OCTOBER TERM, 2001
Syllabus
ASHCROFT, ATTORNEY GENERAL
v. AMERICAN CIVIL LIBERTIES
UNION ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT
No. 00-1293. Argued November 28, 200l-Decided May 13,2002
In
Reno v.
American Civil Liberties Union,
521 U. S. 844,
this Court found that the Communications Decency Act of 1996
(CDA)-Congress' first attempt to protect children from exposure to
pornographic material on the Internet-ran afoul of the First
Amendment in its regulation of indecent transmissions and the
display of patently offensive material. That conclusion was based,
in part, on the crucial consideration that the CDA's breadth was
wholly unprecedented. After the Court's decision in
Reno,
Congress attempted to address this concern in the Child Online
Protection Act (COPA). Unlike the CDA, COPA applies only to
material displayed on the World Wide Web, covers only
communications made for commercial purposes, and restricts only
"material that is harmful to minors," 47 U. S. C. § 231(a)(I). In
defining "material that is harmful to minors," COPA draws on the
three-part obscenity test set forth in
Miller v.
California, 413
U. S. 15, see § 231(e)(6), and thus requires jurors to apply
"contemporary community standards" in assessing material, see
§231(e)(6)(A). Respondents-who post or have members that post
sexually oriented material on the Web-filed a facial challenge
before COPA went into effect, claiming,
inter alia, that the
statute violated adults' First Amendment rights because it
effectively banned constitutionally protected speech, was not the
least restrictive means of accomplishing a compelling governmental
purpose, and was substantially overbroad. The District Court issued
a preliminary injunction barring the enforcement of COPA because it
concluded that the statute was unlikely to survive strict scrutiny.
The Third Circuit affirmed but based its decision on a ground not
relied upon by the District Court: that COPA's use of "contemporary
community standards," § 231(e)(6)(A), to identify material that is
harmful to minors rendered the statute substantially overbroad.
Held: COPA's reliance on "community standards" to
identify what material "is harmful to minors" does not by itself
render the statute substantially overbroad for First Amendment
purposes. The Court, however, expresses no view as to whether COPA
suffers from substantial overbreadth for reasons other than its use
of community standards, whether the statute is unconstitutionally
vague, or whether the statute survives
565
strict scrutiny. Prudence dictates allowing the Third Circuit to
first examine these difficult issues. Because petitioner did not
ask to have the preliminary injunction vacated, and because this
Court could not do so without addressing matters the Third Circuit
has yet to consider, the Government remains enjoined from enforcing
COPA absent further action by the lower courts. Pp. 585-586.
217 F.3d
162, vacated and remanded.
THOMAS, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II, and IV, in
which REHNQUIST, C. J., and O'CONNOR, SCALIA, and BREYER, JJ.,
joined, an opinion with respect to Part III-B, in which REHNQUIST,
C. J., and O'CONNOR and SCALIA, JJ., joined, and an opinion with
respect to Parts III -A, III
-C, and III-D, in which
REHNQUIST, C. J., and SCALIA, J., joined. O'CONNOR, J.,
post, p. 586, and BREYER, J.,
post, p. 589, filed
opinions concurring in part and concurring in the judgment.
KENNEDY, J., filed an opinion concurring in the judgment, in which
SOUTER and GINSBURG, JJ., joined,
post, p. 591. STEVENS, J.,
filed a dissenting opinion,
post, p. 602.
Solicitor General Olson argued the cause for
petitioner.
With him on the briefs were Acting Assistant Attorney General
Schiffer, Deputy Solicitor General Kneedler, Irving L. Gornstein,
Barbara L. Herwig, Jacob M. Lewis, and Charles Scarborough.
Ann E. Beeson argued the cause for respondents. With her on the
briefs were Christopher A. Hansen, Steven R. Shapiro, Stefan
Presser, David L. Sobel, Alexandra A. E. Shapiro, and Christopher
R. Harris.
*
*Briefs of
amici curiae urging reversal were filed for
the County of DuPage by
Richard Hodyl, Jr., Joseph E.
Birkett, and
Nancy J. Wolfe; for the
American Center for Law and Justice by
Jay Alan Sekulow, James
M. Henderson, Sr., Colby M. May, and
Walter M. Weber;
for Morality in Media, Inc., et al. by
Paul J.
McGeady, Robin S.
Whitehead, and
Janet M.
LaRue; for Wallbuilders, Inc., by
Barry C.
Hodge;
for Senator John S. McCain et al. by
Bruce A. Taylor; and
for Senator Raymond N. Haynes et al. by
Richard D. Ackerman
and
Gary G.
Kreep.
Briefs of
amici curiae urging affirmance were filed for
the American Society of Journalists and Authors et al. by
Carl
A. Solano, Theresa E. Loscalzo, Jennifer DuFault James, Joseph T.
Lukens, and
Dionna K. Litvin; for the Association of
National Advertisers, Inc., by
Steven G.
Brody
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566 ASHCROFT
v. AMERICAN CIVIL LIBERTIES UNION
JUSTICE THOMAS announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II, and IV, an
opinion with respect to Parts III-A, III-C, and III-D, in which THE
CHIEF JUSTICE and JUSTICE SCALIA join, and an opinion with respect
to Part III-B, in which THE CHIEF JUSTICE, JUSTICE O'CONNOR, and
JusTICE SCALIA join.
This case presents the narrow question whether the Child Online
Protection Act's (COPA or Act) use of "community standards" to
identify "material that is harmful to minors" violates the First
Amendment. We hold that this aspect of COPA does not render the
statute facially unconstitutional.
I
"The Internet ... offer[s] a forum for a true diversity of
political discourse, unique opportunities for cultural development,
and myriad avenues for intellectual activity." 47 U. S. C. §
230(a)(3) (1994 ed., Supp. V). While "surfing" the World Wide Web,
the primary method of remote information retrieval on the Internet
today,1 see App. in No. 99-1324
(CA3), p. 180 (hereinafter
App.), individuals can access material about topics ranging from
aardvarks to Zoroastrianism. One can use the Web to read thousands
of newspapers published around the globe, purchase tickets for a
matinee at the neighborhood movie theater, or follow the progress
of any Major League Baseball team on a pitch-by-pitch basis.
The Web also contains a wide array of sexually explicit
material, including hardcore pornography. See,
e. g.,
Amer-
and
Gilbert H. Weil; for the Association of American
Publishers, Inc., et al. by
R. Bruce Rich and
Jonathan
Bloom; for the Chamber of Commerce of the United States by
Jodie L. Kelley, Paul M. Smith, and
Robert
CornRevere; for the Society for the Scientific Study of
Sexuality et al. by
Marjorie Heins and
Joan E.
Bertin; and for Volunteer Lawyers for the Arts et al. by
Charles L. Kerr, Elliot M. Mincberg, and
Lawrence S.
Ottinger.
1 For a thorough explanation of the history, structure, and
operation of the Internet and World Wide Web, see
Reno v.
American Civil Liberties Union, 521 U. S. 844, 849-853
(1997).
567
ican Civil Liberties Union v.
Reno, 31 F. Supp. 2d
473, 484 (ED Pa. 1999). In 1998, for instance, there were
approximately 28,000 adult sites promoting pornography on the Web.
See H. R. Rep. No. 105-775, p. 7 (1998). Because "[n]avigating the
Web is relatively straightforward,"
Reno v.
American
Civil Liberties Union, 521 U. S. 844, 852
(1997), and access to the Internet is widely available in homes,
schools, and libraries across the country,2 see App. 177-178,
children may discover this pornographic material either by
deliberately accessing pornographic Web sites or by stumbling upon
them. See 31 F. Supp. 2d, at 476 ("A child with minimal knowledge
of a computer, the ability to operate a browser, and the skill to
type a few simple words may be able to access sexual images and
content over the World Wide Web").
Congress first attempted to protect children from exposure to
pornographic material on the Internet by enacting the
Communications Decency Act of 1996
(CDA), 110 Stat. 133. The
CDA prohibited the knowing transmission over the Internet of
obscene or indecent messages to any recipient under 18 years of
age. See 47 U. S. C. § 223(a). It also forbade any individual from
knowingly sending over or displaying on the Internet certain
"patently offensive" material in a manner available to persons
under 18 years of age. See § 223(d). The prohibition specifically
extended to "any comment, request, suggestion, proposal, image, or
other communication that, in context, depict[ed] or describ[ed], in
terms patently offensive as measured by contemporary community
standards, sexual or excretory activities or organs." §
223(d)(1).
2 When this litigation commenced in 1998, "[a]pproximately 70.2
million people of all ages use[d] the Internet in the United
States." App. 171. It is now estimated that 115.2 million Americans
use the Internet at least once a month and 176.5 million Americans
have Internet access either at home or at work. See More Americans
Online, New York Times, Nov. 19, 2001, p.
C7.
568
568 ASHCROFT
v. AMERICAN CIVIL LIBERTIES UNION
The
CDA provided two affirmative defenses to those
prosecuted under the statute. The first protected individuals who
took "good faith, reasonable, effective, and appropriate actions"
to restrict minors from accessing obscene, indecent, and patently
offensive material over the Internet. See § 223(e)(5)(A). The
second shielded those who restricted minors from accessing such
material "by requiring use of a verified credit card, debit
account, adult access code, or adult personal identification
number." § 223(e)(5)(B).
Notwithstanding these affirmative defenses, in
Reno
v.
American Civil Liberties Union, we held that the CDA's
regulation of indecent transmissions, see § 223(a), and the display
of patently offensive material, see § 223(d), ran afoul of the
First Amendment. We concluded that "the
CDA lack[ed] the
precision that the First Amendment requires when a statute
regulates the content of speech" because, "[i]n order to deny
minors access to potentially harmful speech, the
CDA
effectively suppress[ed] a large amount of speech that adults ha[d]
a constitutional right to receive and to address to one another."
521 U. S., at 874.
Our holding was based on three crucial considerations.
First, "existing technology did not include any effective method
for a sender to prevent minors from obtaining access to its
communications on the Internet without also denying access to
adults."
Id., at 876. Second, "[t]he breadth of the CDA's
coverage [was] wholly unprecedented."
Id., at 877. "Its
open-ended prohibitions embrace[d]," not only commercial speech or
commercial entities, but also "all nonprofit entities and
individuals posting indecent messages or displaying them on their
own computers in the presence of minors."
Ibid. In addition,
because the
CDA did not define the terms "indecent" and
"patently offensive," the statute "cover[ed] large amounts of
nonpornographic material with serious educational or other value."
Ibid. As a result, regulated subject matter under the
CDA extended to "discussions about prison rape or safe
sexual practices, artistic images that include nude subjects, and
arguably the card
569
catalog of the Carnegie Library."
Id., at 878. Third, we
found that neither affirmative defense set forth in the
CDA
"constitute[d] the sort of 'narrow tailoring' that [would] save an
otherwise patently invalid unconstitutional provision."
Id.,
at 882. Consequently, only the CDA's ban on the knowing
transmission of obscene messages survived scrutiny because obscene
speech enjoys no First Amendment protection. See
id., at
883.
After our decision in
Reno v.
