230
Stevens, J., dissenting
used by a federal panel of experts administering a federal grant program. Unlike this case, the Federal Government was not seeking to impose restrictions on the administration of a nonfederal program. As explained supra, at 228, Rust would appear to permit restrictions on a federal program such as the National Endowment for the Arts (NEA) arts grant program at issue in Finley.
Further, like a library, the NEA experts in Finley had a great deal of discretion to make judgments as to what projects to fund. But unlike this case, Finley did not involve a challenge by the NEA to a governmental restriction on its ability to award grants. Instead, the respondents were performance artists who had applied for NEA grants but were denied funding. See 524 U. S., at 577. If this were a case in which library patrons had challenged a library's decision to install and use filtering software, it would be in the same posture as Finley. Because it is not, Finley does not control this case.
Also unlike Finley, the Government does not merely seek to control a library's discretion with respect to computers purchased with Government funds or those computers with Government-discounted Internet access. CIPA requires libraries to install filtering software on every computer with Internet access if the library receives any discount from the E-rate program or any funds from the LSTA program.7 See 20 U. S. C. § 9134(f)(1); 47 U. S. C. §§ 254(h)(6)(B) and (C). If a library has 10 computers paid for by nonfederal funds and has Internet service for those computers also paid for by nonfederal funds, the library may choose not to put filtering software on any of those 10 computers. Or a library may decide to put filtering software on the 5 computers in its
7 Thus, appellees are not merely challenging a "refusal to fund protected activity, without more," as in Harris v. McRae, 448 U. S. 297, 317, n. 19 (1980), or a "decision not to subsidize the exercise of a fundamental right," as in Regan v. Taxation With Representation of Wash., 461 U. S. 540, 549 (1983). They are challenging a restriction that applies to property that they acquired without federal assistance.
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