Ashcroft v. ACLU

535 U.S. 564 (2001)

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[NOTE: This case has been edited for classroom use by the omission of text and citations. See this alternate source for the full opinion.]

Opinion of Justice Thomas

Justice Thomas announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, an opinion with respect to Parts III-A, III-C, and III-D, in which The Chief Justice and Justice Scalia join, and an opinion with respect to Part III-B, in which The Chief Justice, Justice O'Connor, and Justice Scalia join.

This case presents the narrow question whether the Child Online Protection Act's (COPA or Act) use of "community standards" to identify "material that is harmful
to minors" violates the First Amendment. We hold that this aspect of COPA does not render the statute facially unconstitutional.


The Internet . . . offer[s] a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity." 47 U.S.C. § 230(a)(3) (1994 ed., Supp. V). While "surfing" the World Wide Web, the primary method of remote information retrieval on the Internet today, individuals can access material about topics ranging from aardvarks to Zoroastrianism. One can use the Web to read thousands of newspapers published around the globe, purchase tickets for a matinee at the neighborhood movie theater, or follow the progress of any Major League Baseball team on a pitch-by-pitch basis.

The Web also contains a wide array of sexually explicit material, including hardcore pornography. . . . Because "[n]avigating the Web is relatively straightforward," Reno v. American Civil Liberties Union, 521 U.S. 844, 852 (1997), and access to the Internet is widely available in homes, schools, and libraries across the country, children may discover this pornographic material either by deliberately accessing pornographic Web sites or by stumbling upon them.

Congress first attempted to protect children from exposure to pornographic material on the Internet by enacting the Communications Decency Act of 1996 (CDA), 110 Stat. 133. . . .

. . . .

[I]n Reno v. American Civil Liberties Union, we held that the CDA's regulation of indecent transmissions, see §223(a), and the display of patently offensive material, see §223(d), ran afoul of the First Amendment. We concluded that "the CDA lack[ed] the precision that the First Amendment requires when a statute regulates the content of speech" because, "[i]n order to deny minors access to potentially harmful speech, the CDA effectively suppress[ed] a large amount of speech that adults ha[d] a constitutional right to receive and to address to one another." 521 U.S., at 874.

Our holding was based on three crucial considerations. First, "existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults." Id., at 876. Second, "[t]he breadth of the CDA's coverage [was] wholly unprecedented." Id., at 877. "Its open-ended prohibitions embrace[d]," not only commercial speech or commercial entities, but also "all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors." Ibid. In addition, because the CDA did not define the terms "indecent" and "patently offensive," the statute "cover[ed] large amounts of nonpornographic material with serious educational or other value." Ibid. As a result, regulated subject matter under the CDA extended to "discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalog of the Carnegie Library." Id., at 878. Third, we found that neither affirmative defense set forth in the CDA "constitute[d] the sort of 'narrow tailoring' that [would] save an otherwise patently invalid unconstitutional provision." Id., at 882. Consequently, only the CDA's ban on the knowing transmission of obscene messages survived scrutiny because obscene speech enjoys no First Amendment protection. See id., at 883.

After our decision in Reno v. American Civil Liberties Union . . . . Congress passed and the President signed into law the Child Online Protection Act, 112 Stat. 2681-736 (codified in 47 U.S.C. § 231 (1994 ed., Supp. V)). COPA prohibits any person from "knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, mak[ing] any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors." 47 U.S.C. § 231(a)(1).

Apparently responding to our objections to the breadth of the CDA's coverage, Congress limited the scope of COPA's coverage in at least three ways. First, while the CDA applied to communications over the Internet as a whole, including, for example, e-mail messages, COPA applies only to material displayed on the World Wide Web. Second, unlike the CDA, COPA covers only communications made "for commercial purposes."n3 Ibid. And third, while the CDA prohibited "indecent" and "patently offensive" communications, COPA restricts only the narrower category of "material that is harmful to minors." Ibid.

Drawing on the three-part test for obscenity set forth in Miller v. California, 413 U.S. 15(1973), COPA defines "material that is harmful to minors" as

"any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that–

"(A)  the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;

"(B)  depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

"(C)  taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." 47 U.S.C. § 231(e)(6).

