Ashcroft v. American Civil Liberties Union — 542 U.S. 656

656

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ASHCROFT, ATTORNEY GENERAL v. AMERICAN

CIVIL LIBERTIES UNION ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

No. 03-218. Argued March 2, 2004-Decided June 29, 2004 No. 03-218. Argued March 2, 2004—Decided June 29, 2004

To protect minors from exposure to sexually explicit materials on the In- To protect minors from exposure to sexually explicit materials on the In- ternet, Congress enacted the Child Online Protection Act (COPA), 47 ternet, Congress enacted the Child Online Protection Act (COPA), 47

U. S. C. § 231, which, among other things, imposes a $50,000 fine and six

months in prison for the knowing posting, for "commercial purposes," months in prison for the knowing posting, for "commercial purposes," §231(a)(1), of World Wide Web content that is "harmful to minors," but §231(a)(1), of World Wide Web content that is "harmful to minors," but provides an affirmative defense to commercial Web speakers who re- provides an affirmative defense to commercial Web speakers who re- strict access to prohibited materials by "requiring use of a credit card" strict access to prohibited materials by "requiring use of a credit card" or "any other reasonable measures that are feasible under available or "any other reasonable measures that are feasible under available technology," §231(c)(1). COPA was enacted in response to Reno v. technology," §231(c)(1). COPA was enacted in response to Reno v.

American Civil Liberties Union, 521 U. S. 844, in which this Court held American Civil Liberties Union, 521 U. S. 844, in which this Court held that the Communications Decency Act of 1996, Congress' first attempt that the Communications Decency Act of 1996, Congress' first attempt to make the Internet safe for minors by criminalizing certain Internet to make the Internet safe for minors by criminalizing certain Internet speech, was unconstitutional because it was not narrowly tailored to speech, was unconstitutional because it was not narrowly tailored to serve a compelling governmental interest and because less restrictive serve a compelling governmental interest and because less restrictive alternatives were available. Respondents, Web speakers and others alternatives were available. Respondents, Web speakers and others concerned with protecting the freedom of speech, filed suit for a prelimi- concerned with protecting the freedom of speech, filed suit for a prelimi- nary injunction against COPA's enforcement. After considering testi- nary injunction against COPA's enforcement. After considering testi- mony presented by both respondents and the Government, the District mony presented by both respondents and the Government, the District Court granted the preliminary injunction, concluding that respondents Court granted the preliminary injunction, concluding that respondents were likely to prevail on their argument that there were less restrictive were likely to prevail on their argument that there were less restrictive alternatives to COPA, particularly blocking or filtering technology.

alternatives to COPA, particularly blocking or filtering technology.

The Third Circuit affirmed on different grounds, but this Court re- The Third Circuit affirmed on different grounds, but this Court re- versed, Ashcroft v. American Civil Liberties Union, 535 U. S. 564. On versed, Ashcroft v. American Civil Liberties Union, 535 U. S. 564. On remand, the Third Circuit again affirmed, concluding, inter alia, that remand, the Third Circuit again affirmed, concluding, inter alia, that COPA was not the least restrictive means available for the Government COPA was not the least restrictive means available for the Government to serve the interest of preventing minors from using the Internet to to serve the interest of preventing minors from using the Internet to gain access to harmful materials. gain access to harmful materials.

Held: The Third Circuit was correct to affirm the District Court's ruling Held: The Third Circuit was correct to affirm the District Court's ruling that enforcement of COPA should be enjoined because the statute likely that enforcement of COPA should be enjoined because the statute likely violates the First Amendment. Pp. 664-673. violates the First Amendment. Pp. 664-673.

(a) The District Court did not abuse its discretion when it enterdd (a) The District Court did not abuse its discretion when it enteréd the preliminary injunction. The abuse-of-discretion standard applies the preliminary injunction. The abuse-of-discretion standard applies on review of such an injunction. Because 28 U. S. C. § 1254(1)'s grant on review of such an injunction. Because 28 U. S. C. § 1254(l)'s grant of appellate jurisdiction does not give this Court license to depart from of appellate jurisdiction does not give this Court license to depart from

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an established review standard, Walters v. National Assn. of Radiation an established review standard, Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 336, the injunction must be upheld and the case Survivors, 473 U. S. 305, 336, the injunction must be upheld and the case remanded for trial on the merits if the underlying constitutional ques- remanded for trial on the merits if the underlying constitutional ques- tion is close. There is therefore no need to consider the broader con- tion is close. There is therefore no need to consider the broader con- structions of the statute adopted by the Court of Appeals. The District structions of the statute adopted by the Court of Appeals. The District Court concentrated primarily on the argument that there are plausible, Court concentrated primarily on the argument that there are plausible, less restrictive alternatives to COPA. See Reno, 521 U. S., at 874.

less restrictive alternatives to COPA. See Reno, 521 U. S., at 874.

When plaintiffs challenge a content-based speech restriction, the Gov- When plaintiffs challenge a content-based speech restriction, the Gov- ernment has the burden to prove that the proposed alternatives will not ernment has the burden to prove that the proposed alternatives will not be as effective as the challenged statute.

Ibid. The purpose of the be as effective as the challenged statute. Ibid. The purpose of the test is to ensure that speech is restricted no further than is necessary test is to ensure that speech is restricted no further than is necessary to accomplish Congress' goal.

The District Court's conclusion that re- to accomplish Congress' goal. The District Court's conclusion that re- spondents were likely to prevail was not an abuse of discretion, because, spondents were likely to prevail was not an abuse of discretion, because, on the record, the Government has not met its burden. Most impor- on the record, the Government has not met its burden. Most impor- tantly, respondents propose that blocking and filtering software is a less tantly, respondents propose that blocking and filtering software is a less restrictive alternative, and the Government had not shown it would be restrictive alternative, and the Government had not shown it would be likely to disprove that contention at trial.

Filters impose selective re- likely to disprove that contention at trial. Filters impose selective re- strictions on speech at the receiving end, not universal restrictions at strictions on speech at the receiving end, not universal restrictions at the source. Under a filtering regime, childless adults may gain access the source. Under a filtering regime, childless adults may gain access to speech they have a right to see without having to identify themselves to speech they have a right to see without having to identify themselves or provide their credit card information.

Even adults with children or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Promoting filter use turning off the filter on their home computers. Promoting filter use does not condemn as criminal any category of speech, and so the poten- does not condemn as criminal any category of speech, and so the poten- tial chilling effect is eliminated, or at least much diminished.

Filters, tial chilling effect is eliminated, or at least much diminished. Filters, moreover, may well be more effective than COPA. First, the record moreover, may well be more effective than COPA. First, the record demonstrates that a filter can prevent minors from seeing all pornogra- demonstrates that a filter can prevent minors from seeing all pornogra- phy, not just pornography posted to the Web from America.

That phy, not just pornography posted to the Web from America. That COPA does not prevent minors from accessing foreign harmful materi- COPA does not prevent minors from accessing foreign harmful materi- als alone makes it possible that filtering software might be more effec- als alone makes it possible that filtering software might be more effec- tive in serving Congress' goals. COPA's effectiveness is likely to dimin- tive in serving Congress' goals. COPA's effectiveness is likely to dimin- ish even further if it is upheld, because providers of the materials ish even further if it is upheld, because providers of the materials covered by the statute simply can move their operations overseas.

In covered by the statute simply can move their operations overseas. In addition, the District Court found that verification systems may be sub- addition, the District Court found that verification systems may be sub- ject to evasion and circumvention, e. g., by minors who have their own ject to evasion and circumvention, e. g., by minors who have their own credit cards. Finally, filters also may be more effective because they credit cards. Finally, filters also may be more effective because they can be applied to all forms of Internet communication, including e-mail, can be applied to all forms of Internet communication, including e-mail, not just the World Wide Web. Filtering's superiority to COPA is con- not just the World Wide Web. Filtering's superiority to COPA is con- firmed by the explicit findings of the Commission on Child Online Pro- firmed by the explicit findings of the Commission on Child Online Pro- tection, which Congress created to evaluate the relative merits of differ- tection, which Congress created to evaluate the relative merits of differ- ent means of restricting minors' ability to gain access to harmful ent means of restricting minors' ability to gain access to harmful materials on the Internet. 47 U. S. C. §231, note. Although filtering materials on the Internet. 47 U. S. C. §231, note. Although filtering software is not a perfect solution because it may block some materials software is not a perfect solution because it may block some materials

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not harmful to minors and fail to catch some that are, the Government not harmful to minors and fail to catch some that are, the Government has not satisfied its burden to introduce specific evidence proving that has not satisfied its burden to introduce specific evidence proving that filters are less effective. The argument that filtering software is not filters are less effective. The argument that filtering software is not an available alternative because Congress may not require its use car- an available alternative because Congress may not require its use car- ries little weight, since Congress may act to encourage such use by ries little weight, since Congress may act to encourage such use by giving strong incentives to schools and libraries, United States v. Amer- giving strong incentives to schools and libraries, United States v. Amer- ican Library Assn., Inc., 539 U. S. 194, and by promoting the develop- ican Library Assn., Inc., 539 U. S. 194, and by promoting the develop- ment of filters by industry and their use by parents. The closest prece- ment of filters by industry and their use by parents. The closest prece- dent is United States v. Playboy Entertainment Group, Inc., 529 U. S.

dent is United States v. Playboy Entertainment Group, Inc., 529 U. S.

803, which, like this case, involved a content-based restriction designed 803, which, like this case, involved a content-based restriction designed to protect minors from viewing harmful materials. The Court there to protect minors from viewing harmful materials. The Court there concluded that, absent a showing that a less restrictive technological concluded that, absent a showing that a less restrictive technological alternative already available to parents would not be as effective as alternative already available to parents would not be as effective as a blanket speech restriction, the more restrictive option preferred by a blanket speech restriction, the more restrictive option preferred by Congress could not survive strict scrutiny. Id., at 826. The reasoning Congress could not survive strict scrutiny. Id., at 826. The reasoning of Playboy Entertainment Group, and the holdings and force of this of Playboy Entertainment Group, and the holdings and force of this Court's precedents, compel the Court to affirm the preliminary injunc- Court's precedents, compel the Court to affirm the preliminary injunc- tion here. To do otherwise would be to do less than the First Amend- tion here. To do otherwise would be to do less than the First Amend- ment commands.

Id., at 830. Pp. 664-670. ment commands. Id., at 830. Pp. 664-670.

(b) Important practical reasons also support letting the injunction (b) Important practical reasons also support letting the injunction stand pending a full trial on the merits. First, the potential harms from stand pending a full trial on the merits. First, the potential harms from reversal outweigh those of leaving the injunction in place by mistake. reversal outweigh those of leaving the injunction in place by mistake.

Extraordinary harm and a serious chill upon protected speech may re- Extraordinary harm and a serious chill upon protected speech may re- sult where, as here, a prosecution is a likely possibility but only an af- sult where, as here, a prosecution is a likely possibility but only an af- firmative defense is available, so that speakers may self-censor rather firmative defense is available, so that speakers may self-censor rather than risk the perils of trial. Cf. Playboy Entertainment Group, supra, than risk the perils of trial. Cf. Playboy Entertainment Group, supra, at 817. The harm done from letting the injunction stand pending a trial at 817. The harm done from letting the injunction stand pending a trial on the merits, in contrast, will not be extensive. Second, there are on the merits, in contrast, will not be extensive. Second, there are substantial factual disputes remaining in the case, including a serious substantial factual disputes remaining in the case, including a serious gap in the evidence as to the filtering software's effectiveness. By gap in the evidence as to the filtering software's effectiveness. By allowing the preliminary injunction to stand and remanding for trial, allowing the preliminary injunction to stand and remanding for trial, the Court requires the Government to shoulder its full constitutional the Court requires the Government to shoulder its full constitutional burden of proof respecting the less restrictive alternative argument, burden of proof respecting the less restrictive alternative argument, rather than excuse it from doing so. Third, the factual record does not rather than excuse it from doing so. Third, the factual record does not reflect current technological reality-a serious flaw in any case involv- reflect current technological reality—a serious flaw in any case involv- ing the Internet, which evolves at a rapid pace.

It is reasonable to ing the Internet, which evolves at a rapid pace. It is reasonable to assume that technological developments important to the First Amend- assume that technological developments important to the First Amend- ment analysis have occurred in the five years since the District Court ment analysis have occurred in the five years since the District Court made its factfindings. By affirming the preliminary injunction and re- made its factfindings. By affirming the preliminary injunction and re- manding for trial, the Court allows the parties to update and supplement manding for trial, the Court allows the parties to update and supplement the factual record to reflect current technology. Remand will also per- the factual record to reflect current technology. Remand will also per-

mit the District Court to take account of a changed legal landscape:

Since that court made its factfindings, Congress has passed at least two Since that court made its factfindings, Congress has passed at least two

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further statutes that might qualify as less restrictive alternatives to further statutes that might qualify as less restrictive alternatives to COPA-a prohibition on misleading domain names, and a statute creat- COPA—a prohibition on misleading domain names, and a statute creat- ing a minors-safe "dot-Kids" domain. Pp. 670-673. ing a minors-safe "dot-Kids" domain. Pp. 670-673.

322 F. 3d 240, affirmed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which STEVENS, KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, THOMAS, and GINSBURG, JJ., joined. STEVENS, J., filed a concur- SOUTER, THOMAS, and GINSBURG, JJ., joined. STEVENS, J, filed a concur- ring opinion, in which GINSBURG, J., joined, post, p. 673. SCALIA, J., filed ring opinion, in which GINSBURG, J., joined, post, p. 673. SCALIA, J., filed a dissenting opinion, post, p. 676. BREYER, J., filed a dissenting opinion, a dissenting opinion, post, p. 676. BREYER, J, filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR, J., joined, post, p. 676. in which REHNQUIST, C. J., and O'CONNOR, J, joined, post, p. 676.

Solicitor General Olson argued the cause for petitioner.

With him on the briefs were Assistant Attorney General With him on the briefs were Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, Irving L. Gorn- Keisler, Deputy Solicitor General Kneedler, Irving L. Gorn- stein, Barbara L. Herwig, Charles W Scarborough, and Au- stein, Barbara L. Herwig, Charles W. Scarborough, and Au- gust E. Flentje. gust E. Flentje.

Ann E. Beeson argued the cause for respondents. With Ann E. Beeson argued the cause for respondents. With her on the brief were Christopher A. Hansen, Steven R. Sha- her on the brief were Christopher A. Hansen, Steven R. Sha- piro, Stefan Presser, Christopher R. Harris, and David L. piro, Stefan Presser, Christopher R. Harris, and David L.

Sobel.* Sobel.* JUSTICE KENNEDY delivered the opinion of the Court.