American Civil Liberties
Union, Congress explored other avenues for restricting minors'
access to pornographic material on the Internet. In particular,
Congress passed and the President signed into law the Child Online
Protection Act, 112 Stat. 2681-736 (codified in 47 U. S. C. § 231
(1994 ed., Supp. V)). COPA prohibits any person from "knowingly and
with knowledge of the character of the material, in interstate or
foreign commerce by means of the World Wide Web, mak[ing] any
communication for commercial purposes that is available to any
minor and that includes any material that is harmful to minors." 47
U. S. C. § 231(a)(1).
Apparently responding to our objections to the breadth of the
CDA's coverage, Congress limited the scope of COPA's coverage in at
least three ways. First, while the
CDA applied to
communications over the Internet as a whole, including, for
example, e-mail messages, COPA applies only to material displayed
on the World Wide Web. Second, unlike the
CDA, COPA covers
only communications made "for commercial purposes." 3
Ibid.
And third, while the
CDA pro-
3 The statute provides that "[a] person shall be considered to
make a communication for commercial purposes only if such person is
engaged in the business of making such communications." 47 U. S. C.
§231(e)(2)(A) (1994 ed., Supp. V). COPA then defines the term
"engaged in the business" to mean a person:
"who makes a communication, or offers to make a communication,
by means of the World Wide Web, that includes any material that is
harmful to minors, devotes time, attention, or labor to such
activities, as a regular course of such person's trade or business,
with the objective of earning a profit as a result of such
activities (although it is not necessary that the
570
570 ASHCROFT
v. AMERICAN CIVIL LIBERTIES UNION
hibited "indecent" and "patently offensive" communications, COPA
restricts only the narrower category of "material that is harmful
to minors."
Ibid.
Drawing on the three-part test for obscenity set forth in
Miller v.
California, 413 U. S. 15 (1973), COPA
defines "material that is harmful to minors" as
"any communication, picture, image, graphic image file, article,
recording, writing, or other matter of any kind that is obscene or
that-
"(A) the average person, applying contemporary community
standards, would find, taking the material as a whole and with
respect to minors, is designed to appeal to, or is designed to
pander to, the prurient interest;
"(B) depicts, describes, or represents, in a manner patently
offensive with respect to minors, an actual or simulated sexual act
or sexual contact, an actual or simulated normal or perverted
sexual act, or a lewd exhibition of the genitals or post-pubescent
female breast; and
"(C) taken as a whole, lacks serious literary, artistic,
political, or scientific value for minors." 47 U. S. C. §
231(e)(6).
Like the
CDA, COPA also provides affirmative defenses to
those subject to prosecution under the statute. An individual may
qualify for a defense if he, "in good faith, has restricted access
by minors to material that is harmful to minors-(A) by requiring
the use of a credit card, debit account, adult access code, or
adult personal identification number; (B) by accepting a digital
certificate that verifies age; or
(C) by any other
reasonable measures that are feasible under available technology."
§ 231(c)(1). Persons violating COPA are subject to both civil and
criminal sanctions. A civil penalty of up to $50,000 may be imposed
for each violation of
person make a profit or that the making or offering to make such
communications be the person's sole or principal business or source
of income)." § 231(e)(2)(B).
571
the statute. Criminal penalties consist of up to six months in
prison and/or a maximum fine of $50,000. An additional fine of
$50,000 may be imposed for any intentional violation of the
statute. § 231(a).
One month before COPA was scheduled to go into effect,
respondents filed a lawsuit challenging the constitutionality of
the statute in the United States District Court for the Eastern
District of Pennsylvania. Respondents are a diverse group of
organizations,4 most of which maintain their own Web sites. While
the vast majority of content on their Web sites is available for
free, respondents all derive income from their sites. Some, for
example, sell advertising that is displayed on their Web sites,
while others either sell goods directly over their sites or charge
artists for the privilege of posting material. 31 F. Supp. 2d, at
487. All respondents either post or have members that post sexually
oriented material on the Web.
Id., at 480. Respondents' Web
sites contain "resources on obstetrics, gynecology, and sexual
health; visual art and poetry; resources designed for gays and
lesbians; information about books and stock photographic images
offered for sale; and online magazines."
Id., at 484.
In their complaint, respondents alleged that, although they
believed that the material on their Web sites was valuable for
adults, they feared that they would be prosecuted under COPA
because some of that material "could be construed as 'harmful to
minors' in some communities." App. 63. Respondents' facial
challenge claimed,
inter alia, that COPA violated adults'
rights under the First and Fifth Amend-
4 Respondents include the American Civil Liberties Union,
Androgony Books, Inc., d/b/a A Different Light Bookstores, the
American Booksellers Foundation for Free Expression, Artnet
Worldwide Corporation, BlackStripe, Addazi Inc. d/b/a Condomania,
the Electronic Frontier Foundation, the Electronic Privacy
Information Center, Free Speech Media, OBGYN.net, Philadelphia Gay
News, PlanetOut Corporation, Powell's Bookstore, Riotgrrl, Salon
Internet, Inc., and West Stock, Inc., now known as ImageState North
America, Inc.
572
572 ASHCROFT
v. AMERICAN CIVIL LIBERTIES UNION
ments because it (1) "create[d] an effective ban on
constitutionally protected speech by and to adults"; (2) "[was] not
the least restrictive means of accomplishing any compelling
governmental purpose"; and (3) "[was] substantially overbroad." 5
Id., at 100-10l.
The District Court granted respondents' motion for a preliminary
injunction, barring the Government from enforcing the Act until the
merits of respondents' claims could be adjudicated. 31 F. Supp. 2d,
at 499. Focusing on respondents' claim that COPA abridged the free
speech rights of adults, the District Court concluded that
respondents had established a likelihood of success on the merits.
Id., at 498. The District Court reasoned that because COPA
constitutes content-based regulation of sexual expression protected
by the First Amendment, the statute, under this Court's precedents,
was "presumptively invalid" and "subject to strict scrutiny."
Id., at 493. The District Court then held that respondents
were likely to establish at trial that COPA could not withstand
such scrutiny because, among other reasons, it was not apparent
that COPA was the least restrictive means of preventing minors from
accessing "harmful to minors" material.
Id., at 497.
The Attorney General of the United States appealed the District
Court's ruling.
American Civil Liberties Union v.
Reno, 217 F.3d
162 (CA3 2000). The United States Court of Appeals for
the Third Circuit affirmed. Rather than reviewing the District
Court's "holding that COPA was not likely to succeed in surviving
strict scrutiny analysis," the Court of Appeals based its decision
entirely on a ground that was not relied upon below and that was
"virtually ignored by the parties and the amicus in their
respective briefs."
I d., at 173-174. The Court of Appeals
concluded that
5 In three other claims, which are not relevant to resolving the
dispute at hand, respondents alleged that COPA infringed the free
speech rights of older minors, violated the right to "communicate
and access information anonymously," and was "unconstitutionally
vague." App. 101-102.
573
COPA's use of "contemporary community standards" to identify
material that is harmful to minors rendered the statute
substantially overbroad. Because "Web publishers are without any
means to limit access to their sites based on the geographic
location of particular Internet users," the Court of Appeals
reasoned that COPA would require "any material that might be deemed
harmful by the most puritan of communities in any state" to be
placed behind an age or credit card verification system.
Id., at 175. Hypothesizing that this step would require Web
publishers to shield "vast amounts of material,"
ibid., the
Court of Appeals was "persuaded that this aspect of COPA, without
reference to its other provisions, must lead inexorably to a
holding of a likelihood of unconstitutionality of the entire COPA
statute,"
id., at 174.
We granted the Attorney General's petition for certiorari, 532
U. S. 1037 (2001), to review the Court of Appeals' determination
that COPA likely violates the First Amendment because it relies, in
part, on community standards to identify material that is harmful
to minors, and now vacate the Court of Appeals' judgment.
II
The First Amendment states that "Congress shall make no law ...
abridging the freedom of speech." This provision embodies "[o]ur
profound national commitment to the free exchange of ideas."
Harte-Hanks Communications, Inc. v.
Connaughton,
491 U. S. 657,
686 (1989). "[A]s a general matter, 'the First Amendment means that
government has no power to restrict expression because of its
message, its ideas, its subject matter, or its content.'"
Bolger v.
Youngs Drug Products Corp., 463 U. S. 60, 65 (1983)
(quoting
Police Dept. of Chicago v.
Mosley, 408 U. S. 92, 95 (1972)).
However, this principle, like other First Amendment principles, is
not absolute. Cf.
Hustler Magazine, Inc. v.
Falwell,
485 U. S. 46, 56 (1988).
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574 ASHCROFT
v. AMERICAN CIVIL LIBERTIES UNION
Obscene speech, for example, has long been held to fall outside
the purview of the First Amendment. See,
e. g.,
Roth v.
United States, 354 U. S. 476, 484-485
(1957). But this Court struggled in the past to define obscenity in
a manner that did not impose an impermissible burden on protected
speech. See
Interstate Circuit, Inc. v.
Dallas, 390
U. S. 676, 704 (1968) (Harlan, J., concurring in part and
dissenting in part) (referring to the "intractable obscenity
problem"); see also
Miller v.
California, 413 U. S.,
at 20-23 (reviewing "the somewhat tortured history of th[is]
Court's obscenity decisions"). The difficulty resulted from the
belief that "in the area of freedom of speech and press the courts
must always remain sensitive to any infringement on genuinely
serious literary, artistic, political, or scientific expression."
Id., at 22-23.
Ending over a decade of turmoil, this Court in
Miller set
forth the governing three-part test for assessing whether material
is obscene and thus unprotected by the First Amendment: "(a)
[W]hether 'the average person,
applying contemporary community
standards' would find that the work, taken as a whole, appeals
to the prurient interest; (b) whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and (c) whether the work,
taken as a whole, lacks serious literary, artistic, political, or
scientific value."
Id., at 24 (citations omitted; emphasis
added).
Miller adopted the use of "community standards" from
Roth, which repudiated an earlier approach for assessing
objectionable material. Beginning in the 19th century, English
courts and some American courts allowed material to be evaluated
from the perspective of particularly sensitive persons. See,
e.
g., Queen v.
Hicklin [1868] L. R. 3 Q. B. 360; see also
Roth, 354 U. S., at 488-489, and n. 25 (listing relevant
cases). But in
Roth, this Court held that this sensitive
person standard was "unconstitutionally restrictive of
575
the freedoms of speech and press" and approved a standard
requiring that material be judged from the perspective of "the
average person, applying contemporary community standards."
Id., at 489. The Court preserved the use of community
standards in formulating the
Miller test, explaining that
they furnish a valuable First Amendment safeguard: "[T]he primary
concern ... is to be certain that ... [material] will be judged by
its impact on an average person, rather than a particularly
susceptible or sensitive person-or indeed a totally insensitive
one."
Miller, supra, at 33 (internal quotation marks
omitted); see also
Hamling v.
United States, 418 U. S. 87, 107 (1974)
(emphasizing that the principal purpose of the community standards
criterion "is to assure that the material is judged neither on the
basis of each juror's personal opinion, nor by its effect on a
particularly sensitive or insensitive person or group").
