ASHCROFT, ATTORNEY GENERAL v. AMERICAN CIVIL LIBERTIES UNION et al.

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Syllabus
ASHCROFT, ATTORNEY GENERAL v. AMERICAN
CIVIL LIBERTIES UNION et al.
certiorari to the united states court of appeals for
the third circuit
No. 00–1293. Argued November 28, 2001—Decided May 13, 2002
In Reno v. American Civil Liberties Union, 521 U. S. 844, 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 mate-
rial 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, see § 231(e)(6), and thus re-
quires jurors to apply “contemporary community standards” in assess-
ing material, see § 231(e)(6)(A). Respondents—who post or have mem-
bers 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 in-
junction 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 Dis-
trict 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 mate-
rial “is harmful to minors” does not by itself render the statute substan-
tially overbroad for First Amendment purposes. The Court, however,
expresses no view as to whether COPA suffers from substantial over-
breadth for reasons other than its use of community standards, whether
the statute is unconstitutionally vague, or whether the statute survives

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Syllabus
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. 585–586.
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 Rehn-
quist, C. 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. 586, and Breyer, J., post, p. 589, 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., joined, post, p. 591.
Stevens, J., filed a dissenting opinion, post, p. 602.
Solicitor General Olson argued the cause for petitioner.
With him on the briefs were Acting Assistant Attorney
General Schiffer, Deputy Solicitor General Kneedler,
Irving L. Gornstein, Barbara L. Herwig, Jacob M. Lewis,
and Charles Scarborough.
Ann E. Beeson argued the cause for respondents. With
her on the briefs were Christopher A. Hansen, Steven R.
Shapiro, Stefan Presser, David L. Sobel, Alexandra A. E.
Shapiro, and Christopher R. Harris.*
*Briefs of amici curiae urging reversal were filed for the County of
DuPage by Richard Hodyl, Jr., Joseph E. Birkett, and Nancy J. Wolfe; for
the American Center for Law and Justice by Jay Alan Sekulow, James
M. Henderson, Sr., Colby M. May, and Walter M. Weber; for Morality in
Media, Inc., et al. by Paul J. McGeady, Robin S. Whitehead, and Janet
M. LaRue; for Wallbuilders, Inc., by Barry C. Hodge; for Senator John S.
McCain et al. by Bruce A. Taylor; and for Senator Raymond N. Haynes
et al. by Richard D. Ackerman and Gary G. Kreep.
Briefs of amici curiae urging affirmance were filed for the American
Society of Journalists and Authors et al. by Carl A. Solano, Theresa E.
Loscalzo, Jennifer DuFault James, Joseph T. Lukens, and Dionna K. Lit-
vin; for the Association of National Advertisers, Inc., by Steven G. Brody

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566 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION
Opinion of the Court
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 Jus-
tice 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.
I
“The Internet . . . offer[s] a forum for a true diversity of
political discourse, unique opportunities for cultural develop-
ment, 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 mate-
rial about topics ranging from aardvarks to Zoroastrianism.
One can use the Web to read thousands of newspapers pub-
lished 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., Amer-
and Gilbert H. Weil; for the Association of American Publishers, Inc., et al.
by R. Bruce Rich and Jonathan Bloom; for the Chamber of Commerce of
the United States by Jodie L. Kelley, Paul M. Smith, and Robert Corn-
Revere; for the Society for the Scientific Study of Sexuality et al. by Mar-
jorie Heins and Joan E. Bertin; and for Volunteer Lawyers for the Arts
et al. by Charles L. Kerr, Elliot M. Mincberg, and Lawrence S. Ottinger.
1 For a thorough explanation of the history, structure, and operation of
the Internet and World Wide Web, see Reno v. American Civil Liberties
Union, 521 U. S. 844, 849–853 (1997).

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ican Civil Liberties Union v. Reno, 31 F. Supp. 2d 473, 484
(ED Pa. 1999). In 1998, for instance, there were approxi-
mately 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 (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 stum-
bling 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 sexual images and content over the World
Wide Web”).
Congress first attempted to protect children from expo-
sure 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 recipi-
ent under 18 years of age. See 47 U. S. C. § 223(a). It also
forbade any individual from knowingly sending over or dis-
playing 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 com-
ment, request, suggestion, proposal, image, or other commu-
nication that, in context, depict[ed] or describ[ed], in terms
patently offensive as measured by contemporary commun-
ity standards, sexual or excretory activities or organs.”
§ 223(d)(1).
2 When this litigation commenced in 1998, “[a]pproximately 70.2 million
people of all ages use[d] the Internet in the United States.” App. 171.
It is now estimated that 115.2 million Americans use the Internet at least
once a month and 176.5 million Americans have Internet access either at
home or at work. See More Americans Online, New York Times, Nov. 19,
2001, p. C7.

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The CDA provided two affirmative defenses to those pros-
ecuted 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 mi-
nors from accessing such material “by requiring use of a ver-
ified 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.
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. Second, “[t]he breadth of the
CDA’s coverage [was] wholly unprecedented.” Id., at 877.
“Its open-ended prohibitions embrace[d],” not only commer-
cial speech or commercial entities, but also “all nonprofit
entities and individuals posting indecent messages or dis-
playing them on their own computers in the presence of mi-
nors.” 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, reg-
ulated subject matter under the CDA extended to “discus-
sions about prison rape or safe sexual practices, artistic im-
ages that include nude subjects, and arguably the card

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catalog of the Carnegie Library.” Id., at 878. 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. Consequently, only the CDA’s ban on the know-
ing transmission of obscene messages survived scrutiny be-
cause obscene speech enjoys no First Amendment protec-
tion. See id., at 883.
After our decision in Reno v. American Civil Liberties
Union, Congress explored other avenues for restricting mi-
nors’ access to pornographic material on the Internet. In
particular, Congress passed and the President signed into
law the Child Online Protection Act, 112 Stat. 2681–736 (codi-
fied in 47 U. S. C. § 231 (1994 ed., Supp. V)). COPA prohibits
any person from “knowingly and with knowledge of the char-
acter of the material, in interstate or foreign commerce by
means of the World Wide Web, mak[ing] any communication
for commercial purposes that is available to any minor and
that includes any material that is harmful to minors.” 47
U. S. C. § 231(a)(1).
Apparently responding to our objections to the breadth of
the CDA’s coverage, Congress limited the scope of COPA’s
coverage in at least three ways. First, while the CDA ap-
plied to communications over the Internet as a whole, includ-
ing, for example, e-mail messages, COPA applies only to ma-
terial displayed on the World Wide Web. Second, unlike the
CDA, COPA covers only communications made “for com-
mercial purposes.” 3 Ibid. And third, while the CDA pro-
3 The statute provides that “[a] person shall be considered to make a
communication for commercial purposes only if such person is engaged in
the business of making such communications.” 47 U. S. C. § 231(e)(2)(A)
(1994 ed., Supp. V). COPA then defines the term “engaged in the busi-
ness” to mean a person:
“who makes a communication, or offers to make a communication, by
means of the World Wide Web, that includes any material that is harmful
to minors, devotes time, attention, or labor to such activities, as a regular
course of such person’s trade or business, with the objective of earning a
profit as a result of such activities (although it is not necessary that the

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hibited “indecent” and “patently offensive” communications,
COPA restricts only the narrower category of “material that
is harmful to minors.” Ibid.
Drawing on the three-part test for obscenity set forth in
Miller v. California, 413 U. S. 15 (1973), COPA defines
“material that is harmful to minors” as
“any communication, picture, image, graphic image file,
article, recording, writing, or other matter of any kind
that is obscene or that—
“(A) the average person, applying contemporary com-
munity 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 sim-
ulated normal or perverted sexual act, or a lewd exhibi-
tion 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).
Like the CDA, COPA also provides affirmative defenses
to those subject to prosecution under the statute. An indi-
vidual may qualify for a defense if he, “in good faith, has
restricted access by minors to material that is harmful to
minors—(A) by requiring the use of a credit card, debit ac-
count, adult access code, or adult personal identification num-
ber; (B) by accepting a digital certificate that verifies age; or
(C) by any other reasonable measures that are feasible under
available technology.” § 231(c)(1). Persons violating COPA
are subject to both civil and criminal sanctions. A civil pen-
alty of up to $50,000 may be imposed for each violation of
person make a profit or that the making or offering to make such communi-
cations be the person’s sole or principal business or source of income).”
§ 231(e)(2)(B).

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the statute. Criminal penalties consist of up to six months
in prison and/or a maximum fine of $50,000. An additional
fine of $50,000 may be imposed for any intentional violation
of the statute. § 231(a).
One month before COPA was scheduled to go into effect,
respondents filed a lawsuit challenging the constitutionality
of the statute in the United States District Court for the
Eastern District of Pennsylvania. Respondents are a di-
verse group of organizations,4 most of which maintain their
own Web sites. While the vast majority of content on their
Web sites is available for free, respondents all derive income
from their sites. Some, for example, sell advertising that is
displayed on their Web sites, while others either sell goods
directly over their sites or charge artists for the privilege of
posting material. 31 F. Supp. 2d, at 487. All respondents
either post or have members that post sexually oriented ma-
terial on the Web. Id., at 480. Respondents’ Web sites con-
tain “resources on obstetrics, gynecology, and sexual health;
visual art and poetry; resources designed for gays and lesbi-
ans; information about books and stock photographic images
offered for sale; and online magazines.” Id., at 484.
In their complaint, respondents alleged that, although they
believed that the material on their Web sites was valuable
for adults, they feared that they would be prosecuted under
COPA because some of that material “could be construed as
‘harmful to minors’ in some communities.” App. 63. Re-
spondents’ facial challenge claimed, inter alia, that COPA
violated adults’ rights under the First and Fifth Amend-
4 Respondents include the American Civil Liberties Union, Androgony
Books, Inc., d/ b/a A Different Light Bookstores, the American Book-
sellers Foundation for Free Expression, Artnet Worldwide Corporation,
BlackStripe, Addazi Inc. d/ b/a Condomania, the Electronic Frontier Foun-
dation, the Electronic Privacy Information Center, Free Speech Media,
OBGYN.net, Philadelphia Gay News, PlanetOut Corporation, Powell’s
Bookstore, Riotgrrl, Salon Internet, Inc., and West Stock, Inc., now known
as ImageState North America, Inc.

