This mock opinion was produced by Professor James Boyle's Law in the Information Society Class at the Washington College of Law, American University

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Before the Supreme Un-Court of the United States

Janet Reno, Attorney General of the United States, and the United States

Department of Justice


American Civil Liberties Union et al.

Docket No. 96-511

Argument Date: March 19, 1997

Precis Opinion Majority Concurrence Dissent Analysis: Wired & MSNBC Lower Court The Supreme Court's Real Opinion (Real) oral argument

Introduction: This mock opinion was written by Professor James Boyle and a number of students from his Law in the Information Society Class. Thomas Comerford, Christian O'Connell, Rosemary Cavanagh, Eugene Chay, Emily Goldberg-Kraft, Johnny Kim, Jeff Norton and Bill Trumpbour. The opinion was not intended to be a prediction of the way that the case will come out -- indeed it put into the mouths of several of the UN-JUSTICES opinions with which their real counterparts might strongly disagree. The opinion is offered as a guide to the issues involved in the case, an amusing one in places -- we hope. Nevertheless, the majority, concurring and dissenting opinions do cover the central legal issues that must be resolved in Reno v ACLU. (To see the real lower court opinion the Supreme Court is reviewing, click here, to see that opinion's fascinating findings of fact, click here. To find out what the Supreme Court actually decided, click here.)  You can also look at the ACLU's brief or their transcript of the actual oral argument in the case -- portions of which may now be appearing in the status line of your browser. For an article by Brock Meeks of MSNBC discussing our opinion's analysis of the impact of "Push" Internet systems and of technological change on the constitutionality of the CDA, click here. For an article by Ashley Craddock of WIRED discussing our Justice Un-Scalia as an attack on Net-romanticism and the "perfect anti-John Perry Barlow" click here.

The opinion was produced in the space of 10 days, so we hope you will forgive us the occasional lapse in typographic and citation accuracy.

Jump to the Opinion


A majority opinion written by JUSTICE Un-SOUTER strikes down the CDA because it is not the least restrictive means to achieve the compelling state interest in protecting children from indecency, because it is unconstitutionally overbroad and because it is unconstitutionally vague. The majority determines that the Internet is not a pervasive medium, as television is, but declines to classify further the place that the Internet has in the hierarchy of speech technologies.

(Compare this to Justice Stevens real opinion which follows a similar line of reasoning and even hints towards the position put forward by the mock concurring opinion below.)

The concurring opinions of JUSTICE Un-KENNEDY and JUSTICE UN-GINSBURG find that the Internet deserves an even greater protection than the print media and criticize Congress and the President for passing such a law in the first place.

Readers may also enjoy JUSTICE Un-SCALIA's argument in the DISSENT (Un-SCALIA, Un-REHNQUIST and UN-THOMAS).

You may also find his conclusion interesting. He argues that PICS (the Program for Internet Content Selection) has saved the CDA

We hope you find the opinion useful.

Jump to the majority opinion Jump to the concurrence. Jump to the dissent. Jump to the (real) Supreme Court Opinion.

Return to the homepage of the Law in the Information Society Project at American University.

Before the Supreme Un-Court of the United States

Janet Reno, Attorney General of the United States, and the United States

Department of Justice


American Civil Liberties Union et al.

Docket No. 96-511

Argument Date: March 19, 1997

This case involves a First Amendment challenge to certain provisions of the Communications Decency Act of 1996 (the "CDA" or the "Act"). 47 U.S.C. §§ 223(a)(1)(B), 223(a)(2), 223(d)(1), and 223(d)(2) (Supp. I, May 1996). The Act seeks, in part, to regulate indecent material that might be made available to minors.

JUSTICE Un-SOUTER announced the judgment of the Court and delivered the opinion of the Court with respect to Part I, III & IV and an opinion with respect to Part II in which JUSTICES Un-BREYER, Un-O'CONNOR and Un-STEVENS joined.

JUSTICE Un-KENNEDY Delivered an opinion, concurring in part dissenting in part, in which JUSTICE Un-GINSBURG joined.

JUSTICE Un-SCALIA Delivered a dissenting opinion in which JUSTICE Un-REHNQUIST and JUSTICE Un-THOMAS joined.

JUSTICE Un-SOUTER delivered the Opinion of the Court


This case presents First Amendment challenges to two statutory provisions that seek to regulate the transmission of indecent or sexually explicit material to or from an interactive computer service or by means of a telecommunications device. 47 U.S.C. §§ 223(a), (d). Thus, in a number of ways this statute clearly implicates -- and was intended to implicate -- the transmission of indecent, but constitutionally protected speech over the Internet. Neither the ACLU nor the ALA challenge the power of the Federal government to criminalize obscenity or child pornography, both of which were already criminalized before the passage of the CDA. See 18 U.S.C. §§ 1464-65 (criminalizing obscene material); id. §§ 2251-52 (criminalizing child pornography); see also New York v. Ferber, 458 U.S. 747 (1982); Miller v. California, 413 U.S. 15 (1973). The challenge here is solely to the government's authority to regulate "indecent"/ "patently offensive" constitutionally protected speech.

The three judge panel below has given us a lengthy and detailed factual record (American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996)) -- albeit one that arouses the ire of our Brother Un-SCALIA. Admittedly, this Court has an "obligation to test challenged judgments against the guarantees of the First and Fourteenth Amendments, . . . [and thus] this Court cannot avoid making an independent constitutional judgment on the facts of the case." Jacobellis v. Ohio, 378 U.S. 184, 190 (1964) (Justice BRENNAN). On the other hand, this Court is not required to pretend superior knowledge of technical facts on which the lower courts enjoyed the benefit of detailed expert testimony. Thus we have drawn liberally on the factual findings below.

The Plaintiff Appellees focus their challenge on two provisions of § 502 of the CDA, amending 47 U.S.C. §§ 223(a) and 223(d).

Section 223(a)(1)(B) provides that any person in interstate or foreign communications who, "by means of a telecommunications device,"(1) "knowingly . . . makes, creates, or solicits" and "initiates the transmission" of "any comment, request, suggestion, proposal, image or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age," "shall be criminally fined or imprisoned." (emphasis added)

Section 223(d)(1) makes it a crime to use an "interactive computer service" to "send" or "display in a manner available" to a person under age 18, "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication."

Plaintiffs also challenge on the same grounds the provisions in § 223(a)(2) and § 223(d)(2), which make it a crime for anyone to "knowingly permit[] any telecommunications facility under [his or her] control to be used for any activity

prohibited" in §§ 223(a)(1)(B) and 223(d)(1). The challenged provisions impose a punishment of a fine, up to two years imprisonment, or both for each offense.

Plaintiffs in the ACLU action also challenged the so-called Comstock provisions of the CDA criminalizing speech over the Internet that transmits information about abortions or abortifacient drugs and devices, through its amendment of 18 U.S.C. § 1462(c). However, since the government has stipulated a "long standing policy" that such prohibitions are unconstitutional and will not be enforced, the ACLU plaintiffs did not seek a preliminary injunction against the enforcement of § 1462(c).

The key to the government's claims that the CDA is in fact constitutional is provided by the various CDA's "safe harbor" defenses contained in new § 223(e) of 47 U.S.C., which provides:

(e) Defenses

In addition to any other defenses available by law:

(1) No person shall be held to have violated subsection (a) or (d) of this section solely for providing access or connection to or from a facility, system, or network not under that person's control, including transmission, downloading, intermediate storage, access software, or other related capabilities that are incidental to providing such access or connection that does not include the creation of the content of the communication.

(2) The defenses provided by paragraph (1) of this subsection shall not be applicable to a person who is a conspirator with an entity actively involved in the creation or knowing distribution of communications that violate this section, or who knowingly advertises the availability of such communications.

(3) The defenses provided in paragraph (1) of this subsection shall not be applicable to a person who provides access or connection to a facility, system, or network engaged in the violation of this section that is owned or controlled by such person.

(4) No employer shall be held liable under this section for the actions of an employee or agent unless the employee's or agent's conduct is within the scope of his or her employment or agency and the employer (A) having knowledge of such conduct, authorizes or ratifies such conduct, or (B) recklessly disregards such conduct.

(5) It is a defense to a prosecution under subsection (a)(1)(B) or (d) of this section, or under subsection (a)(2) of this section with respect to the use of a facility for an activity under subsection (a)(1)(B) that a person --

(A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology; or

(B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number.

(6) The [Federal Communications] Commission may describe measures which are reasonable, effective, and appropriate to restrict access to prohibited communications under subsection (d) of this section. Nothing in this section authorizes the Commission to enforce, or is intended to provide the Commission with the authority to approve, sanction, or permit, the use of such measures. The Commission shall have no enforcement authority over the failure to utilize such measures. . . .



