OCTOBER TERM, 1996
Syllabus
RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL.
v.
AMERICAN CIVIL LIBERTIES UNION ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA
No. 96-511. Argued March 19, 1997-Decided June 26, 1997
Two provisions of the Communications Decency Act of 1996 (CDA or
Act) seek to protect minors from harmful material on the Internet,
an international network of interconnected computers that enables
millions of people to communicate with one another in "cyberspace"
and to access vast amounts of information from around the world.
Title 47 U. S. C. § 223(a)(I)(B)(ii) (1994 ed., Supp. II)
criminalizes the "knowing" transmission of "obscene or indecent"
messages to any recipient under 18 years of age. Section 223(d)
prohibits the "knowin[g]" sending or displaying to a person under
18 of any message "that, in context, depicts or describes, in terms
patently offensive as measured by contemporary community standards,
sexual or excretory activities or organs."
Mfirmative
defenses are provided for those who take "good faith, ... effective
... actions" to restrict access by minors to the prohibited
communications, § 223(e)(5)(A), and those who restrict such access
by requiring certain designated forms of age proof, such as a
verified credit card or an adult identification number,
§223(e)(5)(B). A number of plaintiffs filed suit challenging the
constitutionality of §§ 223(a)(I) and 223(d). After making
extensive findings of fact, a three-judge District Court convened
pursuant to the Act entered a preliminary injunction against
enforcement of both challenged provisions. The court's judgment
enjoins the Government from enforcing § 223(a)(I)(B)'s prohibitions
insofar as they relate to "indecent" communications, but expressly
preserves the Government's right to investigate and prosecute the
obscenity or child pornography activities prohibited therein. The
injunction against enforcement of § 223(d) is unqualified because
that section contains no separate reference to obscenity or child
pornography. The Government appealed to this Court under the Act's
special review provisions, arguing that the District Court erred in
holding that the CDA violated both the First Amendment because it
is overbroad and the Fifth Amendment because it is vague.
Held: The CDA's "indecent transmission" and "patently
offensive display" provisions abridge "the freedom of speech"
protected by the First Amendment. Pp. 864-885.
845
(a) Although the CDA's vagueness is relevant to the First
Amendment overbreadth inquiry, the judgment should be affirmed
without reaching the Fifth Amendment issue. P. 864.
(b) A close look at the precedents relied on by the
Government
Ginsberg v.
New York, 390 U. S. 629;
FCC
v.
Pacifica Foundation, 438 U. S. 726; and
Renton v.
Playtime Theatres, Inc., 475 U. S. 41-raises,
rather than relieves, doubts about the CDA's constitutionality. The
CDA differs from the various laws and orders upheld in those cases
in many ways, including that it does not allow parents to consent
to their children's use of restricted materials; is not limited to
commercial transactions; fails to provide any definition of
"indecent" and omits any requirement that "patently offensive"
material lack socially redeeming value; neither limits its broad
categorical prohibitions to particular times nor bases them on an
evaluation by an agency familiar with the medium's unique
characteristics; is punitive; applies to a medium that, unlike
radio, receives full First Amendment protection; and cannot be
properly analyzed as a form of time, place, and manner regulation
because it is a content-based blanket restriction on speech. These
precedents, then, do not require the Court to uphold the CDA and
are fully consistent with the application of the most stringent
review of its provisions. Pp. 864-868.
(c) The special factors recognized in some of the Court's cases
as justifying regulation of the broadcast media-the history of
extensive Government regulation of broadcasting, see,
e. g., Red
Lion Broadcasting Co. v.
FCC, 395 U. S. 367, 399-400;
the scarcity of available frequencies at its inception, see,
e.
g., Turner Broadcasting System, Inc. v.
FCC, 512 U. S.
622, 637-638; and its "invasive" nature, see
Sable
Communications of Cal., Inc. v.
FCC, 492 U. S. 115, 128-are
not present in cyberspace. Thus, these cases provide no basis for
qualifying the level of First Amendment scrutiny that should be
applied to the Internet. Pp.868-870.
(d) Regardless of whether the CDA is so vague that it violates
the Fifth Amendment, the many ambiguities concerning the scope of
its coverage render it problematic for First Amendment purposes.
For instance, its use of the undefined terms "indecent" and
"patently offensive" will provoke uncertainty among speakers about
how the two standards relate to each other and just what they mean.
The vagueness of such a content-based regulation, see,
e. g.,
Gentile v.
State Bar of Nev., 501 U. S. 1030, coupled
with its increased deterrent effect as a criminal statute, see,
e. g., Dombrowski v.
Pfister, 380 U. S. 479, raise
special First Amendment concerns because of its obvious chilling
effect on free speech. Contrary to the Government's argument, the
CDA is not saved from vagueness by the fact that its "patently
offensive" stand-
846
ard repeats the second part of the three-prong obscenity test
set forth in
Miller v.
California, 413 U. S. 15,24. The
second
Miller prong reduces the inherent vagueness of its
own "patently offensive" term by requiring that the proscribed
material be "specifically defined by the applicable state law." In
addition, the
Miller definition applies only to "sexual
conduct," whereas the CDA prohibition extends also to "excretory
activities" and "organs" of both a sexual and excretory nature.
Each of
Miller's other two prongs also critically limits the
uncertain sweep of the obscenity definition. Just because a
definition including three limitations is not vague, it does not
follow that one of those limitations, standing alone, is not vague.
The CDA's vagueness undermines the likelihood that it has been
carefully tailored to the congressional goal of protecting minors
from potentially harmful materials. Pp.870-874.
(e) The CDA lacks the precision that the First Amendment
requires when a statute regulates the content of speech. Although
the Government has an interest in protecting children from
potentially harmful materials, see,
e. g., Ginsberg, 390 U.
S., at 639, the CDA pursues that interest by suppressing a large
amount of speech that adults have a constitutional right to send
and receive, see,
e. g., Sable, 492 U. S., at 126. Its
breadth is wholly unprecedented. The CDA's burden on adult speech
is unacceptable if less restrictive alternatives would be at least
as effective in achieving the Act's legitimate purposes. See,
e. g., id., at 126. The Government has not proved otherwise.
On the other hand, the District Court found that currently
available
user-based software suggests that a reasonably
effective method by which
parents can prevent their children
from accessing material which the
parents believe is
inappropriate will soon be widely available. Moreover, the
arguments in this Court referred to possible alternatives such as
requiring that indecent material be "tagged" to facilitate parental
control, making exceptions for messages with artistic or
educational value, providing some tolerance for parental choice,
and regulating some portions of the Internet differently from
others. Particularly in the light of the absence of any detailed
congressional findings, or even hearings addressing the CDA's
special problems, the Court is persuaded that the CDA is not
narrowly tailored. Pp.874-879.
(f) The Government's three additional arguments for sustaining
the CDA's affirmative prohibitions are rejected. First, the
contention that the Act is constitutional because it leaves open
ample "alternative channels" of communication is unpersuasive
because the CDA regulates speech on the basis of its content, so
that a "time, place, and manner" analysis is inapplicable. See,
e. g., Consolidated Edison Co. of N. Y. v.
847
Public Servo Comm'n of N. Y.,
447 U. S. 530, 536.
Second, the assertion that the CDA's "knowledge" and "specific
person" requirements significantly restrict its permissible
application to communications to persons the sender knows to be
under 18 is untenable, given that most Internet forums are open to
all comers and that even the strongest reading of the "specific
person" requirement would confer broad powers of censorship, in the
form of a "heckler's veto," upon any opponent of indecent speech.
Finally, there is no textual support for the submission that
material having scientific, educational, or other redeeming social
value will necessarily fall outside the CDA's prohibitions. Pp.
879-881.
(g) The § 223(e)(5) defenses do not constitute the sort of
"narrow tailoring" that would save the CDA. The Government's
argument that transmitters may take protective "good faith
actio[n]" by "tagging" their indecent communications in a way that
would indicate their contents, thus permitting recipients to block
their reception with appropriate software, is illusory, given the
requirement that such action be "effective": The proposed screening
software does not currently exist, but, even if it did, there would
be no way of knowing whether a potential recipient would actually
block the encoded material. The Government also failed to prove
that § 223(b)(5)'s verification defense would significantly reduce
the CDA's heavy burden on adult speech. Although such verification
is actually being used by some commercial providers of sexually
explicit material, the District Court's findings indicate that it
is not economically feasible for most noncommercial speakers.
Pp.881-882.
(h) The Government's argument that this Court should preserve
the CDA's constitutionality by honoring its severability clause, §
608, and by construing nonseverable terms narrowly, is acceptable
in only one respect. Because obscene speech may be banned totally,
see
Miller, 413 U. S., at 18, and § 223(a)'s restriction of
"obscene" material enjoys a textual manifestation separate from
that for "indecent" material, the Court can sever the term "or
indecent" from the statute, leaving the rest of § 223(a) standing.
Pp. 882-885.
(i) The Government's argument that its "significant" interest in
fostering the Internet's growth provides an independent basis for
upholding the CDA's constitutionality is singularly unpersuasive.
The dramatic expansion of this new forum contradicts the factual
basis underlying this contention: that the unregulated availability
of "indecent" and "patently offensive" material is driving people
away from the Internet. P. 885.
929 F. Supp. 824, affirmed.
848
STEVENS, J., delivered the opinion of the Court, in which
SCALIA, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined.
O'CONNOR, J., filed an opinion concurring in the judgment in part
and dissenting in part, in which REHNQUIST, C. J., joined,
post, p. 886.
Deputy Solicitor General Waxman argued the cause for appellants.
On the briefs were Acting Solicitor General Dellinger, Assistant
Attorney General Hunger, Deputy Solicitor General Kneedler, Irving
L. Gornstein, Barbara
Bruce J. Ennis, Jr., argued the cause for appellees. With him on
the brief for appellees American Library Association et al. were
Ann M. Kappler, Paul M. Smith, Donald B. Verrilli, Jr., John B.
Morris, Jr., Jill Lesser, Richard M. Schmidt, Jr., Bruce Rich,
James Wheaton, Jerry Berman, Elliot M. Mincberg, Lawrence S.
Ottinger, Andrew J. Schwartzman, Ronald L. Plesser, James J.
Halpert, Michael Traynor, Robert P. Taylor, Rene Milam, Marc
Jacobson, Bruce W Sanford, and Henry S. Hoberman. Christopher A.
Hansen, Steven R. Shapiro, Marjorie Heins, Catherine Weiss, Stefan
Presser, David L. Sobel, Marc Rotenberg, and Roger Evans filed a
brief for appellees American Civil Liberties Union Foundation et
al. *
*Briefs of
amici curiae urging reversal were filed for
Member of Congress Dan Coats et al. by
Bruce A. Taylor and
Cathleen A. Cleaver; for Enough is Enough et al. by
Ronald D. Maines; for the Family Life Project of the
American Center for Law and Justice by
Jay Alan Sekulow, James
M. Henderson, Sr., Colby M. May, Keith A. Fournier, John G.
Stepanovich, and
Thomas P. Monaghan; for Morality in
Media, Inc., by
Paul J.
McGeady and
Robert W
Peters; and for James J. Clancy by
Mr. Clancy, pro se,
and
Carol A. Clancy.
Briefs of amici curiae urging affirmance were filed for the
American Association of University Professors et al. by James D.
Crawford, Carl A. Solano, Theresa E. Loscalzo, Jennifer DuFault
James, and Joseph T. Lukens; for Apollomedia Corporation et al. by
William Bennett Turner; for the Association of National
Advertisers, Inc., by P. Cameron DeVore, John J. Walsh, Steven G.
Brody, Mary Elizabeth Taylor, Gilbert H. Weil, and Sol Schildhause;
for the Chamber of Commerce of the United States by Clifford M.
Sloan, Bert W Rein, Robert J. Butler, Stephen A. Bokat, and
849
JUSTICE STEVENS delivered the opinion of the Court.
At issue is the constitutionality of two statutory provisions
enacted to protect minors from "indecent" and "patently offensive"
communications on the Internet. Notwithstanding the legitimacy and
importance of the congressional goal of protecting children from
harmful materials, we agree with the three-judge District Court
that the statute abridges "the freedom of speech" protected by the
First Amendment.1
I
The District Court made extensive findings of fact, most of
which were based on a detailed stipulation prepared by the parties.
