ASHCROFT, ATTORNEY GENERAL v. AMERICAN CIVIL LIBERTIES UNION ET AL.
No. 00-1293
SUPREME COURT OF THE UNITED STATES
Argued November 28, 2001—Decided May 13, 2002
535 U.S. 564
Ann E. Beeson argued the cause for respondents. With her on the briefs were Christopher A. Hansen, Steven R. Shapiro, Stefan Presser, David L. Sobel, Alexandra A. E. Shapiro, and Christopher R. Harris.*
*Briefs of amici curiae urging reversal were filed for the County of DuPage by Richard Hodyl, Jr., Joseph E. Birkett, and Nancy J. Wolfe; for the American Center for Law and Justice by Jay Alan Sekulow, James M. Henderson, Sr., Colby M. May, and Walter M. Weber; for Morality in Media, Inc., et al. by Paul J. McGeady, Robin S. Whitehead, and Janet M. LaRue; for Wallbuilders, Inc., by Barry C. Hodge; for Senator John S. McCain et al. by Bruce A. Taylor; and for Senator Raymond N. Haynes et al. by Richard D. Ackerman and Gary G. Kreep.
Briefs of amici curiae urging affirmance were filed for the American Society of Journalists and Authors et al. by Carl A. Solano, Theresa E. Loscalzo, Jennifer DuFault James, Joseph T. Lukens, and Dionna K. Litvin; for the Association of National Advertisers, Inc., by Steven G. Brody
JUSTICE THOMAS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, an opinion with respect to Parts III-A, III-C, and III-D, in which THE CHIEF JUSTICE and JUSTICE SCALIA join, and an opinion with respect to Part III-B, in which THE CHIEF JUSTICE, JUSTICE O‘CONNOR, and JUSTICE SCALIA join.
This case presents the narrow question whether the Child Online Protection Act‘s (COPA or Act) use of “community standards” to identify “material that is harmful to minors” violates the First Amendment. We hold that this aspect of COPA does not render the statute facially unconstitutional.
I
“The Internet . . . offer[s] a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.”
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).
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
Notwithstanding these affirmative defenses, in Reno v. American Civil Liberties Union, we held that the CDA‘s regulation of indecent transmissions, see
Our holding was based on three crucial considerations. First, “existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults.” Id., at 876. Second, “[t]he breadth of the CDA‘s coverage [was] wholly unprecedented.” Id., at 877. “Its open-ended prohibitions embrace[d],” not only commercial speech or commercial entities, but also “all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors.” Ibid. In addition, because the CDA did not define the terms “indecent” and “patently offensive,” the statute “cover[ed] large amounts of nonpornographic material with serious educational or other value.” Ibid. As a result, regulated subject matter under the CDA extended to “discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card
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
Apparently responding to our objections to the breadth of the CDA‘s coverage, Congress limited the scope of COPA‘s coverage in at least three ways. First, while the CDA applied to communications over the Internet as a whole, including, for example, e-mail messages, COPA applies only to material displayed on the World Wide Web. Second, unlike the CDA, COPA covers only communications made “for commercial purposes.”3 Ibid. And third, while the CDA pro-
Drawing on the three-part test for obscenity set forth in Miller v. California, 413 U. S. 15 (1973), COPA defines “material that is harmful to minors” as
“any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that—
“(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;
“(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and
“(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.”
47 U. S. C. § 231(e)(6) .
Like the CDA, COPA also provides affirmative defenses to those subject to prosecution under the statute. An individual may qualify for a defense if he, “in good faith, has restricted access by minors to material that is harmful to minors—(A) by requiring the use of a credit card, debit account, adult access code, or adult personal identification number; (B) by accepting a digital certificate that verifies age; or (C) by any other reasonable measures that are feasible under available technology.”
