(Slip Opinion: 521
NOTE: Where it is feasible, a syllabus (headnote)
will be released, as is being done in connection with this case, at the time the
opinion is issued. The syllabus constitutes no part of the opinion of the Court
but has been prepared by the Reporter of Decisions for the convenience of the
reader. See United
States v. Detroit Timber & Lumber
Co., 200 U.
S. 321, 337.
SUPREME COURT OF THE UNITED
ATTORNEY GENERAL OF THE UNITED STATES, et al. v. AMERICAN CIVIL LIBERTIES
UNION et al.
Appeal from the
United States District Court for the Eastern District of Pennsylvania
Argued March 19, 1997—Decided
June 26, 1997
Two provisions of the Communications Decency Act of 1996
(CDA or Act) seek to protect minors from
harmful material on the Internet, an international network of interconnected
computers that enables millions of people to communicate with one another in
"cyberspace" and to access vast amounts of information from around the world.
Title 47 U. S. C. A. §223(a)(1)(B)(ii) (Supp. 1997)
criminalizes the "knowing" transmission of "obscene or indecent" messages to any
recipient under 18 years of age. Section 223(d) prohibits the "knowin[g]" sending or displaying to a person under 18 of any
message "that, in context, depicts or describes, in terms patently offensive as
measured by contemporary community standards, sexual or excretory activities or
organs." Affirmative defenses are provided for those who take "good faith, . . .
effective . . . actions" to restrict access by minors to the prohibited
communications, §223(e)(5)(A), and those who restrict such access by requiring
certain designated forms of age proof, such as a verified credit card or an
adult identification number, §223(e)(5)(B). A number of plaintiffs filed suit
challenging the constitutionality of §§223(a)(1) and
223(d). After making extensive findings of fact, a three-judge District Court
convened pursuant to the Act entered a preliminary injunction against
enforcement of both challenged provisions. The court's judgment enjoins the
Government from enforcing §223(a)(1)(B)'s prohibitions insofar as they relate to
"indecent" communications, but expressly preserves the Government's right to
investigate and prosecute the obscenity or child pornography activities
prohibited therein. The injunction against enforcement of §223(d) is unqualified
because that section contains no separate reference to obscenity or child
pornography. The Government appealed to this Court under the Act's special
review provisions, arguing that the District Court erred in holding that the
CDA violated both the First Amendment because
it is overbroad and the Fifth Amendment because it is vague.
Held: The CDA's "indecent
transmission" and "patently offensive display" provisions abridge "the freedom
of speech" protected by the First Amendment. Pp. 17–40.
(a) Although the CDA's vagueness
is relevant to the First Amendment overbreadth
inquiry, the judgment should be affirmed without reaching the Fifth Amendment
issue. P. 17.
(b) A close look at the precedents relied on by the
Government—Ginsberg v. New York, 390 U. S. 629; FCC v.
Pacifica Foundation, 438 U. S. 726; and Renton v. Playtime
Theatres, Inc., 475 U. S. 41—raises, rather than relieves, doubts about the
CDA's constitutionality. The
CDA differs from the various laws and orders
upheld in those cases in many ways, including that it does not allow parents to
consent to their children's use of restricted materials; is not limited to
commercial transactions; fails to provide any definition of "indecent" and omits
any requirement that "patently offensive" material lack socially redeeming
value; neither limits its broad categorical prohibitions to particular times nor
bases them on an evaluation by an agency familiar with the medium's unique
characteristics; is punitive; applies to a medium that, unlike radio, receives
full First Amendment protection; and cannot be properly analyzed as a form of
time, place, and manner regulation because it is a content-based blanket
restriction on speech. These precedents, then, do not require the Court to
uphold the CDA and are fully consistent with
the application of the most stringent review of its provisions. Pp. 17–21.
(c) The special factors recognized in some of the Court's cases as justifying
regulation of the broadcast media—the history of extensive government regulation
of broadcasting, see, e.g., Red Lion Broadcasting Co. v. FCC, 395
U. S. 367, 399–400; the scarcity of available frequencies at its inception, see,
e.g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622,
637–638; and its "invasive" nature, see Sable Communications of Cal.,
Inc. v. FCC, 492 U. S. 115, 128—are not present in cyberspace. Thus,
these cases provide no basis for qualifying the level of First Amendment
scrutiny that should be applied to the Internet. Pp. 22–24.
(d) Regardless of whether the CDA is so
vague that it violates the Fifth Amendment, the many ambiguities concerning the
scope of its coverage render it problematic for First Amendment purposes. For
instance, its use of the undefined terms "indecent" and "patently offensive"
will provoke uncertainty among speakers about how the two standards relate to
each other and just what they mean. The vagueness of such a content-based
regulation, see, e.g., Gentile v. State Bar of Nev., 501
U. S. 1030,
coupled with its increased deterrent effect as a criminal statute, see,
e.g., Dombrowski v. Pfister, 380 U.
S. 479, raise special First Amendment concerns
because of its obvious chilling effect on free speech. Contrary to the
Government's argument, the CDA is not saved
from vagueness by the fact that its "patently offensive" standard repeats the
second part of the three-prong obscenity test set forth in Miller v.
U. S. 15, 24.
The second Miller prong reduces the inherent vagueness of its own
"patently offensive" term by requiring that the proscribed material be
"specifically defined by the applicable state law." In addition, the
CDA applies only to "sexual conduct,"
whereas, the CDA prohibition extends also to
"excretory activities" and "organs" of both a sexual and excretory nature. Each
of Miller's other two prongs also critically limits the uncertain sweep
of the obscenity definition. Just because a definition including three
limitations is not vague, it does not follow that one of those limitations,
standing alone, is not vague. The CDA's vagueness
undermines the likelihood that it has been carefully tailored to the
congressional goal of protecting minors from potentially harmful materials. Pp.
(e) The CDA lacks the precision that the
First Amendment requires when a statute regulates the content of speech.
Although the Government has an interest in protecting children from potentially
harmful materials, see, e.g., Ginsberg, 390 U. S., at 639, the
CDA pursues that interest by suppressing a
large amount of speech that adults have a constitutional right to send and
receive, see, e.g., Sable, supra, at 126. Its breadth is wholly
unprecedented. The CDA's burden on
adult speech is unacceptable if less restrictive alternatives would be at least
as effective in achieving the Act's legitimate purposes. See,
e.g., Sable, 492 U. S., at
126. The Government has not proved otherwise. On the other hand, the
District Court found that currently available user-based software
suggests that a reasonably effective method by which parents can prevent
their children from accessing material which the parents believe is
inappropriate will soon be widely available. Moreover, the arguments in this
Court referred to possible alternatives such as requiring that indecent material
be "tagged" to facilitate parental control, making exceptions for messages with
artistic or educational value, providing some tolerance for parental choice, and
regulating some portions of the Internet differently than others. Particularly
in the light of the absence of any detailed congressional findings, or even
hearings addressing the CDA's special
problems, the Court is persuaded that the CDA
is not narrowly tailored. Pp. 28–33.
(f) The Government's three additional arguments for sustaining the
CDA's affirmative prohibitions are rejected. First, the
contention that the Act is constitutional because it leaves open ample
"alternative channels" of communication is unpersuasive because the
CDA regulates speech on the basis of its
content, so that a "time, place, and manner" analysis is inapplicable. See, e.g., Consolidated Edison Co. of N. Y. v. Public
Serv. Comm'n of N. Y.,
S. 530, 536.
Second, the assertion that the CDA's
"knowledge" and "specific person" requirements significantly restrict its
permissible application to communications to persons the sender knows to be
under 18 is untenable, given that most Internet forums are open to all comers
and that even the strongest reading of the "specific person" requirement would
confer broad powers of censorship, in the form of a "heckler's veto," upon any
opponent of indecent speech. Finally, there is no textual support for the
submission that material having scientific, educational, or other redeeming
social value will necessarily fall outside the CDA's
prohibitions. Pp. 33–35.
(g) The §223(e)(5) defenses do not constitute the
sort of "narrow tailoring" that would save the
CDA. The Government's argument that
transmitters may take protective "good faith actio[n]"
by "tagging" their indecent communications in a way that would indicate their
contents, thus permitting recipients to block their reception with appropriate
software, is illusory, given the requirement that such action be "effective":
The proposed screening software does not currently exist, but, even if it did,
there would be no way of knowing whether a potential recipient would actually
block the encoded material. The Government also failed to prove that §223(b)(5)'s verification defense would significantly reduce the
CDA's heavy burden on adult speech. Although such verification
is actually being used by some commercial providers of sexually explicit
material, the District Court's findings indicate that it is not economically
feasible for most noncommercial speakers. Pp. 35–37.
(h) The Government's argument that this Court should preserve the
CDA's constitutionality by honoring its severability clause,
§608, and by construing nonseverable terms narrowly,
is acceptable in only one respect. Because obscene speech may be banned totally,
see Miller, supra, at 18, and §223(a)'s restriction of "obscene" material
enjoys a textual manifestation separate from that for "indecent" material, the
Court can sever the term "or indecent" from the statute, leaving the rest of
§223(a) standing. Pp. 37–39.
(i) The Government's argument that its
"significant" interest in fostering the Internet's growth provides an
independent basis for upholding the CDA's
constitutionality is singularly unpersuasive. The dramatic expansion of this new
forum contradicts the factual basis underlying this contention: that the
unregulated availability of "indecent" and "patently offensive" material is
driving people away from the Internet. P. 40.
929 F. Supp. 824, affirmed.
Stevens, J., delivered the opinion of the Court, in which Scalia, Kennedy, Souter, Thomas,
Ginsburg, and Breyer, JJ.,
joined. O'Connor, J., filed an opinion concurring in the judgment in part and
dissenting in part, in which Rehnquist, C. J., joined.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to notify
the Reporter of Decisions, Supreme Court of the
20543, of any typographical or
other formal errors, in order that corrections may be made before the
preliminary print goes to press.
SUPREME COURT OF THE UNITED
ATTORNEY GENERAL OF THE UNITED STATES, et al. v. AMERICAN CIVIL LIBERTIES
UNION et al.
Appeal from the
United States District Court for the Eastern District of Pennsylvania
[June 26, 1997]
Justice Stevens delivered the opinion of the Court.
At issue is the constitutionality of two statutory provisions enacted to
protect minors from "indecent" and "patently offensive" communications on the
Internet. Notwithstanding the legitimacy and importance of the congressional
goal of protecting children from harmful materials, we agree with the
three-judge District Court that the statute abridges "the freedom of speech"
protected by the First Amendment.(1)
The District Court made extensive findings of fact, most of which were based
on a detailed stipulation prepared by the parties. See 929 F. Supp. 824, 830–849
(ED Pa. 1996).(2) The findings describe the character
and the dimensions of the Internet, the availability of
sexually explicit material in that medium, and the
problems confronting age verification for recipients of Internet communications.
Because those findings provide the underpinnings for the legal issues, we begin
with a summary of the undisputed facts.
The Internet is an international network of interconnected computers. It is
the outgrowth of what began in 1969 as a military program called "ARPANET,"(3)
which was designed to enable computers operated by the military, defense
contractors, and universities conducting defense-related research to communicate
with one another by redundant channels even if some portions of the network were
damaged in a war. While the ARPANET no longer exists, it provided an example for
the development of a number of civilian networks that, eventually linking with
each other, now enable tens of millions of people to communicate with one
another and to access vast amounts of information from around the world. The
Internet is "a unique and wholly new medium of worldwide human
The Internet has experienced "extraordinary growth."(5) The number of "host"
computers—those that store information and relay communications—increased from
about 300 in 1981 to approximately 9,400,000 by the time of the trial in 1996.
