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ASHCROFT, ATTORNEY GENERAL v. AMERICAN CIVIL LIBERTIES UNION etal.
certiorari to the united states court of appeals for the third circuit
No. 001293. Argued November 28, 2001Decided May 13, 2002
In Reno v. American Civil Liberties Union, 521 U.S. 844, this Court found that the Communications Decency Act of 1996 (CDA)Congress first attempt to protect children from exposure to pornographic material on the Internetran 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 CDAs breadth was wholly unprecedented. After the Courts 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, see 231(e)(6), and thus requires jurors to apply contemporary community standards in assessing material, see 231(e)(6)(A). Respondentswho post or have members that post sexually oriented material on the Webfiled 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 COPAs use of contemporary community standards, 231(e)(6)(A), to identify material that is harmful to minors rendered the statute substantially overbroad.
Held:COPAs 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 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. P. 22.
217 F.3d 162, vacated and remanded.
Thomas, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, in which Rehnquist, C. J., and OConnor, Scalia, and Breyer, JJ., joined, an opinion with respect to Part IIIB, in which Rehnquist, C. J., and OConnor and Scalia, JJ., joined, and an opinion with respect to Parts IIIA, IIIC, and IIID, in which Rehnquist, C. J., and Scalia, J., joined. OConnor, J., and Breyer, J., filed opinions concurring in part and concurring in the judgment. Kennedy, J., filed an opinion concurring in the judgment, in which Souter and Ginsburg, JJ., joined. Stevens, J., filed a dissenting opinion.
JOHN ASHCROFT, ATTORNEY GENERAL,
PETITIONER v. AMERICAN CIVIL
LIBERTIES UNION etal.
on writ of certiorari to the united states court of
appeals for the third circuit
[May 13, 2002]
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 IIIA, IIIC, and IIID, in which The Chief Justice and Justice Scalia join, and an opinion with respect to Part IIIB, in which The Chief Justice, JusticeOConnor, and Justice Scalia join.
This case presents the narrow question whether
the Child Online Protection Acts (COPA or Act) use of community standards to
identify material that is harmful
to minors violates the First Amendment. We hold that this aspect of COPA does not render the statute facially unconstitutional.
The Internet offer[s] a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity. 47 U.S.C. 230(a)(3) (1994 ed., Supp. V). While surfing the World Wide Web, the primary method of remote information retrieval on the Internet today,1 see App. in No. 991324 (CA3), p.180 (hereinafter App.), individuals can access material about topics ranging from aardvarks to Zoroastrianism. One can use the Web to read thousands of newspapers published around the globe, purchase tickets for a matinee at the neighborhood movie theater, or follow the progress of any Major League Baseball team on a pitch-by-pitch basis.
The Web also contains a wide array of sexually explicit material, including hardcore pornography. See, e.g., American Civil Liberties Union v. Reno, 31 F.Supp. 2d 473, 484 (ED Pa. 1999). In 1998, for instance, there were approximately 28,000 adult sites promoting pornography on the Web. See H.R. Rep. No. 105775, p.7 (1998). Because [n]avigating the Web is relatively straightforward, Reno v. American Civil Liberties Union, 521 U.S. 844, 852 (1997), and access to the Internet is widely available in homes, schools, and libraries across the country,2 see App. 177178, children may discover this pornographic material either by deliberately accessing pornographic Web sites or by stumbling upon them. See 31 F.Supp. 2d, at 476 (A child with minimal knowledge of a computer, the ability to operate a browser, and the skill to type a few simple words may be able to access sexual images and content over the World Wide Web).
Congress first attempted to protect children from exposure to pornographic material on the Internet by enacting the Communications Decency Act of 1996 (CDA), 110 Stat. 133. The CDA prohibited the knowing transmission over the Internet of obscene or indecent messages to any recipient under 18 years of age. See 47 U.S.C. 223(a). It also forbade any individual from knowingly sending over or displaying on the Internet certain patently offensive material in a manner available to persons under 18 years of age. See 223(d). The prohibition specifically extended to any comment, request, suggestion, proposal, image, or other communication that, in context, depict[ed] or describ[ed], in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs. 223(d)(1).
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 CDAs regulation of indecent transmissions, see 223(a), and the display of patently offensive material, see 223(d), ran afoul of the First Amendment. We concluded that the CDA lack[ed] the precision that the First Amendment requires when a statute regulates the content of speech because, [i]n order to deny minors access to potentially harmful speech, the CDA effectively suppress[ed] a large amount of speech that adults ha[d] a constitutional right to receive and to address to one another. 521 U.S., at 874.
Our holding was based on three crucial considerations. First, existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults. Id., at 876. Second, [t]he breadth of the CDAs coverage [was] wholly unprecedented. Id., at 877. Its open-ended prohibitions embrace[d], not only commercial speech or commercial entities, but also all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors. Ibid. In addition, because the CDA did not define the terms indecent and patently offensive, the statute cover[ed] large amounts of nonpornographic material with serious educational or other value. Ibid. As a result, regulated subject matter under the CDA extended to discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalog of the Carnegie Library. Id., at 878. Third, we found that neither affirmative defense set forth in the CDA constitute[d] the sort of narrow tailoring that [would] save an otherwise patently invalid unconstitutional provision. Id., at 882. Consequently, only the CDAs ban on the knowing transmission of obscene messages survived scrutiny because obscene speech enjoys no First Amendment protection. See id., at 883.
After our decision in Reno v.
American Civil Liberties Union, Congress explored other avenues for
restricting minors access to pornographic material on the Internet. In
particular, Congress passed and the President signed into law the Child Online
Protection Act, 112 Stat. 2681
736 (codified in 47 U.S.C. 231 (1994 ed., Supp. V)). COPA prohibits any person from knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, mak[ing] any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors. 47 U.S.C. 231(a)(1).
Apparently responding to our objections to the breadth of the CDAs coverage, Congress limited the scope of COPAs coverage in at least three ways. First, while the CDA applied to communications over the Internet as a whole, including, for example, e-mail messages, COPA applies only to material displayed on the World Wide Web. Second, unlike the CDA, COPA covers only communications made for commercial purposes.3 Ibid. And third, while the CDA prohibited indecent and patently offensive communications, COPA restricts only the narrower category of material that is harmful to minors. Ibid.