One month before COPA was scheduled to go into effect, respondents filed a lawsuit challenging the constitutionality of the statute in the United States District Court for the Eastern District of Pennsylvania. Respondents are a diverse group of organizations,4 most of which maintain their own Web sites. While the vast majority of content on their Web sites is available for free, respondents all derive income from their sites. Some, for example, sell advertising that is displayed on their Web sites, while others either sell goods directly over their sites or charge artists for the privilege of posting material. 31 F. Supp. 2d, at 487. All respondents either post or have members that post sexually oriented material on the Web. Id., at 480. Respondents’ Web sites contain “resources on obstetrics, gynecology, and sexual health; visual art and poetry; resources designed for gays and lesbians; information about books and stock photographic images offered for sale; and online magazines.” Id., at 484.
In their complaint, respondents alleged that, although they believed that the material on their Web sites was valuable for adults, they feared that they would be prosecuted under COPA because some of that material “could be construed as ‘harmful to minors’ in some communities.” App. 63. Respondents’ facial challenge claimed, inter alia, that COPA violated adults’ rights under the First and Fifth Amend-
The District Court granted respondents’ motion for a preliminary injunction, barring the Government from enforcing the Act until the merits of respondents’ claims could be adjudicated. 31 F. Supp. 2d, at 499. Focusing on respondents’ claim that COPA abridged the free speech rights of adults, the District Court concluded that respondents had established a likelihood of success on the merits. Id., at 498. The District Court reasoned that because COPA constitutes content-based regulation of sexual expression protected by the First Amendment, the statute, under this Court‘s precedents, was “presumptively invalid” and “subject to strict scrutiny.” Id., at 493. The District Court then held that respondents were likely to establish at trial that COPA could not withstand such scrutiny because, among other reasons, it was not apparent that COPA was the least restrictive means of preventing minors from accessing “harmful to minors” material. Id., at 497.
The Attorney General of the United States appealed the District Court‘s ruling. American Civil Liberties Union v. Reno, 217 F. 3d 162 (CA3 2000). The United States Court of Appeals for the Third Circuit affirmed. Rather than reviewing the District Court‘s “holding that COPA was not likely to succeed in surviving strict scrutiny analysis,” the Court of Appeals based its decision entirely on a ground that was not relied upon below and that was “virtually ignored by the parties and the amicus in their respective briefs.” Id., at 173-174. The Court of Appeals concluded that
We granted the Attorney General‘s petition for certiorari, 532 U. S. 1037 (2001), to review the Court of Appeals’ determination that COPA likely violates the First Amendment because it relies, in part, on community standards to identify material that is harmful to minors, and now vacate the Court of Appeals’ judgment.
II
The First Amendment states that “Congress shall make no law . . . abridging the freedom of speech.” This provision embodies “[o]ur profound national commitment to the free exchange of ideas.” Harte-Hanks Communications, Inc. v. Connaughton, 491 U. S. 657, 686 (1989). “[A]s a general matter, ‘the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.‘” Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 65 (1983) (quoting Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972)). However, this principle, like other First Amendment principles, is not absolute. Cf. Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 56 (1988).
Ending over a decade of turmoil, this Court in Miller set forth the governing three-part test for assessing whether material is obscene and thus unprotected by the First Amendment: “(a) [W]hether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Id., at 24 (citations omitted; emphasis added).
Miller adopted the use of “community standards” from Roth, which repudiated an earlier approach for assessing objectionable material. Beginning in the 19th century, English courts and some American courts allowed material to be evaluated from the perspective of particularly sensitive persons. See, e. g., Queen v. Hicklin [1868] L. R. 3 Q. B. 360; see also Roth, 354 U. S., at 488-489, and n. 25 (listing relevant cases). But in Roth, this Court held that this sensitive person standard was “unconstitutionally restrictive of
III
The Court of Appeals, however, concluded that this Court‘s prior community standards jurisprudence “has no applicability to the Internet and the Web” because “Web publishers are currently without the ability to control the geographic scope of the recipients of their communications.” 217 F. 3d, at 180. We therefore must decide whether this technological limitation renders COPA‘s reliance on community standards constitutionally infirm.6
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
B
Because juries would apply different standards across the country, and Web publishers currently lack the ability to limit access to their sites on a geographic basis, the Court of Appeals feared that COPA‘s “community standards” component would effectively force all speakers on the Web to abide by the “most puritan” community‘s standards. 217 F. 3d, at 175. And such a requirement, the Court of Appeals concluded, “imposes an overreaching burden and restriction on constitutionally protected speech.” Id., at 177.