III
The Court of Appeals, however, concluded that this Court's prior
community standards jurisprudence "has no applicability to the
Internet and the Web" because "Web publishers are currently without
the ability to control the geographic scope of the recipients of
their communications." 217 F. 3d, at 180. We therefore must decide
whether this technological limitation renders COPA's reliance on
community standards constitutionally infirm.6
6While petitioner contends that a speaker on the Web possesses
the ability to communicate only with individuals located in
targeted geographic communities, Brief for Petitioner 29, n. 3, he
stipulated below that "[o]nce a provider posts its content on the
Internet and chooses to make it available to all, it generally
cannot prevent that content from entering any geographic
community." App. 187. The District Court adopted this stipulation
as a finding of fact, see
American Civil Liberties Union v.
Reno, 31 F. Supp. 2d 473, 484 (ED Pa. 1999), and petitioner
points to no evidence in the record suggesting that this finding is
clearly erroneous.
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576 ASHCROFT
v. AMERICAN CIVIL LIBERTIES UNION
Opinion of THOMAS, J.
A
In addressing this question, the parties first dispute the
nature of the community standards that jurors will be instructed to
apply when assessing, in prosecutions under COPA, whether works
appeal to the prurient interest of minors and are patently
offensive with respect to minors.7 Respondents contend that jurors
will evaluate material using "local community standards," Brief for
Respondents 40, while petitioner maintains that jurors will not
consider the community standards of any particular geographic area,
but rather will be "instructed to consider the standards of the
adult community as a whole, without geographic specification."
Brief for Petitioner 38.
In the context of this case, which involves a facial challenge
to a statute that has never been enforced, we do not think it
prudent to engage in speculation as to whether certain hypothetical
jury instructions would or would not be consistent with COP A, and
deciding this case does not require us to do so. It is sufficient
to note that community standards need not be defined by reference
to a precise geographic area. See
Jenkins v.
Georgia,
418 U. S. 153,
157 (1974) ("A State may choose to define an obscenity offense in
terms of 'contemporary community standards' as defined in
Miller without further specification ... or it may choose to
define the standards in more precise geographic terms, as was done
by California in
Miller"). Absent geographic
7 Although the phrase "contemporary community standards" appears
only in the "prurient interest" prong of the
Miller test,
see
Miller v.
California, 413 U. S. 15, 24 (1973),
this Court has indicated that the "patently offensive" prong of the
test is also a question of fact to be decided by a jury applying
contemporary community standards. See,
e. g., Pope v.
Illinois, 481
U. S. 497, 500 (1987). The parties here therefore agree that
even though "contemporary community standards" are similarly
mentioned only in the "prurient interest" prong of COPA's
harmful-to-minors definition, see 47 U. S. C. § 231(e)(6)(A),
jurors will apply "contemporary community standards" as well in
evaluating whether material is "patently offensive with respect to
minors," § 231(e)(6)(B).
577
specification, a juror applying community standards will
inevitably draw upon personal "knowledge of the community or
vicinage from which he comes."
Hamling, supra, at 105.
Petitioner concedes the latter point, see Reply Brief for
Petitioner 3-4, and admits that, even if jurors were instructed
under COPA to apply the standards of the adult population as a
whole, the variance in community standards across the country could
still cause juries in different locations to reach inconsistent
conclusions as to whether a particular work is "harmful to minors."
Brief for Petitioner 39.
B
Because juries would apply different standards across the
country, and Web publishers currently lack the ability to limit
access to their sites on a geographic basis, the Court of Appeals
feared that COPA's "community standards" component would
effectively force all speakers on the Web to abide by the "most
puritan" community's standards. 217 F. 3d, at 175. And such a
requirement, the Court of Appeals concluded, "imposes an
overreaching burden and restriction on constitutionally protected
speech."
Id., at 177.
In evaluating the constitutionality of the
CDA, this
Court expressed a similar concern over that statute's use of
community standards to identify patently offensive material on the
Internet. We noted that "the 'community standards' criterion as
applied to the Internet means that any communication available to a
nationwide audience will be judged by the standards of the
community most likely to be offended by the message."
Reno,
521 U. S., at 877-878. The Court of Appeals below relied heavily on
this observation, stating that it was "not persuaded that the
Supreme Court's concern with respect to the 'community standards'
criterion has been sufficiently remedied by Congress in COPA." 217
F. 3d, at 174.
The CDA's use of community standards to identify patently
offensive material, however, was particularly problem-
578
578 ASHCROFT
v. AMERICAN CIVIL LIBERTIES UNION
Opinion of THOMAS, J.
atic in light of that statute's unprecedented breadth and
vagueness. The statute covered communications depicting or
describing "sexual or excretory activities or organs" that were
"patently offensive as measured by contemporary community
standards"-a standard somewhat similar to the second prong of
Miller's three-prong test. But the
CDA did not
include any limiting terms resembling
Miller's additional
two prongs. See
Reno, 521 U. S., at 873. It neither
contained any requirement that restricted material appeal to the
prurient interest nor excluded from the scope of its coverage works
with serious literary, artistic, political, or scientific value.
Ibid. The tremendous breadth of the
CDA magnified the
impact caused by differences in community standards across the
country, restricting Web publishers from openly displaying a
significant amount of material that would have constituted
protected speech in some communities across the country but run
afoul of community standards in others.
COPA, by contrast, does not appear to suffer from the same flaw
because it applies to significantly less material than did the
CDA and defines the harmful-to-minors material restricted by
the statute in a manner parallel to the
Miller definition of
obscenity. See
supra, at 569-570, 574-575. To fall within
the scope of COPA, works must not only "depic[t], describ[e], or
represen[t], in a manner patently offensive with respect to
minors," particular sexual acts or parts of the anatomy,S they must
also be designed to appeal to the prurient interest of minors and,
"taken as a whole, lac[k] serious
8 While the CDA allowed juries to find material to be patently
offensive so long as it depicted or described "sexual or excretory
activities or organs," COPA specifically delineates the sexual
activities and anatomical features, the depictions of which may be
found to be patently offensive: "an actual or simulated sexual act
or sexual contact, an actual or simulated normal or perverted
sexual act, or a lewd exhibition of the genitals or post-pubescent
female breast." 47 U. S. C. § 231(e)(6)(B).
579
literary, artistic, political, or scientific value for minors."
47 U. S. C. § 231(e)(6).
These additional two restrictions substantially limit the amount
of material covered by the statute. Material appeals to the
prurient interest, for instance, only if it is in some sense
erotic. Cf.
Erznoznik v.
Jacksonville, 422 U. S. 205, 213, and
n. 10 (1975).9 Of even more significance, however, is COPA's
exclusion of material with serious value for minors. See 47 U. S.
C. §231(e)(6)(C). In
Reno, we emphasized that the serious
value "requirement is particularly important because, unlike the
'patently offensive' and 'prurient interest' criteria, it is not
judged by contemporary community standards." 521 U. S., at 873
(citing
Pope v.
Illinois, 481 U. S. 497, 500
(1987)). This is because "the value of [a] work [does not] vary
from community to community based on the degree of local acceptance
it has won."
Ibid. Rather, the relevant question is "whether
a reasonable person would find ... value in the material, taken as
a whole."
Id., at 501. Thus, the serious value requirement
"allows appellate courts to impose some limitations and regularity
on the definition by setting,
as a matter of law, a national
floor for socially redeeming value."
Reno, supra, at 873
(emphasis added), a safeguard nowhere present in the CDA.l0
9 JUSTICE STEVENS argues that the "prurient interest" prong does
not "substantially narrow the category of images covered" by COPA
because "[a]rguably every depiction of nudity-partial or full-is in
some sense erotic
with respect to minors," post, at 607-608
(dissenting opinion) (emphasis in original). We do not agree. For
example, we have great difficulty understanding how pictures of a
war victim's wounded nude body could reasonably be described under
the vast majority of circumstances as erotic, especially when
evaluated from the perspective of minors. See Webster's Ninth New
Collegiate Dictionary 422 (1991) (defining erotic as "of, devoted
to, or tending to arouse sexual love or desire").
10 JUSTICE STEVENS contends that COPA's serious value prong only
marginally limits the sweep of the statute because it does not
protect all material with serious value but just those works with
serious value
for minors. See
post, at 608. His
dissenting opinion, however, does not refer to any evidence
supporting this counterintuitive assertion, and there
580
580 ASHCROFT
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Opinion of THOMAS, J.
C
When the scope of an obscenity statute's coverage is
sufficiently narrowed by a "serious value" prong and a "prurient
interest" prong, we have held that requiring a speaker
disseminating material to a national audience to observe varying
community standards does not violate the First Amendment. In
Hamling v.
United States, 418 U. S. 87 (1974), this
Court considered the constitutionality of applying community
standards to the determination of whether material is obscene under
18 U. S. C. § 1461, the federal statute prohibiting the mailing of
obscene material. Although this statute does not define obscenity,
the petitioners in
Hamling were tried and convicted under
the definition of obscenity set forth in
Book Named "John
Cleland's Memoirs of a Woman of Pleasure" v.
Attorney
General of Mass., 383 U. S. 413 (1966),
which included both a "prurient interest" requirement and a
requirement that prohibited material be "'utterly without redeeming
social value.'"
Hamling, supra, at 99 (quoting
Memoirs,
supra, at 418).
Like respondents here, the dissenting opinion in
Hamling
argued that it was unconstitutional for a federal statute to rely
on community standards to regulate speech. Justice Brennan
maintained that "[n]ational distributors choosing to send their
products in interstate travels [would] be forced to cope with the
community standards of every hamlet into which their goods [might]
wander." 418 U. S., at 144. As a result, he claimed that the
inevitable result of this situation would be "debilitating
self-censorship that abridges the First Amendment rights of the
people."
Ibid.
This Court, however, rejected Justice Brennan's argument that
the federal mail statute unconstitutionally compelled
is certainly none in the record suggesting that COPA restricts
about the same amount of material as did the CDA. Moreover, JUSTICE
STEVENS does not dispute that COPA's "serious value" prong serves
the important purpose of allowing appellate courts to set "as a
matter of law, a national floor for socially redeeming value."
Reno, 521 U. S., at 873.
581
speakers choosing to distribute materials on a national basis to
tailor their messages to the least tolerant community:
"The fact that distributors of allegedly obscene materials may
be subjected to varying community standards in the various federal
judicial districts into which they transmit the materials does not
render a federal statute unconstitutional."
Id., at 106.
Fifteen years later,
Hamling's holding was reaffirmed in
Sable Communications of Cal., Inc. v.
FCC, 492 U. S. 115 (1989).
Sable addressed the constitutionality of 47 U. S. C. § 223(b)
(1982 ed., Supp. V), a statutory provision prohibiting the use of
telephones to make obscene or indecent communications for
commercial purposes. The petitioner in that case, a "dial-a-porn"
operator, challenged, in part, that portion of the statute banning
obscene phone messages. Like respondents here, the "dial-a-porn"
operator argued that reliance on community standards to identify
obscene material impermissibly compelled "message senders ... to
tailor all their messages to the least tolerant community." 492 U.