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ments because it (1) “create[d] an effective ban on constitu-
tionally protected speech by and to adults”; (2) “[was] not
the least restrictive means of accomplishing any compelling
governmental purpose”; and (3) “[was] substantially over-
broad.” 5 Id., at 100–101.
The District Court granted respondents’ motion for a pre-
liminary injunction, barring the Government from enforcing
the Act until the merits of respondents’ claims could be adju-
dicated. 31 F. Supp. 2d, at 499. Focusing on respondents’
claim that COPA abridged the free speech rights of adults,
the District Court concluded that respondents had estab-
lished a likelihood of success on the merits. Id., at 498.
The District Court reasoned that because COPA constitutes
content-based regulation of sexual expression protected by
the First Amendment, the statute, under this Court’s prece-
dents, was “presumptively invalid” and “subject to strict
scrutiny.” Id., at 493. The District Court then held that
respondents were likely to establish at trial that COPA could
not withstand such scrutiny because, among other reasons,
it was not apparent that COPA was the least restrictive
means of preventing minors from accessing “harmful to mi-
nors” material. Id., at 497.
The Attorney General of the United States appealed the
District Court’s ruling. American Civil Liberties Union v.
Reno, 217 F. 3d 162 (CA3 2000). The United States Court
of Appeals for the Third Circuit affirmed. Rather than re-
viewing the District Court’s “holding that COPA was not
likely to succeed in surviving strict scrutiny analysis,” the
Court of Appeals based its decision entirely on a ground that
was not relied upon below and that was “virtually ignored
by the parties and the amicus in their respective briefs.”
Id., at 173–174. The Court of Appeals concluded that
5 In three other claims, which are not relevant to resolving the dispute
at hand, respondents alleged that COPA infringed the free speech rights
of older minors, violated the right to “communicate and access information
anonymously,” and was “unconstitutionally vague.” App. 101–102.

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COPA’s use of “contemporary community standards” to iden-
tify material that is harmful to minors rendered the statute
substantially overbroad. Because “Web publishers are
without any means to limit access to their sites based on the
geographic location of particular Internet users,” the Court
of Appeals reasoned that COPA would require “any material
that might be deemed harmful by the most puritan of com-
munities in any state” to be placed behind an age or credit
card verification system. Id., at 175. Hypothesizing that
this step would require Web publishers to shield “vast
amounts of material,” ibid., the Court of Appeals was “per-
suaded that this aspect of COPA, without reference to its
other provisions, must lead inexorably to a holding of a likeli-
hood of unconstitutionality of the entire COPA statute,” id.,
at 174.
We granted the Attorney General’s petition for certiorari,
532 U. S. 1037 (2001), to review the Court of Appeals’ deter-
mination that COPA likely violates the First Amendment be-
cause it relies, in part, on community standards to identify
material that is harmful to minors, and now vacate the Court
of Appeals’ judgment.
II
The First Amendment states that “Congress shall make
no law . . . abridging the freedom of speech.” This provision
embodies “[o]ur profound national commitment to the free
exchange of ideas.” Harte-Hanks Communications, Inc. v.
Connaughton, 491 U. S. 657, 686 (1989). “[A]s a general
matter, ‘the First Amendment means that government has
no power to restrict expression because of its message, its
ideas, its subject matter, or its content.’ ” Bolger v. Youngs
Drug Products Corp., 463 U. S. 60, 65 (1983) (quoting Police
Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972)). How-
ever, this principle, like other First Amendment principles,
is not absolute. Cf. Hustler Magazine, Inc. v. Falwell, 485
U. S. 46, 56 (1988).

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Obscene speech, for example, has long been held to fall
outside the purview of the First Amendment. See, e. g.,
Roth v. United States, 354 U. S. 476, 484–485 (1957). But
this Court struggled in the past to define obscenity in a man-
ner that did not impose an impermissible burden on pro-
tected speech. See Interstate Circuit, Inc. v. Dallas, 390
U. S. 676, 704 (1968) (Harlan, J., concurring in part and dis-
senting in part) (referring to the “intractable obscenity prob-
lem”); see also Miller v. California, 413 U. S., at 20–23 (re-
viewing “the somewhat tortured history of th[is] Court’s
obscenity decisions”). The difficulty resulted from the belief
that “in the area of freedom of speech and press the courts
must always remain sensitive to any infringement on genu-
inely serious literary, artistic, political, or scientific expres-
sion.” Id., at 22–23.
Ending over a decade of turmoil, this Court in Miller set
forth the governing three-part test for assessing whether
material is obscene and thus unprotected by the First
Amendment: “(a) [W]hether ‘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 of-
fensive way, sexual conduct specifically defined by the appli-
cable state law; and (c) whether the work, taken as a whole,
lacks serious literary, artistic, political, or scientific value.”
Id., at 24 (citations omitted; emphasis added).
Miller adopted the use of “community standards” from
Roth, which repudiated an earlier approach for assessing ob-
jectionable material. Beginning in the 19th century, Eng-
lish courts and some American courts allowed material to
be evaluated from the perspective of particularly sensitive
persons. See, e. g., Queen v. Hicklin [1868] L. R. 3 Q. B.
360; see also Roth, 354 U. S., at 488–489, and n. 25 (listing
relevant cases). But in Roth, this Court held that this sensi-
tive person standard was “unconstitutionally restrictive of

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the freedoms of speech and press” and approved a standard
requiring that material be judged from the perspective of
“the average person, applying contemporary community
standards.” Id., at 489. The Court preserved the use of
community standards in formulating the Miller test, explain-
ing that they furnish a valuable First Amendment safeguard:
“[T]he primary concern . . . is to be certain that . . . [material]
will be judged by its impact on an average person, rather
than a particularly susceptible or sensitive person—or in-
deed a totally insensitive one.” Miller, supra, at 33 (inter-
nal quotation marks omitted); see also Hamling v. United
States, 418 U. S. 87, 107 (1974) (emphasizing that the princi-
pal purpose of the community standards criterion “is to as-
sure that the material is judged neither on the basis of each
juror’s personal opinion, nor by its effect on a particularly
sensitive or insensitive person or group”).
III
The Court of Appeals, however, concluded that this
Court’s prior community standards jurisprudence “has no
applicability to the Internet and the Web” because “Web
publishers are currently without the ability to control the
geographic scope of the recipients of their communications.”
217 F. 3d, at 180. We therefore must decide whether this
technological limitation renders COPA’s reliance on commu-
nity standards constitutionally infirm.6
6 While petitioner contends that a speaker on the Web possesses the
ability to communicate only with individuals located in targeted geo-
graphic communities, Brief for Petitioner 29, n. 3, he stipulated below that
“[o]nce a provider posts its content on the Internet and chooses to make
it available to all, it generally cannot prevent that content from entering
any geographic community.” App. 187. The District Court adopted this
stipulation as a finding of fact, see American Civil Liberties Union v.
Reno, 31 F. Supp. 2d 473, 484 (ED Pa. 1999), and petitioner points to no
evidence in the record suggesting that this finding is clearly erroneous.

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A
In addressing this question, the parties first dispute the
nature of the community standards that jurors will be in-
structed to apply when assessing, in prosecutions under
COPA, whether works appeal to the prurient interest of mi-
nors and are patently offensive with respect to minors.7 Re-
spondents contend that jurors will evaluate material using
“local community standards,” Brief for Respondents 40,
while petitioner maintains that jurors will not consider the
community standards of any particular geographic area, but
rather will be “instructed to consider the standards of the
adult community as a whole, without geographic specifica-
tion.” Brief for Petitioner 38.
In the context of this case, which involves a facial chal-
lenge to a statute that has never been enforced, we do not
think it prudent to engage in speculation as to whether cer-
tain hypothetical jury instructions would or would not be
consistent with COPA, and deciding this case does not re-
quire us to do so. It is sufficient to note that community
standards need not be defined by reference to a precise geo-
graphic area. See Jenkins v. Georgia, 418 U. S. 153, 157
(1974) (“A State may choose to define an obscenity offense
in terms of ‘contemporary community standards’ as defined
in Miller without further specification . . . or it may choose
to define the standards in more precise geographic terms,
as was done by California in Miller”). Absent geographic
7 Although the phrase “contemporary community standards” appears
only in the “prurient interest” prong of the Miller test, see Miller v. Cali-
fornia, 413 U. S. 15, 24 (1973), this Court has indicated that the “patently
offensive” prong of the test is also a question of fact to be decided by
a jury applying contemporary community standards. See, e. g., Pope v.
Illinois, 481 U. S. 497, 500 (1987). The parties here therefore agree that
even though “contemporary community standards” are similarly men-
tioned only in the “prurient interest” prong of COPA’s harmful-to-minors
definition, see 47 U. S. C. § 231(e)(6)(A), jurors will apply “contemporary
community standards” as well in evaluating whether material is “patently
offensive with respect to minors,” § 231(e)(6)(B).

