Plaintiffs argue that the overbreadth doctrine is applicable here, since CIPA “threatens to chill free speech – because it will censor a substantial amount of protected speech, because it is vague, and because the law creates a prior restraint . . . .”  Unlike the statutes typically challenged as facially overbroad, however, CIPA does not impose criminal penalties on those who violate its conditions.  Cf.  Freedom of Speech Coalition, 122 S. Ct. at 1398 ("With these severe penalties in force, few legitimate movie producers or book publishers, or few other speakers in any capacity, would risk distributing images in or near the uncertain reach of this law.").  Thus, the rationale for permitting facial challenges to laws that may be constitutionally applied in some instances is less compelling in cases such as this, which involve challenges to Congress’s exercise of the spending power, than in challenges to criminal statutes.  Nonetheless, “even minor punishments can chill protected speech,” id., and absent the ability to challenge CIPA on its face, public libraries that depend on federal funds may decide to comply with CIPA’s terms, thereby denying patrons access to substantial amounts of constitutionally protected speech, rather than refusing to comply with CIPA’s terms and consequently losing the benefits of federal funds.  See 47 C.F.R.  Sec. 54.520(e)(1) ("A school or library that knowingly fails to ensure the use of computers in accordance with the certifications required by this section, must reimburse any funds and discounts received under the federal universal support service support mechanism for schools and libraries for the period in which there was noncompliance.").  Even in cases where the only penalty for failure to comply with a statute is the withholding of federal funds, the Court has sustained facial challenges to Congress’s exercise of the spending power.  See, e.g., Legal Servs.  Corp. v.  Velazquez, 531 U.S. 533 (2001) (declaring unconstitutional on its face a federal statute restricting the ability of legal services providers who receive federal funds to engage in activity protected by the First Amendment).

The Court’s unconstitutional conditions cases, such as Velazquez, are not strictly controlling, since they do not require a showing that recipients who comply with the conditions attached to federal funding will, as state actors, violate others’ constitutional rights, as is the case under the fourth prong of Dole.  However, they are highly instructive.  The Supreme Court’s pronouncements in the unconstitutional conditions cases on what is necessary for a plaintiff to mount a successful First Amendment facial challenge to an exercise of Congress’s spending power have not produced a seamless web.  For example, in Rust v.  Sullivan, 500 U.S. 173 (1991), the Court rejected a First Amendment facial challenge to federal regulations prohibiting federally funded healthcare clinics from providing counseling concerning