See 929 F. Supp. 824, 830-849 (ED Pa. 1996).2 The findings describe
the character and the dimensions of the Internet, the availability
of sexually explicit material in that medium, and the problems
confronting age verification for recipients of Internet
communications. Because those findings provide the underpinnings
for the legal issues, we begin with a summary of the undisputed
facts.
The Internet
The Internet is an international network of interconnected
computers. It is the outgrowth of what began in 1969 as a
Robin S.
Conrad; for Feminists for Free Expression
by
Barbara M cDowell; for the National Association of
Broadcasters et al. by
Floyd Abrams, Jack N. Goodman, and
Susanna M. Lowy; for Playboy Enterprises, Inc., by
Robert
Corn-Revere and
Burton Joseph; for the Reporters
Committee for Freedom of the Press et al. by
Jane E. Kirtley
and S.
Mark Goodman; for Site Specific, Inc., et al. by
Jamie B. W Stecher; and for Volunteer Lawyers for the Arts
et al. by
Daniel H. Weiner.
Raphael Winick filed a brief of
amicus curiae for
the Speech Communication Association.
1 "Congress shall make no law ... abridging the freedom of
speech."
2 The Court made 410 findings, including 356 paragraphs of the
parties' stipulation and 54 findings based on evidence received in
open court. See 929 F. Supp., at 830, n. 9, 842, n. 15.
850
military program called "ARPANET," 3 which was designed to
enable computers operated by the military, defense contractors, and
universities conducting defense-related research to communicate
with one another by redundant channels even if some portions of the
network were damaged in a war. While the ARPANET no longer exists,
it provided an example for the development of a number of civilian
networks that, eventually linking with each other, now enable tens
of millions of people to communicate with one another and to access
vast amounts of information from around the world. The Internet is
"a unique and wholly new medium of worldwide human
communication."4
The Internet has experienced "extraordinary growth." 5 The
number of "host" computers-those that store information and relay
communications-increased from about 300 in 1981 to approximately
9,400,000 by the time of the trial in 1996. Roughly 60% of these
hosts are located in the United States. About 40 million people
used the Internet at the time of trial, a number that is expected
to mushroom to 200 million by 1999.
Individuals can obtain access to the Internet from many
different sources, generally hosts themselves or entities with a
host affiliation. Most colleges and universities provide access for
their students and faculty; many corporations provide their
employees with access through an office network; many communities
and local libraries provide free access; and an increasing number
of storefront "computer coffee shops" provide access for a small
hourly fee. Several major national "online services" such as
America Online, CompuServe, the Microsoft Network, and Prodigy
offer access to their own extensive proprietary networks as well as
a link to the much larger resources of the Internet. These com-
3 An acronym for the network developed by the Advanced Research
Project Agency.
4Id., at 844 (finding 81).
5Id., at 831 (finding
3).
851
mercial online services had almost 12 million individual
subscribers at the time of trial.
Anyone with access to the Internet may take advantage of a wide
variety of communication and information retrieval methods. These
methods are constantly evolving and difficult to categorize
precisely. But, as presently constituted, those most relevant to
this case are electronic mail (e-mail), automatic mailing list
services ("mail exploders," sometimes referred to as "listservs"),
"newsgroups," "chat rooms," and the "World Wide Web." All of these
methods can be used to transmit text; most can transmit sound,
pictures, and moving video images. Taken together, these tools
constitute a unique medium-known to its users as "cyberspace"
-located in no particular geographical location but available to
anyone, anywhere in the world, with access to the Internet.
E-mail enables an individual to send an electronic
message-generally akin to a note or letter-to another individual or
to a group of addressees. The message is generally stored
electronically, sometimes waiting for the recipient to check her
"mailbox" and sometimes making its receipt known through some type
of prompt. A mail exploder is a sort of e-mail group. Subscribers
can send messages to a common e-mail address, which then forwards
the message to the group's other subscribers. Newsgroups also serve
groups of regular participants, but these po stings may be read by
others as well. There are thousands of such groups, each serving to
foster an exchange of information or opinion on a particular topic
running the gamut from, say, the music of Wagner to Balkan politics
to AIDS prevention to the Chicago Bulls. About 100,000 new messages
are posted every day. In most newsgroups, po stings are
automatically purged at regular intervals. In addition to posting a
message that can be read later, two or more individuals wishing to
communicate more immediately can enter a chat room to engage in
real-time dialogue-in other words, by typing messages to one
another that appear almost immediately on
852
the others' computer screens. The District Court found that at
any given time "tens of thousands of users are engaging in
conversations on a huge range of subjects." 6 It is "no
exaggeration to conclude that the content on the Internet is as
diverse as human thought."7
The best known category of communication over the Internet is
the World Wide Web, which allows users to search for and retrieve
information stored in remote computers, as well as, in some cases,
to communicate back to designated sites. In concrete terms, the Web
consists of a vast number of documents stored in different
computers all over the world. Some of these documents are simply
files containing information. However, more elaborate documents,
commonly known as Web "pages," are also prevalent. Each has its own
address-"rather like a telephone number."s Web pages frequently
contain information and sometimes allow the viewer to communicate
with the page's (or "site's") author. They generally also contain
"links" to other documents created by that site's author or to
other (generally) related sites. Typically, the links are either
blue or underlined text-sometimes images.
Navigating the Web is relatively straightforward. A user may
either type the address of a known page or enter one or more
keywords into a commercial "search engine" in an effort to locate
sites on a subject of interest. A particular Web page may contain
the information sought by the "surfer," or, through its links, it
may be an avenue to other documents located anywhere on the
Internet. Users generally explore a given Web page, or move to
another, by clicking a computer "mouse" on one of the page's icons
or links. Access to most Web pages is freely available, but some
allow access only to those who have purchased the right from a
6Id., at 835 (finding 27).
7Id., at 842 (finding
74).
8Id., at 836 (finding 36).
853
commercial provider. The Web is thus comparable, from the
readers' viewpoint, to both a vast library including millions of
readily available and indexed publications and a sprawling mall
offering goods and services.
From the publishers' point of view, it constitutes a vast
platform from which to address and hear from a worldwide audience
of millions of readers, viewers, researchers, and buyers. Any
person or organization with a computer connected to the Internet
can "publish" information. Publishers include government agencies,
educational institutions, commercial entities, advocacy groups, and
individuals.9 Publishers may either make their material available
to the entire pool of Internet users, or confine access to a
selected group, such as those willing to pay for the privilege. "No
single organization controls any membership in the Web, nor is
there any single centralized point from which individual Web sites
or services can be blocked from the Web." 10
Sexually Explicit Material
Sexually explicit material on the Internet includes text,
pictures, and chat and "extends from the modestly titillating to
the hardest-core." 11 These files are created, named, and posted in
the same manner as material that is not sexually explicit, and may
be accessed either deliberately or unintentionally during the
course of an imprecise search. "Once a provider posts its content
on the Internet, it cannot prevent that content from entering any
community." 12 Thus, for example,
9 "Web publishing is simple enough that thousands of individual
users and small community organizations are using the Web to
publish their own personal 'home pages,' the equivalent of
individualized newsletters about that person or organization, which
are available to everyone on the Web."
Id., at 837 (finding
42).
l°Id., at 838 (finding 46). 11
Id., at 844
(finding 82).
12 Ibid. (finding 86).
854
"when the UCR/California Museum of Photography posts to its Web
site nudes by Edward Weston and Robert Mapplethorpe to announce
that its new exhibit will travel to Baltimore and New York City,
those images are available not only in Los Angeles, Baltimore, and
New York City, but also in Cincinnati, Mobile, or Beijing-wherever
Internet users live. Similarly, the safer sex instructions that
Critical Path posts to its Web site, written in street language so
that the teenage receiver can understand them, are available not
just in Philadelphia, but also in Provo and Prague." 13
Some of the communications over the Internet that originate in
foreign countries are also sexually explicit.14
Though such material is widely available, users seldom encounter
such content accidentally. "A document's title or a description of
the document will usually appear before the document itself ... and
in many cases the user will receive detailed information about a
site's content before he or she need take the step to access the
document. Almost all sexually explicit images are preceded by
warnings as to the content." 15 For that reason, the "odds are
slim" that a user would enter a sexually explicit site by
accident.16 Unlike communications received by radio or television,
"the receipt of information on the Internet requires a series of
affirmative steps more deliberate and directed than merely turning
a dial. A child requires some sophistication and some ability to
read to retrieve material and thereby to use the Internet
unattended." 17
Systems have been developed to help parents control the material
that may be available on a home computer with In-
13 Ibid. (finding 85).
14Id., at 848 (finding 117).
15Id., at 844-845
(finding 88).
16 Ibid.
17Id., at 845 (finding 89).
855
ternet access. A system may either limit a computer's access to
an approved list of sources that have been identified as containing
no adult material, it may block designated inappropriate sites, or
it may attempt to block messages containing identifiable
objectionable features. "Although parental control software
currently can screen for certain suggestive words or for known
sexually explicit sites, it cannot now screen for sexually explicit
images."18 Nevertheless, the evidence indicates that "a reasonably
effective method by which parents can prevent their children from
accessing sexually explicit and other material which parents may
believe is inappropriate for their children will soon be widely
available." 19
Age Verification
The problem of age verification differs for different uses of
the Internet. The District Court categorically determined that
there "is no effective way to determine the identity or the age of
a user who is accessing material through e-mail, mail exploders,
newsgroups or chat rooms." 20 The Government offered no evidence
that there was a reliable way to screen recipients and participants
in such forums for
18Id., at 842 (finding 72). 19
Ibid. (finding
73).
2°Id., at 845 (finding 90): "An e-mail address provides
no authoritative information about the addressee, who may use an
e-mail .alias. or an anonymous remailer. There is also no universal
or reliable listing of e-mail addresses and corresponding names or
telephone numbers, and any such listing would be or rapidly become
incomplete. For these reasons, there is no reliable way in many
instances for a sender to know if the e-mail recipient is an adult
or a minor. The difficulty of e-mail age verification is compounded
for mail exploders such as listservs, which automatically send
information to all e-mail addresses on a sender's list. Government
expert Dr. Olsen agreed that no current technology could give a
speaker assurance that only adults were listed in a particular mail
exploder's mailing list."
856
age. Moreover, even if it were technologically feasible to block
minors' access to newsgroups and chat rooms containing discussions
of art, politics, or other subjects that potentially elicit
"indecent" or "patently offensive" contributions, it would not be
possible to block their access to that material and "still allow
them access to the remaining content, even if the overwhelming
majority of that content was not indecent." 21
Technology exists by which an operator of a Web site may
condition access on the verification of requested information such
as a credit card number or an adult password. Credit card
verification is only feasible, however, either in connection with a
commercial transaction in which the card is used, or by payment to
a verification agency. U sing credit card possession as a surrogate
for proof of age would impose costs on noncommercial Web sites that
would require many of them to shut down. For that reason, at the
time of the trial, credit card verification was "effectively
unavailable to a substantial number of Internet content providers."
929 F. Supp., at 846 (finding 102). Moreover, the imposition of
such a requirement "would completely bar adults who do not have a
credit card and lack the resources to obtain one from accessing any
blocked material." 22
Commercial pornographic sites that charge their users for access
have assigned them passwords as a method of age verification. The
record does not contain any evidence concerning the reliability of
these technologies. Even if passwords are effective for commercial
purveyors of indecent material, the District Court found that an
adult password requirement would impose significant burdens on
noncommercial sites, both because they would discourage users from
accessing their sites and because the cost of creating and
21 Ibid. (finding 93).
22Id., at 846 (finding 102).
857
maintaining such screening systems would be "beyond their
reach." 23
In sum, the District Court found:
"Even if credit card verification or adult password verification
were implemented, the Government presented no testimony as to how
such systems could ensure that the user of the password or credit
card is in fact over 18. The burdens imposed by credit card
verification and adult password verification systems make them
effectively unavailable to a substantial number of Internet content
providers." Ibid. (finding 107).