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specification, a juror applying community standards will in-
evitably draw upon personal “knowledge of the community
or vicinage from which he comes.” Hamling, supra, at 105.
Petitioner concedes the latter point, see Reply Brief for Peti-
tioner 3–4, and admits that, even if jurors were instructed
under COPA to apply the standards of the adult population
as a whole, the variance in community standards across the
country could still cause juries in different locations to reach
inconsistent conclusions as to whether a particular work is
“harmful to minors.” Brief for Petitioner 39.
B
Because juries would apply different standards across the
country, and Web publishers currently lack the ability to
limit access to their sites on a geographic basis, the Court of
Appeals feared that COPA’s “community standards” compo-
nent would effectively force all speakers on the Web to abide
by the “most puritan” community’s standards. 217 F. 3d, at
175. And such a requirement, the Court of Appeals con-
cluded, “imposes an overreaching burden and restriction on
constitutionally protected speech.” Id., at 177.
In evaluating the constitutionality of the CDA, this Court
expressed a similar concern over that statute’s use of com-
munity standards to identify patently offensive material on
the Internet. We noted that “the ‘community standards’
criterion as applied to the Internet means that any communi-
cation available to a nationwide audience will be judged by
the standards of the community most likely to be offended
by the message.” Reno, 521 U. S., at 877–878. The Court
of Appeals below relied heavily on this observation, stating
that it was “not persuaded that the Supreme Court’s concern
with respect to the ‘community standards’ criterion has been
sufficiently remedied by Congress in COPA.” 217 F. 3d,
at 174.
The CDA’s use of community standards to identify pat-
ently offensive material, however, was particularly problem-

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atic in light of that statute’s unprecedented breadth and
vagueness. The statute covered communications depicting
or describing “sexual or excretory activities or organs” that
were “patently offensive as measured by contemporary com-
munity standards”—a standard somewhat similar to the sec-
ond prong of Miller’s three-prong test. But the CDA did
not include any limiting terms resembling Miller’s additional
two prongs. See Reno, 521 U. S., at 873. It neither con-
tained any requirement that restricted material appeal to
the prurient interest nor excluded from the scope of its
coverage works with serious literary, artistic, political, or
scientific value. Ibid. The tremendous breadth of the CDA
magnified the impact caused by differences in community
standards across the country, restricting Web publishers
from openly displaying a significant amount of material that
would have constituted protected speech in some communi-
ties across the country but run afoul of community standards
in others.
COPA, by contrast, does not appear to suffer from the
same flaw because it applies to significantly less material
than did the CDA and defines the harmful-to-minors material
restricted by the statute in a manner parallel to the Miller
definition of obscenity. See supra, at 569–570, 574–575. To
fall within the scope of COPA, works must not only “depic[t],
describ[e], or represen[t], in a manner patently offensive with
respect to minors,” particular sexual acts or parts of the
anatomy,8 they must also be designed to appeal to the pruri-
ent interest of minors and, “taken as a whole, lac[k] serious
8 While the CDA allowed juries to find material to be patently offensive
so long as it depicted or described “sexual or excretory activities or or-
gans,” COPA specifically delineates the sexual activities and anatomical
features, the depictions of which may be found to be patently offensive:
“an actual or simulated sexual act or sexual contact, an actual or simulated
normal or perverted sexual act, or a lewd exhibition of the genitals or
post-pubescent female breast.” 47 U. S. C. § 231(e)(6)(B).

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literary, artistic, political, or scientific value for minors.” 47
U. S. C. § 231(e)(6).
These additional two restrictions substantially limit the
amount of material covered by the statute. Material ap-
peals to the prurient interest, for instance, only if it is in
some sense erotic. Cf. Erznoznik v. Jacksonville, 422 U. S.
205, 213, and n. 10 (1975).9 Of even more significance, how-
ever, is COPA’s exclusion of material with serious value for
minors. See 47 U. S. C. § 231(e)(6)(C). In Reno, we empha-
sized that the serious value “requirement is particularly im-
portant because, unlike the ‘patently offensive’ and ‘prurient
interest’ criteria, it is not judged by contemporary commu-
nity standards.” 521 U. S., at 873 (citing Pope v. Illinois,
481 U. S. 497, 500 (1987)). This is because “the value of [a]
work [does not] vary from community to community based
on the degree of local acceptance it has won.” Ibid.
Rather, the relevant question is “whether a reasonable per-
son would find . . . value in the material, taken as a whole.”
Id., at 501. Thus, the serious value requirement “allows ap-
pellate courts to impose some limitations and regularity on
the definition by setting, as a matter of law, a national floor
for socially redeeming value.” Reno, supra, at 873 (empha-
sis added), a safeguard nowhere present in the CDA.10
9 Justice Stevens argues that the “prurient interest” prong does not
“substantially narrow the category of images covered” by COPA because
“[a]rguably every depiction of nudity—partial or full—is in some sense
erotic with respect to minors,” post, at 607–608 (dissenting opinion) (em-
phasis in original). We do not agree. For example, we have great diffi-
culty understanding how pictures of a war victim’s wounded nude body
could reasonably be described under the vast majority of circumstances as
erotic, especially when evaluated from the perspective of minors. See
Webster’s Ninth New Collegiate Dictionary 422 (1991) (defining erotic as
“of, devoted to, or tending to arouse sexual love or desire”).
10 Justice Stevens contends that COPA’s serious value prong only
marginally limits the sweep of the statute because it does not protect all
material with serious value but just those works with serious value for
minors. See post, at 608. His dissenting opinion, however, does not
refer to any evidence supporting this counterintuitive assertion, and there

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C
When the scope of an obscenity statute’s coverage is suffi-
ciently narrowed by a “serious value” prong and a “prurient
interest” prong, we have held that requiring a speaker dis-
seminating material to a national audience to observe vary-
ing community standards does not violate the First Amend-
ment. In Hamling v. United States, 418 U. S. 87 (1974), this
Court considered the constitutionality of applying commu-
nity standards to the determination of whether material is
obscene under 18 U. S. C. § 1461, the federal statute prohibit-
ing the mailing of obscene material. Although this statute
does not define obscenity, the petitioners in Hamling were
tried and convicted under the definition of obscenity set forth
in Book Named “John Cleland’s Memoirs of a Woman of
Pleasure” v. Attorney General of Mass., 383 U. S. 413 (1966),
which included both a “prurient interest” requirement and a
requirement that prohibited material be “ ‘utterly without
redeeming social value.’ ” Hamling, supra, at 99 (quoting
Memoirs, supra, at 418).
Like respondents here, the dissenting opinion in Hamling
argued that it was unconstitutional for a federal statute to
rely on community standards to regulate speech. Justice
Brennan maintained that “[n]ational distributors choosing to
send their products in interstate travels [would] be forced to
cope with the community standards of every hamlet into
which their goods [might] wander.” 418 U. S., at 144. As a
result, he claimed that the inevitable result of this situation
would be “debilitating self-censorship that abridges the First
Amendment rights of the people.” Ibid.
This Court, however, rejected Justice Brennan’s argument
that the federal mail statute unconstitutionally compelled
is certainly none in the record suggesting that COPA restricts about the
same amount of material as did the CDA. Moreover, Justice Stevens
does not dispute that COPA’s “serious value” prong serves the important
purpose of allowing appellate courts to set “as a matter of law, a national
floor for socially redeeming value.” Reno, 521 U. S., at 873.

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speakers choosing to distribute materials on a national basis
to tailor their messages to the least tolerant community:
“The fact that distributors of allegedly obscene materials
may be subjected to varying community standards in the
various federal judicial districts into which they transmit the
materials does not render a federal statute unconstitutional.”
Id., at 106.
Fifteen years later, Hamling’s holding was reaffirmed in
Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115
(1989). Sable addressed the constitutionality of 47 U. S. C.
§ 223(b) (1982 ed., Supp. V), a statutory provision prohibiting
the use of telephones to make obscene or indecent communi-
cations for commercial purposes. The petitioner in that
case, a “dial-a-porn” operator, challenged, in part, that por-
tion of the statute banning obscene phone messages. Like
respondents here, the “dial-a-porn” operator argued that re-
liance on community standards to identify obscene material
impermissibly compelled “message senders . . . to tailor all
their messages to the least tolerant community.” 492 U. S.,
at 124.11 Relying on Hamling, however, this Court once
again rebuffed this attack on the use of community standards
in a federal statute of national scope: “There is no constitu-
tional barrier under Miller to prohibiting communications
that are obscene in some communities under local standards
even though they are not obscene in others. If Sable’s audi-
ence is comprised of different communities with different
local standards, Sable ultimately bears the burden of com-
plying with the prohibition on obscene messages.” 492
U. S., at 125–126 (emphasis added).
The Court of Appeals below concluded that Hamling and
Sable “are easily distinguished from the present case” be-
cause in both of those cases “the defendants had the ability
11 Although nowhere mentioned in the relevant statutory text, this
Court has held that the Miller test defines regulated speech for purposes
of federal obscenity statutes such as 47 U. S. C. § 223(b) (1994 ed.). See,
e. g., Smith v. United States, 431 U. S. 291, 299 (1977).

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to control the distribution of controversial material with re-
spect to the geographic communities into which they re-
leased it” whereas “Web publishers have no such comparable
control.” 217 F. 3d, at 175–176. In neither Hamling nor
Sable, however, was the speaker’s ability to target the re-
lease of material into particular geographic areas integral
to the legal analysis. In Hamling, the ability to limit the
distribution of material to targeted communities was not
mentioned, let alone relied upon,12 and in Sable, a dial-a-porn
operator’s ability to screen incoming calls from particular
areas was referenced only as a supplemental point, see 492
U. S., at 125.13 In the latter case, this Court made no effort
to evaluate how burdensome it would have been for dial-a-
porn operators to tailor their messages to callers from thou-
sands of different communities across the Nation, instead
concluding that the burden of complying with the statute
rested with those companies. See id., at 126.
12 This fact was perhaps omitted because under the federal statute at
issue in Hamling v. United States, 418 U. S. 87 (1974), a defendant could
be prosecuted in any district through which obscene mail passed while it
was on route to its destination, see id., at 143–144 (Brennan, J., dissenting),
and a postal customer obviously lacked the ability to control the path his
letter traveled as it made its way to its intended recipient.
13 Justice Stevens’ contention that this Court “upheld the application
of community standards to a nationwide medium” in Sable due to the fact
that “[it] was at least possible” for dial-a-porn operators to tailor their
messages to particular communities is inaccurate. See post, at 605 (dis-
senting opinion). This Court’s conclusion clearly did not hinge either on
the fact that dial-a-porn operators could prevent callers in particular com-
munities from accessing their messages or on an assessment of how bur-
densome it would have been for dial-a-porn operators to take that step.
Rather, these companies were required to abide by the standards of vari-
ous communities for the sole reason that they transmitted their material
into those communities. See Sable, 492 U. S., at 126 (“If Sable’s audience
is comprised of different communities with different local standards, Sable
ultimately bears the burden of complying with the prohibition on ob-
scene messages”).

