Course No.: 9200-710 (& 810)-001
Course ID: 85723 & 85725
Time: M, W 4:45-6:15 p.m.
|Professor Jay Dratler, Jr.||
Across from Room 231D (IP Alcove)
|Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008, 2010 Jay Dratler, Jr.|
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Ashcroft v. American Civil Liberties Union
Thomas, J.: [*1703]
JUSTICE THOMAS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, an opinion with respect to Parts III-A, III-C, and III-D, in which THE CHIEF JUSTICE and JUSTICE SCALIA join, and an opinion with respect to Part III-B, in which THE CHIEF JUSTICE, JUSTICE O'CONNOR, and JUSTICE SCALIA join.
This case presents the narrow question whether the Child Online Protection Act's (COPA or Act) use of "community standards" to identify "material that is harmful to minors" violates the First Amendment. We hold that this aspect of COPA does not render the statute facially unconstitutional.
"The Internet . . . offer[s] a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity." 47 U.S.C. § 230 (a)(3) (1994 ed., Supp. V). * * *
The Web also contains a wide array of sexually explicit material, including hardcore pornography. . . . In 1998, for instance, there were approximately 28,000 adult sites promoting pornography on the Web. See H. R. Rep. No. 105-775, p. 7 (1998). Because "navigating 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,(1) . . . children may discover this pornographic material either by deliberately accessing pornographic Web sites or by stumbling upon them. See 31 F. Supp. 2d at 476 ("A child with minimal knowledge of a computer, the ability to operate a browser, and the skill to type a few simple words may be able to access [*1704] sexual images and content over the World Wide Web").
Congress first attempted to protect children from exposure to pornographic material on the Internet by enacting the Communications Decency Act of 1996 (CDA)[.] 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, depicted or described, 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 CDA's regulation of indecent transmissions, see § 223(a), and the display of patently offensive material, see § 223(d), ran afoul of the First Amendment. We concluded that "the CDA lacked the precision that the First Amendment requires when a statute regulates the content of speech" because, "in order to deny minors access to potentially harmful speech, the CDA effectively suppressed a large amount of speech that adults had a constitutional right to receive and to address to one another."
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." Second, "the breadth of the CDA's coverage [was]wholly unprecedented." "Its open-ended prohibitions embraced," 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." In addition, because the CDA did not define the terms "indecent" and "patently offensive," the statute "covered large amounts of nonpornographic material with serious educational or other value." 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." Third, we found that neither affirmative defense set forth in the CDA "constituted the sort of ‘narrow tailoring' that [would]save an otherwise patently invalid unconstitutional provision." Consequently, only the CDA's ban on the knowing transmission of obscene messages survived scrutiny because obscene speech enjoys no First Amendment protection.
After our decision in Reno v. American Civil Liberties Union, Congress explored other avenues for restricting minors' access to pornographic material on the Internet. In particular, Congress passed and the President signed into law the Child Online Protection Act, 112 Stat. 2681-736 (codified in 47 U.S.C. § 231 (1994 ed., Supp. V)). COPA prohibits any person from "knowingly and with knowledge of [*1705] the character of the material, in interstate or foreign commerce by means of the World Wide Web, making any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors." 47 U.S.C. § 231 (a)(1).
Apparently responding to our objections to the breadth of the CDA's coverage, Congress limited the scope of COPA's coverage in at least three ways. First, while the CDA applied to communications over the Internet as a whole, including, for example, e-mail messages, COPA applies only to material displayed on the World Wide Web. Second, unlike the CDA, COPA covers only communications made "for commercial purposes."(2) And third, while the CDA prohibited "indecent" and "patently offensive" communications, COPA restricts only the narrower category of "material that is harmful to minors."
Drawing on the three-part test for obscenity set forth in Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973), COPA defines "material that is harmful to minors" as
"(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors."
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,(3) most of which maintain their [*1706] own Web sites. While the vast majority of content on their Web sites is available for free, respondents all derive income from their sites. Some, for example, sell advertising that is displayed on their Web sites, while others either sell goods directly over their sites or charge artists for the privilege of posting material. All respondents either post or have members that post sexually oriented material on the Web. 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.