II
The Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat.
56, was an unusually important legislative enactment. As stated on
the first of its 103 pages, its primary purpose was to reduce
regulation and encourage "the rapid deployment of new
telecommunications technologies." The major components of the
statute have nothing to do with the Internet; they were designed to
promote competition in the local telephone service market, the
multichannel video mar-
23Id., at 847 (findings 104-106):
"At least some, if not almost all, non-commercial organizations,
such as the ACLU, Stop Prisoner Rape or Critical Path AIDS Project,
regard charging listeners to access their speech as contrary to
their goals of making their materials available to a wide audience
free of charge.
"There is evidence suggesting that adult users, particularly
casual Web browsers, would be discouraged from retrieving
information that required use of a credit card or password. Andrew
Anker testified that HotWired has received many complaints from its
members about HotWired's registration system, which requires only
that a member supply a name, e-mail address and self-created
password. There is concern by commercial content providers that age
verification requirements would decrease advertising and revenue
because advertisers depend on a demonstration that the sites are
widely available and frequently visited."
858
ket, and the market for over-the-air broadcasting. The Act
includes seven Titles, six of which are the product of extensive
committee hearings and the subject of discussion in Reports
prepared by Committees of the Senate and the House of
Representatives. By contrast, Title V-known as the "Communications
Decency Act of 1996" (CDA)-contains provisions that were either
added in executive committee after the hearings were concluded or
as amendments offered during floor debate on the legislation. An
amendment offered in the Senate was the source of the two statutory
provisions challenged in this case.24 They are informally de-
24 See Exon Amendment No. 1268, 141 Congo Rec. 15536 (1995). See
also id., at 15505. This amendment, as revised, became § 502 of the
Telecommunications Act of 1996, 110 Stat. 133, 47 U. S. C. §§
223(a)-(e) (1994 ed., Supp. II). Some Members of the House of
Representatives opposed the Exon Amendment because they thought it
"possible for our parents now to child-proof the family computer
with these products available in the private sector." They also
thought the Senate's approach would "involve the Federal Government
spending vast sums of money trying to define elusive terms that are
going to lead to a flood of legal challenges while our kids are
unprotected." These Members offered an amendment intended as a
substitute for the Exon Amendment, but instead enacted as an
additional section of the Act entitled "Online Family Empowerment."
See 110 Stat. 137, 47 U. S. C. §230 (1994 ed., Supp. II); 141 Congo
Rec. 27881 (1995). No hearings were held on the provisions that
became law. See S. Rep. No. 104-23, p. 9 (1995). After the Senate
adopted the Exon Amendment, however, its Judiciary Committee did
conduct a one-day hearing on "Cyberporn and Children." In his
opening statement at that hearing, Senator Leahy observed:
"It really struck me in your opening statement when you
mentioned, Mr. Chairman, that it is the first ever hearing, and you
are absolutely right. And yet we had a major debate on the floor,
passed legislation overwhelmingly on a subject involving the
Internet, legislation that could dramatically change-some would say
even wreak havoc-on the Internet. The Senate went in willy-nilly,
passed legislation, and never once had a hearing, never once had a
discussion other than an hour or so on the floor." Cyberporn and
Children: The Scope of the Problem, The State of the Technology,
and the Need for Congressional Action, Hearing on S. 892 before the
Senate Committee on the Judiciary, 104th Cong., 1st Sess., 7-8
(1995).
859
scribed as the "indecent transmission" provision and the
"patently offensive display" provision.25
The first, 47 U. s. C. § 223(a) (1994 ed., Supp. II), prohibits
the knowing transmission of obscene or indecent messages to any
recipient under 18 years of age. It provides in pertinent part:
"(a) Whoever-
"(1) in interstate or foreign communications-
"(B) by means of a telecommunications device knowingly-
"(i) makes, creates, or solicits, and "(ii) initiates the
transmission of,
"any comment, request, suggestion, proposal, image, or other
communication which is obscene or indecent, knowing that the
recipient of the communication is under 18 years of age, regardless
of whether the maker of such communication placed the call or
initiated the communication;
"(2) knowingly permits any telecommunications facility under his
control to be used for any activity prohibited by paragraph (1)
with the intent that it be used for such activity,
"shall be fined under Title 18, or imprisoned not more than two
years, or both."
The second provision, § 223(d), prohibits the knowing sending or
displaying of patently offensive messages in a manner that is
available to a person under 18 years of age. It provides:
25 Although the Government and the dissent break § 223(d)(1)
into two separate "patently offensive" and "display" provisions, we
follow the convention of both parties below, as well as the
District Court's order and opinion, in describing § 223(d)(1) as
one provision.
860
"(d) Whoever-
"(1) in interstate or foreign communications knowingly-
"(A) uses an interactive computer service to send to a specific
person or persons under 18 years of age, or
"(B) uses any interactive computer service to display in a
manner available to a person under 18 years of age,
"any comment, request, suggestion, proposal, image, or other
communication that, in context, depicts or describes, in terms
patently offensive as measured by contemporary community standards,
sexual or excretory activities or organs, regardless of whether the
user of such service placed the call or initiated the
communication; or
"(2) knowingly permits any telecommunications facility under
such person's control to be used for an activity prohibited by
paragraph (1) with the intent that it be used for such
activity,
"shall be fined under Title 18, or imprisoned not more than two
years, or both."
The breadth of these prohibitions is qualified by two
affirmative defenses. See § 223(e)(5).26 One covers those who take
"good faith, reasonable, effective, and appropriate actions" to
restrict access by minors to the prohibited communications. §
223(e)(5)(A). The other covers those who
26 In full, § 223(e)(5) provides:
"(5) It is a defense to a prosecution under subsection (a)(l)(B)
or (d) of this section, or under subsection (a)(2) of this section
with respect to the use of a facility for an activity under
subsection (a)(l)(B) of this section that a person-
"(A) has taken, in good faith, reasonable, effective, and
appropriate actions under the circumstances to restrict or prevent
access by minors to a communication specified in such subsections,
which may involve any appropriate measures to restrict minors from
such communications, including any method which is feasible under
available technology; or
"(B) has restricted access to such communication by requiring
use of a verified credit card, debit account, adult access code, or
adult personal identification number."
861
restrict access to covered material by requiring certain
designated forms of age proof, such as a verified credit card or an
adult identification number or code. § 223(e)(5)(B).
III
On February 8, 1996, immediately after the President signed the
statute, 20 plaintiffs 27 filed suit against the Attorney General
of the United States and the Department of Justice challenging the
constitutionality of §§ 223(a)(1) and 223(d). A week later, based
on his conclusion that the term "indecent" was too vague to provide
the basis for a criminal prosecution, District Judge Buckwalter
entered a temporary restraining order against enforcement of §
223(a)(1)(B)(ii) insofar as it applies to indecent communications.
A second suit was then filed by 27 additional plaintiffs,2S the two
cases
27 American Civil Liberties Union; Human Rights Watch;
Electronic Privacy Information Center; Electronic Frontier
Foundation; Journalism Education Association; Computer
Professionals for Social Responsibility; N ational Writers Union;
Clarinet Communications Corp.; Institute for Global Communications;
Stop Prisoner Rape; AIDS Education Global Information System;
Bibliobytes; Queer Resources Directory; Critical Path AIDS Project,
Inc.; Wildcat Press, Inc.; Declan McCullagh dba Justice on Campus;
Brock Meeks dba Cyberwire Dispatch; John Troyer dba The Safer Sex
Page; Jonathan Wallace dba The Ethical Spectacle; and Planned
Parenthood Federation of America, Inc.
28 American Library Association; America Online, Inc.; American
Booksellers Association, Inc.; American Booksellers Foundation for
Free Expression; American Society of Newspaper Editors; Apple
Computer, Inc.; Association of American Publishers, Inc.;
Association of Publishers, Editors and Writers; Citizens Internet
Empowerment Coalition; Commercial Internet Exchange Association;
CompuServe Incorporated; Families Against Internet Censorship;
Freedom to Read Foundation, Inc.; Health Sciences Libraries
Consortium; Hotwired Ventures LLC; Interactive Digital Software
Association; Interactive Services Association; Magazine Publishers
of America; Microsoft Corporation; The Microsoft Network, L. L. C.;
National Press Photographers Association; Netcom On-Line
Communication Services, Inc.; Newspaper Association of America;
Opnet, Inc.; Prodigy Services Company; Society of Professional
Journalists; and Wired Ventures, Ltd.
862
were consolidated, and a three-judge District Court was convened
pursuant to § 561 of the CDA.29 After an evidentiary hearing, that
court entered a preliminary injunction against enforcement of both
of the challenged provisions. Each of the three judges wrote a
separate opinion, but their judgment was unanimous.
Chief Judge Sloviter doubted the strength of the Government's
interest in regulating "the vast range of online material covered
or potentially covered by the CDA," but acknowledged that the
interest was "compelling" with respect to some of that material.
929 F. Supp., at 853. She concluded, nonetheless, that the statute
"sweeps more broadly than necessary and thereby chills the
expression of adults" and that the terms "patently offensive" and
"indecent" were "inherently vague."
Id., at 854. She also
determined that the affirmative defenses were not "technologically
or economically feasible for most providers,"
specifically
considering and rejecting an argument that providers could avoid
liability by "tagging" their material in a manner that would allow
potential readers to screen out unwanted transmissions. Id., at
856. Chief Judge Sloviter also rejected the Government's suggestion
that the scope of the statute could be narrowed by construing it to
apply only to commercial pornographers.
Id., at 854-855.
Judge Buckwalter concluded that the word "indecent" in §
223(a)(1)(B) and the terms "patently offensive" and "in context" in
§ 223(d)(1) were so vague that criminal enforcement of either
section would violate the "fundamental constitutional principle" of
"simple fairness," id., at 861, and the specific protections of the
First and Fifth Amendments, id., at 858. He found no statutory
basis for the Government's argument that the challenged provisions
would be applied only to "pornographic" materials, noting that,
unlike obscenity, "indecency has
not been defined to exclude
works of serious literary, artistic, political or scientific
value."
Id., at 863.
29110 Stat. 142-143, note following 47 U. S. C. §223 (1994 ed.,
Supp. II).
863
Moreover, the Government's claim that the work must be
considered patently offensive "in context" was itself vague because
the relevant context might "refer to, among other things, the
nature of the communication as a whole, the time of day it was
conveyed, the medium used, the identity of the speaker, or whether
or not it is accompanied by appropriate warnings."
Id., at
864. He believed that the unique nature of the Internet aggravated
the vagueness of the statute.
Id., at 865, n. 9.
Judge Dalzell's review of "the special attributes of Internet
communication" disclosed by the evidence convinced him that the
First Amendment denies Congress the power to regulate the content
of protected speech on the Internet.
Id., at 867. His
opinion explained at length why he believed the CDA would abridge
significant protected speech, particularly by noncommercial
speakers, while "[p]erversely, commercial pornographers would
remain relatively unaffected."
Id., at 879. He construed our
cases as requiring a "medium-specific" approach to the analysis of
the regulation of mass communication, id., at 873, and concluded
that the Internet-as "the most participatory form of mass speech
yet developed," id., at 883-is entitled to "the highest protection
from governmental intrusion," ibid.
30
30 See also 929 F. Supp., at 877: "Four related characteristics
of Internet communication have a transcendent importance to our
shared holding that the CDA is unconstitutional on its face. We
explain these characteristics in our Findings of fact above, and I
only rehearse them briefly here. First, the Internet presents very
low barriers to entry. Second, these barriers to entry are
identical for both speakers and listeners. Third, as a result of
these low barriers, astoundingly diverse content is available on
the Internet. Fourth, the Internet provides significant access to
all who wish to speak in the medium, and even creates a relative
parity among speakers." According to Judge Dalzell, these
characteristics and the rest of the District Court's findings "lead
to the conclusion that Congress may not regulate indecency on the
Internet at all."
Ibid. Because appellees do not press this
argument before this Court, we do not consider it. Appellees also
do not dispute that the Government generally has a compelling
interest in protecting minors from "indecent" and "patently
offensive" speech.