In evaluating the constitutionality of the CDA, this Court expressed a similar concern over that statute‘s use of community standards to identify patently offensive material on the Internet. We noted that “the ‘community standards’ criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message.” Reno, 521 U. S., at 877-878. The Court of Appeals below relied heavily on this observation, stating that it was “not persuaded that the Supreme Court‘s concern with respect to the ‘community standards’ criterion has been sufficiently remedied by Congress in COPA.” 217 F. 3d, at 174.
The CDA‘s use of community standards to identify patently offensive material, however, was particularly problem-
COPA, by contrast, does not appear to suffer from the same flaw because it applies to significantly less material than did the CDA and defines the harmful-to-minors material restricted by the statute in a manner parallel to the Miller definition of obscenity. See supra, at 569-570, 574-575. To fall within the scope of COPA, works must not only “depic[t], describ[e], or represen[t], in a manner patently offensive with respect to minors,” particular sexual acts or parts of the anatomy,8 they must also be designed to appeal to the prurient interest of minors and, “taken as a whole, lac[k] serious
These additional two restrictions substantially limit the amount of material covered by the statute. Material appeals to the prurient interest, for instance, only if it is in some sense erotic. Cf. Erznoznik v. Jacksonville, 422 U. S. 205, 213, and n. 10 (1975).9 Of even more significance, however, is COPA‘s exclusion of material with serious value for minors. See
When the scope of an obscenity statute‘s coverage is sufficiently narrowed by a “serious value” prong and a “prurient interest” prong, we have held that requiring a speaker disseminating material to a national audience to observe varying community standards does not violate the First Amendment. In Hamling v. United States, 418 U. S. 87 (1974), this Court considered the constitutionality of applying community standards to the determination of whether material is obscene under
Like respondents here, the dissenting opinion in Hamling argued that it was unconstitutional for a federal statute to rely on community standards to regulate speech. Justice Brennan maintained that “[n]ational distributors choosing to send their products in interstate travels [would] be forced to cope with the community standards of every hamlet into which their goods [might] wander.” 418 U. S., at 144. As a result, he claimed that the inevitable result of this situation would be “debilitating self-censorship that abridges the First Amendment rights of the people.” Ibid.
This Court, however, rejected Justice Brennan‘s argument that the federal mail statute unconstitutionally compelled
Fifteen years later, Hamling‘s holding was reaffirmed in Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989). Sable addressed the constitutionality of
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
Respondents offer no other grounds upon which to distinguish this case from Hamling and Sable. While those cases involved obscenity rather than material that is harmful to minors, we have no reason to believe that the practical effect of varying community standards under COPA, given the statute‘s definition of “material that is harmful to minors,” is significantly greater than the practical effect of varying
D
Respondents argue that COPA is unconstitutionally overbroad because it will require Web publishers to shield some material behind age verification screens that could be displayed openly in many communities across the Nation if Web speakers were able to limit access to their sites on a geographic basis. Brief for Respondents 33-34. [T]o prevail in a facial challenge, however, it is not enough for a plaintiff to show some overbreadth. Reno, supra, at 896 (O‘CONNOR, J., concurring in judgment in part and dissenting in part). Rather, the overbreadth of a statute must not only be real, but substantial as well. Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973). At this stage of the litigation, respondents have failed to satisfy this burden, at least solely as a result of COPA‘s reliance on community standards.16 Because Congress has narrowed the range of con
IV
The scope of our decision today is quite limited. We hold only that COPA‘s reliance on community standards to identify material that is harmful to minors does not by itself render the statute substantially overbroad for purposes of the First Amendment. We do not express any view as to whether COPA suffers from substantial overbreadth for other reasons, whether the statute is unconstitutionally vague, or whether the District Court correctly concluded that the statute likely will not survive strict scrutiny analy
Petitioner does not ask us to vacate the preliminary injunction entered by the District Court, and in any event, we could not do so without addressing matters yet to be considered by the Court of Appeals. As a result, the Government remains enjoined from enforcing COPA absent further action by the Court of Appeals or the District Court.
For the foregoing reasons, we vacate the judgment of the Court of Appeals and remand the case for further proceedings.