Standard of Review

A.) Content Neutrality:

The first question presented is the appropriate level of review. This court has repeatedly held that content based regulations are to be analyzed under "strict scrutiny" unless the medium in question allows for a more relaxed standard of review. This decision springs from our fundamental hostility to the state meddling with the content of our national civic debate. As Justice KENNEDY said in Denver Area "In the realm of speech and expression, the First Amendment envisions the citizen shaping the government, not the reverse." ___ U.S. ___, 116 S.Ct. 2374, 2405 (1996). Consequently, "Content-based regulations are presumptively invalid" R.A.V. v. St. Paul, 505 U.S. 377, 382, 120 L. Ed. 2d 305, 112 S.Ct. 2538, 2542 (1992), and we apply to them the "most exacting scrutiny." Turner Broadcasting System, Inc. v. FCC, 512 U.S. , 114 S.Ct. 2445, 2459 (1994). The normal rule, then is that the Government may only "regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest." Sable Communications v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 2836, 106 L. Ed. 2d 93 (1989).

We find that this regulation is clearly content-based and that the standard of review announced in Sable should be applied, absent some reason why the communications medium of the Internet allows some more relaxed standard of review. The Communications Decency Act subjects those who send, or make available certain kinds of speech or image to prosecution, potential fines, and/or imprisonment, precisely because of the Congressional judgement that their "speech" is harmful. That judgement may be well-founded; the Congressional goal may be a worthy one, the regulations themselves may pass constitutional scrutiny -- though here we find they do not -- but these are indubitably content based regulations.

Our brethren Un-SCALIA, Un-THOMAS and Un-REHNQUIST bring forth the ingenious argument that the CDA does not violate the principle of content neutrality because it applies to all indecent speech regardless of the views that speech puts forward. The DISSENT, in other words, focuses on parity of treatment. Mr. Carlin's monologue about the seven (actually 10) dirty words -- a monologue which expressed ironically profane amazement at the illogic in our country's scatological etymology -- would presumably be treated no differently than a simple and un-reflective "flame war" of four letter words in a Usenet newsgroup, an erotic story, or one of the harrowing tales of brutal personal violation recounted on the pages of Petitioner "Stop Prisoner Rape."

Since the liberal purveyor of indecency would be treated as harshly as the fascist, the Catholic as harshly as the Muslim and the satirist as harshly as the boor, the DISSENT concludes that the statute is in fact content-neutral. To this end, they draw on some of our prior cases, most notably Young v. American Mini-Theaters, 427 U.S. 50, 70, 96 S.Ct. 2440, 2452 (1976).

But the DISSENT'S argument proves too much. One might as well say that a law which criminalized speech by registered Democrats was content-neutral since it would punish the words of the Reverend Jesse Jackson no less severely than those of the Dixiecrats who fought to preserve Southern segregation, that it would lock both the defenders and the supporters of the North American Free Trade Agreement in the same jail cell, provided only they were Democrats. The point is, of course, that any regulation of speech could be described as content neutral under this standard. This is simply a matter of playing with the generality of the categories in question; all properly applied speech regulation will treat some kinds of speech equally, or neutrally -- namely they will subject to equal punishment the very class of speech they forbid. But if this is the meaning of "neutrality," the First Amendment has truly lost its teeth. We do not believe this to be so; to the extent that some of our prior cases indicate otherwise, they were in error.

b.) Character of the Medium:

There is a second prong to the inquiry about the appropriate level of review; it is the question of the character of the medium being regulated. One of the key questions in today's First Amendment Jurisprudence is not whether the statute under review is content-based, but whether it is appropriately context-based. As Justice SOUTER pointed out in Denver Area, "Our indecency cases since Pacifica have likewise turned as much on the context or medium of the speech as on its content." 116 S.Ct. at 2401. Throughout this Court's First Amendment jurisprudence, varying levels of review have been applied to statutory schemes that regulate speech in different media of communication. Each medium of expression carries with it special First Amendment characteristics that must be addressed uniquely.(2)

For example, restrictions on protected, albeit indecent, speech in the broadcast medium have been upheld by this Court. See FCC v. Pacifica, 438 U.S. 726, 748-50 (1978). By contrast, we have invalidated statutes completely banning indecent, but protected, sexual expression by phone, in part because the medium requires a listener to take affirmative steps to receive an indecent message. See Sable, 492 U.S. at 127-28 (1989) (applying strict scrutiny). The Court has granted the greatest degree of protection to the print medium. We long ago established that the press should be a forum for 'uninhibited, robust, and wide-open' debate on national issues. See New York Times v. Sullivan, 376 U.S. 254, 270 (1964). This commitment to the sanctity of free expression within the print medium has been used to strike down a statute compelling a right to reply in a newspaper. See Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 258 (1974). On the other hand, a similar state-imposed right-of-reply was upheld in a broadcast context. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 23 L. Ed. 2d 371, 89 S.Ct. 1794 (1969) (employing "highly flexible standard" of review premised in part on the problem of bandwidth scarcity.) In the context of cable TV regulations we warned against "judicial formulae so rigid that they become a straitjacket that disables Government from responding to serious problems," and applied a scrutiny that was not "strict" but was "close." Compare Denver Area, 116 S.Ct. at 2385 (test for constitutional content based statute regulating cable based TV stations is that it "properly addresses an extremely important problem, without imposing, in light of the relevant interests, an unnecessarily great restriction on speech") with Sable (requiring compelling state interest and least restrictive means). The Court has even established different levels of protection for billboards, Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 501, 101 S.Ct. 2882, 2889 (1981) and drive-in movie theaters, Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268 (1975).

In sum, different levels of review as well as different levels of substantive protection are accorded for speech in different media; with the print medium enjoying the most protection and the broadcast medium enjoying the least. This case demands that we decide just where the Internet fits in the hierarchy of speech technologies. The government has argued that -- at least in the context of statutes such as the CDA which regulate indecency -- we should view the Internet as akin to the broadcast medium and as subject to that medium's more "relaxed" standard of review. This argument was rejected by the three judge panel below, partly because of that court's extensive findings of fact about the technological characteristics of the Internet. Though the three judge panel provided a richly detailed record, our institutional responsibility in a case of this kind is to review both findings of "constitutional fact" and the law based upon them. Bose Corp. v. Consumer's Union of United States, 466 U.S. 465, 508,104 S.Ct. 1949, 1964 (1984). In such a situation a return to first principles is not only salutary, but constitutionally mandated.

There has been some confusion surrounding the reasons this court has articulated for subjecting the broadcast media to a different standard of review than print technologies. In Red Lion the imposition of a right of reply was granted on the basis of spectrum scarcity, a scarcity that tilted the balance of First Amendment freedoms -- as well as the appropriate standard of review -- away from the rights of the broadcaster-speaker; "[w]here there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish." Id., 395 U.S. at 388, 89 S.Ct. at 1806. (In Miami Herald this court was unmoved by the argument that geographical and economic monopolies of the print medium -- particularly in a single newspaper town -- might produce the same result, a fact that is of some significance for the Internet.)

In Pacifica on the other hand, the issue was not a compulsory "right-of-reply" but rather the constitutional limits on the FCC's power to prohibit broadcasters from airing indecent material at a time when it might be heard or seen by children. The Pacifica court offered an opinion narrowly confined to its own facts -- and to the context of an administrative rather than a criminal penalty -- which has nonetheless launched a thousand legal theories.

Essentially, the Pacifica court focused on two characteristics of the broadcast medium -- pervasiveness and accessibility to children.


First, broadcasts have a "uniquely pervasive presence in the lives of all Americans." 438 U.S. at 748, 98 S.Ct. at 3040. The court stressed that "patently offensive, indecent [broadcast] material ... confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder." Id. at 748, 98 S.Ct. at 3040. Apart from being a medium that "enters the home" -- a characteristic, which as the DISSENT points out, broadcast shares with the Internet -- the Pacifica court stressed the inability of the audience to pre-screen the potentially offensive material. "Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow." Id. at 748-749, 98 S.Ct. at 3040.

Accessibility to Children:

Both Pacifica and the CDA lay great stress on this factor. "Broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written message might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary in an instant." Id. at 749, 98 S.Ct. at 3040.

The court below found the government's comparison of the broadcast medium to the Internet to be misplaced. ACLU v. Reno, 929 F. Supp. 824, 844 (E.D. Pa. 1996). We agree.

True, messages, images and sounds sent over the Net, or downloaded from some remote site, will often be received inside the home, just as in the case of broadcast medium. But a key aspect of the Pacifica opinion was its focus on the assaultive, unexpected quality of broadcast programming. In comparison, most of the forms of communication lumped together under the name of the "Internet" allow users to choose the content they receive before receiving it. These, after all are not broadcast media, in which content is distributed from a single source to all receivers tuned in at that moment. As the findings of fact of the court below make clear, most of the Internet -- and the World Wide Web in particular -- is a so-called "pull" medium, in which the user selects the material he or she wishes to receive. A person using the World Wide Web will almost always have some notice of the type of file they are about to be sent. Most search services carry brief descriptions of the content they retrieve in response to a search, links from other documents usually contain strong intimations as to the character of the linked site and the titles and "URL's" of the sites themselves generally offer some clues.

