Lead Opinion
delivered the opinion of the Court.
This case presents a challenge to a statute enacted by Congress to protect minors from exposure to sexually explicit materials on the Internet, the Child Online Protection Act
In enacting COPA, Congress gave consideration to our earlier decisions on this subject, in particular the decision in Reno v. American Civil Liberties Union,
Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people. To guard against that threat the Constitution demands that content-based restrictions on speech be presumed invalid, R. A. V. v. St Paul,
This case comes to the Court on certiorari review of an appeal from the decision of the District Court granting a preliminary injunction. The Court of Appeals reviewed the decision of the District Court for abuse of discretion. Under that standard, the Court of Appeals was correct to conclude that the District Court did not abuse its discretion in granting the preliminary injunction. The Government has failed, at this point, to rebut the plaintiffs’ contention that there are plausible, less restrictive alternatives to the statute. Sub
I
A
COPA is the second attempt by Congress to make the Internet safe for minors by criminalizing certain Internet speech. The first attempt was the Communications Decency Act of 1996, Pub. L. 104-104, § 502, 110 Stat. 133, 47 U. S. C. § 223 (1994 ed., Supp. II). The Court held the CDA unconstitutional because it was not narrowly tailored to serve a compelling governmental interest and because less restrictive alternatives were available. Reno, supra.
In response to the Court’s decision in Reno, Congress passed COPA. COPA imposes criminal penalties of a $50,000 fine and six months in prison for the knowing posting, for “commercial purposes,” of World Wide Web content that is “harmful to minors.” § 231(a)(1). Material that is “harmful to minors” is defined 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*662 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.” § 231(e)(6).
“Minor[s]” are defined as “any person under 17 years of age.” §231(e)(7). A person acts for “commercial purposes only if such person is engaged in the business of making such communications.” “Engaged in the business,” in turn,
“means that 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).” § 231(e)(2).
While the statute labels all speech that falls within these definitions as criminal speech, it also provides an affirmative defense to those who employ specified means to prevent minors from gaining access to the prohibited materials on their Web site. A person may escape conviction under the statute by demonstrating that he
“has restricted access by minors to material that is harmful to minors—
“(A) by requiring 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).
B
Respondents, Internet content providers and others concerned with protecting the freedom of speech, filed suit in the United States District Court for the Eastern District of Pennsylvania. They sought a preliminary injunction against enforcement of the statute. After considering testimony from witnesses presented by both respondents and the Government, the District Court issued an order granting the preliminary injunction. The court first noted that the statute would place a burden on some protected speech. American Civil Liberties Union v. Reno,
II
A
“This Court, like other appellate courts, has always applied the abuse of discretion standard on review of a preliminary injunction.” Walters v. National Assn. of Radiation Survivors,
The District Court, in deciding to grant the preliminary injunction, concentrated primarily on the argument that there are plausible, less restrictive alternatives to COPA. A statute that “effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another ... is unacceptable if less restrictive alternatives would be at léast as effective in achieving the legitimate purpose that the statute was enacted to serve.” Reno,
In deciding whether to grant a preliminary injunction, a district court must consider whether the plaintiffs have demonstrated that they are likely to prevail on the merits. See, e. g., Doran v. Salem Inn, Inc.,
' The primary alternative considered by the District Court was blocking and filtering software. Blocking and filtering
Filters are less restrictive than COPA. They impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Under a filtering regime, adults without children may gain access to speech they have a right to see without having to identify themselves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Above all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. All of these things are true, moreover, regardless of how broadly or narrowly the definitions in COPA are construed.
