Supreme Court of the United States
John ASHCROFT, Attorney General, Petitioner,
v.
AMERICAN CIVIL LIBERTIES UNION et al.
No. 00-1293.
Argued Nov. 28, 2001.
Decided May 13, 2002.
Organizations which posted, or had members that posted, sexually oriented material on the World Wide Web brought action against Attorney General alleging that restrictions of Child Online Protection Act (COPA) upon display of materials on the Web violated free speech guarantees. The United States District Court for the Eastern District of Pennsylvania, Lowell A. Reed, Jr., J., 31 F.Supp.2d 473, issued preliminary injunction to prevent COPA's enforcement, and the United States Court of Appeals for the Third Circuit, 217 F.3d 162, affirmed. Attorney General's petition for certiorari was granted. The Supreme Court, Justice Thomas, held that COPA's reference to contemporary community standards in defining what was harmful to minors did not alone render COPA unconstitutionally overbroad under the First Amendment.
Justice O'Connor filed opinion concurring in part and concurring in the
judgment.
Justice Breyer filed opinion concurring in part and concurring in the
judgment.
Justice Kennedy concurred in the judgment and filed opinion in which
Justice Souter and Justice Ginsburg joined.
Justice Stevens filed dissenting opinion.
West Headnotes
[1] Constitutional Law 
1517
(Formerly 92k90(3))
As 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; however, this principle, like other First Amendment principles, is
not absolute. U.S.C.A.
Const.Amend. 1.
[2] Constitutional Law 2191
(Formerly 92k90.4(1))
[2] Obscenity 1.1
Governing
three-part test for assessing whether material is obscene and thus unprotected
by the First Amendment looks at (1) whether the average person, applying
contemporary community standards, would find that the work, taken as a whole,
appeals to the prurient interest, (2) whether the work depicts or
describes,
in a patently offensive way, sexual conduct specifically defined by the
applicable state law, and (3) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value. U.S.C.A.
Const.Amend. 1.
[3] Obscenity 1.4
For
purpose of Child Online Protection Act (COPA), which prohibits commercial
display of sexually explicit materials that are harmful to minors on the World
Wide Web, and which defines material that is harmful to minors by reference to contemporary community standards, community
standards need not be defined by reference to a precise geographic area. (Per
Justice Thomas with 2 Justices joining and 5 Justices concurring in the
judgment.) Communications Act of 1934,
§ 231, as amended, 47 U.S.C.(1994 Ed.Supp.V)
§ 231.
[4] Obscenity 7
For
purpose of Child Online Protection Act (COPA), which prohibits commercial
displays of sexually explicit materials that are harmful to minors on the World
Wide Web, exclusion of materials having serious literary, artistic, political,
or scientific value for minors from definition of materials harmful to minors
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. (Per Justice Thomas with 3 Justices joining and 4 Justices
concurring in the judgment.)
Communications Act of 1934, §
231(e)(6), as amended, 47 U.S.C.(1994 Ed.Supp.V) § 231(e)(6).
[5] Obscenity 1.4
If a publisher chooses to send potentially
obscene material into a particular community, 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, nor does it change because the publisher may wish to
speak only to those in a community where avant garde culture is the norm but
nonetheless utilizes a medium that transmits its speech from coast to coast.
(Per Justice Thomas with 2 Justices joining and 5 Justices concurring in the
judgment.)
[6] Obscenity 1.4
If a
publisher wishes for its potentially obscene 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. (Per Justice Thomas with 2 Justices joining and 5 Justices
concurring in the judgment.)
[7] Constitutional Law 2259
(Formerly 92k90.4(3))
[7] Obscenity 2.5
Reference
to contemporary community standards in defining what was harmful to minors, for
purpose of Child Online Protection Act (COPA) provision prohibiting commercial
displays of sexually explicit materials that are harmful to minors on the World
Wide Web, did not alone render COPA overbroad, in violation of the First
Amendment's free speech provision, where definition also required that
materials appeal to the prurient interest and lack any serious literary,
artistic, political, or scientific value for minors. (Per Justice Thomas with 2
Justices joining and 5 Justices concurring in the judgment.) U.S.C.A.
Const.Amend. 1;
Communications Act of 1934, §
231, as amended, 47 U.S.C.(1994 Ed.Supp.V) § 231.
[8] Constitutional Law 1164
(Formerly 92k82(4))
To prevail
in a facial challenge to a statute under the First Amendment, it is not enough
for a plaintiff to show some overbreadth; rather, the overbreadth of a statute must not only be real, but substantial
as well. (Per Justice Thomas with 2 Justices joining and 5 Justices concurring
in the judgment.) U.S.C.A.
Const.Amend. 1.
West Codenotes
Recognized as Unconstitutional
**1702 *564
Syllabus [FN*]
FN* The syllabus
constitutes no part of the opinion of the Court but has been prepared by the
Reporter of Decisions for the convenience of the reader. See United
States v. Detroit Timber & Lumber Co.,
200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
In Reno
v. American Civil Liberties Union,
521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874,
this Court found that the Communications Decency Act of 1996(CDA)--Congress'
first attempt to protect children from exposure to pornographic material on the
Internet--ran afoul of the First Amendment in its regulation of indecent
transmissions and the display of patently offensive material. That conclusion was based, in part, on the
crucial consideration that the CDA's breadth
was wholly unprecedented. After the
Court's decision in Reno, Congress attempted to address this concern in the Child
Online Protection Act (COPA). Unlike the
CDA, COPA applies only to material displayed on the World Wide Web, covers only
communications made for commercial purposes, and restricts only "material
that is harmful to minors," 47
U.S.C. § 231(a)(1). In defining
"material that is harmful to minors," COPA draws on the three-part
obscenity test set forth in Miller
v. California,
413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, see § 231(e)(6), and
thus requires jurors to apply "contemporary community standards" in
assessing material, see § 231(e)(6)(A). Respondents--who post or have members that
post sexually oriented material on the Web--filed a facial challenge before
COPA went into effect, claiming, inter alia, that the statute violated
adults' First Amendment rights because it effectively banned constitutionally
protected speech, was not the least restrictive means of accomplishing a
compelling governmental purpose, and was substantially overbroad. The District Court issued a preliminary
injunction barring the enforcement of COPA because it concluded that the
statute was unlikely to survive strict scrutiny. The Third Circuit affirmed but based its
decision on a ground not relied upon by the District Court: that COPA's use of "contemporary
community standards," § 231(e)(6)(A),
to identify material that is harmful to minors rendered the statute
substantially overbroad.
Held: COPA's reliance on "community
standards" to identify what material "is harmful to minors" does
not by itself render the statute substantially overbroad for First Amendment
purposes. The Court, however, expresses
no view as to whether COPA suffers from substantial overbreadth for reasons
other than its use of community standards, whether the statute is
unconstitutionally vague, or whether the statute survives *565 strict
scrutiny. Prudence dictates allowing the
Third Circuit to first examine these difficult issues. Because petitioner did
not ask to have the preliminary injunction vacated, and because this Court
could not do so without addressing matters the Third Circuit has yet to
consider, the Government remains enjoined from enforcing COPA absent further
action by the lower courts. Pp.
1713-1714.
217
F.3d 162, vacated and remanded.
THOMAS, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, and IV, in which REHNQUIST, C. **1703 J., and O'CONNOR, SCALIA, and BREYER, JJ., joined, an opinion with respect to Part III-B, in
which REHNQUIST, C.J., and O'CONNOR and SCALIA, JJ., joined, and an opinion with respect to Parts III-A,
III-C, and III-D, in which REHNQUIST, C.J., and SCALIA, J., joined. O'CONNOR, J., post, p. 1714, and BREYER, J., post, p. 1715, filed opinions concurring in
part and concurring in the judgment. KENNEDY, J., filed an opinion concurring in the judgment, in which
SOUTER and GINSBURG, JJ., post, p. 1716,
joined. STEVENS, J., filed a dissenting opinion, post, p. 1722.
Theodore
B. Olson, for petitioner.
Ann
E. Beeson, for respondents.
*566 Justice THOMAS announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, and IV, an opinion with
respect to Parts III-A, III-C, and III-D, in which THE CHIEF JUSTICE and
Justice SCALIA join, and an opinion with respect to Part III-B, in which
THE CHIEF JUSTICE, Justice O'CONNOR, and Justice SCALIA join.
This case presents the narrow question whether
the Child Online Protection Act's (COPA or Act) use of "community
standards" to identify "material that is harmful to minors"
violates the First Amendment. We hold
that this aspect of COPA does not render the statute facially unconstitutional.
I
"The Internet ... offer[s] a forum for a
true diversity of political discourse, unique opportunities for cultural
development, and myriad avenues for intellectual activity." 47
U.S.C. § 230(a)(3) (1994 ed., Supp. V). While "surfing" the World Wide Web, the primary
method of remote information retrieval on the Internet today, [FN1] see App. in No. 99-1324(CA3), p. 180 (hereinafter App.),
individuals can access material about topics ranging from aardvarks to Zoroastrianism. One can use the Web to read thousands of
newspapers published around the globe, purchase tickets for a matinee at the
neighborhood movie theater, or follow the progress of any Major League Baseball
team on a pitch-by-pitch basis.
FN1. For a thorough
explanation of the history, structure, and operation of the Internet and World
Wide Web, see Reno
v. American Civil Liberties Union,
521 U.S. 844, 849-853, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997).
The Web also contains a wide array of sexually
explicit material, including hardcore pornography. See, e.g., *567American Civil Liberties Union v. Reno,
31 F.Supp.2d 473, 484 (E.D.Pa.1999). In 1998, for instance, there were
approximately 28,000 adult sites promoting pornography on the Web. See H.R.Rep.
No. 105-775, p. 7 (1998). Because "[n]avigating the Web is
relatively straightforward," Reno
v. American Civil Liberties Union,
521 U.S. 844, 852, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and access to the Internet is widely available in homes,
schools, and libraries across the country, [FN2] see App.