Drawing on the three-part test for obscenity set forth in Miller v. California, 413 U.S. 15 (1973), COPA defines material that is harmful to minors as
any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that
(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient
(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and
(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors. 47 U.S.C. 231(e)(6).
Like the CDA, COPA also provides affirmative defenses to those subject to prosecution under the statute. An individual may qualify for a defense if he, in good faith, has restricted access by minors to material that is harmful to minors(A) by requiring the use of a credit card, debit account, adult access code, or adult personal identification number; (B) by accepting a digital certificate that verifies age; or (C) by any other reasonable measures that are feasible under available technology. 231(c)(1). Persons violating COPA are subject to both civil and criminal sanctions. A civil penalty of up to $50,000 may be imposed for each violation of the statute. Criminal penalties consist of up to six months in prison and/or a maximum fine of $50,000. An additional fine of $50,000 may be imposed for any intentional violation of the statute. 231(a).
One month before COPA was scheduled to go into effect, respondents filed a lawsuit challenging the constitutionality of the statute in the United States District Court for the Eastern District of Pennsylvania. Respondents are a diverse group of organizations,4 most of which maintain their own Web sites. While the vast majority of content on their Web sites is available for free, respondents all derive income from their sites. Some, for example, sell advertising that is displayed on their Web sites, while others either sell goods directly over their sites or charge artists for the privilege of posting material. 31 F.Supp. 2d, at 487. All respondents either post or have members that post sexually oriented material on the Web. Id., at 480. Respondents Web sites contain resources on obstetrics, gynecology, and sexual health; visual art and poetry; resources designed for gays and lesbians; information about books and stock photographic images offered for sale; and online magazines. Id., at 484.
In their complaint, respondents alleged that, although they believed that the material on their Web sites was valuable for adults, they feared that they would be prosecuted under COPA because some of that material could be construed as harmful to minors in some communities. App. 63. Respondents facial challenge claimed, inter alia, that COPA violated adults rights under the First and Fifth Amendments because it (1) create[d] an effective ban on constitutionally protected speech by and to adults; (2) [was] not the least restrictive means of accomplishing any compelling governmental purpose; and (3) [was] substantially overbroad.5 Id., at 100101.
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 Courts 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 Courts ruling. American Civil Liberties Union v. Reno, 217 F.3d 162 (CA3 2000). The United States Court of Appeals for the Third Circuit affirmed. Rather than reviewing the District Courts 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 173174. The Court of Appeals concluded that COPAs use of contemporary community standards to identify material that is harmful to minors rendered the statute substantially overbroad. Because Web publishers are without any means to limit access to their sites based on the geographic location of particular Internet users, the Court of Appeals reasoned that COPA would require any material that might be deemed harmful by the most puritan of communities in any state to be placed behind an age or credit card verification system. Id., at 175. Hypothesizing that this step would require Web publishers to shield vast amounts of material, ibid., the Court of Appeals was persuaded that this aspect of COPA, without reference to its other provisions, must lead inexorably to a holding of a likelihood of unconstitutionality of the entire COPA statute. Id., at 174.
We granted the Attorney Generals petition for certiorari, 532 U.S. 1037 (2001), to review the Court of Appeals determination that COPA likely violates the First Amendment because it relies, in part, on community standards to identify material that is harmful to minors, and now vacate the Court of Appeals judgment.
The First Amendment states that Congress shall make no law abridging the freedom of speech. This provision embodies [o]ur profound national commitment to the free exchange of ideas. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 686 (1989). [A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65 (1983) (quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972)). However, this principle, like other First Amendment principles, is not absolute. Cf. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988).
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, 484485 (1957). But this Court struggled in the past to define obscenity in a manner that did not impose an impermissible burden on protected speech. See Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704 (1968) (Harlan, J., concurring in part and dissenting in part) (referring to the intractable obscenity problem); see also Miller v. California, 413 U.S., at 2023 (reviewing the somewhat tortured history of th[is] Courts 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 2223.
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 (internal citations omitted; emphasis added).
Miller adopted the use of community standards from Roth, which repudiated an earlier approach for assessing objectionable material. Beginning in the 19th century, English courts and some American courts allowed material to be evaluated from the perspective of particularly sensitive persons. See, e.g., Queen v. Hicklin  L.R. 3 Q.B. 360; see also Roth, 354 U.S., at 488489, and n.25 (listing relevant cases). But in Roth, this Court held that this sensitive person standard was unconstitutionally restrictive of the freedoms of speech and press and approved a standard requiring that material be judged from the perspective of the average person, applying contemporary community standards. Id., at 489. The Court preserved the use of community standards in formulating the Miller test, explaining that they furnish a valuable First Amendment safeguard: [T]he primary concern is to be certain that [material] will be judged by its impact on an average person, rather than a particularly susceptible or sensitive personor indeed a totally insensitive one. Miller, 413 U.S., at 33 (internal quotation marks omitted); see also Hamling v. United States, 418 U.S. 87, 107 (1974) (emphasizing that the principal purpose of the community standards criterion is to assure that the material is judged neither on the basis of each jurors personal opinion, nor by its effect on a particularly sensitive or insensitive person or group).
The Court of Appeals, however, concluded that this Courts 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 COPAs reliance on community standards constitutionally infirm.6
In addressing this question, the parties first dispute the nature of the community standards that jurors will be instructed to apply when assessing, in prosecutions under COPA, whether works appeal to the prurient interest of minors and are patently offensive with respect to minors.7 Respondents contend that jurors will evaluate material using local community standards, Brief for Respondents 40, while petitioner maintains that jurors will not consider the community standards of any particular geographic area, but rather will be instructed to consider the standards of the adult community as a whole, without geographic specification. Brief for Petitioner 38.
In the context of this case, which involves a facial challenge to a statute that has never been enforced, we do not think it prudent to engage in speculation as to whether certain hypothetical jury instructions would or would not be consistent with 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 (1974) (A State may choose to define an obscenity offense in terms of contemporary community standards as defined in Miller without further specification or it may choose to define the standards in more precise geographic terms, as was done by California in Miller). Absent geographic specification, a juror applying community standards will inevitably draw upon personal knowledge of the community or vicinage from which he comes. Hamling, supra, at 105. Petitioner concedes the latter point, see Reply Brief for Petitioner 34, 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.