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While Justice Kennedy and Justice Stevens question
the applicability of this Court’s community standards juris-
prudence to the Internet, we do not believe that the medi-
um’s “unique characteristics” justify adopting a different ap-
proach than that set forth in Hamling and Sable. See post,
at 594–595 (Kennedy, J., concurring in judgment). If a
publisher chooses to send its material into a particular
community, this Court’s jurisprudence teaches that it is the
publisher’s responsibility to abide by that community’s
standards. The publisher’s burden does not change simply
because it decides to distribute its material to every commu-
nity in the Nation. See Sable, supra, at 125–126. Nor does
it change because the publisher may wish to speak only to
those in a “community where avant garde culture is the
norm,” post, at 595 (Kennedy, J., concurring in judgment),
but nonetheless utilizes a medium that transmits its speech
from coast to coast. If a publisher wishes for its material to
be judged only by the standards of particular communities,
then it need only take the simple step of utilizing a medium
that enables it to target the release of its material into
those communities.14
Respondents offer no other grounds upon which to distin-
guish this case from Hamling and Sable. While those cases
involved obscenity rather than material that is harmful to
minors, we have no reason to believe that the practical effect
of varying community standards under COPA, given the
statute’s definition of “material that is harmful to minors,”
is significantly greater than the practical effect of varying
14 In addition, COPA does not, as Justice Kennedy suggests, “ ‘fore-
close an entire medium of expression.’ ” Post, at 596 (quoting City of
Ladue v. Gilleo, 512 U. S. 43, 55 (1994)). While Justice Kennedy and
Justice Stevens repeatedly imply that COPA banishes from the Web
material deemed harmful to minors by reference to community standards,
see, e. g., post, at 596 (opinion concurring in judgment); post, at 608–609,
612 (dissenting opinion), the statute does no such thing. It only requires
that such material be placed behind adult identification screens.

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community standards under federal obscenity statutes. It
is noteworthy, for example, that respondents fail to point out
even a single exhibit in the record as to which coverage
under COPA would depend upon which community in the
country evaluated the material. As a result, if we were to
hold COPA unconstitutional because of its use of community
standards, federal obscenity statutes would likely also be un-
constitutional as applied to the Web,15 a result in substantial
tension with our prior suggestion that the application of the
CDA to obscene speech was constitutional. See Reno, 521
U. S., at 877, n. 44, 882–883.
D
Respondents argue that COPA is “unconstitutionally over-
broad” because it will require Web publishers to shield some
material behind age verification screens that could be
displayed openly in many communities across the Nation if
Web speakers were able to limit access to their sites on a
geographic basis. Brief for Respondents 33–34. “[T]o pre-
vail in a facial challenge,” however, “it is not enough for a
plaintiff to show ‘some’ overbreadth.” Reno, supra, at 896
(O’Connor, J., concurring in judgment in part and dissenting
in part). Rather, “the overbreadth of a statute must not
only be real, but substantial as well.” Broadrick v. Okla-
homa, 413 U. S. 601, 615 (1973). At this stage of the litiga-
tion, respondents have failed to satisfy this burden, at least
solely as a result of COPA’s reliance on community stand-
ards.16 Because Congress has narrowed the range of con-
15 Obscene material, for instance, explicitly falls within the coverage of
COPA. See 47 U. S. C. § 231(e)(6) (1994 ed., Supp. V).
16 Justice Stevens’ conclusion to the contrary is based on little more
than “speculation.” See, e. g., post, at 598 (Kennedy, J., concurring in
judgment). The only objective evidence cited in the dissenting opinion for
the proposition that COPA “will restrict a substantial amount of protected
speech that would not be considered harmful to minors in many commu-
nities” are various anecdotes compiled in an amici brief. See post, at 611,
and n. 7 (citing Brief for Volunteer Lawyers for the Arts et al. as Amici

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tent restricted by COPA in a manner analogous to Miller’s
definition of obscenity, we conclude, consistent with our hold-
ings in Hamling and Sable, that any variance caused by the
statute’s reliance on community standards is not substantial
enough to violate the First Amendment.
IV
The scope of our decision today is quite limited. We hold
only that COPA’s reliance on community standards to iden-
tify “material that is harmful to minors” does not by itself
render the statute substantially overbroad for purposes of
the First Amendment. We do not express any view as to
whether COPA suffers from substantial overbreadth for
other reasons, whether the statute is unconstitutionally
vague, or whether the District Court correctly concluded
that the statute likely will not survive strict scrutiny analy-
Curiae 4–10). Justice Stevens, however, is not even willing to repre-
sent that these anecdotes relate to material restricted under COPA, see
post, at 611, and we understand his reluctance for the vast majority of the
works cited in that brief, if not all of them, are likely unaffected by the
statute. See Brief for Volunteer Lawyer for the Arts et al. as Amici
Curiae 4–10 (describing, among other incidents, controversies in various
communities regarding Maya Angelou’s I Know Why The Caged Bird
Sings, Judy Blume’s Are You There God? It’s Me, Margaret, Aldous Hux-
ley’s Brave New World, J. D. Salinger’s Catcher in the Rye, 1993 Academy
Award Best Picture nominee The Piano, the American Broadcasting Cor-
poration television network’s NYPD Blue, and songs of the “popular folk-
rock duo” the Indigo Girls). These anecdotes are therefore of question-
able relevance to the matter at hand and certainly do not constitute a
sufficient basis for invalidating a federal statute.
Moreover, we do not agree with Justice Kennedy’s suggestion that it
is necessary for the Court of Appeals to revisit this question upon remand.
See post, at 597–599. The lack of evidence in the record relevant to the
question presented does not indicate that “we should vacate for further
consideration.” Post, at 599. Rather, it indicates that respondents, by
offering little more than “speculation,” have failed to meet their burden of
demonstrating in this facial challenge that COPA’s reliance on community
standards renders the statute substantially overbroad.

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sis once adjudication of the case is completed below. While
respondents urge us to resolve these questions at this time,
prudence dictates allowing the Court of Appeals to first ex-
amine these difficult issues.
Petitioner does not ask us to vacate the preliminary in-
junction entered by the District Court, and in any event, we
could not do so without addressing matters yet to be consid-
ered by the Court of Appeals. As a result, the Government
remains enjoined from enforcing COPA absent further action
by the Court of Appeals or the District Court.
For the foregoing reasons, we vacate the judgment of
the Court of Appeals and remand the case for further
proceedings.
It is so ordered.
Justice O’Connor, concurring in part and concurring in
the judgment.
I agree with the plurality that even if obscenity on the
Internet is defined in terms of local community standards,
respondents have not shown that the Child Online Protection
Act (COPA) is overbroad solely on the basis of the variation
in the standards of different communities. See ante, at 577–
579. Like Justice Breyer, however, see post, at 589 (opin-
ion concurring in part and concurring in judgment), I write
separately to express my views on the constitutionality and
desirability of adopting a national standard for obscenity for
regulation of the Internet.
The plurality’s opinion argues that, even under local com-
munity standards, the variation between the most and least
restrictive communities is not so great with respect to the
narrow category of speech covered by COPA as to, alone,
render the statute substantially overbroad. See ante, at
577–579. I agree, given respondents’ failure to provide ex-
amples of materials that lack literary, artistic, political, and
scientific value for minors, which would nonetheless result in
variation among communities judging the other elements of
the test. Respondents’ examples of material for which com-

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munity standards would vary include such things as the
appropriateness of sex education and the desirability of
adoption by same-sex couples. Brief for Respondents 43.
Material addressing the latter topic, however, seems highly
unlikely to be seen to appeal to the prurient interest in any
community, and educational material like the former must,
on any objective inquiry, see ante, at 579, have scientific
value for minors.
But respondents’ failure to prove substantial overbreadth
on a facial challenge in this case still leaves open the possibil-
ity that the use of local community standards will cause prob-
lems for regulation of obscenity on the Internet, for adults
as well as children, in future cases. In an as-applied chal-
lenge, for instance, individual litigants may still dispute that
the standards of a community more restrictive than theirs
should apply to them. And in future facial challenges to
regulation of obscenity on the Internet, litigants may make
a more convincing case for substantial overbreadth. Where
adult speech is concerned, for instance, there may in fact
be a greater degree of disagreement about what is patently
offensive or appeals to the prurient interest.
Nor do I think such future cases can be resolved by appli-
cation of the approach we took in Hamling v. United States,
418 U. S. 87 (1974), and Sable Communications of Cal., Inc.
v. FCC, 492 U. S. 115 (1989). I agree with Justice Ken-
nedy that, given Internet speakers’ inability to control the
geographic location of their audience, expecting them to bear
the burden of controlling the recipients of their speech, as
we did in Hamling and Sable, may be entirely too much to
ask, and would potentially suppress an inordinate amount
of expression. See post, at 594–596 (opinion concurring in
judgment); contra, ante, at 580–584. For these reasons,
adoption of a national standard is necessary in my view for
any reasonable regulation of Internet obscenity.
Our precedents do not forbid adoption of a national stand-
ard. Local community-based standards originated with

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Miller v. California, 413 U. S. 15 (1973). In that case, we
approved jury instructions that based the relevant “commu-
nity standards” on those of the State of California rather
than on the Nation as a whole. In doing so, we held that
“[n]othing in the First Amendment requires” that a jury con-
sider national standards when determining if something is
obscene as a matter of fact. Id., at 31. The First Amend-
ment, we held, did not require that “the people of Maine or
Mississippi accept public depiction of conduct found tolerable
in Las Vegas, or New York City.” Id., at 32. But we said
nothing about the constitutionality of jury instructions that
would contemplate a national standard—i. e., requiring that
the people who live in all of these places hold themselves
to what the nationwide community of adults would find was
patently offensive and appealed to the prurient interest.
Later, in Jenkins v. Georgia, 418 U. S. 153, 157 (1974), we
confirmed that “Miller approved the use of [instructions
based on local standards]; it did not mandate their use.”
The instructions we approved in that case charged the jury
with applying “community standards” without designating
any particular “community.” In holding that a State may
define the obscenity standard by stating the Miller standard
without further specification, 418 U. S., at 157, Jenkins left
open the possibility that jurors would apply any number of
standards, including a national standard, in evaluating mate-
rial’s obscenity.
To be sure, the Court in Miller also stated that a national
standard might be “unascertainable,” 413 U. S., at 31, and
“[un]realistic,” id., at 32. But where speech on the Internet
is concerned, I do not share that skepticism. It is true that
our Nation is diverse, but many local communities encompass
a similar diversity. For instance, in Miller itself, the jury
was instructed to consider the standards of the entire State
of California, a large (today, it has a population of greater
than 33 million people, see U. S. Dept. of Commerce, Bureau
of Census, Statistical Abstract of the United States 23 (120th

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ed. 2000) (Table 20)) and diverse State that includes both
Berkeley and Bakersfield. If the Miller Court believed gen-
eralizations about the standards of the people of California
were possible, and that jurors would be capable of assessing
them, it is difficult to believe that similar generalizations are
not also possible for the Nation as a whole. Moreover, the
existence of the Internet, and its facilitation of national dia-
logue, has itself made jurors more aware of the views of
adults in other parts of the United States. Although jurors
asked to evaluate the obscenity of speech based on a national
standard will inevitably base their assessments to some ex-
tent on their experience of their local communities, I agree
with Justice Breyer that the lesser degree of variation
that would result is inherent in the jury system and does
not necessarily pose a First Amendment problem. See post,
at 591. In my view, a national standard is not only constitu-
tionally permissible, but also reasonable.
While I would prefer that the Court resolve the issue be-
fore it by explicitly adopting a national standard for defining
obscenity on the Internet, given respondents’ failure to dem-
onstrate substantial overbreadth due solely to the variation
between local communities, I join Parts I, II, III–B, and IV
of Justice Thomas’ opinion and the judgment.
Justice Breyer, concurring in part and concurring in
the judgment.
I write separately because I believe that Congress in-
tended the statutory word “community” to refer to the Na-
tion’s adult community taken as a whole, not to geographi-
cally separate local areas. The statutory language does not
explicitly describe the specific “community” to which it re-
fers. It says only that the “average person, applying con-
temporary community standards,” must find that the “mate-
rial as a whole and with respect to minors, is designed
to appeal to, or is designed to pander to, the prurient
interest . . . .” 47 U. S. C. § 231(e)(6) (1994 ed., Supp. V).