864
The judgment of the District Court enjoins the Government from
enforcing the prohibitions in § 223(a)(1)(B) insofar as they relate
to "indecent" communications, but expressly preserves the
Government's right to investigate and prosecute the obscenity or
child pornography activities prohibited therein. The injunction
against enforcement of §§ 223(d)(1) and (2) is unqualified because
those provisions contain no separate reference to obscenity or
child pornography.
The Government appealed under the CDA's special review
provisions, § 561, 110 Stat. 142-143, and we noted probable
jurisdiction, see 519 U. S. 1025 (1996). In its appeal, the
Government argues that the District Court erred in holding that the
CDA violated both the First Amendment because it is overbroad and
the Fifth Amendment because it is vague. While we discuss the
vagueness of the CDA because of its relevance to the First
Amendment overbreadth inquiry, we conclude that the judgment should
be affirmed without reaching the Fifth Amendment issue. We begin
our analysis by reviewing the principal authorities on which the
Government relies. Then, after describing the overbreadth of the
CDA, we consider the Government's specific contentions, including
its submission that we save portions of the statute either by
severance or by fashioning judicial limitations on the scope of its
coverage.
IV
In arguing for reversal, the Government contends that the CDA is
plainly constitutional under three of our prior decisions: (1)
Ginsberg v.
New York, 390 U. S. 629 (1968); (2)
FCC v.
Pacifica Foundation, 438 U. S. 726 (1978); and
(3)
Renton v.
Playtime Theatres, Inc., 475 U. S. 41 (1986). A
close look at these cases, however, raises-rather than
relievesdoubts concerning the constitutionality of the CDA.
In
Ginsberg, we upheld the constitutionality of a New
York statute that prohibited selling to minors under 17 years of
age material that was considered obscene as to them even if not
obscene as to adults. We rejected the defendant's broad
865
submission that "the scope of the constitutional freedom of
expression secured to a citizen to read or see material concerned
with sex cannot be made to depend on whether the citizen is an
adult or a minor." 390 U. S., at 636. In rejecting that contention,
we relied not only on the State's independent interest in the
well-being of its youth, but also on our consistent recognition of
the principle that "the parents' claim to authority in their own
household to direct the rearing of their children is basic in the
structure of our society." 31
In four important respects, the statute upheld in
Ginsberg was narrower than the CDA. First, we noted in
Ginsberg that "the prohibition against sales to minors does
not bar parents who so desire from purchasing the magazines for
their children."
Id., at 639. Under the CDA, by contrast,
neither the parents' consent-nor even their participationin the
communication would avoid the application of the statute.32 Second,
the New York statute applied only to commercial transactions, id.,
at 647, whereas the CDA contains no such limitation. Third, the New
York statute cabined its definition of material that is harmful to
minors with the requirement that it be "utterly without redeeming
social importance for minors."
Id., at 646. The CDA fails to
provide us with any definition of the term "indecent" as used in §
223(a)(1) and, importantly, omits any requirement that the
"patently offensive" material covered by § 223(d) lack serious
literary, artistic, political, or scientific value. Fourth, the New
York statute defined a minor as a person under the age
31390 U. S., at 639. We quoted from
Prince v.
Massachusetts, 321 U. S. 158, 166
(1944): "It is cardinal with us that the custody, care and nurture
of the child reside first in the parents, whose primary function
and freedom include preparation for obligations the state can
neither supply nor hinder."
32 Given the likelihood that many e-mail transmissions from an
adult to a minor are conversations between family members, it is
therefore incorrect for the partial dissent to suggest that the
provisions of the CDA, even in this narrow area, "are no different
from the law we sustained in
Ginsberg." Post, at 892.
866
of 17, whereas the CDA, in applying to all those under 18 years,
includes an additional year of those nearest majority.
In
Pacifica, we upheld a declaratory order of the Federal
Communications Commission, holding that the broadcast of a
recording of a 12-minute monologue entitled "Filthy Words" that had
previously been delivered to a live audience "could have been the
subject of administrative sanctions." 438 U. S., at 730 (internal
quotation marks omitted). The Commission had found that the
repetitive use of certain words referring to excretory or sexual
activities or organs "in an afternoon broadcast when children are
in the audience was patently offensive" and concluded that the
monologue was indecent "as broadcast."
Id., at 735. The
respondent did not quarrel with the finding that the afternoon
broadcast was patently offensive, but contended that it was not
"indecent" within the meaning of the relevant statutes because it
contained no prurient appeal. After rejecting respondent's
statutory arguments, we confronted its two constitutional
arguments: (1) that the Commission's construction of its authority
to ban indecent speech was so broad that its order had to be set
aside even if the broadcast at issue was unprotected; and (2) that
since the recording was not obscene, the First Amendment forbade
any abridgment of the right to broadcast it on the radio.
In the portion of the lead opinion not joined by Justices Powell
and Blackmun, the plurality stated that the First Amendment does
not prohibit all governmental regulation that depends on the
content of speech.
Id., at 742-743. Accordingly, the
availability of constitutional protection for a vulgar and
offensive monologue that was not obscene depended on the context of
the broadcast.
Id., at 744-748. Relying on the premise that
"of all forms of communication" broadcasting had received the most
limited First Amendment protection, id., at 748-749, the Court
concluded that the ease with which children may obtain access to
broadcasts,
867
"coupled with the concerns recognized in
Ginsberg,"
justified special treatment of indecent broadcasting.
Id.,
at 749-750.
As with the New York statute at issue in
Ginsberg, there
are significant differences between the order upheld in
Pa
cifica and the CDA. First, the order in
Pacifica,
issued by an agency that had been regulating radio stations for
decades, targeted a specific broadcast that represented a rather
dramatic departure from traditional program content in order to
designate when-rather than whether-it would be permissible to air
such a program in that particular medium. The CDA's broad
categorical prohibitions are not limited to particular times and
are not dependent on any evaluation by an agency familiar with the
unique characteristics of the Internet. Second, unlike the CDA, the
Commission's declaratory order was not punitive; we expressly
refused to decide whether the indecent broadcast "would justify a
criminal prosecution." 438 U. S., at 750. Finally, the Commission's
order applied to a medium which as a matter of history had
"received the most limited First Amendment protection," id., at
748, in large part because warnings could not adequately protect
the listener from unexpected program content. The Internet,
however, has no comparable history. Moreover, the District Court
found that the risk of encountering indecent material by accident
is remote because a series of affirmative steps is required to
access specific material.
In
Renton, we upheld a zoning ordinance that kept adult
movie theaters out of residential neighborhoods. The ordinance was
aimed, not at the content of the films shown in the theaters, but
rather at the "secondary effects" -such as crime and deteriorating
property values-that these theaters fostered: "'It is thee]
secondary effect which these zoning ordinances attempt to avoid,
not the dissemination of "offensive" speech.''' 475 U. S., at 49
(quoting
Young v.
American Mini Theatres, Inc.,
427 U. S. 50, 71,
n. 34 (1976)). According to the Government, the CDA is
constitutional be-
868
cause it constitutes a sort of "cyberzoning" on the Internet.
But the CDA applies broadly to the entire universe of cyberspace.
And the purpose of the CDA is to protect children from the primary
effects of "indecent" and "patently offensive" speech, rather than
any "secondary" effect of such speech. Thus, the CDA is a
content-based blanket restriction on speech, and, as such, cannot
be "properly analyzed as a form of time, place, and manner
regulation." 475 U. S., at 46. See also
Boos v.
Barry, 485 U.
S. 312, 321 (1988) ("Regulations that focus on the direct
impact of speech on its audience" are not properly analyzed under
Renton); Forsyth County v.
Nationalist Movement,
505 U. S. 123,
134 (1992) ("Listeners' reaction to speech is not a content-neutral
basis for regulation").
These precedents, then, surely do not require us to uphold the
CDA and are fully consistent with the application of the most
stringent review of its provisions.
v
In
Southeastern Promotions, Ltd. v.
Conrad,
420 U. S. 546,
557 (1975), we observed that "[e]ach medium of expression ... may
present its own problems." Thus, some of our cases have recognized
special justifications for regulation of the broadcast media that
are not applicable to other speakers, see
Red Lion Broadcasting
Co. v.
FCC, 395 U. S. 367 (1969);
FCC v.
Pacifica Foundation, 438 U. S. 726 (1978). In
these cases, the Court relied on the history of extensive
Government regulation of the broadcast medium, see,
e. g., Red
Lion, 395 U. S., at 399-400; the scarcity of available
frequencies at its inception, see,
e. g., Turner Broadcasting
System, Inc. v.
FCC, 512 U. S. 622, 637-638
(1994); and its "invasive" nature, see
Sable Communications of
Cal., Inc. v.
FCC, 492 U. S. 115, 128
(1989).
Those factors are not present in cyberspace. Neither before nor
after the enactment of the CDA have the vast democratic forums of
the Internet been subject to the type
869
of government supervision and regulation that has attended the
broadcast industry.33 Moreover, the Internet is not as "invasive"
as radio or television. The District Court specifically found that
"[c]ommunications over the Internet do not 'invade' an individual's
home or appear on one's computer screen unbidden. Users seldom
encounter content 'by accident.' " 929 F. Supp., at 844 (finding
88). It also found that "[a]lmost all sexually explicit images are
preceded by warnings as to the content," and cited testimony that"
'odds are slim' that a user would come across a sexually explicit
sight by accident."
Ibid.
We distinguished
Pacifica in
Sable, 492 U. S., at
128, on just this basis. In
Sable, a company engaged in the
business of offering sexually oriented prerecorded telephone
messages (popularly known as "dial-a-porn") challenged the
constitutionality of an amendment to the Communications Act of 1934
that imposed a blanket prohibition on indecent as well as obscene
interstate commercial telephone messages. We held that the statute
was constitutional insofar as it applied to obscene messages but
invalid as applied to indecent messages. In attempting to justify
the complete ban and criminalization of indecent commercial
telephone messages, the Government relied on
Pacifica,
arguing that the ban was necessary to prevent children from gaining
access to such messages. We agreed that "there is a compelling
interest in protecting the physical and psychological well-being of
minors" which extended to shielding them from indecent messages
that are not obscene by adult standards, 492 U. S., at
33 Cf.
Pacifica Foundation v.
FCC, 556 F.2d
9, 36 (CADC 1977) (LevanthaI, J., dissenting), rev'd,
FCC v.
Pacifica Foundation, 438 U. S. 726 (1978).
When
Pacifica was decided, given that radio stations were
allowed to operate only pursuant to federal license, and that
Congress had enacted legislation prohibiting licensees from
broadcasting indecent speech, there was a risk that members of the
radio audience might infer some sort of official or societal
approval of whatever was heard over the radio, see 556 F. 2d, at
37, n. 18. No such risk attends messages received through the
Internet, which is not supervised by any federal agency.
870
126, but distinguished our "emphatically narrow holding" in
Pacifica because it did not involve a complete ban and
because it involved a different medium of communication, id., at
127. We explained that "the dial-it medium requires the listener to
take affirmative steps to receive the communication."
Id.,
at 127-128. "Placing a telephone call," we continued, "is not the
same as turning on a radio and being taken by surprise by an
indecent message."
Id., at 128.
Finally, unlike the conditions that prevailed when Congress
first authorized regulation of the broadcast spectrum, the Internet
can hardly be considered a "scarce" expressive commodity. It
provides relatively unlimited, low-cost capacity for communication
of all kinds. The Government estimates that "[a]s many as 40
million people use the Internet today, and that figure is expected
to grow to 200 million by 1999."34 This dynamic, multifaceted
category of communication includes not only traditional print and
news services, but also audio, video, and still images, as well as
interactive, real-time dialogue. Through the use of chat rooms, any
person with a phone line can become a town crier with a voice that
resonates farther than it could from any soapbox. Through the use
of Web pages, mail exploders, and newsgroups, the same individual
can become a pamphleteer. As the District Court found, "the content
on the Internet is as diverse as human thought." 929 F. Supp., at
842 (finding 74). We agree with its conclusion that our cases
provide no basis for qualifying the level of First Amendment
scrutiny that should be applied to this medium.