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 COPAs community standards component would effectively force all speakers on the Web to abide by the most puritan communitys 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 statutes 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 877878. The Court of Appeals below relied heavily on this observation, stating that it was not persuaded that the Supreme Courts concern with respect to the community standards criterion has been sufficiently remedied by Congress in COPA. 217 F.3d, at 174.
The CDAs use of community standards to identify patently offensive material, however, was particularly problematic in light of that statutes 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 standardsa standard somewhat similar to the second prong of Millers three-prong test. But the CDA did not include any limiting terms resembling Millers additional two prongs. See Reno, 521 U.S., at 873. It neither contained any requirement that restricted material appeal to the prurient interest nor excluded from the scope of its coverage works with serious literary, artistic, political, or scientific value. Ibid. The tremendous breadth of the CDA magnified the impact caused by differences in community standards across the country, restricting Web publishers from openly displaying a significant amount of material that would have constituted protected speech in some communities across the country but run afoul of community standards in others.
COPA, by contrast, does not appear to suffer from the same flaw because it applies to significantly less material than did the CDA and defines the harmful-to-minors material restricted by the statute in a manner parallel to the Miller definition of obscenity. See supra, at 56, 10. 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,8 they must also be designed to appeal to the prurient interest of minors and taken as a whole, lac[k] serious literary, artistic, political, or scientific value for minors. 47 U.S.C. 231(e)(6).
These additional two restrictions substantially limit the amount of material covered by the statute. Material appeals to the prurient interest, for instance, only if it is in some sense erotic. Cf. Erznoznik v. Jacksonville, 422 U.S. 205, 213, and n.10 (1975).9 Of even more significance, however, is COPAs exclusion of material with serious value for minors. See 47 U.S.C. 231(e)(6)(C). In Reno, we emphasized that the serious value requirement is particularly important because, unlike the patently offensive and prurient interest criteria, it is not judged by contemporary community standards. 521 U.S., at 873 (citing Pope v. Illinois, 481 U.S. 497, 500 (1987)). This is because the value of [a] work [does not] vary from community to community based on the degree of local acceptance it has won. Id., at 500. Rather, the relevant question is whether a reasonable person would find value in the material, taken as a whole. Id., at 501. Thus, the serious value requirement allows appellate courts to impose some limitations and regularity on the definition by setting, as a matter of law, a national floor for socially redeeming value. Reno, supra, at 873 (emphasis added), a safeguard nowhere present in the CDA.10
When the scope of an obscenity statutes coverage is sufficiently narrowed by a serious value prong and a prurient interest prong, we have held that requiring a speaker disseminating material to a national audience to observe varying community standards does not violate the First Amendment. In Hamling v. United States, 418 U.S. 87 (1974), this Court considered the constitutionality of applying community standards to the determination of whether material is obscene under 18 U.S.C. 1461, the federal statute prohibiting the mailing of obscene material. Although this statute does not define obscenity, the petitioners in Hamling were tried and convicted under the definition of obscenity set forth in Book Named John Clelands Memoirs of a Woman of Pleasure v. Attorney General of Mass., 383 U.S. 413 (1966), which included both a prurient interest requirement and a requirement that prohibited material be utterly without redeeming social value. Hamling, supra, at 99 (quoting Memoirs, supra, at 418).
Like respondents here, the dissenting opinion in Hamling argued that it was unconstitutional for a federal statute to rely on community standards to regulate speech. Justice Brennan maintained that [n]ational distributors choosing to send their products in interstate travels [would] be forced to cope with the community standards of every hamlet into which their goods [might] wander. 418 U.S., at 144. As a result, he claimed that the inevitable result of this situation would be debilitating self-censorship that abridges the First Amendment rights of the people. Ibid.
This Court, however, rejected Justice Brennans argument that the federal mail statute unconstitutionally compelled speakers choosing to distribute materials on a national basis to tailor their messages to the least tolerant community: The fact that distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials does not render a federal statute unconstitutional. Id., at 106.
Fifteen years later, Hamlings holding was reaffirmed in Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989). Sable addressed the constitutionality of 47 U.S.C. 223(b) (1982 ed., Supp. V), a statutory provision prohibiting the use of telephones to make obscene or indecent communications for commercial purposes. The petitioner in that case, a dial-a-porn operator, challenged, in part, that portion of the statute banning obscene phone messages. Like respondents here, the dial-a-porn operator argued that reliance on community standards to identify obscene material impermissibly compelled message senders to tailor all their messages to the least tolerant community. 492 U.S., at 124.11 Relying on Hamling, however, this Court once again rebuffed this attack on the use of community standards in a federal statute of national scope: There is no constitutional barrier under Miller to prohibiting communications that are obscene in some communities under local standards even though they are not obscene in others. If Sables 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 125126 (emphasis added).
The Court of Appeals below concluded that Hamling and Sable are easily distinguished from the present case because in both of those cases the defendants had the ability 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 175176. In neither Hamling nor Sable, however, was the speakers ability to target the release of material into particular geographic areas integral to the legal analysis. In Hamling, the ability to limit the distribution of material to targeted communities was not mentioned, let alone relied upon,12 and in Sable, a dial-a-porn operators ability to screen incoming calls from particular areas was referenced only as a supplemental point, see 492 U.S., at 125.13 In the latter case, this Court made no effort to evaluate how burdensome it would have been for dial-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.
While Justice Kennedy and Justice Stevens question the applicability of this Courts community standards jurisprudence to the Internet, we do not believe that the mediums unique characteristics justify adopting a different approach than that set forth in Hamling and Sable. See post, at 45 (Kennedy, J., concurring in judgment). If a publisher chooses to send its material into a particular community, this Courts jurisprudence teaches that it is the publishers responsibility to abide by that communitys standards. The publishers burden does not change simply because it decides to distribute its material to every community in the Nation. See Sable, supra, at 125126. 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 6 (Kennedy, J., concurring in judgment), but nonetheless utilizes a medium that transmits its speech from coast to coast. If a publisher wishes for its material to be judged only by the standards of particular communities, then it need only take the simple step of utilizing a medium that enables it to target the release of its material into those communities.14
Respondents offer no other grounds upon which to distinguish this case from Hamling and Sable. While those cases involved obscenity rather than material that is harmful to minors, we have no reason to believe that the practical effect of varying community standards under COPA, given the statutes definition of material that is harmful to minors, is significantly greater than the practical effect of varying community standards under federal obscenity statutes. It is noteworthy, for example, that respondents fail to point out even a single exhibit in the record as to which coverage under COPA would depend upon which community in the country evaluated the material. As a result, if we were to hold COPA unconstitutional because of its use of community standards, federal obscenity statutes would likely also be unconstitutional as applied to the Web,15 a result in substantial tension with our prior suggestion that the application of the CDA to obscene speech was constitutional. See Reno, 521 U.S., at 877, n.44, 882883.