Like the CDA, COPA also provides affirmative defenses to those subject to prosecution under the statute. An individual may qualify for a defense if he, "in good faith, has restricted access by minors to material that is harmful to minors–(A) by requiring the use of a credit card, debit account, adult access code, or adult personal identification number; (B) by accepting a digital certificate that verifies age; or (C) by any other reasonable measures that are feasible under available technology." §231(c)(1). Persons violating COPA are subject to both civil and criminal sanctions. A civil penalty of up to $50,000 may be imposed for each violation of the statute. Criminal penalties consist of up to six months in prison and/or a maximum fine of $50,000. An additional fine of $50,000 may be imposed for any intentional violation of the statute. §231(a).

One month before COPA was scheduled to go into effect, respondents filed a lawsuit challenging the constitutionality of the statute in the United States District Court for the Eastern District of Pennsylvania. Respondents are a diverse group of organizations, most of which maintain their own Web sites. While the vast majority of content on their Web sites is available for free, respondents all derive income from their sites. Some, for example, sell advertising that is displayed on their Web sites, while others either sell goods directly over their sites or charge artists for the privilege of posting material. 31 F. Supp. 2d, at 487. All respondents either post or have members that post sexually oriented material on the Web. Id., at 480. Respondents' Web sites contain "resources on obstetrics, gynecology, and sexual health; visual art and poetry; resources designed for gays and lesbians; information about books and stock photographic images offered for sale; and online magazines." Id., at 484.

In their complaint, respondents alleged that, although they believed that the material on their Web sites was valuable for adults, they feared that they would be prosecuted under COPA because some of that material "could be construed as 'harmful to minors' in some communities." App. 63. . . .

The District Court granted respondents' motion for a preliminary injunction, barring the Government from enforcing the Act until the merits of respondents' claims could be adjudicated. 31 F. Supp. 2d, at 499. Focusing on respondents' claim that COPA abridged the free speech rights of adults, the District Court concluded that respondents had established a likelihood of success on the merits. Id., at 498. The District Court reasoned that because COPA constitutes content-based regulation of sexual expression protected by the First Amendment, the statute, under this Court's precedents, was "presumptively invalid" and "subject to strict scrutiny." Id., at 493. The District Court then held that respondents were likely to establish at trial that COPA could not withstand such scrutiny because, among other reasons, it was not apparent that COPA was the least restrictive means of preventing minors from accessing "harmful to minors" material. Id., at 497.

The Attorney General of the United States appealed the District Court's ruling. American Civil Liberties Union v. Reno, 217 F.3d 162 (3rd Cir. 2000). The United States Court of Appeals for the Third Circuit affirmed. Rather than reviewing the District Court's "holding that COPA was not likely to succeed in surviving strict scrutiny analysis," the Court of Appeals based its decision entirely on a ground that was not relied upon below and that was "virtually ignored by the parties and the amicus in their respective briefs." Id., at 173-174. The Court of Appeals concluded that COPA's use of "contemporary community standards" to identify material that is harmful to minors rendered the statute substantially overbroad. Because "Web publishers are without any means to limit access to their sites based on the geographic location of particular Internet users," the Court of Appeals reasoned that COPA would require "any material that might be deemed harmful by the most puritan of communities in any state" to be placed behind an age or credit card verification system. Id., at 175. Hypothesizing that this step would require Web publishers to shield "vast amounts of material," ibid., the Court of Appeals was "persuaded that this aspect of COPA, without reference to its other provisions, must lead inexorably to a holding of a likelihood of unconstitutionality of the entire COPA statute." Id., at 174.

We granted the Attorney General's petition for certiorari, 532 U.S. 1037 (2001), to review the Court of Appeals' determination that COPA likely violates the First Amendment because it relies, in part, on community standards to identify material that is harmful to minors, and now vacate the Court of Appeals' judgment.


The First Amendment states that "Congress shall make no law . . . abridging the freedom of speech." . . . "[A]s a general matter, 'the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'" Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65 (1983) (quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972)). However, this principle, like other First Amendment principles, is not absolute.

Obscene speech, for example, has long been held to fall outside the purview of the First Amendment. . . .

. . . Miller v. California, 413 U.S. 15 (1973), set forth the governing three-part test for assessing whether material is obscene and thus unprotected by the First Amendment: "(a) [W]hether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Id., at 24 (internal citations omitted; emphasis added).