It is so ordered.
JUSTICE O‘CONNOR, concurring in part and concurring in the judgment.
I agree with the plurality that even if obscenity on the Internet is defined in terms of local community standards, respondents have not shown that the Child Online Protection Act (COPA) is overbroad solely on the basis of the variation in the standards of different communities. See ante, at 577-579. Like JUSTICE BREYER, however, see post, at 589 (opinion concurring in part and concurring in judgment), I write separately to express my views on the constitutionality and desirability of adopting a national standard for obscenity for regulation of the Internet.
The plurality‘s opinion argues that, even under local community standards, the variation between the most and least restrictive communities is not so great with respect to the narrow category of speech covered by COPA as to, alone, render the statute substantially overbroad. See ante, at 577-579. I agree, given respondents’ failure to provide examples of materials that lack literary, artistic, political, and scientific value for minors, which would nonetheless result in variation among communities judging the other elements of the test. Respondents’ examples of material for which com
But respondents’ failure to prove substantial overbreadth on a facial challenge in this case still leaves open the possibility that the use of local community standards will cause problems for regulation of obscenity on the Internet, for adults as well as children, in future cases. In an as-applied challenge, for instance, individual litigants may still dispute that the standards of a community more restrictive than theirs should apply to them. And in future facial challenges to regulation of obscenity on the Internet, litigants may make a more convincing case for substantial overbreadth. Where adult speech is concerned, for instance, there may in fact be a greater degree of disagreement about what is patently offensive or appeals to the prurient interest.
Nor do I think such future cases can be resolved by application of the approach we took in Hamling v. United States, 418 U. S. 87 (1974), and Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989). I agree with JUSTICE KENNEDY that, given Internet speakers’ inability to control the geographic location of their audience, expecting them to bear the burden of controlling the recipients of their speech, as we did in Hamling and Sable, may be entirely too much to ask, and would potentially suppress an inordinate amount of expression. See post, at 594-596 (opinion concurring in judgment); contra, ante, at 580-584. For these reasons, adoption of a national standard is necessary in my view for any reasonable regulation of Internet obscenity.
Our precedents do not forbid adoption of a national standard. Local community-based standards originated with
Later, in Jenkins v. Georgia, 418 U. S. 153, 157 (1974), we confirmed that Miller approved the use of [instructions based on local standards]; it did not mandate their use. The instructions we approved in that case charged the jury with applying community standards without designating any particular community. In holding that a State may define the obscenity standard by stating the Miller standard without further specification, 418 U. S., at 157, Jenkins left open the possibility that jurors would apply any number of standards, including a national standard, in evaluating material‘s obscenity.
To be sure, the Court in Miller also stated that a national standard might be unascertainable, 413 U.S., at 31, and [un]realistic, id., at 32. But where speech on the Internet is concerned, I do not share that skepticism. It is true that our Nation is diverse, but many local communities encompass a similar diversity. For instance, in Miller itself, the jury was instructed to consider the standards of the entire State of California, a large (today, it has a population of greater than 33 million people, see U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 23 (120th
While I would prefer that the Court resolve the issue before it by explicitly adopting a national standard for defining obscenity on the Internet, given respondents’ failure to demonstrate substantial overbreadth due solely to the variation between local communities, I join Parts I, II, III-B, and IV of JUSTICE THOMAS’ opinion and the judgment.
JUSTICE BREYER, concurring in part and concurring in the judgment.
I write separately because I believe that Congress intended the statutory word community to refer to the Nation‘s adult community taken as a whole, not to geographically separate local areas. The statutory language does not explicitly describe the specific community to which it refers. It says only that the average person, applying contemporary community standards, must find that the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest....
The Committee recognizes that the applicability of community standards in the context of the Web is controversial, but understands it as an ‘adult’ standard, rather than a ‘geographic’ standard, and one that is reasonably constant among adults in America with respect to what is suitable for minors. H. R. Rep. No. 105-775, p. 28 (1998) (emphasis added).
This statement, reflecting what apparently was a uniform view within Congress, makes clear that the standard, and the relevant community, is national and adult.
