QUESTION PRESENTED

The Child Online Protection Act (COPA) makes it unlawful to make any communication for commercial purposes by means of the World Wide Web that is available to minors and that includes material that is "harmful to minors," unless good faith efforts are made to prevent children from obtaining access to such material. 47 U.S.C. 231(a)(1) and (c)(1) (Supp. IV 1998). COPA relies in part on "community standards" to identify material that is "harmful to minors." 47 U.S.C. 231(e)(6) (Supp. IV 1998). The question presented is whether the court of appeals properly barred enforcement of COPA on First Amendment grounds because it relies on community standards to identify material that is harmful to minors.

PARTIES TO THE PROCEEDINGS

Petitioner is John Ashcroft, Attorney General of the United States. Respondents are American Civil Liberties Union, Androgyny Books, Inc. d/b/a/ a Different Light BookStores, American Booksellers Foundation for Free Expression, Artnet Worldwide Corporation, Blackstripe, Addazi Inc., d/b/a Condomania, Electronic Frontier Foundation, Electronic Privacy Information Center, Free Speech Media, Internet Content Coalition, OBGYN.net, Philadelphia Gay News, Planetout Corporation, Powell's Bookstore, Riotgrrl, Salon Internet, Inc., and West Stock, Inc.

In the Supreme Court of the United States

No. 00-1293

JOHN ASHCROFT, ATTORNEY GENERAL OF THE
UNITED STATES, PETITIONER

v.

AMERICAN CIVIL LIBERTIES UNION, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Acting Solicitor General, on behalf of the Attorney General of the United States, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a-39a) is reported at 217 F.3d 162. The opinion of the district court granting respondents' motion for a preliminary injunction (App., infra, 40a-100a) is reported at 31 F. Supp. 2d 473. The opinion of the district court granting respondents' application for a temporary restraining order (App., infra, 101a-114a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on June 22, 2000. A petition for rehearing was denied on September 15, 2000 (App., infra, 124a-125a). On December 5, 2000, Justice Souter extended the time within which to file a petition for a writ of certiorari to and including January 15, 2001. On January 9, 2001, Justice Souter further extended the time within which to file a petition for a writ of certiorari to and including February 12, 2001. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

The First Amendment to the United States Constitution provides in relevant part that "Congress shall make no law * * * abridging the freedom of speech, or of the press." The pertinent provisions of the Child Online Protection Act are reprinted in an appendix to this petition. App., infra, 115a-123a.

STATEMENT

1. This case involves the scope of Congress's power to protect children from the harmful effects of sexually explicit material on the Internet. Congress first sought to address that serious problem through the enactment of the Communications Decency Act of 1996 (CDA). See Pub. L. No. 104-104, Tit. V, 502, 110 Stat. 133-134. The CDA prohibited the knowing transmission of "indecent" messages over the Internet to persons under the age of 18, 47 U.S.C. 223(a) (Supp. II 1996), as well as the sending or display of "patently offensive" sexually explicit messages in a manner available to those under 18 years of age. 47 U.S.C. 223(d) (Supp. II 1996). The CDA provided a defense to prosecution to persons who had "taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors" to covered communications. 47 U.S.C. 223(e)(5) (Supp. II 1996).

In Reno v. American Civil Liberties Union (Reno v. ACLU), 521 U.S. 844 (1997), the Court held that the CDA's regulation of "indecent" and "patently offensive" speech violated the First Amendment. The Court reaffirmed that the government has a "'compelling interest in protecting the physical and psychological well-being of minors' which extend[s] to shielding them from indecent messages that are not obscene by adult standards." Id. at 869. It concluded, however, that the government had failed to demonstrate that the CDA was the least restrictive alternative available to further that compelling interest. Id. at 879.