Miller adopted the use of "community standards" from Roth, which repudiated an earlier approach for assessing objectionable material. Beginning in the 19th century, English courts and some American courts allowed material to be evaluated from the perspective of particularly sensitive persons. But in Roth, this Court held that this sensitive person standard was "unconstitutionally restrictive of the freedoms of speech and press" and approved a standard requiring that material be judged from the perspective of "the average person, applying contemporary community standards." Id., at 489. The Court preserved the use of community standards in formulating the Miller test, explaining that they furnish a valuable First Amendment safeguard: "[T]he primary concern . . . is to be certain that . . . [material] will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person–or indeed a totally insensitive one." Miller, 413 U.S., at 33 (internal quotation marks omitted).


The Court of Appeals, however, concluded that this Court's prior community standards jurisprudence "has no applicability to the Internet and the Web" because "Web publishers are currently without the ability to control the geographic scope of the recipients of their communications." 217 F.3d, at 180. We therefore must decide whether this technological limitation renders COPA's reliance on community standards constitutionally infirm.

. . . .


. . . .

In evaluating the constitutionality of the CDA, this Court expressed a [] concern over that statute's use of community standards to identify patently offensive material on the Internet. We noted that "the 'community standards' criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message." Reno, 521 U.S., at 877-878. The Court of Appeals below relied heavily on this observation, stating that it was "not persuaded that the Supreme Court's concern with respect to the 'community standards' criterion has been sufficiently remedied by Congress in COPA." 217 F.3d, at 174.

The CDA's use of community standards to identify patently offensive material, however, was particularly problematic in light of that statute's unprecedented breadth and vagueness. . . .

COPA, by contrast, does not appear to suffer from the same flaw because it applies to significantly less material than did the CDA and defines the harmful-to-minors material restricted by the statute in a manner parallel to the Miller definition of obscenity. To fall within the scope of COPA, works must not only "depic[t], describ[e], or represen[t], in a manner patently offensive with respect to minors," particular sexual acts or parts of the anatomy,n8 they must also be designed to appeal to the prurient interest of minors and "taken as a whole, lac[k] serious literary, artistic, political, or scientific value for minors." 47 U.S.C. § 231(e)(6).

. . . .Of even more significance, however, is COPA's exclusion of material with serious value for minors. See 47 U.S.C. § 231(e)(6)(C). In Reno, we emphasized that the serious value "requirement is particularly important because, unlike the 'patently offensive' and 'prurient interest' criteria, it is not judged by contemporary community standards." 521 U.S., at 873 (citing Pope v. Illinois, 481 U.S. 497, 500 (1987)). This is because "the value of [a] work [does not] vary from community to community based on the degree of local acceptance it has won." Id., at 500. Rather, the relevant question is "whether a reasonable person would find . . . value in the material, taken as a whole." Id., at 501. Thus, the serious value requirement "allows appellate courts to impose some limitations and regularity on the definition by setting, as a matter of law, a national floor for socially redeeming value." Reno, supra, at 873 (emphasis added), a safeguard nowhere present in the CDA.


When the scope of an obscenity statute's coverage is sufficiently narrowed by a "serious value" prong and a "prurient interest" prong, we have held that requiring a speaker disseminating material to a national audience to observe varying community standards does not violate the First Amendment. In Hamling v. United States, 418 U.S. 87 (1974), this Court . . . [upheld a] federal statute prohibiting the mailing of obscene material. . .

. . . .

Fifteen years later, Hamling's holding was reaffirmed in Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989). Sable addressed the constitutionality of 47 U.S.C. § 223(b) (1982 ed., Supp. V), a statutory provision prohibiting the use of telephones to make obscene or indecent communications for commercial purposes. . . .

The Court of Appeals below concluded that Hamling and Sable "are easily distinguished from the present case" because in both of those cases "the defendants had the ability to control the distribution of controversial material with respect to the geographic communities into which they released it" whereas "Web publishers have no such comparable control." 217 F.3d, at 175-176. In neither Hamling nor Sable, however, was the speaker's ability to target the release of material into particular geographic areas integral to the legal analysis. . . .

