compelling
interest and that there are no less restrictive alternatives").
The application of strict scrutiny to a public library's use
of filtering products thus requires three distinct inquiries.