Filters also may well be more effective than COPA. First, a filter can prevent minors from seeing all pornography, not just pornography posted to the Web from America. The District Court noted in its factfindings that one witness estimated that 40% of harmful-to-minors content comes from overseas. Id., at 484. COPA does not prevent minors from having access to those foreign harmful materials. That alone makes it possible that filtering software might be more effective in serving Congress’ goals. Effectiveness is likely to diminish even further if COPA is upheld, because the providers of the materials that would be covered by the statute simply can move their operations overseas. It is not an answer to say that COPA reaches some amount of materials that are harmful to minors; the question is whether it would reach more of them than less restrictive alternatives. In
That filtering software may well be more effective than COPA is confirmed by the findings of the Commission on Child Online Protection, a blue-ribbon Commission created by Congress in COPA itself. Congress directed the Commission to evaluate the relative merits of different means of restricting minors’ ability to gain access to harmful materials on the Internet. Note following 47 U. S. C. § 231. It unambiguously found, that filters are more effective than age-verification requirements. See Commission on Child Online Protection (COPA), Report to Congress 19-21, 23-25, 27 (Oct. 20, 2000) (assigning a score for “Effectiveness” of 7.4 for server-based filters and 6.5 for client-based filters, as compared to 5.9 for independent adult-IB verification, and 5.5 for credit card verification). Thus, not only has the Government failed to eárry its burden of showing the District Court that the proposed alternative is less effective, but also a Government Commission appointed to consider the question has concluded just the opposite. That finding supports our conclusion that the District Court did not abuse its discretion in enjoining the statute.
Filtering software, of course, is not a perfect solution to the problem of children gaining access to harmful-to-minors materials. It may block some materials that are not harmful to minors and fail to catch some that are. See 31F. Supp. 2d, at 492. Whatever the deficiencies of filters, however, the Government failed to introduce specific evidence proving that existing technologies are less effective than the restrictions in COPA. The District Court made a specific factfind-ing that “[n]o evidence was presented to the Court as to the
One argument to the contrary is worth mentioning — the argument that filtering software is not an available alternative because Congress may not require it to be used. That argument carries little weight, because Congress undoubtedly may act to encourage the use of filters. We have held that Congress can give strong incentives to schools and libraries to use them. United States v. American Library Assn., Inc.,
The closest precedent on the general point is our decision in Playboy Entertainment Group. Playboy Entertainment Group, like this case, involved a content-based restriction designed to protect minors from viewing harmful materials. The choice was between a blanket speech restriction and a more specific technological solution that was available to parents who chose to implement it.
B
There are also important practical reasons to let the injunction stand pending a full trial on the merits. First, the potential harms from reversing the injunction outweigh those of leaving it in place by mistake. Where a prosecution is a likely possibility, yet only an affirmative defense is available, speakers may self-censor rather than risk the perils of
Second, there are substantial factual disputes remaining in the case. As mentioned above, there is a serious gap in the evidence as to the effectiveness of filtering software. See supra, at 668. For us to assume, without proof, that filters are less effective than COPA would usurp the District Court’s factfinding role. By allowing the preliminary injunction to stand and remanding for trial, we require the Government to shoulder its full constitutional burden of proof respecting the less restrictive alternative argument, rather than excuse it from doing so.
Third, and on a related point, the factual record does not reflect current technological reality — a serious flaw in any case involving the Internet. The technology of the Internet evolves at a rapid pace. Yet the factfindings of the District Court were entered in February 1999, over five years ago. Since then, certain facts about the Internet are known to have changed. Compare, e. g.,
Delay between the time that a district court makes fact-findings and the time that a case reaches this Court is inevitable, with the necessary consequence that there will be some discrepancy between the facts as found and the facts at the time the appellate court takes up the question. See, e. g., Benjamin, Stepping into the Same River Twice: Rapidly Changing Facts and the Appellate Process, 78 Texas L. Rev. 269, 290-296 (1999) (noting the problems presented for appellate courts by changing facts in the context of cases involving the Internet, and giving as a specific example the Court’s decision in Reno,
Remand will also permit the District Court to take account of a changed legal landscape. Since the District Court made its factfindings, Congress has passed at least two further statutes that might qualify as less restrictive alternatives to COPA — a prohibition on misleading domain names, and a statute creating a minors-safe “Dot Kids” domain. See supra, at 663. Remanding for trial will allow the District Court to take into account those additional potential alternatives.