At the same time, this view of the statute avoids the need to examine the serious First Amendment problem that would otherwise exist. See Almendarez-Torres v. United States, 523 U. S. 224, 237-238 (1998); Ashwander v. TVA, 297 U. S. 288, 348 (1936) (Brandeis, J., concurring) (When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided). To read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler‘s Internet veto affecting the rest of the Nation. The technical difficulties associated with efforts to confine Internet material to particular geographic areas make the problem particularly serious. See American Civil Liberties Union v. Reno, 217 F. 3d 162, 175-176 (CA3 2000). And these special difficulties also potentially weaken the authority of prior cases in which they were not present. Cf. Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989); Hamling v. United States, 418 U. S. 87 (1974). A nationally uniform adult-based standard—which Congress, in its Committee Report, said that it intended—significantly alleviates any special need for First Amendment protection. Of course some regional variation may remain, but any such variations are inherent in a system that draws jurors from a local geographic area and they are not, from the perspective of the First Amendment, problematic. See id., at 105-106.
For these reasons I do not join Part III of JUSTICE THOMAS’ opinion, although I agree with much of the reasoning set forth in Parts III-B and III-D, insofar as it explains the conclusion to which I just referred, namely, that variation reflecting application of the same national standard by different local juries does not violate the First Amendment.
JUSTICE KENNEDY, with whom JUSTICE SOUTER and JUSTICE GINSBURG join, concurring in the judgment.
I
If a law restricts substantially more speech than is justified, it may be subject to a facial challenge. Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973). There is a very real likelihood that the Child Online Protection Act (COPA or Act) is overbroad and cannot survive such a challenge. Indeed, content-based regulations like this one are presumptively invalid abridgments of the freedom of speech. See R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992). Yet COPA is a major federal statute, enacted in the wake of our previous determination that its predecessor violated the First Amendment. See Reno v. American Civil Liberties Union, 521 U. S. 844 (1997). Congress and the President were aware of our decision, and we should assume that in seeking to comply with it they have given careful consideration to the constitutionality of the new enactment. For these reasons, even if this facial challenge appears to have consider
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,
This single, broad proposition, stated and applied at such a high level of generality, cannot suffice to sustain the Court of Appeals’ ruling. To observe only that community standards vary across the country is to ignore the antecedent question: community standards as to what? Whether the national variation in community standards produces overbreadth requiring invalidation of COPA, see Broadrick, supra, depends on the breadth of COPA‘s coverage and on what community standards are being invoked. Only by identifying the universe of speech burdened by COPA is it possible to discern whether national variation in community standards renders the speech restriction overbroad. In short, the ground on which the Court of Appeals relied cannot be separated from those that it overlooked.
The statute, for instance, applies only to communication for commercial purposes.
The Court of Appeals found that COPA in effect subjects every Internet speaker to the standards of the most puritanical community in the United States. This concern is a real one, but it alone cannot suffice to invalidate COPA without careful examination of the speech and the speakers within the ambit of the Act. For this reason, I join the judgment of the Court vacating the opinion of the Court of Appeals and remanding for consideration of the statute as a whole. Unlike JUSTICE THOMAS, however, I would not assume that the Act is narrow enough to render the national variation in community standards unproblematic. Indeed, if the District Court correctly construed the statute across its other dimensions, then the variation in community standards might well justify enjoining enforcement of the Act. I would leave that question to the Court of Appeals in the first instance.
II
COPA provides a three-part conjunctive definition of material that is harmful to minors. The first part of the definition is that the average person, applying contemporary community standards, would find, 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.
The quoted sentence from Reno was not casual dicta; rather, it was one rationale for the holding of the case. In Reno, the Court found [t]he breadth of [COPA‘s predecessor]... wholly unprecedented, id., at 877, in part because of variation in community standards. The Court also relied on that variation to assess the strength of the Government‘s interest, which it found not equally strong throughout the coverage of this broad statute. Id., at 878. The Court illustrated the point with an example: A parent who e-mailed birth control information to his 17-year-old child at college might violate the Act, even though neither he, his child, nor anyone in their home community found the material ‘indecent’ or ‘patently offensive,’ if the college town‘s community thought otherwise. Ibid. Variation in community standards rendered the statute broader than the scope of the Government‘s own expressed compelling interest.
