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Supreme Court Ruling on the Communications Decency Act 1997
SUPREME COURT OF THE UNITED STATES
RENO, ATTORNEY GENERAL OF THE UNITED STATES, et
al. v. AMERICAN CIVIL
LIBERTIES UNION et al.
appeal from the united states district court for the eastern
district of pennsylvania
No. 96511. Argued March 19, 1997Decided June 26, 1997
Two provisions of the Communications Decency Act of 1996
(CDA or Act) seek to protect minors from harmful material
on the Internet, an international network of
interconnected computers that enables millions of people
to communicate with one another in "cyberspace" and to
access vast amounts of information from around the world.
Title 47 U. S. C. A. §223(a)(1)(B)(ii) (Supp. 1997)
criminalizes the "knowing" transmission of "obscene or
indecent" messages to any recipient under 18 years of age.
Section 223(d) prohibits the "knowin[g]" sending or
displaying to a person under 18 of any message "that, in
context, depicts or describes, in terms patently offensive
as measured by contemporary community standards, sexual or
excretory activities or organs." Affirmative defenses are
provided for those who take "good faith, . . . effective .
. . actions" to restrict access by minors to the
prohibited communications, §223(e)(5)(A), and those who
restrict such access by requiring certain designated forms
of age proof, such as a verified credit card or an adult
identification number, §223(e)(5)(B). A number of
plaintiffs filed suit challenging the constitutionality of
§§223(a)(1) and 223(d). After making extensive findings
of fact, a three-judge District Court convened pursuant to
the Act entered a preliminary injunction against
enforcement of both challenged provisions. The court's
judgment enjoins the Government from enforcing
§223(a)(1)(B)'s prohibitions insofar as they relate to
"indecent" communications, but expressly preserves the
Government's right to investigate and prosecute the
obscenity or child pornography activities prohibited
therein. The injunction against enforcement of §223(d) is
unqualified because that section contains no separate
reference to obscenity or child pornography. The
Government appealed to this Court under the Act's special
review provisions, arguing that the District Court erred
in holding that the CDA violated both the First Amendment
because it is overbroad and the Fifth Amendment because it
is vague. Held: The CDA's "indecent transmission" and "patently
offensive display" provisions abridge "the freedom of
speech" protected by the First Amendment. Pp. 1740.
(a) Although the CDA's vagueness is relevant to the
First Amendment overbreadth inquiry, the judgment should
be affirmed without reaching the Fifth Amendment issue.
(b) A close look at the precedents relied on by the
GovernmentGinsberg v. New York, 390 U. S. 629; FCC v.
Pacifica Foundation, 438 U. S. 726; and Renton v. Playtime
Theatres, Inc., 475 U. S. 41raises, rather than relieves,
doubts about the CDA's constitutionality. The CDA differs
from the various laws and orders upheld in those cases in
many ways, including that it does not allow parents to
consent to their children's use of restricted materials;
is not limited to commercial transactions; fails to
provide any definition of "indecent" and omits any
requirement that "patently offensive" material lack
socially redeeming value; neither limits its broad
categorical prohibitions to particular times nor bases
them on an evaluation by an agency familiar with the
medium's unique characteristics; is punitive; applies to a
medium that, unlike radio, receives full First Amendment
protection; and cannot be properly analyzed as a form of
time, place, and manner regulation because it is a
content-based blanket restriction on speech. These
precedents, then, do not require the Court to uphold the
CDA and are fully consistent with the application of the
most stringent review of its provisions. Pp. 1721.
(c) The special factors recognized in some of the
Court's cases as justifying regulation of the broadcast
mediathe history of extensive government regulation of
broadcasting, see, e.g., Red Lion Broadcasting Co. v. FCC,
395 U. S. 367, 399400; the scarcity of available
frequencies at its inception, see, e.g., Turner
Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637638;
and its "invasive" nature, see Sable Communications of
Cal., Inc. v. FCC, 492 U. S. 115, 128are not present in
cyberspace. Thus, these cases provide no basis for
qualifying the level of First Amendment scrutiny that
should be applied to the Internet. Pp. 2224.
(d) Regardless of whether the CDA is so vague that it
violates the Fifth Amendment, the many ambiguities
concerning the scope of its coverage render it problematic
for First Amendment purposes. For instance, its use of
the undefined terms "indecent" and "patently offensive"
will provoke uncertainty among speakers about how the two
standards relate to each other and just what they mean.
The vagueness of such a content-based regulation, see,
e.g.,Gentile v. State Bar of Nev., 501 U. S. 1030,
coupled with its increased deterrent effect as a criminal
statute, see, e.g.,Dombrowski v. Pfister, 380 U. S. 479,
raise special First Amendment concerns because of its
obvious chilling effect on free speech. Contrary to the
Government's argument, the CDA is not saved from vagueness
by the fact that its "patently offensive" standard repeats
the second part of the three-prong obscenity test set
forth in Miller v. California, 413 U. S. 15, 24. The
second Miller prong reduces the inherent vagueness of its
own "patently offensive" term by requiring that the
proscribed material be "specifically defined by the
applicable state law." In addition, the CDA applies only
to "sexual conduct," whereas, the CDA prohibition extends
also to "excretory activities" and "organs" of both a
sexual and excretory nature. Each of Miller's other two
prongs also critically limits the uncertain sweep of the
obscenity definition. Just because a definition including
three limitations is not vague, it does not follow that
one of those limitations, standing alone, is not vague.
The CDA's vagueness undermines the likelihood that it has
been carefully tailored to the congressional goal of
protecting minors from potentially harmful materials. Pp.
(e) The CDA lacks the precision that the First Amendment
requires when a statute regulates the content of speech.
Although the Government has an interest in protecting
children from potentially harmful materials, see, e.g.,
Ginsberg, 390 U. S., at 639, the CDA pursues that interest
by suppressing a large amount of speech that adults have a
constitutional right to send and receive, see, e.g.,
Sable, supra, at 126. Its breadth is wholly
unprecedented. The CDA's burden on adult speech is
unacceptable if less restrictive alternatives would be at
least as effective in achieving the Act's legitimate
purposes. See, e.g., Sable, 492 U. S., at 126. The
Government has not proved otherwise. On the other hand,
the District Court found that currently available
user-based software suggests that a reasonably effective
method by which parents can prevent their children from
accessing material which the parents believe is
inappropriate will soon be widely available. Moreover,
the arguments in this Court referred to possible
alternatives such as requiring that indecent material be
"tagged" to facilitate parental control, making exceptions
for messages with artistic or educational value, providing
some tolerance for parental choice, and regulating some
portions of the Internet differently than others.
Particularly in the light of the absence of any detailed
congressional findings, or even hearings addressing the
CDA's special problems, the Court is persuaded that the
CDA is not narrowly tailored. Pp. 2833.
(f) The Government's three additional arguments for
sustaining the CDA's affirmative prohibitions are
rejected. First, the contention that the Act is
constitutional because it leaves open ample "alternative
channels" of communication is unpersuasive because the CDA
regulates speech on the basis of its content, so that a
"time, place, and manner" analysis is inapplicable. See,
e.g., Consolidated Edison Co. of N. Y. v. Public Serv.
Comm'n of N. Y., 447 U. S. 530, 536. Second, the
assertion that the CDA's "knowledge" and "specific person"
requirements significantly restrict its permissible
application to communications to persons the sender knows
to be under 18 is untenable, given that most Internet
forums are open to all comers and that even the strongest
reading of the "specific person" requirement would confer
broad powers of censorship, in the form of a "heckler's
veto," upon any opponent of indecent speech. Finally,
there is no textual support for the submission that
material having scientific, educational, or other
redeeming social value will necessarily fall outside the
CDA's prohibitions. Pp. 3335.
(g) The §223(e)(5) defenses do not constitute the sort
of "narrow tailoring" that would save the CDA. The
Government's argument that transmitters may take
protective "good faith actio[n]" by "tagging" their
indecent communications in a way that would indicate their
contents, thus permitting recipients to block their
reception with appropriate software, is illusory, given
the requirement that such action be "effective": The
proposed screening software does not currently exist, but,
even if it did, there would be no way of knowing whether a
potential recipient would actually block the encoded
material. The Government also failed to prove that
§223(b)(5)'s verification defense would significantly
reduce the CDA's heavy burden on adult speech. Although
such verification is actually being used by some
commercial providers of sexually explicit material, the
District Court's findings indicate that it is not
economically feasible for most noncommercial speakers.
(h) The Government's argument that this Court should
preserve the CDA's constitutionality by honoring its
severability clause, §608, and by construing nonseverable
terms narrowly, is acceptable in only one respect.
Because obscene speech may be banned totally, see Miller,
supra, at 18, and §223(a)'s restriction of "obscene"
material enjoys a textual manifestation separate from that
for "indecent" material, the Court can sever the term "or
indecent" from the statute, leaving the rest of §223(a)
standing. Pp. 3739.
(i) The Government's argument that its "significant"
interest in fostering the Internet's growth provides an
independent basis for upholding the CDA's
constitutionality is singularly unpersuasive. The
dramatic expansion of this new forum contradicts the
factual basis underlying this contention: that the
unregulated availability of "indecent" and "patently
offensive" material is driving people away from the
Internet. P. 40.