On a final point, it is important to note that this opinion does not hold that Congress is incapable of enacting any regulation of the Internet designed to prevent minors from gaining access to harmful materials. The parties, because of the conclusion of the Court of Appeals that the statute’s definitions rendered it unconstitutional, did not devote their atten
* * *
On this record, the Government has not shown that the less restrictive alternatives proposed by respondents should be disregarded. Those alternatives, indeed, may be more effective than the provisions of COPA. The District Court did not abuse its discretion when it entered the preliminary injunction. The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Concurrence Opinion
with whom Justice Ginsburg joins, concurring.
When it first reviewed the constitutionality of the Child Online Protection Act (COPA), the Court of Appeals held that the statute’s use of “contemporary community standards” to identify materials that are “harmful to minors” was a serious, and likely fatal, defect. American Civil Liberties Union v. Reno,
But COPA’s use of community standards is not the statute's only constitutional defect. Today’s decision points to another: that, as far as the record reveals, encouraging deployment of user-based controls, such as filtering software, would serve Congress’ interest in protecting minors from sexually explicit Internet materials as well or better than attempting to regulate the vast content of the World Wide Web at its source, and at a far less significant cost to First Amendment values.
In registering my agreement with the Court’s less-restrictive-means analysis, I wish to underscore just how restrictive COPA is. COPA is a content-based restraint on the dissemination of constitutionally protected speech. It enforces its prohibitions by way of the criminal law, threatening noncompliant Web speakers with a fine of as much as $50,000, and a term of imprisonment as long as six months, for each offense. 47 U. S. C. § 231(a). Speakers who “intentionally” violate COPA are punishable by a fine of up to $50,000 for each day of the violation. Ibid. And because implementation of the various adult-verification mechanisms described in the statute provides only an affirmative defense, § 231(c)(1), even full compliance with COPA cannot guarantee freedom from prosecution. Speakers who dutifully place their content behind age screens may nevertheless find themselves in court, forced to prove the lawfulness of their speech on pain of criminal conviction. Cf. Ashcroft v. Free Speech Coalition,
Criminal prosecutions are, in my view, an inappropriate means to regulate the universe of materials classified as “ob
COPA’s criminal penalties are, moreover, strong medicine for the ill that the statute seeks to remedy. To be sure, our cases have recognized a compelling interest in protecting minors from exposure to sexually explicit materials. See, e. g., Ginsberg v. New York,
In view of the gravity of the burdens COPA imposes on Web speech, the possibility that Congress might have accomplished the goal of protecting children from harmful materials by other, less drastic means is a matter to be considered • with special care. With that observation, I join the opinion of the Court.
Dissenting Opinion
dissenting.
I agree with Justice Breyer’s conclusion that the Child Online Protection Act (COPA), 47 U. S. C. §231, is constitutional. See post, at 689 (dissenting opinion). Both the Court and Justice Breyer err, however, in subjecting COPA to strict scrutiny. Nothing in the First Amendment entitles the type of material covered by COPA to that exacting standard of review. “We have recognized that commercial entities which engage in ‘the sordid business of pandering’ by ‘deliberately emphasizing] the sexually provocative aspects of [their nonobscene products], in order to catch the salaciously disposed,’ engage in constitutionally unprotected behavior.” United States v. Playboy Entertainment Group, Inc.,
There is no doubt that the commercial pornography covered by COPA fits this description. The statute applies only to a person who, “as a regular course of such person’s trade or business, with the objective of earning a profit,” 47 U. S. C. § 231(e)(2)(B), and “with knowledge of the character of the material,” § 231(a)(1), communicates material that depicts certain specified sexual acts and that “is designed to appeal to, or is designed to pander to, the prurient interest,” § 231(e)(6)(A). Since this business could, consistent with the First Amendment, be banned entirely, COPA’s lesser restrictions raise no constitutional concern.
Dissenting Opinion
with whom The Chief Justice and Justice O’Connor join, dissenting.
The Child Online Protection Act (Act), 47 U. S. C. §231, seeks to protect children from exposure to commercial pornography placed on the Internet. It does so by requiring
Nonetheless, my examination of (1) the burdens the Act imposes on protected expression, (2) the Act’s ability to further a compelling interest, and (3) the proposed “less restrictive alternatives” convinces me that the Court is wrong. I cannot accept its conclusion that Congress could have accomplished its statutory objective — protecting children from commercial pornography on the Internet — in other, less restrictive ways.