The three judge panel below intimated a better analogy would be to the telephone, because both the telephone and the Internet require the user to take affirmative steps to retrieve specific information. ACLU v. Reno, 929 F. Supp. 824, 844 (E.D. Pa. 1996). In fact, during fact-finding the government conceded that it is unlikely an Internet user would inadvertently encounter a sexually explicit site on the Internet, id., in a fashion similar to a radio listener encountering an indecent broadcast on the radio. The DISSENT makes much of the fact that the Web is not the entire Internet; they point out that e-mail and the new "push" technologies have the potential to assault a viewer with an unwanted indecent messages or image. The constitutional classification of media cannot turn on this sort of hypothetical technological potential. We find that the Internet as a medium does not assault and surprise a user in the manner this Court found offensive in Pacifica.

This point is strengthened if one considers the intended beneficiaries of the CDA -- minors. It is important to note that, in general, accessing indecent material on the Internet requires a great deal more sophistication on the part of the child than does television or radio. In this respect, the Internet is closer to the print medium and the telephone; at least some ability to read is required as well as a series of affirmative acts by the user that are more complicated than turning a dial. Clearly then, the Internet should be accorded at least as high a level of First Amendment review as that accorded the telephone medium in Sable.


Classifying the Internet

Our Brethren Un-KENNEDY and Un-GINSBURG would go further. They suggest that the Internet is most closely related to the print medium, and should enjoy the same, if not greater, protection from government regulation. Their argument is the same as that raised in the court below; the Internet actually has more of the "press-like" factors that compel First Amendment protection than does the press itself -- a press controlled by relatively few powerful media companies, a press which imposes heavy burdens on those who wish to get access to its pages and which is frequently -- on the local level -- a de facto monopoly. As Judge Dalzell put it,

In part, we agree. Of all forms of communication, the Internet has achieved "the most participatory marketplace of mass speech" ever known ACLU, 929 F. Supp. at 881, and should be protected as such. The Internet has had a "democratizing" effect; an individual citizen can speak on an issue of concern to potentially a global audience at very little cost and be assured of a relative degree of parity in his message relative to other messages. The result has been a "diversity in the marketplace of ideas" hitherto unimaginable. In fact, it could be argued that the demand for speech restrictions on the Internet has been produced in part by the very success of the medium in achieving both wide diversity and wide availability of speech. Nevertheless, while we believe that it is precisely this type of diverse exchange in ideas our Constitution was intended to protect, we are reluctant to take the dramatic step of according to the Internet the same level of protection as that of the traditional print medium.

As I argued in Denver Area,

One year has done nothing to change the essentially protean quality of the technologies that we face, nor has it erased our level of uncertainty about the appropriate level of protection. If anything both have increased. We will rest here with the conclusion that the Internet is not subject to the broadcast medium's relaxed standard o review, leaving it to time and technology to make clearer what more permanent place the Internet will be given in our First Amendment jurisprudence.

Thus, since this is a content-based regulation and the medium is not subject to the more relaxed standard of review accorded to television and radio, the Communications Decency Act must be scrutinized under the strict scrutiny standard laid down in Sable.


Least Restrictive Means

The government may only "regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest." Sable 492 U.S. 115, 109 S.Ct. 2829. In meeting that heavy burden, the Government must "demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." United States v. National Treasury Employees Union, 115 S.Ct. 1003, 1017 (1995) (citing Turner, 114 S.Ct. at 1017).

The first part of the analysis is simple. We have repeatedly held that "there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards." Sable Communications v. FCC. See also __ __. The key question however is whether the CDA itself is the least restrictive means to shield children from indecent but constitutionally protected speech. An imperfectly understood corollary is that we must ask whether the regulation will actually work; the least restrictive means test obviously cannot be met by a statute that significantly restricts the constitutionally protected speech of adults without materially alleviating the harm of indecent material available to children. First Amendment freedoms may only be sacrificed for compelling goals that are demonstrably achievable by the means employed; they may not be sacrificed on the altar of "good intentions," or election year posturing, without discernible result. In crude terms the CDA is unconstitutional if it reaches too broadly, or if it would not actually work.

The court below held that the CDA failed at least the first part of this test and probably the second. "Whatever the strength of the interest the government has demonstrated in preventing minors from accessing 'indecent' and 'patently offensive' material online, if the means it has chosen sweeps more broadly than necessary and thereby chills the expression of adults, it has overstepped onto rights protected by the First Amendment." (Citations omitted) Despite its recognition of the compelling interest in protecting children, this court has held that regulations cannot achieve that goal by "limiting the content of adult [communication] to that which is suitable for children." 492 U.S. 115, 131 (1989). The court has invalidated complete bans on indecent -- but constitutionally protected -- speech, arguing that these "burn up the house to roast the pig." See Butler v. Michigan, 352 U.S. 380, 383 (1957). In another decision cited by appellees, the court struck down a ban on mail advertisements for contraceptives, declaring that "[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox." Bolger v. Young's Drug Products Corp., 463 U.S. 60, 74 (1983).

In Pacifica the radio station could reschedule Mr. Carlin's monologue for a time of day when children would be unlikely to be listening. On the Internet, time segregation is impossible. In its place, the CDA offers a variety of technological and other mechanisms to age-segregate the audience for Internet speech. If speakers on the Net use these mechanisms they are offered a safe-harbor from the reach of the Act. Thus the practicability of the defenses is the key to the constitutionality of the Act. If these defenses are in fact impractical or unduly onerous, the CDA would amount either to a complete ban on indecent speech, or a proscription of indecent speech which sweeps so widely that it chills protected adult communication in its attempts to protect children. Our precedents indicate, and we hereby affirm, that neither of these alternatives is constitutionally acceptable.

The most important defenses in this regard are those provided in § 223(e) 5.

The three judge panel below found that subsection 5. B) would be of little use in the attempt to screen out minors for most speakers on the Internet. We would go further. If anything, the court laid insufficient stress on the fact that these mechanisms would be completely unavailable to a substantial portion of the traffic of the Net. A sender of e-mail may have some sense about the age of its recipient, but even this vague hope cannot be offered for users of e-mail Listserv "mail exploders" or Usenet newsgroups, who would never be able to tell who might read their messages.

Even in the context of the World Wide Web, the provisions of section 5. B.) offer an impractical safe-harbor. Because credit card companies would be unwilling to "verify" unless payment was made for the service or a commercial transaction involved, "verification by credit card... remain economically and practically unavailable for many of the non-commercial plaintiffs in these actions." ACLU v. Reno Finding 99. Requiring credit card verification would also impose unacceptable delay and would also have the unconscionable effect of barring adults who did not have the resources to qualify for a credit card. So-called "cgi script" services are technologically more complex, are not available on most servers and would still require methods of verification. Adult verification by password or identification number would have similar problems. The administrative effort to implement such a scheme would be high while "[s]ome, if not almost all, non-commercial organizations, such as the ACLU, Stop Prisoner Rape or Critical Path AIDS Project, regard charging listeners to access their speech as contrary to their goals of making their materials available to a wide audience free of charge." ACLU Finding 104. Finally, to repeat, these methods simply would not work for the greater part of the traffic on the Internet, namely e-mail.

Thus, the entire weight of the government's argument rests on subsection 5. A.) The principal method offered by the government was that of tagging. The government's expert, Dr. Olsen testified that an "-L18" tag could be affixed to all indecent material on the World Wide Web. The -L18 tag is the name of an hypothetical blocking scheme of Dr. Olsen's, a scheme which apparently exists nowhere beyond the pages of the Federal Reporter. Owners of pages on the World Wide Web could tag any page containing indecent material with the prefix or suffix -L18. A more sophisticated version of the same technology -- PICS -- was described by the appellees, though to very different effect.

The Program for Internet Content Selection or 'PICS" has been developed by a consortium centered at MIT. When fully implemented, this program would permit the generation of both first party (speaker based) and third party (intermediary based) tagging schemes. The tags would be embedded in the so-called "Metafile" information which, as its name suggests -- provides a Web browser with information about the file it is about to download. Thus in a PICS compliant Web, a content provider would have the ability to rate its material on any rating scale it chose -- for violence, sensuality, profanity, anti-religious themes, cruelty to animals, sexism, adherence to the manifest truths of Zoroastriansim or what-have-you. These rating scales would presumably be developed by third party rating services, which could also rate the offerings themselves independently, regardless of whether they had been rated by the content provider. A "PICS enabled browser" or Internet navigation program configured to recognize and read these tags, would block any files in a disfavored group, either by simply reading the tag on the particular file or by retrieving all of its files through the server of the filtering organization and having the content-filtering performed at the server level.

All of this detail was provided by the ACLU and ALA appellees as a way of demonstrating that the CDA is not the least restrictive means to achieve the compelling interest in protecting children from indecency. In fact, they argue, there are many less restrictive technological methods for parents to achieve the same level of protection, without state intervention. Apart from PICS, there are blocking or filtering programs such as Cybersitter and SafeSurf that reside on the user's computer and automatically block access to proscribed sites. Some sites are listed within the program itself, others identified as undesirable because the sites contain forbidden words or phrases. Given all of these resources available to parents, argue the appellees, the CDA is clearly not the least restrictive means to achieve the compelling interest.