929 F. Supp. 824, affirmed.
Stevens, J., delivered the opinion of the Court, in which
Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ.,
joined. O'Connor, J., filed an opinion concurring in the
judgment in part and dissenting in part, in which Rehnquist,
C. J., joined.
NOTICE: This opinion is subject to formal revision before
publication in the preliminary print of the United States
Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Wash-ington,
D.C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary
print goes to press.
SUPREME COURT OF THE UNITED STATES
JANET RENO, ATTORNEY GENERAL OF THE UNITED
STATES, et al., APPELLANTS v. AMERICAN CIVIL
UNION et al.
on appeal from the united states district court for the
eastern district of pennsylvania
[June 26, 1997]
Justice Stevens delivered the opinion of the
At issue is the constitutionality of two statutory
provisions enacted to protect minors from "indecent" and
"patently offensive" communications on the Internet.
Notwithstanding the legitimacy and importance of the
congressional goal of protecting children from harmful
materials, we agree with the three-judge District Court that the
statute abridges "the freedom of speech" protected by the First
The District Court made extensive findings of fact,
most of which were based on a detailed stipulation prepared by
the parties. See 929 F. Supp. 824, 830849 (ED Pa. 1996). The
findings describe the character and the dimensions of the
Internet, the availability of sexually explicit material in that
medium, and the problems confronting age verification for
recipients of Internet communications. Because those findings
provide the underpinnings for the legal issues, we begin with a
summary of the undisputed facts. The Internet
The Internet is an international network of
interconnected computers. It is the outgrowth of what began in
1969 as a military program called "ARPANET," which was
designed to enable computers operated by the military, defense
contractors, and universities conducting defense-related research
to communicate with one another by redundant channels even if
some portions of the network were damaged in a war. While the
ARPANET no longer exists, it provided an example for the
development of a number of civilian networks that, eventually
linking with each other, now enable tens of millions of people to
communicate with one another and to access vast amounts of
information from around the world. The Internet is "a unique
and wholly new medium of worldwide human
The Internet has experienced "extraordinary
growth." The number of "host" computersthose that store
information and relay communicationsincreased from about
300 in 1981 to approximately 9,400,000 by the time of the trial
in 1996. Roughly 60% of these hosts are located in the United
States. About 40 million people used the Internet at the time of
trial, a number that is expected to mushroom to 200 million by
Individuals can obtain access to the Internet from
many different sources, generally hosts themselves or entities
with a host affiliation. Most colleges and universities provide
access for their students and faculty; many corporations provide
their employees with access through an office network; many
communities and local libraries provide free access; and an
increasing number of storefront "computer coffee shops"
provide access for a small hourly fee. Several major national
"online services" such as America Online, CompuServe, the
Microsoft Network, and Prodigy offer access to their own
extensive proprietary networks as well as a link to the much
larger resources of the Internet. These commercial online
services had almost 12 million individual subscribers at the time
Anyone with access to the Internet may take
advantage of a wide variety of communication and information
retrieval methods. These methods are constantly evolving and
difficult to categorize precisely. But, as presently constituted,
those most relevant to this case are electronic mail ("e-mail"),
automatic mailing list services ("mail exploders," sometimes
referred to as "listservs"), "newsgroups," "chat rooms," and
the "World Wide Web." All of these methods can be used to
transmit text; most can transmit sound, pictures, and moving
video images. Taken together, these tools constitute a unique
mediumknown to its users as "cyberspace"located in no
particular geographical location but available to anyone,
anywhere in the world, with access to the Internet.
E-mail enables an individual to send an electronic
messagegenerally akin to a note or letterto another
individual or to a group of addressees. The message is generally
stored electronically, sometimes waiting for the recipient to
check her "mailbox" and sometimes making its receipt known
through some type of prompt. A mail exploder is a sort of
e-mail group. Subscribers can send messages to a common
e-mail address, which then forwards the message to the group's
other subscribers. Newsgroups also serve groups of regular
participants, but these postings may be read by others as well.
There are thousands of such groups, each serving to foster an
exchange of information or opinion on a particular topic
running the gamut from, say, the music of Wagner to Balkan
politics to AIDS prevention to the Chicago Bulls. About 100,000
new messages are posted every day. In most newsgroups,
postings are automatically purged at regular intervals. In
addition to posting a message that can be read later, two or more
individuals wishing to communicate more immediately can enter
a chat room to engage in real-time dialoguein other words, by
typing messages to one another that appear almost immediately
on the others' computer screens. The District Court found that at
any given time "tens of thousands of users are engaging in
conversations on a huge range of subjects." It is "no
exaggeration to conclude that the content on the Internet is as
diverse as human thought."
The best known category of communication over
the Internet is the World Wide Web, which allows users to search
for and retrieve information stored in remote computers, as well
as, in some cases, to communicate back to designated sites. In
concrete terms, the Web consists of a vast number of documents
stored in different computers all over the world. Some of these
documents are simply files containing information. However,
more elaborate documents, commonly known as Web "pages,"
are also prevalent. Each has its own address"rather like a
telephone number." Web pages frequently contain information
and sometimes allow the viewer to communicate with the page's
(or "site's") author. They generally also contain "links" to
other documents created by that site's author or to other
(generally) related sites. Typically, the links are either blue or
underlined textsometimes images.
Navigating the Web is relatively straightforward. A
user may either type the address of a known page or enter one
or more keywords into a commercial "search engine" in an
effort to locate sites on a subject of interest. A particular Web
page may contain the information sought by the "surfer," or,
through its links, it may be an avenue to other documents
located anywhere on the Internet. Users generally explore a
given Web page, or move to another, by clicking a computer
"mouse" on one of the page's icons or links. Access to most
Web pages is freely available, but some allow access only to
those who have purchased the right from a commercial provider.
The Web is thus comparable, from the readers' viewpoint, to both
a vast library including millions of readily available and indexed
publications and a sprawling mall offering goods and services.
From the publishers' point of view, it constitutes a
vast platform from which to address and hear from a world-wide
audience of millions of readers, viewers, researchers, and buyers.
Any person or organization with a computer connected to the
Internet can "publish" information. Publishers include
government agencies, educational institutions, commercial
entities, advocacy groups, and individuals. Publishers may either
make their material available to the entire pool of Internet users,
or confine access to a selected group, such as those willing to
pay for the privilege. "No single organization controls any
membership in the Web, nor is there any centralized point from
which individual Web sites or services can be blocked from the
Sexually Explicit Material
Sexually explicit material on the Internet includes
text, pictures, and chat and "extends from the modestly
titillating to the hardest-core." These files are created, named,
and posted in the same manner as material that is not sexually
explicit, and may be accessed either deliberately or
unintentionally during the course of an imprecise search. "Once
a provider posts its content on the Internet, it cannot prevent that
content from entering any community." Thus, for example,
"when the UCR/California Museum of Photography posts
to its Web site nudes by Edward Weston and Robert
Mapplethorpe to announce that its new exhibit will travel to
Baltimore and New York City, those images are available not
only in Los Angeles, Baltimore, and New York City, but also
in Cincinnati, Mobile, or Beijingwherever Internet users
live. Similarly, the safer sex instructions that Critical Path
posts to its Web site, written in street language so that the
teenage receiver can understand them, are available not just
in Philadelphia, but also in Provo and Prague."
Some of the communications over the Internet that originate in
foreign countries are also sexually explicit.
Though such material is widely available, users seldom
encounter such content accidentally. "A document's title or a
description of the document will usually appear before the
document itself . . . and in many cases the user will receive
detailed information about a site's content before he or she need
take the step to access the document. Almost all sexually explicit
images are preceded by warnings as to the content." For that
reason, the "odds are slim" that a user would enter a sexually
explicit site by accident. Unlike communications received by
radio or television, "the receipt of information on the Internet
requires a series of affirmative steps more deliberate and directed
than merely turning a dial. A child requires some sophistication
and some ability to read to retrieve material and thereby to use
the Internet unattended."
Systems have been developed to help parents control the
material that may be available on a home computer with Internet
access. A system may either limit a computer's access to an
approved list of sources that have been identified as containing
no adult material, it may block designated inappropriate sites, or
it may attempt to block messages containing identifiable
objectionable features. "Although parental control software
currently can screen for certain suggestive words or for known
sexually explicit sites, it cannot now screen for sexually explicit
images." Nevertheless, the evidence indicates that "a
reasonably effective method by which parents can prevent their
children from accessing sexually explicit and other material
which parents may believe is inappropriate for their children will
soon be available." Age Verification
The problem of age verification differs for different uses of
the Internet. The District Court categorically determined that
there "is no effective way to determine the identity or the age of
a user who is accessing material through e-mail, mail exploders,
newsgroups or chat rooms." The Government offered no
evidence that there was a reliable way to screen recipients and
participants in such fora for age. Moreover, even if it were
technologically feasible to block minors' access to newsgroups
and chat rooms containing discussions of art, politics or other
subjects that potentially elicit "indecent" or "patently
offensive" contributions, it would not be possible to block their
access to that material and "still allow them access to the
remaining content, even if the overwhelming majority of that
content was not indecent."