It is true, as JUSTICE THOMAS points out, ante, at 580-583, that requiring a speaker addressing a national audience to meet varying community standards does not always violate the First Amendment. See Hamling v. United States, 418 U. S. 87, 106 (1974) (obscene mailings); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 125-126 (1989) (obscene phone messages). These cases, however, are of limited utility in analyzing the one before us, because each mode of expression has its own unique characteristics, and each must be assessed for First Amendment purposes by standards suited to it. Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 557 (1975). Indeed, when Congress purports to abridge the freedom of a new medium, we must be particularly attentive to its distinct attributes, for differences in the characteristics of new media justify differences in the First Amendment standards applied to them. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386 (1969). The economics and the technology of each medium affect both the burden of a speech restriction and the Government‘s interest in maintaining it.
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
JUSTICE BREYER would alleviate the problem of local variation in community standards by construing the statute to comprehend the Nation‘s adult community taken as a whole, rather than the local community from which the jury is drawn. Ante, at 589 (opinion concurring in part and concurring in judgment); see also ante, at 586-589 (O‘CONNOR, J., concurring in part and concurring in judgment). There is one statement in a House Committee Report to this effect, reflecting, JUSTICE BREYER writes, what apparently was a uniform view within Congress. Ante, at 590. The statement, perhaps, reflects the view of a majority of one House committee, but there is no reason to believe that it reflects the view of a majority of the House of Representatives, let alone the uniform view within Congress. Ibid.
In any event, we need not decide whether the statute invokes local or national community standards to conclude that vacatur and remand are in order. If the statute does incorporate some concept of national community standards, the actual standard applied is bound to vary by community nevertheless, as the Attorney General concedes. See ante, at 577 (principal opinion of THOMAS, J.); Brief for Petitioner 39.
III
The question that remains is whether this observation by itself suffices to enjoin the Act. See ante, at 585. I agree with the Court that it does not. Ibid. We cannot know whether variation in community standards renders the Act substantially overbroad without first assessing the extent of the speech covered and the variations in community standards with respect to that speech.
First, the breadth of the Act itself will dictate the degree of overbreadth caused by varying community standards. Indeed, JUSTICE THOMAS sees this point and uses it in an attempt to distinguish the Communications Decency Act of 1996, which was at issue in Reno. See ante, at 577-578 (The CDA‘s use of community standards to identify patently
Second, community standards may have different degrees of variation depending on the question posed to the community. Defining the scope of the Act, therefore, is not relevant merely to the absolute number of Web pages covered, as JUSTICE STEVENS suggests, post, at 609-610 (dissenting opinion); it is also relevant to the proportion of overbreadth, judged in relation to the statute‘s plainly legitimate sweep, Broadrick, 413 U. S., at 615. Because this issue was virtually ignored by the parties and the amicus in the Court of Appeals, 217 F. 3d, at 173, we have no information on the question. Instead, speculation meets speculation. On the one hand, the Court of Appeals found no evidence to suggest that adults everywhere in America would share the same standards for determining what is harmful to minors. Id., at 178. On the other hand, JUSTICE THOMAS finds no reason to believe that the practical effect of varying community standards under COPA . . . is significantly greater than the practical effect of varying community standards under federal obscenity statutes. Ante, at 583-584. When a key issue has no evidence on one side and no reason to be
The District Court attempted a comprehensive analysis of COPA and its various dimensions of potential overbreadth. The Court of Appeals, however, believed that its own analysis of contemporary community standards obviated all other concerns. It dismissed the District Court‘s analysis in a footnote:
[W]e do not find it necessary to address the District Court‘s analysis of the definition of ‘commercial purposes‘; whether the breadth of the forms of content covered by COPA could have been more narrowly tailored; whether the affirmative defenses impose too great a burden on Web publishers or whether those affirmative defenses should have been included as elements of the crime itself; whether COPA‘s inclusion of criminal as well as civil penalties was excessive; whether COPA is designed to include communications made in chat rooms, discussion groups and links to other Web sites; whether the government is entitled to so restrict communications when children will continue to be able to access foreign Web sites and other sources of material that is harmful to them; what taken ‘as a whole’ should mean in the context of the Web and the Internet; or whether the statute‘s failure to distinguish between material that is harmful to a six year old versus a sixteen year old is problematic. 217 F. 3d, at 174, n. 19.
