Over the past decade, Congress has passed a series of legislative initiatives that involve banning certain types of speech found on the Internet that may be harmful to children. Each piece of legislation has been met with formidable resistance by those who claim that it is an unconstitutional restriction on the freedom of speech, and none of the laws are currently being enforced due to those challenges. The U.S. Supreme Court is now hearing arguments over the most recent legislation, the Children's Internet Protection Act (CIPA), which would require libraries that receive government funding to install filters on their Internet-capable computers in order to continue receiving federal money. A lower court declared the law unconstitutional largely on the grounds that Internet filters, as they exist in the present day, necessarily are both overinclusive and underinclusive, and they therefore censor significant amounts of constitutionally protected speech while failing to restrict some other speech that is not protected.
There is another important argument that can be made against CIPA, one that is more centered on the rise of the Internet as a crucial public forum for debate and communication. The unconstitutional conditions doctrine limits the power of the government to condition the receipt of federal funds on the suppression of private speech in such a way as to distort the underlying forum for that speech. This doctrine has been upheld by the Supreme Court in cases involving the suppression of speech at such traditional public forums as public broadcasting systems, public universities, and even American courthouses themselves. A strong case can be made that public libraries, too, are traditional forums for the expression of speech that will be severely distorted by CIPA's overinclusive filters.
Furthermore, one could make the innovative argument that the Internet itself is also a major public forum (if not a "traditional" one), the function of which is distorted by the restrictions of CIPA on private, non-governmental communication. The Supreme Court has yet to explicitly align the Internet with its more historically meaningful public forum counterparts (such as the university and the library), though it has gone far in recognizing the Internet's virtually unlimited potential as a medium of communication. It is not hard to imagine an argument that the Internet, either now or in the foreseeable future, comprises the most effective, and even the most important, public forum for speech. Going forward on the basis of that argument, the unconstitutional conditions doctrine most certainly would apply to the Internet. Laws such as CIPA that distort the basic functioning of the cyberspace medium by suppressing significant portions of private speech that would otherwise be available, and condition the receipt of federal funding on that suppression, would be struck down on those grounds.
Links:
http://brennancenter.org/resources/downloads/sc_briefs/library.pdf
http://www.ala.org/alaorg/oif/filteringlegislationsummary.html
http://law.vanderbilt.edu/lawreview/vol553/berman_abstract.pdf
http://www.gseis.ucla.edu/iclp/asperti.html