2. Congress reexamined the problem of children's access to sexually explicit material on the Internet in light of this Court's decision in Reno v. ACLU. Both the House and the Senate conducted hearings on the subject. See Legislative Proposals to Protect Children from Inappropriate Materials on the Internet: Hearing Before the Subcomm. on Telecomm., Trade, and Consumer Protection of the House Comm. on Commerce, 105th Cong., 2d Sess. (1998); S. Rep. No. 225, 105th Cong., 2d Sess. 8 (1998) (discussing hearings held by the Senate Committee on Commerce, Science and Transportation). Following those hearings, Congress enacted and the President signed into law the Child Online Protection Act (COPA), Pub. L. No. 105-277, Div. C, Tit. XIV, 1401-1406, 112 Stat. 2681-736 to 2681-741 (47 U.S.C. 231 (Supp. IV 1998)). In crafting COPA, Congress sought to "address[] the specific concerns raised by the Supreme Court" when it invalidated the CDA. See H.R. Rep. No. 775, 105th Cong., 2d Sess. 12 (1998); see also S. Rep. No. 225, supra, at 2.

a. COPA authorizes the imposition of criminal and civil penalties on any person who "knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors." 47 U.S.C. 231(a)(1) (Supp. IV 1998). COPA defines "material that is harmful to minors" to mean "any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind" that is "obscene" or that

(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;

(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

47 U.S.C. 231(e)(6) (Supp. IV 1998) (App., infra, 12a). COPA's definition of nonobscene material that is "harmful to minors" parallels the three-part "harmful to minors" standard this Court approved in Ginsberg v. New York, 390 U.S. 629 (1968), except that it has been modified to take into account the greater flexibility permitted under Miller v. California, 413 U.S. 15 (1973). Compare 47 U.S.C. 231(e)(6) (Supp. IV 1998) with Ginsberg, 390 U.S. at 632-633, and Miller, 413 U.S. at 24. See H.R. Rep. No. 775, supra, at 13, 27-28. COPA's definition also tracks the standard that is used in state laws that prohibit the display to the public of material that is harmful to minors and that require that such material be placed behind a blinder rack, in a sealed wrapper, or in an opaque cover. Id. at 13. Like those state laws, COPA is intended to shield children from material that is "clearly pornographic and inappropriate for [them]," but that is not obscene by adult standards. Id. at 28.

COPA provides "an affirmative defense to prosecution" if a person, "in good faith, has restricted access by minors to material that is harmful to minors." 47 U.S.C. 231(c)(1) (Supp. IV 1998) (App., infra, 117a). A person can qualify for that affirmative defense by (1) "requiring use of a credit card, debit account, adult access code, or adult personal identification number," (2) "accepting a digital certificate that verifies age," or (3) "any other reasonable measures that are feasible under available technology." 47 U.S.C. 231(c)(1) (Supp. IV 1998).

b. Congress enacted legislative findings that explain the basis for COPA. 47 U.S.C. 231 note (Supp. IV 1998) (Congressional Findings). Congress found that the "widespread availability of the Internet" continues to "present[] opportunities for minors to access materials through the World Wide Web in a manner that can frustrate parental supervision or control." 47 U.S.C. 231 note (Supp. IV 1998) (Finding 1). Congress further determined that "the protection of the physical and psychological well-being of minors by shielding them from materials that are harmful to them is a compelling governmental interest." 47 U.S.C. 231 note (Supp. IV 1998) (Finding 2). Congress noted that "the industry has developed innovative ways to help parents and educators restrict material that is harmful to minors through parental control protections and self-regulation." 47 U.S.C. 231 note (Supp. IV 1998) (Finding 3). It found, however, that "such efforts have not provided a national solution to the problem of minors accessing harmful material on the World Wide Web." 47 U.S.C. 231 note (Supp. IV 1998) (Finding 3). Congress concluded that "a prohibition on the distribution of material harmful to minors, combined with legitimate defenses, is currently the most effective and least restrictive means by which to satisfy the compelling government interest." 47 U.S.C. 231 note (Supp. IV 1998) (Finding 4).

c. COPA differs from the CDA in important ways that support Congress's judgment that COPA is the least restrictive way to further the government's compelling interest in protecting children from the effects of materials that are harmful to minors.

First, the CDA applied not only to communications on the World Wide Web, but to all forms of communication on the Internet, including communications through e-mail, listservs, newsgroups, and chat rooms. Reno v. ACLU, 521 U.S. at 851. In contrast, COPA applies only to material posted on the World Wide Web. 47 U.S.C. 231(a)(1) (Supp. IV 1998); H.R. Rep. No. 775, supra, at 12, 25.

Second, the CDA prohibited the display or transmittal of materials that were "indecent" or "patently offensive," without defining those terms, and the CDA did not indicate whether the "indecent" and "patently offensive" determinations "should be made with respect to minors or the population as a whole." Reno v. ACLU, 521 U.S. at 871 & n.37, 873, 877. COPA, by contrast, is specifically limited to material that is "patently offensive with respect to minors," and it identifies the particular types of sexual activities the depiction, description, or representation of which is prohibited. 47 U.S.C. 231(e)(6)(B) (Supp. IV 1998).