I
Although the Court rests its conclusion upon the existence of less restrictive alternatives, I must first examine the burdens that the Act imposes upon protected speech. That is because the term “less restrictive alternative” is a comparative term. An “alternative” is “less restrictive” only if it will work less First Amendment harm than the statute itself, while at the same time similarly furthering the “compelling” interest that prompted Congress to enact the statute. Unlike the majority, I do not see how it is possible to make this comparative determination without examining both the
A
The Act’s definitions limit the material it regulates to material that does not enjoy First Amendment protection, namely, legally obscene material, and very little more. A comparison of this Court’s definition of unprotected, “legally obscene,” material with the Act’s definitions makes this clear. Material is legally obscene if
“(a) . . . ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest. . .; (b).. . the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c). . . the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller v. California,413 U. S. 15 , 24 (1973).
The present statute defines the material that it regulates as material that meets all of the following criteria:
“(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, [that the material] is designed to appeal to, or is designed to pander to, the prurient interest;
“(B) [the material) 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) [the material] taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.” 47 U. S. C. § 231(e)(6) (emphasis added).
The only significant difference between the present statute and Miller’s definition consists of the addition of the words “with respect to minors,” § 231(e)(6)(A), and “for minors,” § 231(e)(6)(C). But the addition of these words to a definition that would otherwise cover only obscenity expands the statute’s scope only slightly. That is because the material in question (while potentially harmful to young children) must, first, appeal to the “prurient interest” of, i. e., seek a sexual response from, some group of adolescents or postado-lescents (since young children normally do not so respond). And material that appeals to the “prurient interestfs]” of some group of adolescents or postadolescents, will almost inevitably appeal to the “prurient interest^]” of some group of adults as well.
The “lack of serious value” requirement narrows the statute yet further — despite the presence of the qualification “for minors.” That is because one cannot easily imagine material that has serious literary, artistic, political, or scientific value for a significant group of adults, but lacks such value for any significant group of minors. Thus, the statute, read
These limitations on the statute’s scope answer many of the concerns raised by those who attack its constitutionality. Respondents fear prosecution for the Internet posting of material that does not fall within the statute’s ambit as limited by the “prurient interest” and “no serious value” requirements; for example: an essay about a young man’s experience with masturbation and sexual shame; “a serious discussion about birth control practices, homosexuality,... or the consequences of prison rape”; an account by a 15-year-old, written for therapeutic purposes, of being raped when she was 13; a guide to self-examination for testicular cancer; a graphic illustration of how to use a condom; or any of the other postings of modern literary or artistic works or discussions of sexual identity, homosexuality, sexually transmitted diseases, sex education, or safe sex, let alone Aldous Huxley’s Brave New World, J. D. Salinger’s Catcher in the Rye, or, as the complaint would have it, “Ken Starr’s report on the Clinton-Lewinsky scandal.” See G. Dillard, Shame on Me, Lodging 609-612; Reno v. American Civil Liberties Union,
These materials are not both (1) “designed to appeal to, or ... pander to, the prurient interest” of significant groups of minors and (2) lacking in “serious literary, artistic, political, or scientific value” for significant groups of minors. §§ 231(e)(6)(A), (C). Thus, they fall outside the statute’s definition of the material that it restricts, a fact the Government acknowledged at oral argument. Tr. of Oral Arg. 50-51.
I have found nothing elsewhere in the statute’s language that broadens its scope. Other qualifying phrases, such as “taking the material as a whole,” §§ 231(e)(6)(A), (C), and “for commercial purposes,” § 231(a)(1), limit the statute’s scope still more, requiring, for example, that individual images be considered in context. See Roth v. United States,
B
The Act does not censor the material it covers. Rather, it requires providers of the “harmful to minors” material to restrict minors’ access to it by verifying age. They can do so by inserting screens that verify age using a credit card, adult personal identification number, or other similar technology. See § 231(c)(1). In this way, the Act requires creation of an Internet screen that minors, but not adults, will find difficult to bypass.