S., at 124.11 Relying on
Hamling, however, this Court once
again rebuffed this attack on the use of community standards in a
federal statute of national scope: "There is no constitutional
barrier under
Miller to prohibiting communications that are
obscene in some communities under local standards even though they
are not obscene in others.
If Sable's audience is comprised of
different communities with different local standards, Sable
ultimately bears the burden of complying with the prohibition on
obscene messages." 492 U. S., at 125-126 (emphasis added).
The Court of Appeals below concluded that
Hamling and
Sable "are easily distinguished from the present case"
because in both of those cases "the defendants had the ability
11 Although nowhere mentioned in the relevant statutory text,
this Court has held that the
Miller test defines regulated
speech for purposes of federal obscenity statutes such as 47 U. S.
C. § 223(b) (1994 ed.). See,
e. g., Smith v.
United States, 431 U. S. 291, 299
(1977).
582
582 ASHCROFT
v. AMERICAN CIVIL LIBERTIES UNION
Opinion of THOMAS, J.
to control the distribution of controversial material with
respect to the geographic communities into which they released it"
whereas "Web publishers have no such comparable control." 217 F.
3d, at 175-176. In neither
Hamling nor
Sable,
however, was the speaker's ability to target the release of
material into particular geographic areas integral to the legal
analysis. In
Hamling, the ability to limit the distribution
of material to targeted communities was not mentioned, let alone
relied upon,12 and in
Sable, a dial-a-porn operator's
ability to screen incoming calls from particular areas was
referenced only as a supplemental point, see 492 U. S., at 125.13
In the latter case, this Court made no effort to evaluate how
burdensome it would have been for dial-aporn operators to tailor
their messages to callers from thousands of different communities
across the Nation, instead concluding that the burden of complying
with the statute rested with those companies. See
id., at
126.
12 This fact was perhaps omitted because under the federal
statute at issue in
Hamling v.
United States,
418 U. S. 87
(1974), a defendant could be prosecuted in any district through
which obscene mail passed while it was on route to its destination,
see
id., at 143-144 (Brennan, J., dissenting), and a postal
customer obviously lacked the ability to control the path his
letter traveled as it made its way to its intended recipient.
13 JUSTICE STEVENS' contention that this Court "upheld the
application of community standards to a nationwide medium" in
Sable due to the fact that "[it] was at least possible" for
dial-a-porn operators to tailor their messages to particular
communities is inaccurate. See
post, at 605 (dissenting
opinion). This Court's conclusion clearly did not hinge either on
the fact that dial-a-porn operators could prevent callers in
particular communities from accessing their messages or on an
assessment of how burdensome it would have been for dial-a-porn
operators to take that step. Rather, these companies were required
to abide by the standards of various communities for the sole
reason that they transmitted their material into those communities.
See
Sable, 492 U. S., at 126 ("If Sable's audience is
comprised of different communities with different local standards,
Sable ultimately bears the burden of complying with the prohibition
on obscene messages").
583
While JUSTICE KENNEDY and JUSTICE STEVENS question the
applicability of this Court's community standards jurisprudence to
the Internet, we do not believe that the medium's "unique
characteristics" justify adopting a different approach than that
set forth in
Hamling and
Sable. See
post, at
594-595 (KENNEDY, J., concurring in judgment). If a publisher
chooses to send its material into a particular community, this
Court's jurisprudence teaches that it is the publisher's
responsibility to abide by that community's standards. The
publisher's burden does not change simply because it decides to
distribute its material to every community in the Nation. See
Sable, supra, at 125-126. Nor does it change because the
publisher may wish to speak only to those in a "community where
avant garde culture is the norm,"
post, at 595 (KENNEDY, J.,
concurring in judgment), but nonetheless utilizes a medium that
transmits its speech from coast to coast. If a publisher wishes for
its material to be judged only by the standards of particular
communities, then it need only take the simple step of utilizing a
medium that enables it to target the release of its material into
those communities.14
Respondents offer no other grounds upon which to distinguish
this case from
Hamling and
Sable. While those cases
involved obscenity rather than material that is harmful to minors,
we have no reason to believe that the practical effect of varying
community standards under COPA, given the statute's definition of
"material that is harmful to minors," is significantly greater than
the practical effect of varying
14 In addition, COPA does not, as JUSTICE KENNEDY suggests,
"'foreclose an entire medium of expression.'''
Post, at 596
(quoting
City of Ladue v.
Gilleo, 512 U. S. 43, 55 (1994)).
While JUSTICE KENNEDY and JUSTICE STEVENS repeatedly imply that
COPA banishes from the Web material deemed harmful to minors by
reference to community standards, see,
e. g., post, at 596
(opinion concurring in judgment);
post, at 608-609, 612
(dissenting opinion), the statute does no such thing. It only
requires that such material be placed behind adult identification
screens.
584
584 ASHCROFT
v. AMERICAN CIVIL LIBERTIES UNION
Opinion of THOMAS, J.
community standards under federal obscenity statutes. It is
noteworthy, for example, that respondents fail to point out even a
single exhibit in the record as to which coverage under COPA would
depend upon which community in the country evaluated the material.
As a result, if we were to hold COPA unconstitutional
because
of its use of community standards, federal obscenity statutes
would likely also be unconstitutional as applied to the Web,15 a
result in substantial tension with our prior suggestion that the
application of the
CDA to obscene speech was constitutional.
See
Reno, 521 U. S., at 877, n. 44, 882-883.
D
Respondents argue that COPA is "unconstitutionally overbroad"
because it will require Web publishers to shield some material
behind age verification screens that could be displayed openly in
many communities across the Nation if Web speakers were able to
limit access to their sites on a geographic basis. Brief for
Respondents 33-34. "[T]o prevail in a facial challenge," however,
"it is not enough for a plaintiff to show 'some' overbreadth."
Reno, supra, at 896 (O'CONNOR, J., concurring in judgment in
part and dissenting in part). Rather, "the overbreadth of a statute
must not only be real, but substantial as well."
Broadrick
v.
Oklahoma,
413 U. S. 601, 615
(1973). At this stage of the litigation, respondents have failed to
satisfy this burden, at least solely as a result of COPA's reliance
on community standards.16 Because Congress has narrowed the range
of con-
15 Obscene material, for instance, explicitly falls within the
coverage of COPA. See 47 U. S. C. §231(e)(6) (1994 ed., Supp.
V).
16 JUSTICE STEVENS' conclusion to the contrary is based on
little more than "speculation." See,
e. g.,
post, at 598 (KENNEDY, J., concurring in judgment). The only
objective evidence cited in the dissenting opinion for the
proposition that COPA "will restrict a substantial amount of
protected speech that would not be considered harmful to minors in
many communities" are various anecdotes compiled in an
amici
brief. See
post, at 611, and n. 7 (citing Brief for
Volunteer Lawyers for the Arts et al. as
Amici
585
tent restricted by COPA in a manner analogous to
Miller's
definition of obscenity, we conclude, consistent with our holdings
in
Hamling and
Sable, that any variance caused by the
statute's reliance on community standards is not substantial enough
to violate the First Amendment.
IV
The scope of our decision today is quite limited. We hold only
that COPA's reliance on community standards to identify "material
that is harmful to minors" does not
by itself render the
statute substantially overbroad for purposes of the First
Amendment. We do not express any view as to whether COPA suffers
from substantial overbreadth for other reasons, whether the statute
is unconstitutionally vague, or whether the District Court
correctly concluded that the statute likely will not survive strict
scrutiny analy-
Curiae 4-10). JUSTICE STEVENS, however, is not even
willing to represent that these anecdotes relate to material
restricted under COPA, see
post, at 611, and we understand
his reluctance for the vast majority of the works cited in that
brief, if not all of them, are likely unaffected by the statute.
See Brief for Volunteer Lawyer for the Arts et al. as
Amici
Curiae 4-10 (describing, among other incidents, controversies
in various communities regarding Maya Angelou's I Know Why The
Caged Bird Sings, Judy Blume's Are You There God? It's Me,
Margaret, Aldous Huxley's Brave New World, J. D. Salinger's Catcher
in the Rye, 1993 Academy Award Best Picture nominee The Piano, the
American Broadcasting Corporation television network's NYPD Blue,
and songs of the "popular folkrock duo" the Indigo Girls). These
anecdotes are therefore of questionable relevance to the matter at
hand and certainly do not constitute a sufficient basis for
invalidating a federal statute.
Moreover, we do not agree with JUSTICE KENNEDY'S suggestion that
it is necessary for the Court of Appeals to revisit this question
upon remand. See
post, at 597-599. The lack of evidence in
the record relevant to the question presented does not indicate
that "we should vacate for further consideration."
Post, at
599. Rather, it indicates that respondents, by offering little more
than "speculation," have failed to meet their burden of
demonstrating in this facial challenge that COPA's reliance on
community standards renders the statute substantially
overbroad.
586
586 ASHCROFT
v. AMERICAN CIVIL LIBERTIES UNION
Opinion of O'CONNOR, J.
sis once adjudication of the case is completed below. While
respondents urge us to resolve these questions at this time,
prudence dictates allowing the Court of Appeals to first examine
these difficult issues.
Petitioner does not ask us to vacate the preliminary injunction
entered by the District Court, and in any event, we could not do so
without addressing matters yet to be considered by the Court of
Appeals. As a result, the Government remains enjoined from
enforcing COPA absent further action by the Court of Appeals or the
District Court.
For the foregoing reasons, we vacate the judgment of the Court
of Appeals and remand the case for further proceedings.
It is so ordered.
JUSTICE O'CONNOR, concurring in part and concurring in the
judgment.
I agree with the plurality that even if obscenity on the
Internet is defined in terms of local community standards,
respondents have not shown that the Child Online Protection Act
(COPA) is overbroad solely on the basis of the variation in the
standards of different communities. See
ante, at 577579.
Like JUSTICE BREYER, however, see
post, at 589 (opinion
concurring in part and concurring in judgment), I write separately
to express my views on the constitutionality and desirability of
adopting a national standard for obscenity for regulation of the
Internet.
The plurality's opinion argues that, even under local community
standards, the variation between the most and least restrictive
communities is not so great with respect to the narrow category of
speech covered by COPA as to, alone, render the statute
substantially overbroad. See
ante, at 577-579. I agree,
given respondents' failure to provide examples of materials that
lack literary, artistic, political, and scientific value for
minors, which would nonetheless result in variation among
communities judging the other elements of the test. Respondents'
examples of material for which com-
587
munity standards would vary include such things as the
appropriateness of sex education and the desirability of adoption
by same-sex couples. Brief for Respondents 43. Material addressing
the latter topic, however, seems highly unlikely to be seen to
appeal to the prurient interest in any community, and educational
material like the former must, on any objective inquiry, see
ante, at 579, have scientific value for minors.
But respondents' failure to prove substantial overbreadth on a
facial challenge in this case still leaves open the possibility
that the use of local community standards will cause problems for
regulation of obscenity on the Internet, for adults as well as
children, in future cases. In an as-applied challenge, for
instance, individual litigants may still dispute that the standards
of a community more restrictive than theirs should apply to them.