Technology exists by which an operator of a Web site may
condition access on the verification of requested information
such as a credit card number or an adult password. Credit card
verification is only feasible, however, either in connection with a
commercial transaction in which the card is used, or by payment
to a verification agency. Using credit card possession as a
surrogate for proof of age would impose costs on
non-commercial Web sites that would require many of them to
shut down. For that reason, at the time of the trial, credit card
verification was "effectively unavailable to a substantial number
of Internet content providers." Id., at 846 (finding 102).
Moreover, the imposition of such a requirement "would
completely bar adults who do not have a credit card and lack the
resources to obtain one from accessing any blocked material."
Commercial pornographic sites that charge their users for
access have assigned them passwords as a method of age
verification. The record does not contain any evidence
concerning the reliability of these technologies. Even if
passwords are effective for commercial purveyors of indecent
material, the District Court found that an adult password
requirement would impose significant burdens on
noncommercial sites, both because they would discourage users
from accessing their sites and because the cost of creating and
maintaining such screening systems would be "beyond their
In sum, the District Court found:
"Even if credit card verification or adult password
verification were implemented, the Government presented
no testimony as to how such systems could ensure that the
user of the password or credit card is in fact over 18. The
burdens imposed by credit card verification and adult
password verification systems make them effectively
unavailable to a substantial number of Internet content
providers." Ibid. (finding 107).
The Telecommunications Act of 1996, Pub. L. 104104, 110
Stat. 56, was an unusually important legislative enactment. As
stated on the first of its 103 pages, its primary purpose was to
reduce regulation and encourage "the rapid deployment of new
telecommunications technologies." The major components of
the statute have nothing to do with the Internet; they were
designed to promote competition in the local telephone service
market, the multichannel video market, and the market for
over-the-air broadcasting. The Act includes seven Titles, six of
which are the product of extensive committee hearings and the
subject of discussion in Reports prepared by Committees of the
Senate and the House of Representatives. By contrast, Title
Vknown as the "Communications Decency Act of 1996"
(CDA)contains provisions that were either added in executive
committee after the hearings were concluded or as amendments
offered during floor debate on the legislation. An amendment
offered in the Senate was the source of the two statutory
provisions challenged in this case. They are informally
described as the "indecent transmission" provision and the
"patently offensive display" provision.
The first, 47 U. S. C. A. §223(a) (Supp. 1997), prohibits the
knowing transmission of obscene or indecent messages to any
recipient under 18 years of age. It provides in pertinent part:
"(1) in interstate or foreign communications
. . . . .
"(B) by means of a telecommunications device
"(i) makes, creates, or solicits, and
"(ii) initiates the transmission of,
"any comment, request, suggestion, proposal, image, or
other communication which is obscene or indecent,
knowing that the recipient of the communication is under
18 years of age, regardless of whether the maker of such
communication placed the call or initiated the
. . . . .
"(2) knowingly permits any telecommunications
facility under his control to be used for any activity
prohibited by paragraph (1) with the intent that it be used
for such activity,
"shall be fined under Title 18, or imprisoned not more
than two years, or both."
The second provision, §223(d), prohibits the knowing sending
or displaying of patently offensive messages in a manner that is
available to a person under 18 years of age. It provides:
"(1) in interstate or foreign communications
"(A) uses an interactive computer service to send to a
specific person or persons under 18 years of age, or
"(B) uses any interactive computer service to display in
a manner available to a person under 18 years of age,
"any comment, request, suggestion, proposal, image, or
other communication that, in context, depicts or describes,
in terms patently offensive as measured by contemporary
community standards, sexual or excretory activities or
organs, regardless of whether the user of such service
placed the call or initiated the communication; or
"(2) knowingly permits any telecommunications
facility under such person's control to be used for an
activity prohibited by paragraph (1) with the intent that it
be used for such activity,
"shall be fined under Title 18, or imprisoned not more
than two years, or both."
The breadth of these prohibitions is qualified by two
affirmative defenses. See §223(e)(5). One covers those who
take "good faith, reasonable, effective, and appropriate actions"
to restrict access by minors to the prohibited communications.
§223(e)(5)(A). The other covers those who restrict access to
covered material by requiring certain designated forms of age
proof, such as a verified credit card or an adult identification
number or code. §223(e)(5)(B).
On February 8, 1996, immediately after the President signed
the statute, 20 plaintiffs filed suit against the Attorney General
of the United States and the Department of Justice challenging
the constitutionality of §§223(a)(1) and 223(d). A week later,
based on his conclusion that the term "indecent" was too vague
to provide the basis for a criminal prosecution, District Judge
Buckwalter entered a temporary restraining order against
enforcement of §223(a)(1)(B)(ii) insofar as it applies to indecent
communications. A second suit was then filed by 27 additional
plaintiffs, the two cases were consolidated, and a three-judge
District Court was convened pursuant to §561 of the Act. After
an evidentiary hearing, that Court entered a preliminary
injunction against enforcement of both of the challenged
provisions. Each of the three judges wrote a separate opinion,
but their judgment was unanimous.
Chief Judge Sloviter doubted the strength of the Government's
interest in regulating "the vast range of online material covered
or potentially covered by the CDA," but acknowledged that the
interest was "compelling" with respect to some of that material.
929 F. Supp., at 853. She concluded, nonetheless, that the statute
"sweeps more broadly than necessary and thereby chills the
expression of adults" and that the terms "patently offensive"
and "indecent" were "inherently vague." Id., at 854. She also
determined that the affirmative defenses were not
"technologically or economically feasible for most providers,"
specifically considering and rejecting an argument that providers
could avoid liability by "tagging" their material in a manner
that would allow potential readers to screen out unwanted
transmissions. Id., at 856. Chief Judge Sloviter also rejected the
Government's suggestion that the scope of the statute could be
narrowed by construing it to apply only to commercial
pornographers. Id., at 854855.
Judge Buckwalter concluded that the word "indecent" in
§223(a)(1)(B) and the terms "patently offensive" and "in
context" in §223(d)(1) were so vague that criminal enforcement
of either section would violate the "fundamental constitutional
principle" of "simple fairness," id., at 861, and the specific
protections of the First and Fifth Amendments, id., at 858. He
found no statutory basis for the Government's argument that the
challenged provisions would be applied only to
"pornographic" materials, noting that, unlike obscenity,
"indecency has not been defined to exclude works of serious
literary, artistic, political or scientific value." Id., at 863.
Moreover, the Government's claim that the work must be
considered patently offensive "in context" was itself vague
because the relevant context might "refer to, among other
things, the nature of the communication as a whole, the time of
day it was conveyed, the medium used, the identity of the
speaker, or whether or not it is accompanied by appropriate
warnings." Id., at 864. He believed that the unique nature of the
Internet aggravated the vagueness of the statute. Id., at 865, n. 9.
Judge Dalzell's review of "the special attributes of Internet
communication" disclosed by the evidence convinced him that
the First Amendment denies Congress the power to regulate the
content of protected speech on the Internet. Id., at 867. His
opinion explained at length why he believed the Act would
abridge significant protected speech, particularly by
noncommercial speakers, while "[p]erversely, commercial
pornographers would remain relatively unaffected." Id., at 879.
He construed our cases as requiring a "medium-specific"
approach to the analysis of the regulation of mass
communication, id., at 873, and concluded that the Internetas
"the most participatory form of mass speech yet developed,"
id., at 883is entitled to "the highest protection from
governmental intrusion," ibid.
The judgment of the District Court enjoins the Government from
enforcing the prohibitions in §223(a)(1)(B) insofar as they
relate to "indecent" communications, but expressly preserves
the Government's right to investigate and prosecute the obscenity
or child pornography activities prohibited therein. The
injunction against enforcement of §§223(d)(1) and (2) is
unqualified because those provisions contain no separate
reference to obscenity or child pornography.
The Government appealed under the Act's special review
provisions, §561, 110 Stat. 142143, and we noted probable
jurisdiction, see 519 U. S. ___ (1996). In its appeal, the
Government argues that the District Court erred in holding that
the CDA violated both the First Amendment because it is
overbroad and the Fifth Amendment because it is vague. While
we discuss the vagueness of the CDA because of its relevance to
the First Amendment overbreadth inquiry, we conclude that the
judgment should be affirmed without reaching the Fifth
Amendment issue. We begin our analysis by reviewing the
principal authorities on which the Government relies. Then, after
describing the overbreadth of the CDA, we consider the
Government's specific contentions, including its submission that
we save portions of the statute either by severance or by
fashioning judicial limitations on the scope of its coverage.
In arguing for reversal, the Government contends that the CDA
is plainly constitutional under three of our prior decisions: (1)
Ginsberg v. New York, 390 U. S. 629 (1968); (2) FCC v.
Pacifica Foundation, 438 U. S. 726 (1978); and (3) Renton v.
Playtime Theatres, Inc., 475 U. S. 41 (1986). A close look at
these cases, however, raisesrather than relievesdoubts
concerning the constitutionality of the CDA.