While Justice Kennedy and Justice Stevens question the applicability of this Court's community standards jurisprudence to the Internet, we do not believe that the medium's "unique characteristics" justify adopting a different approach than that set forth in Hamling and Sable. If a publisher chooses to send its material into a particular community, this Court's jurisprudence teaches that it is the publisher's responsibility to abide by that community's standards. The publisher's burden does not change simply because it decides to distribute its material to every community in the Nation. . . . If a publisher wishes for its material to be judged only by the standards of particular communities, then it need only take the simple step of utilizing a medium that enables it to target the release of its material into those communities.n14

. . . . [I]f we were to hold COPA unconstitutional because of its use of community standards, federal obscenity statutes would likely also be unconstitutional as applied to the Web, a result in substantial tension with our prior suggestion that the application of the CDA to obscene speech was constitutional. See Reno, 521 U.S., at 877, n. 44, 882-883.


Respondents argue that COPA is "unconstitutionally overbroad" because it will require Web publishers to shield some material behind age verification screens that could be displayed openly in many communities across the Nation if Web speakers were able to limit access to their sites on a geographic basis. "[T]o prevail in a facial challenge," however, "it is not enough for a plaintiff to show 'some' overbreadth." Reno, supra, at 896 (O'Connor, J., concurring in judgment in part and dissenting in part). Rather, "the overbreadth of a statute must not only be real, but substantial as well." Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). At this stage of the litigation, respondents have failed to satisfy this burden, at least solely as a result of COPA's reliance on community standards.n16 . . . .


The scope of our decision today is quite limited. We hold only that COPA's reliance on community standards to identify "material that is harmful to minors" does not by itself render the statute substantially overbroad for purposes of the First Amendment. We do not express any view as to whether COPA suffers from substantial overbreadth for other reasons, whether the statute is unconstitutionally vague, or whether the District Court correctly concluded that the statute likely will not survive strict scrutiny analysis once adjudication of the case is completed below. While respondents urge us to resolve these questions at this time, prudence dictates allowing the Court of Appeals to first examine these difficult issues.

Petitioner does not ask us to vacate the preliminary injunction entered by the District Court, and in any event, we could not do so without addressing matters yet to be considered by the Court of Appeals. As a result, the Government remains enjoined from enforcing COPA absent further action by the Court of Appeals or the District Court.

For the foregoing reasons, we vacate the judgment of the Court of Appeals and remand the case for further proceedings.

It is so ordered.




3. The statute provides that "[a] person shall be considered to make a communication for commercial purposes only if such person is engaged in the business of making such communications." 47 U.S.C. § 231(e)(2)(A) (1994 ed., Supp. V). COPA then defines the term "engaged in the business" to mean a person:     "who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person's sole or principal business or source of income)." §231(e)(2)(B).

8. While the CDA allowed juries to find material to be patently offensive so long as it depicted or described "sexual or excretory activities or organs," COPA specifically delineates the sexual activities and anatomical features, the depictions of which may be found to be patently offensive: "an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast." 47 U.S.C. § 231(e)(6)(B).

12. This fact was perhaps omitted because under the federal statute at issue in Hamling v. United States, 418 U.S. 87 (1974), a defendant could be prosecuted in any district through which obscene mail passed while it was on route to its destination, see id., at 143-144 (Brennan, J., dissenting), and a postal customer obviously lacked the ability to control the path his letter traveled as it made its way to its intended recipient.

13. Justice Stevens' contention that this Court "upheld the application of community standards to a nationwide medium" in Sable due to the fact that "[it] was at least possible" for dial-a-porn operators to tailor their messages to particular communities is inaccurate. See post, at 532 U.S. 1037, __, 122 S.Ct. 1700, 1724 (dissenting opinion). This Court's conclusion clearly did not hinge either on the fact that dial-a-porn operators could prevent callers in particular communities from accessing their messages or on an assessment of how burdensome it would have been for dial-a-porn operators to take that step. Rather, these companies were required to abide by the standards of various communities for the sole reason that they transmitted their material into those communities. See Sable, 492 U.S., at 126 ("If Sable's audience is comprised of different communities with different local standards, Sable ultimately bears the burden of complying with the prohibition on obscene messages").

14. . . . . While Justice Kennedy and Justice Stevens repeatedly imply that COPA banishes from the Web material deemed harmful to minors by reference to community standards, the statute does no such thing. It only requires that such material be placed behind adult identification screens.