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. Respondents' facial challenge claimed, inter alia, that COPA violated adults' rights under the First and Fifth Amendments because it (1) "created 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."(4)
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. * * *
* * * 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." The Court of Appeals concluded that COPA's use of "contemporary community standards" to identify material that is harmful to minors rendered the statute substantially overbroad. Because "Web publishers are without any means to limit access to their sites based on the geographic location of particular Internet users," the Court of Appeals reasoned that COPA would require "any material that might be deemed harmful by the most puritan of communities in any state" to be placed behind an age or credit card verification system. Hypothesizing [*1707] that this step would require Web publishers to shield "vast amounts of material," 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."
We granted the Attorney General's petition for certiorari, 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 our profound national commitment to the free exchange of ideas. As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. However, this principle, like other First Amendment principles, is not absolute. Cf. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56, 99 L. Ed. 2d 41, 108 S. Ct. 876 (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, 484-485, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957). But this Court struggled in the past to define obscenity in a manner that did not impose an impermissible burden on protected speech. . . 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.
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) Whether 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." [Miller, 413 U.S. at] 24 (internal citations omitted; emphasis added).
Miller adopted the use of "community standards" from Roth, which repudiated an earlier approach for assessing objectionable material. Beginning in the 19th century, English courts and some American courts allowed material to be evaluated from the perspective of particularly sensitive persons. . . . But in Roth, this Court held that this sensitive person standard was "unconstitutionally restrictive of the freedoms of speech and press" and approved a standard requiring that material be judged from the perspective of "the average person, applying contemporary community standards." [Roth, 354 U.S.] at 489. * * * [*1708] * * *
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." We therefore must decide whether this technological limitation renders COPA's reliance on community standards constitutionally infirm.(5)
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.(6) * * *
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, 41 L. Ed. 2d 642, 94 S. Ct. 2750 (1974) ("A State may choose to define an obscenity offense in terms of ‘contemporary community standards' as defined in Miller without further specification . . . or it may choose to define the standards in more precise geographic terms, as was [*1709] done by California in Miller"). * * *
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. And such a requirement, the Court of Appeals concluded, "imposes an overreaching burden and restriction on constitutionally protected speech."
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."
The CDA's use of community standards to identify patently offensive material, however, was particularly problematic in light of that statute's unprecedented breadth and vagueness. The statute covered communications depicting or describing "sexual or excretory activities or organs" that were "patently offensive as measured by contemporary community standards"—a standard somewhat similar to the second prong of Miller's three-prong test. But the CDA did not include any limiting terms resembling Miller's additional two prongs. See Reno, 521 U.S. at 873. 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. 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. To fall within the scope of COPA, works must not only "depict, describe, or represent, in a manner patently offensive with respect to minors," particular sexual acts or parts of the anatomy,(7) they must also be [*1710] designed to appeal to the prurient interest of minors and "taken as a whole, lack 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. . . .(8) Of even more significance, however, is COPA's exclusion of material with serious value for minors. See 47 U.S.C. § 231 (e)(6)(C). * * * [T]he 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.(9)
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, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974), this Court considered the constitutionality of applying community standards to the determination of whether material is obscene under 18 U.S.C. § 1461, the federal statute prohibiting the mailing of obscene material. Although this statute does not define obscenity, the petitioners in Hamling were tried and convicted under the definition of obscenity set forth in Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass., 383 U.S. 413, 16 L. Ed. 2d 1, 86 S. Ct. 975 (1966), which included both a "prurient interest" requirement and a requirement that prohibited material be "‘utterly without redeeming social value.'" . . .
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 "national 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."