In Ginsberg, we upheld the constitutionality of a New York
statute that prohibited selling to minors under 17 years of age
material that was considered obscene as to them even if not
obscene as to adults. We rejected the defendant's broad
submission that "the scope of the constitutional freedom of
expression secured to a citizen to read or see material concerned
with sex cannot be made to depend on whether the citizen is an
adult or a minor." 390 U. S., at 636. In rejecting that
contention, we relied not only on the State's independent interest
in the well-being of its youth, but also on our consistent
recognition of the principle that "the parents' claim to authority
in their own household to direct the rearing of their children is
basic in the structure of our society." In four important
respects, the statute upheld in Ginsberg was narrower than the
CDA. First, we noted in Ginsberg that "the prohibition against
sales to minors does not bar parents who so desire from
purchasing the magazines for their children." Id., at 639. Under
the CDA, by contrast, neither the parents' consentnor even
their participationin the communication would avoid the
application of the statute. Second, the New York statute applied
only to commercial transactions, id., at 647, whereas the CDA
contains no such limitation. Third, the New York statute cabined
its definition of material that is harmful to minors with the
requirement that it be "utterly without redeeming social
importance for minors." Id., at 646. The CDA fails to provide
us with any definition of the term "indecent" as used in
§223(a)(1) and, importantly, omits any requirement that the
"patently offensive" material covered by §223(d) lack serious
literary, artistic, political, or scientific value. Fourth, the New
York statute defined a minor as a person under the age of 17,
whereas the CDA, in applying to all those under 18 years,
includes an additional year of those nearest majority.
In Pacifica, we upheld a declaratory order of the Federal
Communications Commission, holding that the broadcast of a
recording of a 12minute monologue entitled "Filthy Words"
that had previously been delivered to a live audience "could
have been the subject of administrative sanctions." 438 U. S., at
730 (internal quotations omitted). The Commission had found
that the repetitive use of certain words referring to excretory or
sexual activities or organs "in an afternoon broadcast when
children are in the audience was patently offensive" and
concluded that the monologue was indecent "as broadcast." Id.,
at 735. The respondent did not quarrel with the finding that the
afternoon broadcast was patently offensive, but contended that it
was not "indecent" within the meaning of the relevant statutes
because it contained no prurient appeal. After rejecting
respondent's statutory arguments, we confronted its two
constitutional arguments: (1) that the Commission's construction
of its authority to ban indecent speech was so broad that its order
had to be set aside even if the broadcast at issue was unprotected;
and (2) that since the recording was not obscene, the First
Amendment forbade any abridgement of the right to broadcast
it on the radio.
In the portion of the lead opinion not joined by Justices Powell
and Blackmun, the plurality stated that the First Amendment
does not prohibit all governmental regulation that depends on
the content of speech. Id., at 742743. Accordingly, the
availability of constitutional protection for a vulgar and
offensive monologue that was not obscene depended on the
context of the broadcast. Id., at 744748. Relying on the
premise that "of all forms of communication" broadcasting had
received the most limited First Amendment protection, id., at
748749, the Court concluded that the ease with which children
may obtain access to broadcasts, "coupled with the concerns
recognized in Ginsberg," justified special treatment of indecent
broadcasting. Id., at 749750.
As with the New York statute at issue in Ginsberg, there are
significant differences between the order upheld in Pacifica and
the CDA. First, the order in Pacifica, issued by an agency that
had been regulating radio stations for decades, targeted a
specific broadcast that represented a rather dramatic departure
from traditional program content in order to designate
whenrather than whetherit would be permissible to air such
a program in that particular medium. The CDA's broad
categorical prohibitions are not limited to particular times and
are not dependent on any evaluation by an agency familiar with
the unique characteristics of the Internet. Second, unlike the
CDA, the Commission's declaratory order was not punitive; we
expressly refused to decide whether the indecent broadcast
"would justify a criminal prosecution." Id., at 750. Finally, the
Commission's order applied to a medium which as a matter of
history had "received the most limited First Amendment
protection," id., at 748, in large part because warnings could not
adequately protect the listener from unexpected program
content. The Internet, however, has no comparable history.
Moreover, the District Court found that the risk of encountering
indecent material by accident is remote because a series of
affirmative steps is required to access specific material.
In Renton, we upheld a zoning ordinance that kept adult movie
theatres out of residential neighborhoods. The ordinance was
aimed, not at the content of the films shown in the theaters, but
rather at the "secondary effects"such as crime and
deteriorating property valuesthat these theaters fostered: "`It is
th[e] secondary effect which these zoning ordinances attempt to
avoid, not the dissemination of "offensive" speech.'" 475 U. S.,
at 49 (quoting Young v. American Mini Theatres, Inc., 427 U. S.
50, 71, n. 34 (1976)). According to the Government, the CDA is
constitutional because it constitutes a sort of "cyberzoning" on
the Internet. But the CDA applies broadly to the entire universe
of cyberspace. And the purpose of the CDA is to protect
children from the primary effects of "indecent" and "patently
offensive" speech, rather than any "secondary" effect of such
speech. Thus, the CDA is a content-based blanket restriction on
speech, and, as such, cannot be "properly analyzed as a form of
time, place, and manner regulation." 475 U. S., at 46. See also
Boos v. Barry, 485 U. S. 312, 321 (1988) ("Regulations that
focus on the direct impact of speech on its audience" are not
properly analyzed under Renton); Forsyth County v. Nationalist
Movement, 505 U. S. 123, 134 (1992) ("Listeners' reaction to
speech is not a content-neutral basis for regulation").
These precedents, then, surely do not require us to uphold the
CDA and are fully consistent with the application of the most
stringent review of its provisions.
In Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 557
(1975), we observed that "[e]ach medium of expression . . .
may present its own problems." Thus, some of our cases have
recognized special justifications for regulation of the broadcast
media that are not applicable to other speakers, see Red Lion
Broadcasting Co. v. FCC, 395 U. S. 367 (1969); FCC v.
Pacifica Foundation, 438 U. S. 726 (1978). In these cases, the
Court relied on the history of extensive government regulation
of the broadcast medium, see, e.g.,Red Lion, 395 U. S., at
399400; the scarcity of available frequencies at its inception,
see, e.g.,Turner Broadcasting System, Inc. v. FCC, 512 U. S.
622, 637638 (1994); and its "invasive" nature, see Sable
Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128
Those factors are not present in cyberspace. Neither before nor
after the enactment of the CDA have the vast democratic fora of
the Internet been subject to the type of government supervision
and regulation that has attended the broadcast industry.
Moreover, the Internet is not as "invasive" as radio or television.
The District Court specifically found that "[c]ommunications
over the Internet do not `invade' an individual's home or appear
on one's computer screen unbidden. Users seldom encounter
content `by accident.'" 929 F. Supp., at 844 (finding 88). It also
found that "[a]lmost all sexually explicit images are preceded
by warnings as to the content," and cited testimony that "`odds
are slim' that a user would come across a sexually explicit sight
by accident." Ibid.
We distinguished Pacifica in Sable, 492 U. S., at 128, on just this
basis. In Sable, a company engaged in the business of offering
sexually oriented prerecorded telephone messages (popularly
known as "dial-a-porn") challenged the constitutionality of an
amendment to the Communications Act that imposed a blanket
prohibition on indecent as well as obscene interstate commercial
telephone messages. We held that the statute was constitutional
insofar as it applied to obscene messages but invalid as applied
to indecent messages. In attempting to justify the complete ban
and criminalization of indecent commercial telephone messages,
the Government relied on Pacifica, arguing that the ban was
necessary to prevent children from gaining access to such
messages. We agreed that "there is a compelling interest in
protecting the physical and psychological well-being of minors"
which extended to shielding them from indecent messages that
are not obscene by adult standards, 492 U. S., at 126, but
distinguished our "emphatically narrow holding" in Pacifica
because it did not involve a complete ban and because it
involved a different medium of communication, id., at 127. We
explained that "the dial-it medium requires the listener to take
affirmative steps to receive the communication." Id., at
127128. "Placing a telephone call," we continued, "is not the
same as turning on a radio and being taken by surprise by an
indecent message." Id., at 128.
Finally, unlike the conditions that prevailed when Congress first
authorized regulation of the broadcast spectrum, the Internet can
hardly be considered a "scarce" expressive commodity. It
provides relatively unlimited, low-cost capacity for
communication of all kinds. The Government estimates that
"[a]s many as 40 million people use the Internet today, and that
figure is expected to grow to 200 million by 1999." This
dynamic, multifaceted category of communication includes not
only traditional print and news services, but also audio, video,
and still images, as well as interactive, real-time dialogue.
Through the use of chat rooms, any person with a phone line
can become a town crier with a voice that resonates farther than
it could from any soapbox. Through the use of Web pages, mail
exploders, and newsgroups, the same individual can become a
pamphleteer. As the District Court found, "the content on the
Internet is as diverse as human thought." 929 F. Supp., at 842
(finding 74). We agree with its conclusion that our cases provide
no basis for qualifying the level of First Amendment scrutiny
that should be applied to this medium.
Regardless of whether the CDA is so vague that it violates the
Fifth Amendment, the many ambiguities concerning the scope
of its coverage render it problematic for purposes of the First
Amendment. For instance, each of the two parts of the CDA uses
a different linguistic form. The first uses the word "indecent,"
47 U. S. C. A. §223(a) (Supp. 1997), while the second speaks of
material that "in context, depicts or describes, in terms patently
offensive as measured by contemporary community standards,
sexual or excretory activities or organs," §223(d). Given the
absence of a definition of either term, this difference in
language will provoke uncertainty among speakers about how
the two standards relate to each other and just what they
mean. Could a speaker confidently assume that a serious
discussion about birth control practices, homosexuality, the First
Amendment issues raised by the Appendix to our Pacifica
opinion, or the consequences of prison rape would not violate
the CDA? This uncertainty undermines the likelihood that the
CDA has been carefully tailored to the congressional goal of
protecting minors from potentially harmful materials.