177-178, children may discover this pornographic material either by
deliberately accessing pornographic Web sites or by stumbling upon them. See 31
F.Supp.2d, at 476 ("A child with minimal knowledge of a computer, the ability to operate
a browser, and the skill to type a few simple words may be able to access **1704
sexual images and content over the World Wide Web").
FN2. When this
litigation commenced in 1998, "[a]pproximately 70.2 million people of all
ages use[d] the Internet in the United States." App. 171.
It is now estimated that 115.2 million Americans use the Internet at
least once a month and 176.5 million Americans have Internet access either at
home or at work. See More Americans
Online, New York Times, Nov. 19, 2001, p. C7.
Congress first attempted to protect children
from exposure to pornographic material on the Internet by enacting the
Communications Decency Act of 1996(CDA), 110 Stat. 133. The CDA prohibited the knowing transmission
over the Internet of obscene or indecent messages to any recipient under 18
years of age. See 47
U.S.C. § 223(a). It also forbade
any individual from knowingly sending over or displaying on the Internet
certain "patently offensive" material in a manner available to
persons under 18 years of age. See § 223(d). The prohibition specifically extended to
"any comment, request, suggestion, proposal, image, or other communication
that, in context, depict [ed] or describ[ed], in terms patently offensive as
measured by contemporary community
standards, sexual or excretory activities or organs." § 223(d)(1).
*568 The CDA provided two affirmative
defenses to those prosecuted under the statute.
The first protected individuals who took "good faith, reasonable,
effective, and appropriate actions" to restrict minors from accessing
obscene, indecent, and patently offensive material over the Internet. See § 223(e)(5)(A). The second shielded those who restricted
minors from accessing such material "by requiring use of a verified credit
card, debit account, adult access code, or adult personal identification
number." § 223(e)(5)(B).
Notwithstanding these affirmative defenses, in
Reno
v. American Civil Liberties Union, we held
that the CDA's regulation of indecent transmissions, see § 223(a), and the
display of patently offensive material, see § 223(d), ran
afoul of the First Amendment. We
concluded that "the CDA lack[ed] the precision that the First Amendment
requires when a statute regulates the content of speech" because,
"[i]n order to deny minors access to potentially harmful speech, the CDA
effectively suppress[ed] a large amount of speech that adults ha[d] a
constitutional right to receive and to address to one another." 521
U.S., at 874, 117 S.Ct. 2329.
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, 117 S.Ct. 2329. Second, "[t]he breadth of the CDA's
coverage [was] wholly unprecedented."
Id.,
at 877, 117 S.Ct. 2329. "Its open-ended prohibitions
embrace[d]," not only commercial speech or commercial entities, but also
"all nonprofit entities and individuals posting indecent messages or
displaying them on their own computers in the presence of minors." Ibid. In addition, because the CDA did not define the terms
"indecent" and "patently offensive," the statute
"cover[ed] large amounts of nonpornographic material with serious
educational or other value." Ibid. As a result, regulated subject matter under the CDA
extended to "discussions about prison rape or safe sexual practices,
artistic images that include nude subjects, and arguably the card *569
catalog of the Carnegie Library." Id.,
at 878, 117 S.Ct. 2329. 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, 117 S.Ct. 2329. 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, 117 S.Ct. 2329.
After our decision in Reno
v. American Civil Liberties Union, Congress
explored other avenues for restricting minors' access to pornographic material
on the Internet. In particular, Congress
passed and the President signed into law the
Child Online Protection Act, 112 Stat. 2681-736 (codified in 47
U.S.C. § 231 (1994 ed., Supp. V)). COPA prohibits
any person from "knowingly and with knowledge of **1705 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." [FN3] Ibid. And third, while the CDA prohibited "*570
indecent" and "patently offensive" communications, COPA
restricts only the narrower category of "material that is harmful to
minors." Ibid.
FN3. 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).
Drawing on the three-part test for obscenity
set forth in Miller
v. California,
413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (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 *571 the
statute. Criminal penalties consist of
up to six months in prison and/or a maximum fine of $50,000. An additional fine of $50,000 may be imposed
for any intentional violation of the statute. § 231(a).
One month before COPA was scheduled to go into
effect, respondents filed a lawsuit challenging the constitutionality of the
statute in the United States District Court for the Eastern District of
Pennsylvania. Respondents are a diverse
group of organizations, [FN4] most of which maintain their **1706 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.
FN4. Respondents
include the American Civil Liberties Union, Androgony Books, Inc., d/b/a A
Different Light Bookstores, the American Booksellers Foundation for Free
Expression, Artnet Worldwide Corporation, BlackStripe, Addazi Inc. d/b/a
Condomania, the Electronic Frontier Foundation, the Electronic Privacy
Information Center, Free Speech Media, OBGYN.net, Philadelphia Gay News,
PlanetOut Corporation, Powell's Bookstore, Riotgrrl, Salon Internet, Inc., and
West Stock, Inc., now known as ImageState North America, Inc.
In their complaint, respondents alleged that,
although they believed that the material on their Web sites was valuable for adults,
they feared that they would be prosecuted under COPA because some of that
material "could be construed as 'harmful to minors' in some
communities." App. 63. Respondents' facial
challenge claimed, inter alia, that COPA violated adults' rights under
the First and Fifth Amendments *572 because it (1) "create[d] an
effective ban on constitutionally protected speech by and to adults"; (2) "[was] not the least restrictive
means of accomplishing any compelling governmental purpose"; and (3)
"[was] substantially overbroad." [FN5] Id., at 100-101.
FN5. In three other
claims, which are not relevant to resolving the dispute at hand, respondents
alleged that COPA infringed the free speech rights of older minors, violated
the right to "communicate and access information anonymously," and
was "unconstitutionally vague."
App. 101- 102.
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 (C.A.3 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 *573 COPA's use of
"contemporary community standards" to identify material that is
harmful to minors rendered the statute substantially overbroad. Because "Web publishers are without any
means to limit access to their sites based on the geographic location of
particular Internet users," the Court of Appeals reasoned that COPA would
require "any material that might be deemed harmful by the most puritan of
communities in any state" to be placed behind an age or credit card
verification system. Id.,
at 175.
Hypothesizing **1707 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, 121 S.Ct. 1997, 149 L.Ed.2d 1001 (2001),
to review the Court of Appeals' determination that COPA likely violates the
First Amendment because it relies, in part, on community standards to identify
material that is harmful to minors, and now vacate the Court of Appeals'
judgment.
II
[1] The First Amendment states that "Congress shall make
no law ... abridging the freedom of speech." This provision embodies "[o]ur profound
national commitment to the free exchange of ideas." Harte-Hanks
Communications, Inc. v. Connaughton,
491 U.S. 657, 686, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). "[A]s a
general matter, 'the First Amendment means that government has no power to
restrict expression because of its message, its ideas, its subject matter, or
its content.' " Bolger
v. Youngs Drug Products Corp.,
463 U.S. 60, 65, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983) (quoting Police
Dept. of Chicago v. Mosley,
408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)). However, this
principle, like other First Amendment principles, is not absolute. Cf. Hustler
Magazine v. Falwell,
485 U.S. 46, 56, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988).
*574 Obscene speech, for example, has
long been held to fall outside the purview
of the First Amendment. See, e.g.,
Roth
v. United States,
354 U.S. 476, 484-485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). But this Court
struggled in the past to define obscenity in a manner that did not impose an
impermissible burden on protected speech.
See Interstate
Circuit, Inc. v. Dallas,
390 U.S. 676, 704, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968) (Harlan, J., concurring in part and dissenting in part)
(referring to the "intractable obscenity problem"); see also Miller
v. California,
413 U.S., at 20-23, 93 S.Ct. 2607 (reviewing
"the somewhat tortured history of th[is] Court's obscenity
decisions"). The difficulty
resulted from the belief that "in the area of freedom of speech and press
the courts must always remain sensitive to any infringement on genuinely
serious literary, artistic, political, or scientific expression." Id.,
at
22-23, 93 S.Ct. 2607.
[2] Ending over a decade of turmoil, this Court in Miller set forth the governing three-part test for assessing
whether material is obscene and thus unprotected by the First Amendment: "(a) [W]hether 'the average person, applying
contemporary community standards ' would find that the work, taken as a
whole, appeals to the prurient interest;
(b) whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole,
lacks serious literary, artistic, political, or scientific value." Id.,
at 24, 93 S.Ct. 2607 (citations omitted; emphasis added).
Miller adopted the use of "community standards" from Roth, which repudiated an earlier approach for assessing
objectionable material. Beginning in the
19th century, English courts and some American courts allowed material to be
evaluated from the perspective of particularly sensitive persons. See, e.g., Queen
v. Hicklin
[1868] L.R. 3 Q.B. 360, 1868 WL 9940; see also Roth,
354 U.S., at 488-489, and n. 25, 77 S.Ct. 1304
(listing relevant cases). But in Roth, this Court held that this sensitive person standard was
"unconstitutionally restrictive of *575 the freedoms of speech and
press" and approved a standard requiring that material be judged from the
perspective of "the average person, applying contemporary community
standards." Id.,
at 489, 77 S.Ct. 1304. The Court **1708 preserved the use of
community standards in formulating the Miller test, explaining that they furnish a valuable First
Amendment safeguard: "[T]he primary
concern ... is to be certain that ... [material] will be judged by its impact
on an average person, rather than a particularly susceptible or sensitive
person--or indeed a totally insensitive one." Miller,
supra,
at 33, 93 S.Ct. 2607 (internal quotation marks
omitted); see also Hamling
v. United States,
418 U.S. 87, 107, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (emphasizing that the principal purpose of the community
standards criterion "is to assure that the material is judged neither on
the basis of each juror's personal opinion, nor by its effect on a particularly
sensitive or insensitive person or group").
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. [FN6]
FN6. While petitioner
contends that a speaker on the Web possesses the ability to communicate only
with individuals located in targeted geographic communities, Brief for
Petitioner 29, n. 3, he stipulated below that "[o]nce a provider posts its
content on the Internet and chooses to make it available to all, it generally
cannot prevent that content from entering any geographic community." App. 187.