16. Justice Stevens' conclusion to the contrary is based on little more than . . . . various anecdotes compiled in an amici brief. Justice Stevens, however, is not even willing to represent that these anecdotes relate to material restricted under COPA . . . . These anecdotes are therefore of questionable relevance to the matter at hand and certainly do not constitute a sufficient basis for invalidating a federal statute. Moreover, we do not agree with Justice Kennedy's suggestion that it is necessary for the Court of Appeals to revisit this question upon remand. The lack of evidence in the record . . . . indicates that respondents . . . have failed to meet their burden of demonstrating in this facial challenge that COPA's reliance on community standards renders the statute substantially overbroad.


Opinion of Justice O'Connor, concurring in part and concurring in the judgment.

I agree with the plurality that even if obscenity on the Internet is defined in terms of local community standards, respondents have not shown that the Child Online Protection Act (COPA) is overbroad solely on the basis of the variation in the standards of different communities. Like Justice Breyer, however, I write separately to express my views on the constitutionality and desirability of adopting a national standard for obscenity for regulation of the Internet.

The plurality's opinion argues that, even under local community standards, the variation between the most and least restrictive communities is not so great with respect to the narrow category of speech covered by COPA as to, alone, render the statute substantially overbroad. I agree, given respondents' failure to provide examples of materials that lack literary, artistic, political, and scientific value for minors, which would nonetheless result in variation among communities judging the other elements of the test. . . .

But respondents' failure to prove substantial overbreadth on a facial challenge in this case still leaves open the possibility that the use of local community standards will cause problems for regulation of obscenity on the Internet, for adults as well as children, in future cases. In an as-applied challenge, for instance, individual litigants may still dispute that the standards of a community more restrictive than theirs should apply to them. And in future facial challenges to regulation of obscenity on the Internet, litigants may make a more convincing case for substantial overbreadth. . . .

. . . . I agree with Justice Kennedy that, given Internet speakers' inability to control the geographic location of their audience, expecting them to bear the burden of controlling the recipients of their speech, as we did in Hamling and Sable, may be entirely too much to ask, and would potentially suppress an inordinate amount of expression. For these reasons, adoption of a national standard is necessary in my view for any reasonable regulation of Internet obscenity.

Our precedents do not forbid adoption of a national standard. . . .

. . . .

To be sure, the Court in Miller also stated that a national standard might be "unascertainable," 413 U.S., at 31, and "[un]realistic," id., at 32. But where speech on the Internet is concerned, I do not share that skepticism. It is true that our Nation is diverse, but many local communities encompass a similar diversity. . . . Moreover, the existence of the Internet, and its facilitation of national dialogue, has itself made jurors more aware of the views of adults in other parts of the United States. . . . In my view, a national standard is not only constitutionally permissible, but also reasonable.

While I would prefer that the Court resolve the issue before it by explicitly adopting a national standard for defining obscenity on the Internet, given respondents' failure to demonstrate substantial overbreadth due solely to the variation between local communities, I join Parts I, II, III-B, and IV of Justice Thomas' opinion and the judgment.


Opinion of Justice Breyer, concurring in part and concurring in the judgment.

I write separately because I believe that Congress intended the statutory word "community" to refer to the Nation's adult community taken as a whole, not to geographically separate local areas. The statutory language does not explicitly describe the specific "community" to which it refers. It says only that the "average person, applying contemporary community standards" must find that the "material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest . . . ." 47 U.S.C. § 231(e)(6) (1994 ed., Supp V).

In the statute's legislative history, however, Congress made clear that it did not intend this ambiguous statutory phrase to refer to separate standards that might differ significantly among different communities. The relevant House of Representatives Report says:

The Committee recognizes that the applicability of community standards in the context of the Web is controversial, but understands it as an "adult" standard, rather than a "geographic" standard, and one that is reasonably constant among adults in America with respect to what is suitable for minors.
H. R. Rep. No. 105-775, p. 28 (1998) (emphasis added). This statement, reflecting what apparently was a uniform view within Congress, makes clear that the standard, and the relevant community, is national and adult.

At the same time, this view of the statute avoids the need to examine the serious First Amendment problem that would otherwise exist. To read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler's Internet veto affecting the rest of the Nation. The technical difficulties associated with efforts to confine Internet material to particular geographic areas make the problem particularly serious. And these special difficulties also potentially weaken the authority of prior cases in which they were not present. A nationally uniform adult-based standard–which Congress, in its Committee Report, said that it intended–significantly alleviates any special need for First Amendment protection. Of course some regional variation may remain, but any such variations are inherent in a system that draws jurors from a local geographic area and they are not, from the perspective of the First Amendment, problematic.