Third, the CDA applied to large amounts of nonpornographic materials that have serious educational and other value, including any of the seven "dirty words" used in the monologue in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalog of the Carnegie Library. Reno v. ACLU, 521 U.S. at 873, 877-878. Indeed, the Court noted, the CDA "omit[ted] any requirement that the 'patently offensive' material covered by [the CDA] lack serious literary, artistic, political, or scientific value." Id. at 865. In contrast, COPA contains all three prongs of the Ginsberg test, and thus, by its terms, applies only to material that is designed to appeal to the "prurient interest" of minors and that, "taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." 47 U.S.C. 231(e)(6)(A) and (C) (Supp. IV 1998).

Fourth, the CDA defined a minor as any person under the age of 18. Reno v. ACLU, 521 U.S. at 859, 865-866. In contrast, COPA, like the state law upheld in Ginsberg, defines minor to mean "any person under 17 years of age." 47 U.S.C. 231(e)(7) (Supp. IV 1998).

Fifth, the CDA applied not only to commercial entities or transactions like the statute in Ginsberg, but also to all nonprofit entities and to individuals posting messages on their own computers. Reno v. ACLU, 521 U.S. at 856, 865, 877. In contrast, COPA applies only to those Web communications that are made "for commercial purposes." 47 U.S.C. 231(a)(1) (Supp. IV 1998).

Sixth, the CDA made it unlawful for parents to permit their children to use the family computer to view indecent or patently offensive material, regardless of whether the parents believed that it was appropriate for their children to obtain that material because of its value. Reno v. ACLU, 521 U.S. at 865, 878. In contrast, COPA contains no such prohibition. H.R. Rep. No. 775, supra, at 15; see also S. Rep. No. 225, supra, at 6.

3. The American Civil Liberties Union and several other entities and individuals (respondents) filed suit in the United States District Court for the Eastern District of Pennsylvania against the Attorney General of the United States, seeking to invalidate COPA. Respondents alleged that COPA violates the First and Fifth Amendments to the Constitution, and they sought to enjoin its enforcement. App., infra, 12a & n.13, 42a.

The district court entered a preliminary injunction preventing any enforcement of the harmful-to-minors provisions of the Act against anyone. App., infra, 40a-100a. Many of the court's findings and conclusions, however, support the Act's constitutionality. The court found that "[m]any of the same characteristics which make cyberspace ideal for First Amendment expression-ease of participation and diversity of content and speakers-make it a potentially harmful media for children." App., infra, 41a. The court explained that "[a] child with minimal knowledge of a computer, the ability to operate a browser, and the skill to type a few simple words may be able to access sexual images and content over the World Wide Web." Ibid. For example, the court noted, "typing the word 'dollhouse' or 'toys' into a typical Web search engine will produce a page of links, some of which connect to what would be considered by many to be pornographic Web sites," and those sites offer "free sexually explicit images and animated graphic image files." Ibid. The district court held that Congress has a compelling interest in shielding children from such pornographic materials. Id. at 90a.

The court also found that adult identification systems are readily available that permit Web site operators to prevent children from obtaining access to harmful materials while still offering such materials to adults. App., infra, 71a. The court noted, for example, that Adult Check provides (at no cost to the Web site operator) a script that can be placed at any point on a Web site to which the operator wishes to prevent access by minors. Id. at 75a. An adult user who comes across such a screen may click on a link to the Adult Check site and immediately purchase a Personal Identification Number (PIN) for an annual fee of $16.95, return to the original site, and use the PIN to obtain access to the site. Id. at 75a-76a.

The district court nonetheless held that respondents were likely to prevail in their challenge to COPA for two reasons. First, the court found that the placement of adult screens in front of materials that are harmful to children "may deter users from accessing such materials," and "the loss of users of such material may affect the speakers' economic ability to provide such communications." App., infra, 89a. Based on that finding, the court concluded that respondents were likely to show that COPA imposes a burden on speech that is protected for adults. Id. at 90a.