The District Court adopted this stipulation as a finding of fact, see American
Civil Liberties Union v. Reno,
31 F.Supp.2d 473, 484 (E.D.Pa.1999), and
petitioner points to no evidence in the record suggesting that this finding is
clearly erroneous.
*576 A
In addressing this question, the parties first
dispute the nature of the community
standards that jurors will be instructed to apply when assessing, in prosecutions
under COPA, whether works appeal to the prurient interest of minors and are
patently offensive with respect to minors. [FN7] Respondents contend
that jurors will evaluate material using "local community standards,"
Brief for Respondents 40, while petitioner maintains that jurors will not
consider the community standards of any particular geographic area, but rather
will be "instructed to consider the standards of the adult community as a
whole, without geographic specification."
Brief for Petitioner 38.
FN7. Although the
phrase "contemporary community standards" appears only in the
"prurient interest" prong of the Miller test, see Miller
v. California,
413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), this Court has indicated that the "patently
offensive" prong of the test is also a question of fact to be decided by a
jury applying contemporary community standards.
See, e.g., Pope
v. Illinois,
481 U.S. 497, 500, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987). The parties here
therefore agree that even though "contemporary community standards"
are similarly mentioned only in the "prurient interest" prong of
COPA's harmful-to-minors definition, see 47
U.S.C. § 231(e)(6)(A), jurors will apply "contemporary community
standards" as well in evaluating whether material is "patently
offensive with respect to minors," § 231(e)(6)(B).
[3] In the context of
this case, which involves a facial challenge to a statute that has never been
enforced, we do not think it prudent to engage in speculation as to whether
certain hypothetical jury instructions would or would not be consistent with
COPA, and deciding this case does not require us to do so. It is sufficient to note that community
standards need not be defined by reference to a precise geographic area. See Jenkins
v. Georgia,
418 U.S. 153, 157, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974) ("A State may choose to define an obscenity offense
in terms of 'contemporary community standards' as defined in Miller without further specification ... or it may choose to
define the standards in more precise geographic terms, as was **1709
done by California in Miller "). Absent
geographic *577 specification, a juror applying community standards will
inevitably draw upon personal "knowledge of the community or vicinage from
which he comes." Hamling,
supra,
at 105, 94 S.Ct. 2887. Petitioner concedes the latter point, see
Reply Brief for Petitioner 3-4, and admits that, even if jurors were instructed
under COPA to apply the standards of the adult population as a whole, the
variance in community standards across the country could still cause juries in
different locations to reach inconsistent conclusions as to whether a
particular work is "harmful to minors." Brief for Petitioner 39.
B
Because juries would apply different standards
across the country, and Web publishers currently lack the ability to limit
access to their sites on a geographic basis, the Court of Appeals feared that
COPA's "community standards" component would effectively force all
speakers on the Web to abide by the "most puritan" community's
standards. 217
F.3d, at 175.
And such a requirement, the Court of Appeals concluded, "imposes an
overreaching burden and restriction on constitutionally protected
speech." Id.,
at 177.
In evaluating the constitutionality of the
CDA, this Court expressed a similar concern over that statute's use of
community standards to identify patently offensive material on the
Internet. We noted that "the
'community standards' criterion as applied to the Internet means that any
communication available to a nationwide audience will be judged by the
standards of the community most likely to be offended by the
message." Reno,
521 U.S., at 877-878, 117 S.Ct. 2329. 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 *578
in light of that statute's unprecedented breadth and vagueness. The statute covered communications depicting
or describing "sexual or excretory activities or organs" that were "patently offensive as measured by
contemporary community standards"--a standard somewhat similar to the
second prong of Miller's three-prong test. But the CDA did not include any limiting
terms resembling Miller's additional two prongs.
See Reno,
521 U.S., at 873, 117 S.Ct. 2329. It neither contained any requirement that
restricted material appeal to the prurient interest nor excluded from the scope
of its coverage works with serious literary, artistic, political, or scientific
value. Ibid. The tremendous breadth of the CDA magnified the impact
caused by differences in community standards across the country, restricting
Web publishers from openly displaying a significant amount of material that
would have constituted protected speech in some communities across the country
but run afoul of community standards in others.
COPA, by contrast, does not appear to suffer
from the same flaw because it applies to significantly less material than did
the CDA and defines the harmful-to-minors material restricted by the statute in
a manner parallel to the Miller
definition of obscenity. See supra, at 1704-1705, 1707-1708. 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, [FN8] they **1710 must also be designed to appeal to the
prurient interest of minors and, "taken as a whole, lac[k] serious *579
literary, artistic, political, or scientific value for minors."
47
U.S.C. § 231(e)(6).
FN8. 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).
[4] These additional two restrictions substantially limit the
amount of material covered by the statute.
Material appeals to the prurient interest, for instance, only if it is
in some sense erotic. Cf. Erznoznik
v. Jacksonville,
422 U.S. 205, 213, and n. 10, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). [FN9] 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, 117 S.Ct. 2329 (citing Pope
v. Illinois,
481 U.S. 497, 500, 107 S.Ct.
1918, 95 L.Ed.2d 439 (1987)). This is because "the value of [a] work
[does not] vary from community to community based on the degree of local
acceptance it has won." Ibid. Rather, the
relevant question is "whether a reasonable person would find ... value in
the material, taken as a whole." Id.,
at 501, 107 S.Ct. 1918. 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, 117 S.Ct. 2329 (emphasis added), a
safeguard nowhere present in the CDA. [FN10]
FN9. Justice STEVENS
argues that the "prurient interest" prong does not
"substantially narrow the category of images covered" by COPA because
"[a]rguably every depiction of nudity--partial or full--is in some sense
erotic with respect to minors," post, at 1725 (dissenting
opinion) (emphasis in original). We do
not agree. For example, we have great
difficulty understanding how pictures of a war victim's wounded nude body could
reasonably be described under the vast majority of circumstances as erotic,
especially when evaluated from the perspective of minors. See Webster's Ninth New Collegiate Dictionary
422 (1991) (defining erotic as "of, devoted to, or tending to arouse
sexual love or desire").
FN10. Justice STEVENS contends that COPA's serious value prong only
marginally limits the sweep of the statute because it does not protect all
material with serious value but just those works with serious value for
minors. See post, at 1726.
His dissenting opinion, however, does not refer to any evidence supporting this
counterintuitive assertion, and there is certainly none in the record
suggesting that COPA restricts about the same amount of material as did the
CDA. Moreover, Justice STEVENS does not dispute that COPA's "serious
value" prong serves the important purpose of allowing appellate courts to
set "as a matter of law, a national floor for socially redeeming
value." Reno,
521 U.S., at 873, 117 S.Ct. 2329.
*580 C
When the scope of an obscenity statute's
coverage is sufficiently narrowed by a "serious value" prong and a
"prurient interest" prong, we have held that requiring a speaker
disseminating material to a national audience to observe varying community
standards does not violate the First Amendment.
In Hamling
v. United States,
418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974),
this Court considered the constitutionality of applying community standards to
the determination of whether material is obscene under 18
U.S.C. § 1461, the federal statute prohibiting the mailing of obscene material. Although this statute does not define
obscenity, the petitioners in Hamling were tried and convicted
under the definition of obscenity set forth in Book
Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney
General of Mass.,
383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966),
which included both a "prurient interest" requirement and a
requirement that prohibited material be " 'utterly without redeeming
social value.' " **1711Hamling,
supra, at 99, 94 S.Ct. 2887 (quoting Memoirs,
supra,
at 418, 86 S.Ct. 975).
Like respondents here, the dissenting opinion
in Hamling argued that it was unconstitutional for a federal statute
to rely on community standards to regulate speech. Justice Brennan maintained that
"[n]ational distributors choosing to send their products in interstate
travels [would] be forced to cope with the community standards of every hamlet
into which their goods [might] wander."
418
U.S., at 144, 94 S.Ct. 2887. As a result, he claimed that the inevitable
result of this situation would be "debilitating self-censorship that
abridges the First Amendment rights of the people." Ibid.
This Court, however, rejected Justice
Brennan's argument that the federal mail statute unconstitutionally compelled *581
speakers choosing to distribute materials on a national basis to tailor their
messages to the least tolerant community:
"The fact that distributors of allegedly obscene materials may be
subjected to varying community standards in the various federal judicial
districts into which they transmit the materials does not render a federal
statute unconstitutional." Id.,
at 106, 94 S.Ct. 2887.
Fifteen years later, Hamling's holding was reaffirmed in Sable
Communications of Cal., Inc. v. FCC,
492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). Sable addressed the constitutionality of 47
U.S.C. § 223(b) (1982 ed., Supp. V), a statutory provision prohibiting the use of telephones
to make obscene or indecent communications for commercial purposes. The
petitioner in that case, a "dial-a-porn" operator, challenged, in
part, that portion of the statute banning obscene phone messages. Like respondents here, the
"dial-a-porn" operator argued that reliance on community standards to
identify obscene material impermissibly compelled "message senders ... to
tailor all their messages to the least tolerant community." 492
U.S., at 124, 109 S.Ct. 2829. [FN11] Relying on Hamling, however, this Court once again rebuffed this attack on the
use of community standards in a federal statute of national scope: "There is no constitutional barrier
under Miller to prohibiting communications that are obscene in some
communities under local standards even though they are not obscene in
others. If Sable's audience is
comprised of different communities with different local standards, Sable
ultimately bears the burden of complying with the prohibition on obscene
messages." 492
U.S., at 125-126, 109 S.Ct. 2829 (emphasis
added).
FN11. Although
nowhere mentioned in the relevant statutory text, this Court has held that the Miller test defines regulated speech for purposes of federal obscenity statutes such as 47
U.S.C. § 223(b) (1994 ed.). See, e.g.,
Smith
v. United States,
431 U.S. 291, 299, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977).
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 *582
to control the distribution of controversial material with respect to the
geographic communities into which they released it" whereas "Web
publishers have no such comparable control." 217
F.3d, at 175-176.