JUSTICE KENNEDY delivered the opinion of the Court.

This case presents a challenge to a statute enacted by Con- This case presents a challenge to a statute enacted by Con- gress to protect minors from exposure to sexually explicit gress to protect minors from exposure to sexually explicit materials on the internet, the Child Online Protection Act materials on the Internet, the Child Online Protection Act

*Briefs of amici curiae urging reversal were filed for DuPage County, *Briefs of amici curiae urging reversal were filed for DuPage County, Illinois, by Richard Hodyl, Jr., and Joseph E. Birkett; for the American Illinois, by Richard Hodyl, Jr., and Joseph E. Birkett; for the American Center for Law and Justice et al. by Jay Alan Sekulow, Stuart J Roth, Center for Law and Justice et al. by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, Joel H. Thornton, John P Tuskey, and Shannon D. Wood- Colby M. May, Joel H. Thornton, John P. Tuskey, and Shannon D. Wood- ruff; for Focus on the Family et al. by William Wagner, Steve Reed, and ruff, for Focus on the Family et al. by William Wagner, Steve Reed, and Pat Trueman; for Morality in Media, Inc., by Paul J. McGeady; for Wall- Pat Trueman; for Morality in Media, Inc., by Paul J. McGeady; for Wall- Builders, Inc., by Barry C. Hodge; and for Senator John S. McCain et al.

Builders, Inc., by Barry C. Hodge; and for Senator John S. McCain et al. by Carol A. Clancy and Bruce A. Taylor. by Carol A. Clancy and Bruce A. Taylor.

Briefs of amici curiae urging affirmance were filed for the American Briefs of amici curiae urging affirmance were filed for the American Society of Journalists and Authors et al. by Carl A. Solano, Theresa E.

Society of Journalists and Authors et al. by Carl A. Solano, Theresa E.

Loscalzo, Jennifer DuFault James, and Stephen J Shapiro; for the Associ- Loscalzo, Jennifer DuFault James, and Stephen J. Shapiro; for the Associ- ation of American Publishers, Inc., et al. by R. Bruce Rich, Jonathan ation of American Publishers, Inc., et al. by R. Bruce Rich, Jonathan Bloom, Jerry Berman, John B. Morris, Jr., and Robert Corn-Revere; and Bloom, Jerry Berman, John B. Morris, Jr., and Robert Corn-Revere; and for Volunteer Lawyers for the Arts et al. by Seth M. Galanter, Charles for Volunteer Lawyers for the Arts et al. by Seth M. Galanter, Charles

H. Kennedy, Lois K. Perrin, and Elliot M. Mincberg.

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(COPA), 112 Stat. 2681-736, codified at 47 U. S. C. § 231. We (COPA), 112 Stat. 2681-736, codified at 47 U. S. C. § 231. We must decide whether the Court of Appeals was correct to must decide whether the Court of Appeals was correct to affirm a ruling by the District Court that enforcement of affirm a ruling by the District Court that enforcement of COPA should be enjoined because the statute likely violates COPA should be enjoined because the statute likely violates the First Amendment. the First Amendment.

In enacting COPA, Congress gave consideration to our In enacting COPA, Congress gave consideration to our earlier decisions on this subject, in particular the decision in earlier decisions on this subject, in particular the decision in Reno v. American Civil Liberties Union, 521 U. S. 844 Reno v. American Civil Liberties Union, 521 U. S. 844 (1997). For that reason, "the Judiciary must proceed with (1997). For that reason, "the Judiciary must proceed with caution and.., with care before invalidating the Act." Ash- caution and ... with care before invalidating the Act." Ash- croft v. American Civil Liberties Union, 535 U. S. 564, 592 croft v. American Civil Liberties Union, 535 U. S. 564, 592 (2002) (Ashcroft I) (KENNEDY, J., concurring in judgment).

(2002) (Ashcroft I) (KENNEDY, J., concurring in judgment).

The imperative of according respect to the Congress, how- The imperative of according respect to the Congress, how- ever, does not permit us to depart from well-established ever, does not permit us to depart from well-established First Amendment principles.

Instead, we must hold the First Amendment principles. Instead, we must hold the Government to its constitutional burden of proof.

Government to its constitutional burden of proof.

Content-based prohibitions, enforced by severe criminal Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people. To guard against in the lives and thoughts of a free people. To guard against that threat the Constitution demands that content-based re- that threat the Constitution demands that content-based re- strictions on speech be presumed invalid, R. A. V v. St. Paul, strictions on speech be presumed invalid, R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992), and that the Government bear the 505 U. S. 377, 382 (1992), and that the Government bear the burden of showing their constitutionality, United States v. burden of showing their constitutionality, United States v.

Playboy Entertainment Group, Inc., 529 U. S. 803, 817 Playboy Entertainment Group, Inc., 529 U. S. 803, 817 (2000). This is true even when Congress twice has at- (2000). This is true even when Congress twice has at- tempted to find a constitutional means to restrict, and pun- tempted to find a constitutional means to restrict, and pun- ish, the speech in question. ish, the speech in question.

This case comes to the Court on certiorari review of an This case comes to the Court on certiorari review of an appeal from the decision of the District Court granting a appeal from the decision of the District Court granting a preliminary injunction. The Court of Appeals reviewed the preliminary injunction. The Court of Appeals reviewed the decision of the District Court for abuse of discretion. Under decision of the District Court for abuse of discretion. Under that standard, the Court of Appeals was correct to conclude that standard, the Court of Appeals was correct to conclude that the District Court did not abuse its discretion in grant- that the District Court did not abuse its discretion in grant- ing the preliminary injunction. The Government has failed, ing the preliminary injunction. The Government has failed, at this point, to rebut the plaintiffs' contention that there are at this point, to rebut the plaintiffs' contention that there are plausible, less restrictive alternatives to the statute. Sub- plausible, less restrictive alternatives to the statute. Sub-

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stantial practical considerations, furthermore, argue in favor stantial practical considerations, furthermore, argue in favor of upholding the injunction and allowing the case to proceed of upholding the injunction and allowing the case to proceed to trial. For those reasons, we affirm the decision of the to trial. For those reasons, we affirm the decision of the Court of Appeals upholding the preliminary injunction, and Court of Appeals upholding the preliminary injunction, and we remand the case so that it may be returned to the District we remand the case so that it may be returned to the District Court for trial on the issues presented.

Court for trial on the issues presented.

I

A

COPA is the second attempt by Congress to make the In- COPA is the second attempt by Congress to make the In- ternet safe for minors by criminalizing certain Internet ternet safe for minors by criminalizing certain Internet speech. The first attempt was the Communications Decency speech. The first attempt was the Communications Decency Act of 1996, Pub. L. 104-104, § 502, 110 Stat. 133, 47 U. S. C.

Act of 1996, Pub. L. 104-104, § 502, 110 Stat. 133, 47 U. S. C. § 223 (1994 ed., Supp. II). The Court held the CDA uncon- § 223 (1994 ed., Supp. II). The Court held the CDA uncon- stitutional because it was not narrowly tailored to serve a stitutional because it was not narrowly tailored to serve a compelling governmental interest and because less restric- compelling governmental interest and because less restric- tive alternatives were available. Reno, supra. tive alternatives were available. Reno, supra.

In response to the Court's decision in Reno, Congress In response to the Court's decision in Reno, Congress passed COPA. COPA imposes criminal penalties of a passed COPA. COPA imposes criminal penalties of a $50,000 fine and six months in prison for the knowing post- $50,000 fine and six months in prison for the knowing post- ing, for "commercial purposes," of World Wide Web content ing, for "commercial purposes," of World Wide Web content that is "harmful to minors." §231(a)(1). Material that is that is "harmful to minors." §231(a)(1). Material that is "harmful to minors" is defined as: "harmful to minors" is defined as:

"any communication, picture, image, graphic image file, "any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind article, recording, writing, or other matter of any kind that is obscene or that- that is obscene or that— "(A) the average person, applying contemporary com- "(A) the average person, applying contemporary com- munity standards, would find, taking the material as a munity standards, would find, taking the material as a whole and with respect to minors, is designed to appeal whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest; to, or is designed to pander to, the prurient interest; "(B) depicts, describes, or represents, in a manner pat- "(B) depicts, describes, or represents, in a manner pat- ently offensive with respect to minors, an actual or ently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd simulated normal or perverted sexual act, or a lewd

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exhibition of the genitals or post-pubescent female exhibition of the genitals or post-pubescent female breast; and breast; and "(C) taken as a whole, lacks serious literary, artistic, po- "(C) taken as a whole, lacks serious literary, artistic, po- litical, or scientific value for minors." § 231(e)(6). litical, or scientific value for minors." §231(e)(6).

"Minor[s]" are defined as "any person under 17 years of "Minor[s]" are defined as "any person under 17 years of §231(e)(7). A person acts for "commercial purposes age." age." §231(e)(7). A person acts for "commercial purposes only if such person is engaged in the business of making such only if such person is engaged in the business of making such communications."

"Engaged in the business," in turn, communications." "Engaged in the business," in turn,

"means that the person who makes a communication, or "means that the person who makes a communication, or offers to make a communication, by means of the World offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activi- minors, devotes time, attention, or labor to such activi- ties, as a regular course of such person's trade or busi- ties, as a regular course of such person's trade or busi- ness, with the objective of earning a profit as a result of ness, with the objective of earning a profit as a result of such activities (although it is not necessary that the per- such activities (although it is not necessary that the per- son make a profit or that the making or offering to make son make a profit or that the making or offering to make such communications be the person's sole or principal such communications be the person's sole or principal §231(e)(2).

business or source of income)." business or source of income)." §231(e)(2).

While the statute labels all speech that falls within these While the statute labels all speech that falls within these definitions as criminal speech, it also provides an affirmative definitions as criminal speech, it also provides an affirmative defense to those who employ specified means to prevent mi- defense to those who employ specified means to prevent mi- nors from gaining access to the prohibited materials on their nors from gaining access to the prohibited materials on their Web site. A person may escape conviction under the statute Web site. A person may escape conviction under the statute by demonstrating that he by demonstrating that he

"has restricted access by minors to material that is "has restricted access by minors to material that is harmful to minors- harmful to minors— "(A) by requiring use of a credit card, debit account, "(A) by requiring use of a credit card, debit account, adult-access code, or adult personal identification adult-access code, or adult personal identification number; number; "(B) by accepting a digital certificate that verifies age; "(B) by accepting a digital certificate that verifies age; or or '(C) by any other reasonable measures that are feasible "(C) by any other reasonable measures that are feasible under available technology." § 231(c)(1). under available technology." §231(c)(1).

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Since the passage of COPA, Congress has enacted addi- Since the passage of COPA, Congress has enacted addi- tional laws regulating the Internet in an attempt to protect tional laws regulating the Internet in an attempt to protect minors. For example, it has enacted a prohibition on mis- minors. For example, it has enacted a prohibition on mis- leading Internet domain names, 18 U. S. C. § 2252B (2000 ed., leading Internet domain names, 18 U. S. C. § 2252B (2000 ed., Supp. III), in order to prevent Web site owners from disguis- Supp. III), in order to prevent Web site owners from disguis- ing pornographic Web sites in a way likely to cause uninter- ing pornographic Web sites in a way likely to cause uninter- ested persons to visit them. See Brief for Petitioner 7 (giv- ested persons to visit them. See Brief for Petitioner 7 (giv- ing, as an example, the Web site "whitehouse.com").

It has ing, as an example, the Web site "whitehouse.com"). It has also passed a statute creating a "Dot Kids" second-level In- also passed a statute creating a "Dot Kids" second-level In- ternet domain, the content of which is restricted to that ternet domain, the content of which is restricted to that which is fit for minors under the age of 13. 47 U. S. C. § 941 which is fit for minors under the age of 13. 47 U. S. C. § 941 (2000 ed., Supp. II).

(2000 ed., Supp. II).

B

Respondents, Internet content providers and others con- Respondents, Internet content providers and others con- cerned with protecting the freedom of speech, filed suit in cerned with protecting the freedom of speech, filed suit in the United States District Court for the Eastern District the United States District Court for the Eastern District of Pennsylvania. They sought a preliminary injunction of Pennsylvania. They sought a preliminary injunction against enforcement of the statute. After considering testi- against enforcement of the statute. After considering testi- mony from witnesses presented by both respondents and the mony from witnesses presented by both respondents and the Government, the District Court issued an order granting the Government, the District Court issued an order granting the preliminary injunction. The court first noted that the stat- preliminary injunction. The court first noted that the stat- ute would place a burden on some protected speech. Amer- ute would place a burden on some protected speech. Amer- ican Civil Liberties Union v. Reno, 31 F. Supp. 2d 473, 495 ican Civil Liberties Union v. Reno, 31 F. Supp. 2d 473, 495 (1999). The court then concluded that respondents were (1999). The court then concluded that respondents were likely to prevail on their arigument that there were less re- likely to prevail on their argument that there were less re- strictive alternatives to the statute: "On the record to date, strictive alternatives to the statute: "On the record to date, it is not apparent.., that [petitioner] can meet its burden to it is not apparent ... that [petitioner) can meet its burden to prove that COPA is the least restrictive means available to prove that COPA is the least restrictive means available to achieve the goal of restricting the access of minors" to harm- achieve the goal of restricting the access of minors" to harm- ful material.

In particular, it noted that "[t]he ful material. Id., at 497. In particular, it noted that "[t]he record before the Court reveals that blocking or filtering record before the Court reveals that blocking or filtering technology may be at least as successful as COPA would be technology may be at least as successful as COPA would be in restricting minors' access to harmful material online with- in restricting minors' access to harmful material online with- out imposing the burden on constitutionally protected speech out imposing the burden on constitutionally protected speech that COPA imposes on adult users or Web site operators." that COPA imposes on adult users or Web site operators."

Ibid.

Id., at 497.

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The Government appealed the District Court's decision to The Government appealed the District Court's decision to the United States Court of Appeals for the Third Circuit. the United States Court of Appeals for the Third Circuit.

The Court of Appeals affirmed the preliminary injunction, The Court of Appeals affirmed the preliminary injunction, but on a different ground. American Civil Liberties Union but on a different ground. American Civil Liberties Union

v. Reno, 217 F. 3d 162, 166 (2000). The court concluded that

the "community standards" language in COPA by itself the "community standards" language in COPA by itself rendered the statute unconstitutionally overbroad.

Ibid. rendered the statute unconstitutionally overbroad. Ibid.