Second, the district court concluded that "it is not apparent" that the government "can meet its burden to prove that COPA is the least restrictive means available to achieve the goal of restricting the access of minors to [harmful-to-minors] material." App., infra, 93a. In the court's view, "blocking or filtering technology may be at least as successful as COPA" in restricting the access of children to harmful material. Id. at 94a. The court acknowledged that blocking software is both over and under inclusive-it blocks some sites that are not harmful, and it allows other sites that are harmful to slip through. Ibid. The court also found that "[i]t is possible that a computer-savvy minor with some patience would be able to defeat the blocking device." Id. at 82a. The court concluded, however, that the use of blocking software may be as effective as COPA, because software blocks certain sources of harmful material that COPA does not, such as foreign sites and content outside the Web. Ibid.

4. The court of appeals affirmed the district court's judgment granting a preliminary injunction. App., infra, 1a-39a. It did so, however, on a ground upon which the district court had not relied, the parties had not briefed on appeal, and the court of appeals had raised for the first time at oral argument, id. at 21a, 22a n.19.

Like the district court, the court of appeals held that "the government has a compelling interest in protecting children from material that is harmful to them, even if not obscene by adult standards." App., infra, 20a. And unlike the district court, the court of appeals did not question the government's ability to demonstrate that COPA is the least restrictive means available to further that compelling interest. Indeed, the court of appeals specifically rejected the district court's reliance on blocking software as a less restrictive alternative. Id. at 15a n.16. The court of appeals also acknowledged that, in passing COPA, Congress sought to "address[] the specific concerns raised by the Supreme Court" in Reno v. ACLU in invalidating the CDA, App., infra, 6a (quoting H.R. Rep. No. 775, supra, at 12, and citing S. Rep. No. 225, supra, at 2), and it expressed the view that "there may be no other means by which harmful material on the Web may be constitutionally restricted," id. at 3a. The court nevertheless enjoined the enforcement of COPA.

The court of appeals based its "particular determination of COPA's likely unconstitutionality * * * on COPA's reliance on 'contemporary community standards' in the context of the electronic medium of the Web to identify material that is harmful to minors." App., infra, 21a. The court stated that COPA's reliance on community standards, "in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech." Id. at 3a. The court further stated that COPA's reliance on community standards affects the constitutionality of "the entire COPA statute." Id. at 21a. The court could "see no means by which to excise those 'unconstitutional' elements of the statute from those that are constitutional." Id. at 33a.

The court of appeals noted that in Reno v. ACLU, this Court, in identifying various features of the CDA that contributed to its breadth of coverage, had pointed out that "the 'community standards' criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message." See App., infra, 22a (quoting 521 U.S. at 577-578). In that light, the court found it significant that "Web publishers are without any means to limit access to their sites based on the geographic location of particular Internet users." Id. at 24a. As a result, the court reasoned, "to avoid liability under COPA, affected Web publishers would either need to severely censor their publications or implement an age or credit card verification system whereby any material that might be deemed harmful by the most puritan of communities in any state is shielded behind such a verification system." Id. at 24a-25a. If Web publishers were to choose to place their harmful material behind screens, the court explained, it "would prevent access to protected material by any adult * * * without the necessary age verification credentials," and it "would completely bar access to those materials to all minors * * * even if the material would not otherwise have been deemed 'harmful' to them in their respective geographic communities." Id. at 25a. Based on those considerations, the court concluded that COPA "imposes an overreaching burden and restriction on constitutionally protected speech." Id. at 29a.

The court of appeals acknowledged that in Hamling v. United States, 418 U.S. 87 (1974), and Sable Communications of California v. FCC, 492 U.S. 115 (1989), this Court upheld the application of varying community standards to persons whose commercial conduct had effects in different geographic areas. App., infra, 25a-26a. The court of appeals distinguished those cases, however, on the ground that the parties involved "had the ability to control the distribution of controversial material with respect to the geographic communities into which they released it." Id. at 26a.

The government's petition for rehearing and rehearing en banc was denied. App., infra, 124a-125a. Judge Alito voted in favor of rehearing en banc. Id. at 125a.