In neither Hamling nor Sable, however, was the speaker's ability to target the release
of material into particular geographic areas integral to the legal
analysis. In Hamling, the ability to limit the distribution of material to
targeted communities was not mentioned, let alone relied upon, [FN12] and in Sable, a dial-a-porn operator's ability to screen incoming calls
from particular areas was referenced only **1712 as a supplemental
point, see 492
U.S., at 125, 109 S.Ct. 2829. [FN13] In the latter case, this Court made no effort
to evaluate how burdensome it would have been for dial-a-porn operators to
tailor their messages to callers from thousands of different communities across
the Nation, instead concluding that the burden of complying with the statute
rested with those companies. See id.,
at 126, 109 S.Ct. 2829.
FN12. This fact was perhaps omitted because under the federal
statute at issue in Hamling
v. United States,
418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (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, 94 S.Ct. 2887 (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.
FN13. 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 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, 109 S.Ct. 2829 ("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").
[5][6] *583 While Justice KENNEDY and Justice STEVENS
question the applicability of this Court's community standards jurisprudence to
the Internet, we do not believe that the medium's "unique
characteristics" justify adopting a different approach than that set forth
in Hamling and Sable. See post, at 1718 (KENNEDY, J., concurring in
judgment). If a publisher chooses to
send its material into a particular community, this Court's jurisprudence
teaches that it is the publisher's responsibility to abide by that community's
standards. The publisher's burden does
not change simply because it decides to distribute its material to every
community in the Nation. See Sable,
supra, at
125-126, 109 S.Ct. 2829. Nor does it change because the publisher may
wish to speak only to those in a "community where avant garde culture is
the norm," post, at 1719 (KENNEDY, J., concurring in judgment), but
nonetheless utilizes a medium that transmits its speech from coast to
coast. If a publisher wishes for its
material to be judged only by the standards of particular communities, then it
need only take the simple step of utilizing a medium that enables it to target
the release of its material into those communities. [FN14]
FN14. In addition, COPA does not, as Justice KENNEDY suggests,
" 'foreclose an entire medium of expression.' " Post, at 1719 (quoting City
of Ladue v. Gilleo,
512 U.S. 43, 55, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994)). While Justice
KENNEDY and Justice STEVENS repeatedly imply that COPA banishes from the Web
material deemed harmful to minors by reference to community standards, see, e.g.,
post, at 1719 (opinion concurring in judgment); post, at 1725-1726, 1727-1728
(dissenting opinion), the statute does no such thing. It only requires that such material be placed
behind adult identification screens.
[7] Respondents offer no other grounds upon which to distinguish
this case from Hamling and Sable. While those cases
involved obscenity rather than material that is harmful to minors, we have no
reason to believe that the practical effect of varying community standards
under COPA, given the statute's definition of "material that is harmful to
minors," is significantly greater than the practical effect of varying *584
community standards under federal obscenity statutes. It is noteworthy, for example, that
respondents fail to point out even a single exhibit in the record as to which
coverage under COPA would depend upon which community in the country evaluated
the material. As a result, if we were to
hold COPA unconstitutional because of its use of community standards,
federal obscenity statutes would likely also be unconstitutional
as applied to the Web, [FN15] a result in
substantial tension with our prior suggestion that the application of the CDA
to obscene speech was **1713 constitutional. See Reno,
521 U.S., at 877, n. 44, 882- 883, 117 S.Ct. 2329.
FN15. Obscene
material, for instance, explicitly falls within the coverage of COPA. See 47
U.S.C. § 231(e)(6) (1994 ed., Supp. V).
D
[8] Respondents argue that COPA is "unconstitutionally
overbroad" because it will require Web publishers to shield some material
behind age verification screens that could be displayed openly in many
communities across the Nation if Web speakers were able to limit access to
their sites on a geographic basis. Brief for Respondents 33-34. "[T]o prevail in a facial
challenge," however, "it is not enough for a plaintiff to show 'some'
overbreadth." Reno,
supra,
at 896, 117 S.Ct. 2329 (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, 93 S.Ct. 2908, 37 L.Ed.2d 830 (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. [FN16] Because Congress
has narrowed the range of content *585
restricted by COPA in a manner analogous to Miller's definition of obscenity, we conclude, consistent with our
holdings in Hamling and Sable, that any variance
caused by the statute's reliance on community standards is not substantial
enough to violate the First Amendment.
FN16. Justice
STEVENS' conclusion to the contrary is based on little more than
"speculation." See, e.g.,
post, at 1720 (KENNEDY, J., concurring in judgment). The only objective evidence cited in the
dissenting opinion for the proposition that COPA "will restrict a
substantial amount of protected speech that would not be considered harmful to
minors in many communities" are various anecdotes compiled in an amici
brief. See post, at 1727, and n.
7 (citing Brief for Volunteer Lawyers for the Arts et al. as Amici Curiae
4-10). Justice STEVENS, however, is not
even willing to represent that these anecdotes relate to material restricted
under COPA, see post, at 1727, and we understand his reluctance for the
vast majority of the works cited in that brief, if not all of them, are likely
unaffected by the statute. See Brief for
Volunteer Lawyer for the Arts et al. as Amici Curiae 4-10 (describing,
among other incidents, controversies in various communities regarding Maya
Angelou's I Know Why The Caged Bird Sings, Judy Blume's Are You There God? It's
Me, Margaret, Aldous Huxley's Brave New
World, J.D. Salinger's Catcher in the Rye, 1993 Academy Award Best Picture
nominee The Piano, the American Broadcasting Corporation television network's
NYPD Blue, and songs of the "popular folk-rock duo" the Indigo
Girls). These anecdotes are therefore of
questionable relevance to the matter at hand and certainly do not constitute a
sufficient basis for invalidating a federal statute.
Moreover, we do not agree with Justice KENNEDY's suggestion
that it is necessary for the Court of Appeals to revisit this question upon
remand. See post, at 1720-1721.
The lack of evidence in the record relevant to the question presented
does not indicate that "we should vacate for further
consideration." Post, at
1720. Rather, it indicates that respondents, by offering little more than
"speculation," have failed to meet their burden of demonstrating in
this facial challenge that COPA's reliance on community standards renders the
statute substantially overbroad.
IV
The scope of our decision today is quite
limited. We hold only that COPA's
reliance on community standards to identify "material that is harmful to
minors" does not by itself render the statute substantially
overbroad for purposes of the First Amendment.
We do not express any view as to whether COPA suffers from substantial
overbreadth for other reasons, whether the statute is unconstitutionally vague, or whether the
District Court correctly concluded that the statute likely will not survive
strict scrutiny analysis *586 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 **1714 from enforcing COPA absent further action by the
Court of Appeals or the District Court.
For the foregoing reasons, we vacate the
judgment of the Court of Appeals and remand the case for further proceedings.
It is so ordered.
Justice O'CONNOR, concurring in part and concurring in the judgment.
I agree with the plurality that even if
obscenity on the Internet is defined in terms of local community standards,
respondents have not shown that the Child Online Protection Act (COPA) is
overbroad solely on the basis of the variation in the standards of different
communities. See ante, at 1709-
1710. Like Justice BREYER, however, see post,
at 1715-1716 (opinion concurring in part and
concurring in judgment), I write separately to express my views on the
constitutionality and desirability of adopting a national standard for
obscenity for regulation of the Internet.
The plurality's opinion argues that, even
under local community standards, the variation between the most and least
restrictive communities is not so great with respect to the narrow category of
speech covered by COPA as to, alone, render the statute substantially
overbroad. See ante, at
1709-1710. I agree, given respondents'
failure to provide examples of materials that lack literary, artistic,
political, and scientific value for minors, which would nonetheless result in
variation among communities judging the other elements of the test. Respondents' examples of material for which
communitystandards *587 would vary include such things as the
appropriateness of sex education and the desirability of adoption by same-sex
couples. Brief for Respondents 43. Material addressing the latter topic,
however, seems highly unlikely to be seen to appeal to the prurient interest in
any community, and educational material like the former must, on any objective
inquiry, see ante, at 1710, have scientific value for minors.
But respondents' failure to prove substantial
overbreadth on a facial challenge in this case still leaves open the
possibility that the use of local community standards will cause problems for
regulation of obscenity on the Internet, for
adults as well as children, in future cases.
In an as-applied challenge, for instance, individual litigants may still
dispute that the standards of a community more restrictive than theirs should
apply to them. And in future facial challenges to regulation of obscenity on
the Internet, litigants may make a more convincing case for substantial
overbreadth. Where adult speech is
concerned, for instance, there may in fact be a greater degree of disagreement
about what is patently offensive or appeals to the prurient interest.
Nor do I think such future cases can be
resolved by application of the approach we took in Hamling
v. United States,
418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974),
and Sable
Communications of Cal., Inc. v. FCC,
492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). I agree with Justice KENNEDY that, given
Internet speakers' inability to control the geographic location of their
audience, expecting them to bear the burden of controlling the recipients of
their speech, as we did in Hamling and Sable, may be entirely too much to ask, and would potentially
suppress an inordinate amount of expression.
See post, at 1718-1719 (opinion concurring in judgment); contra, ante, at 1710- 1713. For these reasons, adoption of a national
standard is necessary in my view for any reasonable regulation of Internet
obscenity.
Our precedents do not forbid adoption of a
national standard. Local community-based standards originated with *588
Miller
v. California,
413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). In that case, we approved jury instructions
that based the relevant "community standards" on those of the State
of California rather than on **1715 the Nation as a whole. In doing so, we held that "[n]othing in
the First Amendment requires" that a jury consider national standards when
determining if something is obscene as a matter of fact. Id.,
at
31, 93 S.Ct. 2607. The First Amendment, we held, did not require
that "the people of Maine or Mississippi accept public depiction of
conduct found tolerable in Las Vegas, or New York City." Id.,
at 32, 93 S.Ct. 2607. But we said nothing about the
constitutionality of jury instructions that would contemplate a national
standard--i.e., requiring that the people who live in all of these
places hold themselves to what the nationwide community of adults would find
was patently offensive and appealed to the prurient interest.
