Ashcroft v. American Civil Liberties Union (I)
535 U.S. 564 (2002)
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Rule of Law:
A federal statute regulating speech on the Internet that uses 'contemporary community standards' to define material that is 'harmful to minors' is not, for that reason alone, facially overbroad under the First Amendment.
Facts:
- In response to the Supreme Court's decision in Reno v. ACLU striking down the Communications Decency Act (CDA), Congress enacted the Child Online Protection Act (COPA).
- COPA imposed criminal and civil penalties on anyone who knowingly, for commercial purposes, posted material on the World Wide Web that was 'harmful to minors.'
- The statute defined 'harmful to minors' using a three-part test adapted from the Miller obscenity test, which required an evaluation of whether the material appealed to the prurient interest of minors based on 'contemporary community standards.'
- A group of web content providers, including the American Civil Liberties Union (ACLU), who posted sexually oriented but constitutionally protected material for adults, feared prosecution under COPA.
- These content providers derived some commercial benefit from their websites through advertising or sales.
- The content providers argued that because their websites were accessible nationwide, they could be subject to prosecution based on the standards of the most conservative community in the United States.
- At the time, it was stipulated as fact that web publishers generally could not prevent their content from being accessed in specific geographic communities.
Procedural Posture:
- The American Civil Liberties Union and other organizations filed a facial challenge to the Child Online Protection Act (COPA) in the U.S. District Court for the Eastern District of Pennsylvania before the Act could take effect.
- The District Court granted the plaintiffs' motion for a preliminary injunction, concluding they were likely to prove that COPA would not survive strict scrutiny because it was not the least restrictive means of achieving the government's purpose.
- The Attorney General of the United States, as the defendant, appealed this decision to the U.S. Court of Appeals for the Third Circuit.
- The Third Circuit affirmed the preliminary injunction, but on a different legal ground, holding that COPA's reliance on 'contemporary community standards' was inherently unconstitutional as applied to the Internet.
- The U.S. Supreme Court granted certiorari to review the Third Circuit's specific holding regarding the community standards provision.
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Issue:
Does the Child Online Protection Act's (COPA) reliance on 'contemporary community standards' to identify material that is 'harmful to minors' render the statute facially overbroad in violation of the First Amendment?
Opinions:
Majority - Justice Thomas
No. The Child Online Protection Act’s reliance on community standards to identify material that is harmful to minors does not by itself render the statute substantially overbroad. The Court has previously upheld the use of community standards in federal obscenity statutes of national scope, such as those regulating mail (Hamling) and commercial telephone services (Sable). While web publishers cannot easily geolocate their audience, this does not distinguish the case, as the burden of complying with local standards falls on the speaker. Furthermore, COPA is narrower than the CDA because it includes the other two prongs of the Miller test: an appeal to the prurient interest and, crucially, a lack of serious literary, artistic, political, or scientific value for minors. The 'serious value' prong is judged by an objective, national standard, which provides a constitutional safeguard that limits the effect of any variance in local community standards on the other prongs. Therefore, respondents have failed to show that the community standards provision alone creates a substantial overbreadth problem.
Concurring - Justice O'Connor
No. While I agree with the judgment that respondents failed to show substantial overbreadth based solely on the variation in community standards, I believe that regulating Internet obscenity requires a national standard. Given the Internet's nature and a speaker's inability to control the geographic location of their audience, applying local standards risks suppressing an inordinate amount of protected speech. Our precedents do not forbid a national standard, and it is a reasonable and constitutionally permissible approach for Internet regulation.
Concurring - Justice Kennedy
No, this issue cannot be decided in a vacuum. The Court of Appeals erred by invalidating COPA based solely on its use of community standards without first analyzing the statute's other provisions to determine its overall breadth. The problem of subjecting a national audience to the most restrictive community's standards is a serious constitutional concern, especially on the Internet where geographic filtering is infeasible. However, the extent of this overbreadth can only be assessed in relation to the statute's legitimate scope, which requires interpreting key terms like 'commercial purposes' and what it means to evaluate material 'as a whole.' The case must be remanded for a more comprehensive analysis of the entire Act.
Concurring - Justice Breyer
No. I would avoid the constitutional question by interpreting the statute's reference to 'community' to mean the nation's adult community as a whole, not geographically separate local communities. Legislative history supports this interpretation of a national, 'adult' standard. This construction would alleviate the First Amendment problem of allowing the most puritanical community to exercise a 'heckler's veto' over Internet content for the entire country.
Dissenting - Justice Stevens
Yes. In the context of the Internet, where a speaker cannot control the geographic location of the audience, the use of 'community standards' becomes a sword rather than a shield. It has the intolerable consequence of allowing the standards of the most restrictive community to regulate speech for the entire nation, effectively suppressing a substantial amount of speech that is protected in most communities. The key distinction from prior cases like Hamling and Sable is the technological inability to target or block specific geographic areas. The statute's other narrowing provisions do not cure this fundamental defect, and the Court of Appeals' judgment should be affirmed.
Analysis:
This fractured decision highlights the Supreme Court's difficulty in applying traditional First Amendment doctrines, developed for tangible media, to the borderless realm of the Internet. By issuing a narrow ruling that COPA was not unconstitutional solely because of its community standards provision, the Court avoided striking down a major act of Congress while leaving the statute's ultimate constitutionality in doubt. The various opinions demonstrate a deep divide on whether to adapt old precedents like Hamling to the new technology or to create new rules, such as a national standard, for online speech. The case remanded the more difficult questions about COPA's overall breadth for further review, signaling a cautious, incremental approach to developing First Amendment jurisprudence for the digital age.
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