about which content to make available to their patrons via the Internet.  See Rosenberger, 515 U.S. 819, 829 (1995) ("The necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics."); Perry, 460 U.S. at 46 n.7 (1983) ("A public forum may be created for a limited purpose such as use by certain groups . . . or for the discussion of certain subjects.").

In particular, the government forcefully argues that a public library’s decision to limit the content of its digital offerings on the Internet should be subject to no stricter scrutiny than its decisions about what content to make available to its patrons through the library’s print collection.  According to the government, just as a public library may choose to acquire books about gardening but not golf, without having to show that this content-based restriction on patrons’ access to speech is narrowly tailored to further a compelling state interest, so may a public library make content-based decisions about which speech to make available on the Internet, without having to show that such a restriction satisfies strict scrutiny.  Plaintiffs respond that the government’s ability to restrict the content of speech in a designated public forum by restricting the purpose of the designated public forum that it creates is not unlimited.  Cf.  Legal Servs.  Corp. v.  Velazquez, 531 U.S. 533, 547 (2001) ("Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise.").  As Justice Kennedy has explained:  If Government has a freer hand to draw content-based distinctions in limiting a forum than in excluding someone from it, the First Amendment would be a dead letter in designated public forums; every exclusion could be recast as a limitation. . . .  The power to limit or redefine forums for a specific legitimate purpose does not allow the government to exclude certain speech or speakers from them for any reason at all.  Denver Area Telecomm.  Consortium, Inc. v.  FCC, 518 U.S. 727, 801 (1996) (Kennedy, J., concurring in the judgment).

Although we agree with plaintiffs that the First Amendment imposes some limits on the state’s ability to adopt content-based restrictions in defining the purpose of a public forum, precisely what those limits are is unclear, and presents a difficult problem in First Amendment jurisprudence.  The Supreme Court’s “cases have not yet determined . . . that government’s decision to dedicate a public forum to one type of content or another is necessarily subject to the highest level of scrutiny.  Must a local government, for example, show a compelling state interest if it builds a band shell in the park and dedicates it solely to classical music (but not to jazz)?  The answer is not obvious.”  Denver, 518 U.S. at 750 (plurality opinion); see also Southeastern Promotions,