JUSTICE STEVENS delivered the opinion of
the Court.
At issue is the constitutionality of two statutory provisions
enacted
to protect minors from "indecent" and "patently offensive"
communications
on the Internet. Notwithstanding the legitimacy and importance of the
congressional
goal of protecting children from harmful materials, we agree with the
three-judge
District Court that the statute abridges "the freedom of speech"
protected
by the First Amendment.
I
The District Court made extensive findings of fact, most of
which were
based on a detailed stipulation prepared by the parties. 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 communication."
The Internet has experienced "extraordinary growth." The
number
of "host" computers--those that store information and relay
communications--increased
from about 300 in 1981 to approximately 9,400,000 by the time of the
trial
in 1996. Roughly 60% of these hosts are located in the 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 1999.
Individuals can obtain access to the Internet from many
different sources,
generally hosts themselves or entities with a host affiliation. Most
colleges
and universities provide access for their students and faculty; many
corporations
provide their employees with access through an office network; many
communities
and local libraries provide free access; and an increasing number of
storefront
"computer coffee shops" provide access for a small hourly fee. Several
major national "online services" such as America Online, CompuServe,
the
Microsoft Network, and Prodigy offer access to their own extensive
proprietary
networks as well as a link to the much larger resources of the
Internet.
Anyone with access to the Internet may take advantage of a
wide variety
of communication and information retrieval methods. These methods are
constantly
evolving and difficult to categorize precisely. But, as presently
constituted,
those most relevant to this case are electronic mail ("e-mail"),
automatic
mailing list services ("mail exploders," sometimes referred to as
"listservs"),
"newsgroups," "chat rooms," and the "World Wide Web." All of these
methods
can be used to transmit text; most can transmit sound, pictures, and
moving
video images. Taken together, these tools constitute a unique
medium--known
to its users as "cyberspace"--located in no particular geographical
location
but available to anyone, anywhere in the world, with access to the
Internet.
E-mail enables an individual to send an electronic
message--generally
akin to a note or letter--to another individual or to a group of
addressees.
The message is generally stored electronically, sometimes waiting for
the
recipient to check her "mailbox" and sometimes making its receipt known
through some type of prompt. A mail exploder is a sort of e-mail group.
Subscribers can send messages to a common e-mail address, which then
forwards
the message to the group's other subscribers. Newsgroups also serve
groups
of regular participants, but these postings may be read by others as
well.
There are thousands of such groups, each serving to foster an exchange
of information or opinion on a particular topic running the gamut from,
say, the music of Wagner to Balkan politics to AIDS prevention to the
Chicago
Bulls. About 100,000 new messages are posted every day. In most
newsgroups,
postings are automatically purged at regular intervals. In addition to
posting a message that can be read later, two or more individuals
wishing
to communicate more immediately can enter a chat room to engage in
real-time
dialogue--in other words, by typing messages to one another that appear
almost immediately on the others' computer screens. The District Court
found that at any given time "tens of thousands of users are engaging
in
conversations on a huge range of subjects." 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
text--sometimes
images.
Navigating the Web is relatively straightforward. A user may
either
type the address of a known page or enter one or more keywords into a
commercial
"search engine" in an effort to locate sites on a subject of interest.
A particular Web page may contain the information sought by the
"surfer,"
or, through its links, it may be an avenue to other documents located
anywhere
on the Internet. Users generally explore a given Web page, or move to
another,
by clicking a computer "mouse" on one of the page's icons or links.
Access
to most Web pages is freely available, but some allow access only to
those
who have purchased the right from a commercial provider. The Web is
thus
comparable, from the readers' viewpoint, to both a vast library
including
millions of readily available and indexed publications and a sprawling
mall offering goods and services.
From the publishers' point of view, it constitutes a vast
platform from
which to address and hear from a world-wide audience of millions of
readers,
viewers, researchers, and buyers. Any person or organization with a
computer
connected to the Internet can "publish" information. Publishers include
government agencies, educational institutions, commercial entities,
advocacy
groups, and individuals. 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
Web."
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 Beijing--wherever Internet users live.
Similarly,
the safer sex instructions that Critical Path posts to its Web site,
written
in street language so that the teenage receiver can understand them,
are
available not just in Philadelphia, but also in 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....
II
The Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat.
56, was
an unusually important legislative enactment. As stated on the first of
its 103 pages, its primary purpose was to reduce regulation and
encourage
"the rapid deployment of new telecommunications technologies....."
Title
V--known as the "Communications Decency Act of 1996" (CDA)--contains
provisions
that were either added in executive committee after the hearings were
concluded
or as amendments offered during floor debate on the legislation. An
amendment
offered in the Senate was the source of the two statutory provisions
challenged
in this case. 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: "(a) Whoever--"(1) in
interstate
or foreign communications--. . . .