The PICS argument almost proves too much. There is a certain irony to the fact that PICS, developed as a technology to prove that the CDA was unnecessary (and therefore unconstitutional) comes closer than the government's hypothetical -L18 technology to providing an acceptable safe harbor for speakers who wish to evade criminal prosecution yet also wish to keep the level of their discourse above that of the sandbox. Does PICS, then, save the CDA?

We hold that it does not. While much has been made of the technological ease of adding PICS or other tags to the files on a Web site, three factors militate against the conclusion that PICS-like systems provide a sufficient safe-harbor. First, it is not the labor of adding the tag but the labor of rating the changing contents of a Web site that imposes an intolerable burden on speakers, many of whom would be forced from the marketplace of ideas if they had to function constantly as both speakers and reviewers of their own speech. Second, as we pointed out before, solutions like PICS are primarily useful on the Web; they have little effect on the Internet's other methods of transmission, such as e-mail. This is not a wide enough safe harbor to save the statutory scheme. Finally, these tagging and ratings schemes -- while promising -- are at least in constitutional terms, still "vaporware." Only a few sites are actually rated on the PICS scale, the browser that dominates the market is not yet PICS compliant and a great deal of technological, economic and content rating activity has to transpire before this promising line of censorware becomes more reality than manifesto. What's more, most of this activity would be outside of the control of the actual speakers on the Net. This court has done many things in the free speech area. It has not however premised the actual constitutionality of a criminal statute on the possible development of hypothetical blocking schemes by non-interested third parties. It is not about to start now.

The CDA fails the least restrictive means test for another reason. As the court below pointed out.

ACLU at ___.

If more than one third of the Internet's content comes from outside the United States, it is hard to see how the CDA can be presented as a "regulation [that] will in fact alleviate these harms in a direct and material way." United States v. National Treasury Employees Union, 115 S.Ct. 1003, 1017 (1995) (citing Turner, 114 S.Ct. at 1017) There is no reason to suppose that the CDA will -- or should -- be successful in extraterritorial attempts to control all indecency on a global net. Thus we are faced with a regulation that is overbroad, that sweeps protected speech within its ambit, and yet that does not adequately achieve its stated goal. We therefore find the challenged provisions of the CDA to be unconstitutional as overbroad, and in general, find that the CDA's provisions are not the least restrictive means to achieve the result sought. We do not hold today, as our Brethren Un-KENNEDY and UN-GINSBURG would have us hold, that practically no regulation of indecent speech on the Internet could pass constitutional muster. But we also decline to lay out the framework of a permissible statute. In this context case-by-case adjudication is to be preferred. When Congress revisits this issue, as surely they will, come election-time, we will be happy to tell them whether they have failed once more.



"Liberty finds no refuge in a jurisprudence of doubt." Planned Parenthood v. Casey, 112 S. Ct. 2791. JUSTICE O"CONNOR. As Justice O'Connor pointed out in the very different context of Casey, uncertainty about the law is inimical to the very liberty that law is supposed to protect. Where a law fails to provide adequate warning of what behavior is in fact criminal, it violates the Due Process Clause of the Fifth Amendment. See Grayned v. City of Rockford, 408 U.S. 104, 108-09, 33 L. Ed. 2d 222, 92 S.Ct. 2294 (1972). In addition, if that law regulates freedom of expression and is sufficiently vague that it fails to convey to persons of ordinary intelligence which conduct is prohibited and which allowed, it will violate the First Amendment. The freedom of speech is one of the most cherished freedoms contained in the Bill of Rights and is not to be infringed by murky rules that invite cautious private self-censorship and arbitrary public enforcement. "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes,'" and this is particularly true of laws "`having a potentially inhibiting effect on speech . . . .'" Hynes v. Mayor of Oradell, 425 U.S. 610, 620 (1976) (quoting Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939), and Smith v. California, 361 U.S. 147, 151 (1959)).

Is this law void for vagueness? The initial difficulty is posed by the statute's use of two terms indecent and patently offensive. The government insists and the court below accepted that these two terms, used in two different sections, are in fact meant to cover the same material. We accept this argument with some trepidation as counter to the basic rules of statutory construction, but apparently acceptable here. Thus we will limit our discussion to § 223 (d) in the belief that this is intended to be the general definition of proscribed indecent material.

47 U.S.C. § 223(d), prohibits the sending or display of material that, "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." The definition is drawn -- all but the added phrase "in context" -- directly from the FCC decision upheld in Pacifica.

At first blush, it would seem hard to find such a definition void for vagueness. As another three judge panel scrutinizing the CDA put it "The definition of material regulated by this section is a familiar one, repeatedly upheld against vagueness challenges in a line of jurisprudence concerning television and radio broadcasting, cable programming, and commercial telephone services." Shea v. Reno at __. In our recent Denver Area decision, various members of the court gave strong, if Delphic, support to the validity of the Pacifica definition of indecency. The lower courts have also assumed that very similar definitions of indecency can withstand constitutional scrutiny. "If acceptance of the FCC's generic definition of 'indecent' as capable of surviving a vagueness challenge is not implicit in Pacifica, we have misunderstood Higher Authority and welcome correction." ACT I, 852 F.2d at 1339-40.

We do not retreat from those holdings today. In the context of the media in which it was upheld, the Pacifica definition of indecency still stands. This case and this medium are different. First, we find that community standards for protected speech cannot be precisely defined for the Net and thus that any definition of indecency which relies on community standards is void for vagueness.

Community Standards

Defining community standards has proven vexing for this court in the past, and the CDA's criminalization of indecent communications found in § 223, proves most problematic when applied to the electronic community. Because the Internet reaches to all jurisdictions of the world, including ones outside our reach, the question of whether electronic content falls within the auspices of the CDA requires scrutiny different from this Court's past assertions. We have changed our methods of determining indecency as our country has grown, and must recognize today that the Internet pushes such analysis to, perhaps, its final apex.

The early discussions of community standard come in the analysis of obscenity rather than indecency. Many early U.S. courts defined community standards based on the Hicklin Test which allowed material to be judged solely on the judgment of individual susceptible persons judging the most isolated excerpt from a given source. Regina v. Hicklin, L.R. 3 Q.B. 360 (1868). Noting this standard as overly restrictive to the freedoms of press and speech, the Court replaced this standard with "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest." Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311. We further conditioned our guidelines in Miller v. California applying a three part test which required the trier of fact to determine "(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest...; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value." 413 U.S.15, 24, 93 S.Ct. 2607, 2615.

While we have worked to develop acceptable standards for determining obscenity, each instance of such application has been based on geographic application of community standards. For example, in Miller, we supported the use of the state of California as determinative of community. Miller 413 U.S. at 30-31. Other courts have followed our lead.(3) What's more obscenity is unprotected speech. When we transpose our holdings on community definitions of obscenity to the realm of protected, albeit indecent, speech, even greater care is called for.

The community standards of the electronic medium under attack cannot be defined in geographic terms. Information transferred via the Internet may move throughout every jurisdiction of our nation as well as the world. Because the Internet is composed of individual users sending information into this world-wide electronic infrastructure the geographic community standard we have relied on has lost its practical applicability. By applying such a standard, we would force each individual using the Internet to conform each data transmission to the standards of the most restrictive community affording Internet access. Such a geographic standard would chill speech protected in some jurisdictions at the service of locations with more stringent standards of speech and would adversely affect the free-market of ideas supported by members of this Court in the past.(4)

The mores of one community may not mesh with the mores of another. Similarly the needs of communities differ. By applying the CDA's requirements, we actually destroy the ability of communities to effectively govern what is proper and what is needed locally by creating a national standard defining patently offensive from the viewpoint of the most conservative of locales. We have rejected this in the past and have recognized that applying such a standard would prove untenable. Justice Warren discussed the problem of a national obscenity standard in Jacobellis v. Ohio stating, "It is my belief that when the Court said in Roth that obscenity is to be defined by reference to 'community standards,' it meant community standards--not [a] 'national standard[]' ... this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one." 378 U.S. 184, 200, 84 S.Ct. 1676, 1685. Similarly, this Court questioned the utility of applying such a standard. "It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City. Miller, supra at 32.

Numerous Amici have expressed their realistic fears of the chilling of information under the rule of the CDA. By applying the community standards of the most restrictive communities of our country, we certainly would deny access of information on subjects such as AIDS education, human rights, prenatal care, abortion, contraception and rape to cities and states who favor access to such materials. Various news organizations have also suggested that the CDA would quell the free flow of information which they provide on-line.

A further problem exists in light of our inability to prosecute those outside the reach of United States law. The Internet is global in nature. While placing restraints on Internet users within the United States may diminish the level of materials deemed improper by certain communities, it will not eradicate what such individuals will find to be offensive nor will it stop access to forums patently illegal under our laws. Attempting to apply community standards to such a medium will prove impracticable and will only foster off-shore movement of entities who desire to make their information available. Indeed, "thirty percent of the sexually explicit material currently available on the Internet originates in foreign countries." Shea v. Reno, 930 F. Supp 916, 931 (S.D.N.Y. 1996).