The vagueness of the CDA is a matter of special concern for two
reasons. First, the CDA is a content-based regulation of speech.
The vagueness of such a regulation raises special First
Amendment concerns because of its obvious chilling effect on
free speech. See, e.g.,Gentile v. State Bar of Nev., 501 U. S.
1030, 10481051 (1991). Second, the CDA is a criminal statute.
In addition to the opprobrium and stigma of a criminal
conviction, the CDA threatens violators with penalties including
up to two years in prison for each act of violation. The severity
of criminal sanctions may well cause speakers to remain silent
rather than communicate even arguably unlawful words, ideas,
and images. See, e.g.,Dombrowski v. Pfister, 380 U. S. 479, 494
(1965). As a practical matter, this increased deterrent effect,
coupled with the "risk of discriminatory enforcement" of vague
regulations, poses greater First Amendment concerns than those
implicated by the civil regulation reviewed in Denver Area Ed.
Telecommunications Consortium, Inc. v. FCC, 518 U. S. ___
The Government argues that the statute is no more vague than
the obscenity standard this Court established in Miller v.
California, 413 U. S. 15 (1973). But that is not so. In Miller, this
Court reviewed a criminal conviction against a commercial
vendor who mailed brochures containing pictures of sexually
explicit activities to individuals who had not requested such
materials. Id., at 18. Having struggled for some time to establish
a definition of obscenity, we set forth in Miller the test for
obscenity that controls to this day:
"(a) whether the average person, applying contemporary
community standards would find that the work, taken as a
whole, appeals to the prurient interest; (b) whether the work
depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value." Id., at 24 (internal
quotation marks and citations omitted).
Because the CDA's "patently offensive" standard (and, we
assume arguendo, its synonymous "indecent" standard) is one
part of the three-prong Miller test, the Government reasons, it
cannot be unconstitutionally vague.
The Government's assertion is incorrect as a matter of fact. The
second prong of the Miller testthe purportedly analogous
standardcontains a critical requirement that is omitted from
the CDA: that the proscribed material be "specifically defined
by the applicable state law." This requirement reduces the
vagueness inherent in the open-ended term "patently offensive"
as used in the CDA. Moreover, the Miller definition is limited to
"sexual conduct," whereas the CDA extends also to include (1)
"excretory activities" as well as (2) "organs" of both a sexual
and excretory nature.
The Government's reasoning is also flawed. Just because a
definition including three limitations is not vague, it does not
follow that one of those limitations, standing by itself, is not
vague. Each of Miller's additional two prongs(1) that, taken
as a whole, the material appeal to the "prurient" interest, and (2)
that it "lac[k] serious literary, artistic, political, or scientific
value"critically limits the uncertain sweep of the obscenity
definition. The second requirement is particularly important
because, unlike the "patently offensive" and "prurient
interest" criteria, it is not judged by contemporary community
standards. See Pope v. Illinois, 481 U. S. 497, 500 (1987). This
"societal value" requirement, absent in the CDA, allows
appellate courts to impose some limitations and regularity on the
definition by setting, as a matter of law, a national floor for
socially redeeming value. The Government's contention that
courts will be able to give such legal limitations to the CDA's
standards is belied by Miller's own rationale for having juries
determine whether material is "patently offensive" according to
community standards: that such questions are essentially ones of
In contrast to Miller and our other previous cases, the CDA
thus presents a greater threat of censoring speech that, in fact,
falls outside the statute's scope. Given the vague contours of the
coverage of the statute, it unquestionably silences some speakers
whose messages would be entitled to constitutional protection.
That danger provides further reason for insisting that the statute
not be overly broad. The CDA's burden on protected speech
cannot be justified if it could be avoided by a more carefully
We are persuaded that the CDA lacks the precision that the
First Amendment requires when a statute regulates the content of
speech. In order to deny minors access to potentially harmful
speech, the CDA effectively suppresses a large amount of speech
that adults have a constitutional right to receive and to address to
one another. That burden on adult speech is unacceptable if less
restrictive alternatives would be at least as effective in achieving
the legitimate purpose that the statute was enacted to serve.
In evaluating the free speech rights of adults, we have made it
perfectly clear that "[s]exual expression which is indecent but
not obscene is protected by the First Amendment." Sable, 492
U. S., at 126. See also Carey v. Population Services Int'l, 431 U.
S. 678, 701 (1977) ("[W]here obscenity is not involved, we have
consistently held that the fact that protected speech may be
offensive to some does not justify its suppression"). Indeed,
Pacifica itself admonished that "the fact that society may find
speech offensive is not a sufficient reason for suppressing it."
438 U. S., at 745.
It is true that we have repeatedly recognized the governmental
interest in protecting children from harmful materials. See
Ginsberg, 390 U. S., at 639; Pacifica, 438 U. S., at 749. But that
interest does not justify an unnecessarily broad suppression of
speech addressed to adults. As we have explained, the
Government may not "reduc[e] the adult population . . . to . . .
only what is fit for children." Denver, 518 U. S., at ___ (slip
op., at 29) (internal quotation marks omitted) (quoting Sable,
492 U. S., at 128). "[R]egardless of the strength of the
government's interest" in protecting children, "[t]he level of
discourse reaching a mailbox simply cannot be limited to that
which would be suitable for a sandbox." Bolger v. Youngs Drug
Products Corp., 463 U. S. 60, 7475 (1983).
The District Court was correct to conclude that the CDA
effectively resembles the ban on "dial-a-porn" invalidated in
Sable. 929 F. Supp., at 854. In Sable, 492 U. S., at 129, this
Court rejected the argument that we should defer to the
congressional judgment that nothing less than a total ban would
be effective in preventing enterprising youngsters from gaining
access to indecent communications. Sable thus made clear that
the mere fact that a statutory regulation of speech was enacted
for the important purpose of protecting children from exposure
to sexually explicit material does not foreclose inquiry into its
validity. As we pointed out last Term, that inquiry embodies an
"over-arching commitment" to make sure that Congress has
designed its statute to accomplish its purpose "without imposing
an unnecessarily great restriction on speech." Denver, 518 U. S.,
at ___ (slip op., at 11).
In arguing that the CDA does not so diminish adult
communication, the Government relies on the incorrect factual
premise that prohibiting a transmission whenever it is known that
one of its recipients is a minor would not interfere with
adult-to-adult communication. The findings of the District Court
make clear that this premise is untenable. Given the size of the
potential audience for most messages, in the absence of a viable
age verification process, the sender must be charged with
knowing that one or more minors will likely view it. Knowledge
that, for instance, one or more members of a 100-person chat
group will be minorand therefore that it would be a crime to
send the group an indecent messagewould surely burden
communication among adults.
The District Court found that at the time of trial existing
technology did not include any effective method for a sender to
prevent minors from obtaining access to its communications on
the Internet without also denying access to adults. The Court
found no effective way to determine the age of a user who is
accessing material through e-mail, mail exploders, newsgroups,
or chat rooms. 929 F. Supp., at 845 (findings 9094). As a
practical matter, the Court also found that it would be
prohibitively expensive for noncommercialas well as some
commercialspeakers who have Web sites to verify that their
users are adults. Id., at 845848 (findings 95116). These
limitations must inevitably curtail a significant amount of adult
communication on the Internet. By contrast, the District Court
found that "[d]espite its limitations, currently available
user-based software suggests that a reasonably effective method
by which parents can prevent their children from accessing
sexually explicit and other material which parents may believe is
inappropriate for their children will soon be widely available."
Id., at 842 (finding 73) (emphases added).
The breadth of the CDA's coverage is wholly unprecedented.
Unlike the regulations upheld in Ginsberg and Pacifica, the
scope of the CDA is not limited to commercial speech or
commercial entities. Its open-ended prohibitions embrace all
nonprofit entities and individuals posting indecent messages or
displaying them on their own computers in the presence of
minors. The general, undefined terms "indecent" and "patently
offensive" cover large amounts of nonpornographic material
with serious educational or other value. Moreover, the
"community standards" criterion as applied to the Internet
means that any communication available to a nation-wide
audience will be judged by the standards of the community most
likely to be offended by the message. The regulated subject
matter includes any of the seven "dirty words" used in the
Pacifica monologue, the use of which the Government's expert
acknowledged could constitute a felony. See Olsen Test., Tr.
Vol. V, 53:1654:10. It may also extend to discussions about
prison rape or safe sexual practices, artistic images that include
nude subjects, and arguably the card catalogue of the Carnegie
For the purposes of our decision, we need neither accept nor
reject the Government's submission that the First Amendment
does not forbid a blanket prohibition on all "indecent" and
"patently offensive" messages communicated to a 17-year
oldno matter how much value the message may contain and
regardless of parental approval. It is at least clear that the
strength of the Government's interest in protecting minors is not
equally strong throughout the coverage of this broad statute.
Under the CDA, a parent allowing her 17-year-old to use the
family computer to obtain information on the Internet that she,
in her parental judgment, deems appropriate could face a
lengthy prison term. See 47 U. S. C. A. §223(a)(2) (Supp.