VI
Regardless of whether the CDA is so vague that it violates the
Fifth Amendment, the many ambiguities concerning the scope of its
coverage render it problematic for purposes of the First Amendment.
For instance, each of the two parts
34 Juris. Statement 3 (citing 929 F. Supp., at 831 (finding
3)).
871
of the CDA uses a different linguistic form. The first uses the
word "indecent," 47 U. s. C. § 223(a) (1994 ed., Supp. II), while
the second speaks of material that "in context, depicts or
describes, in terms patently offensive as measured by contemporary
community standards, sexual or excretory activities or organs," §
223(d). Given the absence of a definition of either term,35 this
difference in language will provoke uncertainty among speakers
about how the two standards relate to each other36 and just what
they mean.37 Could a speaker confidently assume that a serious
discussion about birth control practices, homosexuality, the First
Amendment issues raised by the Appendix to our
Pacifica
opinion, or the consequences of prison rape would not violate the
CDA? This uncertainty undermines the likelihood that the CDA has
been carefully tailored to the congressional goal of protecting
minors from potentially harmful materials.
The vagueness of the CDA is a matter of special concern for two
reasons. First, the CDA is a content-based regulation of speech.
The vagueness of such a regulation raises
35 "Indecent" does not benefit from any textual embellishment at
all.
"Patently offensive" is qualified only to the extent that it
involves "sexual or excretory activities or organs" taken "in
context" and "measured by contemporary community standards."
36 See
Gozlon-Peretz v.
United States, 498 U. S. 395, 404 (1991)
("[W]here Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely
in the disparate inclusion and exclusion" (internal quotation marks
omitted)).
37 The statute does not indicate whether the "patently
offensive" and "indecent" determinations should be made with
respect to minors or the population as a whole. The Government
asserts that the appropriate standard is "what is suitable material
for minors." Reply Brief for Appellants 18, n. 13 (citing
Ginsberg v.
New York, 390 U. S. 629, 633
(1968)). But the Conferees expressly rejected amendments that would
have imposed such a "harmful to minors" standard. See S. Conf. Rep.
No. 104-230, p. 189 (1996) (S. Conf. Rep.), 142 Congo Rec. H1145,
H1165-H1166 (Feb. 1, 1996). The Conferees also rejected amendments
that would have limited the proscribed materials to those lacking
redeeming value. See
ibid.
872
special First Amendment concerns because of its obvious chilling
effect on free speech. See,
e. g.,
Gentile v.
State Bar of Nev., 501 U. S. 1030,
1048-1051 (1991). Second, the CDA is a criminal statute. In
addition to the opprobrium and stigma of a criminal conviction, the
CDA threatens violators with penalties including up to two years in
prison for each act of violation. The severity of criminal
sanctions may well cause speakers to remain silent rather than
communicate even arguably unlawful words, ideas, and images. See,
e. g.,
Dombrowski v.
Pfister, 380 U. S. 479, 494
(1965). As a practical matter, this increased deterrent effect,
coupled with the "risk of discriminatory enforcement" of vague
regulations, poses greater First Amendment concerns than those
implicated by the civil regulation reviewed in
Denver Area Ed.
Telecommunications Consortium, Inc. v.
FCC, 518 U. S. 727 (1996).
The Government argues that the statute is no more vague than the
obscenity standard this Court established in
Miller v.
California, 413
U. S. 15 (1973). But that is not so. In
Miller, this
Court reviewed a criminal conviction against a commercial vendor
who mailed brochures containing pictures of sexually explicit
activities to individuals who had not requested such materials.
Id., at 18. Having struggled for some time to establish a
definition of obscenity, we set forth in
Miller the test for
obscenity that controls to this day:
"(a) whether 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 (internal quotation marks and citations
omitted).
873
Because the CDA's "patently offensive" standard (and, we assume,
arguendo, its synonymous "indecent" standard) is one part of
the three-prong
Miller test, the Government reasons, it
cannot be unconstitutionally vague.
The Government's assertion is incorrect as a matter of fact. The
second prong of the
Miller test-the purportedly analogous
standard-contains a critical requirement that is omitted from the
CDA: that the proscribed material be "specifically defined by the
applicable state law." This requirement reduces the vagueness
inherent in the open-ended term "patently offensive" as used in the
CDA. Moreover, the
Miller definition is limited to "sexual
conduct," whereas the CDA extends also to include (1) "excretory
activities" as well as (2) "organs" of both a sexual and excretory
nature.
The Government's reasoning is also flawed. Just because a
definition including three limitations is not vague, it does not
follow that one of those limitations, standing by itself, is not
vague.38 Each of
Miller's additional two prongs-(l) that,
taken as a whole, the material appeal to the "prurient" interest,
and (2) that it "lac[k] serious literary, artistic, political, or
scientific value"-critically limits the uncertain sweep of the
obscenity definition. The second requirement is particularly
important because, unlike the "patently offensive" and "prurient
interest" criteria, it is not judged by contemporary community
standards. See
Pope v.
Illinois, 481 U. S. 497, 500
(1987). This "societal value" requirement, absent in the CDA,
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. The Government's contention that
courts will be able to give such legal limitations to the CDA's
standards is belied by
Miller's own rationale for having
juries determine whether material
38 Even though the word "trunk," standing alone, might refer to
luggage, a swimming suit, the base of a tree, or the long nose of
an animal, its meaning is clear when it is one prong of a
three-part description of a species of gray animals.
874
is "patently offensive" according to community standards: that
such questions are essentially ones of
fact.39
In contrast to
Miller and our other previous cases, the
CDA thus presents a greater threat of censoring speech that, in
fact, falls outside the statute's scope. Given the vague contours
of the coverage of the statute, it unquestionably silences some
speakers whose messages would be entitled to constitutional
protection. That danger provides further reason for insisting that
the statute not be overly broad. The CDA's burden on protected
speech cannot be justified if it could be avoided by a more
carefully drafted statute.
VII
We are persuaded that the CDA lacks the precision that the First
Amendment requires when a statute regulates the content of speech.
In order to deny minors access to potentially harmful speech, the
CDA effectively suppresses a large amount of speech that adults
have a constitutional right to receive and to address to one
another. That burden on adult speech is unacceptable if less
restrictive alternatives would be at least as effective in
achieving the legitimate purpose that the statute was enacted to
serve.
In evaluating the free speech rights of adults, we have made it
perfectly clear that "[s]exual expression which is indecent but not
obscene is protected by the First Amendment."
Sable, 492 U.
S., at 126. See also
Carey v.
Population Services
Int'l, 431 U. S.
678, 701 (1977) ("[W]here obscenity is not involved, we have
consistently held that the
39413 U. S., at 30 (Determinations of "what appeals to the
'prurient interest' or is 'patently offensive' ... are essentially
questions of fact, and our Nation is simply too big and too diverse
for this Court to reasonably expect that such standards could be
articulated for all 50 States in a single formulation, even
assuming the prerequisite consensus exists"). The CDA, which
implements the "contemporary community standards" language of
Miller, thus conflicts with the Conferees' own assertion that the
CDA was intended "to establish a uniform national standard of
content regulation." S. Conf. Rep., at 191.
875
fact that protected speech may be offensive to some does not
justify its suppression"). Indeed,
Pacifica itself
admonished that "the fact that society may find speech offensive is
not a sufficient reason for suppressing it." 438 U. S., at 745.
It is true that we have repeatedly recognized the governmental
interest in protecting children from harmful materials. See
Ginsberg, 390 U. S., at 639;
Pacifica, 438 U. S., at
749. But that interest does not justify an unnecessarily broad
suppression of speech addressed to adults. As we have explained,
the Government may not "reduc[e] the adult population ... to ...
only what is fit for children."
Denver, 518 U. S., at 759
(internal quotation marks omitted) (quoting
Sable, 492 U.
S., at 128).40 "[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."
Bolger v.
Youngs Drug Products
Corp., 463 U. S.
60, 74-75 (1983).
The District Court was correct to conclude that the CDA
effectively resembles the ban on "dial-a-porn" invalidated in
Sable. 929 F. Supp., at 854. In
Sable, 492 U. S., at
129, this Court rejected the argument that we should defer to the
congressional judgment that nothing less than a total ban would be
effective in preventing enterprising youngsters from gaining access
to indecent communications.
Sable thus made clear that the
mere fact that a statutory regulation of speech was enacted for the
important purpose of protecting children from exposure to sexually
explicit material does not foreclose inquiry into its validity.41
As we pointed out last
40 Accord,
Butler v.
Michigan, 352 U. S. 380, 383 (1957)
(ban on sale to adults of books deemed harmful to children
unconstitutional);
Sable Communications of Cal., Inc. v.
FCC, 492 U. S.
115, 128 (1989) (ban on "dial-aporn" messages
unconstitutional);
Bolger v.
Youngs Drug Products
Corp., 463 U. S.
60, 73 (1983) (ban on mailing of unsolicited advertisement for
contraceptives unconstitutional).
41 The lack of legislative attention to the statute at issue in
Sable suggests another parallel with this case. Compare 492
U. S., at 129-130 ("[A]side from conc1usory statements during the
debates by proponents of
876
Term, that inquiry embodies an "overarching commitment" to make
sure that Congress has designed its statute to accomplish its
purpose "without imposing an unnecessarily great restriction on
speech."
Denver, 518 U. S., at 741.
In arguing that the CDA does not so diminish adult
communication, the Government relies on the incorrect factual
premise that prohibiting a transmission whenever it is known that
one of its recipients is a minor would not interfere with
adult-to-adult communication. The findings of the District Court
make clear that this premise is untenable. Given the size of the
potential audience for most messages, in the absence of a viable
age verification process, the sender must be charged with knowing
that one or more minors will likely view it. Knowledge that, for
instance, one or more members of a 100-person chat group will be a
minor-and therefore that it would be a crime to send the group an
indecent message-would surely burden communication among
adults.42
The District Court found that at the time of trial 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. The Court found no
effective way to determine the age of a user who is accessing
material through e-mail, mail exploders, newsgroups, or chat rooms.
929 F. Supp., at 845 (findings 90-94). As a practical matter, the
Court also found
the bill, as well as similar assertions in hearings on a
substantially identical bill the year before, ... the congressional
record presented to us contains no evidence as to
how
effective or ineffective the FCC's most recent regulations were or
might prove to be .... No Congressman or Senator purported to
present a considered judgment with respect to how often or to what
extent minors could or would circumvent the rules and have access
to dial-a-porn messages" (footnote omitted)), with n. 24,
supra.
42 The Government agrees that these provisions are applicable
whenever "a sender transmits a message to more than one recipient,
knowing that at least one of the specific persons receiving the
message is a minor." Opposition to Motion to Affirm and Reply to
Juris. Statement 4-5, n. 1.
877
that it would be prohibitively expensive for noncommercialas
well as some commercial-speakers who have Web sites to verify that
their users are adults.
Id., at 845-848 (findings 95-116).43
These limitations must inevitably curtail a significant amount of
adult communication on the Internet. By contrast, the District
Court found that "[dJespite its limitations, currently available
user-based software suggests that a reasonably effective
method by which
parents can prevent their children from
accessing sexually explicit and other material which
parents
may believe is inappropriate for their children will soon be widely
available."
Id., at 842 (finding 73) (emphases added).
The breadth of the CDA's coverage is wholly unprecedented.
Unlike the regulations upheld in
Ginsberg and
Pacifica, the scope of the CDA is not limited to commercial
speech or commercial entities. Its open-ended prohibitions embrace
all nonprofit entities and individuals posting indecent messages or
displaying them on their own computers in the presence of minors.
The general, undefined terms "indecent" and "patently offensive"
cover large amounts of nonpornographic material with serious
educational or other value.44 Moreover, the "community standards"
criterion as applied to the Internet means that any communication
avail-
43 The Government asserts that "[t]here is nothing
constitutionally suspect about requiring commercial Web site
operators ... to shoulder the modest burdens associated with their
use." Brief for Appellants 35. As a matter of fact, however, there
is no evidence that a "modest burden" would be effective.