REASONS FOR GRANTING THE PETITION

The court of appeals, relying on an argument not addressed by the district court or made by the parties on appeal, held that COPA's reliance on community standards to identify material that is harmful to minors "must lead inexorably to a holding of a likelihood of unconstitutionality of the entire COPA statute." App., infra, 21a. The court's decision prevents the government from enforcing COPA against anyone under any circumstances, and the court was further of the view that there may be no constitutional means to protect children from the harmful effects of the voluminous amount of pornographic material on the World Wide Web. Id. at 3a. The court of appeals thus has gravely- indeed, in its own view, perhaps fatally-constricted Congress's power to address that serious problem. The court of appeals' holding is also incorrect. The court's decision is based on a misreading of this Court's decision in Reno v. ACLU, 521 U.S. 844 (1997), and it conflicts with decisions of this Court that have upheld the application of community standards to determine whether material appeals to the prurient interest and is patently offensive. Review by this Court is therefore warranted.

A. COPA makes it unlawful to make any communication for commercial purposes by means of the World Wide Web that is available to minors and that includes material that is "harmful to minors," unless good faith efforts are made to prevent children from obtaining access to such material. 47 U.S.C. 231(a)(1) and (c)(1) (Supp. IV 1998). Material is harmful to minors if it (1) is designed to appeal to the "prurient interest" of minors, (2) depicts sexual activity or specified parts of the anatomy in a manner that is "patently offensive" with respect to minors, and (3) "taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." 47 U.S.C. 231(e)(6) (Supp. IV 1998). COPA relies on community standards to determine whether material appeals to the "prurient interest" of minors and is "patently offensive" with respect to minors. 47 U.S.C. 231(e)(6) (Supp. IV 1998).1

The court of appeals held that COPA's reliance on community standards to identify material that is harmful to minors "must lead inexorably to a holding of a likelihood of unconstitutionality of the entire COPA statute." App., infra, 21a. The court flatly stated that "because the standard by which COPA gauges whether material is 'harmful to minors' is based on identifying 'contemporary community standards' the inability of Web publishers to restrict access to their Web sites based on the geographic locale of the site visitor, in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech." Id. at 3a. The court also stated, without qualification, that COPA's use of community standards leads to a "result [that] imposes an overreaching burden and restriction on constitutionally protected speech." Id. at 29a.

As relief, the court of appeals did not simply enjoin the use of community standards under COPA. The court enjoined the enforcement of COPA across the board, concluding that COPA's reliance on community standards affects the constitutionality of "the entire COPA statute." App., infra, 21a. In the court's view, the use of community standards to identify material that is harmful to minors "is an integral part of the statute, permeating and influencing the whole of the statute," and the court could "see no means by which to excise those 'unconstitutional' elements of the statute from those that are constitutional (assuming for the moment, without deciding, that the remaining clauses of COPA are held to be constitutional)." Id. at 33a. Moreover, as the court saw it, "there may be no other means by which harmful material on the Web may be constitutionally restricted." Id. at 3a. The court therefore apparently was prepared to leave Congress no room to assert its authority to protect children from pornographic material on the Web.

The court of appeals' decision is therefore dramatic and extraordinary in its scope. The decision prevents the government from enforcing a recent Act of Congress against anyone under any circumstances, and it suggests that there may be no constitutional means to protect children from the harmful effects of the voluminous amount of pornographic material on the World Wide Web. The court of appeals' decision therefore clearly warrants this Court's review. See United States v. Gainey, 380 U.S. 63, 65 (1965) (certiorari granted "to review the exercise of the grave power of annulling an Act of Congress").

B. Review is also warranted because the court of appeals erred in its First Amendment analysis of COPA's reliance on community standards. The court of appeals premised its constitutional ruling on a finding that "Web publishers are without any means to limit access to their sites based on the geographic location of particular Internet users." App., infra, 24a. As a result, the court reasoned, "to avoid liability under COPA, affected Web publishers would either need to severely censor their publications or implement an age or credit card verification system whereby any material that might be deemed harmful by the most puritan of communities in any state is shielded behind such a verification system." Id. at 24a-25a. In the court's view, under this Court's decision in Reno v. ACLU, id. at 22a, that consequence "imposes an overreaching burden and restriction on constitutionally protected speech," id. at 29a.