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In the statute’s legislative history, however, Congress
made clear that it did not intend this ambiguous statutory
phrase to refer to separate standards that might differ
significantly among different communities. The relevant
House of Representatives Report says:
“The Committee recognizes that the applicability of
community standards in the context of the Web is con-
troversial, but understands it as an ‘adult’ standard,
rather than a ‘geographic’ standard, and one that is
reasonably constant among adults in America with
respect to what is suitable for minors.” H. R. Rep.
No. 105–775, p. 28 (1998) (emphasis added).
This statement, reflecting what apparently was a uniform
view within Congress, makes clear that the standard, and
the relevant community, is national and adult.
At the same time, this view of the statute avoids the need
to examine the serious First Amendment problem that
would otherwise exist. See Almendarez-Torres v. United
States, 523 U. S. 224, 237–238 (1998); Ashwander v. TVA, 297
U. S. 288, 348 (1936) (Brandeis, J., concurring) (“ ‘When the
validity of an act of the Congress is drawn in question, and
even if a serious doubt of constitutionality is raised, it is a
cardinal principle that this Court will first ascertain whether
a construction of the statute is fairly possible by which the
question may be avoided’ ”). To read the statute as adopt-
ing the community standards of every locality in the United
States would provide the most puritan of communities with
a heckler’s Internet veto affecting the rest of the Nation.
The technical difficulties associated with efforts to confine
Internet material to particular geographic areas make the
problem particularly serious. See American Civil Liber-
ties Union v. Reno, 217 F. 3d 162, 175–176 (CA3 2000). And
these special difficulties also potentially weaken the author-
ity of prior cases in which they were not present. Cf. Sable

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Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989);
Hamling v. United States, 418 U. S. 87 (1974). A nationally
uniform adult-based standard—which Congress, in its Com-
mittee Report, said that it intended—significantly allevi-
ates any special need for First Amendment protection. Of
course some regional variation may remain, but any such
variations are inherent in a system that draws jurors from a
local geographic area and they are not, from the perspective
of the First Amendment, problematic. See id., at 105–106.
For these reasons I do not join Part III of Justice
Thomas’ opinion, although I agree with much of the reason-
ing set forth in Parts III–B and III–D, insofar as it explains
the conclusion to which I just referred, namely, that variation
reflecting application of the same national standard by differ-
ent local juries does not violate the First Amendment.
Justice Kennedy, with whom Justice Souter and
Justice Ginsburg join, concurring in the judgment.
I
If a law restricts substantially more speech than is justi-
fied, it may be subject to a facial challenge. Broadrick v.
Oklahoma, 413 U. S. 601, 615 (1973). There is a very real
likelihood that the Child Online Protection Act (COPA or
Act) is overbroad and cannot survive such a challenge. In-
deed, content-based regulations like this one are presump-
tively invalid abridgments of the freedom of speech. See
R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992). Yet COPA
is a major federal statute, enacted in the wake of our pre-
vious determination that its predecessor violated the First
Amendment. See Reno v. American Civil Liberties Union,
521 U. S. 844 (1997). Congress and the President were
aware of our decision, and we should assume that in seeking
to comply with it they have given careful consideration to
the constitutionality of the new enactment. For these rea-
sons, even if this facial challenge appears to have consider-

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able merit, the Judiciary must proceed with caution and iden-
tify overbreadth with care before invalidating the Act.
In this case, the District Court issued a preliminary in-
junction against enforcement of COPA, finding it too broad
across several dimensions. The Court of Appeals affirmed,
but on a different ground. COPA defines “material that is
harmful to minors” by reference to “contemporary commu-
nity standards,” 47 U. S. C. § 231(e)(6) (1994 ed., Supp. V);
and on the theory that these vary from place to place, the
Court of Appeals held that the definition dooms the statute
“without reference to its other provisions.” American
Civil Liberties Union v. Reno, 217 F. 3d 162, 174 (CA3 2000).
The Court of Appeals found it unnecessary to construe the
rest of the Act or address the District Court’s reasoning.
This single, broad proposition, stated and applied at such
a high level of generality, cannot suffice to sustain the Court
of Appeals’ ruling. To observe only that community stand-
ards vary across the country is to ignore the antecedent
question: community standards as to what? Whether the
national variation in community standards produces over-
breadth requiring invalidation of COPA, see Broadrick,
supra, depends on the breadth of COPA’s coverage and on
what community standards are being invoked. Only by
identifying the universe of speech burdened by COPA is it
possible to discern whether national variation in community
standards renders the speech restriction overbroad. In
short, the ground on which the Court of Appeals relied can-
not be separated from those that it overlooked.
The statute, for instance, applies only to “communication
for commercial purposes.” 47 U. S. C. § 231(e)(2)(A). The
Court of Appeals, however, did not consider the amount
of commercial communication, the number of commercial
speakers, or the character of commercial speech covered by
the Act. Likewise, the statute’s definition of “harmful
to minors” requires material to be judged “as a whole.”
§ 231(e)(6)(C). The notion of judging work as a whole is

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familiar in other media, but more difficult to define on the
World Wide Web. It is unclear whether what is to be
judged as a whole is a single image on a Web page, a whole
Web page, an entire multipage Web site, or an interlocking
set of Web sites. Some examination of the group of covered
speakers and the categories of covered speech is necessary in
order to comprehend the extent of the alleged overbreadth.
The Court of Appeals found that COPA in effect subjects
every Internet speaker to the standards of the most puritani-
cal community in the United States. This concern is a real
one, but it alone cannot suffice to invalidate COPA without
careful examination of the speech and the speakers within
the ambit of the Act. For this reason, I join the judgment
of the Court vacating the opinion of the Court of Appeals
and remanding for consideration of the statute as a whole.
Unlike Justice Thomas, however, I would not assume that
the Act is narrow enough to render the national variation in
community standards unproblematic. Indeed, if the District
Court correctly construed the statute across its other dimen-
sions, then the variation in community standards might well
justify enjoining enforcement of the Act. I would leave that
question to the Court of Appeals in the first instance.
II
COPA provides a three-part conjunctive definition of “ma-
terial that is harmful to minors.” The first part of the defi-
nition is that “the average person, applying contemporary
community standards, would find, taking the material as a
whole and with respect to minors, [that it] is designed to
appeal to, or is designed to pander to, the prurient interest.”
47 U. S. C. § 231(e)(6)(A). (The parties agree that the second
part of the definition, § 231(e)(6)(B), likewise invokes contem-
porary community standards, though only implicitly. See
ante, at 576, n. 7.) The nub of the problem is, as the Court
has said, that “the ‘community standards’ criterion as applied
to the Internet means that any communication available to

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a nationwide audience will be judged by the standards of
the community most likely to be offended by the message.”
Reno, 521 U. S., at 877–878. If material might be considered
harmful to minors in any community in the United States,
then the material is covered by COPA, at least when viewed
in that place. This observation was the linchpin of the
Court of Appeals’ analysis, and we must now consider
whether it alone suffices to support the holding below.
The quoted sentence from Reno was not casual dicta;
rather, it was one rationale for the holding of the case.
In Reno, the Court found “[t]he breadth of [COPA’s
predecessor] . . . wholly unprecedented,” id., at 877, in part
because of variation in community standards. The Court
also relied on that variation to assess the strength of the
Government’s interest, which it found “not equally strong
throughout the coverage of this broad statute.” Id., at 878.
The Court illustrated the point with an example: A parent
who e-mailed birth control information to his 17-year-old
child at college might violate the Act, “even though neither
he, his child, nor anyone in their home community found the
material ‘indecent’ or ‘patently offensive,’ if the college
town’s community thought otherwise.” Ibid. Variation
in community standards rendered the statute broader than
the scope of the Government’s own expressed compelling
interest.
It is true, as Justice Thomas points out, ante, at 580–583,
that requiring a speaker addressing a national audience to
meet varying community standards does not always violate
the First Amendment. See Hamling v. United States, 418
U. S. 87, 106 (1974) (obscene mailings); Sable Communica-
tions of Cal., Inc. v. FCC, 492 U. S. 115, 125–126 (1989) (ob-
scene phone messages). These cases, however, are of lim-
ited utility in analyzing the one before us, because each mode
of expression has its own unique characteristics, and each
“must be assessed for First Amendment purposes by stand-
ards suited to it.” Southeastern Promotions, Ltd. v. Con-