This Court, however, rejected Justice Brennan's 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, Hamling's holding was reaffirmed in Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 106 L. Ed. 2d 93, 109 S. Ct. 2829 (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."(10) Relying on Hamling, however, this Court once again rebuffed this attack on the use of community standards in a federal statute of national scope:
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." In neither Hamling nor Sable, however, was the speaker's ability to target the release of material into particular geographic areas integral to the legal analysis. In Hamling, the ability to limit the distribution of material to targeted communities was not mentioned, let alone relied upon,(11) and in Sable, a dial-a-porn operator's ability to screen incoming calls from particular areas was referenced only [*1712] as a supplemental point, see 492 U.S. at 125. 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.
While Justice Kennedy and Justice Stevens question the applicability of this Court's community standards jurisprudence to the Internet, we do not believe that the medium's "unique characteristics" justify adopting a different approach than that set forth in Hamling and Sable. If a publisher chooses to send its material into a particular community, this Court's jurisprudence teaches that it is the publisher's responsibility to abide by that community's standards. The publisher's burden does not change simply because it decides to distribute its material to every community in the Nation. See Sable, supra, at 125-126. Nor does it change because the publisher may wish to speak only to those in a "community where avant garde culture is the norm," (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.(12)
Respondents offer no other grounds upon which to distinguish this case from Hamling and Sable. * * * 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,(13) a result in substantial tension with our prior suggestion that the application of the CDA to obscene speech was [*1713] constitutional. See Reno, 521 U.S. at 877, n. 44, 882-883.
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. "To 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, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (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.(14) Because Congress has narrowed the range of content restricted by COPA in a manner analogous to Miller's definition of obscenity, we conclude, consistent with our holdings in Hamling and Sable, that any variance caused by the statute's reliance on community standards is not substantial enough to violate the First Amendment.
The scope of our decision today is quite limited. We hold only that COPA's reliance on community standards to identify "material that is harmful to minors" does not by itself render the statute substantially overbroad for purposes of the First Amendment. We do not express any view as to whether COPA suffers from substantial overbreadth for other reasons, whether the statute is unconstitutionally vague, or whether the District Court correctly concluded that the statute likely will not survive strict scrutiny analysis once adjudication of the case is completed below. While respondents urge us to resolve these questions at this time, prudence dictates allowing the Court of Appeals to first examine these difficult issues. Petitioner does not ask us to vacate the preliminary injunction entered by the District Court, and in any event, we could not do so without addressing matters yet to be considered by the Court of Appeals. As a result, the Government remains enjoined [*1714] from enforcing COPA absent further action by the Court of Appeals or the District Court.
For the foregoing reasons, we vacate the judgment of the Court of Appeals and remand the case for further proceedings.
It is so ordered.
Justice O'Connor, concurring in part and concurring in the judgment.
I agree with the plurality that even if obscenity on the Internet is defined in terms of local community standards, respondents have not shown that the Child Online Protection Act (COPA) is overbroad solely on the basis of the variation in the standards of different communities. . . . I write separately to express my views on the constitutionality and desirability of adopting a national standard for obscenity for regulation of the Internet.
The plurality's opinion argues that, even under local community standards, the variation between the most and least restrictive communities is not so great with respect to the narrow category of speech covered by COPA as to, alone, render the statute substantially overbroad. I agree, given respondents' failure to provide examples of materials that lack literary, artistic, political, and scientific value for minors, which would nonetheless result in variation among communities judging the other elements of the test. 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. 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, 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 and Sable]. I agree with Justice Kennedy that, given Internet speakers' inability to control the geographic location of their audience, expecting them to bear the burden of controlling the recipients of their speech, as we did in Hamling and Sable, may be entirely too much to ask, and would potentially suppress an inordinate amount of expression. For these reasons, adoption of a national standard is necessary in my view for any reasonable regulation of Internet obscenity.
Our precedents do not forbid adoption of a national standard. Local community-based standards originated with Miller. * * * [*1715] * * * 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 standard—i.e., requiring that the people who live in all of these places hold themselves to what the nationwide community of adults would find was patently offensive and appealed to the prurient interest.