1997). Similarly, a parent who sent his 17-year-old college
freshman information on birth control via e-mail could be
incarcerated even though neither he, his child, nor anyone in
their home community, found the material "indecent" or
"patently offensive," if the college town's community thought
The breadth of this content-based restriction of speech
imposes an especially heavy burden on the Government to
explain why a less restrictive provision would not be as effective
as the CDA. It has not done so. The arguments in this Court have
referred to possible alternatives such as requiring that indecent
material be "tagged" in a way that facilitates parental control of
material coming into their homes, making exceptions for
messages with artistic or educational value, providing some
tolerance for parental choice, and regulating some portions of
the Internetsuch as commercial web sitesdifferently than
others, such as chat rooms. Particularly in the light of the
absence of any detailed findings by the Congress, or even
hearings addressing the special problems of the CDA, we are
persuaded that the CDA is not narrowly tailored if that
requirement has any meaning at all.
In an attempt to curtail the CDA's facial overbreadth, the
Government advances three additional arguments for sustaining
the Act's affirmative prohibitions: (1) that the CDA is
constitutional because it leaves open ample "alternative
channels" of communication; (2) that the plain meaning of the
Act's "knowledge" and "specific person" requirement
significantly restricts its permissible applications; and (3) that the
Act's prohibitions are "almost always" limited to material
lacking redeeming social value.
The Government first contends that, even though the CDA
effectively censors discourse on many of the Internet's
modalitiessuch as chat groups, newsgroups, and mail
explodersit is nonetheless constitutional because it provides a
"reasonable opportunity" for speakers to engage in the
restricted speech on the World Wide Web. Brief for Appellants
39. This argument is unpersuasive because the CDA regulates
speech on the basis of its content. A "time, place, and manner"
analysis is therefore inapplicable. See Consolidated Edison Co.
of N. Y. v. Public Serv. Comm'n of N. Y., 447 U. S. 530, 536
(1980). It is thus immaterial whether such speech would be
feasible on the Web (which, as the Government's own expert
acknowledged, would cost up to $10,000 if the speaker's interests
were not accommodated by an existing Web site, not including
costs for database management and age verification). The
Government's position is equivalent to arguing that a statute
could ban leaflets on certain subjects as long as individuals are
free to publish books. In invalidating a number of laws that
banned leafletting on the streets regardless of their contentwe
explained that "one is not to have the exercise of his liberty of
expression in appropriate places abridged on the plea that it may
be exercised in some other place." Schneider v. State (Town of
Irvington), 308 U. S. 147, 163 (1939).
The Government also asserts that the "knowledge"
requirement of both §§223(a) and (d), especially when coupled
with the "specific child" element found in §223(d), saves the
CDA from overbreadth. Because both sections prohibit the
dissemination of indecent messages only to persons known to be
under 18, the Government argues, it does not require transmitters
to "refrain from communicating indecent material to adults;
they need only refrain from disseminating such materials to
persons they know to be under 18." Brief for Appellants 24.
This argument ignores the fact that most Internet
foraincluding chat rooms, newsgroups, mail exploders, and the
Webare open to all comers. The Government's assertion that
the knowledge requirement somehow protects the
communications of adults is therefore untenable. Even the
strongest reading of the "specific person" requirement of
§223(d) cannot save the statute. It would confer broad powers of
censorship, in the form of a "heckler's veto," upon any
opponent of indecent speech who might simply log on and
inform the would-be discoursers that his 17-year-old childa
"specific person . . . under 18 years of age," 47 U. S. C. A.
§223(d)(1)(A) (Supp. 1997)would be present.
Finally, we find no textual support for the Government's
submission that material having scientific, educational, or other
redeeming social value will necessarily fall outside the CDA's
"patently offensive" and "indecent" prohibitions. See also n.
The Government's three remaining arguments focus on the
defenses provided in §223(e)(5). First, relying on the "good
faith, reasonable, effective, and appropriate actions" provision,
the Government suggests that "tagging" provides a defense that
saves the constitutionality of the Act. The suggestion assumes
that transmitters may encode their indecent communications in a
way that would indicate their contents, thus permitting recipients
to block their reception with appropriate software. It is the
requirement that the good faith action must be "effective" that
makes this defense illusory. The Government recognizes that its
proposed screening software does not currently exist. Even if it
did, there is no way to know whether a potential recipient will
actually block the encoded material. Without the impossible
knowledge that every guardian in America is screening for the
"tag," the transmitter could not reasonably rely on its action to
For its second and third arguments concerning
defenseswhich we can consider togetherthe Government
relies on the latter half of §223(e)(5), which applies when the
transmitter has restricted access by requiring use of a verified
credit card or adult identification. Such verification is not only
technologically available but actually is used by commercial
providers of sexually explicit material. These providers,
therefore, would be protected by the defense. Under the findings
of the District Court, however, it is not economically feasible for
most noncommercial speakers to employ such verification.
Accordingly, this defense would not significantly narrow the
statute's burden on noncommercial speech. Even with respect to
the commercial pornographers that would be protected by the
defense, the Government failed to adduce any evidence that
these verification techniques actually preclude minors from
posing as adults. Given that the risk of criminal sanctions
"hovers over each content provider, like the proverbial sword of
Damocles," the District Court correctly refused to rely on
unproven future technology to save the statute. The Government
thus failed to prove that the proffered defense would
significantly reduce the heavy burden on adult speech produced
by the prohibition on offensive displays.
We agree with the District Court's conclusion that the CDA
places an unacceptably heavy burden on protected speech, and
that the defenses do not constitute the sort of "narrow tailoring"
that will save an otherwise patently invalid unconstitutional
provision. In Sable, 492 U. S., at 127, we remarked that the
speech restriction at issue there amounted to "`burn[ing] the
house to roast the pig.'" The CDA, casting a far darker shadow
over free speech, threatens to torch a large segment of the
At oral argument, the Government relied heavily on its
ultimate fall-back position: If this Court should conclude that the
CDA is insufficiently tailored, it urged, we should save the
statute's constitutionality by honoring the severability clause, see
47 U. S. C. §608, and construing nonseverable terms narrowly.
In only one respect is this argument acceptable.
A severability clause requires textual provisions that can be
severed. We will follow §608's guidance by leaving constitutional
textual elements of the statute intact in the one place where they
are, in fact, severable. The "indecency" provision, 47 U. S. C.
A. §223(a) (Supp. 1997), applies to "any comment, request,
suggestion, proposal, image, or other communication which is
obscene or indecent." (Emphasis added.) Appellees do not
challenge the application of the statute to obscene speech, which,
they acknowledge, can be banned totally because it enjoys no
First Amendment protection. See Miller, 413 U. S., at 18. As set
forth by the statute, the restriction of "obscene" material enjoys
a textual manifestation separate from that for "indecent"
material, which we have held unconstitutional. Therefore, we will
sever the term "or indecent" from the statute, leaving the rest of
§223(a) standing. In no other respect, however, can §223(a) or
§223(d) be saved by such a textual surgery.
The Government also draws on an additional, less traditional
aspect of the CDA's severability clause, 47 U. S. C., §608, which
asks any reviewing court that holds the statute facially
unconstitutional not to invalidate the CDA in application to
"other persons or circumstances" that might be constitutionally
permissible. It further invokes this Court's admonition that,
absent "countervailing considerations," a statute should "be
declared invalid to the extent it reaches too far, but otherwise left
intact." Brockett v. Spokane Arcades, Inc., 472 U. S. 491,
503504 (1985). There are two flaws in this argument.
First, the statute that grants our jurisdiction for this expedited
review, 47 U. S. C. A. §561 (Supp. 1997), limits that
jurisdictional grant to actions challenging the CDA "on its
face." Consistent with §561, the plaintiffs who brought this suit
and the three-judge panel that decided it treated it as a facial
challenge. We have no authority, in this particular posture, to
convert this litigation into an "as-applied" challenge. Nor, given
the vast array of plaintiffs, the range of their expressive activities,
and the vagueness of the statute, would it be practicable to limit
our holding to a judicially defined set of specific applications.
Second, one of the "countervailing considerations"
mentioned in Brockett is present here. In considering a facial
challenge, this Court may impose a limiting construction on a
statute only if it is "readily susceptible" to such a construction.
Virginia v. American Bookseller's Assn., Inc., 484 U. S. 383,
397 (1988). See also Erznoznik, v. Jacksonville, 422 U. S. 205,
216 (1975) ("readily subject" to narrowing construction). The
open-ended character of the CDA provides no guidance
whatever for limiting its coverage.
This case is therefore unlike those in which we have construed
a statute narrowly because the text or other source of
congressional intent identified a clear line that this Court could
draw. Cf., e.g.,Brockett, 472 U. S., at 504505 (invalidating
obscenity statute only to the extent that word "lust" was actually
or effectively excised from statute); United States v. Grace, 461
U. S. 171, 180183 (1983) (invalidating federal statute banning
expressive displays only insofar as it extended to public
sidewalks when clear line could be drawn between sidewalks and
other grounds that comported with congressional purpose of
protecting the building, grounds, and people therein). Rather,
our decision in United States v. Treasury Employees, 513 U. S.