It is true, as the DISSENT reminds us, that this court has already held "[t]here is no constitutional barrier under Miller to prohibiting communications that are obscene in some communities under local standards even though they are not obscene in others," Sable Communications v. FCC, 492 U.S. 115, 125-26, 109 S.Ct. 2829, 2836. But this argument misses the point. We (implicitly) premised our reasoning in Sable on the ability of the defendant, a provider of adult telephone messages, to screen the area-code origin of incoming calls through caller ID. While -- technically -- feasible in the telephone medium, such an approach will not work on the Internet. The Internet works on a different dynamic, one which allows any user to place or retrieve information within its realm. Because no individual can control with absolute assurance who will access information placed on the Internet based on location, the reasoning this Court fashioned in Sable to allow the application of individual community standards would be so vague as to chill speech irremediably.

We do not hold today that the Miller community standard definition of obscenity is void for vagueness. Obscenity is unprotected speech and thus less of a danger may be posed by vagueness -- at least on the margins. In addition the Miller test contains additional qualifications -- artistic merit and so on -- on which a defendant prosecuted under the CDA could not rely. These may function to add the necessary element of constitutional starch to Miller in cyberspace. But as to indecency on the Net, the community standards test is simply too vague.

Criminal Sanctions and Prosecutorial Indecision

Three other factors compel us to find this definition void. First, this is a criminal prosecution, not an administrative hearing as in Pacifica, nor the granting of a permission to a private party to screen for content as in Denver Area. Our scrutiny for vagueness will be correspondingly more rigorous. Second, we have the best possible evidence for the vagueness of the statute. The government -- to say nothing of the sponsors of the Bill itself -- cannot agree on its meaning. In this case the government has insisted that the CDA encompasses only commercial pornography, a term with no legal meaning. To define one imprecise but nevertheless familiar statutory term with another undefined term does not induce confidence in the clarity of the language at issue. At times, it has almost seemed that the government would only interpret the CDA to criminalize obscenity -- which was of course already criminalized on-line. Yet the government's expert witnesses also opined that a magazine cover featuring a naked Demi Moore would be obscene. This hardly fits under the definition of commercial pornography. See Gov't Brief at 34-35. As appellees ACLU point out, the confusion runs deeper,

In the face of such murky, inconsistent statements and in the context of a global distributed packet switched network, this court will not pretend that we -- or we suspect -- the government or the citizenry, would have the slightest idea what counts as indecent. We find the definition of indecency in the Act void for vagueness.

JUSTICE Un- KENNEDY delivered an Opinion in which JUSTICE Un-GINSBURG joined, concurring in the Judgement and in Parts I, III & IV of the Opinion of the Court and Dissenting with respect to Part II.



The Internet Should be More Protected than the Print Medium

The court is of course correct to find that the CDA is content based restraint on speech, subject to but incapable of meeting strict scrutiny; in particular the CDA is not the least restrictive means to achieve the compelling interest sought, its proscriptions are unconstitutionally overbroad and void for vagueness. All of this is apparent, even to an untutored eye, on first reading. The more interesting questions remain.

Historically, the advent of novel communications technology has led us to consider that technology's impact on First Amendment rights of free speech and free press.(5) My Brethren say we are facing another novel communications development in the form of the Internet, with ramifications that must be considered in light of the First Amendment.

If I understood the majority correctly to mean that we must find a place for the Internet in the strange morass of partially disabled constitutional protections that we offer to the post-print media, then I disagree.

While I wholeheartedly join with my Un-Brethren in concluding that the Internet must enjoy a higher standard of protection than the "relaxed standard of review applied to the broadcast media, I feel that this is only half of the question. What level of protection, then, should the Internet enjoy? Sadly, the majority has deferred the opportunity to establish clearly a legal standard that would abandon our previous halting attempts at analogy and recognize instead the unique and unprecedented features of the Internet as a medium for speech. By according the Internet a level of First Amendment protection superior even to that heretofore granted to traditional print media, this Court might have advanced the development of the legal framework which must be in place for the Internet to fulfill its truth-seeking and democratizing potential. That an individual may discuss any matter of public concern without prior restraint is a fundamental principle of American law.(6) In its current state the Internet functions as a "people's press" where individuals can discuss with a worldwide audience "supposed grievance and proposed remedies."(7)

As this Court has traditionally viewed it, the First Amendment's guarantees of freedom of expression serve two fundamental goals. The first of these is to maintain an uninhibited marketplace of ideas where, in the clash of divergent perspectives, the truth may eventually prevail. Red Lion at 390. The second, closely related, aim is to foster participatory democracy by providing an opportunity to participate in public and political discourse to those members of society who would otherwise be excluded. In a free society, "however pernicious an opinion may seem, we depend for its correction not on the consciences of judges or juries [or, I might add, of legislators] but on the competition of other ideas." Gertz, 418 U.S. at 339-40. The seeker after truth and even decency ultimately has nothing to fear from the marketplace of ideas. On the contrary, "[t]he steady habit of correcting and completing his own opinion by collating it with those of others, so far from causing doubt and hesitation in carrying it into practice, is the only stable foundation for a just reliance on it...." J. S. Mill, On Liberty

The print media are traditionally viewed as the purest incarnation of this marketplace, and enjoy the fullest protections of the First Amendment. Indeed, it is a commonplace that the intellectual vigor and the diversity of creative expression exhibited in print in America owe a cardinal debt to "the virtually insurmountable barrier between government and the print media" erected by the First Amendment. Tornillo, 418 U.S. at 259 (WHITE, J. dissenting). Yet in reality, the print media too often are susceptible to the same criticisms leveled at broadcast or other media. Practical obstacles limit meaningful access to print markets, with the result that economic power can equal a disproportionate presence -- a select few voices have the means to communicate their ideas to the public.

The Internet takes a step toward tearing down those restraints and enabling us to realize our Founding Fathers' goals. "Those who won our independence ...believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth... "(8) As Judge Dalzell of the three-judge panel below noted, if we place a premium on protecting speech in print--how much more should we devote ourselves to protecting a medium like the Internet, which succeeds where print fails to create an approximation of the "ideal market" for ideas, and furthers the goals of the First Amendment more than the print media in every significant respect?

The Internet is the most speech-enhancing communications medium ever devised. The practical and economic barriers to entering the medium are, as the panel below found, far lower than for print. The capacity of this new medium to disseminate ideas and to inform is virtually unlimited by geographic or temporal considerations. It creates an unprecedented democratic equality among an incredibly diverse chorus of voices. Moreover, the Internet is by its very nature a participatory and interactive medium, where the distinction between speakers and listeners in discussion and debate is collapsed in a manner foreign to print media.

Admittedly this will be hard step for some of us, and I include myself, to take. We are changing a venerable tradition. After all the First Amendment does not speak of freedom of the newsgroup or the Web page, but the freedom of the press. Thus far, the press has functioned as the primary conduit for information that helps us on our voyage of self discovery and self defined truths. Yet we must look beyond the idealized image to the reality of media conglomerates and mediocre intellectual orthodoxies. When we do so, we will find that we have no basis for denying the Internet its rightful place at the pinnacle of speech technologies. Individuals face the reality that many communities have one newspaper, that the corporations whom own much of the newspaper industry also control television, radio, and cable stations. Owners, as is their right, exercise control over what is printed. We do not allow the State to require that the newspaper publish opposing views.(9) To regulate what the press must publish would be to strike at the heart of the First Amendment. Paradoxically, the result is that a community is exposed to limited viewpoints and limited participation.(10)

However, with the advent of the Internet, speakers, listeners, debaters who were previously constrained, have a place to communicate with others of like and unlike mind. The Internet as it stands now functions in the best American tradition by providing a forum for "free trade of ideas"(11) to those heretofore silenced by practical realities. Not only do speakers have a forum, but those who would learn have access to an infinite font of information. The "netizen" is no longer limited to information seen through the glasses of a few entities. As such in the best American tradition, we should accord the "people's press" all the protection the First Amendment allows to the "hard copy" press.

In the brave new world of the information society, the Internet, rather than the public papers, will serve as the "expeditious messenger[] of intelligence to the most remote inhabitants of the Union." Alexander Hamilton, Federalist 84. If my Brethren truly grasped the import of this, I feel certain that they would join with me in declaring that the Internet has earned, and will continue to earn, the right to succeed the print media atop the pedestal of First Amendment jurisprudence. After doing so they would realize that there is a third reason why the CDA is unconstitutional. Congress simply lacks the constitutional authority to regulate indecency on the Internet at all.


