535 U.S. 564 (2002), 00-1293, Ashcroft v. American Civil Liberties Union

Docket Nº:No. 00-1293.
Citation:535 U.S. 564, 122 S.Ct. 1700, 152 L.Ed.2d 771, 70 U.S.L.W. 4381
Party Name:John ASHCROFT, Attorney General, Petitioner, v. AMERICAN CIVIL LIBERTIES UNION et al.
Case Date:May 13, 2002
Court:United States Supreme Court

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535 U.S. 564 (2002)

122 S.Ct. 1700, 152 L.Ed.2d 771, 70 U.S.L.W. 4381

John ASHCROFT, Attorney General, Petitioner,



No. 00-1293.

United States Supreme Court.

May 13, 2002

Argued Nov. 28, 2001.

[122 S.Ct. 1702] Syllabus[*]


In Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874, this Court found that the Communications Decency Act of 1996(CDA)--Congress' first attempt to protect children from exposure to pornographic material on the Internet--ran afoul of the First Amendment in its regulation of indecent transmissions and the display of patently offensive material. That conclusion was based, in part, on the crucial consideration that the CDA's breadth was wholly unprecedented. After the Court's decision in Reno, Congress attempted to address this concern in the Child Online Protection Act (COPA). Unlike the CDA, COPA applies only to material displayed on the World Wide Web, covers only communications made for commercial purposes, and restricts only "material that is harmful to minors," 47 U.S.C. § 231(a)(1). In defining "material that is harmful to minors," COPA draws on the three-part obscenity test set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, see § 231(e)(6), and thus requires jurors to apply "contemporary community standards" in assessing material, see § 231(e)(6)(A). Respondents--who post or have members that post sexually oriented material on the Web--filed a facial challenge before COPA went into effect, claiming, inter alia, that the statute violated adults' First Amendment rights because it effectively banned constitutionally protected speech, was not the least restrictive means of accomplishing a compelling governmental purpose, and was substantially overbroad. The District Court issued a preliminary injunction barring the enforcement of COPA because it concluded that the statute was unlikely to survive strict scrutiny. The Third Circuit affirmed but based its decision on a ground not relied upon by the District Court: that COPA's use of "contemporary community standards," § 231(e)(6)(A), to identify material that is harmful to minors rendered the statute substantially overbroad.

Held: COPA's reliance on "community standards" to identify what material "is harmful to minors" does not by itself render the statute substantially overbroad for First Amendment purposes. The Court, however, expresses no view as to whether COPA suffers from substantial overbreadth for reasons other than its use of community standards, whether the statute is unconstitutionally vague, or whether the statute survives

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strict scrutiny. Prudence dictates allowing the Third Circuit to first examine these difficult issues. Because petitioner did not ask to have the preliminary injunction vacated, and because this Court could not do so without addressing matters the Third Circuit has yet to consider, the Government remains enjoined from enforcing COPA absent further action by the lower courts. Pp. 1713-1714.

217 F.3d 162, vacated and remanded.

THOMAS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, in which REHNQUIST, C. [122 S.Ct. 1703] J., and O'CONNOR, SCALIA, and BREYER, JJ., joined, an opinion with respect to Part III-B, in which REHNQUIST, C.J., and O'CONNOR and SCALIA, JJ., joined, and an opinion with respect to Parts III-A, III-C, and III-D, in which REHNQUIST, C.J., and SCALIA, J., joined. O'CONNOR, J., post, p. 1714, and BREYER, J., post, p. 1715, filed opinions concurring in part and concurring in the judgment. KENNEDY, J., filed an opinion concurring in the judgment, in which SOUTER and GINSBURG, JJ., post, p. 1716, joined. STEVENS, J., filed a dissenting opinion, post, p. 1722.


Theodore B. Olson, for petitioner.

Ann E. Beeson, for respondents.

For U.S. Supreme Court briefs, see:

2001 WL 880279 (Pet.Brief)

2001 WL 1117100 (Resp.Brief)

2001 WL 1424604 (Reply.Brief)

2001 WL 1525292 (Resp.Supp.Brief)


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Justice THOMAS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, an opinion with respect to Parts III-A, III-C, and III-D, in which THE CHIEF JUSTICE and Justice SCALIA join, and an opinion with respect to Part III-B, in which THE CHIEF JUSTICE, Justice O'CONNOR, and Justice SCALIA join.