Later, in Jenkins v. Georgia, 418 U.S. 153, 157, 41 L. Ed. 2d 642, 94 S. Ct. 2750 (1974), we confirmed that "Miller approved the use of [instructions based on local standards]; it did not mandate their use." * * *
To be sure, the Court in Miller also stated that a national standard might be "unascertainable," 413 U.S. at 31, and "unrealistic," 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, . . .) 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. In my view, a national standard is not only constitutionally permissible, but also reasonable.
While I would prefer that the Court resolve the issue before it by explicitly adopting a national standard for defining obscenity on the Internet, given respondents' failure to demonstrate substantial overbreadth due solely to the variation between local communities, I join Parts I, II, III-B, and IV of Justice Thomas' opinion and the judgment.
Justice Breyer, concurring in part and concurring in the judgment.
I write separately because I believe that Congress intended the statutory word "community" to refer to the Nation's adult community taken as a whole, not to geographically separate local areas. The statutory language does not explicitly describe the specific "community" to which it refers. It says only that the "average person, applying contemporary community standards" must find that the "material as a whole and with respect to minors, is designed to appeal to, or is designed to [*1716] pander to, the prurient interest . . . ." 47 U.S.C. § 231 (e)(6) (1994 ed., Supp V).
In the statute's legislative history, however, Congress made clear that it did not intend this ambiguous statutory phrase to refer to separate standards that might differ significantly among different communities. The relevant House of Representatives Report says:
H. R. Rep. No. 105-775, p. 28 (1998) (emphasis added).
This statement, reflecting what apparently was a uniform view within Congress, makes clear that the standard, and the relevant community, is national and adult.
At the same time, this view of the statute avoids the need to examine the serious First Amendment problem that would otherwise exist. * * * To read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler's Internet veto affecting the rest of the Nation. The technical difficulties associated with efforts to confine Internet material to particular geographic areas make the problem particularly serious. * * * Of course some regional variation may remain, but any such variations are inherent in a system that draws jurors from a local geographic area and they are not, from the perspective of the First Amendment, problematic.
For these reasons I do not join Part III of Justice Thomas' opinion, although I agree with much of the reasoning set forth in Parts III-B and III-D, insofar as it explains the conclusion to which I just referred, namely that variation reflecting application of the same national standard by different local juries does not violate the First Amendment.
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, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (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. . . . Yet COPA is a major federal statute, enacted in the wake of our previous determination that its predecessor violated the First Amendment. . . . 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.
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, depends on the breadth of COPA's coverage and on what community standards are being invoked. Only by identifying the universe of speech burdened by COPA is it possible to discern whether national variation in community standards renders the speech restriction overbroad. In short, the ground on which the Court of Appeals relied cannot be separated from those that it overlooked. The statute, for instance, applies only to "communication for commercial purposes." 47 U.S.C. § 231 (e)(2)(A). The Court of Appeals, however, did not consider the amount of commercial communication, the number of commercial speakers, or the character of commercial speech covered by the Act. Likewise, the statute's definition of "harmful to minors" requires material to be judged "as a whole." § 231(e)(6)(C). The notion of judging work as a whole is 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.
* * * [*1718] * * * 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 877-878. 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 "the breadth of [COPA's predecessor]. . . wholly unprecedented," 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." 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." Variation in community standards rendered the statute broader than the scope of the Government's own expressed compelling interest.
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, but expensive if not impossible to reach a geographic subset[.] 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[,]" [majority opijnion.] "Our prior decisions have voiced particular concern with laws that foreclose an entire medium of expression . . . . The danger they pose to the freedom of speech is readily apparent—by eliminating a common means of speaking, such measures can suppress too much speech." City of Ladue v. Gilleo, 512 U.S. 43, 55, 129 L. Ed. 2d 36, 114 S. Ct. 2038 (1994).
Justice Breyer would alleviate the problem of local variation in community standards by construing the statute to comprehend the "Nation's adult community taken as a whole," rather than the local community from which the jury is drawn. . . . There is one statement in a House Committee Report to this effect, "reflecting," Justice Breyer writes, "what apparently was a uniform view within Congress." 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."