I recognize that the screening requirement imposes some burden on adults who seek access to the regulated material, as well as on its providers. The cost is, in part, monetary. The parties agreed that a Web site could store card numbers or passwords at between 15 and 20 cents per number. American Civil Liberties Union v. Reno,
In addition to the monetary cost, and despite strict requirements that identifying information be kept confidential, see 47 U. S. C. §§ 231(d)(1), 501, the identification require
In sum, the Act at most imposes a modest additional burden on adult access to legally obscene material, perhaps imposing a similar burden on access to some protected borderline obscene material as well.
II
I turn next to the question of “compelling interest,” that of protecting minors from exposure to commercial pornography. No one denies that such an interest is “compelling.” See Denver Area Ed. Telecommunications Consortium, Inc.,
The majority argues that it is not, because of the existence of “blocking and filtering software.” Ante, at 666-670. The majority refers to the presence of that software as. a
But such reasoning has no place here. Conceptually speaking, the presence of filtering software is not an alternative legislative approach to the problem of protecting children from exposure to commercial pornography. Rather, it is part of the status quo, i. e., the backdrop against which Congress enacted the present statute. It is always true, by definition, that the status quo is less restrictive than a new regulatory law. It is always less restrictive to do nothing than to do something. But “doing nothing” does not address the problem Congress sought to address — namely, that, despite the availability of filtering software, children were still being exposed to harmful material on the Internet.
Thus, the relevant constitutional question is not the question the Court asks: Would it be less restrictive to do nothing? Of course it would be. Rather, the relevant question posits a comparison of (a) a status quo that includes filtering software with (b) a change in that status quo that adds to it an age-verification screen requirement. Given the existence of filtering software, does the problem Congress identified remain significant? Does the Act help to address it? • These are questions about the relation of the Act to the compelling interest. Does the Act, compared to the status quo, significantly advance the ball? (An affirmative answer to these questions will not justify “[a]ny restriction on speech,” as the Court claims, ante, at 666, for a final answer in respect to constitutionality must take account of burdens and alternatives as well.)
The answers to these intermediate questions are clear: Filtering software, as presently available, does not solve the “child protection” problem. It suffers from four serious in
Second, filtering software costs money. Not every family has the $40 or so necessary to install it. See
Third, filtering software depends upon parents willing to decide where their children will surf .the Web and able to enforce that decision. As to millions of American families, that is not a reasonable possibility. More than 28 million school age children have both parents or their sole parent in the work force, at least 5 million children are left alone at home without supervision each week, and many of those children will spend afternoons and evenings with friends who may well have access to computers and more lenient parents. See United States v. Playboy Entertainment Group, Inc.,
Fourth, software blocking lacks precision, with the result that those who wish to use it to screen out pornography find that it blocks a great deal of material that is valuable. As Justice Stevens pointed out, “the software’s reliance on words to identify undesirable sites necessarily results in the blocking of thousands of pages, that contain content that is
Nothing in the District Court record suggests the contrary. No respondent has offered to produce evidence at trial to the contrary. No party has suggested, for example, that technology allowing filters to interpret and discern among images has suddenly become, or is about to become, widely available. Indeed, the Court concedes that “[filtering software, of course, is not a perfect solution to the problem.” Ante, at 668.
In sum, a “filtering software status quo” means filtering that underblocks, imposes a cost upon each family that uses it, fails to screen outside the home, and lacks precision. Thus, Congress could reasonably conclude that a system that relies entirely- upon the use of such software is not an effective system. And a law that adds to that system an age-verification screen requirement significantly increases the system’s efficacy. That is to say, at a modest additional cost
The Court’s response — that 40% of all pornographic material may be of foreign origin — is beside the point. Ante, at 667 (citing the District Court’s findings). Even assuming (I believe unrealistically) that all foreign originators will refuse to use screening, the Act would make a difference in respect to 60% of the Internet’s commercial pornography. I cannot call that difference insignificant.
The upshot is that Congress could reasonably conclude that, despite the current availability of filtering software, a child protection problem exists. It also could conclude that a precisely targeted regulatory statute, adding an age-verification requirement for a narrow range of material, would more effectively shield children from commercial pornography.