Later, in Jenkins
v. Georgia,
418 U.S. 153, 157, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974), we confirmed that "Miller approved the use of [instructions based on local
standards]; it did not mandate their
use." The instructions we approved
in that case charged the jury with applying "community standards"
without designating any particular "community." In holding that a State may define the
obscenity standard by stating the Miller standard without further specification,
418
U.S., at 157, 94 S.Ct. 2750, Jenkins left open the possibility that jurors would apply any
number of standards, including a national standard, in evaluating material's
obscenity.
To be sure, the Court in Miller also stated that a national standard might be
"unascertainable," 413
U.S., at 31, 93 S.Ct. 2607, and
"[un]realistic," id.,
at 32, 93 S.Ct. 2607. But where speech on the Internet is
concerned, I do not share that skepticism.
It is true that our Nation is diverse, but many local communities
encompass a similar diversity. For
instance, in Miller
itself, the jury was instructed to consider
the standards of the entire State of California, a large (today, it has a
population of greater than 33 million people, see U.S. Dept. of Commerce,
Bureau of Census, Statistical Abstract of the United States 23 (120th *589
ed. 2000) (Table 20)) and diverse State
that includes both Berkeley and Bakersfield.
If the Miller Court believed generalizations about the standards of the
people of California were possible, and that jurors would be capable of
assessing them, it is difficult to believe that similar generalizations are not
also possible for the Nation as a whole. Moreover, the existence of the
Internet, and its facilitation of national dialogue, has itself made jurors
more aware of the views of adults in other parts of the United States. Although jurors asked to evaluate the
obscenity of speech based on a national standard will inevitably base their
assessments to some extent on their
experience of their local communities, I agree with Justice BREYER that the
lesser degree of variation that would result is inherent in the jury system and
does not necessarily pose a First Amendment problem. See post, at 1716. In my view, a
national standard is not only constitutionally permissible, but also
reasonable.
While I would prefer that the Court resolve
the issue before it by explicitly adopting a national standard for defining
obscenity on the Internet, given respondents' failure to demonstrate
substantial overbreadth due solely to the variation between local communities,
I join Parts I, II, III-B, and IV of Justice THOMAS' opinion and the judgment.
Justice BREYER, concurring in part and concurring in the judgment.
I write separately because I believe that
Congress intended the statutory word "community" to refer to the
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 **1716 pander to, the prurient interest ...." 47
U.S.C. § 231(e)(6) (1994 ed., Supp. V).
*590
In the statute's legislative history, however, Congress made clear that it did
not intend this ambiguous statutory phrase to refer to separate standards that
might differ significantly among different communities. The relevant House of Representatives Report
says:
"The Committee recognizes that the applicability of
community standards in the context of the Web is controversial, but
understands it as an 'adult' standard, rather than a 'geographic' standard, and
one that is reasonably constant among adults in America with respect to what is
suitable for minors." H.R.Rep.
No. 105-775, p. 28 (1998) (emphasis added).
This statement, reflecting what apparently
was a uniform view within Congress, makes clear that the standard, and the
relevant community, is national and adult.
At the same time, this view of the statute
avoids the need to examine the serious First Amendment problem that would
otherwise exist. See Almendarez-Torres
v. United States,
523 U.S. 224, 237-238, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); Ashwander
v. TVA,
297 U.S. 288, 348, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (" 'When the validity of an act of the
Congress is drawn in question, and even if a serious doubt of constitutionality
is raised, it is a cardinal principle that this Court will first ascertain
whether a construction of the statute is fairly possible by which the question may be avoided' "). To read the statute as adopting the community
standards of every locality in the United States would provide the most puritan
of communities with a heckler's Internet veto affecting the rest of the Nation.
The technical difficulties associated with efforts to confine Internet material
to particular geographic areas make the problem particularly serious. See American
Civil Liberties Union v. Reno,
217 F.3d 162, 175-176 (C.A.3 2000). And these
special difficulties also potentially weaken the authority of prior cases in
which they were not present. Cf. *591Sable Communications of Cal., Inc. v. FCC,
492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989);
Hamling
v. United States,
418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). A nationally uniform adult-based
standard--which Congress, in its Committee Report, said that it
intended--significantly alleviates any special need for First Amendment
protection. Of course some regional
variation may remain, but any such variations are inherent in a system that
draws jurors from a local geographic area and they are not, from the
perspective of the First Amendment, problematic. See id.,
at 105-106, 94 S.Ct. 2887.
For these reasons I do not join Part III of
Justice THOMAS' opinion, although I agree with much of the reasoning set forth
in Parts III-B and III-D, insofar as it explains the conclusion to which I just
referred, namely, that variation reflecting application of the same national
standard by different local juries does not
violate the First Amendment.
Justice KENNEDY, with whom Justice SOUTER and Justice GINSBURG join, concurring in the judgment.
I
If a law restricts substantially more speech
than is justified, it may be subject to a facial challenge. Broadrick
v. Oklahoma,
413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). There is a very
real likelihood that the Child Online Protection Act (COPA or Act) is overbroad
and cannot survive such a challenge.
Indeed, content-based regulations like this one are presumptively
invalid abridgments of the freedom of speech.
See R.A.V.
v. St. Paul,
505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Yet COPA is a
major federal statute, enacted in the wake of our previous determination that
its predecessor violated the First Amendment.
See **1717Reno
v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874
(1997).
Congress and the President were aware of our decision, and we should
assume that in seeking to comply with it they have given careful consideration
to the constitutionality of the new enactment.
For these reasons, even if this facial challenge appears to have
considerable *592 merit, the Judiciary must proceed with caution and
identify overbreadth with care before invalidating the Act.
In this case, the District Court issued a
preliminary injunction against enforcement of COPA, finding it too broad across
several dimensions. The Court of Appeals
affirmed, but on a different ground.
COPA defines "material that is harmful to minors" by reference
to "contemporary community standards," 47
U.S.C. § 231(e)(6) (1994 ed., Supp. V); and on the theory
that these vary from place to place, the Court of Appeals held that the
definition dooms the statute "without reference to its other
provisions." American
Civil Liberties Union v. Reno,
217 F.3d 162, 174 (C.A.3 2000). The Court of Appeals found it unnecessary to
construe the rest of the Act or address the District Court's reasoning.
This single, broad proposition, stated and
applied at such a high level of generality, cannot suffice to sustain the Court
of Appeals' ruling. To observe only that
community standards vary across the country is to ignore the antecedent
question: community standards as to
what? Whether the national variation in
community standards produces overbreadth requiring invalidation of COPA, see Broadrick,
supra, depends on the breadth of COPA's
coverage and on what community standards are being invoked. Only by identifying the universe of speech
burdened by COPA is it possible to discern whether national variation in community
standards renders the speech restriction overbroad. In short, the ground
on which the Court of Appeals relied cannot be separated from those that it
overlooked.
The statute, for instance, applies only to
"communication for commercial purposes." 47
U.S.C. § 231(e)(2)(A). The Court of
Appeals, however, did not consider the amount of commercial communication, the
number of commercial speakers, or the character of commercial speech covered by
the Act. Likewise, the statute's definition of "harmful to minors"
requires material to be judged "as a whole." § 231(e)(6)(C). The notion of judging work as a whole is *593
familiar in other media, but more difficult to define on the World Wide Web. It
is unclear whether what is to be judged as a whole is a single image on a Web
page, a whole Web page, an entire multipage Web site, or an interlocking set of
Web sites. Some examination of the group
of covered speakers and the categories of covered speech is necessary in order
to comprehend the extent of the alleged overbreadth.
The Court of Appeals found that 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.
II
COPA provides a three-part conjunctive
definition of "material that is harmful to minors." The first part of the definition is that
"the average person, applying contemporary community standards, would
find, **1718 taking the material as a whole and with respect to minors,
[that it] is designed to appeal to, or is designed to pander to, the prurient
interest." 47
U.S.C. § 231(e)(6)(A). (The parties agree
that the second part of the definition, § 231(e)(6)(B),
likewise invokes contemporary community standards, though only implicitly. See ante, at 1708, n. 7.) The nub of
the problem is, as the Court has said, that "the 'community standards'
criterion as applied to the Internet means that any communication available to *594
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, 117 S.Ct. 2329. If material might be considered harmful to
minors in any community in the United States,
then the material is covered by COPA, at least when viewed in that place. This observation was the linchpin of the
Court of Appeals' analysis, and we must now consider whether it alone suffices
to support the holding below.
The quoted sentence from Reno was not
casual dicta; rather, it was one
rationale for the holding of the case.
In Reno, the Court found "[t]he breadth of [COPA's
predecessor] ... wholly unprecedented," id.,
at 877, 117 S.Ct. 2329, in part because of
variation in community standards. The
Court also relied on that variation to assess the strength of the Government's
interest, which it found "not equally strong throughout the coverage of this
broad statute." Id.,
at 878, 117 S.Ct. 2329. The Court illustrated the point with an
example: A parent who e-mailed birth
control information to his 17-year-old child at college might violate the Act,
"even though neither he, his child, nor anyone in their home community found
the material 'indecent' or 'patently offensive,' if the college town's
community thought otherwise." Ibid. Variation in community standards rendered the statute
broader than the scope of the Government's own expressed compelling interest.
It is true, as JUSTICE THOMAS points out, ante,
at 1710-1712, 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, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (obscene mailings);
Sable
Communications of Cal., Inc. v. FCC,
492 U.S. 115, 125- 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (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." *595Southeastern
Promotions, Ltd. v. Con
rad, 420 U.S. 546, 557, 95 S.Ct. 1239, 43 L.Ed.2d 448 (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, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). The economics and
the technology of each medium affect both the burden of a speech restriction
and the Government's interest in maintaining it.
In this case the District Court found as a
fact that "[o]nce a provider posts its content on the Internet and chooses
to make it available to all, it generally cannot prevent that content from
entering any geographic community."