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rad, 420 U. S. 546, 557 (1975). Indeed, when Congress pur-
ports to abridge the freedom of a new medium, we must be
particularly attentive to its distinct attributes, for “differ-
ences in the characteristics of new media justify differences
in the First Amendment standards applied to them.” Red
Lion Broadcasting Co. v. FCC, 395 U. S. 367, 386 (1969).
The economics and the technology of each medium affect
both the burden of a speech restriction and the Government’s
interest in maintaining it.
In this case the District Court found as a fact that “[o]nce
a provider posts its content on the Internet and chooses to
make it available to all, it generally cannot prevent that con-
tent from entering any geographic community.” American
Civil Liberties Union v. Reno, 31 F. Supp. 2d 473, 484 (ED
Pa. 1999). By contrast, in upholding a ban on obscene phone
messages, we emphasized that the speaker could “hire opera-
tors to determine the source of the calls or engag[e] with the
telephone company to arrange for the screening and blocking
of out-of-area calls or fin[d] another means for providing mes-
sages compatible with community standards.” Sable, supra,
at 125. And if we did not make the same point in Hamling,
that is likely because it is so obvious that mailing lends itself
to geographic restriction. (The Court has had no occasion
to consider whether venue would be proper in “every hamlet
into which [obscene mailings] may wander,” Hamling, supra,
at 144 (dissenting opinion), for the petitioners in Hamling
did not challenge the statute as overbroad on its face.) A
publisher who uses the mails can choose the location of his
audience.
The economics and technology of Internet communication
differ in important ways from those of telephones and mail.
Paradoxically, as the District Court found, it is easy and
cheap to reach a worldwide audience on the Internet, see 31
F. Supp. 2d, at 482, but expensive if not impossible to reach
a geographic subset, id., at 484. A Web publisher in a com-
munity where avant garde culture is the norm may have no

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desire to reach a national market; he may wish only to speak
to his neighbors; nevertheless, if an eavesdropper in a more
traditional, rural community chooses to listen in, there is
nothing the publisher can do. As a practical matter, COPA
makes the eavesdropper the arbiter of propriety on the Web.
And it is no answer to say that the speaker should “take the
simple step of utilizing a [different] medium.” Ante, at 583
(principal opinion of Thomas, J.). “Our prior decisions have
voiced particular concern with laws that foreclose an entire
medium of expression . . . . [T]he danger they pose to the
freedom of speech is readily apparent—by eliminating a com-
mon means of speaking, such measures can suppress too
much speech.” City of Ladue v. Gilleo, 512 U. S. 43, 55
(1994).
Justice Breyer would alleviate the problem of local vari-
ation in community standards by construing the statute to
comprehend the “Nation’s adult community taken as a
whole,” rather than the local community from which the jury
is drawn. Ante, at 589 (opinion concurring in part and con-
curring in judgment); see also ante, at 586–589 (O’Connor,
J., concurring in part and concurring in judgment). There
is one statement in a House Committee Report to this effect,
“reflecting,” Justice Breyer writes, “what apparently was
a uniform view within Congress.” Ante, at 590. The state-
ment, perhaps, reflects the view of a majority of one House
committee, but there is no reason to believe that it reflects
the view of a majority of the House of Representatives, let
alone the “uniform view within Congress.” Ibid.
In any event, we need not decide whether the statute in-
vokes local or national community standards to conclude that
vacatur and remand are in order. If the statute does incor-
porate some concept of national community standards, the
actual standard applied is bound to vary by community nev-
ertheless, as the Attorney General concedes. See ante, at
577 (principal opinion of Thomas, J.); Brief for Petitioner
39.

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For this reason the Court of Appeals was correct to focus
on COPA’s incorporation of varying community standards;
and it may have been correct as well to conclude that in
practical effect COPA imposes the most puritanical commu-
nity standard on the entire country. We have observed that
it is “neither realistic nor constitutionally sound to read the
First Amendment as requiring that the people of Maine or
Mississippi accept public depiction of conduct found tolerable
in Las Vegas, or New York City.” Miller v. California, 413
U. S. 15, 32 (1973). On the other hand, it is neither realistic
nor beyond constitutional doubt for Congress, in effect, to
impose the community standards of Maine or Mississippi on
Las Vegas and New York. “People in different States vary
in their tastes and attitudes, and this diversity is not to be
strangled by the absolutism of imposed uniformity.” Id.,
at 33. In striking down COPA’s predecessor, the Reno
Court identified this precise problem, and if the Hamling
and Sable Courts did not find the problem fatal, that is
because those cases involved quite different media. The
national variation in community standards constitutes a par-
ticular burden on Internet speech.
III
The question that remains is whether this observation “by
itself ” suffices to enjoin the Act. See ante, at 585. I agree
with the Court that it does not. Ibid. We cannot know
whether variation in community standards renders the Act
substantially overbroad without first assessing the extent of
the speech covered and the variations in community stand-
ards with respect to that speech.
First, the breadth of the Act itself will dictate the degree
of overbreadth caused by varying community standards.
Indeed, Justice Thomas sees this point and uses it in an
attempt to distinguish the Communications Decency Act of
1996, which was at issue in Reno. See ante, at 577–578
(“The CDA’s use of community standards to identify patently

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offensive material, however, was particularly problematic in
light of that statute’s unprecedented breadth and vague-
ness”); ante, at 578 (“The tremendous breadth of the CDA
magnified the impact caused by differences in community
standards across the country”). To explain the ways in
which COPA is narrower than the CDA, Justice Thomas
finds that he must construe sections of COPA elided by the
Court of Appeals. Though I agree with the necessity for
doing so, Justice Thomas’ interpretation—undertaken
without substantial arguments or briefing—is not altogether
persuasive, and I would leave this task to the Court of Ap-
peals in the first instance. As this case comes to us, once it
is accepted that we cannot strike down the Act based merely
on the phrase “contemporary community standards,” we
should go no further than to vacate and remand for a more
comprehensive analysis of the Act.
Second, community standards may have different degrees
of variation depending on the question posed to the commu-
nity. Defining the scope of the Act, therefore, is not relevant
merely to the absolute number of Web pages covered, as Jus-
tice Stevens suggests, post, at 609–610 (dissenting opin-
ion); it is also relevant to the proportion of overbreadth,
“judged in relation to the statute’s plainly legitimate sweep,”
Broadrick, 413 U. S., at 615. Because this issue was “virtu-
ally ignored by the parties and the amicus” in the Court of
Appeals, 217 F. 3d, at 173, we have no information on the
question. Instead, speculation meets speculation. On the
one hand, the Court of Appeals found “no evidence to sug-
gest that adults everywhere in America would share the
same standards for determining what is harmful to minors.”
Id., at 178. On the other hand, Justice Thomas finds “no
reason to believe that the practical effect of varying commu-
nity standards under COPA . . . is significantly greater than
the practical effect of varying community standards under
federal obscenity statutes.” Ante, at 583–584. When a key
issue has “no evidence” on one side and “no reason to be-

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lieve” the other, it is a good indication that we should vacate
for further consideration.
The District Court attempted a comprehensive analysis of
COPA and its various dimensions of potential overbreadth.
The Court of Appeals, however, believed that its own analy-
sis of “contemporary community standards” obviated all
other concerns. It dismissed the District Court’s analysis
in a footnote:
“[W]e do not find it necessary to address the District
Court’s analysis of the definition of ‘commercial pur-
poses’; whether the breadth of the forms of content cov-
ered by COPA could have been more narrowly tailored;
whether the affirmative defenses impose too great a bur-
den on Web publishers or whether those affirmative de-
fenses should have been included as elements of the
crime itself; whether COPA’s inclusion of criminal as
well as civil penalties was excessive; whether COPA is
designed to include communications made in chat rooms,
discussion groups and links to other Web sites; whether
the government is entitled to so restrict communications
when children will continue to be able to access foreign
Web sites and other sources of material that is harmful
to them; what taken ‘as a whole’ should mean in the
context of the Web and the Internet; or whether the
statute’s failure to distinguish between material that is
harmful to a six year old versus a sixteen year old is
problematic.” 217 F. 3d, at 174, n. 19.
As I have explained, however, any problem caused by varia-
tion in community standards cannot be evaluated in a vac-
uum. In order to discern whether the variation creates sub-
stantial overbreadth, it is necessary to know what speech
COPA regulates and what community standards it invokes.
It is crucial, for example, to know how limiting is the Act’s
limitation to “communication for commercial purposes.” 47
U. S. C. § 231(e)(2)(A). In Reno, we remarked that COPA’s

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predecessor was so broad in part because it had no such
limitation. 521 U. S., at 877. COPA, by contrast, covers a
speaker only if:
“the person who makes a communication or offers to
make a communication, by means of the World Wide
Web, that includes any material that is harmful to
minors, devotes time, attention, or labor to such activi-
ties, as a regular course of such person’s trade or busi-
ness, with the objective of earning a profit as a result
of such activities (although it is not necessary that the
person make a profit or that the making or offering
to make such communications be the person’s sole or
principal business or source of income).” 47 U. S. C.
§ 231(e)(2)(B).
So COPA is narrower across this dimension than its prede-
cessor; but how much narrower is a matter of debate. In
the District Court, the Attorney General contended that the
Act applied only to professional panderers, but the court re-
jected that contention, finding “nothing in the text of the
COPA . . . that limits its applicability to so-called commercial
pornographers only.” 31 F. Supp. 2d, at 480. Indeed, the
plain text of the Act does not limit its scope to pornography
that is offered for sale; it seems to apply even to speech pro-
vided for free, so long as the speaker merely hopes to profit
as an indirect result. The statute might be susceptible of
some limiting construction here, but again the Court of Ap-
peals did not address itself to this question. The answer
affects the breadth of the Act and hence the significance of
any variation in community standards.
Likewise, it is essential to answer the vexing question of
what it means to evaluate Internet material “as a whole,” 47
U. S. C. §§ 231(e)(6)(A), (C), when everything on the Web is
connected to everything else. As a general matter, “[t]he
artistic merit of a work does not depend on the presence of
a single explicit scene. . . . [T]he First Amendment requires