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 3334. [T]o prevail in a
facial challenge, however, it is not enough for a plaintiff to show some
overbreadth. Reno, supra, at 896 (OConnor, 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.
U.S. 601, 615 (1973). At this stage of the litigation, respondents have
failed to satisfy this burden, at least solely as a result of COPAs reliance on
community standards.16 Because Congress has narrowed the range of content
restricted by COPA in a manner analogous to Millers definition of
obscenity, we conclude, consistent with our holdings in Hamling and
that any variance caused by the statutes reliance on community standards is not substantial enough to violate the First Amendment.
The scope of our decision today is quite limited. We hold only that COPAs reliance on community standards to identify material that is harmful to minors does not by itself render the statute substantially overbroad for purposes of the First Amendment. We do not express any view as to whether COPA suffers from substantial overbreadth for other reasons, whether the statute is unconstitutionally vague, or whether the District Court correctly concluded that the statute likely will not survive strict scrutiny analysis once adjudication of the case is completed below. While respondents urge us to resolve these questions at this time, prudence dictates allowing the Court of Appeals to first examine these difficult issues.
Petitioner does not ask us to vacate the preliminary injunction entered by the District Court, and in any event, we could not do so without addressing matters yet to be considered by the Court of Appeals. As a result, the Government remains enjoined from enforcing COPA absent further action by the Court of Appeals or the District Court.
For the foregoing reasons, we vacate the
the Court of Appeals and remand the case for further proceedings.
It is so ordered.
JOHN ASHCROFT, ATTORNEY GENERAL,
PETITIONER v. AMERICAN CIVIL
LIBERTIES UNION etal.
on writ of certiorari to the united states court of
appeals for the third circuit
[May 13, 2002]
Justice OConnor, 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 1315. Like Justice Breyer, however, see post, at 1 (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 pluralitys 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 1315. 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 community standards would vary include such things as the appropriateness of sex education and the desirability of adoption by same-sex couples. Brief for Respondents 43. Material addressing the latter topic, however, seems highly unlikely to be seen to appeal to the prurient interest in any community, and educational material like the former must, on any objective inquiry, see ante, at 15, have scientific value for minors.
But respondents failure to prove substantial overbreadth on a facial challenge in this case still leaves open the possibility that the use of local community standards will cause problems for regulation of obscenity on the Internet, for adults as well as children, in future cases. In an as-applied challenge, for instance, individual litigants may still dispute that the standards of a community more restrictive than theirs should apply to them. And in future facial challenges to regulation of obscenity on the Internet, litigants may make a more convincing case for substantial overbreadth. Where adult speech is concerned, for instance, there may in fact be a greater degree of disagreement about what is patently offensive or appeals to the prurient interest.
Nor do I think such future cases can be
resolved by application of the approach we took in Hamling v.
United States, 418
U.S. 87 (1974), and Sable Communications of Cal., Inc. v.
U.S. 115 (1989). I agree with Justice Kennedy that, given Internet
speakers inability to control the geographic location of their audience,
expecting them to bear the burden of controlling the recipients of their speech,
as we did in Hamling and Sable, may be entirely too much to
ask, and would potentially suppress an inordinate amount of expression. See
post, at 56 (opinion concurring in judgment); contra, ante, at
1519. For these reasons, adoption of a national standard is neces-
sary in my view for any reasonable regulation of Internet
Our precedents do not forbid adoption of a national standard. Local community-based standards originated with Miller v. California, 413 U.S. 15 (1973). In that case, we approved jury instructions that based the relevant community standards on those of the State of California rather than on the Nation as a whole. In doing so, we held that [n]othing in the First Amendment requires that a jury consider national standards when determining if something is obscene as a matter of fact. Id., at 31. The First Amendment, we held, did not require that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City. Id., at 32. But we said nothing about the constitutionality of jury instructions that would contemplate a national standardi.e., requiring that the people who live in all of these places hold themselves to what the nationwide community of adults would find was patently offensive and appealed to the prurient interest.
Later, in Jenkins v. Georgia, 418 U.S. 153, 157 (1974), we confirmed that Miller approved the use of [instructions based on local standards]; it did not mandate their use. The instructions we approved in that case charged the jury with applying community standards without designating any particular community. In holding that a State may define the obscenity standard by stating the Miller standard without further specification, 418 U.S., at 157, Jenkins left open the possibility that jurors would apply any number of standards, including a national standard, in evaluating materials obscenity.
To be sure, the Court in Miller also stated that a national standard might be unascertainable, 413 U.S., at 31, and [un]realistic, id., at 32. But where speech on the Internet is concerned, I do not share that skepticism. It is true that our Nation is diverse, but many local communities encompass a similar diversity. For instance, in Miller itself, the jury was instructed to consider the standards of the entire State of California, a large (today, it has a population of greater than 33 million people, see U.S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 23 (120th 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 2. 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, IIIB, and IV of Justice Thomas opinion and the judgment.
JOHN ASHCROFT, ATTORNEY GENERAL,
PETITIONER v. AMERICAN CIVIL
LIBERTIES UNION etal.
on writ of certiorari to the united states court of
appeals for the third circuit
[May 13, 2002]
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 Nations adult community taken as a whole, not to geographically separate local areas. The statutory language does not explicitly describe the specific community to which it refers. It says only that the average person, applying contemporary community standards must find that the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest . 47 U.S.C. 231(e)(6) (1994 ed., Supp V).
In the statutes 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, 237238 (1998); Ashwander v. TVA, 297 U.S. 288, 348 (1936) (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) (Brandeis, J., concurring). 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 hecklers 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, 175176 (CA3 2000). And these special difficulties also potentially weaken the authority of prior cases in which they were not present. Cf. Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989); Hamling v. United States, 418 U.S. 87 (1974). A nationally uniform adult-based standardwhich Congress, in its Committee Report, said that it intendedsignificantly 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 105106.