And in future facial challenges to regulation of obscenity on the
Internet, litigants may make a more convincing case for substantial
overbreadth. Where adult speech is concerned, for instance, there
may in fact be a greater degree of disagreement about what is
patently offensive or appeals to the prurient interest.
Nor do I think such future cases can be resolved by application
of the approach we took in
Hamling v.
United States,
418 U. S. 87
(1974), and
Sable Communications of Cal., Inc. v.
FCC, 492 U. S.
115 (1989). I agree with JUSTICE KENNEDY that, given Internet
speakers' inability to control the geographic location of their
audience, expecting them to bear the burden of controlling the
recipients of their speech, as we did in
Hamling and
Sable, may be entirely too much to ask, and would
potentially suppress an inordinate amount of expression. See
post, at 594-596 (opinion concurring in judgment); contra,
ante, at 580-584. For these reasons, adoption of a national
standard is necessary in my view for any reasonable regulation of
Internet obscenity.
Our precedents do not forbid adoption of a national standard.
Local community-based standards originated with
588
588 ASHCROFT
v. AMERICAN CIVIL LIBERTIES UNION
Opinion of O'CONNOR, J.
Miller v.
California, 413 U. S. 15 (1973). In
that case, we approved jury instructions that based the relevant
"community standards" on those of the State of California rather
than on the Nation as a whole. In doing so, we held that "[n]othing
in the First Amendment requires" that a jury consider national
standards when determining if something is obscene as a matter of
fact.
Id., at 31. The First Amendment, we held, did not
require that "the people of Maine or Mississippi accept public
depiction of conduct found tolerable in Las Vegas, or New York
City."
Id., at 32. But we said nothing about the
constitutionality of jury instructions that would contemplate a
national standard-i.
e., requiring that the people who live
in all of these places hold themselves to what the nationwide
community of adults would find was patently offensive and appealed
to the prurient interest.
Later, in
Jenkins v.
Georgia, 418 U. S. 153, 157
(1974), we confirmed that
"Miller approved the use of
[instructions based on local standards]; it did not mandate their
use." The instructions we approved in that case charged the jury
with applying "community standards" without designating any
particular "community." In holding that a State may define the
obscenity standard by stating the
Miller standard without
further specification, 418 U. S., at 157,
Jenkins left open
the possibility that jurors would apply any number of standards,
including a national standard, in evaluating material's
obscenity.
To be sure, the Court in
Miller also stated that a
national standard might be "unascertainable," 413 U. S., at 31, and
"[un]realistic,"
id., at 32. But where speech on the
Internet is concerned, I do not share that skepticism. It is true
that our Nation is diverse, but many local communities encompass a
similar diversity. For instance, in
Miller itself, the jury
was instructed to consider the standards of the entire State of
California, a large (today, it has a population of greater than 33
million people, see U. S. Dept. of Commerce, Bureau of Census,
Statistical Abstract of the United States 23 (120th
589
ed. 2000) (Table 20)) and diverse State that includes both
Berkeley and Bakersfield. If the
Miller Court believed
generalizations about the standards of the people of California
were possible, and that jurors would be capable of assessing them,
it is difficult to believe that similar generalizations are not
also possible for the Nation as a whole. Moreover, the existence of
the Internet, and its facilitation of national dialogue, has itself
made jurors more aware of the views of adults in other parts of the
United States. Although jurors asked to evaluate the obscenity of
speech based on a national standard will inevitably base their
assessments to some extent on their experience of their local
communities, I agree with JUSTICE BREYER that the lesser degree of
variation that would result is inherent in the jury system and does
not necessarily pose a First Amendment problem. See
post, at
591. In my view, a national standard is not only constitutionally
permissible, but also reasonable.
While I would prefer that the Court resolve the issue before it
by explicitly adopting a national standard for defining obscenity
on the Internet, given respondents' failure to demonstrate
substantial overbreadth due solely to the variation between local
communities, I join Parts I, II, III-B, and IV of JUSTICE THOMAS'
opinion and the judgment.
JUSTICE BREYER, concurring in part and concurring in the
judgment.
I write separately because I believe that Congress intended the
statutory word "community" to refer to the N ation's adult
community taken as a whole, not to geographically separate local
areas. The statutory language does not explicitly describe the
specific "community" to which it refers. It says only that the
"average person, applying contemporary community standards," must
find that the "material as a whole and with respect to minors, is
designed to appeal to, or is designed to pander to, the prurient
interest .... " 47 U. S. C. § 231(e)(6) (1994 ed., Supp. V).
590
590 ASHCROFT
v. AMERICAN CIVIL LIBERTIES UNION
Opinion of BREYER, J.
In the statute's legislative history, however, Congress made
clear that it did not intend this ambiguous statutory phrase to
refer to separate standards that might differ significantly among
different communities. The relevant House of Representatives Report
says:
"The Committee recognizes that the applicability of community
standards in the context of the Web is controversial, but
understands it as an 'adult' standard, rather than a 'geographic'
standard, and one that is reasonably constant among adults in
America with respect to what is suitable for minors." H. R. Rep.
No. 105-775, p. 28 (1998) (emphasis added).
This statement, reflecting what apparently was a uniform view
within Congress, makes clear that the standard, and the relevant
community, is national and adult.
At the same time, this view of the statute avoids the need to
examine the serious First Amendment problem that would otherwise
exist. See
Almendarez-Torres v.
United States,
523 U. S. 224,
237-238 (1998);
Ashwander v.
TV A, 297 U. S. 288, 348
(1936) (Brandeis, J., concurring) (" 'When the validity of an act
of the Congress is drawn in question, and even if a serious doubt
of constitutionality is raised, it is a cardinal principle that
this Court will first ascertain whether a construction of the
statute is fairly possible by which the question may be avoided'
"). To read the statute as adopting the community standards of
every locality in the United States would provide the most puritan
of communities with a heckler's Internet veto affecting the rest of
the Nation. The technical difficulties associated with efforts to
confine Internet material to particular geographic areas make the
problem particularly serious. See
American Civil Liberties
Union v.
Reno, 217 F.3d
162, 175-176
(CA3 2000). And these special difficulties
also potentially weaken the authority of prior cases in which they
were not present. Cf.
Sable
591
Communications of Cal., Inc. v.
FCC, 492 U. S. 115 (1989);
Hamling v.
United States, 418 U. S. 87 (1974). A
nationally uniform adult-based standard-which Congress, in its
Committee Report, said that it intended-significantly alleviates
any special need for First Amendment protection. Of course some
regional variation may remain, but any such variations are inherent
in a system that draws jurors from a local geographic area and they
are not, from the perspective of the First Amendment, problematic.
See
id., at 105-106.
For these reasons I do not join Part III of JUSTICE THOMAS'
opinion, although I agree with much of the reasoning set forth in
Parts III-B and III-D, insofar as it explains the conclusion to
which I just referred, namely, that variation reflecting
application of the same national standard by different local juries
does not violate the First Amendment.
JUSTICE KENNEDY, with whom JUSTICE SOUTER and JUSTICE GINSBURG
join, concurring in the judgment.
I
If a law restricts substantially more speech than is justified,
it may be subject to a facial challenge.
Broadrick v.
Oklahoma, 413
U. S. 601, 615 (1973). There is a very real likelihood that the
Child Online Protection Act (COPA or Act) is overbroad and cannot
survive such a challenge. Indeed, content-based regulations like
this one are presumptively invalid abridgments of the freedom of
speech. See
R. A. v: v.
St. Paul, 505 U. S. 377, 382
(1992). Yet COPA is a major federal statute, enacted in the wake of
our previous determination that its predecessor violated the First
Amendment. See
Reno v.
American Civil Liberties
Union, 521 U. S.
844 (1997). Congress and the President were aware of our
decision, and we should assume that in seeking to comply with it
they have given careful consideration to the constitutionality of
the new enactment. For these reasons, even if this facial challenge
appears to have consider-
592
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KENNEDY, J., concurring in judgment
able merit, the Judiciary must proceed with caution and identify
overbreadth with care before invalidating the Act.
In this case, the District Court issued a preliminary injunction
against enforcement of COPA, finding it too broad across several
dimensions. The Court of Appeals affirmed, but on a different
ground. COPA defines "material that is harmful to minors" by
reference to "contemporary community standards," 47 U. s. C. §
231(e)(6) (1994 ed., Supp. V); and on the theory that these vary
from place to place, the Court of Appeals held that the definition
dooms the statute "without reference to its other provisions."
American Civil Liberties Union v.
Reno, 217 F.3d
162, 174
(CA3 2000). The Court of Appeals found it
unnecessary to construe the rest of the Act or address the District
Court's reasoning.
This single, broad proposition, stated and applied at such a
high level of generality, cannot suffice to sustain the Court of
Appeals' ruling. To observe only that community standards vary
across the country is to ignore the antecedent question: community
standards as to what? Whether the national variation in community
standards produces overbreadth requiring invalidation of COPA, see
Broadrick, supra, depends on the breadth of COPA's coverage
and on what community standards are being invoked. Only by
identifying the universe of speech burdened by COPA is it possible
to discern whether national variation in community standards
renders the speech restriction overbroad. In short, the ground on
which the Court of Appeals relied cannot be separated from those
that it overlooked.
The statute, for instance, applies only to "communication for
commercial purposes." 47 U. S. C. § 231(e)(2)(A). The Court of
Appeals, however, did not consider the amount of commercial
communication, the number of commercial speakers, or the character
of commercial speech covered by the Act. Likewise, the statute's
definition of "harmful to minors" requires material to be judged
"as a whole." § 231(e)(6)(C). The notion of judging work as a whole
is
593
familiar in other media, but more difficult to define on the
World Wide Web. It is unclear whether what is to be judged as a
whole is a single image on a Web page, a whole Web page, an entire
multipage Web site, or an interlocking set of Web sites. Some
examination of the group of covered speakers and the categories of
covered speech is necessary in order to comprehend the extent of
the alleged overbreadth.
The Court of Appeals found that COP A in effect subjects every
Internet speaker to the standards of the most puritanical community
in the United States. This concern is a real one, but it alone
cannot suffice to invalidate COPA without careful examination of
the speech and the speakers within the ambit of the Act. For this
reason, I join the judgment of the Court vacating the opinion of
the Court of Appeals and remanding for consideration of the statute
as a whole. Unlike JUSTICE THOMAS, however, I would not assume that
the Act is narrow enough to render the national variation in
community standards unproblematic. Indeed, if the District Court
correctly construed the statute across its other dimensions, then
the variation in community standards might well justify enjoining
enforcement of the Act. I would leave that question to the Court of
Appeals in the first instance.
II
COPA provides a three-part conjunctive definition of "material
that is harmful to minors." The first part of the definition is
that "the average person, applying contemporary community
standards, would find, taking the material as a whole and with
respect to minors, [that it] is designed to appeal to, or is
designed to pander to, the prurient interest." 47 U. S. C. §
231(e)(6)(A). (The parties agree that the second part of the
definition, § 231(e)(6)(B), likewise invokes contemporary community
standards, though only implicitly. See
ante, at 576, n. 7.)
The nub of the problem is, as the Court has said, that "the
'community standards' criterion as applied to the Internet means
that any communication available to
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a nationwide audience will be judged by the standards of the
community most likely to be offended by the message."