For these reasons I do not join Part III of Justice Thomas' opinion, although I agree with much of the reasoning set forth in Parts III-B and III-D, insofar as it explains the conclusion to which I just referred, namely that variation reflecting application of the same national standard by different local juries does not violate the First Amendment.


Opinion of Justice Kennedy, with whom Justice Souter and Justice Ginsburg join, concurring in the judgment.


. . . .

. . . . Whether the national variation in community standards produces overbreadth requiring invalidation of COPA depends on the breadth of COPA's coverage and on what community standards are being invoked. Only by identifying the universe of speech burdened by COPA is it possible to discern whether national variation in community standards renders the speech restriction overbroad. In short, the ground on which the Court of Appeals relied cannot be separated from those that it overlooked.

. . . .

The Court of Appeals found that COPA in effect subjects every Internet speaker to the standards of the most puritanical community in the United States. This concern is a real one, but it alone cannot suffice to invalidate COPA without careful examination of the speech and the speakers within the ambit of the Act. For this reason, I join the judgment of the Court vacating the opinion of the Court of Appeals and remanding for consideration of the statute as a whole. Unlike Justice Thomas, however, I would not assume that the Act is narrow enough to render the national variation in community standards unproblematic. Indeed, if the District Court correctly construed the statute across its other dimensions, then the variation in community standards might well justify enjoining enforcement of the Act. I would leave that question to the Court of Appeals in the first instance.


. . . .

It is true, as Justice Thomas points out, that requiring a speaker addressing a national audience to meet varying community standards does not always violate the First Amendment. See Hamling v. United States, 418 U.S. 87, 106 (1974) (obscene mailings); Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 125-126 (1989) (obscene phone messages). These cases, however, are of limited utility in analyzing the one before us, because each mode of expression has its own unique characteristics, and each "must be assessed for First Amendment purposes by standards suited to it." Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975). Indeed, when Congress purports to abridge the freedom of a new medium, we must be particularly attentive to its distinct attributes, for "differences in the characteristics of new media justify . . . differences in the First Amendment standards applied to them." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386 (1969). The economics and the technology of each medium affect both the burden of a speech restriction and the Government's interest in maintaining it.

. . . .

The economics and technology of Internet communication differ in important ways from those of telephones and mail. Paradoxically, as the District Court found, it is easy and cheap to reach a worldwide audience on the Internet, see 31 F. Supp. 2d, at 482, but expensive if not impossible to reach a geographic subset, id., at 484. A Web publisher in a community where avant garde culture is the norm may have no desire to reach a national market; he may wish only to speak to his neighbors; nevertheless, if an eavesdropper in a more traditional, rural community chooses to listen in, there is nothing the publisher can do. As a practical matter, COPA makes the eavesdropper the arbiter of propriety on the Web. And it is no answer to say that the speaker should "take the simple step of utilizing a [different] medium." Ante, at 19 (principal opinion of Thomas, J.). "Our prior decisions have voiced particular concern with laws that foreclose an entire medium of expression . . . . [T]he danger they pose to the freedom of speech is readily apparent–by eliminating a common means of speaking, such measures can suppress too much speech." City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994).

Justice Breyer would alleviate the problem of local variation in community standards by construing the statute to comprehend the "Nation's adult community taken as a whole," rather than the local community from which the jury is drawn. Ante, at 532 U.S. 1037, __, 122 S.Ct. 1700, 1715 (opinion concurring in part and concurring in judgment); see also ante, at 532 U.S. 1037, __, 122 S.Ct. 1700, 1714-15 (O'Connor, J., concurring in part and concurring in judgment). There is one statement in a House Committee Report to this effect, "reflecting," Justice Breyer writes, "what apparently was a uniform view within Congress." Ante, at 532 U.S. 1037, __, 122 S.Ct. 1700, 1716. The statement, perhaps, reflects the view of a majority of one House committee, but there is no reason to believe that it reflects the view of a majority of the House of Representatives, let alone the "uniform view within Congress." Ibid.

In any event, we need not decide whether the statute invokes local or national community standards to conclude that vacatur and remand are in order. If the statute does incorporate some concept of national community standards, the actual standard applied is bound to vary by community nevertheless . . . .

. . . .