Roughly 60% of these hosts are located in the
About 40 million people used the Internet at the time of trial, a number that is
expected to mushroom to 200 million by 1999.
Individuals can obtain access to the Internet from many different sources,
generally hosts themselves or entities with a host affiliation. Most colleges
and universities provide access for their students and faculty; many
corporations provide their employees with access through an office network; many
communities and local libraries provide free access; and an increasing number of
storefront "computer coffee shops" provide access for a small hourly fee.
Several major national "online services" such as America Online, CompuServe, the
Microsoft Network, and Prodigy offer access to their own extensive proprietary
networks as well as a link to the much larger resources of the Internet. These
commercial online services had almost 12 million individual subscribers at the
time of trial.
Anyone with access to the Internet may take advantage of a wide variety of
communication and information retrieval methods. These methods are constantly
evolving and difficult to categorize precisely. But, as presently constituted,
those most relevant to this case are electronic mail ("e-mail"), automatic
mailing list services ("mail exploders," sometimes referred to as "listservs"), "newsgroups," "chat rooms," and the "World Wide
Web." All of these methods can be used to transmit text; most can transmit
sound, pictures, and moving video images. Taken together, these tools constitute
a unique medium—known to its users as "cyberspace"—located in no particular
geographical location but available to anyone, anywhere in the world, with
access to the Internet.
E-mail enables an individual to send an electronic message—generally akin to
a note or letter—to another individual or to a group of addressees. The message
is generally stored electronically, sometimes waiting for the recipient to check
her "mailbox" and sometimes making its receipt known through some type of
prompt. A mail exploder is a sort of e-mail group. Subscribers can send messages
to a common e-mail address, which then forwards the message to the group's other
subscribers. Newsgroups also serve groups of regular participants, but these
postings may be read by others as well. There are thousands of such groups, each
serving to foster an exchange of information or opinion on a particular topic
running the gamut from, say, the music of Wagner to Balkan politics to AIDS
prevention to the Chicago Bulls. About 100,000 new messages are posted every
day. In most newsgroups, postings are automatically purged at regular intervals.
In addition to posting a message that can be read later, two or more individuals
wishing to communicate more immediately can enter a chat room to engage in
real-time dialogue—in other words, by typing messages to one another that appear
almost immediately on the others' computer screens. The District Court found
that at any given time "tens of thousands of users are engaging in conversations
on a huge range of subjects."(6) It is "no exaggeration to conclude that the
content on the Internet is as diverse as human thought."(7)
The best known category of communication over the Internet is the World Wide
Web, which allows users to search for and retrieve
information stored in remote computers, as well as, in some cases, to
communicate back to designated sites. In concrete terms, the Web consists of a
vast number of documents stored in different computers all over the world. Some
of these documents are simply files containing information. However, more
elaborate documents, commonly known as Web "pages," are also prevalent. Each has
its own address—"rather like a telephone number."(8) Web pages frequently
contain information and sometimes allow the viewer to communicate with the
page's (or "site's") author. They generally also contain "links" to other
documents created by that site's author or to other (generally) related sites.
Typically, the links are either blue or underlined text—sometimes images.
Navigating the Web is relatively straightforward. A user may either type the
address of a known page or enter one or more keywords into a commercial "search
engine" in an effort to locate sites on a subject of interest. A particular Web
page may contain the information sought by the "surfer," or, through its links,
it may be an avenue to other documents located anywhere on the Internet. Users
generally explore a given Web page, or move to another, by clicking a computer
"mouse" on one of the page's icons or links. Access to most Web pages is freely
available, but some allow access only to those who have purchased the right from
a commercial provider. The Web is thus comparable, from the readers' viewpoint,
to both a vast library including millions of readily available and indexed
publications and a sprawling mall offering goods and services.
From the publishers' point of view, it constitutes a vast platform from which
to address and hear from a world-wide audience of millions of readers, viewers,
researchers, and buyers. Any person or organization with a computer connected to
the Internet can "publish" information. Publishers include government agencies,
educational institutions, commercial entities, advocacy groups, and
individuals.(9) Publishers may either make their
material available to the entire pool of Internet users, or confine access to a
selected group, such as those willing to pay for the privilege. "No single organi zation controls any
membership in the Web, nor is there any centralized point from which individual
Web sites or services can be blocked from the Web."(10)
Sexually Explicit Material
Sexually explicit material on the Internet includes text, pictures, and chat
and "extends from the modestly titillating to the hardest-core."(11) These files
are created, named, and posted in the same manner as material that is not
sexually explicit, and may be accessed either deliberately or unintentionally
during the course of an imprecise search. "Once a provider posts its content on
the Internet, it cannot prevent that content from entering any community."(12)
Thus, for example, "when the UCR/California
Museum of Photography posts to its Web site nudes by Edward Weston and Robert
Mapplethorpe to announce that its new exhibit will travel to Baltimore and New
York City, those images are available not only in Los Angeles, Baltimore, and
New York City, but also in Cincinnati, Mobile, or Beijing—wherever Internet
users live. Similarly, the safer sex instructions that Critical Path posts to
its Web site, written in street language so that the teenage receiver can
understand them, are available not just in
Philadelphia, but also in
Some of the communications over the Internet that originate in foreign
countries are also sexually explicit.(14)
Though such material is widely available, users seldom encounter such content
accidentally. "A document's title or a description of the document will usually
appear before the document itself . . . and in many cases the user will receive
detailed information about a site's content before he or she need take the step
to access the document. Almost all sexually explicit images are preceded by
warnings as to the content."(15) For that reason, the "odds are slim" that a
user would enter a sexually explicit site by accident.(16) Unlike communications
received by radio or television, "the receipt of information on the Internet
requires a series of affirmative steps more deliberate and directed than merely
turning a dial. A child requires some sophistication and some ability to read to
retrieve material and thereby to use the Internet unattended."(17)
Systems have been developed to help parents control the material that may be
available on a home computer with Internet access. A system may either limit a
computer's access to an approved list of sources that have been identified as
containing no adult material, it may block designated inappropriate sites, or it
may attempt to block messages containing identifiable objectionable features.
"Although parental control software currently can screen for certain suggestive
words or for known sexually explicit sites, it cannot now screen for sexually
explicit images."(18) Nevertheless, the evidence indicates that "a reasonably
effective method by which parents can prevent their children from accessing
sexually explicit and other material which parents may believe is inappropriate
for their children will soon be available."(19)
The problem of age verification differs for different uses of the Internet.
The District Court categorically determined that there "is no effective way to
determine the identity or the age of a user who is accessing material through
e-mail, mail exploders, newsgroups or chat rooms."(20) The Government offered no
evidence that there was a reliable way to screen recipients and participants in
such fora for age. Moreover, even if it were
technologically feasible to block minors' access to newsgroups and chat rooms
containing discussions of art, politics or other subjects that potentially
elicit "indecent" or "patently offensive" contributions, it would not be
possible to block their access to that material and "still allow them access to
the remaining content, even if the overwhelming majority of that content was not
Technology exists by which an operator of a Web site may condition access on
the verification of requested information such as a credit card number or an
adult password. Credit card verification is only feasible, however, either in
connection with a commercial transaction in which the card is used, or by
payment to a verification agency. Using credit card possession as a surrogate
for proof of age would impose costs on non-commercial Web sites that would
require many of them to shut down. For that reason, at the time of the trial,
credit card verification was "effectively unavailable to a substantial number of
Internet content providers." Id.,
at 846 (finding 102). Moreover, the imposition of such a requirement
"would completely bar adults who do not have a credit card and lack the
resources to obtain one from accessing any blocked material."(22)
Commercial pornographic sites that charge their users for access have
assigned them passwords as a method of age verification. The record does not
contain any evidence concerning the reliability of these technologies. Even if
passwords are effective for commercial purveyors of indecent material, the
District Court found that an adult password requirement would impose significant
burdens on noncommercial sites, both because they would discourage users from
accessing their sites and because the cost of creating and maintaining such
screening systems would be "beyond their reach."(23)
In sum, the District Court found:
"Even if credit card verification or adult password verification were
implemented, the Government presented no testimony as to how such systems could
ensure that the user of the password or credit card is in fact over 18. The
burdens imposed by credit card verification and adult password verification
systems make them effectively unavailable to a substantial number of Internet
content providers." Ibid. (finding 107).
The Telecommunications Act of 1996, Pub. L. 104–104, 110 Stat. 56, was an
unusually important legislative enactment. As stated on the first of its 103
pages, its primary purpose was to reduce regulation and encourage "the rapid
deployment of new telecommunications technologies." The major components of the
statute have nothing to do with the Internet; they were designed to promote
competition in the local telephone service market, the multichannel video market, and the market for over-the-air
broadcasting. The Act includes seven Titles, six of which are the product of
extensive committee hearings and the subject of discussion in Reports prepared
by Committees of the Senate and the House of Representatives. By contrast, Title
V—known as the "Communications Decency Act of 1996"
(CDA)—contains provisions that were either
added in executive committee after the hearings were concluded or as amendments
offered during floor debate on the legislation. An amendment offered in the
Senate was the source of the two statutory provisions challenged in this
case.(24) They are informally described as the
"indecent transmission" provision and the "patently offensive display"
The first, 47 U.
S. C. A. §223(a) (Supp. 1997), prohibits the
knowing transmission of obscene or indecent messages to any recipient under 18
years of age. It provides in pertinent part:
"(1) in interstate or foreign communications—
. . . . .
"(B) by means of a telecommunications device
"(i) makes, creates, or solicits, and
"(ii) initiates the transmission of,
"any comment, request, suggestion, proposal, image, or other communication
which is obscene or indecent, knowing that the recipient of the communication is
under 18 years of age, regardless of whether the maker of such communication
placed the call or initiated the communication; . . . . .
"(2) knowingly permits any telecommunications facility under his control to
be used for any activity prohibited by paragraph (1) with the intent that it be
used for such activity,
"shall be fined under Title 18, or imprisoned not
more than two years, or both."
The second provision, §223(d), prohibits the knowing sending or displaying of
patently offensive messages in a manner that is available to a person under 18
years of age. It provides:
"(1) in interstate or foreign communications knowingly—
"(A) uses an interactive computer service to send to a specific person or
persons under 18 years of age, or
"(B) uses any interactive computer service to
display in a manner available to a person under 18 years of age,
"any comment, request, suggestion, proposal, image, or other communication
that, in context, depicts or describes, in terms patently offensive as measured
by contemporary community standards, sexual or excretory activities or organs,
regardless of whether the user of such service placed the call or initiated the
"(2) knowingly permits any telecommunications facility under such person's
control to be used for an activity prohibited by paragraph (1) with the intent
that it be used for such activity,
"shall be fined under Title 18, or imprisoned not
more than two years, or both."
The breadth of these prohibitions is qualified by two affirmative defenses.
See §223(e)(5).(26) One covers those who take "good
faith, reasonable, effective, and appropriate actions" to restrict access by
minors to the prohibited communications. §223(e)(5)(A).
The other covers those who restrict access to covered material by requiring
certain designated forms of age proof, such as a verified credit card or an
adult identification number or code. §223(e)(5)(B).