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that redeeming value be judged by considering the work as
a whole. Where the scene is part of the narrative, the work
itself does not for this reason become obscene, even though
the scene in isolation might be offensive.” Ashcroft v. Free
Speech Coalition, ante, at 248. COPA appears to respect
this principle by requiring that the material be judged “as a
whole,” both as to its prurient appeal, § 231(e)(6)(A), and as
to its social value, § 231(e)(6)(C). It is unclear, however,
what constitutes the denominator—that is, the material to
be taken as a whole—in the context of the World Wide Web.
See 31 F. Supp. 2d, at 483 (“Although information on the Web
is contained in individual computers, the fact that each of
these computers is connected to the Internet through World
Wide Web protocols allows all of the information to become
part of a single body of knowledge”); id., at 484 (“From a
user’s perspective, [the World Wide Web] may appear to be
a single, integrated system”). Several of the respondents
operate extensive Web sites, some of which include only a
small amount of material that might run afoul of the Act.
The Attorney General contended that these respondents had
nothing to fear from COPA, but the District Court disagreed,
noting that the Act prohibits communication that “includes”
any material harmful to minors. § 231(a)(1). In the Dis-
trict Court’s view, “it logically follows that [COPA] would
apply to any Web site that contains only some harmful to
minors material.” Id., at 480. The denominator question is
of crucial significance to the coverage of the Act.
Another issue is worthy of mention, because it too may
inform whether the variation in community standards ren-
ders the Act substantially overbroad. The parties and the
Court of Appeals did not address the question of venue,
though it would seem to be bound up with the issue of vary-
ing community standards. COPA does not address venue in
explicit terms, so prosecution may be proper “in any district
in which [an] offense was begun, continued, or completed.”
18 U. S. C. § 3237(a). The Act’s prohibition includes an inter-

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state commerce element, 47 U. S. C. § 231(a)(1), and “[a]ny
offense involving . . . interstate . . . commerce . . . may be
inquired of and prosecuted in any district from, through, or
into which such commerce . . . moves.” 18 U. S. C. § 3237(a).
In the context of COPA, it seems likely that venue would be
proper where the material originates or where it is viewed.
Whether it may be said that a Web site moves “through”
other venues in between is less certain. And since, as dis-
cussed above, juries will inevitably apply their own commu-
nity standards, the choice of venue may be determinative of
the choice of standard. The more venues the Government
has to choose from, the more speech will be chilled by varia-
tion across communities.
IV
In summary, the breadth of the Act depends on the issues
discussed above, and the significance of varying community
standards depends, in turn, on the breadth of the Act. The
Court of Appeals was correct to focus on the national varia-
tion in community standards, which can constitute a substan-
tial burden on Internet communication; and its ultimate con-
clusion may prove correct. There may be grave doubts that
COPA is consistent with the First Amendment; but we
should not make that determination with so many questions
unanswered. The Court of Appeals should undertake a
comprehensive analysis in the first instance.
Justice Stevens, dissenting.
Appeals to prurient interests are commonplace on the In-
ternet, as in older media. Many of those appeals lack seri-
ous value for minors as well as adults. Some are offensive
to certain viewers but welcomed by others. For decades,
our cases have recognized that the standards for judging
their acceptability vary from viewer to viewer and from com-
munity to community. Those cases developed the require-
ment that communications should be protected if they do not
violate contemporary community standards. In its original

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form, the community standard provided a shield for commu-
nications that are offensive only to the least tolerant mem-
bers of society. Thus, the Court “has emphasized on more
than one occasion that a principal concern in requiring that a
judgment be made on the basis of ‘contemporary community
standards’ is to assure that the material is judged neither on
the basis of each juror’s personal opinion, nor by its effect
on a particularly sensitive or insensitive person or group.”
Hamling v. United States, 418 U. S. 87, 107 (1974). In the
context of the Internet, however, community standards be-
come a sword, rather than a shield. If a prurient appeal is
offensive in a puritan village, it may be a crime to post it on
the World Wide Web.
The Child Online Protection Act (COPA) restricts access
by adults as well as children to materials that are “harm-
ful to minors.” 47 U. S. C. § 231(a)(1) (1994 ed., Supp. V).
COPA is a substantial improvement over its predecessor, the
Communications Decency Act of 1996 (CDA), which we held
unconstitutional five years ago in Reno v. American Civil
Liberties Union, 521 U. S. 844 (1997) (ACLU I). Congress
has thoughtfully addressed several of the First Amendment
problems that we identified in that case. Nevertheless,
COPA preserves the use of contemporary community stand-
ards to define which materials are harmful to minors. As
we explained in ACLU I, 521 U. S., at 877–878, “the ‘commu-
nity 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.”
We have recognized that the State has a compelling inter-
est in protecting minors from harmful speech, Sable Commu-
nications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989), and
on one occasion we upheld a restriction on indecent speech
that was made available to the general public, because it
could be accessed by minors, FCC v. Pacifica Foundation,
438 U. S. 726 (1978). Our decision in that case was influ-

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enced by the distinctive characteristics of the broadcast me-
dium, as well as the expertise of the agency, and the narrow
scope of its order. Id., at 748–750; see also ACLU I, 521
U. S., at 867. On the other hand, we have repeatedly re-
jected the position that the free speech rights of adults can
be limited to what is acceptable for children. See id., at 875
(quoting Bolger v. Youngs Drug Products Corp., 463 U. S. 60,
74–75 (1983) (“[R]egardless of the strength of the govern-
ment’s interest” in protecting children, “[t]he level of dis-
course reaching a mailbox simply cannot be limited to that
which would be suitable for a sandbox” (internal quotation
marks omitted))); Sable, 492 U. S., at 128; Butler v. Michi-
gan, 352 U. S. 380, 383 (1957).
Petitioner relies on our decision in Ginsberg v. New York,
390 U. S. 629 (1968), for the proposition that Congress can
prohibit the display of materials that are harmful to minors.
But the statute upheld in Ginsberg prohibited selling inde-
cent materials directly to children, id., at 633 (describing
N. Y. Penal Law § 484–h, making it unlawful “ ‘knowingly to
sell . . . to a minor . . .’ ”), whereas the speech implicated here
is simply posted on a medium that is accessible to both adults
and children, 47 U. S. C. § 231(a)(1) (prohibiting anyone from
“knowingly . . . mak[ing] any communication for commercial
purposes that is available to any minor . . .”). Like the re-
striction on indecent “dial-a-porn” numbers invalidated in
Sable, the prohibition against mailing advertisements for
contraceptives invalidated in Bolger, and the ban against
selling adult books found impermissible in Butler, COPA
seeks to limit protected speech that is not targeted at chil-
dren, simply because it can be obtained by them while
surfing the Web.1 In evaluating the overbreadth of such a
1 Petitioner cites examples of display statutes in 23 States that require
magazine racks to shield minors from the covers of pornographic maga-
zines. Brief for Petitioner 22, 3a. This Court has yet to rule on the
constitutionality of any of these statutes, which are in any event of little
relevance to regulation of speech on the Internet. As we recognized in

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statute, we should be mindful of Justice Frankfurter’s admo-
nition not to “burn the house to roast the pig,” Butler, 352
U. S., at 383.
COPA not only restricts speech that is made available to
the general public, it also covers a medium in which speech
cannot be segregated to avoid communities where it is likely
to be considered harmful to minors. The Internet presents
a unique forum for communication because information, once
posted, is accessible everywhere on the network at once.
The speaker cannot control access based on the location of
the listener, nor can it choose the pathways through which its
speech is transmitted. By approving the use of community
standards in this context, Justice Thomas endorses a con-
struction of COPA that has “the intolerable consequence of
denying some sections of the country access to material,
there deemed acceptable, which in others might be consid-
ered offensive to prevailing community standards of de-
cency.” Manual Enterprises, Inc. v. Day, 370 U. S. 478,
488 (1962).
If the material were forwarded through the mails, as in
Hamling, or over the telephone, as in Sable, the sender could
avoid destinations with the most restrictive standards. In-
deed, in Sable, we upheld the application of community
standards to a nationwide medium because the speaker was
“free to tailor its messages . . . to the communities it chooses
to serve,” by either “hir[ing] operators to determine the
source of the calls . . . [or] arrang[ing] for the screening and
blocking of out-of-area calls.” 492 U. S., at 125 (emphasis
added). Our conclusion that it was permissible for the
speaker to bear the ultimate burden of compliance, id., at
126, assumed that such compliance was at least possible with-
out requiring the speaker to choose another medium or to
limit its speech to what all would find acceptable. Given the
ACLU I, 521 U. S. 844, 854 (1997), “ ‘the receipt of information on the
Internet requires a series of affirmative steps more deliberate and di-
rected than merely turning a dial’ ”—or scanning a magazine rack.

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undisputed fact that a provider who posts material on the
Internet cannot prevent it from entering any geographic
community, see ante, at 575, n. 6 (opinion of Thomas, J.), a
law that criminalizes a particular communication in just a
handful of destinations effectively prohibits transmission of
that message to all of the 176.5 million Americans that have
access to the Internet, see ante, at 567, n. 2 (majority opin-
ion). In light of this fundamental difference in technologies,
the rules applicable to the mass mailing of an obscene mon-
tage or to obscene dial-a-porn should not be used to judge
the legality of messages on the World Wide Web.2
In his attempt to fit this case within the framework of
Hamling and Sable, Justice Thomas overlooks the more
obvious comparison—namely, the CDA invalidated in ACLU
I. When we confronted a similar attempt by Congress to
limit speech on the Internet based on community standards,
we explained that because Web publishers cannot control
who accesses their Web sites, using community standards
to regulate speech on the Internet creates an overbreadth
problem. “[T]he ‘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.” 521
U. S., at 877–878. Although our holding in ACLU I did not
turn on that factor alone, we did not adopt the position relied
on by Justice Thomas—that applying community standards
to the Internet is constitutional based on Hamling and
2 It is hardly a solution to say, as Justice Thomas suggests, ante, at
583, that a speaker need only choose a different medium in order to avoid
having its speech judged by the least tolerant community. Our over-
breadth doctrine would quickly become a toothless protection if we were
to hold that substituting a more limited forum for expression is an accept-
able price to pay. Since a content-based restriction is presumptively in-
valid, I would place the burden on parents to “take the simple step of
utilizing a medium that enables,” ibid., them to avoid this material before
requiring the speaker to find another forum.