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 IIIB and IIID, 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.
JOHN ASHCROFT, ATTORNEY GENERAL,
PETITIONER v. AMERICAN CIVIL
LIBERTIES UNION etal.
on writ of certiorari to the united states court of
appeals for the third circuit
[May 13, 2002]
Justice Kennedy, with whom Justice Souter and Justice Ginsburg join, concurring in the judgment.
If a law restricts substantially more speech than is justified, it may be subject to a facial challenge. Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). There is a very real likelihood that the Child Online Protection Act (COPA or Act) is overbroad and cannot survive such a challenge. Indeed, content-based regulations like this one are presumptively invalid abridgements of the freedom of speech. See R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992). Yet COPA is a major federal statute, enacted in the wake of our previous determination that its predecessor violated the First Amendment. See Reno v. American Civil Liberties Union, 521 U.S. 844 (1997). Congress and the President were aware of our decision, and we should assume that in seeking to comply with it they have given careful consideration to the constitutionality of the new enactment. For these reasons, even if this facial challenge appears to have considerable merit, the Judiciary must proceed with caution and identify overbreadth with care before invalidating the Act.
In this case, the District Court issued a preliminary injunction against enforcement of COPA, finding it too broad across several dimensions. The Court of Appeals affirmed, but on a different ground. COPA defines material that is harmful to minors by reference to contemporary community standards, 47 U.S.C. 231(e)(6) (1994 ed., Supp. V); and on the theory that these vary from place to place, the Court of Appeals held that the definition dooms the statute without reference to its other provisions. American Civil Liberties Union v. Reno, 217 F.3d 162, 174 (CA3 2000). The Court of Appeals found it unnecessary to construe the rest of the Act or address the District Courts 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 COPAs 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 statutes 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 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.
COPA provides a three-part conjunctive definition of material that is harmful to minors. The first part of the definition is that the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, [that it] is designed to appeal to, or is designed to pander to, the prurient interest. 47 U.S.C. 231(e)(6)(A). (The parties agree that the second part of the definition, 231(e)(6)(B), likewise invokes contemporary community standards, though only implicitly. See ante, at 1112, 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 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 877878. 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 [COPAs predecessor] wholly unprecedented, id., at 877, in part because of variation in community standards. The Court also relied on that variation to assess the strength of the Governments interest, which it found not equally strong throughout the coverage of this broad statute. Id., at 878. The Court illustrated the point with an example: A parent who e-mailed birth control information to his 17-year-old child at college might violate the Act, even though neither he, his child, nor anyone in their home community found the material indecent or patently offensive, if the college towns community thought otherwise. Ibid. Variation in community standards rendered the statute broader than the scope of the Governments own expressed compelling interest.
It is true, as Justice Thomas points out, ante, at 1619, that requiring a speaker addressing a national audience to meet varying community standards does not always violate the First Amendment. See Hamling v. United States, 418 U.S. 87, 106 (1974) (obscene mailings); Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 125126 (1989) (obscene phone messages). These cases, however, are of limited utility in analyzing the one before us, because each mode of expression has its own unique characteristics, and each must be assessed for First Amendment purposes by standards suited to it. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975). Indeed, when Congress purports to abridge the freedom of a new medium, we must be particularly attentive to its distinct attributes, for differences in the characteristics of new media justify differences in the First Amendment standards applied to them. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386 (1969). The economics and the technology of each medium affect both the burden of a speech restriction and the Governments interest in maintaining it.
In this case the District Court found as a fact that [o]nce a provider posts its content on the Internet and chooses to make it available to all, it generally cannot prevent that content from entering any geographic community. American Civil Liberties Union v. Reno, 31 F.Supp. 2d 473, 484 (ED Pa. 1999). By contrast, in upholding a ban on obscene phone messages, we emphasized that the speaker could hire operators to determine the source of the calls or engag[e] with the telephone company to arrange for the screening and blocking of out-of-area calls or fin[d] another means for providing messages compatible with community standards. Sable, supra, at 125. And if we did not make the same point in Hamling, that is likely because it is so obvious that mailing lends itself to geographic restriction. (The Court has had no occasion to consider whether venue would be proper in every hamlet into which [obscene mailings] may wander, Hamling, supra, at 144 (dissenting opinion), for the petitioners in Hamling did not challenge the statute as overbroad on its face.) A publisher who uses the mails can choose the location of his audience.
The economics and technology of Internet communication differ in important ways from those of telephones and mail. Paradoxically, as the District Court found, it is easy and cheap to reach a worldwide audience on the Internet, see 31 F.Supp. 2d, at 482, but expensive if not impossible to reach a geographic subset, id., at 484. A Web publisher in a community where avant garde culture is the norm may have no desire to reach a national market; he may wish only to speak to his neighbors; nevertheless, if an eavesdropper in a more traditional, rural community chooses to listen in, there is nothing the publisher can do. As a practical matter, COPA makes the eavesdropper the arbiter of propriety on the Web. And it is no answer to say that the speaker should take the simple step of utilizing a [different] medium. Ante, at 19 (principal opinion of Thomas, J.). Our prior decisions have voiced particular concern with laws that foreclose an entire medium of expression . [T]he danger they pose to the freedom of speech is readily apparentby eliminating a common means of speaking, such measures can suppress too much speech. City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994).
Justice Breyer would alleviate the problem of local variation in community standards by construing the statute to comprehend the Nations adult community taken as a whole, rather than the local community from which the jury is drawn. Ante, at 1 (opinion concurring in part and concurring in judgment); see also ante, at14 (OConnor, 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 2. 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 12 (principal opinion of Thomas, J.); Brief for Petitioner 39.
For this reason the Court of Appeals was correct to focus on COPAs incorporation of varying community standards; and it may have been correct as well to conclude that in practical effect COPA imposes the most puritanical community standard on the entire country. We have observed that it is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City. Miller v. California, 413 U.S. 15, 32 (1973). On the other hand, it is neither realistic nor beyond constitutional doubt for Congress, in effect, to impose the community standards of Maine or Mississippi on Las Vegas and New York. People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity. Id., at 33. In striking down COPAs predecessor, the Reno Court identified this precise problem, and if the Hamling and Sable Courts did not find the problem fatal, that is because those cases involved quite different media. The national variation in community standards constitutes a particular burden on Internet speech.