On February 8,
1996, immediately after the President signed the statute, 20
plaintiffs(27) filed suit against the Attorney General of the United States and
the Department of Justice challenging the constitutionality of §§223(a)(1) and
223(d). A week later, based on his conclusion that the term "indecent" was too
vague to provide the basis for a criminal prosecution, District Judge Buckwalter entered a temporary restraining order against
enforcement of §223(a)(1)(B)(ii) insofar as it applies to indecent
communications. A second suit was then filed by 27 additional plaintiffs,(28)
the two cases were consolidated, and a three-judge District Court was convened
pursuant to §561 of the Act.(29) After an evi dentiary hearing, that Court entered a preliminary
injunction against enforcement of both of the challenged provisions. Each of the
three judges wrote a separate opinion, but their judgment was unanimous.
Chief Judge Sloviter doubted the strength of the
Government's interest in regulating "the vast range of online material covered
or potentially covered by the CDA," but
acknowledged that the interest was "compelling" with respect to some of that
material. 929 F. Supp., at 853. She concluded,
nonetheless, that the statute "sweeps more broadly than necessary and thereby
chills the expression of adults" and that the terms "patently offensive" and
"indecent" were "inherently vague." Id.,
at 854. She also determined that the affirmative defenses were not
"technologically or economically feasible for most providers,"
specifically considering and rejecting an argument that providers could
avoid liability by "tagging" their material in a manner that would allow
potential readers to screen out unwanted transmissions.
at 856. Chief Judge Sloviter also rejected the
Government's suggestion that the scope of the statute could be narrowed by
construing it to apply only to commercial pornographers.
Id., at 854–855.
Judge Buckwalter concluded that the word "indecent"
in §223(a)(1)(B) and the terms "patently offensive" and "in context" in
§223(d)(1) were so vague that criminal enforcement of either section would
violate the "fundamental constitutional principle" of "simple fairness,"
id., at 861, and the specific protections of the First and Fifth
Amendments, id., at 858. He found no statutory basis for the Government's
argument that the challenged provisions would be applied only to "pornographic"
materials, noting that, unlike obscenity, "inde cency has not been defined to exclude works of
serious literary, artistic, political or scientific value."
at 863. Moreover, the Government's claim that the work must be considered
patently offensive "in context" was itself vague because the relevant context
might "refer to, among other things, the nature of the communication as a whole,
the time of day it was conveyed, the medium used, the identity of the speaker,
or whether or not it is accompanied by appropriate warnings."
at 864. He believed that the unique nature of the Internet aggravated the
vagueness of the statute. Id.,
at 865, n. 9.
Judge Dalzell's review of "the special attributes of Internet communication"
disclosed by the evidence convinced him that the First Amendment denies Congress
the power to regulate the content of protected speech on the Internet.
at 867. His opinion explained at length why he believed the Act would
abridge significant protected speech, particularly by noncommercial speakers,
while "[p]erversely, commercial pornographers would
remain relatively unaffected." Id.,
at 879. He construed our cases as requiring a "medium-specific" approach
to the analysis of the regulation of mass communication, id., at 873, and
concluded that the Internet—as "the most participatory form of mass speech yet
developed," id., at 883—is entitled to "the highest protection from
governmental intrusion," ibid.(30)
The judgment of the District Court enjoins the Government from enforcing the
prohibitions in §223(a)(1)(B) insofar as they relate to "indecent"
communications, but expressly preserves the Government's right to investigate
and prosecute the obscenity or child pornography activities prohibited therein.
The injunction against enforcement of §§223(d)(1) and
(2) is unqualified because those provisions contain no separate reference to
obscenity or child pornography.
The Government appealed under the Act's special review provisions, §561, 110
Stat. 142–143, and we noted probable jurisdiction, see 519
U. S. ___
(1996). In its appeal, the Government argues that the District Court erred in
holding that the CDA violated both the First
Amendment because it is overbroad and the Fifth Amendment because it is vague.
While we discuss the vagueness of the CDA
because of its relevance to the First Amendment overbreadth inquiry, we conclude that the judgment should be
affirmed without reaching the Fifth Amendment issue. We begin our analysis by
reviewing the principal authorities on which the Government relies. Then, after
describing the overbreadth of the
CDA, we consider the Government's specific
contentions, including its submission that we save portions of the statute
either by severance or by fashioning judicial limitations on the scope of its
In arguing for reversal, the Government contends that the
CDA is plainly constitutional under three of
our prior decisions: (1) Ginsberg v. New York, 390 U. S. 629
(1968); (2) FCC v. Pacifica
Foundation, 438 U.
S. 726 (1978); and (3)
Playtime Theatres, Inc., 475 U. S. 41
(1986). A close look at these cases, however, raises—rather than
relieves—doubts concerning the constitutionality of the
In Ginsberg, we upheld the constitutionality of a New York statute
that prohibited selling to minors under 17 years of age material that was
considered obscene as to them even if not obscene as to adults. We rejected the
defendant's broad submission that "the scope of the constitutional freedom of
expression secured to a citizen to read or see material concerned with sex
cannot be made to depend on whether the citizen is an adult or a minor." 390 U.
S., at 636. In
rejecting that contention, we relied not only on the State's independent
interest in the well-being of its youth, but also on our consistent recognition
of the principle that "the parents' claim to authority in their own household to
direct the rearing of their children is basic in the structure of our
society."(31) In four important respects, the statute upheld in Ginsberg
was narrower than the CDA. First, we noted in
Ginsberg that "the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their
at 639. Under the CDA, by contrast,
neither the parents' consent—nor even their participation—in the communication
would avoid the application of the statute.(32) Second, the New York statute
applied only to commercial transactions, id., at 647, whereas the
CDA contains no such limitation. Third, the
New York statute cabined its definition of material that is harmful to minors
with the requirement that it be "utterly without redeeming social importance for
at 646. The CDA fails to provide us
with any definition of the term "indecent" as used in §223(a)(1) and, importantly, omits any requirement that the
"patently offensive" material covered by §223(d) lack serious literary,
artistic, political, or scientific value. Fourth, the New
York statute defined a minor as a person under the age
of 17, whereas the CDA, in applying to all
those under 18 years, includes an additional year of those nearest majority.
In Pacifica, we
upheld a declaratory order of the Federal Communications Commission, holding
that the broadcast of a recording of a 12–minute monologue entitled "Filthy
Words" that had previously been delivered to a live audience "could have been
the subject of administrative sanctions." 438
S., at 730 (internal
quotations omitted). The Commission had found that the repetitive use of
certain words referring to excretory or sexual activities or organs "in an
afternoon broadcast when children are in the audience was patently offensive"
and concluded that the monologue was indecent "as broadcast."
at 735. The respondent did not quarrel with the finding that the
afternoon broadcast was patently offensive, but contended that it was not
"indecent" within the meaning of the relevant statutes because it contained no
prurient appeal. After rejecting respondent's statutory arguments, we confronted
its two constitutional arguments: (1) that the Commission's construction of its
authority to ban indecent speech was so broad that its order had to be set aside
even if the broadcast at issue was unprotected; and (2) that since the recording
was not obscene, the First Amendment forbade any abridgement of the right to
broadcast it on the radio.
In the portion of the lead opinion not joined by Justices Powell and Blackmun, the plurality stated that the First Amendment does
not prohibit all governmental regulation that depends on the content of speech.
Id., at 742–743.
Accordingly, the availability of constitutional protection for a vulgar and
offensive monologue that was not obscene depended on the context of the
broadcast. Id., at
744–748. Relying on the premise that "of all forms of communication"
broadcasting had received the most limited First Amendment protection,
id., at 748–749, the Court concluded that the ease with which children may
obtain access to broadcasts, "coupled with the concerns recognized in
Ginsberg," justified special treatment of indecent broadcasting.
Id., at 749–750.
As with the New York statute at
issue in Ginsberg, there are significant differences between the order
upheld in Pacifica and the
CDA. First, the order in Pacifica,
issued by an agency that had been regulating radio stations for decades,
targeted a specific broadcast that represented a rather dramatic departure from
traditional program content in order to designate when—rather than whether—it
would be permissible to air such a program in that particular medium. The
CDA's broad categorical prohibitions are not limited to
particular times and are not dependent on any evaluation by an agency familiar
with the unique characteristics of the Internet. Second, unlike the
CDA, the Commission's declaratory order was
not punitive; we expressly refused to decide whether the indecent broadcast
"would justify a criminal prosecution." Id.,
at 750. Finally, the Commission's order applied to a medium which as a
matter of history had "received the most limited First Amendment protection,"
id., at 748, in large part be cause warnings could not adequately protect
the listener from unexpected program content. The Internet, however, has no
comparable history. Moreover, the District Court found that the risk of
encountering indecent material by accident is remote because a series of
affirmative steps is required to access specific material.
In Renton, we
upheld a zoning ordinance that kept adult movie theatres out of residential
neighborhoods. The ordinance was aimed, not at the content of the films shown in
the theaters, but rather at the "secondary effects"—such as crime and
deteriorating property values—that these theaters fostered: "`It is th[e] secondary effect which these zoning ordinances attempt
to avoid, not the dissemination of "offensive" speech.'" 475
U. S., at 49
(quoting Young v. American Mini Theatres, Inc., 427
U. S. 50, 71, n.
34 (1976)). According to the Government, the
CDA is constitutional because it constitutes
a sort of "cyberzoning" on the Internet. But the
CDA applies broadly to the entire universe of
cyberspace. And the purpose of the CDA is to
protect children from the primary effects of "indecent" and "patently offensive"
speech, rather than any "secondary" effect of such speech. Thus, the
CDA is a content-based blanket restriction on
speech, and, as such, cannot be "properly analyzed as a form of time, place, and
manner regulation." 475
S., at 46. See
also Boos v. Barry, 485 U.
S. 312, 321 (1988) ("Regulations that focus on
the direct impact of speech on its audience" are not properly analyzed under
County v. Nationalist
Movement, 505 U.
S. 123, 134 (1992) ("Listeners' reaction to
speech is not a content-neutral basis for regulation").
These precedents, then, surely do not require us to uphold the
CDA and are fully consistent with the
application of the most stringent review of its provisions.
In Southeastern Promotions, Ltd. v. Conrad, 420
U. S. 546, 557
(1975), we observed that "[e]ach medium of expression . . . may present its own
problems." Thus, some of our cases have recognized special justifications for
regulation of the broadcast media that are not applicable to other speakers, see
Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); FCC
v. Pacifica Foundation, 438 U. S. 726 (1978). In these cases, the Court
relied on the history of extensive government regulation of the broadcast
medium, see, e.g., Red Lion, 395 U. S., at 399–400; the scarcity
of available frequencies at its inception, see, e.g., Turner
Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637–638 (1994); and
its "invasive" nature, see Sable Communications of Cal., Inc. v.
FCC, 492 U. S. 115, 128 (1989).
Those factors are not present in cyberspace. Neither before nor after the
enactment of the CDA have the vast democratic
fora of the Internet been subject to the type of
government supervision and regulation that has attended the broadcast
industry.(33) Moreover, the Internet is not as
"invasive" as radio or television. The District Court specifically found that
"[c]ommunications over the Internet do not `invade' an
individual's home or appear on one's computer screen unbidden. Users seldom
encounter content `by accident.'" 929 F. Supp., at 844
(finding 88). It also found that "[a]lmost all
sexually explicit images are preceded by warnings as to the content," and cited
testimony that "`odds are slim' that a user would come across a sexually
explicit sight by accident." Ibid.
We distinguished Pacifica
in Sable, 492 U.
S., at 128, on just this basis. In
Sable, a company engaged in the business of offering sexually oriented
prerecorded telephone messages (popularly known as "dial-a-porn") challenged the
constitutionality of an amendment to the Communications Act that imposed a
blanket prohibition on indecent as well as obscene interstate commercial
telephone messages. We held that the statute was constitutional insofar as it
applied to obscene messages but invalid as applied to indecent messages. In
attempting to justify the complete ban and criminalization of indecent
commercial telephone messages, the Government relied on
Pacifica, arguing that
the ban was necessary to prevent children from gaining access to such messages.