Is this justification sufficient? The lower courts thought not. But that is because those courts interpreted the Act as imposing far more than a modest burden. They assumed an interpretation of the statute in which it reached far beyond legally obscene and borderline obscene material, affecting material that, given the interpretation set forth above, would fall well outside the Act’s scope. But we must interpret the Act to save it, not to destroy it. NLRB v. Jones & Laughlin Steel Corp.,
I turn, then, to the actual “less restrictive alternatives” that the Court proposes. The Court proposes two real alternatives, i. e., two potentially less restrictive ways in which Congress might alter the status quo in order to achieve its “compelling” objective.
First, the Government might “act to encourage” the use of blocking and filtering software. Ante, at 669. The problem is that any argument that rests upon this alternative proves too much. If one imagines enough Government resources devoted to the problem and perhaps additional scientific advances, then, of course, the use of software might become as effective and less restrictive. Obviously, the Government could give all parents, schools, and Internet cafes free computers with filtering programs already installed, hire federal employees to train parents and teachers on their use, and devote millions of dollars to the development of better software. The result might be an alternative that is extremely effective.
But the Constitution does not, because it cannot, require the Government to disprove the existence of magic solutions, i e., solutions that, put in general terms, will solve any problem less restrictively but with equal effectiveness. Otherwise, “the undoubted ability of lawyers and judges,” who are not constrained by the budgetary worries and other practical parameters within which Congress must operate, “to imagine some kind of slightly less drastic or restrictive an approach would make it impossible to write laws that deal with the harm that called the statute into being.” Playboy Entertainment Group,
Second, the majority suggests decriminalizing the statute, noting the “chilling effect” of criminalizing a category of speech. Ante, at 667. To remove a major sanction, however, would' make the statute less effective, virtually by definition.
IV
My conclusion is that the Act, as properly interpreted, risks imposition of minor burdens on some protected material — burdens that adults wishing to view the material may overcome at modest cost. At the same time, it significantly helps to achieve a compelling congressional goal, protecting children from exposure to commercial pornography. There is no serious, practically available “less restrictive” way similarly to further this compelling interest. Hence the Act is constitutional.
V
The Court’s holding raises two more general questions. First, what has happened to the “constructive discourse between our courts and our legislatures” that “is an integral and admirable part of the constitutional design”? Blakely v. Washington, ante, at 326 (Kennedy, J., dissenting). After eight years of legislative effort, two statutes, and three Supreme Court cases the Court sends this case back to the District Court for further proceedings. What proceedings? I have found no offer by either party to present more relevant evidence. What remains to be litigated? I know the Court says that the parties may “introduce further evidence” as to the “relative restrictiveness and effectiveness of alternatives to the statute.” Ante, at 673. But I do not understand what that new evidence might consist of.
Moreover, Congress passed the current statute “[i]n response to the Court’s decision in Reno” striking down an earlier statutory effort to deal with the same problem.
I recognize that some Members of the Court, now or in the past, have taken the view that the First Amendment simply does not permit Congress to legislate in this area. See, e. g., Ginzburg,
As I have explained, I believe the First Amendment permits an alternative holding. We could construe the statute
Second, will the majority’s holding in practice mean greater or lesser protection for expression? I do not find the answer to this question obvious. The Court’s decision removes an important weapon from the prosecutorial arsenal. That weapon would have given the Government a choice — a choice other than “ban totally or do nothing at all.” The Act tells the Government that, instead of prosecuting bans on obscenity to the maximum extent possible (as respondents have urged as yet another “alternative”), it can insist that those who make available material that is obscene or close to obscene keep that material under wraps, making it readily available to adults who wish to see it, while restricting access to children. By providing this third option — a “middle way” — the Act avoids the need for potentially speech-suppressing prosecutions.
That matters in a world where the obscene and the nonob-scene do not come tied neatly into separate, easily distinguishable, packages. In that real world, this middle way might well have furthered First Amendment interests by tempering the prosecutorial instinct in borderline cases. At least, Congress might have so believed. And this likelihood, from a First Amendment perspective, might ultimately have proved more protective of the rights of viewers to retain access to expression than the all-or-nothing choice available to prosecutors in the wake of the majority’s opinion.
For these reasons, I dissent.