United States v. American Library Association, Inc., 539 U.S. 194, 26 (2003)

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

Breyer, J., concurring in judgment

obscene material is "legitimate"); Reno, 521 U. S., at 869-870 (interest in "shielding" minors from exposure to indecent material is " 'compelling' "); New York v. Ferber, 458 U. S. 747, 756-757 (1982) (same). As the District Court found, software filters "provide a relatively cheap and effective" means of furthering these goals. 201 F. Supp. 2d, at 448. Due to present technological limitations, however, the software filters both "overblock," screening out some perfectly legitimate material, and "underblock," allowing some obscene material to escape detection by the filter. Id., at 448- 449. See ante, at 208-209 (plurality opinion). But no one has presented any clearly superior or better fitting alternatives. See ante, at 207, n. 3 (plurality opinion).

At the same time, the Act contains an important exception that limits the speech-related harm that "overblocking" might cause. As the plurality points out, the Act allows libraries to permit any adult patron access to an "over-blocked" Web site; the adult patron need only ask a librarian to unblock the specific Web site or, alternatively, ask the librarian, "Please disable the entire filter." See ante, at 209; 20 U. S. C. 9134(f)(3) (permitting library officials to "disable a technology protection measure . . . to enable access for bona fide research or other lawful purposes"); 47 U. S. C. 254(h)(6)(D) (same).

The Act does impose upon the patron the burden of making this request. But it is difficult to see how that burden (or any delay associated with compliance) could prove more onerous than traditional library practices associated with segregating library materials in, say, closed stacks, or with interlibrary lending practices that require patrons to make requests that are not anonymous and to wait while the librarian obtains the desired materials from elsewhere. Perhaps local library rules or practices could further restrict the ability of patrons to obtain "overblocked" Internet material. See, e. g., In re Federal-State Joint Board on Universal Service: Children's Internet Protection Act, 16 FCC Rcd.

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