In summary, the breadth of the Act depends on the issues discussed above, and the significance of varying community standards depends, in turn, on the breadth of the Act. The Court of Appeals was correct to focus on the national variation in community standards, which can constitute a substantial burden on Internet communication; and its ultimate conclusion may prove correct. There may be grave doubts that COPA is consistent with the First Amendment; but we should not make that determination with so many questions unanswered. The Court of Appeals should undertake a comprehensive analysis in the first instance.


Opinion of Justice Stevens, dissenting.

. . . .

COPA not only restricts speech that is made available to the general public, it also covers a medium in which speech cannot be segregated to avoid communities where it is likely to be considered harmful to minors. The Internet presents a unique forum for communication because information, once posted, is accessible everywhere on the network at once. The speaker cannot control access based on the location of the listener, nor can it choose the pathways through which its speech is transmitted. By approving the use of community standards in this context, Justice Thomas endorses a construction of COPA that has "the intolerable consequence of denying some sections of the country access to material, there deemed acceptable, which in others might be considered offensive to prevailing community standards of decency." Manual Enterprises, Inc. v. Day, 370 U.S. 478, 488 (1962).

If the material were forwarded through the mails, as in Hamling, or over the telephone, as in Sable, the sender could avoid destinations with the most restrictive standards. . . . In light of this fundamental difference in technologies, the rules applicable to the mass mailing of an obscene montage or to obscene dial-a-porn should not be used to judge the legality of messages on the World Wide Web.2

In his attempt to fit this case within the framework of Hamling and Sable, Justice Thomas overlooks the more obvious comparison–namely, the CDA invalidated in ACLU I. When we confronted a similar attempt by Congress to limit speech on the Internet based on community standards, we explained that because Web publishers cannot control who accesses their Web sites, using community standards to regulate speech on the Internet creates an overbreadth problem. "[T]he 'community standards' criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message." 521 U.S., at 877-878. Although our holding in ACLU I did not turn on that factor alone, we did not adopt the position relied on by Justice Thomas–that applying community standards to the Internet is constitutional based on Hamling and Sable.3

Justice Thomas points to several other provisions in COPA to argue that any overbreadth will be rendered insubstantial by the rest of the statute. These provisions afford little reassurance, however, as they only marginally limit the sweep of the statute. It is true that, in addition to COPA's "appeals to the prurient interest of minors" prong, the material must be "patently offensive with respect to minors" and it must lack "serious literary, artistic, political, or scientific value for minors." 47 U.S.C. § 231(e)(6). Nonetheless, the "patently offensive" prong is judged according to contemporary community standards as well. Whatever disparity exists between various communities' assessment of the content that appeals to the prurient interest of minors will surely be matched by their differing opinions as to whether descriptions of sexual acts or depictions of nudity are patently offensive with respect to minors. Nor does the requirement that the material be "in some sense erotic," see ante, at 532 U.S. 1037, __, 122 S.Ct. 1700, 1710 (citing Erznoznik v. Jacksonville, 422 U.S. 205, 213, and n. 10 (1975)), substantially narrow the category of images covered. Arguably every depiction of nudity–partial or full–is in some sense erotic with respect to minors.

Petitioner's argument that the "serious value" prong minimizes the statute's overbreadth is also unpersuasive. . . [T]he jury must determine whether the materials have serious value for minors. Congress reasonably concluded that a substantial number of works, which have serious value for adults, do not have serious value for minors. Thus, even though the serious value prong limits the total amount of speech covered by the statute, it remains true that there is a significant amount of protected speech within the category of materials that have no serious value for minors. That speech is effectively prohibited whenever the least tolerant communities find it harmful to minors.5 . . . .

Justice Kennedy makes a similar misstep, ante, at 532 U.S. 1037, __, 122 S.Ct. 1700, 1717 (opinion concurring in judgment), when he ties the overbreadth inquiry to questions about the scope of the other provisions of the statute. According to his view, we cannot determine whether the statute is substantially overbroad based on its use of community standards without first determining how much of the speech on the Internet is saved by the other restrictions in the statute. But this represents a fundamental misconception of our overbreadth doctrine. . . . Regardless of how the Court of Appeals interprets the "commercial purposes" or "as a whole" provisions on remand, the question we must answer is whether the statute restricts a substantial amount of protected speech relative to its legitimate sweep by virtue of the fact that it uses community standards. These other provisions may reduce the absolute number of Web pages covered by the statute, but even the narrowest version of the statute abridges a substantial amount of protected speech that many communities would not find harmful to minors. Because Web speakers cannot limit access to those specific communities, the statute is substantially overbroad regardless of how its other provisions are construed.

