In determining what standard the Court will apply, one first has to look at whether the content being restricted is content-based, or content-neutral. The censorship performed by the Act is clearly content-based. In both the wording of the Act itself, and the current method of its implementation, content is explicitly forbidden or allowed via content-based criteria. In the Act, content is forbidden that falls into categories of obscenity or child pornography. When a minor is involved it also adds additional criteria to keep them from material considered harmful. The method of current implementation, web blocking software, is even more content-based in its judgments. Blocking software groups sites into a variety of wide categories, which then must be blocked or allowed as a whole. Since the provisions of the Act are clearly content-based, the Court will use the compelling interest test in making a determination of whether the Act is constitutional. This test is comprised of two aspects. First, the interest in regulating content must be compelling. Secondly, the method of implementation must be the least restrictive means of prohibiting speech.
The American Library Association (ALA) and the American Civil Liberties Union (ACLU) argue that the provisions of the Act pass neither prong of the compelling interest test. First, they argue against the need for blocking software at all. They say that there is not a compelling interest in restricting Internet access at libraries because providing access to all kinds of information, even that which might be sexually explicit, is an integral part of the mission of the ALA. They say that the library has no interest in ``protecting'' adults from material that they might find online. Even if the interest in regulating access were found to be compelling, the ALA brief argues that the means is in no way the least restrictive one available. The brief spends a great deal of time discussing the technical aspects of blocking software, and its deficiencies. First, the categories utilized by the blocking software are much more broad than those enumerated in the Act. Therefore, since the categories may only be selected in whole, the library is forced to not only block the speech required by the Act, they are also required to block other speech through deficiencies with the required method of implementation. Also, the Act requires only that visual depictions be blocked, while no available blocking software offers this limited restriction. Thereby not only images but text are blocked, when only images are required. And finally, even in the blocking software's selection of sites the ALA finds fault. The blocking software is universally regarded to ``overblock,'' that is to block sites that contain no material infringing on even its categories of sites to restrict. Though the Act does contain provisions allowing the library to unblock access for legitimate uses, these methods are slow and chill speech by requiring the patron to make his or her request to the librarian.
The ALA says that without the Act in place libraries have already developed far better and less restrictive means of protecting minors and protecting individuals from seeing things they don't wish to view. According to the ALA brief, these means, chosen and implemented by the librarians in each community, are far more effective in preventing harmful exposure and are much more tailored to the interests of the library than those contained in the Act. For instance, the ALA contends that even though the Act requires blocking software be installed on even the computers of library staff, no library in America has been found that does this blocking. They say that the blocking of staff computers in no way serves an interest of the library.
Were this just a law requiring blocking software, in my opinion the Court would strike it down immediately in an open and shut case. I think it's clear that the provisions of the Act require a technical solution that is so far from perfect as to in no way be considered a least restrictive means. The problems with blocking software have been demonstrated again and again, and the case even includes in its evidence an analysis of real examples where blocking software restricted access to legitimate information. But this isn't just a law, it's a restriction attached to funding. In oral arguments the Court seemed very stuck on this fact, and that this would limit the application of normal legal tests. Congress seems to have found its loophole for passing laws that would normally be outside the scope of its power - when all else fails, attach it as a provision to money. As the ALA points out, this effectively widens the digital divide, as libraries that can afford to do so turn down the federal funding in order to keep their freedom, while poorer rural libraries have no choice but to restrict speech. I still hold out hope the the Court will find against the ruling, but the method of requirement takes this from a straightforward open and shut case to one on which it's unclear which way the Court will rule.