American
Civil Liberties Union v. Reno,
31 F.Supp.2d 473, 484 (E.D.Pa.1999). By contrast, in upholding a ban on obscene
phone messages, we emphasized that the speaker could "hire operators to
determine the source of the calls or
engag[e] with the telephone company to arrange for the screening and blocking
of out-of-area calls or fin[d] another means for providing messages compatible
with community standards." Sable,
supra,
at 125, 109 S.Ct. 2829. And if we did not make the same **1719
point in Hamling, that is likely because it is so obvious that mailing lends
itself to geographic restriction. (The
Court has had no occasion to consider whether venue would be proper in
"every hamlet into which [obscene mailings] may wander," Hamling,
supra,
at 144, 94 S.Ct. 2887 (dissenting opinion), for
the petitioners in Hamling did not challenge the statute as overbroad on its
face.) A publisher who uses the mails
can choose the location of his audience.
The economics and technology of Internet
communication differ in important ways from those of telephones and mail. Paradoxically, as the District Court found,
it is easy and cheap to reach a worldwide audience on the Internet, see 31
F.Supp.2d, at 482, but expensive if not
impossible to reach a geographic subset, id.,
at 484. A
Web publisher in a community where avant garde culture is the norm may have no *596
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 1712 (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, 114 S.Ct. 2038, 129 L.Ed.2d 36 (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 1715 (opinion concurring in part and concurring in
judgment); see also ante, at
1714-1715 (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 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, as the Attorney General concedes. See ante, at 1709 (principal opinion
of THOMAS, J.); Brief for Petitioner 39.
*597 For this reason the Court of
Appeals was correct to focus on COPA's incorporation of varying community
standards; and it may have been correct
as well to conclude that in practical effect COPA imposes the most puritanical
community standard on the entire country.
We have observed that it is "neither realistic nor constitutionally
sound to read the First Amendment as requiring that the people of Maine or
Mississippi accept public depiction of conduct found tolerable in Las Vegas, or
New York City." Miller
v. California,
413 U.S. 15, 32, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). On the other hand,
it is neither realistic nor beyond constitutional doubt for Congress, in
effect, to impose the community standards of Maine or Mississippi on Las Vegas
and New York. "People in different States vary in their tastes and
attitudes, and this diversity is not to be strangled by the absolutism of
imposed uniformity." Id.,
at 33, 93 S.Ct. 2607. In striking down COPA's predecessor,**1720
the Reno Court identified this precise problem, and if the Hamling and Sable Courts did not find the problem fatal, that is because
those cases involved quite different media.
The national variation in community standards constitutes a particular burden on Internet
speech.
III
The question that remains is whether this
observation "by itself " suffices to enjoin the Act. See ante,
at 1713. I agree with the Court that it
does not. Ibid. We cannot know
whether variation in community standards renders the Act substantially
overbroad without first assessing the extent of the speech covered and the
variations in community standards with respect to that speech.
First, the breadth of the Act itself will
dictate the degree of overbreadth caused by varying community standards. Indeed, Justice THOMAS sees this point and
uses it in an attempt to distinguish the Communications Decency Act of 1996,
which was at issue in Reno. See ante, at 1709 ("The CDA's
use of community standards to identify patently *598 offensive material,
however, was particularly problematic in light of that statute's unprecedented
breadth and vagueness"); ibid.
("The tremendous breadth of the CDA magnified the impact caused by
differences in community standards across the country"). To explain the ways in which COPA is narrower
than the CDA, Justice THOMAS finds that he must construe sections of COPA
elided by the Court of Appeals. Though I
agree with the necessity for doing so, Justice THOMAS' interpretation--
undertaken without substantial arguments or briefing--is not altogether persuasive, and I would leave this task to the
Court of Appeals in the first instance.
As this case comes to us, once it is accepted that we cannot strike down
the Act based merely on the phrase "contemporary community
standards," we should go no further than to vacate and remand for a more
comprehensive analysis of the Act.
Second, community standards may have different
degrees of variation depending on the question posed to the community. Defining the scope of the Act, therefore, is
not relevant merely to the absolute number of Web pages covered, as Justice
STEVENS suggests, post, at 1726 (dissenting opinion); it is also relevant to the proportion of
overbreadth, "judged in relation to the statute's plainly legitimate
sweep," Broadrick,
413 U.S., at 615, 93 S.Ct. 2908. Because this
issue was "virtually ignored by the parties and the amicus" in the
Court of Appeals, 217
F.3d, at 173, we have no information on the
question. Instead, speculation meets speculation. On the one hand, the Court of Appeals found
"no evidence to suggest that adults everywhere in America would
share the same standards for determining what is harmful to minors." Id.,
at 178. On
the other hand, Justice THOMAS finds "no reason to believe that the
practical effect of varying community standards under COPA ... is significantly
greater than the practical effect of varying community standards under federal
obscenity statutes." Ante,
at 1712. When a key issue has "no evidence" on one side and "no reason to believe" *599
the other, it is a good indication that we should vacate for further
consideration.
The District Court attempted a comprehensive
analysis of COPA and its various dimensions of potential overbreadth. The Court of Appeals, however, believed that
its own analysis of "contemporary community standards" obviated all
other concerns. It dismissed the
District Court's analysis in a footnote:
"[W]e do not find it necessary to address the District
Court's analysis of the definition of 'commercial purposes'; whether the breadth of the forms of content
covered by COPA could have been more narrowly tailored; whether the affirmative
defenses impose too great a burden on Web publishers or whether those
affirmative defenses should have been included as elements **1721 of the
crime itself; whether COPA's inclusion
of criminal as well as civil penalties was excessive; whether COPA is designed to include
communications made in chat rooms, discussion groups and links to other Web sites; whether the government is entitled to so
restrict communications when children will continue to be able to access
foreign Web sites and other sources of material that is harmful to them; what taken 'as a whole' should mean in the
context of the Web and the Internet; or
whether the statute's failure to distinguish between material that is harmful
to a six year old versus a sixteen year old is problematic." 217
F.3d, at 174, n. 19.
As I have explained, however, any problem
caused by variation in community standards cannot be evaluated in a
vacuum. In order to discern whether the
variation creates substantial overbreadth, it is necessary to know what speech
COPA regulates and what community standards it invokes.
It is crucial, for example, to know how
limiting is the Act's limitation to
"communication for commercial purposes." 47
U.S.C. § 231(e)(2)(A). In Reno, we remarked that COPA's *600 predecessor was so
broad in part because it had no such limitation. 521
U.S., at 877, 117 S.Ct. 2329. COPA, by contrast, covers a speaker only if:
"the person who makes a communication or offers to
make a communication, by means of the World Wide Web, that includes any
material that is harmful to minors, devotes time, attention, or labor to such
activities, as a regular course of such person's trade or business, with the
objective of earning a profit as a result of such activities (although it is
not necessary that the person make a profit or that the making or offering to
make such communications be the person's sole or principal business or source
of income)." 47
U.S.C. § 231(e)(2)(B).
So COPA is narrower across this dimension
than its predecessor; but how much
narrower is a matter of debate. In the
District Court, the Attorney General contended that the Act applied only to
professional panderers, but the court rejected
that contention, finding "nothing in the text of the COPA ... that limits
its applicability to so-called commercial pornographers only." 31
F.Supp.2d, at 480. Indeed, the plain text of the Act does not
limit its scope to pornography that is offered for sale; it seems to apply even to speech provided for
free, so long as the speaker merely hopes to profit as an indirect result. The statute might be susceptible of some
limiting construction here, but again the Court of Appeals did not address
itself to this question. The answer affects
the breadth of the Act and hence the significance of any variation in community
standards.
Likewise, it is essential to answer the vexing
question of what it means to evaluate Internet material "as a whole,"
47
U.S.C. § § 231(e)(6)(A), (C), when everything on the Web is connected to everything
else. As a general matter, "[t]he
artistic merit of a work does not depend on the presence of a single explicit
scene.... [T]he First Amendment requires *601 that redeeming value be
judged by considering the work as a whole.
Where the scene is part of the narrative, the work itself does not for
this reason become obscene, even though the scene in isolation might be
offensive." Ashcroft
v. Free Speech Coalition, ante,
535 U.S. 248, 122 S.Ct. 1389. COPA appears to respect this principle by
requiring that the material be judged "as a whole," both as to its
prurient appeal, § 231(e)(6)(A),
and as to its social value, §
231(e)(6)(C). It is unclear,
however, what constitutes the denominator--that is, the material to be taken as
a whole--in the context of the World Wide Web. See 31
F.Supp.2d, at 483 ("Although information on
the Web is contained in individual computers, the fact that each of these
computers is connected to the Internet through World Wide Web protocols allows
all of **1722 the information to become part of a single body of
knowledge"); id.,
at 484 ("From a user's perspective, [the
World Wide Web] may appear to be a single, integrated system"). Several of the respondents operate extensive
Web sites, some of which include only a small amount of material that might run
afoul of the Act. The Attorney General contended that these respondents had
nothing to fear from COPA, but the District Court disagreed, noting that the
Act prohibits communication that "includes" any material harmful to
minors. § 231(a)(1). In
the District Court's view, "it logically follows that [COPA] would apply
to any Web site that contains only some harmful to minors material." Id.,
at 480.
The denominator question is of crucial significance to the coverage of
the Act.
Another issue is worthy of mention, because it
too may inform whether the variation in community standards renders the Act
substantially overbroad. The parties and the Court of Appeals did not address
the question of venue, though it would seem to be bound up with the issue of
varying community standards. COPA does not address venue in explicit
terms, so prosecution may be proper "in any district in which [an] offense
was begun, continued, or completed."
18
U.S.C. § 3237(a). The Act's
prohibition includes an interstate *602 commerce element, 47
U.S.C. § 231(a)(1), and "[a]ny offense involving ... interstate ...
commerce ... may be inquired of and prosecuted in any district from, through,
or into which such commerce ... moves."