We agreed that "there is a compelling interest in protecting the physical and
psychological well-being of minors" which extended to shielding them from
indecent messages that are not obscene by adult standards, 492 U. S., at 126,
but distinguished our "emphatically narrow holding" in Pacifica because
it did not involve a complete ban and because it involved a different medium of
communication, id., at 127. We explained that "the dial-it medium
requires the listener to take affirmative steps to receive the communication."
Id., at 127–128.
"Placing a telephone call," we continued, "is not the same as turning on a radio
and being taken by surprise by an indecent message." Id.,
Finally, unlike the conditions that prevailed when Congress first authorized
regulation of the broadcast spectrum, the Internet can hardly be considered a
"scarce" expressive commodity. It provides relatively unlimited, low-cost
capacity for communication of all kinds. The Government estimates that "[a]s
many as 40 million people use the Internet today, and that figure is expected to
grow to 200 million by 1999."(34) This dynamic, multifaceted category of
communication includes not only traditional print and news services, but also
audio, video, and still images, as well as interactive, real-time dialogue.
Through the use of chat rooms, any person with a phone line can become a town
crier with a voice that resonates farther than it could from any soapbox.
Through the use of Web pages, mail exploders, and newsgroups, the same
individual can become a pamphleteer. As the District Court found, "the content
on the Internet is as diverse as human thought." 929 F. Supp.,
at 842 (finding 74). We agree with its conclusion that our cases provide
no basis for qualifying the level of First Amendment scrutiny that should be
applied to this medium.
Regardless of whether the CDA is so vague
that it violates the Fifth Amendment, the many ambiguities concerning the scope
of its coverage render it problematic for purposes of the First Amendment. For
instance, each of the two parts of the CDA
uses a different linguistic form. The first uses the word "indecent," 47 U. S.
C. A. §223(a) (Supp. 1997), while the second speaks of material that "in
context, depicts or describes, in terms patently offensive as measured by
contemporary community standards, sexual or excretory activities or organs,"
§223(d). Given the absence of a definition of either term,(35) this difference in language will provoke uncertainty
among speakers about how the two standards relate to each other(36) and just
what they mean.(37) Could a speaker confidently assume that a serious discussion
about birth control practices, homosexuality, the First Amendment issues raised
by the Appendix to our Pacifica opinion, or the consequences of prison
rape would not violate the CDA? This
uncertainty undermines the likelihood that the
CDA has been carefully tailored to the
congressional goal of protecting minors from potentially harmful materials.
The vagueness of the CDA is a matter of
special concern for two reasons. First, the
CDA is a content-based regulation of speech.
The vagueness of such a regulation raises special First Amendment concerns
because of its obvious chilling effect on free speech. See,
e.g., Gentile v. State Bar of Nev., 501
S. 1030, 1048–1051
(1991). Second, the CDA is a criminal
statute. In addition to the opprobrium and stigma of a criminal conviction, the
CDA threatens violators with penalties
including up to two years in prison for each act of violation. The severi ty of criminal sanctions
may well cause speakers to remain silent rather than communicate even arguably
unlawful words, ideas, and images. See, e.g., Dombrowski v. Pfister, 380
S. 479, 494
(1965). As a practical matter, this increased deterrent effect, coupled
with the "risk of discriminatory enforcement" of vague regulations, poses
greater First Amendment concerns than those implicated by the civil regulation
reviewed in Denver Area Ed. Telecommunications Consortium, Inc. v.
FCC, 518 U.
S. ___ (1996).
The Government argues that the statute is no more
vague than the obscenity standard this Court established in Miller
v. California, 413
U. S. 15 (1973).
But that is not so. In Miller, this Court reviewed a criminal conviction
against a commercial vendor who mailed brochures containing pictures of sexually
explicit activities to individuals who had not requested such materials.
at 18. Having struggled for some time to establish a definition of
obscenity, we set forth in Miller the test for obscenity that controls to
"(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." Id.,
at 24 (internal quotation marks and citations omitted).
Because the CDA's "patently
offensive" standard (and, we assume arguendo, its synonymous "indecent" standard)
is one part of the three-prong Miller test, the Government reasons, it
cannot be unconstitutionally vague.
The Government's assertion is incorrect as a matter of fact. The second prong
of the Miller test—the purported ly analogous
standard—contains a critical requirement that is omitted from the
CDA: that the proscribed material be "specifically defined by the applicable state law." This
requirement reduces the vagueness inherent in the open-ended term "patently
offensive" as used in the CDA. Moreover, the
Miller definition is limited to "sexual conduct," whereas the
CDA extends also to include (1) "excretory
activities" as well as (2) "organs" of both a sexual and excretory nature.
The Government's reasoning is also flawed. Just because a definition
including three limitations is not vague, it does not follow that one of those
limitations, standing by itself, is not vague.(38) Each
of Miller's additional two prongs—(1) that, taken as a whole, the
material appeal to the "prurient" interest, and (2) that it "lac[k] serious literary, artistic, political, or scientific
value"—critically limits the uncertain sweep of the obscenity definition. The
second requirement is particularly important because, unlike the "patently
offensive" and "prurient interest" criteria, it is not judged by contemporary
community standards. See Pope v.
U. S. 497, 500
(1987). This "societal value" requirement, absent in the
CDA, 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. The Government's contention that
courts will be able to give such legal limitations to the CDA's standards
is belied by Miller's own rationale for having juries determine whether
material is "patently offensive" according to community standards: that such
questions are essentially ones of fact.(39)
In contrast to Miller and our other previous cases, the
CDA thus presents a greater threat of
censoring speech that, in fact, falls outside the statute's scope. Given the
vague contours of the coverage of the statute, it unquestionably silences some
speakers whose messages would be entitled to constitutional protection. That
danger provides further reason for insisting that the statute not be overly
broad. The CDA's burden on protected speech cannot be justified if it
could be avoided by a more carefully drafted statute.
We are persuaded that the CDA lacks the
precision that the First Amendment requires when a statute regulates the content
of speech. In order to deny minors access to potentially harmful speech, the
CDA effectively suppresses a large amount of
speech that adults have a constitutional right to receive and to address to one
another. That burden on adult speech is unacceptable if less restrictive
alternatives would be at least as effective in achieving the legitimate purpose
that the statute was enacted to serve.
In evaluating the free speech rights of adults, we have made it perfectly
clear that "[s]exual expression which is indecent but
not obscene is protected by the First Amendment." Sable, 492 U. S., at
126. See also Carey v. Population Services Int'l, 431
U. S. 678, 701
(1977) ("[W]here obscenity is not involved, we have
consistently held that the fact that protected speech may be offensive to some
does not justify its suppression"). Indeed,
Pacifica itself admonished
that "the fact that society may find speech offensive is not a sufficient reason
for suppressing it." 438
S., at 745.
It is true that we have repeatedly recognized the governmental interest in
protecting children from harmful materials. See Ginsberg, 390
U. S., at 639;
U. S., at 749.
But that interest does not justify an unnecessarily broad suppression of speech
addressed to adults. As we have explained, the Government may not "reduc[e] the adult population . . . to . . . only what is
fit for children." Denver, 518 U. S., at ___ (slip op., at 29) (internal
quotation marks omitted) (quoting Sable, 492 U. S., at 128).(40)
"[R]egardless of the strength of the government's
interest" in protecting children, "[t]he level of discourse reaching a mailbox
simply cannot be limited to that which would be suitable for a sandbox."
Bolger v. Youngs Drug Products
Corp., 463 U.
S. 60, 74–75 (1983).
The District Court was correct to conclude that the
CDA effectively resembles the ban on
"dial-a-porn" invalidated in Sable. 929 F. Supp., at
854. In Sable, 492 U.
S., at 129, this Court rejected the argument
that we should defer to the congressional judgment that nothing less than a
total ban would be effective in preventing enterprising youngsters from gaining
access to indecent communications. Sable thus made clear that the mere
fact that a statutory regulation of speech was enacted for the important purpose
of protecting children from exposure to sexually explicit material does not
foreclose inquiry into its validity.(41) As we pointed
out last Term, that inquiry embodies an "over-arching commitment" to make sure
that Congress has designed its statute to accomplish its purpose "without
imposing an unnecessarily great restriction on speech."
U. S., at ___
(slip op., at 11).
In arguing that the CDA does not so
diminish adult communication, the Government relies on the incorrect factual
premise that prohibiting a transmission whenever it is known that one of its
recipients is a minor would not interfere with adult-to-adult communication. The
findings of the District Court make clear that this premise is untenable. Given
the size of the potential audience for most messages, in the absence of a viable
age verification process, the sender must be charged with knowing that one or
more minors will likely view it. Knowledge that, for instance, one or more
members of a 100-person chat group will be minor—and therefore that it would be
a crime to send the group an indecent message—would surely burden communication
The District Court found that at the time of trial 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. The Court found no effective way to determine the age of a user who is
accessing material through e-mail, mail exploders, newsgroups, or chat rooms.
929 F. Supp., at 845 (findings 90–94). As a practical
matter, the Court also found that it would be prohibitively expensive for
noncommercial—as well as some commercial—speakers who have Web sites to verify
that their users are adults.
Id., at 845–848
(findings 95–116).(43) These limitations must
inevitably curtail a significant amount of adult communication on the Internet.
By contrast, the District Court found that "[d]espite
its limitations, currently available user-based software suggests that a
reasonably effective method by which parents can prevent their children
from accessing sexually explicit and other material which parents may
believe is inappropriate for their children will soon be widely available."
Id., at 842 (finding
73) (emphases added).
The breadth of the CDA's coverage
is wholly unprecedented. Unlike the regulations upheld in Ginsberg and
Pacifica, the scope of the
CDA is not limited to commercial speech or
commercial entities. Its open-ended prohibitions embrace all nonprofit entities
and individuals posting indecent messages or displaying them on their own
computers in the presence of minors. The general, undefined terms "indecent" and
"patently offensive" cover large amounts of nonpornographic material with serious educational or other
value.(44) Moreover, the "community standards" criterion as applied to the
Internet means that any communication available to a nation-wide audience will
be judged by the standards of the community most likely to be offended by the
message.(45) The regulated subject matter includes any of the seven "dirty
words" used in the Pacifica monologue, the use of which the Government's expert
acknowledged could constitute a felony. See Olsen Test., Tr. Vol. V,
53:16–54:10. It may also extend to discussions about prison rape or safe sexual
practices, artistic images that include nude subjects, and arguably the card
catalogue of the Carnegie Library.
For the purposes of our decision, we need neither accept nor reject the
Government's submission that the First Amendment does not forbid a blanket
prohibition on all "indecent" and "patently offensive" messages communicated to
a 17-year old—no matter how much value the message may contain and regardless of
parental approval. It is at least clear that the strength of the Government's
interest in protecting minors is not equally strong throughout the coverage of
this broad statute. Under the CDA, a parent
allowing her 17-year-old to use the family computer to obtain information on the
Internet that she, in her parental judgment, deems appropriate could face a
lengthy prison term. See 47 U.
S. C. A. §223(a)(2)
(Supp. 1997). Similarly, a parent who sent his 17-year-old college freshman
information on birth control via e-mail could be incarcerated 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.
