United States v. American Library Association, Inc., 539 U.S. 194, 24 (2003)

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Cite as: 539 U. S. 194 (2003)

Breyer, J., concurring in judgment

trons. See ante, at 204, 207-208 (plurality opinion). And libraries often properly engage in the selection of materials, either as a matter of necessity (i. e., due to the scarcity of resources) or by design (i. e., in accordance with collection development policies). See, e. g., 201 F. Supp. 2d, at 408-409, 421, 462; ante, at 204, 208 (plurality opinion). To apply "strict scrutiny" to the "selection" of a library's collection (whether carried out by public libraries themselves or by other community bodies with a traditional legal right to engage in that function) would unreasonably interfere with the discretion necessary to create, maintain, or select a library's "collection" (broadly defined to include all the information the library makes available). Cf. Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 256-258 (1974) (protecting newspaper's exercise of editorial control and judgment). That is to say, "strict scrutiny" implies too limiting and rigid a test for me to believe that the First Amendment requires it in this context.

Instead, I would examine the constitutionality of the Act's restrictions here as the Court has examined speech-related restrictions in other contexts where circumstances call for heightened, but not "strict," scrutiny—where, for example, complex, competing constitutional interests are potentially at issue or speech-related harm is potentially justified by unusually strong governmental interests. Typically the key question in such instances is one of proper fit. See, e. g., Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469 (1989); Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 740-747 (1996) (plurality opinion); Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 227 (1997) (Breyer, J., concurring in part); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 389-390 (1969).

In such cases the Court has asked whether the harm to speech-related interests is disproportionate in light of both the justifications and the potential alternatives. It has considered the legitimacy of the statute's objective, the extent


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