The question that remains is whether this observation by itself suffices to enjoin the Act. See ante, at 22. 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 13 (The CDAs use of community standards to identify patently offensive material, however, was particularly problematic in light of that statutes unprecedented breadth and vagueness); ante, at 14 (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 interpretationundertaken without substantial arguments or briefingis 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 89 (dissenting opinion); it is also relevant to the proportion of overbreadth, judged in relation to the statutes plainly legitimate sweep. Broadrick, 413 U.S., at 615. Because this issue was virtually ignored by the parties and the amicus in the Court of Appeals, 217 F.3d, at 173, we have no information on the question. Instead, speculation meets speculation. On the one hand, the Court of Appeals found no evidence to suggest that adults everywhere in America would share the same standards for determining what is harmful to minors. Id., at 178. On the other hand, Justice Thomas finds no reason to believe that the practical effect of varying community standards under COPA is significantly greater than the practical effect of varying standards under federal obscenity statutes. Ante, at 20. When a key issue has no evidence on one side and no reason to believe 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 Courts analysis in a footnote:
[W]e do not find it necessary to address the District Courts analysis of the definition of commercial purposes; whether the breadth of the forms of content covered by COPA could have been more narrowly tailored; whether the affirmative defenses impose too great a burden on Web publishers or whether those affirmative defenses should have been included as elements of the crime itself; whether COPA's inclusion of criminal as well as civil penalties was excessive; whether COPA is designed to include communications made in chat rooms, discussion groups and links to other Web sites; whether the government is entitled to so restrict communications when children will continue to be able to access foreign Web sites and other sources of material that is harmful to them; what taken as a whole should mean in the context of the Web and the Internet; or whether the statutes 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 Acts limitation to communication for commercial purposes. 47 U.S.C. 231(e)(2)(A). In Reno, we remarked that COPAs predecessor was so broad in part because it had no such limitation. 521 U.S., at 877. COPA, by contrast, covers a speaker only if:
the person who makes a communication or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such persons 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 persons 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 that redeeming value be judged by considering the work as a whole. Where the scene is part of the narrative, the work itself does not for this reason become obscene, even though the scene in isolation might be offensive. Ashcroft v. Free Speech Coalition, ante, at __ (slip op., at 10). 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 denominatorthat is, the material to be taken as a wholein the context of the World Wide Web. See 31 F.Supp. 2d, at 483 (Although information on the Web is contained in individual computers, the fact that each of these computers is connected to the Internet through World Wide Web protocols allows all of the information to become part of a single body of knowledge); id., at 484 (From a users 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 Courts view, it logically follows that [COPA] would apply to any Web site that contains only some harmful to minors material. 31 F.Supp. 2d, 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 Acts prohibition includes an interstate 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.
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.
JOHN ASHCROFT, ATTORNEY GENERAL,
PETITIONER v. AMERICAN CIVIL
LIBERTIES UNION etal.
on writ of certiorari to the united states court of
appeals for the third circuit
[May 13, 2002]
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 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 jurors personal opinion, nor by its effect on a particularly sensitive or insensitive person or group. Hamling v. United States, 418 U.S. 87, 107 (1974). In the context of the Internet, however, community standards become a sword, rather than a shield. If a prurient appeal is offensive in a puritan village, it may be a crime to post it on the World Wide Web.
The Child Online Protection Act (COPA) restricts access by adults as well as children to materials that are harmful to minors. 47 U.S.C. 231(a)(1) (1994 ed., Supp. V). COPA is a substantial improvement over its predecessor, the Communications Decency Act of 1996 (CDA), which we held unconstitutional five years ago in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) (ACLU 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 877878, the community standards criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message.
We have recognized that the State has a compelling interest in protecting minors from harmful speech, Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989), and on one occasion we upheld a restriction on indecent speech that was made available to the general public, because it could be accessed by minors, FCC v. Pacifica Foundation, 438 U.S. 726 (1978). Our decision in that case was influenced 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 748750; see also, ACLU I, 521 U.S., at 867. On the other hand, we have repeatedly rejected the position that the free speech rights of adults can be limited to what is acceptable for children. See id., at 875 (quoting Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 7475 (1983) ([R]egardless of the strength of the governments 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) (quotation marks omitted)); Sable, 492 U.S., at 128; Butler v. Michigan, 352 U.S. 380, 383 (1957).
Petitioner relies on our decision in Ginsberg v. New York, 390 U.S. 629 (1968), for the proposition that Congress can prohibit the display of materials that are harmful to minors. But the statute upheld in Ginsberg prohibited selling indecent materials directly to children, id., at 633 (describing N.Y. Penal Law 484h, making it unlawful knowingly to sell to a minor ), whereas the speech implicated here is simply posted on a medium that is accessible to both adults and children, 47 U.S.C. 231(a)(1) (prohibiting anyone from knowingly mak[ing] any communication for commercial purposes that is available to any minor ). Like the restriction on indecent dial-a-porn numbers invalidated in Sable, the prohibition against mailing advertisements for contraceptives invalidated in Bolger, and the ban against selling adult books found impermissible in Butler, COPA seeks to limit protected speech that is not targeted at children, simply because it can be obtained by them while surfing the Web.1 In evaluating the overbreadth of such a statute, we should be mindful of Justice Frankfurters admonition not to burn the house to roast the pig, Butler, 352 U.S., at 383.
COPA not only restricts speech that is made available to the general public, it also covers a medium in which speech cannot be segregated to avoid communities where it is likely to be considered harmful to minors. The Internet presents a unique forum for communication because information, once posted, is accessible everywhere on the network at once. The speaker cannot control access based on the location of the listener, nor can it choose the pathways through which its speech is transmitted. By approving the use of community standards in this context, Justice Thomas endorses a construction of COPA that has the intolerable consequence of denying some sections of the country access to material, there deemed acceptable, which in others might be considered offensive to prevailing community standards of decency. Manual Enterprises, Inc. v. Day, 370 U.S. 478, 488 (1962).