The breadth of this content-based restriction of speech imposes an especially
heavy burden on the Government to explain why a less restrictive provision would
not be as effective as the CDA. It has not
done so. The arguments in this Court have referred to possible alternatives such
as requiring that indecent material be "tagged" in a way that facilitates
parental control of material coming into their homes, making exceptions for
messages with artistic or educational value, providing some tolerance for
parental choice, and regulating some portions of the Internet—such as commercial
web sites—differently than others, such as chat rooms. Particularly in the light
of the absence of any detailed findings by the Congress, or even hearings
addressing the special problems of the CDA,
we are persuaded that the CDA is not narrowly
tailored if that requirement has any meaning at all.
In an attempt to curtail the CDA's facial
overbreadth, the Government advances three additional
arguments for sustaining the Act's affirmative prohibitions: (1) that the
CDA is constitutional because it leaves open
ample "alternative channels" of communication; (2) that the plain meaning of the
Act's "knowledge" and "specific person" requirement significantly restricts its
permissible applications; and (3) that the Act's prohibitions are "almost
always" limited to material lacking redeeming social value.
The Government first contends that, even though the
CDA effectively censors discourse on many of
the Internet's modalities—such as chat groups, newsgroups, and mail exploders—it
is nonetheless constitutional because it provides a "reasonable opportunity" for
speakers to engage in the restricted speech on the World Wide Web. Brief for Appellants 39. This argument is unpersuasive
because the CDA regulates speech on the basis
of its content. A "time, place, and manner" analysis is therefore inapplicable.
See Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U.
S. 530, 536 (1980). It is thus immaterial whether such speech would be feasible
on the Web (which, as the Government's own expert acknowledged, would cost up to
$10,000 if the speaker's interests were not accommodated by an existing Web
site, not including costs for database management and age verification). The
Government's position is equivalent to arguing that a statute could ban leaflets
on certain subjects as long as individuals are free to publish books. In
invalidating a number of laws that banned leafletting
on the streets regardless of their content—we explained that "one is not
to have the exercise of his liberty of expression in appropriate places abridged
on the plea that it may be exercised in some other place." Schneider v. State (Town of
Irvington), 308 U. S. 147,
The Government also asserts that the "knowledge" requirement of both §§223(a)
and (d), especially when coupled with the "specific child" element found in
§223(d), saves the CDA from overbreadth. Because both sections prohibit the
dissemination of indecent messages only to persons known to be under 18, the
Government argues, it does not require transmitters to "refrain from
communicating indecent material to adults; they need only refrain from
disseminating such materials to persons they know to be under 18." Brief for Appellants 24. This argument ignores the fact that
most Internet fora—including chat rooms, newsgroups,
mail exploders, and the Web—are open to all comers. The Government's assertion
that the knowledge requirement somehow protects the communications of adults is
therefore untenable. Even the strongest reading of the "specific person"
requirement of §223(d) cannot save the statute. It would confer broad powers of
censorship, in the form of a "heckler's veto," upon any opponent of indecent
speech who might simply log on and inform the would-be discoursers that his
17-year-old child—a "specific person . . . under 18 years of age," 47
U. S. C. A.
§223(d)(1)(A) (Supp. 1997)—would be present.
Finally, we find no textual support for the Government's submission that
material having scientific, educational, or other redeeming social value will
necessarily fall outside the CDA's "patently
offensive" and "indecent" prohibitions. See also n. 37, supra.
The Government's three remaining arguments focus on the defenses provided in
§223(e)(5).(46) First, relying on the "good faith, reasonable, effective, and
appropriate actions" provision, the Government suggests that "tagging" provides
a defense that saves the constitutionality of the Act. The suggestion assumes
that transmitters may encode their indecent communications in a way that would
indicate their contents, thus permitting recipients to block their reception
with appropriate software. It is the requirement that the good faith action must
be "effective" that makes this defense illusory. The Government recognizes that
its proposed screening software does not currently exist. Even if it did, there
is no way to know whether a potential recipient will actually block the encoded
material. Without the impossible knowledge that every guardian in
screening for the "tag," the transmitter could not reasonably rely on its action
to be "effective."
For its second and third arguments concerning defenses—which we can consider
together—the Government relies on the latter half of §223(e)(5), which applies
when the transmitter has restricted access by requiring use of a verified credit
card or adult identification. Such verification is not only technologically
available but actually is used by commercial providers of sexually explicit
material. These providers, therefore, would be protected by the defense. Under
the findings of the District Court, however, it is not economically feasible for
most noncommercial speakers to employ such verification. Accordingly, this
defense would not significantly narrow the statute's burden on noncommercial
speech. Even with respect to the commercial pornographers that would be
protected by the defense, the Government failed to adduce any evidence that
these verification techniques actually preclude minors from posing as
adults.(47) Given that the risk of criminal sanctions
"hovers over each content provider, like the proverbial sword of Damocles,"(48)
the District Court correctly refused to rely on unproven future technology to
save the statute. The Government thus failed to prove that the proffered defense
would significantly reduce the heavy burden on adult speech produced by the
prohibition on offensive displays.
We agree with the District Court's conclusion that the
CDA places an unacceptably heavy burden on
protected speech, and that the defenses do not constitute the sort of "narrow
tailoring" that will save an otherwise patently invalid unconstitutional
provision. In Sable, 492 U.
S., at 127, we remarked that the speech
restriction at issue there amounted to "`burn[ing] the
house to roast the pig.'" The CDA, casting a
far darker shadow over free speech, threatens to torch a large segment of the
At oral argument, the Government relied heavily on its ultimate fall-back
position: If this Court should conclude that the
CDA is insufficiently tailored, it urged, we
should save the statute's constitutionality by honoring the severability clause,
see 47 U. S. C.
§608, and construing nonseverable terms narrowly. In
only one respect is this argument acceptable.
A severability clause requires textual provisions that can be severed. We
will follow §608's guidance by leaving constitutional textual elements of the
statute intact in the one place where they are, in fact, severable. The
"indecency" provision, 47 U.
S. C. A. §223(a) (Supp. 1997), applies to "any
comment, request, suggestion, proposal, image, or other communication which is
obscene or indecent." (Emphasis added.) Appellees do not challenge the application of the statute to
obscene speech, which, they acknowledge, can be banned totally because it enjoys
no First Amendment protection. See Miller, 413
U. S., at 18. As
set forth by the statute, the restriction of "obscene" material enjoys a textual
manifestation separate from that for "indecent" material, which we have held
unconstitutional. Therefore, we will sever the term "or indecent" from the
statute, leaving the rest of §223(a) standing. In no other respect, however, can
§223(a) or §223(d) be saved by such a textual surgery.
The Government also draws on an additional, less traditional aspect of the
CDA's severability clause, 47 U.
S. C., §608, which asks any reviewing court
that holds the statute facially unconstitutional not to invalidate the
CDA in application to "other persons or
circumstances" that might be constitutionally permissible. It further invokes
this Court's admonition that, absent "countervailing considerations," a statute
should "be declared invalid to the extent it reaches too far, but otherwise left
intact." Brockett v. Spokane Arcades, Inc., 472
S. 491, 503–504
(1985). There are two flaws in this argument.
First, the statute that grants our jurisdiction for this expedited review, 47
U. S. C. A. §561
(Supp. 1997), limits that jurisdictional grant to actions challenging the
CDA "on its face." Consistent with §561, the
plaintiffs who brought this suit and the three-judge panel that decided it
treated it as a facial challenge. We have no authority, in this particular
posture, to convert this litigation into an "as-applied" challenge. Nor, given
the vast array of plaintiffs, the range of their expressive activities, and the
vagueness of the statute, would it be practicable to limit our holding to a
judicially defined set of specific applications.
Second, one of the "countervailing considerations" mentioned in
Brockett is present here. In considering a facial challenge, this Court
may impose a limiting construction on a statute only if it is "readily
susceptible" to such a construction. Virginia v.
American Bookseller's Assn., Inc., 484
S. 383, 397
(1988). See also Erznoznik, v.
U. S. 205, 216
(1975) ("readily subject" to narrowing construction). The open-ended character
of the CDA provides no guidance what ever for
limiting its coverage.
This case is therefore unlike those in which we have construed a statute
narrowly because the text or other source of congressional intent identified a
clear line that this Court could draw. Cf., e.g., Brockett, 472 U.
S., at 504–505 (invalidating obscenity statute only to the extent that word
"lust" was actually or effectively excised from statute); United States
v. Grace, 461 U. S. 171, 180–183 (1983) (invalidating federal statute
banning expressive displays only insofar as it extended to public sidewalks when
clear line could be drawn between sidewalks and other grounds that comported
with congressional purpose of protecting the building, grounds, and people
therein). Rather, our decision in United
States v. Treasury Employees, 513
U. S. 454, 479,
n. 26 (1995), is applicable. In that case, we declined to "dra[w] one or more lines between categories of speech
covered by an overly broad statute, when Congress has sent inconsistent signals
as to where the new line or lines should be drawn" because doing so "involves a
far more serious invasion of the legislative domain."(49) This Court "will not
rewrite a . . . law to conform it to constitutional requirements." American
Booksellers, 484 U.
S., at 397.(50)
In this Court, though not in the District Court, the Government asserts
that—in addition to its interest in protecting children—its "[e]qually significant" interest in fostering the growth of the
Internet provides an independent basis for upholding the constitutionality of
the CDA. Brief for
Appellants 19. The Government apparently assumes that the unregulated
availability of "indecent" and "patently offensive" material on the Internet is
driving countless citizens away from the medium because of the risk of exposing
themselves or their children to harmful material.
We find this argument singularly unpersuasive. The dramatic expansion of this
new marketplace of ideas contradicts the factual basis of this contention. The
record demonstrates that the growth of the Internet has been and continues to be
phenomenal. As a matter of constitutional tradition, in the absence of evidence
to the contrary, we presume that governmental regulation of the content of
speech is more likely to interfere with the free exchange of ideas than to
encourage it. The interest in encouraging freedom of expression in a democratic
society outweighs any theoretical but unproven benefit of censorship.
For the foregoing reasons, the judgment of the district court is affirmed.
It is so ordered.
SUPREME COURT OF THE UNITED
ATTORNEY GENERAL OF THE UNITED STATES, et al. v. AMERICAN CIVIL LIBERTIES
UNION et al.
Appeal from the
United States District Court for the Eastern District of Pennsylvania
[June 26, 1997]
with whom The Chief Justice joins, concurring in the judgment in part and
dissenting in part.
I write separately to explain why I view the Communications Decency Act of
1996 (CDA) as little more than an attempt by
Congress to create "adult zones" on the Internet. Our precedent indicates that
the creation of such zones can be constitutionally sound. Despite the soundness
of its purpose, however, portions of the CDA
are unconstitutional because they stray from the blueprint our prior cases have
developed for constructing a "zoning law" that passes constitutional muster.
Appellees bring a facial challenge to three
provisions of the CDA. The first, which the
Court describes as the "indecency transmission" provision, makes it a crime to
knowingly transmit an obscene or indecent message or image to a person the
sender knows is under 18 years old. 47 U.
S. C. A. §223(a)(1)(B)
(May 1996 Supp.). What the Court classifies as a single "`patently offensive
display'" provision, see ante, at 11, is in reality two separate
provisions. The first of these makes it a crime to knowingly send a patently
offensive message or image to a specific person under the age of 18 ("specific
person" provision). §223(d)(1)(A). The second
criminalizes the display of patently offensive messages or images "in a[ny] manner available" to minors
("display" provision). §223(d)(1)(B). None of these
provisions purports to keep indecent (or patently offensive) material away from
adults, who have a First Amendment right to obtain this speech. Sable
Communications of Cal., Inc. v. FCC, 492
U. S. 115, 126
(1989) ("Sexual expression which is indecent but not obscene is protected by the
First Amendment"). Thus, the undeniable purpose of the
CDA is to segregate indecent material on the
Internet into certain areas that minors cannot access. See S. Conf. Rep. No.
