Difference private vs public sector first amendment rights

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In 2003, the Court upheld a speech-related condition on funding for a governmental entity. The case, United States v. American Library Association (ALA), concerned two federal programs that provided rebates and grants to help public libraries provide internet access for patrons.1 Footnote
United States v. Am. Libr. Ass’n, 539 U.S. 194, 199 (2003) (plurality opinion). A condition on both programs required recipient libraries to install filtering software to block access to pornographic sites and other material deemed harmful to minors.2 Footnote
Id. at 201 (citing 20 U.S.C. §§ 9134(f)(1)(A)(i), (B)(i) (2001) and 47 U.S.C. §§ 254(h)(6)(B)(i), (C)(i) (2001) ). The ALA argued that this condition violated libraries’ First Amendment right to provide constitutionally protected speech to the public.3 Footnote
Id. at 210 .

The Court rejected ALA’s unconstitutional conditions argument without resolving whether public libraries, as governmental entities, have First Amendment rights.4 Footnote
Id. at 210–11 . Although only four Justices joined the main opinion, two additional Justices concurred in the Court’s judgment. Id. at 214–215 (Kennedy, J.); id. at 215–20 (Breyer, J.). The Court also rejected the ALA’s argument that the condition exceeded Congress’s spending power by requiring public libraries to violate their patrons’ First Amendment rights. Id. at 202–08, 214 (plurality opinion). A plurality of the Court reasoned that, as in Rust , Congress was defining the limits of the programs it was funding—programs designed to help libraries “fulfill their traditional role of obtaining material of requisite and appropriate quality for educational and informational purposes.” 5 Footnote
Id. at 211 (plurality opinion). The plurality rejected an analogy to Velazquez , reasoning that unlike lawyers for indigent clients, public libraries “have no comparable role that pits them against the Government” such that restrictions on their speech threaten to “distort” libraries’ usual functions. Id. at 213 . More specifically, the plurality explained, the required filtering software blocks online materials that libraries traditionally would have excluded from their off-line collections.6 Footnote
Id. at 212 . Echoing TWR and Rust , the plurality also concluded that the condition did not “penalize” a recipient’s decision to “provide [its] patrons with unfiltered Internet access” ; it “simply reflect[ed] Congress’s decision not to subsidize” such access.7 Footnote
Id. at 199 .

Footnotes 1 United States v. Am. Libr. Ass’n, 539 U.S. 194, 199 (2003) (plurality opinion). 2 Id. at 201 (citing 20 U.S.C. §§ 9134(f)(1)(A)(i), (B)(i) (2001) and 47 U.S.C. §§ 254(h)(6)(B)(i), (C)(i) (2001) ). 3 Id. at 210 . 4 Id. at 210–11 . Although only four Justices joined the main opinion, two additional Justices concurred in the Court’s judgment. Id. at 214–215 (Kennedy, J.); id. at 215–20 (Breyer, J.). The Court also rejected the ALA’s argument that the condition exceeded Congress’s spending power by requiring public libraries to violate their patrons’ First Amendment rights. Id. at 202–08, 214 (plurality opinion). 5 Id. at 211 (plurality opinion). The plurality rejected an analogy to Velazquez , reasoning that unlike lawyers for indigent clients, public libraries “have no comparable role that pits them against the Government” such that restrictions on their speech threaten to “distort” libraries’ usual functions. Id. at 213 . 6 Id. at 212 . 7 Id. at 199 .