1. The court of appeals' reading of Reno v. ACLU is incorrect. The sentence in Reno v. ACLU discussing community standards, on which the court of appeals relied, was part of a two-paragraph discussion in which the Court noted that "[t]he breadth of the CDA's coverage is wholly unprecedented." 521 U.S. at 877. In that discussion, the Court identified as factors contributing to the CDA's breadth that it was "not limited to commercial speech or commercial entities," but rather applied to "all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors"; that the terms "indecent" and "patently offensive" used in the CDA were undefined and covered "large amounts of nonpornographic material with serious educational or other value"; and that the CDA criminalized parental decisions to allow children to view covered material. Id. at 877-878. It was in connection with the second of those features that the Court pointed out that "the 'community standards' criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message." Ibid.

The Court did not suggest that the breadth of the CDA rendered it per se unconstitutional, much less that the CDA's reliance on community standards was per se unconstitutional. Instead, the Court held that "[t]he 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." 521 U.S. at 879. The Court then invalidated the CDA because the government failed to satisfy that burden. Ibid.

The court of appeals' reliance on Reno v. ACLU is misplaced for two reasons. First, the use of a community standards criterion was only one of several factors that cumulatively led the Court in Reno v. ACLU to place an especially heavy burden of justification on the government, and none of the other factors is present here. Unlike the CDA, COPA defines the covered material as that which is both designed to appeal to the "prurient interest" and is "patently offensive" "with respect to minors"; it enumerates the particular sexual activities that are within its scope; it applies only to communications made for commercial purposes; it expressly does not cover material that has "serious literary, artistic, political, or scientific value" for minors; and it does not penalize the decisions of parents to permit their children to view "harmful" material. Because COPA is carefully limited in scope-and because under COPA reliance on community standards is itself limited to determining what adults would conclude appeals to the prurient interest and is patently offensive specifically "with respect to minors" -COPA's reliance on community standards is quite different from that in the CDA. COPA therefore does not trigger any burden of justification beyond the one that applies to other content-based restrictions.

Second, even if we assume that COPA's reliance on community standards raises the same concerns as all the factors together raised in Reno v. ACLU, COPA's reliance on community standards at most places "an especially heavy burden" on the government to show that COPA is the least restrictive alternative. 521 U.S. at 879. Rather than proceeding to that step in the analysis, however, the court of appeals instead held that COPA's reliance on community standards, "in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech." App., infra, 3a. That error had dramatic consequences, because the court of appeals did not find that the government failed to show that COPA is the least restrictive alternative available to protect children from harmful material on the Web. To the contrary, the court of appeals specifically rejected the district court's reliance on blocking software as a less restrictive alternative, id. at 15a n.16, 38a n.24, and it expressed the view that "there may be no other means by which harmful material on the Web may be constitutionally restricted," id. at 3a. Reno v. ACLU therefore provides no support for the court of appeals' decision invalidating COPA.

2. The court of appeals' decision regarding COPA's reliance on community standards also conflicts with this Court's decisions in Hamling v. United States, 418 U.S. 87 (1974), and Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989). In Hamling, the Court rejected the contention that a federal statute that makes it unlawful to use the mail to distribute obscene publications must incorporate a single national standard of obscenity. The Court stated that "[t]he fact that distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials does not render a federal statute unconstitutional because of the failure of application of uniform national standards of obscenity." 418 U.S. at 106.

In Sable, the Court upheld the constitutionality of a federal prohibition against obscene "dial-a-porn" telephone messages. The Court rejected the contention that the dial-a-porn ban is unconstitutional because "it places message senders in a 'double bind' by compelling them to tailor all their messages to the least tolerant community." 492 U.S. at 124. The Court held that "[t]here is no constitutional barrier under Miller to prohibiting communications that are obscene in some communities under local standards even though they are not obscene in others." Id. at 125-126. The Court explained that "[i]f Sable's audience is comprised of different communities with different local standards, Sable ultimately bears the burden of complying with the prohibition on obscene messages." Id. at 126.

The court of appeals sought to distinguish Hamling and Sable on the ground that the parties involved in those cases "had the ability to control the distribution of controversial material with respect to the geographic communities into which they released it." App., infra, 26a. The Court's analysis in Hamling and Sable, however, did not depend on that fortuity. Instead, the controlling principle that emerges from Hamling and Sable is that a person whose commercial conduct has effects in more than one community has the responsibility to ensure that those effects are lawful in each of the affected communities. That principle applies as much to a commercial pornographer on the World Wide Web as to the parties involved in Hamling and Sable.