If the material were forwarded through the mails, as in Hamling, or over the telephone, as in Sable, the sender could avoid destinations with the most restrictive standards. Indeed, in Sable, we upheld the application of community standards to a nationwide medium because the speaker was free to tailor its messages to the communities it chooses to serve, by either hir[ing] operators to determine the source of the calls [or] arrang[ing] for the screening and blocking of out-of-area calls. 492 U.S., at 125 (emphasis added). Our conclusion that it was permissible for the speaker to bear the ultimate burden of compliance, id., at 126, assumed that such compliance was at least possible without requiring the speaker to choose another medium or to limit its speech to what all would find acceptable. Given the undisputed fact that a provider who posts material on the Internet cannot prevent it from entering any geographic community, see ante, at 11, 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 2, n.2 (opinion of Thomas, J.). In light of this fundamental difference in technologies, the rules applicable to the mass mailing of an obscene montage or to obscene dial-a-porn should not be used to judge the legality of messages on the World Wide Web.2
In his attempt to fit this case within the framework of Hamling and Sable, Justice Thomas overlooks the more obvious comparisonnamely, 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 877878. Although our holding in ACLU I did not turn on that factor alone, we did not adopt the position relied on by Justice Thomasthat applying community standards to the Internet is constitutional based on Hamling and Sable. See Reply Brief for Appellants in Reno v. ACLU, O. T. 1996, No. 96511, p. 19.3
Justice Thomas points to several other provisions in COPA to argue that any overbreadth will be rendered insubstantial by the rest of the statute. Ante, at 1415. These provisions afford little reassurance, however, as they only marginally limit the sweep of the statute. It is true that, in addition to COPAs 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 11, 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 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 15 (citing Erznoznik v. Jacksonville, 422 U.S. 205, 213, and n. 10 (1975)), substantially narrow the category of images covered. Arguably every depiction of nuditypartial or fullis in some sense erotic with respect to minors.4
Petitioners argument that the serious value prong minimizes the statutes overbreadth is also unpersuasive. Although we have recognized that the serious value determination in obscenity cases should be based on an objective, reasonable person standard, Pope v. Illinois, 481 U.S. 497, 500 (1987), this criterion is inadequate to cure COPAs overbreadth because COPA adds an important qualifying phrase to the standard Miller v. California, 413 U.S. 15 (1973), formulation of the serious value prong. The question for the jury is not whether a reasonable person would conclude that the materials have serious value; instead, the jury must determine whether the materials have serious value for minors. Congress reasonably concluded that a substantial number of works, which have serious value for adults, do not have serious value for minors. Cf. ACLU I, 521 U.S., at 896 (OConnor, 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 the least tolerant communities find it harmful to minors.5 While the objective nature of the inquiry may eliminate any worry that the serious value determination will be made by the least tolerant community, it does not change the fact that, within the subset of images deemed to have no serious value for minors, the decision whether minors and adults throughout the country will have access to that speech will still be made by the most restrictive community.
Justice Kennedy makes a similar misstep, ante, at 2 (opinion concurring in judgment), when he ties the overbreadth inquiry to questions about the scope of the other provisions of the statute. According to his view, we cannot determine whether the statute is substantially overbroad based on its use of community standards without first determining how much of the speech on the Internet is saved by the other restrictions in the statute. But this represents a fundamental misconception of our overbreadth doctrine. As Justice White explained in Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973), the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statutes plainly legitimate sweep. (Emphasis added.) Regardless of how the Court of Appeals interprets the commercial purposes or as a whole provisions on remand, the question we must answer is whether the statute restricts a substantial amount of protected speech relative to its legitimate sweep by virtue of the fact that it uses community standards.6 These other provisions may reduce the absolute number of Web pages covered by the statute, but even the narrowest version of the statute abridges a substantial amount of protected speech that many communities would not find harmful to minors. Because Web speakers cannot limit access to those specific communities, the statute is substantially overbroad regardless of how its other provisions are construed.
Justice Thomas acknowledges, and petitioner concedes, that juries across the country will apply different standards and reach different conclusions about whether particular works are harmful to minors. See ante, at 1213; Brief for Petitioner 34, 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 communitys standards and not others, 521 U.S., at 878. In fact, our own division on that question provides further evidence of the range of attitudes about such material. See, e.g., id., at 896 (OConnor, J., concurring in judgment in part and dissenting in part). Moreover, amici for respondents describe studies showing substantial variation among communities in their attitudes toward works involving homosexuality, masturbation, and nudity.7
Even if most, if not all, of these works would be excluded from COPAs coverage by the serious value prong, they illustrate the diversity of public opinion on the underlying themes depicted. This diversity of views surely extends to whether materials with the same themes, that do not have serious value for minors, appeal to their prurient interests and are patently offensive. There is no reason to think the differences between communities standards will disappear once the image or description is no longer within the context of a work that has serious value for minors.8 Because communities differ widely in their attitudes toward sex, particularly when minors are concerned, the Court of Appeals was correct to conclude that, regardless of how COPAs other provisions are construed, applying community standards to the Internet will restrict a substantial amount of protected speech that would not be considered harmful to minors in many communities.
Whether that consequence is appropriate depends, of course, on the content of the message. The kind of hard-core pornography involved in Hamling, which I assume would be obscene under any communitys 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 sites metatags in order to dupe unwitting Web surfers into visiting pornographic sites, deserve the same fate. But COPA extends to a wide range of prurient appeals in advertisements, online magazines, Web-based bulletin boards and chat rooms, stock photo galleries, Web diaries, and a variety of illustrations encompassing a vast number of messages that are unobjectionable in most of the country and yet provide no serious value for minors. It is quite wrong to allow the standards of a minority consisting of the least tolerant communities to regulate access to relatively harmless messages in this burgeoning market.
In the context of most other media, using community standards to differentiate between permissible and impermissible speech has two virtues. As mentioned above, community standards originally served as a shield to protect speakers from the least tolerant members of society. By aggregating values at the community level, the Miller test eliminated the outliers at both ends of the spectrum and provided some predictability as to what constitutes obscene speech. But community standards also serve as a shield to protect audience members, by allowing people to self-sort based on their preferences. Those who abhor and those who tolerate sexually explicit speech can seek out like-minded people and settle in communities that share their views on what is acceptable for themselves and their children. This sorting mechanism, however, does not exist in cyberspace; the audience cannot self-segregate. As a result, in the context of the Internet this shield also becomes a sword, because the community that wishes to live without certain material not only rids itself, but the entire Internet of the offending speech.