We granted certiorari and reversed, holding that the We granted certiorari and reversed, holding that the community-standards language did not, standing alone, make community-standards language did not, standing alone, make the statute unconstitutionally overbroad. Ashcroft I, 535 the statute unconstitutionally overbroad. Ashcroft I, 535

U. S., at 585. We emphasized, however, that our decision

was limited to that narrow issue. Ibid. We remanded the was limited to that narrow issue. Ibid. We remanded the case to the Court of Appeals to reconsider whether the Dis- case to the Court of Appeals to reconsider whether the Dis- trict Court had been correct to grant the preliminary injunc- trict Court had been correct to grant the preliminary injunc- tion. On remand, the Court of Appeals again affirmed the tion. On remand, the Court of Appeals again affirmed the District Court. 322 F. 3d 240 (2003). The Court of Appeals District Court. 322 F. 3d 240 (2003). The Court of Appeals concluded that the statute was not narrowly tailored to serve concluded that the statute was not narrowly tailored to serve a compelling Government interest, was overbroad, and was a compelling Government interest, was overbroad, and was not the least restrictive means available for the Government not the least restrictive means available for the Government to serve the interest of preventing minors from using the to serve the interest of preventing minors from using the Internet to gain access to materials that are harmful to Internet to gain access to materials that are harmful to them.

Id., at 266-271. The Government once again sought them. Id., at 266-271. The Government once again sought review from this Court, and we again granted certiorari. review from this Court, and we again granted certiorari.

540 U. S. 944 (2003).

II

A

"This Court, like other appellate courts, has always ap- "This Court, like other appellate courts, has always ap- plied the abuse of discretion standard on review of a prelimi- plied the abuse of discretion standard on review of a prelimi- nary injunction." Walters v. National Assn. of Radiation nary injunction." Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 336 (1985) (O'CONNOR, J., concur- Survivors, 473 U. S. 305, 336 (1985) (0'CONNOR, J., concur- ring) (internal quotation marks omitted). "The grant of ap- ring) (internal quotation marks omitted). "The grant of ap- pellate jurisdiction under [28 U. S. C.] § 1252 does not give pellate jurisdiction under [28 U. S. C.] § 1252 does not give the Court license to depart from established standards of the Court license to depart from established standards of appellate review."

Ibid. If the underlying constitutional appellate review." Ibid. If the underlying constitutional question is close, therefore, we should uphold the injunction question is close, therefore, we should uphold the injunction

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and remand for trial on the merits. Applying this mode of and remand for trial on the merits. Applying this mode of inquiry, we agree with the Court of Appeals that the District inquiry, we agree with the Court of Appeals that the District Court did not abuse its discretion in entering the preliminary Court did not abuse its discretion in entering the preliminary injunction. Our reasoning in support of this conclusion, injunction. Our reasoning in support of this conclusion, however, is based on narrower, more specific grounds than however, is based on narrower, more specific grounds than the rationale the Court of Appeals adopted. The Court of the rationale the Court of Appeals adopted. The Court of Appeals, in its opinion affirming the decision of the District Appeals, in its opinion affirming the decision of the District Court, construed a number of terms in the statute, and held Court, construed a number of terms in the statute, and held that COPA, so construed, was unconstitutional. None of that COPA, so construed, was unconstitutional. None of those constructions of statutory terminology, however, were those constructions of statutory terminology, however, were relied on by or necessary to the conclusions of the District relied on by or necessary to the conclusions of the District Court.

Instead, the District Court concluded only that the Court. Instead, the District Court concluded only that the statute was likely to burden some speech that is protected statute was likely to burden some speech that is protected for adults, 31 F. Supp. 2d, at 495, which petitioner does not for adults, 31 F. Supp. 2d, at 495, which petitioner does not dispute. As to the definitional disputes, the District Court dispute. As to the definitional disputes, the District Court concluded only that respondents' interpretation was "not un- concluded only that respondents' interpretation was "not un- reasonable," and relied on their interpretation only to con- reasonable," and relied on their interpretation only to con- clude that respondents had standing to challenge the statute, clude that respondents had standing to challenge the statute, id., at 481, which, again, petitioner does not dispute. Be- id., at 481, which, again, petitioner does not dispute. Be- cause we affirm the District Court's decision to grant the cause we affirm the District Court's decision to grant the preliminary injunction for the reasons relied on by the Dis- preliminary injunction for the reasons relied on by the Dis- trict Court, we decline to consider the correctness of the trict Court, we decline to consider the correctness of the other arguments relied on by the Court of Appeals.

other arguments relied on by the Court of Appeals.

The District Court, in deciding to grant the preliminary The District Court, in deciding to grant the preliminary injunction, concentrated primarily on the argument that injunction, concentrated primarily on the argument that there are plausible, less restrictive alternatives to COPA. there are plausible, less restrictive alternatives to COPA. A statute that "effectively suppresses a large amount of A statute that "effectively suppresses a large amount of speech that adults have a constitutional right to receive and speech that adults have a constitutional right to receive and is unacceptable if less restric- to address to one another ... to address to one another ... is unacceptable if less restric- tive alternatives would be at least as effective in achieving tive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to the legitimate purpose that the statute was enacted to serve." Reno, 521 U. S., at 874. When plaintiffs challenge serve." Reno, 521 U. S., at 874. When plaintiffs challenge a content-based speech restriction, the burden is on the Gov- a content-based speech restriction, the burden is on the Gov- ernment to prove that the proposed alternatives will not be ernment to prove that the proposed alternatives will not be as effective as the challenged statute. Ibid.

as effective as the challenged statute. Ibid.

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In considering this question, a court assumes that certain In considering this question, a court assumes that certain protected speech may be regulated, and then asks what is protected speech may be regulated, and then asks what is the least restrictive alternative that can be used to achieve the least restrictive alternative that can be used to achieve that goal. The purpose of the test is not to consider that goal. The purpose of the test is not to consider whether the challenged restriction has some effect in achiev- whether the challenged restriction has some effect in achiev- ing Congress' goal, regardless of the restriction it imposes. ing Congress' goal, regardless of the restriction it imposes.

The purpose of the test is to ensure that speech is restricted The purpose of the test is to ensure that speech is restricted no further than necessary to achieve the goal, for it is impor- no further than necessary to achieve the goal, for it is impor- tant to ensure that legitimate speech is not chilled or pun- tant to ensure that legitimate speech is not chilled or pun- ished. For that reason, the test does not begin with the ished. For that reason, the test does not begin with the status quo of existing regulations, then ask whether the chal- status quo of existing regulations, then ask whether the chal- lenged restriction has some additional ability to achieve Con- lenged restriction has some additional ability to achieve Con- gress' legitimate interest. Any restriction on speech could gress' legitimate interest. Any restriction on speech could be justified under that analysis.

Instead, the court should be justified under that analysis. Instead, the court should ask whether the challenged regulation is the least restrictive ask whether the challenged regulation is the least restrictive means among available, effective alternatives. means among available, effective alternatives.

In deciding whether to grant a preliminary injunction, a In deciding whether to grant a preliminary injunction, a district court must consider whether the plaintiffs have dem- district court must consider whether the plaintiffs have dem- onstrated that they are likely to prevail on the merits. See, onstrated that they are likely to prevail on the merits. See,

e. g., Doran v. Salem Inn, Inc., 422 U. S. 922, 931 (1975).

(The court also considers whether the plaintiff has shown (The court also considers whether the plaintiff has shown irreparable injury, see ibid., but the parties in this case irreparable injury, see ibid., but the parties in this case do not contest the correctness of the District Court's conclu- do not contest the correctness of the District Court's conclu- sion that a likelihood of irreparable injury had been estab- sion that a likelihood of irreparable injury had been estab- lished. See 31 F. Supp. 2d, at 497-498.) As the Govern- lished. See 31 F. Supp. 2d, at 497-498.) As the Govern- ment bears the burden of proof on the ultimate question of ment bears the burden of proof on the ultimate question of COPA's constitutionality, respondents must be deemed likely COPA's constitutionality, respondents must be deemed likely to prevail unless the Government has shown that respond- to prevail unless the Government has shown that respond- ents' proposed less restrictive alternatives are less effective ents' proposed less restrictive alternatives are less effective than COPA. Applying that analysis, the District Court con- than COPA. Applying that analysis, the District Court con- cluded that respondents were likely to prevail.

Id., at 496- cluded that respondents were likely to prevail. Id., at 496-

497. That conclusion was not an abuse of discretion, because

on this record there are a number of plausible, less restric- on this record there are a number of plausible, less restric- tive alternatives to the statute. tive alternatives to the statute. . The primary alternative considered by the District Court The primary alternative considered by the District Court was blocking and filtering software. Blocking and filtering was blocking and filtering software. Blocking and filtering

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software is an alternative that is less restrictive than COPA, software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restrict- and, in addition, likely more effective as a means of restrict- ing children's access to materials harmful to them. The Dis- ing children's access to materials harmful to them. The Dis- trict Court, in granting the preliminary injunction, did so trict Court, in granting the preliminary injunction, did so primarily because the plaintiffs had proposed that filters are primarily because the plaintiffs had proposed that filters are a less restrictive alternative to COPA and the Government a less restrictive alternative to COPA and the Government had not shown it would be likely to disprove the plaintiffs' had not shown it would be likely to disprove the plaintiffs' contention at trial. Ibid. contention at trial. Ibid.

Filters are less restrictive than COPA. They impose se- Filters are less restrictive than COPA. They impose se- lective restrictions on speech at the receiving end, not uni- lective restrictions on speech at the receiving end, not uni- versal restrictions at the source. Under a filtering regime, versal restrictions at the source. Under a filtering regime, adults without children may gain access to speech they have adults without children may gain access to speech they have a right to see without having to identify themselves or pro- a right to see without having to identify themselves or pro- vide their credit card information. Even adults with chil- vide their credit card information. Even adults with chil- dren may obtain access to the same speech on the same dren may obtain access to the same speech on the same terms simply by turning off the filter on their home comput- terms simply by turning off the filter on their home comput- ers. Above all, promoting the use of filters does not con- ers. Above all, promoting the use of filters does not con- demn as criminal any category of speech, and so the potential demn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished.

chilling effect is eliminated, or at least much diminished.

All of these things are true, moreover, regardless of how All of these things are true, moreover, regardless of how broadly or narrowly the definitions in COPA are construed. broadly or narrowly the definitions in COPA are construed.

Filters also may well be more effective than COPA.

First, a filter can prevent minors from seeing all pornogra- First, a filter can prevent minors from seeing all pornogra- phy, not just pornography posted to the Web from America. phy, not just pornography posted to the Web from America.

The District Court noted in its factfindings that one witness The District Court noted in its factfindings that one witness estimated that 40% of harmful-to-minors content comes from estimated that 40% of harmful-to-minors content comes from overseas.

Id., at 484. COPA does not prevent minors from overseas. Id., at 484. COPA does not prevent minors from having access to those foreign harmful materials. That having access to those foreign harmful materials. That alone makes it possible that filtering software might be more alone makes it possible that filtering software might be more effective in serving Congress' goals. Effectiveness is likely effective in serving Congress' goals. Effectiveness is likely to diminish even further if COPA is upheld, because the pro- to diminish even further if COPA is upheld, because the pro- viders of the materials that would be covered by the statute viders of the materials that would be covered by the statute simply can move their operations overseas.

It is not an an- simply can move their operations overseas. It is not an an- swer to say that COPA reaches some amount of materials swer to say that COPA reaches some amount of materials that are harmful to minors; the question is whether it would that are harmful to minors; the question is whether it would In reach more of them than less restrictive alternatives. reach more of them than less restrictive alternatives. In

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addition, the District Court found that verification systems addition, the District Court found that verification systems may be subject to evasion and circumvention, for example, may be subject to evasion and circumvention, for example, by minors who have their own credit cards. See id., at 484, by minors who have their own credit cards. See id., at 484, 496-497. Finally, filters also may be more effective because 496-497. Finally, filters also may be more effective because they can be applied to all forms of Internet communication, they can be applied to all forms of Internet communication, including e-mail, not just communications available via the including e-mail, not just communications available via the World Wide Web.

World Wide Web.

That filtering software may well be more effective than That filtering software may well be more effective than COPA is confirmed by the findings of the Commission on COPA is confirmed by the findings of the Commission on Child Online Protection, a blue-ribbon Commission created Child Online Protection, a blue-ribbon Commission created by Congress in COPA itself. Congress directed the Com- by Congress in COPA itself. Congress directed the Com- mission to evaluate the relative merits of different means of mission to evaluate the relative merits of different means of restricting minors' ability to gain access to harmful materials restricting minors' ability to gain access to harmful materials on the Internet. Note following 47 U. S. C. § 231.

It unam- on the Internet. Note following 47 U. S. C. § 231. It unam- biguously found that filters are more effective than age- biguously found that filters are more effective than age- verification requirements. See Commission on Child Online verification requirements. See Commission on Child Online Protection (COPA), Report to Congress 19-21, 23-25, 27 Protection (COPA), Report to Congress 19-21, 23-25, 27 (Oct. 20, 2000) (assigning a score for "Effectiveness" of 7.4 (Oct. 20, 2000) (assigning a score for "Effectiveness" of 7.4 for server-based filters and 6.5 for client-based filters, as for server-based filters and 6.5 for client-based filters, as compared to 5.9 for independent adult-ID verification, and compared to 5.9 for independent adult-ID verification, and 5.5 for credit card verification). Thus, not only has the Gov- 5.5 for credit card verification). Thus, not only has the Gov- ernment failed to carry its burden of showing the District ernment failed to carry its burden of showing the District Court that the proposed alternative is less effective, but also Court that the proposed alternative is less effective, but also a Government Commission appointed to consider the ques- a Government Commission appointed to consider the ques- tion has concluded just the opposite. That finding supports tion has concluded just the opposite. That finding supports our conclusion that the District Court did not abuse its dis- our conclusion that the District Court did not abuse its dis- cretion in enjoining the statute.

cretion in enjoining the statute.

Filtering software, of course, is not a perfect solution to Filtering software, of course, is not a perfect solution to the problem of children gaining access to harmful-to-minors the problem of children gaining access to harmful-to-minors It may block some materials that are not harm- materials. materials. It may block some materials that are not harm- ful to minors and fail to catch some that are. See 31 F. Supp. ful to minors and fail to catch some that are. See 31 F. Supp.

2d, at 492. Whatever the deficiencies of filters, however, the 2d, at 492. Whatever the deficiencies of filters, however, the Government failed to introduce specific evidence proving Government failed to introduce specific evidence proving that existing technologies are less effective than the restric- that existing technologies are less effective than the restric- tions in COPA. The District Court made a specific factfind- tions in COPA. The District Court made a specific factfind- ing that "[n]o evidence was presented to the Court as to the ing that "[n]o evidence was presented to the Court as to the

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percentage of time that blocking and filtering technology is percentage of time that blocking and filtering technology is over- or underinclusive."