44 Transmitting obscenity and child pornography, whether via the
Internet or other means, is already illegal under federal law for
both adults and juveniles. See 18 U. S. C. §§ 1464-1465
(criminalizing obscenity); § 2251 (criminalizing child
pornography). In fact, when Congress was considering the CDA, the
Government expressed its view that the law was unnecessary because
existing laws already authorized its ongoing efforts to prosecute
obscenity, child pornography, and child solicitation. See 141 Congo
Rec. 16026 (1995) (letter from Kent Markus, Acting Assistant
Attorney General, U. S. Department of Justice, to Sen. Leahy).
878
able to a nationwide audience will be judged by the standards of
the community most likely to be offended by the message.45 The
regulated subject matter includes any of the seven "dirty words"
used in the
Pacifica monologue, the use of which the
Government's expert acknowledged could constitute a felony. See
Olsen Testimony, Tr. Vol. V, 53:1654:10. It may also extend to
discussions about prison rape or safe sexual practices, artistic
images that include nude subjects, and arguably the card catalog of
the Carnegie Library.
For the purposes of our decision, we need neither accept nor
reject the Government's submission that the First Amendment does
not forbid a blanket prohibition on all "indecent" and "patently
offensive" messages communicated to a 17-year-old-no matter how
much value the message may contain and regardless of parental
approval. It is at least clear that the strength of the
Government's interest in protecting minors is not equally strong
throughout the coverage of this broad statute. Under the CDA, a
parent allowing her 17-year-old to use the family computer to
obtain information on the Internet that she, in her parental
judgment, deems appropriate could face a lengthy prison term. See
47 U. S. C. § 223(a)(2) (1994 ed., Supp. II). Similarly, a parent
who sent his 17-year-old college freshman information on birth
control via e-mail could be incarcerated 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.
45 Citing
Church of Lukumi Babalu Aye, Inc. v.
Hialeah, 508
U. S. 520 (1993), among other cases, appellees offer an
additional reason why, in their view, the CDA fails strict
scrutiny. Because so much sexually explicit content originates
overseas, they argue, the CDA cannot be "effective." Brief for
Appellees American Library Association et al. 33-34. This argument
raises difficult issues regarding the intended, as well as the
permissible scope of, extraterritorial application of the CDA. We
find it unnecessary to address those issues to dispose of this
case.
879
The breadth of this content-based restriction of speech imposes
an especially heavy burden on the Government to explain why a less
restrictive provision would not be as effective as the CDA. It has
not done so. The arguments in this Court have referred to possible
alternatives such as requiring that indecent material be "tagged"
in a way that facilitates parental control of material coming into
their homes, making exceptions for messages with artistic or
educational value, providing some tolerance for parental choice,
and regulating some portions of the Internet-such as commercial Web
sites-differently from others, such as chat rooms. Particularly in
the light of the absence of any detailed findings by the Congress,
or even hearings addressing the special problems of the CDA, we are
persuaded that the CDA is not narrowly tailored if that requirement
has any meaning at all.
VIII
In an attempt to curtail the CDA's facial overbreadth, the
Government advances three additional arguments for sustaining the
Act's affirmative prohibitions: (1) that the CDA is constitutional
because it leaves open ample "alternative channels" of
communication; (2) that the plain meaning of the CDA's "knowledge"
and "specific person" requirement significantly restricts its
permissible applications; and (3) that the CDA's prohibitions are
"almost always" limited to material lacking redeeming social
value.
The Government first contends that, even though the CDA
effectively censors discourse on many of the Internet's
modalities-such as chat groups, newsgroups, and mail exploders-it
is nonetheless constitutional because it provides a "reasonable
opportunity" for speakers to engage in the restricted speech on the
World Wide Web. Brief for Appellants 39. This argument is
unpersuasive because the CDA regulates speech on the basis of its
content. A "time, place, and manner" analysis is therefore
inapplicable. See
Consolidated Edison Co. of N.
Y. v.
Public Servo Comm'n of N.
Y.,
880
447 U. S. 530,
536 (1980). It is thus immaterial whether such speech would be
feasible on the Web (which, as the Government's own expert
acknowledged, would cost up to $10,000 if the speaker's interests
were not accommodated by an existing Web site, not including costs
for data base management and age verification). The Government's
position is equivalent to arguing that a statute could ban leaflets
on certain subjects as long as individuals are free to publish
books. In invalidating a number of laws that banned leafletting on
the streets
regardless of their content, we explained that
"one is not to have the exercise of his liberty of expression in
appropriate places abridged on the plea that it may be exercised in
some other place."
Schneider v.
State (Town of
Irvington), 308
U. S. 147, 163 (1939).
The Government also asserts that the "knowledge" requirement of
both §§ 223(a) and (d), especially when coupled with the "specific
child" element found in § 223(d), saves the CDA from overbreadth.
Because both sections prohibit the dissemination of indecent
messages only to persons known to be under 18, the Government
argues, it does not require transmitters to "refrain from
communicating indecent material to adults; they need only refrain
from disseminating such materials to persons they know to be under
18." Brief for Appellants 24. This argument ignores the fact that
most Internet forums-including chat rooms, newsgroups, mail
exploders, and the Web-are open to all comers. The Government's
assertion that the knowledge requirement somehow protects the
communications of adults is therefore untenable. Even the strongest
reading of the "specific person" requirement of § 223(d) cannot
save the statute. It would confer broad powers of censorship, in
the form of a "heckler's veto," upon any opponent of indecent
speech who might simply log on and inform the would-be discoursers
that his 17-year-old child-a "specific person ... under 18 years of
age," 47 U. S. C. §223(d)(1)(A) (1994 ed., Supp. H)-would be
present.
881
Finally, we find no textual support for the Government's
submission that material having scientific, educational, or other
redeeming social value will necessarily fall outside the CDA's
"patently offensive" and "indecent" prohibitions. See also n. 37,
supra.
IX
The Government's three remaining arguments focus on the defenses
provided in § 223(e)(5).46 First, relying on the "good faith,
reasonable, effective, and appropriate actions" provision, the
Government suggests that "tagging" provides a defense that saves
the constitutionality of the CDA. The suggestion assumes that
transmitters may encode their indecent communications in a way that
would indicate their contents, thus permitting recipients to block
their reception with appropriate software. It is the requirement
that the good-faith action must be "effective" that makes this
defense illusory. The Government recognizes that its proposed
screening software does not currently exist. Even if it did, there
is no way to know whether a potential recipient will actually block
the encoded material. Without the impossible knowledge that every
guardian in America is screening for the "tag," the transmitter
could not reasonably rely on its action to be "effective."
For its second and third arguments concerning defenseswhich we
can consider together-the Government relies on the latter half of §
223(e)(5), which applies when the transmitter has restricted access
by requiring use of a verified credit card or adult identification.
Such verification is not only technologically available but
actually is used by commercial providers of sexually explicit
material. These providers, therefore, would be protected by the
defense. Under the findings of the District Court, however, it is
not economically feasible for most noncommercial speakers to employ
such verification. Accordingly, this defense would not signifi-
46 For the full text of § 223(e )(5), see n. 26, supra.
882
cantly narrow the statute's burden on noncommercial speech. Even
with respect to the commercial pornographers that would be
protected by the defense, the Government failed to adduce any
evidence that these verification techniques actually preclude
minors from posing as adults.47 Given that the risk of criminal
sanctions "hovers over each content provider, like the proverbial
sword of Damocles,"48 the District Court correctly refused to rely
on unproven future technology to save the statute. The Government
thus failed to prove that the proffered defense would significantly
reduce the heavy burden on adult speech produced by the prohibition
on offensive displays.
We agree with the District Court's conclusion that the CDA
places an unacceptably heavy burden on protected speech, and that
the defenses do not constitute the sort of "narrow tailoring" that
will save an otherwise patently invalid unconstitutional provision.
In
Sable, 492 U. S., at 127, we remarked that the speech
restriction at issue there amounted to "'burn[ing] the house to
roast the pig.'" The CDA, casting a far darker shadow over free
speech, threatens to torch a large segment of the Internet
community.
X
At oral argument, the Government relied heavily on its ultimate
fall-back position: If this Court should conclude that the CDA is
insufficiently tailored, it urged, we should save the statute's
constitutionality by honoring the severability clause, see 47 U. S.
C. § 608, and construing nonseverable terms narrowly. In only one
respect is this argument acceptable.
A severability clause requires textual provisions that can be
severed. We will follow § 608's guidance by leaving con-
47 Thus, ironically, this defense may significantly protect
commercial purveyors of obscene postings while providing little (or
no) benefit for transmitters of indecent messages that have
significant social or artistic value. 48929 F. Supp., at
855-856.
883
stitutional textual elements of the statute intact in the one
place where they are, in fact, severable. The "indecency"
provision, 47 U. S. C. § 223(a) (1994 ed., Supp. II), applies to
"any comment, request, suggestion, proposal, image, or other
communication which is
obscene or indecent." (Emphasis
added.) Appellees do not challenge the application of the statute
to obscene speech, which, they acknowledge, can be banned totally
because it enjoys no First Amendment protection. See
Miller,
413 U. S., at 18. As set forth by the statute, the restriction of
"obscene" material enjoys a textual manifestation separate from
that for "indecent" material, which we have held unconstitutional.
Therefore, we will sever the term "or indecent" from the statute,
leaving the rest of § 223(a) standing. In no other respect,
however, can § 223(a) or § 223(d) be saved by such a textual
surgery.
The Government also draws on an additional, less traditional
aspect of the CDA's severability clause, 47 U. S. C. § 608, which
asks any reviewing court that holds the statute facially
unconstitutional not to invalidate the CDA in application to "other
persons or circumstances" that might be constitutionally
permissible. It further invokes this Court's admonition that,
absent "countervailing considerations," a statute should "be
declared invalid to the extent it reaches too far, but otherwise
left intact."
Brockett v.
Spokane Arcades, Inc.,
472 U. S. 491,
503-504 (1985). There are two flaws in this argument.
First, the statute that grants our jurisdiction for this
expedited review, § 561 of the Telecommunications Act of 1961, note
following 47 U. S. C. § 223 (1994 ed., Supp. II), limits that
jurisdictional grant to actions challenging the CDA "on its face."
Consistent with § 561, the plaintiffs who brought this suit and the
three-judge panel that decided it treated it as a facial challenge.
We have no authority, in this particular posture, to convert this
litigation into an "as-applied" challenge. Nor, given the vast
array of plaintiffs, the range of their expressive activities, and
the vagueness of the stat-
884
ute, would it be practicable to limit our holding to a
judicially defined set of specific applications.
Second, one of the "countervailing considerations" mentioned in
Brockett is present here. In considering a facial challenge,
this Court may impose a limiting construction on a statute only if
it is "readily susceptible" to such a construction.
Virginia
v.
American Booksellers Assn., Inc., 484 U. S. 383, 397
(1988). See also
Erznoznik v.
Jacksonville, 422 U. S. 205, 216 (1975)
("readily subject" to narrowing construction). The open-ended
character of the CDA provides no guidance whatever for limiting its
coverage.
This case is therefore unlike those in which we have construed a
statute narrowly because the text or other source of congressional
intent identified a clear line that this Court could draw. Cf.,
e. g., Brockett, 472 U. S., at 504-505 (invalidating
obscenity statute only to the extent that word "lust" was actually
or effectively excised from statute);
United States v.
Grace, 461 U.
S. 171, 180-183 (1983) (invalidating federal statute banning
expressive displays only insofar as it extended to public sidewalks
when clear line could be drawn between sidewalks and other grounds
that comported with congressional purpose of protecting the
building, grounds, and people therein). Rather, our decision in
United States v.
Treasury Employees, 513 U. S. 454, 479, n. 26
(1995), is applicable. In that case, we declined to "dra[w] one or
more lines between categories of speech covered by an overly broad
statute, when Congress has sent inconsistent signals as to where
the new line or lines should be drawn" because doing so "involves a
far more serious invasion of the legislative domain."49 This Court
"will not rewrite a ... law
49 As this Court long ago explained: "It would certainly be
dangerous if the legislature could set a net large enough to catch
all possible offenders, and leave it to the courts to step inside
and say who could be rightfully detained, and who should be set at
large. This would, to some extent, substitute the judicial for the
legislative department of the government."