In sum, I would affirm the judgment of the Court of Appeals and therefore respectfully dissent.
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, 849853 (1997).
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.
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 persons 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 persons sole or principal business or source of income). 231(e)(2)(B).
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, Powells Bookstore, Riotgrrl, Salon Internet, Inc., and West Stock, Inc., now known as ImageState North America, Inc.
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. 101102.
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 (ED Pa. 1999), and petitioner points to no evidence in the record suggesting that this finding is clearly erroneous.
Although the phrase contemporary community standards appears only in the prurient interest prong of the Miller test, see Miller v. California, 413 U.S. 15, 24 (1973), this Court has indicated that the patently offensive prong of the test is also a question of fact to be decided by a jury applying contemporary community standards. See, e.g., Pope v. Illinois, 481 U.S. 497, 500 (1987). The parties here therefore agree that even though contemporary community standards are similarly mentioned only in the prurient interest prong of COPAs 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).
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).
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 nuditypartial or fullis in some sense erotic with respect to minors, post, at 67 (dissenting opinion) (emphasis in original). We do not agree. For example, we have great difficulty understanding how pictures of a war victims wounded nude body could reasonably be described under the vast majority of circumstances as erotic, especially when evaluated from the perspective of minors. See Websters Ninth New Collegiate Dictionary 422 (1991) (defining erotic as of, devoted to, or tending to arouse sexual love or desire).
Justice Stevens contends that COPAs 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 7. 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 COPAs 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.
Although nowhere mentioned in the relevant statutory text, this Court has held that the Miller test defines regulated speech for purposes of federal obscenity statutes such as 47 U.S.C. 223(b) (1994 ed.). See, e.g., Smith v. United States, 431 U.S. 291, 299 (1977).
This fact was perhaps omitted because under the federal statute at issue in Hamling v. United States, 418 U.S. 87 (1974), a defendant could be prosecuted in any district through which obscene mail passed while it was on route to its destination, see id., at 143144 (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.
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 4 (dissenting opinion). This Courts conclusion clearly did not hinge either on the fact that dial-a-porn operators could prevent callers in particular communities from accessing their messages or on an assessment of how burdensome it would have been for dial-a-porn operators to take that step. Rather, these companies were required to abide by the standards of various communities for the sole reason that they transmitted their material into those communities. See Sable, 492 U.S., at 126 (If Sables audience is comprised of different communities with different local standards, Sable ultimately bears the burden of complying with the prohibition on obscene messages).
In addition, COPA does not, as Justice Kennedy suggests, foreclose an entire medium of expression. Post, at 6 (quoting City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994)). While Justice Kennedy and Justice Stevens repeatedly imply that COPA banishes from the Web material deemed harmful to minors by reference to community standards, see, e.g., post, at 6 (opinion concurring in judgment); post, at 7, 11 (dissenting opinion), the statute does no such thing. It only requires that such material be placed behind adult identification screens.
Obscene material, for instance, explicitly falls within the coverage of COPA. See 47 U.S.C. 231(e)(6) (1994 ed., Supp. V).
Justice Stevens conclusion to the contrary is based on little more than speculation. See, e.g., post, at 8 (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 10 (citing Brief for Volunteer Lawyers for the Arts etal. as Amici Curiae 410). Justice Stevens, however, is not even willing to represent that these anecdotes relate to material restricted under COPA, see post, at 10, 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 etal. as Amici Curiae 410 (describing, among other incidents, controversies in various communities regarding Maya Angelous I Know Why The Caged Bird Sings, Judy Blumes Are You There God? Its Me, Margaret, Aldous Huxleys Brave New World, J.D. Salingers Catcher in the Rye, 1993 Academy Award Best Picture nominee The Piano, the American Broadcasting Corporation television networks 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 Kennedys suggestion that it is necessary for the Court of Appeals to revisit this question upon remand. See post, at 89. The lack of evidence in the record relevant to the question presented does not indicate that we should vacate for further consideration. Post, at 9. Rather, it indicates that respondents, by offering little more than speculation, have failed to meet their burden of demonstrating in this facial challenge that COPAs reliance on community standards renders the statute substantially overbroad.
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 (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.
It is hardly a solution to say, as Justice Thomas suggests, ante, at 19, that a speaker need only choose a different medium in order to avoid having its speech judged by the least tolerant community. Our overbreadth doctrine would quickly become a toothless protection if we were to hold that substituting a more limited forum for expression is an acceptable price to pay. Since a content-based restriction is presumptively invalid, I would place the burden on parents to take the simple step of utilizing a medium that enables, ante, at 19, them to avoid this material before requiring the speaker to find another forum.
Justice Breyer seeks to avoid the problem by effectively reading the phrase contemporary national standards into the statute, ante, at 1 (opinion concurring in part and concurring in judgment). While the legislative history of COPA provides some support for this reading, it is contradicted by the clear text of the statute, which directs jurors to consider community standards. This phrase is a term of art that has taken on a particular meaning in light of our precedent. Although we have never held that applying a national standard would be constitutionally impermissible, we have said that asking a jury to do so is an exercise in futility, Miller v. California, 413 U. S. 15, 30 (1973), and that [a] juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, Hamling v. United States, 418 U.S. 87, 104 (1974). Any lingering doubts about the meaning of the phrase were certainly dispelled by our discussion of the issue in ACLU I, 521 U.S., at 874, n. 39, and we presume that Congress legislates against the backdrop of our decisions. Therefore, Justice Thomas has correctly refused to rewrite the statute to substitute a standard that Congress clearly did not choose. And even if the Court 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 12; Brief for Petitioner 39.
Of course, Justice Thomass example of the image of a war victims wounded nude body, ante, at 15, 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).
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 5. 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 107109 (1999); Guernsey, Seekbut 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 accuses the Court of Appeals of evaluating overbreadth in a vacuum by dismissing most of the concerns raised by the District Court, ante, at 8. But most of those concerns went to whether COPA survives strict scrutiny, not overbreadth. Even under Justice Kennedys 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.
Brief for Volunteer Lawyers for the Arts etal. as Amici Curiae 410 (describing findings of the People for the American Way Foundation Annual Freedom to Learn Reports).
Nor is there any reason to expect that a particular communitys view of the material will change based on how the Court of Appeals construes the statutes for commercial purposes or as a whole provisions.