Congress and the President Violated their Constitutional Responsibilities

I turn now to a more disturbing aspect of the case before us. The adoption of the CDA was accompanied by unusually close attention from all quarters--the press, the academic and professional legal communities, civil libertarians and sundry advocacy groups. Much of this public attention was focused upon the potential conflict between constitutional protections on speech and the criminal indecency provisions of the Act.(12) The legislative history of the CDA reveals that Congress was aware that it was treading on dangerous First Amendment ground.(13) Those members of Congress who drafted and supported the passage of the CDA, as well as the President, who signed it into law, enacted a piece of legislation that they ought to have realized -- and, I suspect, did in fact realize -- was in numerous respects at variance with the Constitution. Indeed statements to this effect were entered into the public record.(14)

This being so, I cannot refrain from reminding the executive and legislative branches that the Judiciary, and particularly this tribunal, is not alone in bearing an obligation to construe the Constitution in the course of its work. Welsh v. United States, 398 U.S. 333, 370 (1970) (White, J., dissenting). The notion that the several branches of the federal government are under a civic duty to scrutinize their own official acts in the light of the Constitution has extended throughout our nation's political history.(15)

Referring to the legislative branch, James Madison remarked that "[I]t is incontrovertibly of as much importance to this branch of the Government as to any other that the Constitution should be preserved entire. It is our duty, so far as it depends on us, to take care that the powers of the Constitution be preserved entire to every department of Government." 1 Annals of Cong. 500 (Joseph Gales ed., 1789). While acknowledging that the central responsibility for constitutional construction devolved upon the judicial branch, Madison deplored the notion of a legislature that would abjure its duty of judgment and merely defer to the Judiciary.

Abraham Lincoln similarly exhorted the political branches not to suspend their own critical faculties in matters of constitutional discernment. In the wake of this Court's ignominious decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), Lincoln observed: "[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court,the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal." III The Collected Works of Abraham Lincoln 255 (Basler ed., 1953).

True, from time to time, (as, for example, as during the Reconstruction era) Congress has lapsed into a more or less sustained disregard for constitutional limitations, and passed laws clearly unconstitutional. Screws v. United States, 325 U.S. 91, 140 (Roberts, Frankfurter and Jackson, JJ., dissenting). Such is, strictly speaking, its right. Nevertheless, I am disheartened that Congress and the President chose to send a statute with constitutional infirmities as manifest as the CDA's on a collision course with the courts, when a modicum of willingness to reach (and act upon) independent constitutional conclusions might have avoided the confrontation altogether, and thereby better served the public. As I wrote recently in connection with another ill-fated federal statute, the Gun-Free School Zones Act, "it would be mistaken and mischievous for the political branches to forget that the sworn obligation to preserve and protect the Constitutionis their own in the first and primary instance." United States v. Lopez, ____ U.S. ____, 115 S. Ct.1639 (1995) (Kennedy, J., concurring).

Perhaps the deepest mischief that results when the political branches shirk their obligation to evaluate in good faith the constitutionality of their own acts is that the citizenry is deceived. If Congress and the President, for reasons of political expediency or otherwise, purposely enact laws which they know will not pass Constitutional muster in the courts, they have evaded their own responsibility and -- perhaps -- deceived a citizenry less well informed or advised as to the details of the Constitutional jurisprudence. The accountability of the executive and legislative branches is thereby diminished--simply put, the public will not know whom to blame. It ill befits a representative government to invite such an obfuscation of the lines of political responsibility. In fact, this Court has already reached an analogous conclusion in New York v. United States, 505 U.S. 144, 168-69 (1992), where we observed that requiring States to legislate federally mandated measures unacceptably insulates federal officials from electoral accountability. In this case it is the courts rather than the state governments that bear the blame. The principle, however, is the same. Thus the legislative branch wastes its time producing materials it knows to be null and void, rather than attempting to solve the urgent problems that confront our nation, while the courts have to spend time and precious legitimacy striking at laws that should never have been passed. If this colossal waste of public time and money were not scandal enough, the public is told that "the judges" won't let the people have their way. Convinced -- by those who occupy the public limelight -- that this is the case, they begin to lose their faith in the judiciary, who -- by constitutional design -- cannot resort to press releases and attack faxes to defend themselves. The problem is one of genuine import. When the next Brown v. Board of Education comes before us, will the courts have left the necessary legitimacy to carry the republic forward? If the Congress continues to use us as the preferred means of disposal for its sillier vote-getting devices, the legislative toxic waste dump, the answer, I think, is 'no.'

JUSTICE Un-SCALIA delivered a Dissenting Opinion in which JUSTICE Un-Rehnquist and Un-THOMAS joined.


The Court continues to amaze me. I had thought that Planned Parenthood v. Casey, 112 S. Ct. 2791. marked the nadir in this institution's flighty tendency to shirk its duties whenever those duties conflicted with the complacent political certainties of the chattering classes. I find today that I had underestimated both my Un-BRETHREN and the knowledge class they apparently believe themselves tasked to represent. The worst was yet to come.

The Court today finds that a content-neutral provision, Young v. American Mini-Theaters, meeting an admitted compelling state interest, Pacifica, using the very words of a test we have repeatedly upheld, Pacifica, Sable, Denver Area is unconstitutionally vague -- though not as vague as the majority's own words -- and is facially overbroad. It does this despite the fact that we may not find a statute unconstitutional unless it has no interpretation that would be constitutional, despite the fact that the government actually offers a redeeming statutory interpretation -- one we we are bound to accept -- and despite the conclusive contrary evidence offered within the otherwise tendentious factual findings of the three judge panel below. The majority accomplishes this sleight of hand while failing to mention that we have upheld more restrictive regulatory schemes in the context of less invasive media c.f. Sable or that we have struck down other statutes because they did not consider means of content segregation -- such as the V-chip -- that are actually much more restrictive than the blocking and filtering technologies considered in the CDA. Denver Area. The court thus sets itself up over the will of the democratically elected representatives of the United States people, frustrating their attempt to meet an admitted and pressing problem; moreover, it does so without any basis in precedent, constitutional intent or social tradition. I dissent.

Close attention shows that majority gets every single question wrong; The CDA is not in fact content-based and therefore the applicable standard of review is an intermediate one; are the means to meet the substantial government interest sufficiently narrowly tailored? Under this standard, I find the provisions pass constitutional muster. If the CDA were to be found a content-based restriction, it is still clearly aimed at an invasive, child-imperilling medium, the Internet, which must be judged under the relaxed standard of review contemplated for the broadcast media. Pacifica. Finally, even if both of these points were ignored and the CDA were to be judged under strict scrutiny, it is clear that it would meet that standard. The rules in question are in fact the least restrictive means of meeting the compelling government interest in protecting minors from indecent and patently offensive material.


The CDA is a Content-Neutral Method of 'Channeling' Speech

In determining if regulation is "content-based" or "content-neutral," the Court should inquire whether, through the law in question, the Government is regulating speech "based on hostility -- or favoritism -- towards the underlying message expressed." Turner Broadcasting System, Inc. v. FCC, 114 S.Ct.2445, 2458 (1994), quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); citing to R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 385 (1992). As we stated in Turner, laws are generally considered "content-based" if their terms distinguish "favored speech from disfavored speech on the basis of the ideas or views expressed." Id., citing to Burson v. Freeman, 112 S.Ct. 1846,1850 (1992) (slip op. at 5); Boos v. Barry, 485 U.S. 312, 318-19 (1988) (plurality opinion).

On the other hand, if laws "confer benefits or impose burdens on speech without reference to the ideas or views expressed", they are generally considered "content-neutral" regulations. Id. (emphasis added.) The Turner Court found that the 'must-carry rule," a regulation which required all cable operators to carry broadcast TV, was content-neutral because, by its terms, the rule imposed burdens and benefits not according to any particular the favoritism towards any type of speech. Rather, the rule was non-selective and applied to all cable operators. The Court rejected the argument the rule was content-based and that it favored "broadcast speech," holding that the rule did not regulate the "message" of the speech, but only the "manner." Turner at 2460.

Applying the Turner standard to the case before the Court today, I find that the challenged regulations of the CDA do not favor or disfavor the idea or the message of some example of speech by prohibiting of dissemination "indecent" or "patently offensive" material to minors. These rules merely impose burdens without reference to the particular ideas or points of view expressed. Moreover, they impose these burdens equally on all who disseminate such material.

Twenty years ago, in Young v. American Mini Theatres, Inc., we dealt with this issue explicitly, even raising -- in a way that seems prescient today -- the issue of protecting children from sexually explicit material.

This is the very heart of the CDA. The CDA -- with the possible exception of its provisions on abortion speech -- takes absolutely no position with respect to the underlying message expressed. A professorial spoof of an erotic story, a profitably detailed confession of prior carnal sins by a televangelist, a profane political manifesto full of pungent sexual imagery -- all would be treated equally by the CDA's regime. Our First Amendment is designed, above all, to make sure that government does not put a thumb on one side of the scales when opinions are being weighed. This was the problem in RAV. The CDA loads up both sides of the scales equally; it can hardly be called content based. The CDA certainly does not make the mistake we addressed in RAV, that of failing to restrict enough speech and thus of implicitly favoring one side of the debate. Its proscriptions are more than broad enough to achieve content-neutrality; It bans all indecency that might be available to minors. To call this "content-based" is to say that a statute prohibiting extortion is content based because it seeks, on the basis of disfavored content, to prevent the extortionist from making his demand to the potential victim. In sum, the CDA is merely a content-neutral measure which seeks to channel indecent speech away from juveniles. At most we should apply an intermediate standard of review.