104–230, p. 189 (1996) (CDA imposes "access
restrictions . . . to protect minors from exposure to indecent material").
The creation of "adult zones" is by no means a novel concept. States have
long denied minors access to certain establishments frequented by adults.(1)
States have also denied minors access to speech deemed to be "harmful to
minors."(2) The Court has previously sustained such zoning laws, but only if
they respect the First Amendment rights of adults and minors. That is to say, a
zoning law is valid if (i) it does not unduly restrict
adult access to the material; and (ii) minors have no First Amendment right to
read or view the banned material. As applied to the Internet as it exists in
1997, the "display" provision and some applications of the "indecency
transmission" and "specific person" provisions fail to adhere to the first of
these limiting principles by restricting adults' access to protected materials
in certain circumstances. Unlike the Court, however, I would invalidate the
provisions only in those circumstances.
Our cases make clear that a "zoning" law is valid only if adults are still
able to obtain the regulated speech. If they cannot, the law does more than
simply keep children away from speech they have no right to obtain—it interferes
with the rights of adults to obtain constitutionally protected speech and
effectively "reduce[s] the adult population . . . to reading only what is fit
for children." Butler v.
S. 380, 383
(1957). The First Amendment does not tolerate such interference. See
id., at 383 (striking down a Michigan criminal law banning sale of
books—to minors or adults—that contained words or pictures that "`tende[d] to . . . corrup[t] the
morals of youth'"); Sable Communications, supra (invalidating
federal law that made it a crime to transmit indecent, but nonobscene, commercial telephone messages to minors and
adults); Bolger v. Youngs Drug
Products Corp., 463 U. S. 60, 74 (1983) (striking down a federal law
prohibiting the mailing of unsolicited advertisements for contraceptives). If
the law does not unduly restrict adults' access to constitutionally protected
speech, however, it may be valid. In Ginsberg v.
New York, 390 U. S. 629, 634 (1968), for example, the Court sustained a
New York law that barred store owners from selling pornographic magazines to
minors in part because adults could still buy those magazines.
The Court in Ginsberg concluded that the New
York law created a constitutionally adequate adult zone
simply because, on its face, it denied access only to minors. The Court did not
question—and therefore necessarily assumed—that an adult zone, once created,
would succeed in preserving adults' access while denying minors' access to the
regulated speech. Before today, there was no reason to question this assumption,
for the Court has previously only considered laws that operated in the physical
world, a world that with two characteristics that make it possible to create
"adult zones": geography and identity. See Lessig,
Reading the Constitution in Cyberspace, 45 Emory L. J. 869, 886 (1996). A minor
can see an adult dance show only if he enters an establishment that provides
such entertainment. And should he attempt to do so, the minor will not be able
to conceal completely his identity (or, consequently, his age). Thus, the twin
characteristics of geography and identity enable the establishment's proprietor
to prevent children from entering the establishment, but to let adults inside.
The electronic world is fundamentally different. Because it is no more than
the interconnection of electronic pathways, cyberspace allows speakers and
listeners to mask their identities. Cyberspace undeniably reflects some form of
geography; chat rooms and Web sites, for example, exist at fixed "locations" on
the Internet. Since users can transmit and receive messages on the Internet
without revealing anything about their identities or ages, see Lessig, supra, at 901, however, it is not currently
possible to exclude persons from accessing certain messages on the basis of
Cyberspace differs from the physical world in another basic way: Cyberspace
is malleable. Thus, it is possible to construct barriers in cyberspace and use
them to screen for identity, making cyberspace more like the physical world and,
consequently, more amenable to zoning laws. This transformation of cyberspace is
already underway. Lessig, supra, at 888–889.
Id., at 887 (cyberspace "is
moving . . . from a relatively unzoned place to a
universe that is extraordinarily well zoned"). Internet speakers (users who post
material on the Internet) have begun to zone cyberspace itself through the use
of "gateway" technology. Such technology requires Internet users to enter
information about themselves—perhaps an adult identification number or a credit
card number—before they can access certain areas of cyberspace, 929 F. Supp.
824, 845 (ED Pa. 1996), much like a bouncer checks a person's driver's license
before admitting him to a nightclub. Internet users who access information have
not attempted to zone cyberspace itself, but have tried to limit their own power
to access information in cyberspace, much as a parent controls what her children
watch on television by installing a lock box. This user-based zoning is
accomplished through the use of screening software (such as Cyber Patrol or
SurfWatch) or browsers with screening capabilities,
both of which search addresses and text for keywords that are associated with
"adult" sites and, if the user wishes, blocks access to such sites.
Id., at 839–842. The
Platform for Internet Content Selection (PICS) project is designed to facilitate
user-based zoning by encouraging Internet speakers to rate the content of their
speech using codes recognized by all screening programs.
Id., at 838–839.
Despite this progress, the transformation of cyberspace is not complete.
Although gateway technology has been available on the World Wide Web for some
time now, id., at 845; Shea v.
Reno, 930 F. Supp. 916, 933–934 (SDNY 1996), it is not available to
all Web speakers, 929 F. Supp., at 845–846, and is just now becoming
technologically feasible for chat rooms and USENET newsgroups, Brief for Federal
Parties 37–38. Gateway technology is not ubiquitous in cyberspace, and because
without it "there is no means of age verification," cyberspace still remains
largely unzoned—and unzoneable. 929 F. Supp., at 846; Shea, supra, at 934. User-based zoning
is also in its infancy. For it to be effective, (i) an
agreed-upon code (or "tag") would have to exist; (ii) screening software or
browsers with screening capabilities would have to be able to recognize the
"tag"; and (iii) those programs would have to be widely available—and widely
used—by Internet users. At present, none of these conditions is true. Screening
software "is not in wide use today" and "only a handful of browsers have
screening capabilities." Shea, supra, at
945–946. There is, moreover, no agreed-upon "tag" for those programs to
recognize. 929 F. Supp., at 848; Shea, supra, at 945.
Although the prospects for the eventual zoning of the Internet appear
promising, I agree with the Court that we must evaluate the constitutionality of
the CDA as it applies to the Internet as it
exists today. Ante, at 36. Given the present state of cyberspace, I agree
with the Court that the "display" provision cannot pass muster. Until gateway
technology is available throughout cyberspace, and it is not in 1997, a speaker
cannot be reasonably assured that the speech he displays will reach only adults
because it is impossible to confine speech to an "adult zone." Thus, the only
way for a speaker to avoid liability under the
CDA is to refrain completely from using
indecent speech. But this forced silence impinges on the First Amendment right
of adults to make and obtain this speech and, for all intents and purposes,
"reduce[s] the adult population [on the Internet] to reading only what is fit
for children." Butler, 352
U. S., at 383.
As a result, the "display" provision cannot withstand scrutiny. Accord, Sable
Communications, 492 U.
S., at 126–131; Bolger v. Youngs Drug Products Corp., 463
U. S., at 73–75.
The "indecency transmission" and "specific person" provisions present a
closer issue, for they are not unconstitutional in all of their applications. As
discussed above, the "indecency transmission" provision makes it a crime to
transmit knowingly an indecent message to a person the sender knows is under 18 years of age. 47 U.
S. C. A. §223(a)(1)(B)
(May 1996 Supp.). The "specific person" provision proscribes the same conduct,
although it does not as explicitly require the sender to know that the intended
recipient of his indecent message is a minor. §223(d)(1)(A). Appellant urges the Court to construe the provision
to impose such a knowledge requirement, see Brief for Federal Parties 25–27, and
I would do so. See Edward J. DeBartolo Corp. v.
Florida Gulf Coast Building & Constr. Trades
Council, 485 U. S. 568, 575 (1988) ("[W]here an otherwise acceptable
construction of a statute would raise serious constitutional problems, the Court
will construe the statute to avoid such problems unless such construction is
plainly contrary to the intent of Congress").
So construed, both provisions are constitutional as applied to a conversation
involving only an adult and one or more minors—e.g., when an adult
speaker sends an e-mail knowing the addressee is a minor, or when an adult and
minor converse by themselves or with other minors in a chat room. In this
context, these provisions are no different from the law we sustained in
Ginsberg. Restricting what the adult may say to the minors in no way
restricts the adult's ability to communicate with other adults. He is not
prevented from speaking indecently to other adults in a chat room (because there
are no other adults participating in the conversation) and he remains free to
send indecent e-mails to other adults. The relevant universe contains only one
adult, and the adult in that universe has the power to refrain from using
indecent speech and consequently to keep all such speech within the room in an
The analogy to Ginsberg breaks down, however, when more than one adult
is a party to the conversation. If a minor enters a chat room otherwise occupied
by adults, the CDA effectively requires the
adults in the room to stop using indecent speech. If they did not, they could be
prosecuted under the "indecency transmission" and "specific person" provisions
for any indecent statements they make to the group, since they would be
transmitting an indecent message to specific persons, one of whom is a minor.
Accord, ante, at 30. The
CDA is therefore akin to a law that makes it
a crime for a bookstore owner to sell pornographic magazines to anyone once a
minor enters his store. Even assuming such a law might be constitutional in the
physical world as a reasonable alternative to excluding minors completely from
the store, the absence of any means of excluding minors
from chat rooms in cyberspace restricts the rights of adults to engage in
indecent speech in those rooms. The "indecency transmission" and "specific
person" provisions share this defect.
But these two provisions do not infringe on adults' speech in all
situations. And as discussed below, I do not find that the provisions are
overbroad in the sense that they restrict minors' access to a substantial amount
of speech that minors have the right to read and view. Accordingly, the
CDA can be applied constitutionally in some
situations. Normally, this fact would require the Court to reject a direct
facial challenge. United
U. S. 739, 745
(1987) ("A facial challenge to a legislative Act [succeeds only if] the
challenger . . . establish[es] that no set of circumstances exists under which the Act
would be valid"). Appellees' claim arises under the
First Amendment, however, and they argue that the
CDA is facially invalid because it is
"substantially overbroad"—that is, it "sweeps too broadly . . . [and] penaliz[es] a substantial amount of speech
that is constitutionally protected,"
County v. Nationalist
Movement, 505 U.
S. 123, 130 (1992). See Brief for Appellees American Library Association et al. 48; Brief for
Appellees American Civil Liberties Union et al. 39–41.
I agree with the Court that the provisions are overbroad in that they cover any
and all communications between adults and minors, regardless of how many adults
might be part of the audience to the communication.
This conclusion does not end the matter, however. Where, as here, "the
parties challenging the statute are those who desire to engage in protected
speech that the overbroad statute purports to punish . . . [t]he statute may
forthwith be declared invalid to the extent that it reaches too far, but
otherwise left intact." Brockett v. Spokane Arcades,
Inc., 472 U.
S. 491, 504
(1985). There is no question that Congress intended to prohibit certain
communications between one adult and one or more minors. See 47
U. S. C. A.
§223(a)(1)(B) (May 1996 Supp.) (punishing "[w]hoever . . .
initiates the transmission of [any indecent communication] knowingly that the
recipient of the communication is under 18 years of age"); §223(d)(1)(A)
(punishing "[w]hoever . . . send[s] to a specific
person or persons under 18 years of age [a patently offensive message]"). There
is also no question that Congress would have enacted a narrower version of these
provisions had it known a broader version would be declared unconstitutional. 47
U. S. C. §608
("If . . . the application [of any provision of the
CDA] to any person or circumstance is held
invalid, . . . the application of such provision to
other persons or circumstances shall not be affected thereby"). I would
therefore sustain the "indecency transmission" and "specific person" provisions
to the extent they apply to the transmission of Internet communications where
the party initiating the communication knows that all of the recipients are
Whether the CDA substantially interferes
with the First Amendment rights of minors, and thereby runs afoul of the second
characteristic of valid zoning laws, presents a closer question. In
Ginsberg, the New York law
we sustained prohibited the sale to minors of magazines that were "harmful to
minors." Under that law, a magazine was "harmful to minors" only if it was
obscene as to minors. 390 U.