Ibid. In the absence of a show- over- or underinclusive." Ibid. In the absence of a show- ing as to the relative effectiveness of COPA and the al- ing as to the relative effectiveness of COPA and the al- ternatives proposed by respondents, it was not an abuse of ternatives proposed by respondents, it was not an abuse of discretion for the District Court to grant the preliminary discretion for the District Court to grant the preliminary injunction. The Government's burden is not merely to show injunction. The Government's burden is not merely to show that a proposed less restrictive alternative has some flaws; that a proposed less restrictive alternative has some flaws; its burden is to show that it is less effective. Reno, 521 its burden is to show that it is less effective. Reno, 521

U. S., at 874. It is not enough for the Government to show

that COPA has some effect. Nor do respondents bear a bur- that COPA has some effect. Nor do respondents bear a bur- den to introduce, or offer to introduce, evidence that their den to introduce, or offer to introduce, evidence that their proposed alternatives are more effective. The Government proposed alternatives are more effective. The Government has the burden to show they are less so. The Government has the burden to show they are less so. The Government having failed to carry its burden, it was not an abuse of having failed to carry its burden, it was not an abuse of discretion for the District Court to grant the preliminary discretion for the District Court to grant the preliminary injunction. injunction.

One argument to the contrary is worth mentioning-the One argument to the contrary is worth mentioning—the argument that filtering software is not an available alterna- argument that filtering software is not an available alterna- tive because Congress may not require it to be used. That tive because Congress may not require it to be used. That argument carries little weight, because Congress undoubt- argument carries little weight, because Congress undoubt- edly may act to encourage the use of filters. We have held edly may act to encourage the use of filters. We have held that Congress can give strong incentives to schools and li- that Congress can give strong incentives to schools and li- braries to use them. United States v. American Library braries to use them. United States v. American Library Assn., Inc., 539 U. S. 194 (2003).

It could also take steps Assn., Inc., 539 U. S. 194 (2003). It could also take steps to promote their development by industry, and their use by to promote their development by industry, and their use by It is incorrect, for that reason, to say that filters parents. parents. It is incorrect, for that reason, to say that filters are part of the current regulatory status quo. The need for are part of the current regulatory status quo. The need for parental cooperation does not automatically disqualify a pro- parental cooperation does not automatically disqualify a pro- posed less restrictive alternative. Playboy Entertainment posed less restrictive alternative. Playboy Entertainment Group, 529 U. S., at 824 ("A court should not assume a plau- Group, 529 U. S., at 824 ("A court should not assume a plau- sible, less restrictive alternative would be ineffective; and a sible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, court should not presume parents, given full information, In enacting COPA, Congress said its goal will fail to act').

will fail to act'). In enacting COPA, Congress said its goal was to prevent the "widespread availability of the Internet" was to prevent the "widespread availability of the Internet" from providing "opportunities for minors to access materials from providing "opportunities for minors to access materials through the World Wide Web in a manner that can frustrate through the World Wide Web in a manner that can frustrate

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parental supervision or control." Congressional Findings, parental supervision or control." Congressional Findings, note following 47 U. S. C. § 231 (quoting Pub. L. 105-277, Tit. note following 47 U. S. C. § 231 (quoting Pub. L. 105-277, Tit.

XIV, § 1402(1), 112 Stat. 2681-736). COPA presumes that XIV, § 1402(1), 112 Stat. 2681-736). COPA presumes that parents lack the ability, not the will, to monitor what their parents lack the ability, not the will, to monitor what their children see. By enacting programs to promote use of fil- children see. By enacting programs to promote use of fil- tering software, Congress could give parents that ability tering software, Congress could give parents that ability without subjecting protected speech to severe penalties. without subjecting protected speech to severe penalties.

The closest precedent on the general point is our decision The closest precedent on the general point is our decision in Playboy Entertainment Group. Playboy Entertainment in Playboy Entertainment Group. Playboy Entertainment Group, like this case, involved a content-based restriction Group, like this case, involved a content-based restriction designed to protect minors from viewing harmful materials. designed to protect minors from viewing harmful materials.

The choice was between a blanket speech restriction and a The choice was between a blanket speech restriction and a more specific technological solution that was available to par- more specific technological solution that was available to par- ents who chose to implement it. 529 U. S., at 825. Absent ents who chose to implement it. 529 U. S., at 825. Absent a showing that the proposed less restrictive alternative a showing that the proposed less restrictive alternative would not be as effective, we concluded, the more restrictive would not be as effective, we concluded, the more restrictive option preferred by Congress could not survive strict scru- option preferred by Congress could not survive strict scru- tiny. Id., at 826 (reversing because "[t]he record is silent as tiny. Id., at 826 (reversing because "[t]he record is silent as to the comparative effectiveness of the two alternatives").

to the comparative effectiveness of the two alternatives").

In the instant case, too, the Government has failed to show, In the instant case, too, the Government has failed to show, at this point, that the proposed less restrictive alternative at this point, that the proposed less restrictive alternative will be less effective. The reasoning of Playboy Entertain- will be less effective. The reasoning of Playboy Entertain- ment Group and the holdings and force of our precedents ment Group and the holdings and force of our precedents require us to affirm the preliminary injunction. To do oth- require us to affirm the preliminary injunction. To do oth- erwise would be to do less than the First Amendment com- erwise would be to do less than the First Amendment com- mands. "The 'starch' in our constitutional standards cannot mands. "The `starch' in our constitutional standards cannot be sacrificed to accommodate the enforcement choices of the be sacrificed to accommodate the enforcement choices of the Id., at 830 (THOMAS, J., concurring).

Government."

Government." Id., at 830 (THOMAS, J., concurring).

B

There are also important practical reasons to let the in- There are also important practical reasons to let the in- junction stand pending a full trial on the merits. First, the junction stand pending a full trial on the merits. First, the potential harms from reversing the injunction outweigh potential harms from reversing the injunction outweigh those of leaving it in place by mistake. Where a prosecution those of leaving it in place by mistake. Where a prosecution is a likely possibility, yet only an affirmative defense is avail- is a likely possibility, yet only an affirmative defense is avail- able, speakers may self-censor rather than risk the perils of able, speakers may self-censor rather than risk the perils of

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trial. There is a potential for extraordinary harm and a se- trial. There is a potential for extraordinary harm and a se- rious chill upon protected speech. Cf. id., at 817 ("Error in rious chill upon protected speech. Cf. id., at 817 ("Error in marking that line exacts an extraordinary cost"). The harm marking that line exacts an extraordinary cost"). The harm done from letting the injunction stand pending a trial on the done from letting the injunction stand pending a trial on the merits, in contrast, will not be extensive. No prosecutions merits, in contrast, will not be extensive. No prosecutions have yet been undertaken under the law, so none will be have yet been undertaken under the law, so none will be disrupted if the injunction stands. Further, if the injunc- disrupted if the injunction stands. Further, if the injunc- tion is upheld, the Government in the interim can enforce tion is upheld, the Government in the interim can enforce obscenity laws already on the books.

obscenity laws already on the books.

Second, there are substantial factual disputes remaining in Second, there are substantial factual disputes remaining in the case. As mentioned above, there is a serious gap in the the case. As mentioned above, there is a serious gap in the evidence as to the effectiveness of filtering software. See evidence as to the effectiveness of filtering software. See supra, at 668. For us to assume, without proof, that filters supra, at 668. For us to assume, without proof, that filters are less effective than COPA would usurp the District are less effective than COPA would usurp the District Court's factfinding role. By allowing the preliminary in- Court's factfinding role. By allowing the preliminary in- junction to stand and remanding for trial, we require the junction to stand and remanding for trial, we require the Government to shoulder its full constitutional burden of Government to shoulder its full constitutional burden of proof respecting the less restrictive alternative argument, proof respecting the less restrictive alternative argument, rather than excuse it from doing so.

rather than excuse it from doing so.

Third, and on a related point, the factual record does not Third, and on a related point, the factual record does not reflect current technological reality-a serious flaw in any reflect current technological reality—a serious flaw in any case involving the Internet. The technology of the Internet case involving the Internet. The technology of the Internet evolves at a rapid pace. Yet the factfindings of the District evolves at a rapid pace. Yet the factfindings of the District Court were entered in February 1999, over five years ago.

Court were entered in February 1999, over five years ago.

Since then, certain facts about the Internet are known to Since then, certain facts about the Internet are known to have changed. Compare, e. g., 31 F. Supp. 2d, at 481 (36.7 have changed. Compare, e. g., 31 F. Supp. 2d, at 481 (36.7 million Internet hosts as of July 1998), with Internet Sys- million Internet hosts as of July 1998), with Internet Sys- tems Consortium, Internet Domain Survey, Jan. 2004, http:// tems Consortium, Internet Domain Survey, Jan. 2004, http:// www.isc.org/index.pl?/ops/ds (as visited June 22, 2004, and www.isc.org/index.pl?/ops/ds (as visited June 22, 2004, and available in Clerk of Court's case file) (233.1 million hosts as available in Clerk of Court's case file) (233.1 million hosts as of Jan. 2004).

It is reasonable to assume that other techno- of Jan. 2004). It is reasonable to assume that other techno- logical developments important to the First Amendment logical developments important to the First Amendment analysis have also occurred during that time. More and bet- analysis have also occurred during that time. More and bet- ter filtering alternatives may exist than when the District ter filtering alternatives may exist than when the District Court entered its findings.

Indeed, we know that after the Court entered its findings. Indeed, we know that after the District Court entered its factfindings, a congressionally ap- District Court entered its factfindings, a congressionally ap-

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pointed commission issued a report that found that filters are pointed commission issued a report that found that filters are more effective than verification screens. See supra, at 668. more effective than verification screens. See supra, at 668.

Delay. between the time that a district court makes fact- Delay between the time that a district court makes fact- findings and the time that a case reaches this Court is inevi- findings and the time that a case reaches this Court is inevi- table, with the necessary consequence that there will be table, with the necessary consequence that there will be some discrepancy between the facts as found and the facts some discrepancy between the facts as found and the facts at the time the appellate court takes up the question. See, at the time the appellate court takes up the question. See,

e. g., Benjamin, Stepping into the Same River Twice: Rapidly

Changing Facts and the Appellate Process, 78 Texas L. Rev.

269, 290-296 (1999) (noting the problems presented for appel- 269, 290-296 (1999) (noting the problems presented for appel- late courts by changing facts in the context of cases involving late courts by changing facts in the context of cases involving the Internet, and giving as a specific example the Court's the Internet, and giving as a specific example the Court's decision in Reno, 521 U. S. 844). We do not mean, therefore, decision in Reno, 521 U. S. 844). We do not mean, therefore, to set up an insuperable obstacle to fair review. Here, how- to set up an insuperable obstacle to fair review. Here, how- ever, the usual gap has doubled because the case has been ever, the usual gap has doubled because the case has been through the Court of Appeals twice. The additional two through the Court of Appeals twice. The additional two years might make a difference. By affirming the prelimi- years might make a difference. By affirming the prelimi- nary injunction and remanding for trial, we allow the parties nary injunction and remanding for trial, we allow the parties to update and supplement the factual record to reflect cur- to update and supplement the factual record to reflect cur- rent technological realities.

rent technological realities.

Remand will also permit the District Court to take ac- Remand will also permit the District Court to take ac- count of a changed legal landscape. Since the District Court count of a changed legal landscape. Since the District Court made its factfindings, Congress has passed at least two fur- made its factfindings, Congress has passed at least two fur- ther statutes that might qualify as less restrictive alterna- ther statutes that might qualify as less restrictive alterna- tives to COPA-a prohibition on misleading domain names, tives to COPA—a prohibition on misleading domain names, and a statute creating a minors-safe "Dot Kids" domain. and a statute creating a minors-safe "Dot Kids" domain.

See supra, at 663. Remanding for trial will allow the Dis- See supra, at 663. Remanding for trial will allow the Dis- trict Court to take into account those additional potential trict Court to take into account those additional potential alternatives. alternatives.

On a final point, it is important to note that this opinion On a final point, it is important to note that this opinion does not hold that Congress is incapable of enacting any reg- does not hold that Congress is incapable of enacting any reg- ulation of the Internet designed to prevent minors from gain- ulation of the Internet designed to prevent minors from gain- ing access to harmful materials. The parties, because of the ing access to harmful materials. The parties, because of the conclusion of the Court of Appeals that the statute's defini- conclusion of the Court of Appeals that the statute's defini- tions rendered it unconstitutional, did not devote their atten- tions rendered it unconstitutional, did not devote their atten-

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tion to the question whether further evidence might be intro- tion to the question whether further evidence might be intro- duced on the relative restrictiveness and effectiveness of al- duced on the relative restrictiveness and effectiveness of al- ternatives to the statute. On remand, however, the parties ternatives to the statute. On remand, however, the parties will be able to introduce further evidence on this point. will be able to introduce further evidence on this point.

This opinion does not foreclose the District Court from con- This opinion does not foreclose the District Court from con- cluding, upon a proper showing by the Government that cluding, upon a proper showing by the Government that meets the Government's constitutional burden as defined in meets the Government's constitutional burden as defined in this opinion, that COPA is the least restrictive alternative this opinion, that COPA is the least restrictive alternative available to accomplish Congress' goal. available to accomplish Congress' goal.

On this record, the Government has not shown that the On this record, the Government has not shown that the less restrictive alternatives proposed by respondents should less restrictive alternatives proposed by respondents should be disregarded. Those alternatives, indeed, may be more be disregarded. Those alternatives, indeed, may be more effective than the provisions of COPA. The District Court effective than the provisions of COPA. The District Court did not abuse its discretion when it entered the preliminary did not abuse its discretion when it entered the preliminary injunction. The judgment of the Court of Appeals is af- injunction. The judgment of the Court of Appeals is af- firmed, and the case is remanded for further proceedings firmed, and the case is remanded for further proceedings consistent with this opinion. consistent with this opinion.

It is so ordered.

JUSTICE STEVENS, with whom JUSTICE GINSBURG joins, JUSTICE STEVENS, with whom JUSTICE GINSBURG joins,

concurring. concurring.

When it first reviewed the constitutionality of the Child When it first reviewed the constitutionality of the Child Online Protection Act (COPA), the Court of Appeals held Online Protection Act (COPA), the Court of Appeals held that the statute's use of "contemporary community stand- that the statute's use of "contemporary community stand- ards" to identify materials that are "harmful to minors" was ards" to identify materials that are "harmful to minors" was a serious, and likely fatal, defect. American Civil Liberties a serious, and likely fatal, defect. American Civil Liberties I have already Union v. Reno, 217 F. 3d 162 (CA3 2000).