As I have explained, however, any problem caused by variation in community standards cannot be evaluated in a vacuum. In order to discern whether the variation creates substantial overbreadth, it is necessary to know what speech COPA regulates and what community standards it invokes.
It is crucial, for example, for know how limiting is the Act‘s limitation to communication for commercial purposes.
the person who makes a communication or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person‘s trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person‘s sole or principal business or source of income).
47 U. S. C. §231(e)(2)(B) .
So COPA is narrower across this dimension than its predecessor; but how much narrower is a matter of debate. In the District Court, the Attorney General contended that the Act applied only to professional panderers, but the court rejected that contention, finding nothing in the text of the COPA... that limits its applicability to so-called commercial pornographers only. 31 F. Supp. 2d, at 480. Indeed, the plain text of the Act does not limit its scope to pornography that is offered for sale; it seems to apply even to speech provided for free, so long as the speaker merely hopes to profit as an indirect result. The statute might be susceptible of some limiting construction here, but again the Court of Appeals did not address itself to this question. The answer affects the breadth of the Act and hence the significance of any variation in community standards.
Likewise, it is essential to answer the vexing question of what it means to evaluate Internet material as a whole,
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.
IV
In summary, the breadth of the Act depends on the issues discussed above, and the significance of varying community standards depends, in turn, on the breadth of the Act. The Court of Appeals was correct to focus on the national variation in community standards, which can constitute a substantial burden on Internet communication; and its ultimate conclusion may prove correct. There may be grave doubts that COPA is consistent with the First Amendment; but we should not make that determination with so many questions unanswered. The Court of Appeals should undertake a comprehensive analysis in the first instance.
JUSTICE STEVENS, dissenting.
Appeals to prurient interests are commonplace on the Internet, as in older media. Many of those appeals lack serious value for minors as well as adults. Some are offensive to certain viewers but welcomed by others. For decades, our cases have recognized that the standards for judging their acceptability vary from viewer to viewer and from community to community. Those cases developed the requirement that communications should be protected if they do not violate contemporary community standards. In its original
The Child Online Protection Act (COPA) restricts access by adults as well as children to materials that are harmful to minors.
We have recognized that the State has a compelling interest in protecting minors from harmful speech, Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989), and on one occasion we upheld a restriction on indecent speech that was made available to the general public, because it could be accessed by minors, FCC v. Pacifica Foundation, 438 U. S. 726 (1978). Our decision in that case was influ
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
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
In his attempt to fit this case within the framework of Hamling and Sable, JUSTICE THOMAS overlooks the more obvious comparison—namely, the CDA invalidated in ACLU I. When we confronted a similar attempt by Congress to limit speech on the Internet based on community standards, we explained that because Web publishers cannot control who accesses their Web sites, using community standards to regulate speech on the Internet creates an overbreadth problem. [T]he ‘community standards’ criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message. 521 U. S., at 877-878. Although our holding in ACLU I did not turn on that factor alone, we did not adopt the position relied on by JUSTICE THOMAS—that applying community standards to the Internet is constitutional based on Hamling and
JUSTICE THOMAS points to several other provisions in COPA to argue that any overbreadth will be rendered insubstantial by the rest of the statute. Ante, at 578-579. These provisions afford little reassurance, however, as they only marginally limit the sweep of the statute. It is true that, in addition to COPA‘s appeals to the prurient interest of minors prong, the material must be patently offensive with respect to minors and it must lack serious literary, artistic, political, or scientific value for minors.