S., at 632–633. Noting that obscene speech is
not protected by the First Amendment, Roth v. United States, 354
U. S. 476, 485 (1957), and that New York was constitutionally free to adjust the
definition of obscenity for minors, 390 U. S., at 638, the Court concluded that
the law did not "invad[e] the area of freedom of
expression constitutionally secured to minors." Id., at
637. New York therefore did
not infringe upon the First Amendment rights of minors. Cf. Erznoznik v.
U. S. 205, 213
(1975) (striking down city ordinance that banned nudity that was not "obscene
even as to minors").
The Court neither "accept[s] nor reject[s]" the
argument that the CDA is facially overbroad
because it substantially interferes with the First Amendment rights of minors.
Ante, at 32. I would reject it. Ginsberg established that minors
may constitutionally be denied access to material that is obscene as to minors.
As Ginsberg explained, material is obscene as to minors if it (i) is "patently offensive to prevailing standards in the
adult community as a whole with respect to what is suitable . . . for minors";
(ii) appeals to the prurient interest of minors; and (iii) is "utterly without
redeeming social importance for minors." 390
S., at 633.
Because the CDA denies minors the right to
obtain material that is "patently offensive"—even if it has some redeeming value
for minors and even if it does not appeal to their prurient interests—Congress'
rejection of the Ginsberg "harmful to minors" standard means that the
CDA could ban some speech that is "indecent"
(i.e., "patently offensive") but that is not obscene as to minors.
I do not deny this possibility, but to prevail in a facial challenge, it is
not enough for a plaintiff to show "some" overbreadth.
Our cases require a proof of "real" and "substantial" overbreadth, Broadrick v.
U. S. 601, 615
(1973), and appellees have not carried their burden in
this case. In my view, the universe of speech constitutionally protected as to
minors but banned by the CDA—i.e., the
universe of material that is "patently offensive," but which nonetheless has
some redeeming value for minors or does not appeal to their prurient interest—is
a very small one. Appellees cite no examples of speech
falling within this universe and do not attempt to explain why that universe is
substantial "in relation to the statute's plainly legitimate sweep." Ibid. That the CDA
might deny minors the right to obtain material that has some "value," see
ante, at 32–33, is largely beside the point. While discussions about
prison rape or nude art, see ibid., may have some redeeming education
value for adults, they do not necessarily have any such value for
minors, and under Ginsberg, minors only have a First Amendment
right to obtain patently offensive material that has "redeeming social
importance for minors," 390 U. S., at 633 (emphasis added). There is also
no evidence in the record to support the contention that "many [e]-mail
transmissions from an adult to a minor are conversations between family
members," ante, at 18, n. 32, and no support for the legal proposition
that such speech is absolutely immune from regulation. Accordingly, in my view,
the CDA does not burden a substantial amount
of minors' constitutionally protected speech.
Thus, the constitutionality of the CDA as
a zoning law hinges on the extent to which it substantially interferes with the
First Amendment rights of adults. Because the rights of adults are infringed
only by the "display" provision and by the "indecency transmission" and
"specific person" provisions as applied to communications involving more than
one adult, I would invalidate the CDA only to
that extent. Insofar as the "indecency transmission" and "specific person"
provisions prohibit the use of indecent speech in communications between an
adult and one or more minors, however, they can and should be sustained. The
Court reaches a contrary conclusion, and from that holding that I respectfully
(1)"Congress shall make no law . . . abridging the freedom of speech."
U. S. Const.,
(2)The Court made 410 findings, including 356 paragraphs of the parties'
stipulation and 54 findings based on evidence received in open court. See 929 F. Supp. at 830, n. 9, 842, n. 15.
(3)An acronym for the network developed by the Advanced
Research Project Agency.
at 844 (finding 81).
at 831 (finding 3).
at 835 (finding 27).
at 842 (finding 74).
at 836 (finding 36).
(9)"Web publishing is simple enough that thousands of individual users and
small community organizations are using the Web to publish their own personal
`home pages,' the equivalent of individualized newsletters about the person or
organization, which are available to everyone on the Web."
at 837 (finding 42).
at 838 (finding 46).
at 844 (finding 82).
(12)Ibid. (finding 86).
(13)Ibid. (finding 85).
at 848 (finding 117).
at 844–845 (finding 88).
at 845 (finding 89).
at 842 (finding 72).
(19)Ibid. (finding 73).
(20)Id., at 845
(finding 90): "An e-mail address provides no authoritative information about the
addressee, who may use an e-mail `alias' or an anonymous remailer. There is also no universal or reliable listing of
e-mail addresses and corresponding names or telephone numbers, and any such
listing would be or rapidly become incomplete. For these reasons, there is no
reliable way in many instances for a sender to know if the e-mail recipient is
an adult or a minor. The difficulty of e-mail age verification is compounded for
mail exploders such as listservs, which automatically
send information to all e-mail addresses on a sender's list. Government expert
Dr. Olsen agreed that no current technology could give a speaker assurance that
only adults were listed in a particular mail exploder's mailing list."
(21)Ibid. (finding 93).
at 846 (finding 102).
(23)Id., at 847
"At least some, if not almost all, non-commercial organizations, such as the
ACLU, Stop Prisoner Rape or Critical Path AIDS Project, regard charging
listeners to access their speech as contrary to their goals of making their
materials available to a wide audience free of charge.
. . . . .
"There is evidence suggesting that adult users, particularly casual Web
browsers, would be discouraged from retrieving information that required use of
a credit card or password. Andrew Anker testified that
HotWired has received many complaints from its members
about HotWired's registration system, which requires
only that a member supply a name, e-mail address and self-created password.
There is concern by commercial content providers that age verification
requirements would decrease advertising and revenue because advertisers depend
on a demonstration that the sites are widely available and frequently visited."
(24)See Exon Amendment No. 1268, 141 Cong. Rec.
S8120 (June 9, 1995). See
also id., at S8087. This amendment, as revised, became §502 of the
Communications Act of 1996, 110 Stat. 133, 47 U.
S. C. A. §§223(a)–(e) (Supp. 1997). Some
Members of the House of Representatives opposed the Exon Amendment because they thought it "possible for our
parents now to child-proof the family computer with these products available in
the private sector." They also thought the Senate's approach would "involve the
Federal Government spending vast sums of money trying to define elusive terms
that are going to lead to a flood of legal challenges while our kids are
unprotected." These Members offered an amendment intended as a substitute for
the Exon Amendment, but instead enacted as an
additional section of the Act entitled "Online Family Empowerment." See 110
Stat. 137, 47 U.
S. C. A. §230 (Supp. 1997); 141 Cong. Rec.
H8468–H8472. No hearings were held on the provisions that became law. See S. Rep. No. 104–23 (1995), p. 9. After the Senate adopted
the Exon amendment, however, its Judiciary Committee
did conduct a one-day hearing on "Cyberporn and
Children." In his opening statement at that hearing, Senator Leahy observed:
"It really struck me in your opening statement when you mentioned, Mr.
Chairman, that it is the first ever hearing, and you are absolutely right. And
yet we had a major debate on the floor, passed legislation overwhelmingly on a
subject involving the Internet, legislation that could dramatically change—some
would say even wreak havoc—on the Internet. The Senate went in willy-nilly,
passed legislation, and never once had a hearing, never once had a discussion
other than an hour or so on the floor." Cyberporn and
Children: The Scope of the Problem, The State of the
Technology, and the Need for Congressional Action, Hearing on S. 892 before the
Senate Committee on the Judiciary, 104th Cong., 1st Sess., 7–8 (1995).
(25) Although the Government and the dissent break §223(d)(1) into two
separate "patently offensive" and "display" provisions, we follow the convention
of both parties below, as well the District Court's order and opinion, in
describing §223(d)(1) as one provision.
(26)In full, § 223(e)(5) provides:
"(5) It is a defense to a prosecution under subsection (a)(1)(B) or (d) of this section, or under subsection (a)(2) of
this section with respect to the use of a facility for an activity under
subsection (a)(1)(B) of this section that a person—
"(A) has taken, in good faith, reasonable, effective, and appropriate actions
under the circumstances to restrict or prevent access by minors to a
communication specified in such subsections, which may involve any appropriate
measures to restrict minors from such communications, including any method which
is feasible under available technology; or
"(B) has restricted access to such communication by
requiring use of a verified credit card, debit account, adult access code, or
adult personal identification number."
(27)American Civil Liberties Union; Human Rights Watch; Electronic Privacy
Information Center; Electronic Frontier Foundation; Journalism Education
Association; Computer Professionals for Social Responsibility; National Writers
Union; Clarinet Communications Corp.; Institute for Global Communications; Stop
Prisoner Rape; AIDS Education Global Information System; Bibliobytes; Queer Resources Directory; Critical Path AIDS
Project, Inc.; Wildcat Press, Inc.; Declan McCullagh
dba Justice on Campus; Brock Meeks dba Cyberwire Dispatch; John
Troyer dba The Safer Sex Page; Jonathan Wallace dba The Ethical Spectacle; and Planned Parenthood Federation
of America, Inc.
(28)American Library Association; America Online, Inc.; American Booksellers
Association, Inc.; American Booksellers Foundation for Free Expression; American
Society of Newspaper Editors; Apple Computer, Inc.; Association of American
Publishers, Inc.; Association of Publishers, Editors and Writers; Citizens
Internet Empowerment Coalition; Commercial Internet Exchange Association;
CompuServe Incorporated; Families Against Internet Censorship; Freedom to Read
Foundation, Inc.; Health Sciences Libraries Consortium; Hotwired Ventures LLC;
Interactive Digital Software Association; Interactive Services Association;
Magazine Publishers of America; Microsoft Corporation; The Microsoft Network, L.
L. C.; National Press Photographers Association; Netcom On-Line Communication
Services, Inc.; Newspaper Association of America; Opnet, Inc.; Prodigy Services Company; Society of
Professional Journalists; Wired Ventures, Ltd.
(29)110 Stat. 142–143, note following 47 U.
S. C. A. §223 (Supp. 1997).
(30)See also 929 F. Supp., at 877: "Four related characteristics of Internet
communication have a transcendent importance to our shared holding that the
CDA is unconstitutional on its face. We
explain these characteristics in our Findings of fact above, and I only rehearse
them briefly here. First, the Internet presents very low barriers to entry.
Second, these barriers to entry are identical for both speakers and listeners.
Third, as a result of these low barriers, astoundingly diverse content is
available on the Internet. Fourth, the Internet provides significant access to
all who wish to speak in the medium, and even creates a relative parity among
speakers." According to Judge Dalzell, these characteristics and the rest of the
District Court's findings "lead to the conclusion that Congress may not regulate
indecency on the Internet at all." Ibid. Because
appellees do not press this argument before this
Court, we do not consider it. Appellees also do not
dispute that the Government generally has a compelling interest in protecting
minors from "indecent" and "patently offensive" speech.
S., at 639. We quoted from Prince v.