Union v Reno, 217 F. 3d 162 (CA3 2000). I have álready explained at some length why I agree with that holding. explained at some length why I agree with that holding.

See Ashcroft v. American Civil Liberties Union, 535 U. S.

564, 603 (2002) (dissenting opinion) ("In the context of the 564, 603 (2002) (dissenting opinion) ("In the context of the Internet,... community standards become a sword, rather Internet.... community standards become a sword, rather If a prurient appeal is offensive in a puritan than a shield. than a shield. If a prurient appeal is offensive in a puritan village, it may be a crime to post it on the World Wide Web"). village, it may be a crime to post it on the World Wide Web").

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I continue to believe that the Government may not penalize I continue to believe that the Government may not penalize speakers for making available to the general World Wide speakers for making available to the general World Wide Web audience that which the least tolerant communities in Web audience that which the least tolerant communities in America deem unfit for their children's consumption, cf. Reno America deem unfit for their children's consumption, cf. Reno

v. American Civil Liberties Union, 521 U. S. 844, 878 (1997),

and consider that principle a sufficient basis for deciding and consider that principle a sufficient basis for deciding this case. this case.

But COPA's use of community standards is not the stat- But COPA's use of community standards is not the stat- ute's only constitutional defect. Today's decision points to ute's only constitutional defect. Today's decision points to another: that, as far as the record reveals, encouraging de- another: that, as far as the record reveals, encouraging de- ployment of user-based controls, such as filtering software, ployment of user-based controls, such as filtering software, would serve Congress' interest in protecting minors from would serve Congress' interest in protecting minors from sexually explicit Internet materials as well or better than sexually explicit Internet materials as well or better than attempting to regulate the vast content of the World Wide attempting to regulate the vast content of the World Wide Web at its source, and at a far less significant cost to First Web at its source, and at a far less significant cost to First Amendment values.

Amendment values.

In registering my agreement with the Court's less- In registering my agreement with the Court's less- restrictive-means analysis, I wish to underscore just how re- restrictive-means analysis, I wish to underscore just how re- strictive COPA is. COPA is a content-based restraint on strictive COPA is. COPA is a content-based restraint on the dissemination of constitutionally protected speech.

It the dissemination of constitutionally protected speech. It enforces its prohibitions by way of the criminal law, threat- enforces its prohibitions by way of the criminal law, threat- ening noncompliant Web speakers with a fine of as much as ening noncompliant Web speakers with a fine of as much as $50,000, and a term of imprisonment as long as six months, $50,000, and a term of imprisonment as long as six months, for each offense. 47 U. S. C. § 231(a). Speakers who "inten- for each offense. 47 U. S. C. § 231(a). Speakers who "inten- tionally" violate COPA are punishable by a fine of up to tionally" violate COPA are punishable by a fine of up to $50,000 for each day of the violation.

Ibid. And because $50,000 for each day of the violation. Ibid. And because implementation of the various adult-verification mechanisms implementation of the various adult-verification mechanisms described in the statute provides only an affirmative defense, described in the statute provides only an affirmative defense, § 231(c)(1), even full compliance with COPA cannot guarantee § 231(c)(1), even full compliance with COPA cannot guarantee freedom from prosecution. Speakers who dutifully place freedom from prosecution. Speakers who dutifully place their content behind age screens may nevertheless find their content behind age screens may nevertheless find themselves in court, forced to prove the lawfulness of their themselves in court, forced to prove the lawfulness of their speech on pain of criminal conviction. Cf. Ashcroft v. Free speech on pain of criminal conviction. Cf. Ashcroft v. Free Speech Coalition, 535 U. S. 234, 255 (2002).

Speech Coalition, 535 U. S. 234, 255 (2002).

Criminal prosecutions are, in my view, an inappropriate Criminal prosecutions are, in my view, an inappropriate means to regulate the universe of materials classified as "ob- means to regulate the universe of materials classified as "ob-

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scene," since "the line between communications which 'of- scene," since "the line between communications which `of- fend' and those which do not is too blurred to identify crimi- fend' and those which do not is too blurred to identify crimi- nal conduct." Smith v. United States, 431 U. S. 291, 316 nal conduct." Smith v. United States, 431 U. S. 291, 316 (1977) (STEVENS, J., dissenting). See also Marks v. United (1977) (STEVENS, J, dissenting). See also Marks v. United States, 430 U. S. 188, 198 (1977) (STEVENS, J., concurring in States, 430 U. S. 188, 198 (1977) (STEVENS, J., concurring in part and dissenting in part). COPA's creation of a new cate- part and dissenting in part). COPA's creation of a new cate- gory of criminally punishable speech that is "harmful to gory of criminally punishable speech that is "harmful to minors" only compounds the problem.

It may be, as JuS- minors" only compounds the problem. It may be, as Jus- TICE BREYER contends, that the statute's coverage extends TICE BREYER contends, that the statute's coverage extends "only slightly" beyond the legally obscene, and therefore in- "only slightly" beyond the legally obscene, and therefore in- trudes little into the realm of protected expression. Post, at trudes little into the realm of protected expression. Post, at 679 (dissenting opinion). But even with JUSTICE BREYER's 679 (dissenting opinion). But even with JUSTICE BREYER'S guidance, I find it impossible to identify just how far past guidance, I find it impossible to identify just how far past the already ill-defined territory of "obscenity" he thinks the the already ill-defined territory of "obscenity" he thinks the statute extends. Attaching criminal sanctions to a mistaken statute extends. Attaching criminal sanctions to a mistaken judgment about the contours of the novel and nebulous cate- judgment about the contours of the novel and nebulous cate- gory of "harmful to minors" speech clearly imposes a heavy gory of "harmful to minors" speech clearly imposes a heavy burden on the exercise of First Amendment freedoms.

burden on the exercise of First Amendment freedoms.

COPA's criminal penalties are, moreover, strong medicine COPA's criminal penalties are, moreover, strong medicine for the ill that the statute seeks to remedy. To be sure, for the ill that the statute seeks to remedy. To be sure, our cases have recognized a compelling interest in protecting our cases have recognized a compelling interest in protecting minors from exposure to sexually explicit materials. See, minors from exposure to sexually explicit materials. See,

e. g., Ginsberg v. New York, 390 U. S. 629, 640 (1968). As a

parent, grandparent, and great-grandparent, I endorse that parent, grandparent, and great-grandparent, I endorse that goal without reservation. As a judge, however, I must con- goal without reservation. As a judge, however, I must con- fess to a growing sense of unease when the interest in fess to a growing sense of unease when the interest in protecting children from prurient materials is invoked as a protecting children from prurient materials is invoked as a justification for using criminal regulation of speech as a sub- justification for using criminal regulation of speech as a sub- stitute for, or a simple backup to, adult oversight of children's stitute for, or a simple backup to, adult oversight of children's viewing habits. viewing habits.

In view of the gravity of the burdens COPA imposes on In view of the gravity of the burdens COPA imposes on Web speech, the possibility that Congress might have accom- Web speech, the possibility that Congress might have accom- plished the goal of protecting children from harmful materi- plished the goal of protecting children from harmful materi- als by other, less drastic means is a matter to be considered als by other, less drastic means is a matter to be considered with special care. With that observation, I join the opinion with special care. With that observation, I join the opinion of the Court. of the Court.

676 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION

BREYER, J., dissenting BREYER, J., dissenting JUSTICE SCALIA, dissenting.

JUSTICE SCALIA, dissenting. I agree with JUSTICE BREYER'S conclusion that the Child I agree with JUSTICE BREYER's conclusion that the Child Online Protection Act (COPA), 47 U. S. C. § 231, is consti- Online Protection Act (COPA), 47 U.S. C. § 231, is consti- tutional. See post, at 689 (dissenting opinion). Both the tutional. See post, at 689 (dissenting opinion). Both the Court and JUSTICE BREYER err, however, in subjecting Court and JUSTICE BREYER err, however, in subjecting COPA to strict scrutiny. Nothing in the First Amendment COPA to strict scrutiny. Nothing in the First Amendment entitles the type of material covered by COPA to that exact- entitles the type of material covered by COPA to that exact- ing standard of review. "We have recognized that commer- ing standard of review. "We have recognized that commer- cial entities which engage in 'the sordid business of pander- cial entities which engage in `the sordid business of pander- ing' by 'deliberately emphasiz[ing] the sexually provocative ing' by `deliberately emphasiz[ing] the sexually provocative aspects of [their nonobscene products], in order to catch the aspects of [their nonobscene products], in order to catch the salaciously disposed,' engage in constitutionally unprotected salaciously disposed,' engage in constitutionally unprotected behavior." United States v. Playboy Entertainment Group, behavior." United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 831 (2000) (SCALIA, J., dissenting) (quoting Inc., 529 U. S. 803, 831 (2000) (SCALIA, J., dissenting) (quoting Ginzburg v. United States, 383 U. S. 463, 467, 472 (1966)).

Ginzburg v. United States, 383 U. S. 463, 467, 472 (1966)).

See also Los Angeles v. Alameda Books, Inc., 535 U. S. 425, See also Los Angeles v. Alameda Books, Inc., 535 U. S. 425, 443-444 (2002) (SCALIA, J., concurring); FW/PBS, Inc. v. Dal- 443-444 (2002) (SCALIA, J., concurring); FW/PBS, Inc. v. Dal- las, 493 U. S. 215, 256-261 (1990) (SCALIA, J., concurring in las, 493 U. S. 215, 256-261 (1990) (SCALIA, J., concurring in part and dissenting in part). part and dissenting in part).

There is no doubt that the commercial pornography cov- There is no doubt that the commercial pornography coy- ered by COPA fits this description. The statute applies only ered by COPA fits this description. The statute applies only to a person who, "as a regular course of such person's trade to a person who, "as a regular course of such person's trade or business, with the objective of earning a profit," 47 or business, with the objective of earning a profit," 47

U. S. C. § 231(e)(2)(B), and "with knowledge of the character

of the material," § 231(a)(1), communicates material that de- of the material," §231(a)(1), communicates material that de- picts certain specified sexual acts and that "is designed to picts certain specified sexual acts and that "is designed to appeal to, or is designed to pander to, the prurient interest," appeal to, or is designed to pander to, the prurient interest," § 231(e)(6)(A). Since this business could, consistent with the § 231(e)(6)(A). Since this business could, consistent with the First Amendment, be banned entirely, COPA's lesser restric- First Amendment, be banned entirely, COPA's lesser restric- tions raise no constitutional concern. tions raise no constitutional concern.

JUSTICE BREYER, with whom THE CHIEF JUSTICE and JUSTICE BREYER, with whom THE CHIEF JUSTICE and

JUSTICE O'CONNOR join, dissenting.

The Child Online Protection Act (Act), 47 U. S. C. § 231, The Child Online Protection Act (Act), 47 U.S. C. § 231, seeks to protect children from exposure to commercial por- seeks to protect children from exposure to commercial por- nography placed on the Internet. It does so by requiring nography placed on the Internet. It does so by requiring

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commercial providers to place pornographic material behind commercial providers to place pornographic material behind Internet "screens" readily accessible to adults who produce Internet "screens" readily accessible to adults who produce age verification. The Court recognizes that we should age verification. The Court recognizes that we should "'proceed ... with care befbre invalidating the Act,'" while "`proceed ... with care befóre invalidating the Act,"' while pointing out that the "imperative of according respect to pointing out that the "imperative of according respect to the Congress . . . does not permit us to depart from well- the Congress ... does not permit us to depart from well- established First Amendment principles." Ante, at 660.

I

established First Amendment principles." Ante, at 660. I agree with these generalities. Like the Court, I would agree with these generalities. Like the Court, I would subject the Act to "the most exacting scrutiny," Turner subject the Act to "the most exacting scrutiny," Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 642 (1994), Broadcasting System, Inc. v. FCC, 512 U. S. 622, 642 (1994), requiring the Government to show that any restriction of requiring the Government to show that any restriction of nonobscene expression is "narrowly drawn" to further a nonobscene expression is "narrowly drawn" to further a ''compelling interest" and that the restriction amounts to the "compelling interest" and that the restriction amounts to the "least restrictive means" available to further that interest, "least restrictive means" available to further that interest, Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989). See also Denver Area Ed. Telecommunications 126 (1989). See also Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 755-756 (1996).

Consortium, Inc. v. FCC, 518 U. S. 727, 755-756 (1996).

Nonetheless, my examination of (1) the burdens the Act Nonetheless, my examination of (1) the burdens the Act imposes on protected expression, (2) the Act's ability to fur- imposes on protected expression, (2) the Act's ability to fur- ther a compelling interest, and (3) the proposed "less restric- ther a compelling interest, and (3) the proposed "less restric- tive alternatives" convinces me that the Court is wrong.

I

tive alternatives" convinces me that the Court is wrong. I cannot accept its conclusion that Congress could have accom- cannot accept its conclusion that Congress could have accom- plished its statutory objective-protecting children from plished its statutory objective—protecting children from commercial pornography on the Internet-in other, less re- commercial pornography on the Internet—in other, less re- strictive ways. strictive ways.

I

Although the Court rests its conclusion upon the existence Although the Court rests its conclusion upon the existence of less restrictive alternatives, I must first examine the bur- of less restrictive alternatives, I must first examine the bur- dens that the Act imposes upon protected speech. That is dens that the Act imposes upon protected speech. That is because the term "less restrictive alternative" is a compara- because the term "less restrictive alternative" is a compara- tive term. An "alternative" is "less restrictive" only if it tive term. An "alternative" is "less restrictive" only if it will work less First Amendment harm than the statute itself, will work less First Amendment harm than the statute itself, while at the same time similarly furthering the "compelling" while at the same time similarly furthering the "compelling" interest that prompted Congress to enact the statute. Un- interest that prompted Congress to enact the statute. Un- like the majority, I do not see how it is possible to make like the majority, I do not see how it is possible to make this comparative determination without examining both the this comparative determination without examining both the

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extent to which the Act regulates protected expression and extent to which the Act regulates protected expression and the nature of the burdens it imposes on that expression. the nature of the burdens it imposes on that expression.

That examination suggests that the Act, properly inter- That examination suggests that the Act, properly inter- preted, imposes a burden on protected speech that is no more preted, imposes a burden on protected speech that is no more than modest. than modest.

A

The Act's definitions limit the material it regulates to ma- The Act's definitions limit the material it regulates to ma- terial that does not enjoy First Amendment protection, terial that does not enjoy First Amendment protection, namely, legally obscene material, and very little more. A namely, legally obscene material, and very little more. A comparison of this Court's definition of unprotected, "legally comparison of this Court's definition of unprotected, "legally obscene," material with the Act's definitions makes this clear. obscene," material with the Act's definitions makes this clear.