Reno,
521 U. S., at 877-878. If material might be considered harmful to
minors in any community in the United States, then the material is
covered by COPA, at least when viewed in that place. This
observation was the linchpin of the Court of Appeals' analysis, and
we must now consider whether it alone suffices to support the
holding below.
The quoted sentence from
Reno was not casual dicta;
rather, it was one rationale for the holding of the case. In
Reno, the Court found "[t]he breadth of [COPA's predecessor]
... wholly unprecedented,"
id., at 877, in part because of
variation in community standards. The Court also relied on that
variation to assess the strength of the Government's interest,
which it found "not equally strong throughout the coverage of this
broad statute."
Id., at 878. The Court illustrated the point
with an example: A parent who e-mailed birth control information to
his 17-year-old child at college might violate the Act, "even
though neither he, his child, nor anyone in their home community
found the material 'indecent' or 'patently offensive,' if the
college town's community thought otherwise."
Ibid. Variation
in community standards rendered the statute broader than the scope
of the Government's own expressed compelling interest.
It is true, as JUSTICE THOMAS points out,
ante, at
580-583, that requiring a speaker addressing a national audience to
meet varying community standards does not always violate the First
Amendment. See
Hamling v.
United States, 418 U. S.
87, 106 (1974) (obscene mailings);
Sable Communications of Cal.,
Inc. v.
FCC, 492 U. S. 115, 125-126
(1989) (obscene phone messages). These cases, however, are of
limited utility in analyzing the one before us, because each mode
of expression has its own unique characteristics, and each "must be
assessed for First Amendment purposes by standards suited to it."
Southeastern Promotions, Ltd. v.
Con-
595
rad, 420 U.
S. 546, 557 (1975). Indeed, when Congress purports to abridge
the freedom of a new medium, we must be particularly attentive to
its distinct attributes, for "differences in the characteristics of
new media justify differences in the First Amendment standards
applied to them."
Red Lion Broadcasting Co. v.
FCC,
395 U. S. 367,
386 (1969). The economics and the technology of each medium affect
both the burden of a speech restriction and the Government's
interest in maintaining it.
In this case the District Court found as a fact that "[o]nce a
provider posts its content on the Internet and chooses to make it
available to all, it generally cannot prevent that content from
entering any geographic community."
American Civil Liberties
Union v.
Reno, 31 F. Supp. 2d 473, 484 (ED Pa. 1999). By
contrast, in upholding a ban on obscene phone messages, we
emphasized that the speaker could "hire operators to determine the
source of the calls or engag[e] with the telephone company to
arrange for the screening and blocking of out-of-area calls or
fined] another means for providing messages compatible with
community standards."
Sable, supra, at 125. And if we did
not make the same point in
Hamling, that is likely because
it is so obvious that mailing lends itself to geographic
restriction. (The Court has had no occasion to consider whether
venue would be proper in "every hamlet into which [obscene
mailings] may wander,"
Hamling, supra, at 144 (dissenting
opinion), for the petitioners in
Hamling did not challenge
the statute as overbroad on its face.) A publisher who uses the
mails can choose the location of his audience.
The economics and technology of Internet communication differ in
important ways from those of telephones and mail. Paradoxically, as
the District Court found, it is easy and cheap to reach a worldwide
audience on the Internet, see 31 F. Supp. 2d, at 482, but expensive
if not impossible to reach a geographic subset,
id., at 484.
A Web publisher in a community where avant garde culture is the
norm may have no
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desire to reach a national market; he may wish only to speak to
his neighbors; nevertheless, if an eavesdropper in a more
traditional, rural community chooses to listen in, there is nothing
the publisher can do. As a practical matter, COPA makes the
eavesdropper the arbiter of propriety on the Web. And it is no
answer to say that the speaker should "take the simple step of
utilizing a [different] medium."
Ante, at 583 (principal
opinion of THOMAS, J.). "Our prior decisions have voiced particular
concern with laws that foreclose an entire medium of expression
.... [T]he danger they pose to the freedom of speech is readily
apparent-by eliminating a common means of speaking, such measures
can suppress too much speech."
City of Ladue v.
Gilleo, 512 U.
S. 43, 55 (1994).
JUSTICE BREYER would alleviate the problem oflocal variation in
community standards by construing the statute to comprehend the "N
ation's adult community taken as a whole," rather than the local
community from which the jury is drawn.
Ante, at 589
(opinion concurring in part and concurring in judgment); see also
ante, at 586-589 (O'CONNOR, J., concurring in part and
concurring in judgment). There is one statement in a House
Committee Report to this effect, "reflecting," JUSTICE BREYER
writes, "what apparently was a uniform view within Congress."
Ante, at 590. The statement, perhaps, reflects the view of a
majority of one House committee, but there is no reason to believe
that it reflects the view of a majority of the House of
Representatives, let alone the "uniform view within Congress."
Ibid.
In any event, we need not decide whether the statute invokes
local or national community standards to conclude that vacatur and
remand are in order. If the statute does incorporate some concept
of national community standards, the actual standard applied is
bound to vary by community nevertheless, as the Attorney General
concedes. See
ante, at 577 (principal opinion of THOMAS,
J.); Brief for Petitioner 39.
597
For this reason the Court of Appeals was correct to focus on
COPA's incorporation of varying community standards; and it may
have been correct as well to conclude that in practical effect COPA
imposes the most puritanical community standard on the entire
country. We have observed that it is "neither realistic nor
constitutionally sound to read the First Amendment as requiring
that the people of Maine or Mississippi accept public depiction of
conduct found tolerable in Las Vegas, or New York City."
Miller v.
California, 413 U. S. 15, 32 (1973).
On the other hand, it is neither realistic nor beyond
constitutional doubt for Congress, in effect, to impose the
community standards of Maine or Mississippi on Las Vegas and New
York. "People in different States vary in their tastes and
attitudes, and this diversity is not to be strangled by the
absolutism of imposed uniformity."
Id., at 33. In striking
down COPA's predecessor, the
Reno Court identified this
precise problem, and if the
Hamling and
Sable Courts
did not find the problem fatal, that is because those cases
involved quite different media. The national variation in community
standards constitutes a particular burden on Internet speech.
III
The question that remains is whether this observation
"by
itself" suffices to enjoin the Act. See
ante, at 585. I
agree with the Court that it does not.
Ibid. We cannot know
whether variation in community standards renders the Act
substantially overbroad without first assessing the extent of the
speech covered and the variations in community standards with
respect to that speech.
First, the breadth of the Act itself will dictate the degree of
overbreadth caused by varying community standards. Indeed, JUSTICE
THOMAS sees this point and uses it in an attempt to distinguish the
Communications Decency Act of 1996, which was at issue in
Reno. See
ante, at 577-578 ("The CDA's use of
community standards to identify patently
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offensive material, however, was particularly problematic in
light of that statute's unprecedented breadth and vagueness");
ante, at 578 ("The tremendous breadth of the
CDA
magnified the impact caused by differences in community standards
across the country"). To explain the ways in which COPA is narrower
than the
CDA, JUSTICE THOMAS finds that he must construe
sections of COPA elided by the Court of Appeals. Though I agree
with the necessity for doing so, JUSTICE THOMAS'
interpretation-undertaken without substantial arguments or
briefing-is not altogether persuasive, and I would leave this task
to the Court of Appeals in the first instance. As this case comes
to us, once it is accepted that we cannot strike down the Act based
merely on the phrase "contemporary community standards," we should
go no further than to vacate and remand for a more comprehensive
analysis of the Act.
Second, community standards may have different degrees of
variation depending on the question posed to the community.
Defining the scope of the Act, therefore, is not relevant merely to
the absolute number of Web pages covered, as JusTICE STEVENS
suggests,
post, at 609-610 (dissenting opinion); it is also
relevant to the proportion of overbreadth, "judged in relation to
the statute's plainly legitimate sweep,"
Broadrick, 413 U.
S., at 615. Because this issue was "virtually ignored by the
parties and the amicus" in the Court of Appeals, 217 F. 3d, at 173,
we have no information on the question. Instead, speculation meets
speculation. On the one hand, the Court of Appeals found "no
evidence to suggest that adults
everywhere in America would
share the same standards for determining what is harmful to
minors."
Id., at 178. On the other hand, JUSTICE THOMAS
finds "no reason to believe that the practical effect of varying
community standards under COPA ... is significantly greater than
the practical effect of varying community standards under federal
obscenity statutes."
Ante, at 583-584. When a key issue has
"no evidence" on one side and "no reason to be-
599
lieve" the other, it is a good indication that we should vacate
for further consideration.
The District Court attempted a comprehensive analysis of COPA
and its various dimensions of potential overbreadth. The Court of
Appeals, however, believed that its own analysis of "contemporary
community standards" obviated all other concerns. It dismissed the
District Court's analysis in a footnote:
"[W]e do not find it necessary to address the District Court's
analysis of the definition of 'commercial purposes'; whether the
breadth of the forms of content covered by COPA could have been
more narrowly tailored; whether the affirmative defenses impose too
great a burden on Web publishers or whether those affirmative
defenses should have been included as elements of the crime itself;
whether COPA's inclusion of criminal as well as civil penalties was
excessive; whether COPA is designed to include communications made
in chat rooms, discussion groups and links to other Web sites;
whether the government is entitled to so restrict communications
when children will continue to be able to access foreign Web sites
and other sources of material that is harmful to them; what taken
'as a whole' should mean in the context of the Web and the
Internet; or whether the statute's failure to distinguish between
material that is harmful to a six year old versus a sixteen year
old is problematic." 217 F. 3d, at 174, n. 19.
As I have explained, however, any problem caused by variation in
community standards cannot be evaluated in a vacuum. In order to
discern whether the variation creates substantial overbreadth, it
is necessary to know what speech COPA regulates and what community
standards it invokes.
It is crucial, for example, to know how limiting is the Act's
limitation to "communication for commercial purposes." 47 U. S. C.
§231(e)(2)(A). In
Reno, we remarked that COPA's
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predecessor was so broad in part because it had no such
limitation. 521 U. S., at 877. COPA, by contrast, covers a speaker
only if:
"the person who makes a communication or offers to make a
communication, by means of the World Wide Web, that includes any
material that is harmful to minors, devotes time, attention, or
labor to such activities, as a regular course of such person's
trade or business, with the objective of earning a profit as a
result of such activities (although it is not necessary that the
person make a profit or that the making or offering to make such
communications be the person's sole or principal business or source
of income)." 47 U. S. C. § 231(e)(2)(B).
So COPA is narrower across this dimension than its predecessor;
but how much narrower is a matter of debate. In the District Court,
the Attorney General contended that the Act applied only to
professional panderers, but the court rejected that contention,
finding "nothing in the text of the COPA ... that limits its
applicability to so-called commercial pornographers only." 31 F.
Supp. 2d, at 480. Indeed, the plain text of the Act does not limit
its scope to pornography that is offered for sale; it seems to
apply even to speech provided for free, so long as the speaker
merely hopes to profit as an indirect result. The statute might be
susceptible of some limiting construction here, but again the Court
of Appeals did not address itself to this question. The answer
affects the breadth of the Act and hence the significance of any
variation in community standards.