Petitioner‘s argument that the serious value prong minimizes the statute‘s overbreadth is also unpersuasive. Although we have recognized that the serious value determination in obscenity cases should be based on an objective, reasonable person standard, Pope v. Illinois, 481 U. S. 497, 500 (1987), this criterion is inadequate to cure COPA‘s overbreadth because COPA adds an important qualifying phrase to the standard Miller v. California, 413 U. S. 15 (1973), formulation of the serious value prong. The question for the jury is not whether a reasonable person would conclude that the materials have serious value; instead, the jury must determine whether the materials have serious value for minors. Congress reasonably concluded that a substantial number of works, which have serious value for adults, do not have serious value for minors. Cf. ACLU I, 521 U. S., at 896 (O‘CONNOR, J., concurring in judgment in part and dissenting in part) (While discussions about prison rape or nude art ... may have some redeeming educational value for adults, they do not necessarily have any such value for minors). Thus, even though the serious value prong limits the total amount of speech covered by the statute, it remains true that there is a significant amount of protected speech within the category of materials that have no serious value for minors. That speech is effectively prohibited whenever
JUSTICE KENNEDY makes a similar misstep, ante, at 592 (opinion concurring in judgment), when he ties the overbreadth inquiry to questions about the scope of the other provisions of the statute. According to his view, we cannot determine whether the statute is substantially overbroad based on its use of community standards without first determining how much of the speech on the Internet is saved by the other restrictions in the statute. But this represents a fundamental misconception of our overbreadth doctrine. As Justice White explained in Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973), the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute‘s plainly legitimate sweep. (Emphasis added.) Regardless of how the Court of Appeals interprets the commercial purposes or as a whole provisions on remand, the question we must answer is whether the statute restricts a substantial amount of protected speech relative to its legitimate sweep by virtue of the fact that it uses community standards.6 These other provisions may reduce the absolute number of Web pages covered by the statute, but even the narrowest version of the statute abridges a substantial amount of protected speech that many communities would not find harmful to minors. Because Web speakers cannot limit access to those specific communities, the statute is substantially overbroad regardless of how its other provisions are construed.
JUSTICE THOMAS acknowledges, and petitioner concedes, that juries across the country will apply different standards and reach different conclusions about whether particular works are harmful to minors. See ante, at 577; Brief for Petitioner 3-4, 39. We recognized as much in ACLU I when we noted that discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalog of the Carnegie Library might offend some community‘s standards and not others, 521 U. S., at 878. In fact, our own division on that question provides further evidence of the range of attitudes about such material. See, e. g., id., at 896 (O‘CONNOR, J., concurring in judg
Even if most, if not all, of these works would be excluded from COPA‘s coverage by the serious value prong, they illustrate the diversity of public opinion on the underlying themes depicted. This diversity of views surely extends to whether materials with the same themes, that do not have serious value for minors, appeal to their prurient interests and are patently offensive. There is no reason to think the differences between communities’ standards will disappear once the image or description is no longer within the context of a work that has serious value for minors.8 Because communities differ widely in their attitudes toward sex, particularly when minors are concerned, the Court of Appeals was correct to conclude that, regardless of how COPA‘s other provisions are construed, applying community standards to the Internet will restrict a substantial amount of protected speech that would not be considered harmful to minors in many communities.
Whether that consequence is appropriate depends, of course, on the content of the message. The kind of hardcore pornography involved in Hamling, which I assume would be obscene under any community‘s standard, does not belong on the Internet. Perhaps teasers that serve no function except to invite viewers to examine hardcore materials, or the hidden terms written into a Web site‘s metatags in order to dupe unwitting Web surfers into visiting pornographic sites, deserve the same fate. But COPA ex
In the context of most other media, using community standards to differentiate between permissible and impermissible speech has two virtues. As mentioned above, community standards originally served as a shield to protect speakers from the least tolerant members of society. By aggregating values at the community level, the Miller test eliminated the outliers at both ends of the spectrum and provided some predictability as to what constitutes obscene speech. But community standards also serve as a shield to protect audience members, by allowing people to self-sort based on their preferences. Those who abhor and those who tolerate sexually explicit speech can seek out like-minded people and settle in communities that share their views on what is acceptable for themselves and their children. This sorting mechanism, however, does not exist in cyberspace; the audience cannot self-segregate. As a result, in the context of the Internet this shield also becomes a sword, because the community that wishes to live without certain material rids not only itself, but the entire Internet, of the offending speech.
In sum, I would affirm the judgment of the Court of Appeals and therefore respectfully dissent.