18
U.S.C. § 3237(a). In the context of
COPA, it seems likely that venue would be proper where the material originates
or where it is viewed. Whether it may be said that a Web site moves
"through" other venues in between is less certain. And since, as discussed above, juries will
inevitably apply their own community standards, the choice of venue may be
determinative of the choice of standard.
The more venues the Government has to choose from, the more speech will
be chilled by variation across communities.
IV
In summary, the breadth of the Act depends on
the issues discussed above, and the significance of varying community standards
depends, in turn, on the breadth of the Act. The Court of Appeals was correct
to focus on the national variation in community standards, which can constitute
a substantial burden on Internet communication;
and its ultimate conclusion may prove correct. There may be grave doubts that COPA is consistent
with the First Amendment; but we should not make that determination
with so many questions unanswered. The
Court of Appeals should undertake a comprehensive analysis in the first
instance.
Justice STEVENS, dissenting.
Appeals to prurient interests are commonplace
on the Internet, as in older media. Many
of those appeals lack serious value for minors as well as adults. Some are
offensive to certain viewers but welcomed by others. For decades, our cases have recognized that
the standards for judging their acceptability vary from viewer to viewer and
from community to community. Those cases
developed the requirement that communications should be protected if they do
not violate contemporary community standards.
In its original *603 form, the community standard provided a
shield for communications that are offensive only to the least tolerant members
of society. Thus, the Court "has
emphasized on more than one occasion that a principal concern in requiring that
a judgment be made on the basis of 'contemporary community standards' is to
assure that the material is judged neither on the basis of each juror's
personal opinion, nor by its effect on a particularly sensitive or insensitive
person or group." Hamling
v. United States,
418 U.S. 87, 107, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). In the context of
the Internet, however, community standards **1723 become a sword, rather
than a shield. If a prurient appeal is
offensive in a puritan village, it may be a crime to post it on the World Wide
Web.
The Child Online Protection Act (COPA)
restricts access by adults as well as children to materials that are
"harmful to minors." 47
U.S.C. § 231(a)(1) (1994 ed., Supp. V). COPA is a
substantial improvement over its predecessor, the Communications Decency Act of
1996(CDA), which we held unconstitutional five years ago in Reno
v. American Civil Liberties Union,
521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (ACLU
I).
Congress has thoughtfully addressed several of the First Amendment
problems that we identified in that case.
Nevertheless, COPA preserves the use of contemporary community standards
to define which materials are harmful to minors. As we explained in ACLU
I,
521 U.S., at 877-878, 117 S.Ct. 2329, "the
'community standards' criterion as applied to the Internet means that any
communication available to a nationwide audience will be judged by the
standards of the community most likely to be offended by the message."
We have recognized that the State has a
compelling interest in protecting minors from harmful speech, Sable
Communications of Cal., Inc. v. FCC,
492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989), and on one occasion we upheld
a restriction on indecent speech that was made available to the general public,
because it could be accessed by minors, FCC
v. Pacifica Foundation,
438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). Our decision in that case was influenced *604
by the distinctive characteristics of the broadcast medium, as well as the
expertise of the agency, and the narrow scope of its order. Id.,
at 748-750, 98 S.Ct. 3026; see also ACLU
I,
521 U.S., at 867, 117 S.Ct. 2329. On the other hand, we have repeatedly
rejected the position that the free speech rights of adults can be limited to
what is acceptable for children. See id.,
at 875, 117 S.Ct. 2329 (quoting Bolger
v. Youngs Drug Products Corp.,
463 U.S. 60, 74-75, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983) ("[R]egardless of the strength of the government's
interest" in protecting children, "[t]he level of discourse reaching
a mailbox simply cannot be limited to that which would be suitable for a
sandbox" (internal quotation marks omitted))); Sable,
492 U.S., at 128, 109 S.Ct. 2829; Butler
v. Michigan,
352 U.S. 380, 383, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957).
Petitioner relies on our decision in Ginsberg
v. New York,
390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968),
for the proposition that Congress can prohibit the display of materials
that are harmful to minors. But the
statute upheld in Ginsberg prohibited selling indecent materials directly to
children, id.,
at 633, 88 S.Ct. 1274 (describing N.Y. Penal Law
§ 484-h, making
it unlawful " 'knowingly to sell ... to a minor ...' "), whereas the
speech implicated here is simply posted on a medium that is accessible to both
adults and children, 47
U.S.C. § 231(a)(1) (prohibiting anyone from "knowingly ... mak[ing] any
communication for commercial purposes that is available to any minor
..."). Like the restriction on
indecent "dial-a-porn" numbers invalidated in Sable, the prohibition against mailing advertisements for
contraceptives invalidated in Bolger, and the ban against selling adult books found
impermissible in Butler, COPA seeks to limit protected speech that is not targeted
at children, simply because it can be obtained by them while surfing the Web. [FN1] In evaluating **1724 the overbreadth of such a *605
statute, we should be mindful of Justice Frankfurter's admonition not to
"burn the house to roast the pig," Butler,
352 U.S., at 383, 77 S.Ct. 524.
FN1. Petitioner cites
examples of display statutes in 23 States that require magazine racks to shield
minors from the covers of pornographic magazines. Brief for Petitioner 22, 3a. This Court has yet to rule on the
constitutionality of any of these statutes, which are in any event of little
relevance to regulation of speech on the Internet. As we recognized in ACLU
I,
521 U.S. 844, 854, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), " 'the receipt of
information on the Internet requires a series of affirmative steps more
deliberate and directed than merely turning a dial' "--or scanning a
magazine rack.
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, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962).
If the material were forwarded through the
mails, as in Hamling, or over the telephone, as in Sable, the sender could avoid destinations with the most
restrictive standards. Indeed, in Sable, we upheld the application of
community standards to a nationwide medium because the speaker was "free
to tailor its messages ... to the communities it chooses to serve,"
by either "hir [ing] operators to determine the source of the calls ...
[or] arrang[ing] for the screening and blocking of out-of-area
calls." 492
U.S., at 125, 109 S.Ct. 2829 (emphasis
added). Our conclusion that it was
permissible for the speaker to bear the ultimate burden of compliance, id.,
at 126, 109 S.Ct. 2829, assumed that such
compliance was at least possible without requiring the speaker to choose
another medium or to limit its speech to what all would find acceptable. Given the *606 undisputed fact that a
provider who posts material on the Internet cannot prevent it from entering any
geographic community, see ante, at 1708, n. 6 (opinion of THOMAS, J.), a
law that criminalizes a particular communication in just a handful of
destinations effectively prohibits transmission of that message to all of the
176.5 million Americans that have access to the Internet, see ante, at
1703, n. 2 (majority opinion). In light
of this fundamental difference in technologies, the rules applicable to the
mass mailing of an obscene montage or to obscene dial-a-porn should not be used
to judge the legality of messages on the World Wide Web. [FN2]
FN2. It is hardly a
solution to say, as Justice THOMAS suggests, ante,
at 1712, that a speaker need only choose a different medium in order to avoid
having its speech judged by the least tolerant community. Our overbreadth
doctrine would quickly become a toothless protection if we were to hold that
substituting a more limited forum for expression is an acceptable price to
pay. Since a content-based restriction
is presumptively invalid, I would place the burden on parents to "take the
simple step of utilizing a medium that enables," ibid., them to
avoid this material before requiring the speaker to find another forum.
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, 117 S.Ct. 2329. Although our holding in ACLU
I did not turn on that factor alone, we did
not adopt the position relied on by Justice **1725
THOMAS--that applying community standards to the Internet is constitutional
based on Hamling and *607 Sable. See Reply Brief for
Appellants in Reno v. ACLU, O.T.1996, No. 96-511, p. 19. [FN3]
FN3. Justice BREYER
seeks to avoid the problem by effectively reading the phrase "contemporary
national standards" into the statute, ante, at 1715 (opinion
concurring in part and concurring in judgment).
While the legislative history of COPA provides some support for this
reading, it is contradicted by the clear text of the statute, which directs
jurors to consider "community" standards. This phrase is a term of art that has taken
on a particular meaning in light of our precedent. Although we have never held that applying a
national standard would be constitutionally impermissible, we have said that
asking a jury to do so is "an exercise in futility," Miller
v. California,
413 U.S. 15, 30, 93 S.Ct. 2607, 37 L.Ed.2d 419 (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, 94 S.Ct. 2887, 41 L.Ed.2d 590 (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, 117 S.Ct.
2329, and we presume that Congress legislates
against the backdrop of our decisions.
Therefore, Justice THOMAS has correctly refused to rewrite the statute
to substitute a standard that Congress clearly did not choose. And even if the
plurality were willing to do so, we would still have to acknowledge, as
petitioner does, that jurors instructed to apply a national, or adult, standard
will reach widely different conclusions throughout the country, see ante,
at 1709; Brief for Petitioner 39.
Justice THOMAS points to several other
provisions in COPA to argue that any overbreadth will be rendered insubstantial
by the rest of the statute. Ante, at 1709-1710. 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, ante, at 1708, n. 7 (opinion of THOMAS,
J.). Whatever disparity exists between
various communities' assessment of the content that appeals to the prurient
interest of minors will surely be matched by their differing opinions as to *608
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 1710 (citing Erznoznik
v. Jacksonville,
422 U.S. 205, 213, and n. 10, 95 S.Ct. 2268, 45 L.Ed.2d 125 (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. [FN4]
FN4. Of course,
Justice THOMAS' example of the image "of a war victim's wounded nude
body," ante, at 1710, n. 9, would not be covered by the statute
unless it depicted "a lewd exhibition of the genitals or post-pubescent
female breast" and lacked serious political value for minors, 47
U.S.C. § § 231(e)(6)(B)-(C) (1994 ed.,
Supp. V).
Petitioner's argument that the "serious
value" prong minimizes the statute's overbreadth is also
unpersuasive. Although we have
recognized that the serious value determination in obscenity cases should be
based on an objective, reasonable person standard, Pope
v. Illinois,
481 U.S. 497, 500, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987), this criterion is inadequate to cure COPA's overbreadth
because COPA adds an important qualifying phrase to the standard Miller
v. California,
413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), formulation of the serious value prong. The question for the jury is not whether a
reasonable person would conclude that the materials have serious value; instead, the jury must determine whether the
materials have serious value for minors.