Material is legally obscene if Material is legally obscene if

"(a) . . . 'the average person, applying contemporary "(a) . .. `the average person, applying contemporary community standards' would find that the work, taken community standards' would find that the work, taken as a whole, appeals to the prurient interest ... as a whole, appeals to the prurient interest ... ; (b) ... the work depicts or describes, in a patently offensive the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable way, sexual conduct specifically defined by the applicable state law; and (c) ... the work, taken as a whole, lacks state law; and (c) ... the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." serious literary, artistic, political, or scientific value."

Miller v. California, 413 U. S. 15, 24 (1973).

; (b)...

The present statute defines the material that it regulates as The present statute defines the material that it regulates as

material that meets all of the following criteria:

"(A) the average person, applying contemporary com- "(A) the average person, applying contemporary com- munity standards, would find, taking the material as a munity standards, would find, taking the material as a whole and with respect to minors, [that the material] is whole and with respect to minors, [that the material] is designed to appeal to, or is designed to pander to, the designed to appeal to, or is designed to pander to, the prurient interest; prurient interest; "(B) [the material] depicts, describes, or represents, in "(B) [the material] depicts, describes, or represents, in a manner patently offensive with respect to minors, an a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an ac- actual or simulated sexual act or sexual contact, an ac- tual or simulated normal or perverted sexual act, or a tual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female lewd exhibition of the genitals or post-pubescent female breast; and breast; and "(C) [the material] taken as a whole, lacks serious liter- "(C) [the material] taken as a whole, lacks serious liter- ary, artistic, political, or scientific value for minors." 47 ary, artistic, political, or scientific value for minors." 47

U. S. C. § 231(e)(6) (emphasis added).

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Both definitions define the relevant material through use Both definitions define the relevant material through use of the critical terms "prurient interest" and "lacks serious of the critical terms "prurient interest" and "lacks serious Insofar as literary, artistic, political, or scientific value." literary, artistic, political, or scientific value." Insofar as material appeals to, or panders to, "the prurient interest," it material appeals to, or panders to, "the prurient interest," it Insofar as "patently offen- simply seeks a sexual response. simply seeks a sexual response. Insofar as "patently offen- sive" material with "no serious value" simply seeks that re- sive" material with "no serious value" simply seeks that re- sponse, it does not seek to educate, it does not seek to eluci- sponse, it does not seek to educate, it does not seek to eluci- date views about sex, it is not artistic, and it is not literary.

date views about sex, it is not artistic, and it is not literary.

Compare, e. g., Erznoznik v. Jacksonville, 422 U. S. 205, 213 Compare, e. g., Erznoznik v. Jacksonville, 422 U. S. 205, 213 (1975) (invalidating an ordinance regulating nudity in films, (1975) (invalidating an ordinance regulating nudity in films, where the ban was not confined to "sexually explicit nudity" where the ban was not confined to "sexually explicit nudity" or otherwise limited), with Ginzburg v. United States, 383 or otherwise limited), with Ginzburg v United States, 383

U. S. 463, 471 (1966) (finding unprotected material that was

"created, represented and sold solely as a claimed instrument "created, represented and sold solely as a claimed instrument of the sexual stimulation it would bring"). That is why this of the sexual stimulation it would bring"). That is why this Court, in Miller, held that the First Amendment did not pro- Court, in Miller, held that the First Amendment did not pro- tect material that fit its definition. tect material that fit its definition.

The only significant difference between the present statute The only significant difference between the present statute and Miller's definition consists of the addition of the words and Miller's definition consists of the addition of the words "with respect to minors," §231(e)(6)(A), and "for minors," "with respect to minors," § 231(e)(6)(A), and "for minors," §231(e)(6)(C). But the addition of these words to a defini- § 231(e)(6)(C). But the addition of these words to a defini- tion that would otherwise cover only obscenity expands the tion that would otherwise cover only obscenity expands the statute's scope only slightly. That is because the material statute's scope only slightly. That is because the material in question (while potentially harmful to young children) in question (while potentially harmful to young children) must, first, appeal to the "prurient interest" of, i. e., seek a must, first, appeal to the "prurient interest" of, i. e., seek a sexual response from, some group of adolescents or postado- sexual response from, some group of adolescents or postado- lescents (since young children normally do not so respond).

lescents (since young children normally do not so respond).

And material that appeals to the "prurient interest[s]" of And material that appeals to the "prurient interest[s]" of some group of adolescents or postadolescents will almost in- some group of adolescents or postadolescents will almost in- evitably appeal to the "prurient interest[s]" of some group of evitably appeal to the "prurient interest[s]" of some group of adults as well. adults as well.

The "lack of serious value" requirement narrows the stat- The "lack of serious value" requirement narrows the stat- ute yet further-despite the presence of the qualification ute yet further—despite the presence of the qualification "for minors." That is because one cannot easily imagine ma- "for minors." That is because one cannot easily imagine ma- terial that has serious literary, artistic, political, or scientific terial that has serious literary, artistic, political, or scientific value for a significant group of adults, but lacks such value value for a significant group of adults, but lacks such value for any significant group of minors. Thus, the statute, read for any significant group of minors. Thus, the statute, read

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literally, insofar as it extends beyond the legally obscene, literally, insofar as it extends beyond the legally obscene, could reach only borderline cases. And to take the words could reach only borderline cases. And to take the words of the statute literally is consistent with Congress' avowed of the statute literally is consistent with Congress' avowed objective in enacting this law; namely, putting material objective in enacting this law; namely, putting material produced by professional pornographers behind screens that produced by professional pornographers behind screens that will verify the age of the viewer. See S. Rep. No. 105-225, will verify the age of the viewer. See S. Rep. No. 105-225,

p. 3 (1998) (hereinafter S. Rep.) ("The bill seeks to restrict

access to commercial pornography on the Web by requiring access to commercial pornography on the Web by requiring those engaged in the business of the commercial distribu- those engaged in the business of the commercial distribu- tion of material that is harmful to minors to take certain tion of material that is harmful to minors to take certain prescribed steps to restrict access to such material by prescribed steps to restrict access to such material by minors..."); H. R. Rep. No. 105-775, pp. 5, 14 (1998) (herein- minors..."); H. R. Rep. No. 105-775, pp. 5,14 (1998) (herein- after H. R. Rep.) (explaining that the bill is aimed at the after H. R. Rep.) (explaining that the bill is aimed at the sale of pornographic materials and provides a defense for the sale of pornographic materials and provides a defense for the ''commercial purveyors of pornography" that the bill seeks "commercial purveyors of pornography" that the bill seeks to regulate).

to regulate).

These limitations on the statute's scope answer many of These limitations on the statute's scope answer many of the concerns raised by those who attack its constitutionality. the concerns raised by those who attack its constitutionality.

Respondents fear prosecution for the Internet posting of ma- Respondents fear prosecution for the Internet posting of ma- terial that does not fall within the statute's ambit as limited terial that does not fall within the statute's ambit as limited by the "prurient interest" and "no serious value" require- by the "prurient interest" and "no serious value" require- ments; for example: an essay about a young man's experience ments; for example: an essay about a young man's experience with masturbation and sexual shame; "a serious discussion with masturbation and sexual shame; "a serious discussion about birth control practices, homosexuality,.., or the conse- about birth control practices, homosexuality, ... or the conse- quences of prison rape"; an account by a 15-year-old, written quences of prison rape"; an account by a 15-year-old, written for therapeutic purposes, of being raped when she was 13; for therapeutic purposes, of being raped when she was 13; a guide to self-examination for testicular cancer; a graphic a guide to self-examination for testicular cancer; a graphic illustration of how to use a condom; or any of the other post- illustration of how to use a condom; or any of the other post- ings of modern literary or artistic works or discussions of ings of modern literary or artistic works or discussions of sexual identity, homosexuality, sexually transmitted dis- sexual identity, homosexuality, sexually transmitted dis- eases, sex education, or safe sex, let alone Aldous Huxley's eases, sex education, or safe sex, let alone Aldous Huxley's Brave New World, J. D. Salinger's Catcher in the Rye, or, Brave New World, J. D. Salinger's Catcher in the Rye, or, as the complaint would have it, "Ken Starr's report on the as the complaint would have it, "Ken Starr's report on the Clinton-Lewinsky scandal." See G. Dillard, Shame on Me, Clinton-Lewinsky scandal." See G. Dillard, Shame on Me, Lodging 609-612; Reno v. American Civil Liberties Union, Lodging 609-612; Reno v. American Civil Liberties Union, 521 U. S. 844, 871 (1997); Brief for Respondents 29 (citing 521 U. S. 844, 871 (1997); Brief for Respondents 29 (citing

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Lodging 732-736); Brief for American Society of Journalists Lodging 732-736); Brief for American Society of Journalists and Authors et al. as Amici Curiae 8, and n. 7 (referring and Authors et al. as Amici Curiae 8, and n. 7 (referring to a guide on the medical advice site www.afraidtoask.com); to a guide on the medical advice site www afraidtoask.com); 322 F. 3d 240, 268 (CA3 2003) (citing Safer Sex Institute, 322 F. 3d 240, 268 (CA3 2003) (citing Safer Sex Institute, safersex.org/condoms/how.to.use); Complaint 1, Lodging safersex.org/condoms/how.to.use); Complaint 11, Lodging 40-41 ("a Mapplethorpe photograph," referring to the work 40-41 ("a Mapplethorpe photograph," referring to the work of controversial artist Robert Mapplethorpe); id., at 667-669 of controversial artist Robert Mapplethorpe); id., at 667-669 (P1. Exh. 80, PlanetOut Youth Message Boards (Internet dis- (Pl. Exh. 80, PlanetOut Youth Message Boards (Internet dis- cussion board for gay teens)); declaration of Adam K. Glick- cussion board for gay teens)); declaration of Adam K. Glick- man, president and CEO, Addazi, Inc., d/b/a Condomania, man, president and CEO, Addazi, Inc., d/b/a Condomania, Supp. Lodging of Petitioner 4-10 (describing how Web site Supp. Lodging of Petitioner 4-10 (describing how Web site has been used for health education); declaration of Roberta has been used for health education); declaration of Roberta Speyer, president and publisher, OBGYN.net, id., at 15-16 Speyer, president and publisher, OBGYN.net, id., at 15-16 (describing Web site as resource for obstetrics, gynecology, (describing Web site as resource for obstetrics, gynecology, and women's health issues); Brief for Volunteer Lawyers for and women's health issues); Brief for Volunteer Lawyers for the Arts et al. as Amici Curiae 15 (listing works of litera- the Arts et al. as Amici Curiae 15 (listing works of litera- ture removed from some schools).

ture removed from some schools).

These materials are not both (1) "designed to appeal to, These materials are not both (1) "designed to appeal to, or ... pander to, the prurient interest" of significant groups or ... pander to, the prurient interest" of significant groups of minors and (2) lacking in "serious literary, artistic, politi- of minors and (2) lacking in "serious literary, artistic, politi- cal, or scientific value" for significant groups of minors. cal, or scientific value" for significant groups of minors. §§231(e)(6)(A), (C). Thus, they fall outside the statute's §§ 231(e)(6)(A), (C). Thus, they fall outside the statute's definition of the material that it restricts, a fact the Govern- definition of the material that it restricts, a fact the Govern- ment acknowledged at oral argument. Tr. of Oral Arg. ment acknowledged at oral argument. Tr. of Oral Arg.

50-51.

I have found nothing elsewhere in the statute's language I have found nothing elsewhere in the statute's language that broadens its scope. Other qualifying phrases, such as that broadens its scope. Other qualifying phrases, such as "taking the material as a whole," §§ 231(e)(6)(A), (C), and "for "taking the material as a whole," §§ 231(e)(6)(A), (C), and "for commercial purposes," §231(a)(1), limit the statute's scope commercial purposes," §231(a)(1), limit the statute's scope still more, requiring, for example, that individual images be still more, requiring, for example, that individual images be considered in context. See Roth v. United States, 354 U. S. considered in context. See Roth v. United States, 354 U. S. 476, 490 (1957).

In sum, the Act's definitions limit the stat- 476, 490 (1957). In sum, the Act's definitions limit the stat- ute's scope to commercial pornography. It affects unpro- ute's scope to commercial pornography. It affects unpro- tected obscene material. Given the inevitable uncertainty tected obscene material. Given the inevitable uncertainty about how to characterize close-to-obscene material, it could about how to characterize close-to-obscene material, it could apply to (or chill the production of) a limited class of border- apply to (or chill the production of) a limited class of border-

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line material that courts might ultimately find is protected. line material that courts might ultimately find is protected.

But the examples I have just given fall outside that class.

B

The Act does not censor the material it covers. Rather, The Act does not censor the material it covers. Rather, it requires providers of the "harmful to minors" material to it requires providers of the "harmful to minors" material to restrict minors' access to it by verifying age. They can do restrict minors' access to it by verifying age. They can do so by inserting screens that verify age using a credit card, so by inserting screens that verify age using a credit card, adult personal identification number, or other similar tech- adult personal identification number, or other similar tech- nology. See §231(c)(1).

In this way, the Act requires cre- nology. See §231(c)(1). In this way, the Act requires cre- ation of an Internet screen that minors, but not adults, will ation of an Internet screen that minors, but not adults, will find difficult to bypass. find difficult to bypass.

I recognize that the screening requirement imposes some I recognize that the screening requirement imposes some burden on adults who seek access to the regulated material, burden on adults who seek access to the regulated material, as well as on its providers. The cost is, in part, monetary. as well as on its providers. The cost is, in part, monetary.

The parties agreed that a Web site could store card numbers The parties agreed that a Web site could store card numbers or passwords at between 15 and 20 cents per number. or passwords at between 15 and 20 cents per number.

American Civil Liberties Union v. Reno, 31 F. Supp. 2d 473, American Civil Liberties Union v. Reno, 31 F. Supp. 2d 473, 45-47 (ED Pa. 1999). And verification services 488-489, 488-489, 1145-47 (ED Pa. 1999). And verification services provide free verification to Web site operators, while charg- provide free verification to Web site operators, while charg- ing users less than $20 per year. Id., at 489-490, 1 48-53. ing users less than $20 per year. Id., at 489-490, 1148-53.