454, 479, n. 26 (1995), is applicable. In that case, we declined to
"dra[w] one or more lines between categories of speech covered
by an overly broad statute, when Congress has sent inconsistent
signals as to where the new line or lines should be drawn"
because doing so "involves a far more serious invasion of the
legislative domain." This Court "will not rewrite a . . . law to
conform it to constitutional requirements." American
Booksellers, 484 U. S., at 397.
In this Court, though not in the District Court, the Government
asserts thatin addition to its interest in protecting childrenits
"[e]qually significant" interest in fostering the growth of the
Internet provides an independent basis for upholding the
constitutionality of the CDA. Brief for Appellants 19. The
Government apparently assumes that the unregulated availability
of "indecent" and "patently offensive" material on the
Internet is driving countless citizens away from the medium
because of the risk of exposing themselves or their children to
We find this argument singularly unpersuasive. The dramatic
expansion of this new marketplace of ideas contradicts the
factual basis of this contention. The record demonstrates that the
growth of the Internet has been and continues to be
phenomenal. As a matter of constitutional tradition, in the
absence of evidence to the contrary, we presume that
governmental regulation of the content of speech is more likely
to interfere with the free exchange of ideas than to encourage it.
The interest in encouraging freedom of expression in a
democratic society outweighs any theoretical but unproven
benefit of censorship.
For the foregoing reasons, the judgment of the district court is
affirmed. It is so ordered.
SUPREME COURT OF THE UNITED STATES
JANET RENO, ATTORNEY GENERAL OF THE UNITED
STATES, et al., APPELLANTS v. AMERICAN CIVIL
UNION et al.
on appeal from the united states district court for the
eastern district of pennsylvania
[June 26, 1997]
Justice O'Connor, with whom The Chief Justice
joins, concurring in the judgment in part and dissenting in part.
I write separately to explain why I view the
Communications Decency Act of 1996 (CDA) as little more than
an attempt by Congress to create "adult zones" on the Internet.
Our precedent indicates that the creation of such zones can be
constitutionally sound. Despite the soundness of its purpose,
however, portions of the CDA are unconstitutional because they
stray from the blueprint our prior cases have developed for
constructing a "zoning law" that passes constitutional muster.
Appellees bring a facial challenge to three
provisions of the CDA. The first, which the Court describes as
the "indecency transmission" provision, makes it a crime to
knowingly transmit an obscene or indecent message or image to
a person the sender knows is under 18 years old. 47 U. S. C. A.
§223(a)(1)(B) (May 1996 Supp.). What the Court classifies as a
single "`patently offensive display'" provision, see ante, at 11, is
in reality two separate provisions. The first of these makes it a
crime to knowingly send a patently offensive message or image
to a specific person under the age of 18 ("specific person"
provision). §223(d)(1)(A). The second criminalizes the display
of patently offensive messages or images "in a[ny] manner
available" to minors ("display" provision). §223(d)(1)(B).
None of these provisions purports to keep indecent (or patently
offensive) material away from adults, who have a First
Amendment right to obtain this speech. Sable Communications
of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989) ("Sexual
expression which is indecent but not obscene is protected by the
First Amendment"). Thus, the undeniable purpose of the CDA
is to segregate indecent material on the Internet into certain areas
that minors cannot access. See S. Conf. Rep. No. 104230, p.
189 (1996) (CDA imposes "access restrictions . . . to protect
minors from exposure to indecent material").
The creation of "adult zones" is by no means a
novel concept. States have long denied minors access to certain
establishments frequented by adults. States have also denied
minors access to speech deemed to be "harmful to minors."
The Court has previously sustained such zoning laws, but only if
they respect the First Amendment rights of adults and minors.
That is to say, a zoning law is valid if (i) it does not unduly
restrict adult access to the material; and (ii) minors have no First
Amendment right to read or view the banned material. As
applied to the Internet as it exists in 1997, the "display"
provision and some applications of the "indecency
transmission" and "specific person" provisions fail to adhere to
the first of these limiting principles by restricting adults' access
to protected materials in certain circumstances. Unlike the
Court, however, I would invalidate the provisions only in those
Our cases make clear that a "zoning" law is valid
only if adults are still able to obtain the regulated speech. If
they cannot, the law does more than simply keep children away
from speech they have no right to obtainit interferes with the
rights of adults to obtain constitutionally protected speech and
effectively "reduce[s] the adult population . . . to reading only
what is fit for children." Butler v. Michigan, 352 U. S. 380, 383
(1957). The First Amendment does not tolerate such
interference. See id., at 383 (striking down a Michigan criminal
law banning sale of booksto minors or adultsthat contained
words or pictures that "`tende[d] to . . . corrup[t] the morals of
youth'"); Sable Communications, supra (invalidating federal law
that made it a crime to transmit indecent, but nonobscene,
commercial telephone messages to minors and adults); Bolger v.
Youngs Drug Products Corp., 463 U. S. 60, 74 (1983) (striking
down a federal law prohibiting the mailing of unsolicited
advertisements for contraceptives). If the law does not unduly
restrict adults' access to constitutionally protected speech,
however, it may be valid. In Ginsberg v. New York, 390 U. S.
629, 634 (1968), for example, the Court sustained a New York
law that barred store owners from selling pornographic
magazines to minors in part because adults could still buy those
The Court in Ginsberg concluded that the New
York law created a constitutionally adequate adult zone simply
because, on its face, it denied access only to minors. The Court
did not questionand therefore necessarily assumedthat an
adult zone, once created, would succeed in preserving adults'
access while denying minors' access to the regulated speech.
Before today, there was no reason to question this assumption,
for the Court has previously only considered laws that operated
in the physical world, a world that with two characteristics that
make it possible to create "adult zones": geography and
identity. See Lessig, Reading the Constitution in Cyberspace, 45
Emory L. J. 869, 886 (1996). A minor can see an adult dance
show only if he enters an establishment that provides such
entertainment. And should he attempt to do so, the minor will
not be able to conceal completely his identity (or, consequently,
his age). Thus, the twin characteristics of geography and
identity enable the establishment's proprietor to prevent children
from entering the establishment, but to let adults inside.
The electronic world is fundamentally different.
Because it is no more than the interconnection of electronic
pathways, cyberspace allows speakers and listeners to mask their
identities. Cyberspace undeniably reflects some form of
geography; chat rooms and Web sites, for example, exist at fixed
"locations" on the Internet. Since users can transmit and
receive messages on the Internet without revealing anything
about their identities or ages, see Lessig, supra, at 901, however,
it is not currently possible to exclude persons from accessing
certain messages on the basis of their identity.
Cyberspace differs from the physical world in
another basic way: Cyberspace is malleable. Thus, it is possible
to construct barriers in cyberspace and use them to screen for
identity, making cyberspace more like the physical world and,
consequently, more amenable to zoning laws. This
transformation of cyberspace is already underway. Lessig,
supra, at 888889. Id., at 887 (cyberspace "is moving . . . from
a relatively unzoned place to a universe that is extraordinarily
well zoned"). Internet speakers (users who post material on the
Internet) have begun to zone cyberspace itself through the use
of "gateway" technology. Such technology requires Internet
users to enter information about themselvesperhaps an adult
identification number or a credit card numberbefore they can
access certain areas of cyberspace, 929 F. Supp. 824, 845 (ED
Pa. 1996), much like a bouncer checks a person's driver's license
before admitting him to a nightclub. Internet users who access
information have not attempted to zone cyberspace itself, but
have tried to limit their own power to access information in
cyberspace, much as a parent controls what her children watch
on television by installing a lock box. This user-based zoning is
accomplished through the use of screening software (such as
Cyber Patrol or SurfWatch) or browsers with screening
capabilities, both of which search addresses and text for
keywords that are associated with "adult" sites and, if the user
wishes, blocks access to such sites. Id., at 839842. The
Platform for Internet Content Selection (PICS) project is
designed to facilitate user-based zoning by encouraging Internet
speakers to rate the content of their speech using codes
recognized by all screening programs. Id., at 838839.
Despite this progress, the transformation of
cyberspace is not complete. Although gateway technology has
been available on the World Wide Web for some time now, id., at
845; Shea v. Reno, 930 F. Supp. 916, 933934 (SDNY 1996), it
is not available to all Web speakers, 929 F. Supp., at 845846,
and is just now becoming technologically feasible for chat
rooms and USENET newsgroups, Brief for Federal Parties
3738. Gateway technology is not ubiquitous in cyberspace,
and because without it "there is no means of age verification,"
cyberspace still remains largely unzonedand unzoneable. 929
F. Supp., at 846; Shea, supra, at 934. User-based zoning is also
in its infancy. For it to be effective, (i) an agreed-upon code (or
"tag") would have to exist; (ii) screening software or browsers
with screening capabilities would have to be able to recognize
the "tag"; and (iii) those programs would have to be widely
availableand widely usedby Internet users. At present, none
of these conditions is true. Screening software "is not in wide
use today" and "only a handful of browsers have screening
capabilities." Shea, supra, at 945946. There is, moreover, no
agreed-upon "tag" for those programs to recognize. 929 F.
Supp., at 848; Shea, supra, at 945.