When persons post material on the Web, they make it "available, simultaneously, to all communities in the world where a computer can be plugged in." H.R. Rep. No. 775, supra, at 28. Web publishers who make communications for commercial purposes also obtain the benefits of a nationwide market for their products. Under Hamling and Sable, there is "no constitutional barrier" to placing the responsibility upon such publishers to make sure that their communications are not harmful to children in the communities that those communications reach. Sable, 492 U.S. at 125-126. "If [such a publisher's] audience is comprised of different communities with different local standards, [that publisher] ultimately bears the burden of complying with the [restrictions] on [harmful-to-minors] messages." Id. at 126.

3. The court of appeals' constitutional analysis also fails to give sufficient weight to the features of COPA that make its reliance on community standards particularly unproblematic.

a. First, Congress expressly found that COPA's harmful to minors standard is "one that is reasonably constant among adults in America with respect to what is suitable for minors." H.R. Rep. No. 775, supra, at 28. The court of appeals rejected Congress's judgment based on this Court's statement in Miller that communities throughout the United States may vary in their views on what material is obscene for adults. App., infra, 32a. The court erred in relying on that statement. Even if the average adult in a particular State or locality might feel that adults should have relatively free access to pornographic material, there is no reason to believe that those same adults would want children in the State or locality to be exposed to such material. For similar reasons, there is every reason to expect a far greater degree of agreement from community to community with respect to what adults believe is suitable for children on a nationwide and readily accessible medium like the Internet. Moreover, whatever divergence might exist at the margins, Congress had an ample basis for concluding that there would be no significant geographical divergence on the question whether children should have access to the numerous sites that freely display the equivalent of Penthouse centerfolds as teasers to entice the purchase of other more graphic material.

b. COPA also establishes firm limits on the kinds of material that can be viewed as "harmful to minors," thereby confining any potential divergence among communities to a narrow band of material. By its terms, COPA applies only to material that, taken as a whole, has no "serious literary, artistic, political, or scientific value for minors." 47 U.S.C. 231(e)(6)(C) (Supp. IV 1998). In the obscenity context, this Court has held that community standards do not apply in deciding whether material has serious value. Pope v. Illinois, 481 U.S. 497, 500-501 (1987). Instead, the question is whether "a reasonable person would find such value in the material, taken as a whole." Id. at 501. Congress intended for that same approach to be followed in deciding whether material has serious value for children. H.R. Rep. No. 775, supra, at 27-28.

The serious value prong "allows appellate courts to impose some limitations and regularity * * * by setting, as a matter of law, a national floor for socially redeeming value." Reno v. ACLU, 521 U.S. at 873. The existence of that prong of the inquiry also undermines the court of appeals' assumption that COPA requires Web publishers to place "vast amounts of material" behind age verification screens, App., infra, 25a, except to the extent that the court of appeals was referring to the obligations of commercial purveyors of what is truly pornographic for minors. Compare Commonwealth v. American Booksellers Ass'n, 372 S.E.2d 618, 624 (Va. 1988) (finding, upon certification following this Court's decision in Virginia v. American Booksellers Ass'n, 484 U.S. 383 (1998), that none of the 16 books that the plaintiff booksellers submitted as perhaps covered by the harmful-to-minors standard in the Virginia display law lacked serious literary, artistic, political, or scientific value).

Moreover, just as this Court held in Jenkins v. Georgia, 418 U.S. 153 (1974), that the First Amendment imposes "substantive constitutional limitations," enforceable by a reviewing court, on what a jury may find to be "patently offensive" for adults, see id. at 159-161, a reviewing court may also enforce substantive limitations on what may be found to be "patently offensive" with respect to minors. The harmful-to-minors test was intended to capture material that is "clearly pornographic and inappropriate for minor children." H.R. Rep. No. 775, supra, at 28. Congress did not intend to permit communities to treat as patently offensive "entertainment, library, or news materials that merely contain nudity or sexual information." Ibid. That limitation adds important additional protection against significant geographic variations in what may be found harmful to minors.

c. To the extent that there remains some meaningful degree of divergence among communities concerning what material is harmful to minors, a commercial Web publisher can easily comply with COPA by placing behind an age verification screen any material that appears to satisfy all three prongs of the statutory definition. That is the approach a commercial Web publisher would be likely to follow even if it had to comply with the standards of a single community. The placement of material behind adult verification screens that reasonably appears designed to appeal to the prurient interest of minors, depicts sexual activity or certain parts of the anatomy in a manner that is patently offensive with respect to minors, and lacks any serious value for minors, does not impose an unconstitutional burden on adult access to such material.