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.
For this reason the Court of Appeals was correct to focus on COPA's incorporation of varying community standards; and it may have been correct as well to conclude that in practical effect COPA imposes the most puritanical community standard on the entire country. We have observed that it is "neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City." Miller v. California, 413 U.S. 15, 32, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (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." In striking down COPA's predecessor, [*1720] the Reno Court identified this precise problem, and if the Hamling and Sable Courts did not find the problem fatal, that is because those cases involved quite different media. The national variation in community standards constitutes a particular burden on Internet speech.
The question that remains is whether this observation by itself suffices to enjoin the Act. I agree with the Court that it does not. 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.
* * * Justice Thomas' interpretation—undertaken without substantial arguments or briefing—is not altogether persuasive, and I would leave this task to the Court of Appeals in the first instance. As this case comes to us, once it is accepted that we cannot strike down the Act based merely on the phrase "contemporary community standards," we should go no further than to vacate and remand for a more comprehensive analysis of the Act.
* * * [S]peculation 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." 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." 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.
[Among other things,] 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, "the artistic merit of a work does not depend on the presence of a single explicit scene. . . . The 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 denominator—that is, the material to be taken as a whole—in the context of the World Wide Web. * * *
Another issue is worthy of mention, because it too may inform whether the variation in community standards renders the Act substantially overbroad. The parties and the Court of Appeals did not address the question of venue, though it would seem to be bound up with the issue of varying community standards. COPA does not address venue in explicit terms, so prosecution may be proper "in any district in which [an]offense was begun, continued, or completed." 18 U.S.C. § 3237 (a). The Act's prohibition includes an interstate commerce element, 47 U.S.C. § 231 (a)(1), and "any 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.
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. * * * In the context of the Internet, however, community standards [*1723] become a sword, rather than a shield. If a prurient appeal is offensive in a puritan village, it may be a crime to post it on the World Wide Web.
1. [Court's footnote 2] When this litigation
commenced in 1998, approximately 70.2 million people of all ages used
the Internet in the United States. 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.
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2. [Court's footnote 3] The statute provides
that "[a]person shall be considered to make a communication for commercial
purposes only if such person is engaged in the business of making such
communications." 47 U.S.C. § 231 (e)(2)(A) (1994 ed., Supp. V). COPA
then defines the term "engaged in the business" to mean a person:
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3. [Court's footnote 4] Respondents include
the American Civil Liberties Union, Androgony Books, Inc., d/b/a A Different
Light Bookstores, the American Booksellers Foundation for Free Expression,
Artnet Worldwide Corporation, BlackStripe, Addazi Inc. d/b/a Condomania,
the Electronic Frontier Foundation, the Electronic Privacy Information
Center, Free Speech Media, OBGYN.net, Philadelphia Gay News, PlanetOut
Corporation, Powell's Bookstore, Riotgrrl, Salon Internet, Inc., and West
Stock, Inc., now known as ImageState North America, Inc.
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4. [Court's footnote 5] 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
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5. [Court's footnote 6] While petitioner
contends that a speaker on the Web possesses the ability to communicate
only with individuals located in targeted geographic communities, he stipulated
below that "once 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." The District Court adopted
this stipulation as a finding of fact, and petitioner points to no evidence
in the record suggesting that this finding is clearly erroneous.
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6. [Court's footnote 7] Although the
phrase "contemporary community standards" appears only in the "prurient
interest" prong of the Miller test, see Miller[, 413 U.S.
at] 24, 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, 95 L. Ed. 2d 439, 107 S. Ct. 1918 (1987). The parties
here therefore agree that even though "contemporary community standards"
are similarly mentioned only in the "prurient interest" prong of COPA's
harmful-to-minors definition, see 47 U.S.C. § 231 (e)(6)(A), jurors will
apply "contemporary community standards" as well in evaluating whether
material is "patently offensive with respect to minors," § 231(e)(6)(B).