United States v.
Reese, 92 U. S.
214, 221 (1876). In part because of these
885
to conform it to constitutional requirements."
American
Booksellers, 484 U. S., at 397.50
XI
In this Court, though not in the District Court, the Government
asserts that-in addition to its interest in protecting children-its
"[e]qually significant" interest in fostering the growth of the
Internet provides an independent basis for upholding the
constitutionality of the CDA. Brief for Appellants 19. The
Government apparently assumes that the unregulated availability of
"indecent" and "patently offensive" material on the Internet is
driving countless citizens away from the medium because of the risk
of exposing themselves or their children to harmful material.
We find this argument singularly unpersuasive. The dramatic
expansion of this new marketplace of ideas contradicts the factual
basis of this contention. The record demonstrates that the growth
of the Internet has been and continues to be phenomenal. As a
matter of constitutional tradition, in the absence of evidence to
the contrary, we presume that governmental regulation of the
content of speech is more likely to interfere with the free
exchange of ideas than to encourage it. The interest in encouraging
freedom of expression in a democratic society outweighs any
theoretical but unproven benefit of censorship.
For the foregoing reasons, the judgment of the District Court is
affirmed.
It is so ordered.
separation-of-powers concerns, we have held that a severability
clause is "an aid merely; not an inexorable command."
Dorchy
v.
Kansas, 264
U. S. 286, 290 (1924).
50 See also
Osborne v.
Ohio, 495 U. S. 103, 121 (1990)
(judicial rewriting of statutes would derogate Congress' "incentive
to draft a narrowly tailored law in the first place").
886
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE joins, concurring
in the judgment in part and dissenting in part.
I write separately to explain why I view the Communications
Decency Act of 1996 (CDA) as little more than an attempt by
Congress to create "adult zones" on the Internet. Our precedent
indicates that the creation of such zones can be constitutionally
sound. Despite the soundness of its purpose, however, portions of
the CDA are unconstitutional because they stray from the blueprint
our prior cases have developed for constructing a "zoning law" that
passes constitutional muster.
Appellees bring a facial challenge to three provisions of the
CDA. The first, which the Court describes as the "indecency
transmission" provision, makes it a crime to knowingly transmit an
obscene or indecent message or image to a person the sender knows
is under 18 years old. 47 U. S. C. § 223(a)(1)(B) (1994 ed., Supp.
II). What the Court classifies as a single" 'patently offensive
display'" provision, see
ante, at 859, is in reality two
separate provisions. The first of these makes it a crime to
knowingly send a patently offensive message or image to a specific
person under the age of 18 ("specific person" provision). §
223(d)(1)(A). The second criminalizes the display of patently
offensive messages or images "in a[ny] manner available" to minors
("display" provision). § 223(d)(1)(B). None of these provisions
purports to keep indecent (or patently offensive) material away
from adults, who have a First Amendment right to obtain this
speech.
Sable Communications of Cal., Inc. v.
FCC,
492 U. S. 115,
126 (1989) ("Sexual expression which is indecent but not obscene is
protected by the First Amendment"). Thus, the undeniable purpose of
the CDA is to segregate indecent material on the Internet into
certain areas that minors cannot access. See S. Conf. Rep. No.
104-230, p. 189 (1996) (CDA imposes "access restrictions ... to
protect minors from exposure to indecent material").
887
The creation of "adult zones" is by no means a novel concept.
States have long denied minors access to certain establishments
frequented by adults.1 States have also denied minors access to
speech deemed to be "harmful to minors." 2
1 See,
e. g., Alaska Stat. Ann. § 11.66.300 (1996) (no
minors in "adult entertainment" places); Ariz. Rev. Stat. Ann. §
13-3556 (1989) (no minors in places where people expose
themselves); Ark. Code Ann. §§ 5-27-223, 5-27-224 (1993) (no minors
in poolrooms and bars); Colo. Rev. Stat. § 18-7502(2) (1986) (no
minors in places displaying movies or shows that are "harmful to
children"); Del. Code Ann., Tit. 11, § 1365(i)(2) (1995) (same); D.
C. Code Ann. § 22-2001(b)(I)(B) (1996) (same); Fla. Stat. §
847.013(2) (1994) (same); Ga. Code Ann. § 16-12-103(b) (1996)
(same); Haw. Rev. Stat. § 712-1215(1)(b) (1994) (no minors in movie
houses or shows that are "pornographic for minors"); Idaho Code §
18-1515(2) (1987) (no minors in places displaying movies or shows
that are "harmful to minors"); La. Rev. Stat. Ann. § 14:91.11(B)
(West 1986) (no minors in places displaying movies that depict sex
acts and appeal to minors' prurient interest); Md. Ann. Code, Art.
27, §416E (1996) (no minors in establishments where certain
enumerated acts are performed or portrayed); Mich. Compo Laws §
750.141 (1991) (no minors without an adult in places where alcohol
is sold); Minn. Stat. § 617.294 (1987 and Supp. 1997) (no minors in
places displaying movies or shows that are "harmful to minors");
Miss. Code Ann. § 97-5-11 (1994) (no minors in poolrooms, billiard
halls, or where alcohol is sold); Mo. Rev. Stat. § 573.507 (1995)
(no minors in adult cabarets); Neb. Rev. Stat. § 28-809 (1995) (no
minors in places displaying movies or shows that are "harmful to
minors"); Nev. Rev. Stat. §201.265(3) (1997) (same); N. H. Rev.
Stat. Ann. § 571-B:2(II) (1986) (same); N. M. Stat. Ann. § 30-37-3
(1989) (same); N. Y. Penal Law §235.21(2) (McKinney 1989) (same);
N. D. Cent. Code § 12.1-27.1-03 (1985 and Supp. 1995) (same); 18
Pa. Cons. Stat. § 5903(a) (Supp. 1997) (same); S. D. Compo Laws
Ann. §22-24-30 (1988) (same); Tenn. Code Ann. §39-17-911(b) (1991)
(same); Vt. Stat. Ann., Tit. 13, §2802(b) (1974) (same); Va. Code
Ann. § 18.2-391 (1996) (same).
2 See,
e. g., Ala. Code § 13A-12-200.5 (1994); Ariz. Rev.
Stat. Ann. § 133506 (1989); Ark. Code Ann. § 5-68-502 (1993); Cal.
Penal Code Ann. §313.1 (West Supp. 1997); Colo. Rev. Stat. §
18-7-502(1) (1986); Conn. Gen. Stat. § 53a-196 (1994); Del. Code
Ann., Tit. 11, § 1365(i)(I) (1995); D. C. Code Ann. §
22-2001(b)(I)(A) (1996); Fla. Stat. § 847.012 (1994); Ga. Code Ann.
§ 16-12-103(a) (1996); Haw. Rev. Stat. § 712-1215(1) (1994); Idaho
Code § 18-1515(1) (1987); Ill. Compo Stat., ch. 720, § 5/11-21
(1993); Ind. Code § 35-49-3-3(1) (Supp. 1996); Iowa Code § 728.2
(1993); Kan. Stat. Ann. §21-4301c(a)(2) (1988); La. Rev. Stat. Ann.
§ 14:91.11(B) (West 1986);
888
The Court has previously sustained such zoning laws, but only if
they respect the First Amendment rights of adults and minors. That
is to say, a zoning law is valid if (i) it does not unduly restrict
adult access to the material; and (ii) minors have no First
Amendment right to read or view the banned material. As applied to
the Internet as it exists in 1997, the "display" provision and some
applications of the "indecency transmission" and "specific person"
provisions fail to adhere to the first of these limiting principles
by restricting adults' access to protected materials in certain
circumstances. Unlike the Court, however, I would invalidate the
provisions only in those circumstances.
I
Our cases make clear that a "zoning" law is valid only if adults
are still able to obtain the regulated speech. If they cannot, the
law does more than simply keep children away from speech they have
no right to obtain-it interferes with the rights of adults to
obtain constitutionally protected speech and effectively "reduce[s]
the adult population ... to reading only what is fit for children."
Butler v.
Michigan, 352 U. S. 380, 383
(1957). The First Amendment does not tolerate such interference.
See ibid. (striking down a Michi-
Md. Ann. Code, Art. 27, §416B (1996); Mass. Gen. Laws, ch. 272,
§28 (1992); Minn. Stat. § 617.293 (1987 and Supp. 1997); Miss. Code
Ann. § 975-11 (1994); Mo. Rev. Stat. § 573.040 (1995); Mont. Code
Ann. § 45-8-206 (1995); Neb. Rev. Stat. § 28-808 (1995); Nev. Rev.
Stat. §§ 201.265(1), (2) (1997); N. H. Rev. Stat. Ann. § 571-B:2(I)
(1986); N. M. Stat. Ann. § 30-37-2 (1989); N. Y. Penal Law §
235.21(1) (McKinney 1989); N. C. Gen. Stat. § 14190.15(a) (1993);
N. D. Cent. Code § 12.1-27.1-03 (1985 and Supp. 1995); Ohio Rev.
Code Ann. § 2907.31(A)(I) (Supp. 1997); Okla. Stat., Tit. 21, §
1040.76(2) (Supp. 1997); 18 Pa. Cons. Stat. § 5903(c) (Supp. 1997);
R. 1. Gen. Laws § 11-31-10(a) (1996); S. C. Code Ann. §
16-15-385(A) (Supp. 1996); S. D. Compo Laws Ann. §22-24-28 (1988);
Tenn. Code Ann. §39-17911(a) (1991); Tex. Penal Code Ann. §
43.24(b) (1994); Utah Code Ann. § 7610-1206(2) (1995); Vt. Stat.
Ann., Tit. 13, §2802(a) (1974); Va. Code Ann. § 18.2-391 (1996);
Wash. Rev. Code § 9.68.060 (1988 and Supp. 1997); Wis. Stat. §
948.11(2) (Supp. 1995).
889
gan criminal law banning sale of books-to minors or adults-that
contained words or pictures that" 'tende[d] to ... corrup[t] the
morals of youth' ");
Sable Communications, supra
(invalidating federal law that made it a crime to transmit
indecent, but nonobscene, commercial telephone messages to minors
and adults);
Bolger v.
Youngs Drug Products Corp.,
463 U. S. 60, 74
(1983) (striking down a federal law prohibiting the mailing of
unsolicited advertisements for contraceptives). If the law does not
unduly restrict adults' access to constitutionally protected
speech, however, it may be valid. In
Ginsberg v.
New
York, 390 U. S.
629, 634 (1968), for example, the Court sustained a New York
law that barred store owners from selling pornographic magazines to
minors in part because adults could still buy those magazines.
The Court in
Ginsberg concluded that the New York law
created a constitutionally adequate adult zone simply because, on
its face, it denied access only to minors. The Court did not
question-and therefore necessarily assumed-that an adult zone, once
created, would succeed in preserving adults' access while denying
minors' access to the regulated speech. Before today, there was no
reason to question this assumption, for the Court has previously
only considered laws that operated in the physical world, a world
that with two characteristics that make it possible to create
"adult zones": geography and identity. See Lessig, Reading the
Constitution in Cyberspace, 45 Emory L. J. 869, 886 (1996). A minor
can see an adult dance show only if he enters an establishment that
provides such entertainment. And should he attempt to do so, the
minor will not be able to conceal completely his identity (or,
consequently, his age). Thus, the twin characteristics of geography
and identity enable the establishment's proprietor to prevent
children from entering the establishment, but to let adults
inside.
The electronic world is fundamentally different. Because it is
no more than the interconnection of electronic pathways, cyberspace
allows speakers and listeners to mask their iden-
890
tities. Cyberspace undeniably reflects some form of geography;
chat rooms and Web sites, for example, exist at fixed "locations"
on the Internet. Since users can transmit and receive messages on
the Internet without revealing anything about their identities or
ages, see id., at 901, however, it is not currently possible to
exclude persons from accessing certain messages on the basis of
their identity.