According to the trade association for the commercial por- According to the trade association for the commercial por- nographers who are the statute's target, use of such verifi- nographers who are the statute's target, use of such verifi- cation procedures is "standard practice" in their online oper- cation procedures is "standard practice" in their online oper- ations. See S. Rep., at 7; Legislative Proposals to Protect ations. See S. Rep., at 7; Legislative Proposals to Protect

Children from Inappropriate Materials on the Internet:

Hearing on H. R. 3783 et al. before the House Subcommittee Hearing on H. R. 3783 et al. before the House Subcommittee on Telecommunications, Trade and Consumer Protection of on Telecommunications, Trade and Consumer Protection of the House Committee on Commerce, 105th Cong., 2d Sess., the House Committee on Commerce, 105th Cong., 2d Sess., 46, 48 (1998) (prepared statement of Jeffrey J. Douglas, Exec- 46, 48 (1998) (prepared statement of Jeffrey J Douglas, Exec- utive Director and Chairman, Free Speech Coalition (calling utive Director and Chairman, Free Speech Coalition (calling the proposed child-protecting mechanisms "effective and the proposed child-protecting mechanisms "effective and appropriate")). appropriate")).

In addition to the monetary cost, and despite strict re- In addition to the monetary cost, and despite strict re- quirements that identifying information be kept confidential, quirements that identifying information be kept confidential, see 47 U. S. C. §§ 231(d)(1), 501, the identification require- see 47 U.S. C. §§ 231(d)(1), 501, the identification require-

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ments inherent in age screening may lead some users to fear ments inherent in age screening may lead some users to fear embarrassment. See 31 F. Supp. 2d, at 495. Both mone- embarrassment. See 31 F. Supp. 2d, at 495. Both mone- tary costs and potential embarrassment can deter potential tary costs and potential embarrassment can deter potential viewers and, in that sense, the statute's requirements may viewers and, in that sense, the statute's requirements may restrict access to a site. But this Court has held that in the restrict access to a site. But this Court has held that in the context of congressional efforts to protect children, restric- context of congressional efforts to protect children, restric- tions of this kind do not automatically violate the Constitu- tions of this kind do not automatically violate the Constitu- tion. And the Court has approved their use. See, e. g., tion. And the Court has approved their use. See, e. g., United States v. American Library Assn., Inc., 539 U. S. 194, United States v. American Library Assn., Inc., 539 U. S. 194, 209 (2003) (plurality opinion) ("[T]he Constitution does not 209 (2003) (plurality opinion) ("[T]he Constitution does not guarantee the right to acquire information at a public library guarantee the right to acquire information at a public library without any risk of embarrassment"). Cf. Reno, 521 U. S., without any risk of embarrassment"). Cf. Reno, 521 U. S., at 890 (O'CONNOR, J., concurring in judgment in part and at 890 (0'CONNOR, J., concurring in judgment in part and dissenting in part) (calling the age-verification requirement dissenting in part) (calling the age-verification requirement similar to "a bouncer [who] checks a person's driver's license similar to "a bouncer [who] checks a person's driver's license before admitting him to a nightclub").

before admitting him to a nightclub").

In sum, the Act at most imposes a modest additional In sum, the Act at most imposes a modest additional burden on adult access to legally obscene material, perhaps burden on adult access to legally obscene material, perhaps imposing a similar burden on access to some protected imposing a similar burden on access to some protected borderline obscene material as well. borderline obscene material as well.

II

I turn next to the question of "compelling interest," that I turn next to the question of "compelling interest," that of protecting minors from exposure to commercial pornogra- of protecting minors from exposure to commercial pornogra- phy. No one denies that such an interest is "compelling." phy. No one denies that such an interest is "compelling."

See Denver Area Ed. Telecommunications Consortium, See Denver Area Ed. Telecommunications Consortium, Inc., 518 U. S., at 743 (opinion of BREYER, J.) (interest in Inc., 518 U. S., at 743 (opinion of BREYER, J.) (interest in protecting minors is "compelling"); Sable Communications, protecting minors is "compelling"); Sable Communications, 492 U. S., at 126 (same); Ginsberg v. New York, 390 U. S. 629, 492 U. S., at 126 (same); Ginsberg v. New York, 390 U. S. 629, 639-640 (1968). Rather, the question here is whether the 639-640 (1968). Rather, the question here is whether the Act, given its restrictions on adult access, significantly ad- Act, given its restrictions on adult access, significantly ad- vances that interest.

In other words, is the game worth vances that interest. In other words, is the game worth the candle? the candle?

The majority argues that it is not, because of the existence The majority argues that it is not, because of the existence of "blocking and filtering software." Ante, at 666-670. of "blocking and filtering software." Ante, at 666-670.

The majority refers to the presence of that software as. a The majority refers to the presence of that software as. a

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"less restrictive alternative." But that is a misnomer-a "less restrictive alternative." But that is a misnomer—a misnomer that may lead the reader to believe that all we misnomer that may lead the reader to believe that all we need do is look to see if the blocking and filtering software need do is look to see if the blocking and filtering software is less restrictive; and to believe that, because in one sense is less restrictive; and to believe that, because in one sense it is (one can turn off the software), that is the end of the it is (one can turn off the software), that is the end of the constitutional matter. constitutional matter.

But such reasoning has no place here. Conceptually But such reasoning has no place here. Conceptually speaking, the presence of filtering software is not an alterna- speaking, the presence of filtering software is not an alterna- tive legislative approach to the problem of protecting chil- tive legislative approach to the problem of protecting chil- dren from exposure to commercial pornography. Rather, it dren from exposure to commercial pornography. Rather, it is part of the status quo, i. e., the backdrop against which is part of the status quo, i. e., the backdrop against which Congress enacted the present statute. It is always true, by Congress enacted the present statute. It is always true, by definition, that the status quo is less restrictive than a new definition, that the status quo is less restrictive than a new regulatory law. It is always less restrictive to do nothing regulatory law. It is always less restrictive to do nothing than to do something. But "doing nothing" does not ad- than to do something. But "doing nothing" does not ad- dress the problem Congress sought to address-namely, that, dress the problem Congress sought to address—namely, that, despite the availability of filtering software, children were despite the availability of filtering software, children were still being exposed to harmful material on the Internet.

still being exposed to harmful material on the Internet.

Thus, the relevant constitutional question is not the ques- Thus, the relevant constitutional question is not the ques- tion the Court asks: Would it be less restrictive to do noth- tion the Court asks: Would it be less restrictive to do noth- ing? Of course it would be. Rather, the relevant question ing? Of course it would be. Rather, the relevant question posits a comparison of (a) a status quo that includes filtering posits a comparison of (a) a status quo that includes filtering software with (b) a change in that status quo that adds to it software with (b) a change in that status quo that adds to it an age-verification screen requirement. Given the existence an age-verification screen requirement. Given the existence of filtering software, does the problem Congress identified of filtering software, does the problem Congress identified remain significant? Does the Act help to address it?. These remain significant? Does the Act help to address it? - These are questions about the relation of the Act to the compelling are questions about the relation of the Act to the compelling interest. Does the Act, compared to the status quo, signifi- interest. Does the Act, compared to the status quo, signifi- (An affirmative answer to these cantly advance the ball?

cantly advance the ball? (An affirmative answer to these questions will not justify "[a]ny restriction on speech," as the questions will not justify "[a]ny restriction on speech," as the Court claims, ante, at 666, for a final answer in respect to Court claims, ante, at 666, for a final answer in respect to constitutionality must take account of burdens and alterna- constitutionality must take account of burdens and alterna- tives as well.) tives as well.)

The answers to these intermediate questions are clear: Fil- The answers to these intermediate questions are clear: Fil- tering software, as presently available, does not solve the tering software, as presently available, does not solve the "child protection" problem.

It suffers from four serious in- "child protection" problem. It suffers from four serious in-

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adequacies that prompted Congress to pass legislation in- adequacies that prompted Congress to pass legislation in- stead of relying on its voluntary use. First, its filtering is stead of relying on its voluntary use. First, its filtering is faulty, allowing some pornographic material to pass through faulty, allowing some pornographic material to pass through without hindrance. Just last year, in American Library without hindrance. Just last year, in American Library Assn., JUSTICE STEVENS described "fundamental defects in Assn., JUSTICE STEVENS described "fundamental defects in the filtering software that is now available or that will be the filtering software that is now available or that will be available in the foreseeable future."

539 U. S., at 221 (dis- available in the foreseeable future." 539 U. S., at 221 (dis- senting opinion). He pointed to the problem of under- senting opinion). He pointed to the problem of under- blocking: "Because the software relies on key words or blocking: "Because the software relies on key words or phrases to block undesirable sites, it does not have the capac- phrases to block undesirable sites, it does not have the capac- ity to exclude a precisely defined category of images."

Ibid. ity to exclude a precisely defined category of images." Ibid.

That is to say, in the absence of words, the software alone That is to say, in the absence of words, the software alone cannot distinguish between the most obscene pictorial image cannot distinguish between the most obscene pictorial image and the Venus de Milo. No Member of this Court disagreed. and the Venus de Milo. No Member of this Court disagreed.

Second, filtering software costs money. Not every family Second, filtering software costs money. Not every family has the $40 or so necessary to install it. See 31 F. Supp. 2d, has the $40 or so necessary to install it. See 31 F. Supp. 2d, at 492,

65. By way of contrast, age screening costs less.

at 492, 165. By way of contrast, age screening costs less.

See supra, at 682 (citing costs of up to 20 cents per password See supra, at 682 (citing costs of up to 20 cents per password or $20 per user for an identification number). or $20 per user for an identification number).

Third, filtering software depends upon parents willing to Third, filtering software depends upon parents willing to decide where their children will surf the Web and able to decide where their children will surf the Web and able to enforce that decision. As to millions of American families, enforce that decision. As to millions of American families, that is not a reasonable possibility. More than 28 million that is not a reasonable possibility. More than 28 million school age children have both parents or their sole parent in school age children have both parents or their sole parent in the work force, at least 5 million children are left alone at the work force, at least 5 million children are left alone at home without supervision each week, and many of those chil- home without supervision each week, and many of those chil- dren will spend afternoons and evenings with friends who dren will spend afternoons and evenings with friends who may well have access to computers and more lenient parents.

may well have access to computers and more lenient parents.

See United States v. Playboy Entertainment Group, Inc., See United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 842 (2000) (BREYER, J., dissenting).

529 U. S. 803, 842 (2000) (BR,EYER, J, dissenting).

Fourth, software blocking lacks precision, with the result Fourth, software blocking lacks precision, with the result that those who wish to use it to screen out pornography find that those who wish to use it to screen out pornography find that it blocks a great deal of material that is valuable. As that it blocks a great deal of material that is valuable. As JUSTICE STEVENS pointed out, "the software's reliance on JUSTICE STEVENS pointed out, "the software's reliance on words to identify undesirable sites necessarily results in the words to identify undesirable sites necessarily results in the blocking of thousands of pages that contain content that is blocking of thousands of pages that contain content that is

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completely innocuous for both adults and minors, and that no completely innocuous for both adults and minors, and that no rational person could conclude matches the filtering com- rational person could conclude matches the filtering com- panies' category definitions, such as pornography or sex." panies' category definitions, such as pornography or sex."

American Library Assn., supra, at 222 (internal quota- American Library Assn., supra, at 222 (internal quota- tion marks omitted).

Indeed, the American Civil Liberties tion marks omitted). Indeed, the American Civil Liberties Union (ACLU), one of the respondents here, told Congress Union (ACLU), one of the respondents here, told Congress that filtering software "block[s] out valuable and protected that filtering software "block[s] out valuable and protected information, such as information about the Quaker religion, information, such as information about the Quaker religion, and web sites including those of the American Association of and web sites including those of the American Association of University Women, the AIDS Quilt, the Town Hall Political University Women, the AIDS Quilt, the Town Hall Political Site (run by the Family Resource Center, Christian Coalition Site (run by the Family Resource Center, Christian Coalition and other conservative groups)." Hearing on Internet Inde- and other conservative groups)." Hearing on Internet Inde- cency before the Senate Committee on Commerce, Science, cency before the Senate Committee on Commerce, Science, and Transportation, 105th Cong., 2d Sess., 64 (1998). The and Transportation, 105th Cong., 2d Sess., 64 (1998). The software "is simply incapable of discerning between constitu- software "is simply incapable of discerning between constitu- tionally protected and unprotected speech."

It tionally protected and unprotected speech." Id., at 65. It "inappropriately blocks valuable, protected speech, and does "inappropriately blocks valuable, protected speech, and does not effectively block the sites [it is] intended to block."

Id., not effectively block the sites [it is] intended to block." Id., at 66 (citing reports documenting overblocking). at 66 (citing reports documenting overblocking).

Id., at 65.

Nothing in the District Court record suggests the con- Nothing in the District Court record suggests the con- trary. No respondent has offered to produce evidence at trary. No respondent has offered to produce evidence at trial to the contrary. No party has suggested, for example, trial to the contrary. No party has suggested, for example, that technology allowing filters to interpret and discern that technology allowing filters to interpret and discern among images has suddenly become, or is about to become, among images has suddenly become, or is about to become, widely available.

Indeed, the Court concedes that "[f]ilter- widely available. Indeed, the Court concedes that "[f]ilter- ing software, of course, is not a perfect solution to the prob- ing software, of course, is not a perfect solution to the prob- lem." Ante, at 668. lem." Ante, at 668.

In sum, a "filtering software status quo" means filtering In sum, a "filtering software status quo" means filtering that underblocks, imposes a cost upon each family that uses that underblocks, imposes a cost upon each family that uses it, fails to screen outside the home, and lacks precision. it, fails to screen outside the home, and lacks precision.

Thus, Congress could reasonably conclude that a system that Thus, Congress could reasonably conclude that a system that relies entirely upon the use of such software is not an effec- relies entirely upon the use of such software is not an effec- tive system. And a law that adds to that system an age- tive system. And a law that adds to that system an age- verification screen requirement significantly increases the verification screen requirement significantly increases the system's efficacy. That is to say, at a modest additional cost system's efficacy. That is to say, at a modest additional cost

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to those adults who wish to obtain access to a screened pro- to those adults who wish to obtain access to a screened pro- gram, that law will bring about better, more precise block- gram, that law will bring about better, more precise block- ing, both inside and outside the home. ing, both inside and outside the home.

The Court's response-that 40% of all pornographic mate- The Court's response—that 40% of all pornographic mate- rial may be of foreign origin-is beside the point. Ante, at rial may be of foreign origin—is beside the point. Ante, at 667 (citing the District Court's findings). Even assuming (I 667 (citing the District Court's findings). Even assuming (I believe unrealistically) that all foreign originators will re- believe unrealistically) that all foreign originators will re- fuse to use screening, the Act would make a difference in fuse to use screening, the Act would make a difference in respect to 60% of the Internet's commercial pornography.

I

respect to 60% of the Internet's commercial pornography. I cannot call that difference insignificant. cannot call that difference insignificant.