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7. [Court's footnote 8] While the CDA
allowed juries to find material to be patently offensive so long as it
depicted or described "sexual or excretory activities or organs," COPA
specifically delineates the sexual activities and anatomical features,
the depictions of which may be found to be patently offensive: "an actual
or simulated sexual act or sexual contact, an actual or simulated normal
or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent
female breast." 47 U.S.C. § 231 (e)(6)(B).
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8. [Court's footnote 9] Justice Stevens
argues that the "prurient interest" prong does not "substantially narrow
the category of images covered" by COPA because "arguably every depiction
of nudity—partial or full—is in some sense erotic with respect to minors,"
(dissenting opinion) (emphasis in original). We do not agree. For
example, we have great difficulty understanding how pictures of a war
victim's wounded nude body could reasonably be described under the vast
majority of circumstances as erotic, especially when evaluated from the
perspective of minors. See Webster's Ninth New Collegiate Dictionary
422 (1991) (defining erotic as "of, devoted to, or tending to arouse sexual
love or desire").
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9. [Court's footnote 10] Justice Stevens
contends that COPA's serious value prong only marginally limits the sweep
of the statute because it does not protect all material with serious value
but just those works with serious value for minors. His dissenting
opinion, however, does not refer to any evidence supporting this counterintuitive
assertion, and there is certainly none in the record suggesting that COPA
restricts about the same amount of material as did the CDA. Moreover,
Justice Stevens does not dispute that COPA's "serious value" prong serves
the important purpose of allowing appellate courts to set "as a matter
of law, a national floor for socially redeeming value." Reno,
521 U.S. at 873.
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10. [Court's footnote 11] 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, 52 L. Ed. 2d 324,
97 S. Ct. 1756 (1977).
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11. [Court's footnote 12] This fact
was perhaps omitted because under the federal statute at issue in Hamling
v. United States, 418 U.S. 87, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974),
a defendant could be prosecuted in any district through which obscene
mail passed while it was on route to its destination, see id.,
at 143-144 (Brennan, J., dissenting), and a postal customer obviously
lacked the ability to control the path his letter traveled as it made
its way to its intended recipient.
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12. [Court's footnote 14] In addition,
COPA does not, as Justice Kennedy suggests, "foreclose an entire medium
of expression." . . . While Justice Kennedy and Justice Stevens
repeatedly imply that COPA banishes from the Web material deemed harmful
to minors by reference to community standards, . . . the statute
does no such thing. It only requires that such material be placed
behind adult identification screens.
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14. [Court's footnote 16] Justice
Stevens' conclusion to the contrary is based on little more than speculation.
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. . . . Justice Stevens,
however, is not even willing to represent that these anecdotes relate
to material restricted under COPA, . . . and we understand his reluctance
for the vast majority of the works cited in that brief, if not all of
them, are likely unaffected by the statute. See Brief for Volunteer Lawyer
for the Arts et al. as Amici Curiae 4-10 (describing, among other
incidents, controversies in various communities regarding Maya Angelou's
I Know Why The Caged Bird Sings, Judy Blume's Are You There
God? It's Me, Margaret" Aldous Huxley's Brave New World, J.D.
Salinger's Catcher in the Rye, 1993 Academy Award Best Picture
nominee "The Piano," the American Broadcasting Corporation television
network's "NYPD Blue," and songs of the "popular folk-rock duo" the Indigo
Girls). These anecdotes are therefore of questionable relevance
to the matter at hand and certainly do not constitute a sufficient basis
for invalidating a federal statute.
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15. [Justice Stevens' footnote 2] It
is hardly a solution to say, as Justice Thomas suggests, that a
speaker need only choose a different medium in order to avoid having its
speech judged by the least tolerant community. Our overbreadth doctrine
would quickly become a toothless protection if we were to hold that substituting
a more limited forum for expression is an acceptable price to pay. Since
a content-based restriction is presumptively invalid, I would place the
burden on parents to "take the simple step of utilizing a medium that
enables," them to avoid this material before requiring the speaker
to find another forum.
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