Justice Thomas acknowledges, and petitioner concedes, that juries across the country will apply different standards and reach different conclusions about whether particular works are harmful to minors. We recognized as much in ACLU I when we noted that "discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalog of the Carnegie Library" might offend some community's standards and not others, 521 U.S., at 878. . . .

. . . . Because communities differ widely in their attitudes toward sex, particularly when minors are concerned, the Court of Appeals was correct to conclude that, regardless of how COPA's other provisions are construed, applying community standards to the Internet will restrict a substantial amount of protected speech that would not be considered harmful to minors in many communities.

Whether that consequence is appropriate depends, of course, on the content of the message. The kind of hard-core pornography involved in Hamling, which I assume would be obscene under any community's standard, does not belong on the Internet. Perhaps "teasers" that serve no function except to invite viewers to examine hardcore materials, or the hidden terms written into a Web site's "metatags" in order to dupe unwitting Web surfers into visiting pornographic sites, deserve the same fate. But COPA extends to a wide range of prurient appeals in advertisements, online magazines, Web-based bulletin boards and chat rooms, stock photo galleries, Web diaries, and a variety of illustrations encompassing a vast number of messages that are unobjectionable in most of the country and yet provide no "serious value" for minors. It is quite wrong to allow the standards of a minority consisting of the least tolerant communities to regulate access to relatively harmless messages in this burgeoning market.

In the context of most other media, using community standards to differentiate between permissible and impermissible speech has two virtues. As mentioned above, community standards originally served as a shield to protect speakers from the least tolerant members of society. By aggregating values at the community level, the Miller test eliminated the outliers at both ends of the spectrum and provided some predictability as to what constitutes obscene speech. But community standards also serve as a shield to protect audience members, by allowing people to self-sort based on their preferences. Those who abhor and those who tolerate sexually explicit speech can seek out like-minded people and settle in communities that share their views on what is acceptable for themselves and their children. This sorting mechanism, however, does not exist in cyberspace; the audience cannot self-segregate. As a result, in the context of the Internet this shield also becomes a sword, because the community that wishes to live without certain material not only rids itself, but the entire Internet of the offending speech.

In sum, I would affirm the judgment of the Court of Appeals and therefore respectfully dissent.


Footnotes to Stevens' Dissenting Opinion

2. It is hardly a solution to say, as Justice Thomas suggests, that a speaker need only choose a different medium in order to avoid having its speech judged by the least tolerant community. Our overbreadth doctrine would quickly become a toothless protection if we were to hold that substituting a more limited forum for expression is an acceptable price to pay. Since a content-based restriction is presumptively invalid, I would place the burden on parents to "take the simple step of utilizing a medium that enables," ante, at 532 U.S. 1037, __, 122 S.Ct. 1700, 1712, them to avoid this material before requiring the speaker to find another forum.

3. Justice Breyer seeks to avoid the problem by effectively reading the phrase "contemporary national standards" into the statute. While the legislative history of COPA provides some support for this reading, it is contradicted by the clear text of the statute, which directs jurors to consider "community" standards. This phrase is a term of art that has taken on a particular meaning in light of our precedent. Although we have never held that applying a national standard would be constitutionally impermissible, we have said that asking a jury to do so is "an exercise in futility," Miller v. California, 413 U.S. 15, 30 (1973), and that "[a] juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination," Hamling v. United States, 418 U.S. 87, 104 (1974). Any lingering doubts about the meaning of the phrase were certainly dispelled by our discussion of the issue in ACLU I, 521 U.S., at 874, n. 39, and we presume that Congress legislates against the backdrop of our decisions. Therefore, Justice Thomas has correctly refused to rewrite the statute to substitute a standard that Congress clearly did not choose. . . .

5. The Court also notes that the limitation to communications made for commercial purposes narrows the category of speech as compared to the CDA. While it is certainly true that this condition limits the scope of the statute, the phrase "commercial purposes" is somewhat misleading. The definition of commercial purposes, 47 U.S.C. § 231(e)(2)(B), covers anyone who generates revenue from advertisements or merchandise, regardless of the amount of advertising or whether the advertisements or products are related to the images that allegedly are harmful to minors. . . .

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