Likewise, it is essential to answer the vexing question of what
it means to evaluate Internet material "as a whole," 47 U. S. C. §§
231(e)(6)(A),
(C), when everything on the Web is connected
to everything else. As a general matter, "[t]he artistic merit of a
work does not depend on the presence of a single explicit scene
.... [T]he First Amendment requires
601
that redeeming value be judged by considering the work as a
whole. Where the scene is part of the narrative, the work itself
does not for this reason become obscene, even though the scene in
isolation might be offensive."
Ashcroft v.
Free Speech
Coalition, ante, at 248. COPA appears to respect this principle
by requiring that the material be judged "as a whole," both as to
its prurient appeal, § 231(e)(6)(A), and as to its social value, §
231(e)(6)(C). It is unclear, however, what constitutes the
denominator-that is, the material to be taken as a whole-in the
context of the World Wide Web. See 31 F. Supp. 2d, at 483
("Although information on the Web is contained in individual
computers, the fact that each of these computers is connected to
the Internet through World Wide Web protocols allows all of the
information to become part of a single body of knowledge");
id., at 484 ("From a user's perspective, [the World Wide
Web] may appear to be a single, integrated system"). Several of the
respondents operate extensive Web sites, some of which include only
a small amount of material that might run afoul of the Act. The
Attorney General contended that these respondents had nothing to
fear from COP A, but the District Court disagreed, noting that the
Act prohibits communication that "includes" any material harmful to
minors. § 231(a)(1). In the District Court's view, "it logically
follows that [COPA] would apply to any Web site that contains only
some harmful to minors material."
Id., at 480. The
denominator question is of crucial significance to the coverage of
the Act.
Another issue is worthy of mention, because it too may inform
whether the variation in community standards renders the Act
substantially overbroad. The parties and the Court of Appeals did
not address the question of venue, though it would seem to be bound
up with the issue of varying community standards. COPA does not
address venue in explicit terms, so prosecution may be proper "in
any district in which [an] offense was begun, continued, or
completed." 18 U. S. C. § 3237(a). The Act's prohibition includes
an inter-
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state commerce element, 47 U. S. C. § 231(a)(1), and "[a]ny
offense involving ... interstate ... commerce ... may be inquired
of and prosecuted in any district from, through, or into which such
commerce ... moves." 18 U. S. C. § 3237(a). In the context of COPA,
it seems likely that venue would be proper where the material
originates or where it is viewed. Whether it may be said that a Web
site moves "through" other venues in between is less certain. And
since, as discussed above, juries will inevitably apply their own
community standards, the choice of venue may be determinative of
the choice of standard. The more venues the Government has to
choose from, the more speech will be chilled by variation across
communities.
IV
In summary, the breadth of the Act depends on the issues
discussed above, and the significance of varying community
standards depends, in turn, on the breadth of the Act. The Court of
Appeals was correct to focus on the national variation in community
standards, which can constitute a substantial burden on Internet
communication; and its ultimate conclusion may prove correct. There
may be grave doubts that COPA is consistent with the First
Amendment; but we should not make that determination with so many
questions unanswered. The Court of Appeals should undertake a
comprehensive analysis in the first instance.
JUSTICE STEVENS, dissenting.
Appeals to prurient interests are commonplace on the Internet,
as in older media. Many of those appeals lack serious value for
minors as well as adults. Some are offensive to certain viewers but
welcomed by others. For decades, our cases have recognized that the
standards for judging their acceptability vary from viewer to
viewer and from community to community. Those cases developed the
requirement that communications should be protected if they do not
violate contemporary community standards. In its original
603
form, the community standard provided a shield for
communications that are offensive only to the least tolerant
members of society. Thus, the Court "has emphasized on more than
one occasion that a principal concern in requiring that a judgment
be made on the basis of 'contemporary community standards' is to
assure that the material is judged neither on the basis of each
juror's personal opinion, nor by its effect on a particularly
sensitive or insensitive person or group."
Hamling v.
United States, 418 U. S. 87, 107 (1974).
In the context of the Internet, however, community standards become
a sword, rather than a shield. If a prurient appeal is offensive in
a puritan village, it may be a crime to post it on the World Wide
Web.
The Child Online Protection Act (COPA) restricts access by
adults as well as children to materials that are "harmful to
minors." 47 U. S. C. § 231(a)(1) (1994 ed., Supp. V). COPA is a
substantial improvement over its predecessor, the Communications
Decency Act of 1996
(CDA), which we held unconstitutional
five years ago in
Reno v.
American Civil Liberties
Union, 521 U. S.
844 (1997)
(ACLU 1). Congress has thoughtfully addressed
several of the First Amendment problems that we identified in that
case. Nevertheless, COPA preserves the use of contemporary
community standards to define which materials are harmful to
minors. As we explained in
ACLU I, 521 U. S., at 877-878,
"the 'community standards' criterion as applied to the Internet
means that any communication available to a nationwide audience
will be judged by the standards of the community most likely to be
offended by the message."
We have recognized that the State has a compelling interest in
protecting minors from harmful speech,
Sable Communications of
Cal., Inc. v.
FCC, 492 U. S. 115, 126
(1989), and on one occasion we upheld a restriction on indecent
speech that was made available to the general public, because it
could be accessed by minors,
FCC v.
Pacifica
Foundation, 438
U. S. 726 (1978). Our decision in that case was influ-
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enced by the distinctive characteristics of the broadcast
medium, as well as the expertise of the agency, and the narrow
scope of its order.
Id., at 748-750; see also
ACLU I,
521 U. S., at 867. On the other hand, we have repeatedly
rejected the position that the free speech rights of adults can be
limited to what is acceptable for children. See
id., at 875
(quoting
Bolger v.
Youngs Drug Products Corp.,
463 U. S. 60,
74-75 (1983) ("[R]egardless of the strength of the government's
interest" in protecting children, "[t]he level of discourse
reaching a mailbox simply cannot be limited to that which would be
suitable for a sandbox" (internal quotation marks omitted)));
Sable, 492 U. S., at 128;
Butler v.
Michigan,
352 U. S. 380,
383 (1957).
Petitioner relies on our decision in
Ginsberg v.
New
York, 390 U. S.
629 (1968), for the proposition that Congress can prohibit the
display of materials that are harmful to minors. But the
statute upheld in
Ginsberg prohibited
selling
indecent materials directly to children,
id., at 633
(describing N. Y. Penal Law § 484-h, making it unlawful "'knowingly
to sell ... to a minor ... ' "), whereas the speech implicated here
is simply posted on a medium that is accessible to both adults and
children, 47 U. S. C. § 231(a)(1) (prohibiting anyone from
"knowingly ... mak[ing] any communication for commercial purposes
that is available to any minor ... "). Like the restriction on
indecent "dial-a-porn" numbers invalidated in
Sable, the
prohibition against mailing advertisements for contraceptives
invalidated in
Bolger, and the ban against selling adult
books found impermissible in
Butler, COPA seeks to limit
protected speech that is not targeted at children, simply because
it can be obtained by them while surfing the Web.1 In evaluating
the overbreadth of such a
1 Petitioner cites examples of display statutes in 23 States
that require magazine racks to shield minors from the covers of
pornographic magazines. Brief for Petitioner 22, 3a. This Court has
yet to rule on the constitutionality of any of these statutes,
which are in any event of little relevance to regulation of speech
on the Internet. As we recognized in
605
statute, we should be mindful of Justice Frankfurter's
admonition not to "burn the house to roast the pig,"
Butler,
352 U. S., at 383.
COPA not only restricts speech that is made available to the
general public, it also covers a medium in which speech cannot be
segregated to avoid communities where it is likely to be considered
harmful to minors. The Internet presents a unique forum for
communication because information, once posted, is accessible
everywhere on the network at once. The speaker cannot control
access based on the location of the listener, nor can it choose the
pathways through which its speech is transmitted. By approving the
use of community standards in this context, JUSTICE THOMAS endorses
a construction of COPA that has "the intolerable consequence of
denying some sections of the country access to material, there
deemed acceptable, which in others might be considered offensive to
prevailing community standards of decency."
Manual Enterprises,
Inc. v.
Day, 370 U. S. 478, 488
(1962).
If the material were forwarded through the mails, as in
Hamling, or over the telephone, as in
Sable, the
sender could avoid destinations with the most restrictive
standards. Indeed, in
Sable, we upheld the application of
community standards to a nationwide medium because the speaker was
"free to tailor its messages ... to the communities it
chooses to serve," by either "hir[ing] operators to
determine the source of the calls ... [or] arrang[ing] for the
screening and blocking of out-of-area calls." 492 U. S., at 125
(emphasis added). Our conclusion that it was permissible for the
speaker to bear the ultimate burden of compliance,
id., at
126, assumed that such compliance was at least possible without
requiring the speaker to choose another medium or to limit its
speech to what all would find acceptable. Given the
ACLU I, 521
U. S. 844, 854 (1997), '''the receipt of information on the
Internet requires a series of affirmative steps more deliberate and
directed than merely turning a dial' "--or scanning a magazine
rack.
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606 ASHCROFT
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STEVENS, J., dissenting
undisputed fact that a provider who posts material on the
Internet cannot prevent it from entering any geographic community,
see
ante, at 575, n. 6 (opinion of THOMAS, J.), a law that
criminalizes a particular communication in just a handful of
destinations effectively prohibits transmission of that message to
all of the 176.5 million Americans that have access to the
Internet, see
ante, at 567, n. 2 (majority opinion). In
light of this fundamental difference in technologies, the rules
applicable to the mass mailing of an obscene montage or to obscene
dial-a-porn should not be used to judge the legality of messages on
the World Wide Web.2
In his attempt to fit this case within the framework of
Hamling and
Sable, JUSTICE THOMAS overlooks the more
obvious comparison-namely, the
CDA invalidated in
ACLU 1. When we confronted a similar attempt by Congress to
limit speech on the Internet based on community standards, we
explained that because Web publishers cannot control who accesses
their Web sites, using community standards to regulate speech on
the Internet creates an overbreadth problem. "[T]he 'community
standards' criterion as applied to the Internet means that any
communication available to a nationwide audience will be judged by
the standards of the community most likely to be offended by the
message." 521 U. S., at 877-878. Although our holding in
ACLU
I did not turn on that factor alone, we did not adopt the
position relied on by JUSTICE THOMAs-that applying community
standards to the Internet is constitutional based on
Hamling
and
2 It is hardly a solution to say, as JUSTICE THOMAS suggests,
ante, at 583, that a speaker need only choose a different
medium in order to avoid having its speech judged by the least
tolerant community. Our overbreadth doctrine would quickly become a
toothless protection if we were to hold that substituting a more
limited forum for expression is an acceptable price to pay. Since a
content-based restriction is presumptively invalid, I would place
the burden on parents to "take the simple step of utilizing a
medium that enables,"
ibid., them to avoid this material
before requiring the speaker to find another forum.
607
Sable. See Reply Brief for Appellants in
Reno v.