The upshot is that Congress could reasonably conclude The upshot is that Congress could reasonably conclude that, despite the current availability of filtering software, a that, despite the current availability of filtering software, a child protection problem exists.

It also could conclude that child protection problem exists. It also could conclude that a precisely targeted regulatory statute, adding an age- a precisely targeted regulatory statute, adding an age- verification requirement for a narrow range of material, verification requirement for a narrow range of material, would more effectively shield children from commercial would more effectively shield children from commercial pornography. pornography.

Is this justification sufficient? The lower courts thought Is this justification sufficient? The lower courts thought not. But that is because those courts interpreted the Act not. But that is because those courts interpreted the Act as imposing far more than a modest burden. They assumed as imposing far more than a modest burden. They assumed an interpretation of the statute in which it reached far be- an interpretation of the statute in which it reached far be- yond legally obscene and borderline obscene material, affect- yond legally obscene and borderline obscene material, affect- ing material that, given the interpretation set forth above, ing material that, given the interpretation set forth above, would fall well outside the Act's scope. But we must inter- would fall well outside the Act's scope. But we must inter- pret the Act to save it, not to destroy it. NLRB v. Jones & pret the Act to save it, not to destroy it. NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 30 (1937). So interpreted, Laughlin Steel Corp., 301 U. S. 1, 30 (1937). So interpreted, see supra, at 678-682, the Act imposes a far lesser burden see supra, at 678-682, the Act imposes a far lesser burden on access to protected material. Given the modest nature of on access to protected material. Given the modest nature of that burden and the likelihood that the Act will significantly that burden and the likelihood that the Act will significantly further Congress' compelling objective, the Act may well sat- further Congress' compelling objective, the Act may well sat- isfy the First Amendment's stringent tests. Cf. Sable Com- isfy the First Amendment's stringent tests. Cf. Sable Com- munications, 492 U. S., at 130.

Indeed, it does satisfy the munications, 492 U. S., at 130. Indeed, it does satisfy the First Amendment unless, of course, there is a genuine al- First Amendment unless, of course, there is a genuine al- ternative, "less restrictive" way similarly to further that ternative, "less restrictive" way similarly to further that objective. objective.

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III

I turn, then, to the actual "less restrictive alternatives" I turn, then, to the actual "less restrictive alternatives" that the Court proposes. The Court proposes two real al- that the Court proposes. The Court proposes two real al- ternatives, i. e., two potentially less restrictive ways in ternatives, i. e., two potentially less restrictive ways in which Congress might alter the status quo in order to which Congress might alter the status quo in order to achieve its "compelling" objective. achieve its "compelling" objective.

First, the Government might "act to encourage" the use of First, the Government might "act to encourage" the use of blocking and filtering software. Ante, at 669. The problem blocking and filtering software. Ante, at 669. The problem is that any argument that rests upon this alternative proves is that any argument that rests upon this alternative proves too much.

If one imagines enough Government resources too much. If one imagines enough Government resources devoted to the problem and perhaps additional scientific ad- devoted to the problem and perhaps additional scientific ad- vances, then, of course, the use of software might become vances, then, of course, the use of software might become as effective and less restrictive. Obviously, the Government as effective and less restrictive. Obviously, the Government could give all parents, schools, and Internet cafes free com- could give all parents, schools, and Internet cafes free com- puters with filtering programs already installed, hire fed- puters with filtering programs already installed, hire fed- eral employees to train parents and teachers on their use, eral employees to train parents and teachers on their use, and devote millions of dollars to the development of better and devote millions of dollars to the development of better software. The result might be an alternative that is ex- software. The result might be an alternative that is ex- tremely effective.

tremely effective.

But the Constitution does not, because it cannot, require But the Constitution does not, because it cannot, require the Government to disprove the existence of magic solutions, the Government to disprove the existence of magic solutions,

i. e., solutions that, put in general terms, will solve any prob-

lem less restrictively but with equal effectiveness. Other- lem less restrictively but with equal effectiveness. Other- wise, "the undoubted ability of lawyers and judges," who are wise, "the undoubted ability of lawyers and judges," who are not constrained by the budgetary worries and other practical not constrained by the budgetary worries and other practical parameters within which Congress must operate, "to imag- parameters within which Congress must operate, "to imag- ine some kind of slightly less drastic or restrictive an ap- ine some kind of slightly less drastic or restrictive an ap- proach would make it impossible to write laws that deal with proach would make it impossible to write laws that deal with the harm that called the statute into being." Playboy En- the harm that called the statute into being." Playboy En- tertainment Group, 529 U. S., at 841 (BREYER, J., dissenting).

tertainment Group, 529 U. S., at 841 (BREYER, J., dissenting).

As Justice Blackmun recognized, a "judge would be unimagi- As Justice Blackmun recognized, a "judge would be unimagi- native indeed if he could not come up with something a little native indeed if he could not come up with something a little less 'drastic' or a little less 'restrictive' in almost any sit- less `drastic' or a little less `restrictive' in almost any sit- uation, and thereby enable himself to vote to strike legisla- uation, and thereby enable himself to vote to strike legisla- tion down."

Illinois Bd. of Elections v. Socialist Workers tion down." Illinois Bd. of Elections v. Socialist Workers Party, 440 U. S. 173, 188-189 (1979) (concurring opinion).

Party, 440 U. S. 173, 188-189 (1979) (concurring opinion).

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Perhaps that is why no party has argued seriously that addi- Perhaps that is why no party has argued seriously that addi- tional expenditure of government funds to encourage the use tional expenditure of government funds to encourage the use of screening is a "less restrictive alternative." of screening is a "less restrictive alternative."

Second, the majority suggests decriminalizing the statute, Second, the majority suggests decriminalizing the statute, noting the "chilling effect" of criminalizing a category of noting the "chilling effect" of criminalizing a category of speech. Ante, at 667. To remove a major sanction, however, speech. Ante, at 667. To remove a major sanction, however, would make the statute less effective, virtually by definition. would make the statute less effective, virtually by definition.

IV

My conclusion is that the Act, as properly interpreted, My conclusion is that the Act, as properly interpreted, risks imposition of minor burdens on some protected mate- risks imposition of minor burdens on some protected mate- rial-burdens that adults wishing to view the material may rial—burdens that adults wishing to view the material may overcome at modest cost. At the same time, it significantly overcome at modest cost. At the same time, it significantly helps to achieve a compelling congressional goal, protecting helps to achieve a compelling congressional goal, protecting children from exposure to commercial pornography. There children from exposure to commercial pornography. There is no serious, practically available "less restrictive" way sim- is no serious, practically available "less restrictive" way sim- ilarly to further this compelling interest. Hence the Act is ilarly to further this compelling interest. Hence the Act is constitutional.

constitutional.

V

The Court's holding raises two more general questions.

First, what has happened to the "constructive discourse be- First, what has happened to the "constructive discourse be- tween our courts and our legislatures" that "is an integral tween our courts and our legislatures" that "is an integral and admirable part of the constitutional design"? Blakely and admirable part of the constitutional design"? Blakely

v. Washington, ante, at 326 (KENNEDY, J., dissenting).

v. Washington, ante, at 326 (KENNEDY, J, dissenting).

After eight years of legislative effort, two statutes, and three After eight years of legislative effort, two statutes, and three Supreme Court cases the Court sends this case back to the Supreme Court cases the Court sends this case back to the District Court for further proceedings. What proceedings?

District Court for further proceedings. What proceedings? I have found no offer by either party to present more rele- I have found no offer by either party to present more rele- vant evidence. What remains to be litigated? I know the vant evidence. What remains to be litigated? I know the Court says that the parties may "introduce further evidence" Court says that the parties may "introduce further evidence" as to the "relative restrictiveness and effectiveness of alter- as to the "relative restrictiveness and effectiveness of alter- natives to the statute." Ante, at 673. But I do not under- natives to the statute." Ante, at 673. But I do not under- stand what that new evidence might consist of. stand what that new evidence might consist of.

Moreover, Congress passed the current statute "[i]n re- Moreover, Congress passed the current statute "[i]n re- sponse to the Court's decision in Reno" striking down an sponse to the Court's decision in Reno" striking down an earlier statutory effort to deal with the same problem. earlier statutory effort to deal with the same problem.

690 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION

BREYER, J., dissenting BREYER, J, dissenting in Reno. It incorporated

Ante, at 661. Congress read Reno with care. It dedicated Ante, at 661. Congress read Reno with care. It dedicated itself to the task of drafting a statute that would meet each itself to the task of drafting a statute that would meet each and every criticism of the predecessor statute that this Court and every criticism of the predecessor statute that this Court set forth language from the set forth in Reno. It incorporated language from the Court's precedents, particularly the Miller standard, virtu- Court's precedents, particularly the Miller standard, virtu- ally verbatim. Compare 413 U.S., at 24, with § 231(e)(6). ally verbatim. Compare 413 U.S., at 24, with § 231(e)(6).

And it created what it believed was a statute that would And it created what it believed was a statute that would protect children from exposure to obscene professional por- protect children from exposure to obscene professional por- nography without obstructing adult access to material that nography without obstructing adult access to material that the First Amendment protects. See H. R. Rep., at 5 (ex- the First Amendment protects. See H. R. Rep., at 5 (ex- plaining that the bill was "carefully drafted to respond to the plaining that the bill was "carefully drafted to respond to the Supreme Court's decision in Reno'; S. Rep., at 2 (same).

Supreme Court's decision in Reno'; S. Rep., at 2 (same).

What else was Congress supposed to do?

I recognize that some Members of the Court, now or in I recognize that some Members of the Court, now or in the past, have taken the view that the First Amendment the past, have taken the view that the First Amendment simply does not permit Congress to legislate in this area. simply does not permit Congress to legislate in this area.

See, e. g., Ginzburg, 383 U. S., at 476 (Black, J., dissenting) See, e. g., Ginzburg, 383 U. S., at 476 (Black, J., dissenting) ("[T]he Federal Government is without any power whatever ("[T]he Federal Government is without any power whatever under the Constitution to put any type of burden on speech under the Constitution to put any type of burden on speech and expression of ideas of any kind"). Others believe that and expression of ideas of any kind"). Others believe that the Amendment does not permit Congress to legislate in cer- the Amendment does not permit Congress to legislate in cer- tain ways, e. g., through the imposition of criminal penalties tain ways, e. g., through the imposition of criminal penalties for obscenity. See, e. g., ante, at 674-675 (STEVENS, J., con- for obscenity. See, e. g., ante, at 674-675 (STEVENS, J., con- curring). There are strong constitutional arguments favor- curring). There are strong constitutional arguments favor- ing these views. But the Court itself does not adopt those ing these views. But the Court itself does not adopt those views.

Instead, it finds that the Government has not proved views. Instead, it finds that the Government has not proved the nonexistence of "less restrictive alternatives." That the nonexistence of "less restrictive alternatives." That finding, if appropriate here, is universally appropriate. And finding, if appropriate here, is universally appropriate. And if universally appropriate, it denies to Congress, in practice, if universally appropriate, it denies to Congress, in practice, the legislative leeway that the Court's language seems to the legislative leeway that the Court's language seems to promise.

If this statute does not pass the Court's "less re- promise. If this statute does not pass the Court's "less re- strictive alternative" test, what does?

If nothing does, then strictive alternative" test, what does? If nothing does, then the Court should say so clearly. the Court should say so clearly.

As I have explained, I believe the First Amendment per- As I have explained, I believe the First Amendment per- mits an alternative holding. We could construe the statute mits an alternative holding. We could construe the statute

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narrowly-as I have tried to do-removing nearly all pro- narrowly—as I have tried to do—removing nearly all pro- tected material from its scope. By doing so, we could recon- tected material from its scope. By doing so, we could recon- cile its language with the First Amendment's demands. We cile its language with the First Amendment's demands. We would "save" the statute, "not . . . destroy" it. NLRB, would "save" the statute, "not . . . destroy" it. NLRB, 301 U. S., at 30. Accord, McConnell v. Federal Election 301 U. S., at 30. Accord, McConnell v. Federal Election Comm'n, 540 U. S. 93, 180 (2003) (where a saving construc- Comm'n, 540 U. S. 93, 180 (2003) (where a saving construc- tion of the statute's language "'is fairly possible,'" we must tion of the statute's language "`is fairly possible,"' we must adopt it (quoting Crowell v. Benson, 285 U. S. 22, 62 (1932))). adopt it (quoting Crowell v. Benson, 285 U. S. 22, 62 (1932))).

And in the process, we would permit Congress to achieve its And in the process, we would permit Congress to achieve its basic child-protecting objectives. basic child-protecting objectives.

Second, will the majority's holding in practice mean Second, will the majority's holding in practice mean greater or lesser protection for expression? I do not find greater or lesser protection for expression? I do not find the answer to this question obvious. The Court's decision the answer to this question obvious. The Court's decision removes an important weapon from the prosecutorial arse- removes an important weapon from the prosecutorial arse- nal. That weapon would have given the Government a nal. That weapon would have given the Government a choice-a choice other than "ban totally or do nothing at all." choice—a choice other than "ban totally or do nothing at all."

The Act tells the Government that, instead of prosecuting The Act tells the Government that, instead of prosecuting bans on obscenity to the maximum extent possible (as re- bans on obscenity to the maximum extent possible (as re- spondents have urged as yet another "alternative"), it can spondents have urged as yet another "alternative"), it can insist that those who make available material that is obscene insist that those who make available material that is obscene or close to obscene keep that material under wraps, mak- or close to obscene keep that material under wraps, mak- ing it readily available to adults who wish to see it, while ing it readily available to adults who wish to see it, while restricting access to children. By providing this third restricting access to children. By providing this third option-a "middle way"--the Act avoids the need for poten- option—a "middle way"—the Act avoids the need for poten- tially speech-suppressing prosecutions.

tially speech-suppressing prosecutions.

That matters in a world where the obscene and the nonob- That matters in a world where the obscene and the nonob- scene do not come tied neatly into separate, easily distin- scene do not come tied neatly into separate, easily distin- guishable, packages.

In that real world, this middle way guishable, packages. In that real world, this middle way might well have furthered First Amendment interests by might well have furthered First Amendment interests by tempering the prosecutorial instinct in borderline cases. At tempering the prosecutorial instinct in borderline cases. At least, Congress might have so believed. And this likelihood, least, Congress might have so believed. And this likelihood, from a First Amendment perspective, might ultimately have from a First Amendment perspective, might ultimately have proved more protective of the rights of viewers to retain proved more protective of the rights of viewers to retain access to expression than the all-or-nothing choice available access to expression than the all-or-nothing choice available to prosecutors in the wake of the majority's opinion. to prosecutors in the wake of the majority's opinion.

For these reasons, I dissent.