Although the prospects for the eventual zoning of
the Internet appear promising, I agree with the Court that we
must evaluate the constitutionality of the CDA as it applies to the
Internet as it exists today. Ante, at 36. Given the present state of
cyberspace, I agree with the Court that the "display" provision
cannot pass muster. Until gateway technology is available
throughout cyberspace, and it is not in 1997, a speaker cannot
be reasonably assured that the speech he displays will reach only
adults because it is impossible to confine speech to an "adult
zone." Thus, the only way for a speaker to avoid liability under
the CDA is to refrain completely from using indecent speech.
But this forced silence impinges on the First Amendment right
of adults to make and obtain this speech and, for all intents and
purposes, "reduce[s] the adult population [on the Internet] to
reading only what is fit for children." Butler, 352 U. S., at 383.
As a result, the "display" provision cannot withstand scrutiny.
Accord, Sable Communications, 492 U. S., at 126131; Bolger
v. Youngs Drug Products Corp., 463 U. S., at 7375.
The "indecency transmission" and "specific
person" provisions present a closer issue, for they are not
unconstitutional in all of their applications. As discussed above,
the "indecency transmission" provision makes it a crime to
transmit knowingly an indecent message to a person the sender
knows is under 18 years of age. 47 U. S. C. A. §223(a)(1)(B)
(May 1996 Supp.). The "specific person" provision proscribes
the same conduct, although it does not as explicitly require the
sender to know that the intended recipient of his indecent
message is a minor. §223(d)(1)(A). Appellant urges the Court
to construe the provision to impose such a knowledge
requirement, see Brief for Federal Parties 2527, and I would do
so. See Edward J. DeBartolo Corp. v. Florida Gulf Coast
Building & Constr. Trades Council, 485 U. S. 568, 575 (1988)
("[W]here an otherwise acceptable construction of a statute
would raise serious constitutional problems, the Court will
construe the statute to avoid such problems unless such
construction is plainly contrary to the intent of Congress").
So construed, both provisions are constitutional as
applied to a conversation involving only an adult and one or
more minorse.g., when an adult speaker sends an e-mail
knowing the addressee is a minor, or when an adult and minor
converse by themselves or with other minors in a chat room. In
this context, these provisions are no different from the law we
sustained in Ginsberg. Restricting what the adult may say to the
minors in no way restricts the adult's ability to communicate with
other adults. He is not prevented from speaking indecently to
other adults in a chat room (because there are no other adults
participating in the conversation) and he remains free to send
indecent e-mails to other adults. The relevant universe contains
only one adult, and the adult in that universe has the power to
refrain from using indecent speech and consequently to keep all
such speech within the room in an "adult" zone.
The analogy to Ginsberg breaks down, however,
when more than one adult is a party to the conversation. If a
minor enters a chat room otherwise occupied by adults, the CDA
effectively requires the adults in the room to stop using indecent
speech. If they did not, they could be prosecuted under the
"indecency transmission" and "specific person" provisions for
any indecent statements they make to the group, since they
would be transmitting an indecent message to specific persons,
one of whom is a minor. Accord, ante, at 30. The CDA is
therefore akin to a law that makes it a crime for a bookstore
owner to sell pornographic magazines to anyone once a minor
enters his store. Even assuming such a law might be
constitutional in the physical world as a reasonable alternative to
excluding minors completely from the store, the absence of any
means of excluding minors from chat rooms in cyberspace
restricts the rights of adults to engage in indecent speech in those
rooms. The "indecency transmission" and "specific person"
provisions share this defect.
But these two provisions do not infringe on adults'
speech in all situations. And as discussed below, I do not find
that the provisions are overbroad in the sense that they restrict
minors' access to a substantial amount of speech that minors
have the right to read and view. Accordingly, the CDA can be
applied constitutionally in some situations. Normally, this fact
would require the Court to reject a direct facial challenge.
United States v. Salerno, 481 U. S. 739, 745 (1987) ("A facial
challenge to a legislative Act [succeeds only if] the challenger . .
. establish[es] that no set of circumstances exists under which the
Act would be valid"). Appellees' claim arises under the First
Amendment, however, and they argue that the CDA is facially
invalid because it is "substantially overbroad"that is, it
"sweeps too broadly . . . [and] penaliz[es] a substantial amount
of speech that is constitutionally protected," Forsyth County v.
Nationalist Movement, 505 U. S. 123, 130 (1992). See Brief for
Appellees American Library Association et al. 48; Brief for
Appellees American Civil Liberties Union et al. 3941. I agree
with the Court that the provisions are overbroad in that they
cover any and all communications between adults and minors,
regardless of how many adults might be part of the audience to
This conclusion does not end the matter, however.
Where, as here, "the parties challenging the statute are those who
desire to engage in protected speech that the overbroad statute
purports to punish . . . [t]he statute may forthwith be declared
invalid to the extent that it reaches too far, but otherwise left
intact." Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 504
(1985). There is no question that Congress intended to prohibit
certain communications between one adult and one or more
minors. See 47 U. S. C. A. §223(a)(1)(B) (May 1996 Supp.)
(punishing "[w]hoever . . . initiates the transmission of [any
indecent communication] knowingly that the recipient of the
communication is under 18 years of age"); §223(d)(1)(A)
(punishing "[w]hoever . . . send[s] to a specific person or
persons under 18 years of age [a patently offensive message]").
There is also no question that Congress would have enacted a
narrower version of these provisions had it known a broader
version would be declared unconstitutional. 47 U. S. C. §608
("If . . . the application [of any provision of the CDA] to any
person or circumstance is held invalid, . . . the application of
such provision to other persons or circumstances shall not be
affected thereby"). I would therefore sustain the "indecency
transmission" and "specific person" provisions to the extent
they apply to the transmission of Internet communications where
the party initiating the communication knows that all of the
recipients are minors.
Whether the CDA substantially interferes with the
First Amendment rights of minors, and thereby runs afoul of the
second characteristic of valid zoning laws, presents a closer
question. In Ginsberg, the New York law we sustained
prohibited the sale to minors of magazines that were "harmful
to minors." Under that law, a magazine was "harmful to
minors" only if it was obscene as to minors. 390 U. S., at
632633. Noting that obscene speech is not protected by the
First Amendment, Roth v. United States, 354 U. S. 476, 485
(1957), and that New York was constitutionally free to adjust the
definition of obscenity for minors, 390 U. S., at 638, the Court
concluded that the law did not "invad[e] the area of freedom of
expression constitutionally secured to minors." Id., at 637.
New York therefore did not infringe upon the First Amendment
rights of minors. Cf. Erznoznik v. Jacksonville, 422 U. S. 205,
213 (1975) (striking down city ordinance that banned nudity
that was not "obscene even as to minors").
The Court neither "accept[s] nor reject[s]" the
argument that the CDA is facially overbroad because it
substantially interferes with the First Amendment rights of
minors. Ante, at 32. I would reject it. Ginsberg established that
minors may constitutionally be denied access to material that is
obscene as to minors. As Ginsberg explained, material is
obscene as to minors if it (i) is "patently offensive to prevailing
standards in the adult community as a whole with respect to what
is suitable . . . for minors"; (ii) appeals to the prurient interest of
minors; and (iii) is "utterly without redeeming social importance
for minors." 390 U. S., at 633. Because the CDA denies
minors the right to obtain material that is "patently
offensive"even if it has some redeeming value for minors and
even if it does not appeal to their prurient interestsCongress'
rejection of the Ginsberg "harmful to minors" standard means
that the CDA could ban some speech that is "indecent" (i.e.,
"patently offensive") but that is not obscene as to minors.
I do not deny this possibility, but to prevail in a
facial challenge, it is not enough for a plaintiff to show "some"
overbreadth. Our cases require a proof of "real" and
"substantial" overbreadth, Broadrick v. Oklahoma, 413 U. S.
601, 615 (1973), and appellees have not carried their burden in
this case. In my view, the universe of speech constitutionally
protected as to minors but banned by the CDAi.e., the
universe of material that is "patently offensive," but which
nonetheless has some redeeming value for minors or does not
appeal to their prurient interestis a very small one. Appellees
cite no examples of speech falling within this universe and do
not attempt to explain why that universe is substantial "in
relation to the statute's plainly legitimate sweep." Ibid. That the
CDA might deny minors the right to obtain material that has
some "value," see ante, at 3233, is largely beside the point.
While discussions about prison rape or nude art, see ibid., may
have some redeeming education value for adults, they do not
necessarily have any such value for minors, and under Ginsberg,
minors only have a First Amendment right to obtain patently
offensive material that has "redeeming social importance for
minors," 390 U. S., at 633 (emphasis added). There is also no
evidence in the record to support the contention that "many
[e]-mail transmissions from an adult to a minor are
conversations between family members," ante, at 18, n. 32, and
no support for the legal proposition that such speech is
absolutely immune from regulation. Accordingly, in my view,
the CDA does not burden a substantial amount of minors'
constitutionally protected speech.
Thus, the constitutionality of the CDA as a zoning
law hinges on the extent to which it substantially interferes with
the First Amendment rights of adults. Because the rights of
adults are infringed only by the "display" provision and by the
"indecency transmission" and "specific person" provisions as
applied to communications involving more than one adult, I
would invalidate the CDA only to that extent. Insofar as the
"indecency transmission" and "specific person" provisions
prohibit the use of indecent speech in communications between
an adult and one or more minors, however, they can and should
be sustained. The Court reaches a contrary conclusion, and
from that holding that I respectfully dissent.