Congress reasonably concluded that a substantial number of works, which
have serious value for adults, do not have serious value for minors. Cf. **1726ACLU
I,
521 U.S., at 896, 117 S.Ct. 2329 (O'CONNOR, J., concurring in judgment in part and
dissenting in part) ("While discussions about prison rape or nude art ...
may have some redeeming educational value for adults, they do not
necessarily have any such value for minors "). Thus, even though the serious value prong
limits the total amount of speech covered by the statute, it remains true that
there is a significant amount of protected speech within the category of
materials that have no serious value for minors. That speech is effectively prohibited
whenever *609 the least tolerant communities find it harmful to minors. [FN5] While the objective
nature of the inquiry may eliminate any worry that the serious value
determination will be made by the least tolerant community, it does not change
the fact that, within the subset of images deemed to have no serious value for
minors, the decision whether minors and adults throughout the country will have
access to that speech will still be made by the most restrictive community.
FN5. The Court also notes that the limitation to communications
made for commercial purposes narrows the category of speech as compared to the
CDA, ante, at 1705. While it is certainly true that this condition
limits the scope of the statute, the phrase "commercial purposes" is
somewhat misleading. The definition of
commercial purposes, 47
U.S.C. § 231(e)(2)(B), covers anyone who generates revenue from advertisements
or merchandise, regardless of the amount of advertising or whether the
advertisements or products are related to the images that allegedly are harmful
to minors. As the District Court
noted: "There is nothing in the text
of the COPA, however, that limits its applicability to so-called commercial
pornographers only; indeed, the text of
COPA imposes liability on a speaker who knowingly makes any communication for
commercial purposes 'that includes any material that is harmful to
minors,' " App. to Pet. for Cert. 52a.
In the context of the Internet, this is hardly a serious
limitation. A 1998 study, for example,
found that 83 percent of Web sites contain commercial content. Lawrence & Giles, Accessibility of
information of the web, 400 Nature 107-109 (1999); Guernsey, Seek--but on the Web, You Might Not
Find, N.Y. Times, July 8, 1999, p. G3. Interestingly, this same study found
that only 1.5 percent of the 2.8 million sites cataloged contained pornographic
content.
Justice KENNEDY makes a similar misstep, ante,
at 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. As Justice White explained in *610Broadrick
v. Oklahoma,
413 U.S. 601, 615, 93 S.Ct. 2908, 37
L.Ed.2d 830 (1973), "the overbreadth of a
statute must not only be real, but substantial as well, judged in relation
to the statute's plainly legitimate sweep." (Emphasis added.) Regardless of how the Court of Appeals
interprets the "commercial purposes" or "as a whole"
provisions on remand, the question we must answer is whether the statute
restricts a substantial amount of protected speech relative to its legitimate
sweep by virtue of the fact that it uses community standards. [FN6] 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 **1727
substantially overbroad regardless of how its other provisions are construed.
FN6. Justice KENNEDY
accuses the Court of Appeals of evaluating overbreadth in a vacuum by
dismissing most of the concerns raised by the District Court, ante, at
1720-1721. But most of those concerns
went to whether COPA survives strict scrutiny, not overbreadth. Even under Justice KENNEDY 's formulation, it
is unclear why it is relevant to an overbreadth analysis, for example, whether
COPA could have been more narrowly tailored, whether the affirmative defenses
impose too great a burden, or whether inclusion of criminal as well as civil
penalties was excessive.
Justice THOMAS acknowledges, and petitioner
concedes, that juries across the country will apply different standards and
reach different conclusions about whether particular works are harmful to minors. See ante, at 1709; Brief for Petitioner 3-4, 39. We recognized as much in ACLU
I when we noted that "discussions about
prison rape or safe sexual practices, artistic images that include nude
subjects, and arguably the card catalog of the Carnegie Library" might
offend some community's standards and not others, 521
U.S., at 878, 117 S.Ct. 2329. In fact, our own division on that question provides further evidence of the range
of attitudes about such material. See, e.g.,
id.,
at 896, 117 S.Ct. 2329 (O'CONNOR, J., concurring
in judgment *611 in part and dissenting in part). Moreover, amici for respondents
describe studies showing substantial variation among communities in their
attitudes toward works involving homosexuality, masturbation, and nudity. [FN7]
FN7. Brief for
Volunteer Lawyers for the Arts et al. as Amici Curiae 4-10 (describing
findings of the People for the American Way Foundation Annual Freedom to Learn
Reports).
Even if most, if not all, of these works would
be excluded from COPA's coverage by the serious value prong, they illustrate
the diversity of public opinion on the underlying themes depicted. This diversity of views surely extends to
whether materials with the same themes, that do not have serious value for
minors, appeal to their prurient interests and are patently offensive. There is no reason to think the differences
between communities' standards will disappear once the image or description is
no longer within the context of a work that has serious value for minors. [FN8] 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.
FN8. Nor is there any
reason to expect that a particular community's view of the material will change
based on how the Court of Appeals construes the statute's "for commercial
purposes" or "as a whole" provisions.
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 *612 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 **1728
self-sort based on their preferences. Those who abhor and those who tolerate
sexually explicit speech can seek out like-minded people and settle in
communities that share their views on what is acceptable for themselves and
their children. This sorting mechanism,
however, does not exist in cyberspace;
the audience cannot self-segregate.
As a result, in the context of the Internet this shield also becomes a
sword, because the community that wishes to live without certain material rids
not only itself, but the entire Internet, of the offending speech.
In sum, I would affirm the judgment of the
Court of Appeals and therefore respectfully
dissent.
For U.S. Supreme Court Briefs See:
2001
WL 1525292 (Appellate Brief), SUPPLEMENTAL BRIEF
FOR THE RESPONDENTS, (November 27, 2001)
2001
WL 727092 (Appellate Brief), BRIEF AMICI CURIAE
OF MORALITY IN MEDIA, INC., FAMILY RESEARCH COUNCIL, AND THE ETHICS &
RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTISTS CONVENTION IN SUPPORT OF
PETITIONER, (June 26, 2001)
2001
WL 754733 (Appellate Brief), BRIEF OF CALIFORNIA
STATE SENATOR RAYMOND N. HAYNES, CAPITOL RESOURCE INSTITUTE, and CAMPAIGN FOR
CALIFORNIA FAMILIES IN SUPPORT OF PETITIONER, (July 5, 2001)
2001
WL 856466 (Appellate Brief), BRIEF OF AMICUS
CURIAE COUNTY OF DUPAGE, ILLINOIS, IN SUPPORT OF PETITIONER, (July 26, 2001)
2001
WL 863538 (Appellate Brief), BRIEF AMICUS CURIAE
OF WALLBUILDERS, INC. in support of the Petitioner, (July 27, 2001)
2001
WL 880279 (Appellate Brief), BRIEF FOR THE
PETITIONER, (July 27, 2001)
2001
WL 1111234 (Appellate Brief), BRIEF OF AMICI
CURIAE VOLUNTEER LAWYERS FOR THE ARTS AND PEOPLE FOR THE AMERICAN WAY
FOUNDATION IN SUPPORT OF RESPONDENTS, (September 20, 2001)
2001
WL 1111239 (Appellate Brief), BRIEF OF AMICI
CURIAE AMERICAN SOCIETY OF JOURNALISTS AND
AUTHORS, ET AL. IN SUPPORT OF RESPONDENTS, (September 20, 2001)
2001
WL 1117100 (Appellate Brief), BRIEF FOR THE
RESPONDENTS, (September 20, 2001)
2001
WL 1131663 (Appellate Brief), Brief of The
Association of American Publishers, Inc.; The American Society of Newspaper
Editors; The Center for Democracy and Technology; The Comic Book Legal Defense
Fund; The Computer & Communications Industry Association; The Freedom to
Read Foundation; The National Association of Recording Merchandisers; Newspaper
Association of America; The Periodical and Book Association of America, Inc.;
The Publishers Marketing Association; The Recording Industry Assoc
2001
WL 1131666 (Appellate Brief), BRIEF OF AMICUS
CURIAE ASSOCIATION OF NATIONAL ADVERTISERS, INC. IN SUPPORT OF RESPONDENTS,
(September 20, 2001)
2001
WL 1131672 (Appellate Brief), BRIEF AMICI CURIAE
OF THE SOCIETY FOR THE SCIENTIFIC STUDY OF SEXUALITY, THE INSTITUTE FOR
ADVANCED STUDY OF HUMAN SEXUALITY, THE SEXUAL HEALTH NETWORK, THE AMERICAN
BOARD OF SEXOLOGY, THE NATIONAL COALITION AGAINST CENSORSHIP, AND THE FIRST
AMENDMENT PROJECT, IN SUPPORT OF RESPONDENTS, (September 20, 2001)
2001
WL 1424604 (Appellate Brief), REPLY BRIEF FOR THE
PETITIONER, (October 24, 2001)
2001
WL 856464 (Appellate Brief), Brief Amicus Curiae
of The American Center for Law and Justice Supporting Petitioners, (July 27,
2001)
2001
WL 856469 (Appellate Brief), Brief of Members of
Congress as Amici Curiae, Senator John S. McCain Representative Michael G.
Oxley Representative James C. Greenwood, Representative Thomas J. Bliley, Jr.
(ret.), In Support of Petitioner, (July 27, 2001)
For Transcript of Oral Argument See:
2001
WL 1530256 (U.S.Oral.Arg.), Oral Argument,
(November 28, 2001)
535 U.S. 564, 122 S.Ct. 1700, 152 L.Ed.2d 771,
70 USLW 4381, 30 Media L. Rep. 1801, 02 Cal. Daily Op. Serv. 4057, 2002 Daily
Journal D.A.R. 5183, 15 Fla. L. Weekly Fed. S 256
END OF
DOCUMENT