As a Pervasive and Invasive Medium, the Internet Is Subject to a Relaxed Standard of Review

Assuming, arguendo, that the CDA is content-based, it is nevertheless subject only to a relaxed standard of review because it regulates a medium, the Internet, which shares the essential legal characteristics of the broadcast medium. While the millennial technophiliacs whose testimony has been entered into the record presented the Internet as an entirely new medium of expression, it is of course just another method of communication -- no different than a television or radio.

One of the most distressing aspects of the Un-Court's opinion, is that they have apparently been carried away by the enthusiastic burbling of the Internet's defenders. In fact, of course, the Internet is a shallow and unreliable electronic repository of dirty pictures, inaccurate rumors, bad spelling and worse grammar, inhabited largely by people with no demonstrable social skills. To romanticize this medium -- as JUSTICE Un-SOUTER does -- is bad enough. The CONCURRENCE's starry-eyed images of Alexander Hamilton downloading the work of the anti-Federalists are simply embarrassing. The Internet is nothing new, and reading "Dilbert" on a computer screen is not a revolution in communications technology. In fact, to use the memorable definition of television offered by a prior chair of the FCC, the Internet is "just another appliance. It's a toaster with pictures."(17)

The extent to which the First Amendment does allow some, narrowly tailored, restrictions on speech is determined in large part by the medium, time and location of the affected speech. See Talley v. California, 362 U.S. 60 (1960) (Handbills as medium); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) (Broadcast television as medium); Young v. American Mini Theaters, Inc., 429 U.S. 873 (1976) (Theater as location); FCC v. Pacifica Foundation, 439 U.S. 883 (1978) (Radio as medium, private home as location and early afternoon as time); Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989) (Telephone as medium with discussion time and place considerations); and, Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622 (1994)

True, this Court has recognized the importance of the special problems presented by various media of expression for First Amendment analysis. However, the same basic rules apply -- at least once one moves beyond the newspaper broadsheet. While, the amount of protection applicable to each medium has changed as technology develops, a foul word spoken or an indecent image displayed on a television screen via the airwaves, on cable TV or over the telephone, is not so very different than the same promulgated on the World Wide Web.(18)

More specifically, the Internet requires the same special consideration set forth in our decision in Pacifica: "1) child[ren] have access to radios [and computers] and in many cases are unsupervised by parents; 2) radio receivers [and computers] are in the home, a place where people's privacy interest is entitled to extra deference....; 3) unconsenting adults may tune in a station [ or access a Internet site] without any warning that offensive language is being or will be broadcast."(19)

Appellees urge that Pacifica is limited to its facts because the Internet is a wholly different medium and should be evaluated by different standards. I am, and this Court should be, loath to cast away the First Amendment jurisprudence of the past two centuries by balkanizing each new technology, providing each with it own rules. This approach would destroy our First Amendment jurisprudence by requiring a degree of specificity for levels of protection which would be unadministratable and, at the same time, easily circumvented. I throw the majority's facile catch phrase back at them; "Liberty finds no refuge in a jurisprudence of doubt." Planned Parenthood v. Casey, 112 S. Ct. 2791. JUSTICE O"CONNOR.

Worse still, if we take the majority's approach seriously, every technological change in communication and content-filtering technologies could trigger a corresponding change in the level of scrutiny to be applied and the constitutionality of present and past statutes; our laws would pop in and out of constitutional existence as technology marched forward. (Charles Nesson & David Marglin, The Day the Internet Met the First Amendment: Time and the Communications Decency Act 10 Harvard Journal of Law and Technology 113, 125-130 (1996).) Our approach must be a simpler one.

Is the Internet, like television and radio, an invasive medium with an impact on children, such that we must apply the lower standard of review applied to TV and radio? Pacifica specifically emphasizes, in oft-quoted language,(20) that television and radio could be regulated more strictly because of their "uniquely pervasive" nature and the fact that they are "uniquely accessible to children, even those too young to read." 438 U.S. at 748-49. Is the Internet as per- and in- vasive as the broadcast? The answer, I think, that it is already invasive and is becoming more so. As the lower court recognized in its findings, methods of communication over the Internet are "constantly evolving." Indeed, I would say that the lower court's decision has already been outstripped by the ongoing advancement of technology. Since the decision of the lower court, the computer industry and TV broadcasters agreed upon a common technology standard which will allow use of the Internet on television.(21) This makes the medium even more accessible to children(22) and reinforces the analogy between the Internet and the broadcast medium, supra.

The Internet pervades our lives both in type and frequency of use. While a broadcast television viewer may use television as her primary sources of both news and entertainment; she will generally not use it for personal communication, shopping(?), substantive education, job-searching, research, or any of a myriad of other pursuits which are now available on the Internet. While the ability to order a pizza ( online does not a pervasive technology make, it does help demonstrate the level to which the Internet has penetrated America's homes.(23) Though estimates vary widely, one estimate placed the number of Internet users in the United States in early 1995 at 30-40 million with extraordinary growth rates.

Significantly, the so-called "Push technology" which has been hailed as the "next generation" of software, actually sends materials directly to a user without the user even requesting it.(24) Nothing epitomizes the "unwilling" or "captive" audience more than the discovery of unwanted indecent or patently offensive material in one's e-mail, or finding such material suddenly displayed on one's television via the Internet. (25) As this Court stated in Rowan v. Post Office Dept., "[p]atently offensive, indecent material presented over the airwaves confronts the citizen, not only the public, but also in the privacy of the home, where the individual right to be left alone plainly outweighs the First Amendment rights of an intruder. 397 U.S. 728 ( ). Even in the context of searches performed on the World Wide Web, the youthful user could be confronted with indecent material. Imagine, if you will, an Internet search by a fifth-grader on the book title Of Human Bondage, or Little Women. Such a search might produce indecent and patently offensive information of the kind that "enlarges] a child's vocabulary [or eyes] in an instant." Pacifica at 3040. Regarding the government's interest in protecting children, see Ginsberg v. New York, 390 U.S. 629 ( ); Paris Adult Theatre I v. Slaton, 413 U.S. 49 ( ); Young v. American Mini Theatres, Inc., 96 S.Ct.2440 (1976).

It is significant that the tendentious findings of fact from the three judge panel below make much -- when it suits them -- of the fact that the Internet is not one medium but many. Yet the three judge panel and the Majority fall strangely silent when it comes to play this insight out. E-mail messages, Push and Cybercast technology on the World Wide Web, listservs and so on, can all confront their users with material that has not been requested and that is unidentifiable until read or viewed. This is the classic definition of an invasive, pervasive medium, yet strangely the court below scurries quickly back to a simple homologized and undifferentiated image of the traditional use of the World Wide Web to download images and pictures. But this, as the court below pointed out, is merely one use of the Internet, and not the most common even now. The majority cannot have its cake and eat it too. If it wishes to stress the technical differences between different uses of the Internet when the issue is the workability of blocking software, it cannot thereafter return to the image that the World Wide Web is the Internet.

The Internet enters the home and can confront the "most tender" viewer with content that is unsought and unwelcome. Thus it is protected only by the relaxed standard we have applied to the broadcast medium.


The CDA Passes Strict Scrutiny

In parts I and II of this dissent, it was established that the majority erred in its selection of the standard of First Amendment review. Nevertheless, even under the majority's choice of strict scrutiny, the CDA passes muster; it is the least restrictive means to achieve the compelling governmental interest in protecting minors from indecent material.

A.) Facial Challenges, Overbreadth and Vagueness

The majority seems to collapse the analysis of "least restrictive means" into a discussion of overbreadth and I will reluctantly follow suit. As the majority correctly notes, a statute is overbroad if, in addition to proscribing activities which may constitutionally be forbidden, it also sweeps within its coverage speech or conduct which is protected by "the freedom of speech." Using this well established rule, the majority concludes that the Communications Decency Act (CDA) unconstitutionally pulls protected speech into ambit because: (1) the restrictions of the CDA violate the First Amendment right of adults to disseminate sexually explicit material to other adults; and (2) the safe harbor defenses offered by the CDA are insufficient to allow adults to engage in protected, indecent speech while channeling that speech away from children.