ACLU, O. T. 1996, No. 96-511, p. 19.3
JUSTICE THOMAS points to several other provisions in COPA to
argue that any overbreadth will be rendered insubstantial by the
rest of the statute.
Ante, at 578-579. These provisions
afford little reassurance, however, as they only marginally limit
the sweep of the statute. It is true that, in addition to COP A's
"appeals to the prurient interest of minors" prong, the material
must be "patently offensive with respect to minors" and it must
lack "serious literary, artistic, political, or scientific value
for minors." 47 U. S. C. § 231(e)(6). Nonetheless, the "patently
offensive" prong is judged according to contemporary community
standards as well,
ante, at 576, n. 7 (opinion of THOMAS,
J.). Whatever disparity exists between various communities'
assessment of the content that appeals to the prurient interest of
minors will surely be matched by their differing opinions as to
3 JUSTICE BREYER seeks to avoid the problem by effectively
reading the phrase "contemporary national standards" into the
statute,
ante, at 589 (opinion concurring in part and
concurring in judgment). While the legislative history of COPA
provides some support for this reading, it is contradicted by the
clear text of the statute, which directs jurors to consider
"community" standards. This phrase is a term of art that has taken
on a particular meaning in light of our precedent. Although we have
never held that applying a national standard would be
constitutionally impermissible, we have said that asking a jury to
do so is "an exercise in futility,"
Miller v.
California, 413
U. S. 15, 30 (1973), and that "[a] juror is entitled to draw on
his own knowledge of the views of the average person in the
community or vicinage from which he comes for making the required
determination,"
Hamling v.
United States, 418 U. S. 87, 104 (1974).
Any lingering doubts about the meaning of the phrase were certainly
dispelled by our discussion of the issue in
ACLU 1,521 U.
S., at 874, n. 39, and we presume that Congress legislates against
the backdrop of our decisions. Therefore, JUSTICE THOMAS has
correctly refused to rewrite the statute to substitute a standard
that Congress clearly did not choose. And even if the plurality
were willing to do so, we would still have to acknowledge, as
petitioner does, that jurors instructed to apply a national, or
adult, standard will reach widely different conclusions throughout
the country, see
ante, at 577; Brief for Petitioner 39.
608
608 ASHCROFT
v. AMERICAN CIVIL LIBERTIES UNION
STEVENS, J., dissenting
whether descriptions of sexual acts or depictions of nudity are
patently offensive with respect to minors. Nor does the requirement
that the material be "in some sense erotic," see
ante, at
579 (citing
Erznoznik v.
Jacksonville, 422 U. S. 205, 213, and
n. 10 (1975)), substantially narrow the category of images covered.
Arguably every depiction of nudity-partial or full-is in some sense
erotic
with respect to minors.4
Petitioner's argument that the "serious value" prong minimizes
the statute's overbreadth is also unpersuasive. Although we have
recognized that the serious value determination in obscenity cases
should be based on an objective, reasonable person standard,
Pope v.
Illinois, 481 U. S. 497, 500
(1987), this criterion is inadequate to cure COPA's overbreadth
because COPA adds an important qualifying phrase to the standard
Miller v.
California, 413 U. S. 15 (1973),
formulation of the serious value prong. The question for the jury
is not whether a reasonable person would conclude that the
materials have serious value; instead, the jury must determine
whether the materials have serious value
for minors.
Congress reasonably concluded that a substantial number of works,
which have serious value for adults, do not have serious value for
minors. Cf.
ACLU I, 521 U. S., at 896 (O'CONNOR, J.,
concurring in judgment in part and dissenting in part) ("While
discussions about prison rape or nude art ... may have some
redeeming educational value for
adults, they do not
necessarily have any such value for
minors"). Thus, even
though the serious value prong limits the total amount of speech
covered by the statute, it remains true that there is a significant
amount of protected speech within the category of materials that
have no serious value for minors. That speech is effectively
prohibited whenever
4 Of course, JUSTICE THOMAS' example of the image "of a war
victim's wounded nude body,"
ante, at 579, n. 9, would not
be covered by the statute unless it depicted "a lewd exhibition of
the genitals or post-pubescent female breast" and lacked serious
political value for minors, 47 U. S. C. §§ 231(e)(6)(B)-(C) (1994
ed., Supp. V).
609
the least tolerant communities find it harmful to minors.5 While
the objective nature of the inquiry may eliminate any worry that
the serious value determination will be made by the least tolerant
community, it does not change the fact that, within the subset of
images deemed to have no serious value for minors, the decision
whether minors and adults throughout the country will have access
to that speech will still be made by the most restrictive
community.
JUSTICE KENNEDY makes a similar misstep,
ante, at 592
(opinion concurring in judgment), when he ties the overbreadth
inquiry to questions about the scope of the other provisions of the
statute. According to his view, we cannot determine whether the
statute is substantially overbroad based on its use of community
standards without first determining how much of the speech on the
Internet is saved by the other restrictions in the statute. But
this represents a fundamental misconception of our overbreadth
doctrine. As Justice White explained in
Broadrick v.
Oklahoma, 413 U. s.
5 The Court also notes that the limitation to communications
made for commercial purposes narrows the category of speech as
compared to the CDA,
ante, at 569. While it is certainly
true that this condition limits the scope of the statute, the
phrase "commercial purposes" is somewhat misleading. The definition
of commercial purposes, 47 U. S. C. § 231(e)(2)(B), covers anyone
who generates revenue from advertisements or merchandise,
regardless of the amount of advertising or whether the
advertisements or products are related to the images that allegedly
are harmful to minors. As the District Court noted: "There is
nothing in the text of the COPA, however, that limits its
applicability to so-called commercial pornographers only; indeed,
the text of COPA imposes liability on a speaker who knowingly makes
any communication for commercial purposes 'that
includes any
material that is harmful to minors,'" App. to Pet. for Cert.
52a. In the context of the Internet, this is hardly a serious
limitation. A 1998 study, for example, found that 83 percent of Web
sites contain commercial content. Lawrence & Giles,
Accessibility of information of the web, 400 Nature 107-109 (1999);
Guernsey, Seek-but on the Web, You Might Not Find, N. Y. Times,
July 8, 1999, p. G3. Interestingly, this same study found that only
1.5 percent of the 2.8 million sites cataloged contained
pornographic content.
610
610 ASHCROFT
v. AMERICAN CIVIL LIBERTIES UNION
STEVENS, J., dissenting
601, 615 (1973), "the overbreadth of a statute must not only be
real, but substantial as well,
judged in relation to the
statute's plainly legitimate sweep." (Emphasis added.)
Regardless of how the Court of Appeals interprets the "commercial
purposes" or "as a whole" provisions on remand, the question we
must answer is whether the statute restricts a substantial amount
of protected speech relative to its legitimate sweep by virtue of
the fact that it uses community standards.6 These other provisions
may reduce the absolute number of Web pages covered by the statute,
but even the narrowest version of the statute abridges a
substantial amount of protected speech that many communities would
not find harmful to minors. Because Web speakers cannot limit
access to those specific communities, the statute is substantially
overbroad regardless of how its other provisions are construed.
JUSTICE THOMAS acknowledges, and petitioner concedes, that
juries across the country will apply different standards and reach
different conclusions about whether particular works are harmful to
minors. See
ante, at 577; Brief for Petitioner 3-4, 39. We
recognized as much in
ACLU I when we noted that "discussions
about prison rape or safe sexual practices, artistic images that
include nude subjects, and arguably the card catalog of the
Carnegie Library" might offend some community's standards and not
others, 521 U. S., at 878. In fact, our own division on that
question provides further evidence of the range of attitudes about
such material. See,
e. g., id., at 896 (O'CONNOR, J.,
concurring in judg-
6JUSTICE KENNEDY accuses the Court of Appeals of evaluating
overbreadth in a vacuum by dismissing most of the concerns raised
by the District Court,
ante, at 599. But most of those
concerns went to whether COPA survives strict scrutiny, not
overbreadth. Even under JUSTICE KENNEDY'S formulation, it is
unclear why it is relevant to an overbreadth analysis, for example,
whether COPA could have been more narrowly tailored, whether the
affirmative defenses impose too great a burden, or whether
inclusion of criminal as well as civil penalties was excessive.
611
ment in part and dissenting in part). Moreover,
amici for
respondents describe studies showing substantial variation among
communities in their attitudes toward works involving
homosexuality, masturbation, and nudity. 7
Even if most, if not all, of these works would be excluded from
COPA's coverage by the serious value prong, they illustrate the
diversity of public opinion on the underlying themes depicted. This
diversity of views surely extends to whether materials with the
same themes, that do not have serious value for minors, appeal to
their prurient interests and are patently offensive. There is no
reason to think the differences between communities' standards will
disappear once the image or description is no longer within the
context of a work that has serious value for minors.8 Because
communities differ widely in their attitudes toward sex,
particularly when minors are concerned, the Court of Appeals was
correct to conclude that, regardless of how COP A's other
provisions are construed, applying community standards to the
Internet will restrict a substantial amount of protected speech
that would not be considered harmful to minors in many
communities.
Whether that consequence is appropriate depends, of course, on
the content of the message. The kind of hardcore pornography
involved in
Hamling, which I assume would be obscene under
any community's standard, does not belong on the Internet. Perhaps
"teasers" that serve no function except to invite viewers to
examine hardcore materials, or the hidden terms written into a Web
site's "metatags" in order to dupe unwitting Web surfers into
visiting pornographic sites, deserve the same fate. But COPA
ex-
7 Brief for Volunteer Lawyers for the Arts et al. as
Amici
Curiae 4-10 (describing findings of the People for the American
Way Foundation Annual Freedom to Learn Reports).
8 Nor is there any reason to expect that a particular
community's view of the material will change based on how the Court
of Appeals construes the statute's "for commercial purposes" or "as
a whole" provisions.
612
612 ASHCROFT
v. AMERICAN CIVIL LIBERTIES UNION
STEVENS, J., dissenting
tends to a wide range of prurient appeals in advertisements,
online magazines, Web-based bulletin boards and chat rooms, stock
photo galleries, Web diaries, and a variety of illustrations
encompassing a vast number of messages that are unobjectionable in
most of the country and yet provide no "serious value" for minors.
It is quite wrong to allow the standards of a minority consisting
of the least tolerant communities to regulate access to relatively
harmless messages in this burgeoning market.
In the context of most other media, using community standards to
differentiate between permissible and impermissible speech has two
virtues. As mentioned above, community standards originally served
as a shield to protect speakers from the least tolerant members of
society. By aggregating values at the community level, the
Miller test eliminated the outliers at both ends of the
spectrum and provided some predictability as to what constitutes
obscene speech. But community standards also serve as a shield to
protect audience members, by allowing people to self-sort based on
their preferences. Those who abhor and those who tolerate sexually
explicit speech can seek out like-minded people and settle in
communities that share their views on what is acceptable for
themselves and their children. This sorting mechanism, however,
does not exist in cyberspace; the audience cannot self-segregate.
As a result, in the context of the Internet this shield also
becomes a sword, because the community that wishes to live without
certain material rids not only itself, but the entire Internet, of
the offending speech.
In sum, I would affirm the judgment of the Court of Appeals and
therefore respectfully dissent.
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