The district court found that adult verification services would provide personal identification numbers (PINs) to adults for $16.95 a year, and would furnish Web site operators with the software necessary to screen for such numbers at no cost. App., infra, 75a-76a. And the court of appeals even identified a Web service that will provide a person who has a valid credit card an adult PIN "without cost." Id. at 14a n.15 (citing www.freecheck.com). But whether an adult PIN costs $16.95 per year or is free, it is not an unacceptable price to pay for protecting children from the harmful effects of graphic pornographic images.

d. By requiring the placement of material covered by the Act behind age verification screens, COPA in effect directs "the commercial pornographer to put sexually explicit images 'behind the counter.'" H.R. Rep. No. 775, supra, at 15. COPA therefore requires nothing more than what state "blinder rack," "sealed wrapper," "opaque cover," and other display laws require in the world outside cyberspace. See, e.g., Virginia v. American Booksellers Ass'n, 484 U.S. 383 (1988). Despite claims that such laws impose an unconstitutional burden on adult access to protected speech, those laws have been repeatedly upheld. See, e.g., Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996), cert. denied, 520 U.S. 1117 (1997); American Booksellers v. Webb, 919 F.2d 1493, 1509 (11th Cir. 1990), cert. denied, 500 U.S. 942 (1991); American Booksellers Ass'n v. Virginia, 882 F.2d 125, 127-128 (4th Cir. 1989), cert. denied, 494 U.S. 1056 (1990); Upper Midwest Booksellers Ass'n v. City of Minneapolis, 780 F.2d 1389, 1399 (8th Cir. 1985); M.S. News Co. v. Casado, 721 F.2d 1281, 1289 (10th Cir. 1983). There is no basis for reaching a different conclusion here.

C. No further proceedings in the lower courts are needed to clarify the question presented or to render that question suitable for resolution by this Court. As previously noted, the court of appeals held that COPA's reliance on community standards leads inexorably to the conclusion, here and now, that the Attorney General must be enjoined on First Amendment grounds from enforcing COPA against anyone. No further proceedings in the district court are needed for this Court to resolve that legal issue at this stage.

Moreover, the government has been subject for some time to a nationwide preliminary injunction that prevents it from enforcing COPA against anyone.2 Given the nature of the court of appeals' decision affirming that preliminary injunction based on its view of community standards, and the denial of en banc review, there is every reason to expect that further proceedings in the district court would simply result in a permanent injunction of a similarly wide scope on the same ground, and an affirmance of that injunction by the court of appeals. The result would be simply to delay this Court's resolution of the important question presented concerning Congress's ability to rely on community standards in determining whether material appeals to the prurient interest and is patently offensive with respect to minors. That result would only exacerbate the adverse consequences of the decision below.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

BARBARA D. UNDERWOOD
Acting Solicitor General
STUART E. SCHIFFER
Deputy Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
IRVING L. GORNSTEIN
Assistant to the Solicitor
General
BARBARA L. HERWIG
JACOB M. LEWIS
CHARLES SCARBOROUGH

Attorneys

FEBRUARY 2001

1 COPA's definition of material that is "harmful to minors" parallels the three-part "harmful to minors" standard this Court approved in Ginsberg v. New York, 390 U.S. 629 (1968), except that it has been modified to take into account the greater flexibility permitted under Miller v. California, 413 U.S. 15 (1973), including Miller's approval of the use of "community standards" to determine whether material appeals to the "prurient interest" and is "patently offensive." Compare 47 U.S.C. 231(e)(6) (Supp. IV 1998) with Ginsberg, 390 U.S. at 632-633, and Miller, 413 U.S. at 24, 30. Although the text of the standard approved in Miller uses the phrase "community standards" in describing the "prurient interest" inquiry, id. at 24, Miller makes clear that community standards also apply to the inquiry into whether material is "patently offensive," id. at 30. Congress intended to incorporate that aspect of Miller. See H.R. Rep. No. 775, supra, at 13, 27.

2 The district court rejected the government's contention that any injunction should be limited to barring enforcement of the Act against the parties who brought this action. App., infra, 109a-110a n.8. But see United States Department of Defense v. Meinhold, 510 U.S. 939 (1993) (staying injunction insofar as it granted relief to persons other than