This case presents the narrow question whether the Child Online Protection Act's (COPA or Act) use of "community standards" to identify "material that is harmful to minors" violates the First Amendment. We hold that this aspect of COPA does not render the statute facially unconstitutional.


"The Internet ... offer[s] a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity." 47 U.S.C. § 230(a)(3) (1994 ed., Supp. V). While "surfing" the World Wide Web, the primary method of remote information retrieval on the Internet today,[1] see App. in No. 99-1324(CA3), p. 180 (hereinafter App.), individuals can access material about topics ranging from aardvarks to Zoroastrianism. One can use the Web to read thousands of newspapers published around the globe, purchase tickets for a matinee at the neighborhood movie theater, or follow the progress of any Major League Baseball team on a pitch-by-pitch basis.

The Web also contains a wide array of sexually explicit material, including hardcore pornography. See, e.g., American

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Civil Liberties Union v. Reno, 31 F.Supp.2d 473, 484 (E.D.Pa.1999). In 1998, for instance, there were approximately 28,000 adult sites promoting pornography on the Web. See H.R.Rep. No. 105-775, p. 7 (1998). Because "[n]avigating the Web is relatively straightforward," Reno v. American Civil Liberties Union, 521 U.S. 844, 852, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and access to the Internet is widely available in homes, schools, and libraries across the country,[2] see App. 177-178, children may discover this pornographic material either by deliberately accessing pornographic Web sites or by stumbling upon them. See 31 F.Supp.2d, at 476 ("A child with minimal knowledge of a computer, the ability to operate a browser, and the skill to type a few simple words may be able to access [122 S.Ct. 1704] sexual images and content over the World Wide Web").

Congress first attempted to protect children from exposure to pornographic material on the Internet by enacting the Communications Decency Act of 1996(CDA), 110 Stat. 133. The CDA prohibited the knowing transmission over the Internet of obscene or indecent messages to any recipient under 18 years of age. See 47 U.S.C. § 223(a). It also forbade any individual from knowingly sending over or displaying on the Internet certain "patently offensive" material in a manner available to persons under 18 years of age. See § 223(d). The prohibition specifically extended to "any comment, request, suggestion, proposal, image, or other communication that, in context, depict [ed] or describ[ed], in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." § 223(d)(1).

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The CDA provided two affirmative defenses to those prosecuted under the statute. The first protected individuals who took "good faith, reasonable, effective, and appropriate actions" to restrict minors from accessing obscene, indecent, and patently offensive material over the Internet. See § 223(e)(5)(A). The second shielded those who restricted minors from accessing such material "by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number." § 223(e)(5)(B).

Notwithstanding these affirmative defenses, in Reno v. American Civil Liberties Union, we held that the CDA's regulation of indecent transmissions, see § 223(a), and the display of patently offensive material, see § 223(d), ran afoul of the First Amendment. We concluded that "the CDA lack[ed] the precision that the First Amendment requires when a statute regulates the content of speech" because, "[i]n order to deny minors access to potentially harmful speech, the CDA effectively suppress[ed] a large amount of speech that adults ha[d] a constitutional right to receive and to address to one another." 521 U.S., at 874, 117 S.Ct. 2329.

Our holding was based on three crucial considerations. First, "existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults." Id., at 876, 117 S.Ct. 2329. Second, "[t]he breadth of the CDA's coverage [was] wholly unprecedented." Id., at 877, 117 S.Ct. 2329. "Its open-ended prohibitions embrace[d]," not only commercial speech or commercial entities, but also "all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors." Ibid. In addition, because the CDA did not define the terms "indecent" and "patently offensive," the statute "cover[ed] large amounts of nonpornographic material with serious educational or other value." Ibid. As a result, regulated subject matter under the CDA extended to "discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card

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catalog of the Carnegie Library." Id., at 878, 117 S.Ct. 2329. Third, we found that neither affirmative defense set forth in the CDA "constitute[d] the sort of 'narrow tailoring' that [would] save an otherwise patently invalid unconstitutional provision." Id., at 882, 117 S.Ct. 2329. Consequently, only the CDA's ban on the knowing transmission of obscene messages survived scrutiny because obscene speech enjoys no First Amendment protection. See id., at 883, 117 S.Ct....

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