Cyberspace differs from the physical world in another basic way:
Cyberspace is malleable. Thus, it is possible to construct barriers
in cyberspace and use them to screen for identity, making
cyberspace more like the physical world and, consequently, more
amenable to zoning laws. This transformation of cyberspace is
already underway.
Id., at 888-889; id., at 887 (cyberspace
"is moving ... from a relatively unzoned place to a universe that
is extraordinarily well zoned"). Internet speakers (users who post
material on the Internet) have begun to zone cyberspace itself
through the use of "gateway" technology. Such technology requires
Internet users to enter information about themselves-perhaps an
adult identification number or a credit card number-before they can
access certain areas of cyberspace, 929 F. Supp. 824, 845 (ED Pa.
1996), much like a bouncer checks a person's driver's license
before admitting him to a nightclub. Internet users who access
information have not attempted to zone cyberspace itself, but have
tried to limit their own power to access information in cyberspace,
much as a parent controls what her children watch on television by
installing a lock box. This user-based zoning is accomplished
through the use of screening software (such as Cyber Patrol or
SurfWatch) or browsers with screening capabilities, both of which
search addresses and text for keywords that are associated with
"adult" sites and, if the user wishes, blocks access to such sites.
Id., at 839-842. The Platform for Internet Content Selection
project is designed to facilitate user-based zoning by encouraging
Internet speakers to rate the content
891
of their speech using codes recognized by all screening
programs.
Id., at 838-839.
Despite this progress, the transformation of cyberspace is not
complete. Although gateway technology has been available on the
World Wide Web for some time now, id., at 845;
Shea v.
Reno, 930 F. Supp. 916, 933-934 (SDNY 1996), it is not
available to all Web speakers, 929 F. Supp., at 845-846, and is
just now becoming technologically feasible for chat rooms and USE
NET newsgroups, Brief for Appellants 3738. Gateway technology is
not ubiquitous in cyberspace, and because without it "there is no
means of age verification," cyberspace still remains largely
unzoned-and unzoneable. 929 F. Supp., at 846;
Shea, supra,
at 934. U serbased zoning is also in its infancy. For it to be
effective, (i) an agreed-upon code (or "tag") would have to exist;
(ii) screening software or browsers with screening capabilities
would have to be able to recognize the "tag"; and (iii) those
programs would have to be widely available-and widely used-by
Internet users. At present, none of these conditions is true.
Screening software "is not in wide use today" and "only a handful
of browsers have screening capabilities."
Shea, supra, at
945-946. There is, moreover, no agreedupon "tag" for those programs
to recognize. 929 F. Supp., at 848;
Shea, supra, at 945.
Although the prospects for the eventual zoning of the Internet
appear promising, I agree with the Court that we must evaluate the
constitutionality of the CDA as it applies to the Internet as it
exists today.
Ante, at 881. Given the present state of
cyberspace, I agree with the Court that the "display" provision
cannot pass muster. Until gateway technology is available
throughout cyberspace, and it is not in 1997, a speaker cannot be
reasonably assured that the speech he displays will reach only
adults because it is impossible to confine speech to an "adult
zone." Thus, the only way for a speaker to avoid liability under
the CDA is to refrain completely from using indecent speech. But
this
892
forced silence impinges on the First Amendment right of adults
to make and obtain this speech and, for all intents and purposes,
"reduce[s] the adult population [on the Internet] to reading only
what is fit for children."
Butler, 352 U. S., at 383. As a
result, the "display" provision cannot withstand scrutiny. Accord,
Sable Communications, 492 U. S., at 126
131; Bolger v.
Youngs Drug Products Corp., 463 U. S., at 73-75.
The "indecency transmission" and "specific person" provisions
present a closer issue, for they are not unconstitutional in all of
their applications. As discussed above, the "indecency
transmission" provision makes it a crime to transmit knowingly an
indecent message to a person the sender knows is under 18 years of
age. 47 U. S. C. § 223(a)(1)(B) (1994 ed., Supp. II). The "specific
person" provision proscribes the same conduct, although it does not
as explicitly require the sender to know that the intended
recipient of his indecent message is a minor. § 223(d)(1)(A). The
Government urges the Court to construe the provision to impose such
a knowledge requirement, see Brief for Appellants 2527, and I would
do so. See
Edward J.
DeBartolo Corp. v.
Florida
Gulf Coast Building &
Constr. Trades Council,
485 U. S. 568,
575 (1988) ("[W]here an otherwise acceptable construction of a
statute would raise serious constitutional problems, the Court will
construe the statute to avoid such problems unless such
construction is plainly contrary to the intent of Congress").
So construed, both provisions are constitutional as applied to a
conversation involving only an adult and one or more minors-e. g.,
when an adult speaker sends an e-mail knowing the addressee is a
minor, or when an adult and minor converse by themselves or with
other minors in a chat room. In this context, these provisions are
no different from the law we sustained in
Ginsberg.
Restricting what the adult may say to the minors in no way
restricts the adult's ability to communicate with other adults. He
is not prevented from
893
speaking indecently to other adults in a chat room (because
there are no other adults participating in the conversation) and he
remains free to send indecent e-mails to other adults. The relevant
universe contains only one adult, and the adult in that universe
has the power to refrain from using indecent speech and
consequently to keep all such speech within the room in an "adult"
zone.
The analogy to
Ginsberg breaks down, however, when more
than one adult is a party to the conversation. If a minor enters a
chat room otherwise occupied by adults, the CDA effectively
requires the adults in the room to stop using indecent speech. If
they did not, they could be prosecuted under the "indecency
transmission" and "specific person" provisions for any indecent
statements they make to the group, since they would be transmitting
an indecent message to specific persons, one of whom is a minor.
Accord,
ante, at 876. The CDA is therefore akin to a law
that makes it a crime for a bookstore owner to sell pornographic
magazines to anyone once a minor enters his store. Even assuming
such a law might be constitutional in the physical world as a
reasonable alternative to excluding minors completely from the
store, the absence of any means of excluding minors from chat rooms
in cyberspace restricts the rights of adults to engage in indecent
speech in those rooms. The "indecency transmission" and "specific
person" provisions share this defect.
But these two provisions do not infringe on adults' speech in
all situations. And as discussed below, I do not find that
the provisions are overbroad in the sense that they restrict
minors' access to a substantial amount of speech that minors have
the right to read and view. Accordingly, the CDA can be applied
constitutionally in some situations. Normally, this fact would
require the Court to reject a direct facial challenge.
United
States v.
Salerno, 481 U. S. 739, 745 (1987)
("A facial challenge to a legislative Act [succeeds only if] the
challenger ... establish[es] that no set of circum-
894
stances exists under which the Act would be valid"). Appellees'
claim arises under the First Amendment, however, and they argue
that the CDA is facially invalid because it is "substantially
overbroad"-that is, it "sweeps too broadly ... [and] penaliz[es] a
substantial amount of speech that is constitutionally protected,"
Forsyth County v.
Nationalist Movement, 505 U. S. 123, 130
(1992). See Brief for Appellees American Library Association et al.
48; Brief for Appellees American Civil Liberties Union et al.
39-41. I agree with the Court that the provisions are overbroad in
that they cover any and all communications between adults and
minors, regardless of how many adults might be part of the audience
to the communication.
This conclusion does not end the matter, however.
Where, as here, "the parties challenging the statute are those
who desire to engage in protected speech that the overbroad statute
purports to punish, ... [t]he statute may forthwith be declared
invalid to the extent that it reaches too far, but otherwise left
intact."
Brockett v.
Spokane Arcades, Inc., 472 U. S. 491, 504
(1985). There is no question that Congress intended to prohibit
certain communications between one adult and one or more minors.
See 47 U. S. C. § 223(a)(1)(B) (1994 ed., Supp. II) (punishing
"[w]hoever ... initiates the transmission of [any indecent
communication] knowing that the recipient of the communication is
under 18 years of age"); § 223(d)(1)(A) (punishing "[w]hoever ...
send[s] to a specific person or persons under 18 years of age [a
patently offensive message]"). There is also no question that
Congress would have enacted a narrower version of these provisions
had it known a broader version would be declared unconstitutional.
47 U. S. C. § 608 ("If ... the application [of any provision of the
CDA] to any person or circumstance is held invalid, ... the
application of such provision to other persons or circumstances
shall not be affected thereby"). I would therefore sustain the
"indecency transmission" and "specific person" provisions to the
extent they
895
apply to the transmission of Internet communications where the
party initiating the communication knows that all of the recipients
are minors.
II
Whether the CDA substantially interferes with the First
Amendment rights of minors, and thereby runs afoul of the second
characteristic of valid zoning laws, presents a closer question. In
Ginsberg, the New York law we sustained prohibited the sale
to minors of magazines that were "harmful to minors." Under that
law, a magazine was "harmful to minors" only if it was obscene as
to minors. 390 U. S., at 632-633. Noting that obscene speech is not
protected by the First Amendment,
Roth v.
United
States, 354 U. S.
476, 485 (1957), and that New York was constitutionally free to
adjust the definition of obscenity for minors, 390 U. S., at 638,
the Court concluded that the law did not "invad[e] the area of
freedom of expression constitutionally secured to minors," id., at
637. New York therefore did not infringe upon the First Amendment
rights of minors. Cf.
Erznoznik v.
Jacksonville,
422 U. S. 205,
213 (1975) (striking down city ordinance that banned nudity that
was not "obscene even as to minors").
The Court neither "accept[s] nor reject[s]" the argument that
the CDA is facially overbroad because it substantially interferes
with the First Amendment rights of minors.
Ante, at 878. I
would reject it.
Ginsberg established that minors may
constitutionally be denied access to material that is obscene as to
minors. As
Ginsberg explained, material is obscene as to
minors if it (i) is "patently offensive to prevailing standards in
the adult community as a whole with respect to what is suitable ...
for minors"; (ii) appeals to the prurient interest of minors; and
(iii) is "utterly without redeeming social importance for minors."
390 U. S., at 633. Because the CDA denies minors the right to
obtain material that is "patently offensive"-even if it has some
redeeming value for minors and even if it does not appeal to their
pruri-
896
ent interests-Congress' rejection of the
Ginsberg
"harmful to minors" standard means that the CDA could ban some
speech that is "indecent" (i.
e., "patently offensive") but
that is not obscene as to minors.
I do not deny this possibility, but to prevail in a facial
challenge, it is not enough for a plaintiff to show "some"
overbreadth. Our cases require a proof of "real" and "substantial"
overbreadth,
Broadrick v.
Oklahoma, 413 U. S. 601, 615
(1973), and appellees have not carried their burden in this case.
In my view, the universe of speech constitutionally protected as to
minors but banned by the CDA-i.
e., the universe of material
that is "patently offensive," but which nonetheless has some
redeeming value for minors or does not appeal to their prurient
interest-is a very small one. Appellees cite no examples of speech
falling within this universe and do not attempt to explain why that
universe is substantial "in relation to the statute's plainly
legitimate sweep."
Ibid. That the CDA might deny minors the
right to obtain material that has some "value," see
ante, at
878, is largely beside the point. While discussions about prison
rape or nude art, see
ibid., may have some redeeming
educational value for
adults, they do not necessarily have
any such value for
minors, and under
Ginsberg, minors
only have a First Amendment right to obtain patently offensive
material that has "redeeming social importance
for minors,"
390 U. S., at 633 (emphasis added). There is also no evidence in
the record to support the contention that "many e-mail
transmissions from an adult to a minor are conversations between
family members,"
ante, at 865, n. 32, and no support for the
legal proposition that such speech is absolutely immune from
regulation. Accordingly, in my view, the CDA does not burden a
substantial amount of minors' constitutionally protected
speech.
Thus, the constitutionality of the CDA as a zoning law hinges on
the extent to which it substantially interferes with the First
Amendment rights of adults. Because the rights
897
of adults are infringed only by the "display" provision and by
the "indecency transmission" and "specific person" provisions as
applied to communications involving more than one adult, I would
invalidate the CDA only to that extent. Insofar as the "indecency
transmission" and "specific person" provisions prohibit the use of
indecent speech in communications between an adult and one or more
minors, however, they can and should be sustained. The Court
reaches a contrary conclusion, and from that holding I respectfully
dissent.
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