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Sable. See Reply Brief for Appellants in Reno v. ACLU,
O. T. 1996, No. 96–511, p. 19.3
Justice Thomas points to several other provisions in
COPA to argue that any overbreadth will be rendered in-
substantial by the rest of the statute. Ante, at 578–579.
These provisions afford little reassurance, however, as they
only marginally limit the sweep of the statute. It is true
that, in addition to COPA’s “appeals to the prurient interest
of minors” prong, the material must be “patently offensive
with respect to minors” and it must lack “serious literary,
artistic, political, or scientific value for minors.” 47 U. S. C.
§ 231(e)(6). Nonetheless, the “patently offensive” prong is
judged according to contemporary community standards as
well, ante, at 576, n. 7 (opinion of Thomas, J.). Whatever
disparity exists between various communities’ assessment of
the content that appeals to the prurient interest of minors
will surely be matched by their differing opinions as to
3 Justice Breyer seeks to avoid the problem by effectively reading
the phrase “contemporary national standards” into the statute, ante, at
589 (opinion concurring in part and concurring in judgment). While the
legislative history of COPA provides some support for this reading, it is
contradicted by the clear text of the statute, which directs jurors to con-
sider “community” standards. This phrase is a term of art that has taken
on a particular meaning in light of our precedent. Although we have
never held that applying a national standard would be constitutionally
impermissible, we have said that asking a jury to do so is “an exercise in
futility,” Miller v. California, 413 U. S. 15, 30 (1973), and that “[a] juror is
entitled to draw on his own knowledge of the views of the average person
in the community or vicinage from which he comes for making the re-
quired determination,” Hamling v. United States, 418 U. S. 87, 104 (1974).
Any lingering doubts about the meaning of the phrase were certainly dis-
pelled by our discussion of the issue in ACLU I, 521 U. S., at 874, n. 39, and
we presume that Congress legislates against the backdrop of our decisions.
Therefore, Justice Thomas has correctly refused to rewrite the statute
to substitute a standard that Congress clearly did not choose. And even
if the plurality were willing to do so, we would still have to acknowledge,
as petitioner does, that jurors instructed to apply a national, or adult,
standard will reach widely different conclusions throughout the country,
see ante, at 577; Brief for Petitioner 39.

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whether descriptions of sexual acts or depictions of nudity
are patently offensive with respect to minors. Nor does the
requirement that the material be “in some sense erotic,” see
ante, at 579 (citing Erznoznik v. Jacksonville, 422 U. S. 205,
213, and n. 10 (1975)), substantially narrow the category of
images covered. Arguably every depiction of nudity—par-
tial or full—is in some sense erotic with respect to minors.4
Petitioner’s argument that the “serious value” prong mini-
mizes the statute’s overbreadth is also unpersuasive. Al-
though we have recognized that the serious value determi-
nation in obscenity cases should be based on an objective,
reasonable person standard, Pope v. Illinois, 481 U. S. 497,
500 (1987), this criterion is inadequate to cure COPA’s over-
breadth because COPA adds an important qualifying phrase
to the standard Miller v. California, 413 U. S. 15 (1973), for-
mulation of the serious value prong. The question for the
jury is not whether a reasonable person would conclude that
the materials have serious value; instead, the jury must de-
termine whether the materials have serious value for mi-
nors. Congress reasonably concluded that a substantial
number of works, which have serious value for adults, do not
have serious value for minors. Cf. ACLU I, 521 U. S., at
896 (O’Connor, J., concurring in judgment in part and dis-
senting in part) (“While discussions about prison rape or
nude art . . . may have some redeeming educational value
for adults, they do not necessarily have any such value for
minors”). Thus, even though the serious value prong limits
the total amount of speech covered by the statute, it remains
true that there is a significant amount of protected speech
within the category of materials that have no serious value
for minors. That speech is effectively prohibited whenever
4 Of course, Justice Thomas’ example of the image “of a war victim’s
wounded nude body,” ante, at 579, n. 9, would not be covered by the stat-
ute unless it depicted “a lewd exhibition of the genitals or post-pubescent
female breast” and lacked serious political value for minors, 47 U. S. C.
§§ 231(e)(6)(B)–(C) (1994 ed., Supp. V).

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the least tolerant communities find it harmful to minors.5
While the objective nature of the inquiry may eliminate any
worry that the serious value determination will be made by
the least tolerant community, it does not change the fact that,
within the subset of images deemed to have no serious value
for minors, the decision whether minors and adults through-
out the country will have access to that speech will still be
made by the most restrictive community.
Justice Kennedy makes a similar misstep, ante, at 592
(opinion concurring in judgment), when he ties the over-
breadth inquiry to questions about the scope of the other
provisions of the statute. According to his view, we cannot
determine whether the statute is substantially overbroad
based on its use of community standards without first deter-
mining how much of the speech on the Internet is saved by
the other restrictions in the statute. But this represents a
fundamental misconception of our overbreadth doctrine. As
Justice White explained in Broadrick v. Oklahoma, 413 U. S.
5 The Court also notes that the limitation to communications made for
commercial purposes narrows the category of speech as compared to the
CDA, ante, at 569. While it is certainly true that this condition lim-
its the scope of the statute, the phrase “commercial purposes” is some-
what misleading. The definition of commercial purposes, 47 U. S. C.
§ 231(e)(2)(B), covers anyone who generates revenue from advertisements
or merchandise, regardless of the amount of advertising or whether the
advertisements or products are related to the images that allegedly are
harmful to minors. As the District Court noted: “There is nothing in
the text of the COPA, however, that limits its applicability to so-called
commercial pornographers only; indeed, the text of COPA imposes liability
on a speaker who knowingly makes any communication for commercial
purposes ‘that includes any material that is harmful to minors,’ ” App. to
Pet. for Cert. 52a. In the context of the Internet, this is hardly a serious
limitation. A 1998 study, for example, found that 83 percent of Web sites
contain commercial content. Lawrence & Giles, Accessibility of informa-
tion of the web, 400 Nature 107–109 (1999); Guernsey, Seek—but on the
Web, You Might Not Find, N. Y. Times, July 8, 1999, p. G3. Interestingly,
this same study found that only 1.5 percent of the 2.8 million sites cata-
loged contained pornographic content.

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601, 615 (1973), “the overbreadth of a statute must not
only be real, but substantial as well, judged in relation to
the statute’s plainly legitimate sweep.” (Emphasis added.)
Regardless of how the Court of Appeals interprets the “com-
mercial purposes” or “as a whole” provisions on remand, the
question we must answer is whether the statute restricts a
substantial amount of protected speech relative to its legiti-
mate sweep by virtue of the fact that it uses community
standards.6 These other provisions may reduce the absolute
number of Web pages covered by the statute, but even the
narrowest version of the statute abridges a substantial
amount of protected speech that many communities would
not find harmful to minors. Because Web speakers cannot
limit access to those specific communities, the statute is sub-
stantially overbroad regardless of how its other provisions
are construed.
Justice Thomas acknowledges, and petitioner concedes,
that juries across the country will apply different standards
and reach different conclusions about whether particular
works are harmful to minors. See ante, at 577; Brief for
Petitioner 3–4, 39. We recognized as much in ACLU I when
we noted that “discussions about prison rape or safe sexual
practices, artistic images that include nude subjects, and ar-
guably the card catalog of the Carnegie Library” might of-
fend some community’s standards and not others, 521 U. S.,
at 878. In fact, our own division on that question provides
further evidence of the range of attitudes about such mate-
rial. See, e. g., id., at 896 (O’Connor, J., concurring in judg-
6 Justice Kennedy accuses the Court of Appeals of evaluating over-
breadth in a vacuum by dismissing most of the concerns raised by the
District Court, ante, at 599. But most of those concerns went to whether
COPA survives strict scrutiny, not overbreadth. Even under Justice
Kennedy’s formulation, it is unclear why it is relevant to an overbreadth
analysis, for example, whether COPA could have been more narrowly tai-
lored, whether the affirmative defenses impose too great a burden, or
whether inclusion of criminal as well as civil penalties was excessive.

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ment in part and dissenting in part). Moreover, amici for
respondents describe studies showing substantial variation
among communities in their attitudes toward works involv-
ing homosexuality, masturbation, and nudity.7
Even if most, if not all, of these works would be excluded
from COPA’s coverage by the serious value prong, they illus-
trate the diversity of public opinion on the underlying
themes depicted. This diversity of views surely extends to
whether materials with the same themes, that do not have
serious value for minors, appeal to their prurient interests
and are patently offensive. There is no reason to think the
differences between communities’ standards will disappear
once the image or description is no longer within the context
of a work that has serious value for minors.8 Because com-
munities differ widely in their attitudes toward sex, particu-
larly when minors are concerned, the Court of Appeals was
correct to conclude that, regardless of how COPA’s other pro-
visions are construed, applying community standards to the
Internet will restrict a substantial amount of protected
speech that would not be considered harmful to minors in
many communities.
Whether that consequence is appropriate depends, of
course, on the content of the message. The kind of hard-
core pornography involved in Hamling, which I assume
would be obscene under any community’s standard, does not
belong on the Internet. Perhaps “teasers” that serve no
function except to invite viewers to examine hardcore mate-
rials, or the hidden terms written into a Web site’s “meta-
tags” in order to dupe unwitting Web surfers into visiting
pornographic sites, deserve the same fate. But COPA ex-
7 Brief for Volunteer Lawyers for the Arts et al. as Amici Curiae 4–10
(describing findings of the People for the American Way Foundation An-
nual Freedom to Learn Reports).
8 Nor is there any reason to expect that a particular community’s view
of the material will change based on how the Court of Appeals construes
the statute’s “for commercial purposes” or “as a whole” provisions.

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tends to a wide range of prurient appeals in advertisements,
online magazines, Web-based bulletin boards and chat rooms,
stock photo galleries, Web diaries, and a variety of illustra-
tions encompassing a vast number of messages that are
unobjectionable in most of the country and yet provide no
“serious value” for minors. It is quite wrong to allow the
standards of a minority consisting of the least tolerant com-
munities to regulate access to relatively harmless messages
in this burgeoning market.
In the context of most other media, using community
standards to differentiate between permissible and imper-
missible speech has two virtues. As mentioned above, com-
munity standards originally served as a shield to protect
speakers from the least tolerant members of society. By ag-
gregating values at the community level, the Miller test
eliminated the outliers at both ends of the spectrum and pro-
vided some predictability as to what constitutes obscene
speech. But community standards also serve as a shield to
protect audience members, by allowing people to self-sort
based on their preferences. Those who abhor and those who
tolerate sexually explicit speech can seek out like-minded
people and settle in communities that share their views on
what is acceptable for themselves and their children. This
sorting mechanism, however, does not exist in cyberspace;
the audience cannot self-segregate. As a result, in the
context of the Internet this shield also becomes a sword,
because the community that wishes to live without certain
material rids not only itself, but the entire Internet, of
the offending speech.
In sum, I would affirm the judgment of the Court of
Appeals and therefore respectfully dissent.