(B) by means of a telecommunications device knowingly--(i) makes,
creates,
or solicits, and (ii) initiates the transmission of, any comment,
request,
suggestion, proposal, image, or other communication which is obscene or
indecent, knowing that the recipient of the communication is under 18
years
of age, regardless of whether the maker of such communication placed
the
call or initiated the communication;. . . . .(2) knowingly permits any
telecommunications facility under his control to be used for any
activity
prohibited by paragraph (1) with the intent that it be used for such
activity,
shall be fined under Title 18, or imprisoned not more than two years,
or
both."
The second provision, § 223(d), prohibits the knowing
sending or
displaying of patently offensive messages in a manner that is available
to a person under 18 years of age.
The breadth of these prohibitions is qualified by two
affirmative defenses.
One covers those who take "good faith, reasonable, effective, and
appropriate
actions" to restrict access by minors to the prohibited
communications.
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.
III
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)....
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.
IV
In arguing for reversal, the Government contends that the CDA
is plainly
constitutional under three of our prior decisions: (1) Ginsberg
v. New York (1968); (2) FCC v. Pacifica Foundation
(1978); and (3) Renton v. Playtime Theatres, Inc.
(1986).
A close look at these cases, however, raises--rather than
relieves--doubts
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." 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' consent--nor even their participation--in the communication
would
avoid the application of the statute. n32 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 [***38]
value. Fourth, the New York statute defined a minor as a person under
the
age [*866]
of 17, whereas the CDA, in applying to all those under 18 years,
includes
an additional year of those nearest majority.
In Pacifica, we upheld a declaratory order of the
Federal Communications
Commission, holding that the broadcast of a recording of a 12-minute
monologue
entitled "Filthy Words" that had previously been delivered to a live
audience
"could have been the subject of administrative sanctions." 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." 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.
Accordingly,
the availability of constitutional protection for a vulgar and
offensive
monologue that was not obscene depended on the context of the
broadcast.
Relying on the premise that "of all forms of communication"
broadcasting
had received the most limited First Amendment protection, 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.
As with the New York statute at issue in Ginsberg,
there are
significant differences between the order upheld in Pacifica
and
the CDA. First, the order in Pacifica, issued by an agency that
had been regulating radio stations for decades, targeted a specific
broadcast
that represented a rather dramatic departure from traditional program
content
in order to designate when--rather than whether--it would be
permissible
to air such a program in that particular medium. The CDA's broad
categorical
prohibitions are not limited to particular times and are not dependent
on any evaluation by an agency familiar with the unique characteristics
of the Internet. Second, unlike the CDA, the Commission's declaratory
order
was not punitive; we expressly refused to decide whether the indecent
broadcast
"would justify a criminal prosecution." Finally, the Commission's
order applied to a medium which as a matter of history had "received
the
most limited First Amendment protection," 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 values--that these
theaters
fostered: "'It is the secondary effect which these zoning ordinances
attempt
to avoid, not the dissemination of "offensive" speech.'"
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....."
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.
V
In Southeastern Promotions, Ltd. v. Conrad
(1975), we
observed that "each 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 (1969); FCC v. Pacifica
Foundation (1978). In these cases, the Court relied on the history
of extensive government regulation of the broadcast medium, the
scarcity
of available frequencies at its inception, and its "invasive" nature.
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 "communications over the Internet do not 'invade' an individual's
home or appear on one's computer screen unbidden. Users seldom
encounter
content 'by accident.'" It also found that "almost 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."
We distinguished Pacifica in Sable 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 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, but distinguished our "emphatically
narrow holding" in Pacifica because it involved a different
medium
of communication. We explained that "the dial-it medium requires
the listener to take affirmative steps to receive the
communication."
"Placing a telephone call," we continued, "is not the same as turning
on
a radio and being taken by surprise by an indecent message."
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
"as 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." 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.
VI
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....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. Second, the CDA is a criminal
statute....
The CDA's burden on protected speech cannot be justified if it
could
be avoided by a more carefully drafted statute.
VII
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 "sexual expression which is indecent but not obscene is
protected
by the First Amendment."
It is true that we have repeatedly recognized the governmental
interest
in protecting children from harmful materials. But that interest
does not justify an unnecessarily broad suppression of speech addressed
to adults. As we have explained, the Government may not "reduce the
adult
population . . . to . . . only what is fit for children."
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. It may also extend to discussions about prison rape or
safe sexual practices, artistic images that include nude subjects, and
arguably the card catalogue of the Carnegie Library....
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....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.....
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 we
remarked
that the speech restriction at issue there amounted to "'burning the
house
to roast the pig.'" The CDA, casting a far darker shadow over free
speech,
threatens to torch a large segment of the Internet community....
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....
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.
Exploring
Constitutional Conflicts