Massachusetts, 321 U. S. 158, 166 (1944): "It is cardinal with us that
the custody, care and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for obligations the state can
neither supply nor hinder."
(32)Given the likelihood that many E-mail transmissions from an adult to a
minor are conversations between family members, it is therefore incorrect for
the dissent to suggest that the provisions of the
CDA, even in this narrow area, "are no
different from the law we sustained in Ginsberg." Post, at 8.
(33)Cf. Pacifica Foundation v. FCC, 556 F. 2d 9, 36 (CADC 1977)
(Levanthal, J., dissenting), rev'd, FCC v. Pacifica Foundation, 438
U. S. 726
(1978). When Pacifica was decided, given that radio stations were allowed
to operate only pursuant to federal license, and that Congress had enacted
legislation prohibiting licensees from broadcasting indecent speech, there was a
risk that members of the radio audience might infer some sort of official or
societal approval of whatever was heard over the radio, see 556 F. 2d, at 37, n.
18. No such risk attends messages received through the Internet, which is not
supervised by any federal agency.
(34)Juris. Statement 3 (citing 929 F. Supp., at 831 (finding 3)).
(35)"Indecent" does not benefit from any textual embellishment at all. "Patently offensive" is qualified only to the extent that it
involves "sexual or excretory activities or organs" taken "in context" and
"measured by contemporary community standards."
(36)See Gozlon-Peretz v.
U. S. 395, 404
(1991) ("Where Congress includes particular language in one section of a statute
but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in the
disparate inclusion and exclusion") (internal quotation marks omitted).
(37)The statute does not indicate whether the "patently offensive" and
"indecent" determinations should be made with respect to minors or the
population as a whole. The Government asserts that the appropriate standard is
"what is suitable material for minors." Reply Brief for Appellants 18, n. 13
(citing Ginsberg v. New
S. 629, 633
(1968)). But the Conferees expressly rejected amendments that would have
imposed such a "harmful to minors" standard. See S. Conf. Rep. No. 104–230, p.
189 (1996) (S. Conf. Rep.), 142 Cong. Rec. H1145, H1165–1166 (Feb. 1, 1996). The
Conferees also rejected amendments that would have limited the proscribed
materials to those lacking redeeming value. See S. Conf. Rep., at 189, 142 Cong. Rec. H1165–1166 (Feb. 1, 1996).
(38)Even though the word "trunk," standing alone, might refer to luggage, a
swimming suit, the base of a tree, or the long nose of an animal, its meaning is
clear when it is one prong of a three-part description of a species of gray
S., at 30 (Determinations of "what appeals to
the `prurient interest' or is `patently offensive'. . . . are essentially
questions of fact, and our Nation is simply too big and too diverse for this
Court to reasonably expect that such standards could be articulated for all 50
States in a single formulation, even assuming the prerequisite consensus
exists"). The CDA, which implements the
"contemporary community standards" language of Miller, thus conflicts
with the Conferees' own assertion that the
CDA was intended "to establish a uniform
national standard of content regulation." S. Conf. Rep., at
(40)Accord, Butler v. Michigan, 352 U. S. 380, 383 (1957) (ban
on sale to adults of books deemed harmful to children unconstitutional);
Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128
(1989) (ban on "dial-a-porn" messages unconstitutional); Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 73
(1983) (ban on mailing of unsolicited advertisement for contraceptives
(41)The lack of legislative attention to the statute at issue in Sable
suggests another parallel with this case. Compare 492 U. S., at 129–130
("[A]side from conclusory statements during the
debates by proponents of the bill, as well as similar assertions in hearings on
a substantially identical bill the year before, . . . the congressional record
presented to us contains no evidence as to how effective or ineffective
the FCC's most recent regulations were or might prove to be. . . . No
Congressman or Senator purported to present a considered judgment with respect
to how often or to what extent minors could or would circumvent the rules and
have access to dial-a-porn messages") with n. 24, supra.
(42)The Government agrees that these provisions are applicable whenever "a
sender transmits a message to more than one recipient, knowing that at least one
of the specific persons receiving the message is a minor." Opposition to Motion to Affirm and Reply to Juris. Statement 4–5, n. 1.
(43)The Government asserts that "[t]here is nothing constitutionally suspect
about requiring commercial Web site operators . . . to shoulder the modest
burdens associated with their use." Brief for Appellants
35. As a matter of fact, however, there is no evidence that a "modest
burden" would be effective.
(44)Transmitting obscenity and child pornography, whether via the Internet or
other means, is already illegal under federal law for both adults and juveniles.
See 18 U. S. C.
§§1464–1465 (criminalizing obscenity); §2251 (criminalizing child pornography).
In fact, when Congress was considering the
CDA, the Government expressed its view that
the law was unnecessary because existing laws already authorized its ongoing
efforts to prosecute obscenity, child pornography, and child solicitation. See
141 Cong. Rec. S8342 (June 14, 1995) (letter from Kent Markus, Acting Assistant
Attorney General, U. S. Department of Justice, to Sen. Leahy).
(45)Citing Church of Lukumi Babalu Aye, Inc. v.
U. S. 520
(1993), among other cases, appellees offer an
additional reason why, in their view, the CDA
fails strict scrutiny. Because so much sexually explicit content originates
overseas, they argue, the CDA cannot be
"effective." Brief for Appellees American Library
Association et al. 33–34. This argument raises difficult issues regarding the
intended, as well as the permissible scope of, extraterritorial application of
the CDA. We find it unnecessary to address
those issues to dispose of this case.
(46)For the full text of §223(e)(5), see n. 26,
(47)Thus, ironically, this defense may significantly protect commercial
purveyors of obscene postings while providing little (or no) benefit for
transmitters of indecent messages that have significant social or artistic
(48)929 F. Supp., at 855–856.
(49)As this Court long ago explained, "It would certainly be dangerous if the
Legislature could set a net large enough to catch all possible offenders and
leave it to the courts to step inside and say who could be rightfully be
detained and who should be set at large. This would, to some extent, substitute
the judicial for the legislative department of the government."
Reese, 92 U.
S. 214, 221
(1876). In part because of these separation of powers concerns, we have
held that a severability clause is "an aid merely; not an inexorable command."
Dorchy v. Kansas, 264 U. S. 286,
(50)See also Osborne v.
U. S. 103, 121
(1990) (judicial rewriting of statutes would derogate Congress's "incentive to
draft a narrowly tailored law in the first place").
(1)See, e.g., Alaska Stat. Ann. §11.66.300 (1996) (no minors in "adult
entertainment" places); Ariz. Rev. Stat. Ann. §13–3556 (1989) (no minors in
places where people expose themselves); Ark. Code Ann. §§5–27–223, 5–27–224
(1993) (no minors in poolrooms and bars); Colo. Rev. Stat. §18–7–502(2) (1986)
(no minors in places displaying movies or shows that are "harmful to children");
Del. Code Ann., Tit. 11, §1365(i)(2) (1995) (same); D.
C. Code Ann. §22–2001(b)(1)(B) (1996) (same); Fla. Stat. §847.013(2) (1994)
(same); Ga. Code Ann. §16–12–103(b) (1996) (same); Haw. Rev. Stat.
§712–1215(1)(b) (1994) (no minors in movie houses or shows that are
"pornographic for minors"); Idaho Code §18–1515(2) (1987) (no minors in places
displaying movies or shows that are "harmful to minors"); La. Rev. Stat. Ann.
§14:91.11(B) (West 1986) (no minors in places displaying movies that depict sex
acts and appeal to minors' prurient interest); Md. Ann. Code, Art. 27, §416E
(1996) (no minors in establishments where certain enumerated acts are performed
or portrayed); Mich. Comp. Laws §750.141 (1991) (no minors without an adult in
places where alcohol is sold); Minn. Stat. §617.294 (1987 and Supp. 1997) (no
minors in places displaying movies or shows that are "harmful to minors"); Miss.
Code Ann. §97–5–11 (1994) (no minors in poolrooms, billiard halls, or where
alcohol is sold); Mo. Rev. Stat. §573.507 (1995) (no minors in adult cabarets);
Neb. Rev. Stat. §28–809 (1995) (no minors in places displaying movies or shows
that are "harmful to minors"); Nev. Rev. Stat. §201.265(3) (1997) (same); N. H.
Rev. Stat. Ann. §571–B:2(II) (1986) (same); N. M. Stat. Ann. §30–37–3 (1989)
(same); N. Y. Penal Law §235.21(2) (McKinney 1989) (same); N. D. Cent. Code
§12.1–27.1–03 (1985 and Supp. 1995) (same); 18 Pa. Cons. Stat. §5903(a) (Supp.
1997) (same); S. D. Comp. Laws Ann. §22–24–30 (1988) (same); Tenn. Code Ann.
§39–17–911(b) (1991) (same); Vt. Stat. Ann., Tit. 13, §2802(b) (1974) (same);
Va. Code Ann. §18.2–391 (1996) (same).
(2)See, e.g., Ala. Code §13A–12–200.5 (1994); Ariz. Rev. Stat. Ann.
§13–3506 (1989); Ark. Code Ann. 5–68–502 (1993); Cal. Penal Code Ann. §313.1
(West Supp. 1997); Colo. Rev. Stat. §18–7–502(1) (1986); Conn. Gen. Stat.
§53a–196 (1994); Del. Code Ann., Tit. 11, §1365(i)(1)
(1995); D. C. Code Ann. §22–2001(b)(1)(A) (1996); Fla. Stat. §847.012 (1994);
Ga. Code Ann. §16–12–103(a) (1996); Haw. Rev. Stat. §712–1215(1) (1994); Idaho
Code §18–1515(1) (1987); Ill. Comp. Stat., ch. 720,
§5/11–21 (1993); Ind. Code §35–49–3–3(1) (Supp. 1996); Iowa Code §728.2 (1993);
Kan. Stat. Ann. §21–4301c(a)(2) (1988); La. Rev. Stat. Ann. §14:91.11(B) (West
1986); Md. Ann. Code, Art. 27, §416B (1996); Mass. Gen. Laws, ch. 272, §28 (1992); Minn. Stat. §617.293 (1987 and Supp.
1997); Miss. Code Ann. §97–5–11 (1994); Mo. Rev. Stat. §573.040 (1995); Mont.
Code Ann. §45–8–206 (1995); Neb. Rev. Stat. §28–808 (1995); Nev. Rev. Stat.
§§201.265(1), (2) (1997); N. H. Rev. Stat. Ann. §571–B:2(I) (1986); N. M. Stat.
Ann. §30–37–2 (1989); N. Y. Penal Law §235.21(1) (McKinney 1989); N. C. Gen.
Stat. §14–190.15(a) (1993); N. D. Cent. Code §12.1–27.1–03 (1985 and Supp.
1995); Ohio Rev. Code Ann. §2907.31(A)(1) (Supp. 1997); Okla. Stat., Tit. 21,
§1040.76(2) (Supp. 1997); 18 Pa. Cons. Stat. §5903(c) (Supp. 1997); R. I. Gen.
Laws §11–31–10(a) (1996); S. C. Code Ann. §16–15–385(A) (Supp. 1996); S. D.
Comp. Laws Ann. §22–24–28 (1988); Tenn. Code Ann. §39–17–911(a) (1991); Tex
Penal Code Ann. §43.24(b) (1994); Utah Code Ann. §76–10–1206(2) (1995); Vt.
Stat. Ann., Tit. 13, §2802(a) (1974); Va. Code Ann. §18.2–391 (1996); Wash. Rev.
Code §9.68.060 (1988 and Supp. 1997); Wis. Stat. §948.11(2) (Supp. 1995).