I find the majority's analysis to be glaringly incomplete and inapposite to the current state of technology on the Internet. First, the majority does not properly apply the law this court has established on facial challenges to criminal statutes. Second, the majority misunderstands the blocking and filtering technologies currently available on the Internet. These pivotal mistakes are the keys to the majority's erroneous overbreadth analysis.

i.) Facial Challenge

The present case involves a facial challenge of the Communications Decency Act. It is settled law that the Court has an obligation to interpret a statute in such a way as to make it constitutional, wherever possible. The majority today makes much of a supposed exception to this principle where First Amendment issues are at stake. It is true that this Court has on past occasion relaxed the rules of standing (and stretched the bounds of Article 3) so as to allow even those whose speech was unprotected to challenge a statute if its application would chill the (protected) speech of others not then before the court. See Broadrick v. Oklahoma, 413 U.S. 601, 611-614, 93 S.Ct. 2908, 2915-2917, 37 L. Ed.2d 830. But as we were careful to note in Young v. American Mini-Theaters, firm limits are placed on this "exception."

What goes for our duties to interpret statutes when the issue is standing to bring facial challenges, goes here, surely, for the question of whether this facial challenge succeeds. Without waiting to see if the CDA would in fact be interpreted and applied in an overbroad manner, in other words without waiting to see whether the statute -- as reasonably interpreted -- would be the least restrictive means to address the compelling state interest, the majority declares it unconstititional. "The limited amount of uncertainty in the [CDA] is easily susceptible to a narrowing construction."

ii.) Vagueness:

The same argument must surely be applied to the majority's analysis of the statute's vagueness. Yet the majority mysteriously claims that this statute -- a statute that carefully uses well-known standards repeatedly upheld by this court -- is on its face void for vagueness under the Fifth and First Amendment. Compare this to our holding in Pacifica

The only way, and I stress that it is the only way, that the majority can come to the conclusion they do is by abandoning a line of precedent on which lower courts have relied for decades ("If acceptance of the FCC's generic definition of 'indecent' as capable of surviving a vagueness challenge is not implicit in Pacifica, we have misunderstood Higher Authority and welcome correction." ACT I, 852 F.2d at 1339-400) and -- worse still --by abdicating their own constitutional responsibility to interfere as little as possible with the work of the legislature.

It is our own constitutional and institutional duty that imposes on us the rule that statutes must be found unconstitutional only where they have no possible saving construction. For reasons that escape me, the court seems willing to consign this principle to the jurisprudential dustbin, (along with Pacifica, its progeny, and a variety of other well-settled constitutional doctrines.) I cannot agree. The CDA should stand until the government enforces the statute in an overbroad manner, or until it can be shown that the decisions of the courts and the pattern of enforcement have failed to give the necessary guidance to private parties about the extent of their rights. Until either of those events occur we are constitutionally forbidden from presuming that the state will overstep its bounds in enforcement or the lower courts fail their duties of interpretation.

Further, under the doctrine of narrow statutory interpretation, this Court need not even address any other constitutional issue once the CDA is found to be facially valid. This showing of facial validity has clearly been made by the government in this case. The CDA's indecency restrictions constitutionally advance the government's interests in protecting children while affording significant opportunities for adults to disseminate indecent material to other adults.

To sum up, we have repeatedly held that when the dissemination of indecency to adults poses a substantial risk that children will be exposed to the material, the government may regulate the indecent communications to minimize that exposure. See FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (upholding an FCC decision that a radio station could be sanctioned for an afternoon broadcast of a comedy routine containing a stream of sexually explicit words because broadcast media have established a uniquely pervasive presence in the lives of all Americans). In Pacifica, this Court noted that "patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home." 438 U.S. at 748. Like the inadequacy of prior warnings on the radio, Internet addresses cannot completely protect the browser from unexpected program content uniquely accessible to children. Moreover, just as the FCC may channel indecent broadcasts "to times of day when children most likely would not be exposed to [them]," 438 U.S. at 732-33, Congress may use the CDA to channel indecent communications to places on the Internet where children are unlikely to obtain them.

Furthermore, the government may adopt reasonable channeling schemes to address the effects of sexually explicit communication. See Young v. American Mini Theaters, 427 U.S. 50 (1976) (upholding a zoning ordinance that prohibited movie theaters that showed sexually explicit movies from locating within 1000 feet of any similar establishment or within 500 feet of a residential area). In Young, a majority of this Court agreed that zoning restrictions on businesses that deal in sexually explicit material are constitutional when they are aimed at the secondary effects of such businesses and when they allow for reasonable alternative avenues of communication. 475 U.S. at 47-50. Just as the city of Detroit could direct adult theaters away from residential neighborhoods, Congress could direct distributors of indecent material away from areas of the Internet that are easily accessible to children.

Under these two principles, the CDA's specific child protection provisions are facially constitutional and neither overbroad nor vague.

B.) Least Restrictive Means: The PICS Irony

Even more important than the majority's incomplete facial challenge analysis, however, is the majority's misinformation regarding the blocking and filtering technologies currently available on the Internet. The majority finds that the commercial software currently available to screen out indecent information on the Internet is insufficient to address the First Amendment issue of protecting children from indecent or patently offensive sexually explicit material, while allowing adults to communicate freely. This contention is incorrect.

The Massachusetts Institute of Technology's World Wide Web Consortium has developed a Platform for Internet Content Selection (PICS). PICS is a technical platform that allows any individual, group, or organization to develop their own rating systems, distribute labels for Internet content, and create label-reading software and services that selectively controls access to Internet content. PICS is a values-neutral system for creating, attaching, and transmitting labels to information on the Internet. The function of PICS is to create the widest variety of rating systems and services, representing a diversity of viewpoints and PICS is currently available on the World Wide Web, free of charge, at http://www/

Note that PICS allows the generation of multiple rating systems, that it allows both first and third party rating and that it is "trivially" easy to implement -- essentially a matter of embedding the appropriate label or labels in the metafile information of an HTML document. Thus the adult speaker can easily label his speech as potentially indecent, or sexually explicit or what have you, and he is thereby immunized from liability under the CDA. What could be less restrictive? In our prior cases, Sable and Denver Area, we found statutes had failed to adopt the least restrictive means because they had not adopted available methods of blocking and filtering indecent content, instead resorting to an outright ban on indecent telephone services (Sable) or a channel segregation coupled with a requirement that the indecent channel be requested in writing (Denver Area). In Denver Area we actually mentioned the availability of other technologies such as the V-Chip -- technologies that are actually more restrictive than PICS -- and indicated that mandating these technologies might have been enough to save the statute.

In short, the CDA is not overbroad, nor does it fail the "least restrictive means test," precisely because every Internet browser is presently PICS compliant, or will be soon. The irony is that PICS was originally developed as a way to show that the CDA was unconstitutional because mere private action, without legislative threat, would be enough to protect children from indecency. In fact, however, the availability of PICS makes the CDA constitutional because it offers adults an easy, practical and value neutral way to confine their indecent speech to an audience of other adults. The technology designed to doom the CDA has in fact saved it. The irony is delicious, though it is an irony that I do not expect my Un-BRETHREN to appreciate, or even understand.


1. The Act does not define "telecommunications device." However the parties responded to the lower court's order of February 27, 1996 to the effect that a modem was a telecommunications device. The CDA contains a puzzlingly worded exception, § 223(h)(1)(B), that purportedly immunizes an interactive computer service from liability, this exception may have been written merely to provide a narrow immunization to access providers or to service providers such as America Online. In any event the court below held, and we agree, that there is no need to reach this issue of interpretation here.

2. See generally The Message in the Medium: The First Amendment on the Information Superhighway, 107 Harv. L. Rev. 1062 (1994) (taking note of Supreme Court's different standards for different media).

3. In United States v. Bagnell, the United States District Court for the Southern District of Florida applied community standards of a county. 679 F.2d 826, 836, cert. denied 460 U.S. 1047. In United States v. Thomas, the sixth circuit allowed the community standards of a federal district to apply. 74 F.3d 701, 710-11, cert. denied, 117 S.Ct. 74, 136 L. Ed. 2d 33.

4. Justice Holmes' famous Abrams dissent cautioned of the quelling of unpopular speech stating, "... the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market..." 215 U.S. 616, 630. This court also rejected governmental regulation of newspapers in Miami Herald Publishing Co. v. Tornillo finding a Florida law unconstitutional which required newspapers to provide free space for replies from candidates the papers had assailed and noting that such state action would destroy the free market of ideas, particularly the discussion of governmental affairs. 418 U.S. 241, 257, 94 S.Ct. 2831, 2839.

5. Turner Broadcasting System, Inc., v. Federal Communications Commission, 492 U.S. 115 (1989); Sable v. Broadcasting System, Inc., v. Federal Communications Commission, 114 S. Ct. 2445 (1994).

6. Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 713 (1931).

7. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J. concurring).

8. Whitney at 374.

9. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).

10. Id. at 158.

11. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J. dissenting).

12. See, among many other examples, "Indecent Exposure and Internet," The Plain Dealer, March 15, 1995; "Censoring Cyberspace," The San Francisco Chronicle; Julie Harders, "Censorship in Cyberspace," The Quill, Oct. 1, 1995.

13. At one point, a June 1995 Time magazine article was introduced into the record, which reported: "'[The CDA is] a frontal assault on the First Amendment,' says Harvard law professor Laurence Tribe. Even veteran prosecutors ridicule it. 'It won't pass scrutiny even in misdemeanor court,' says one." 141 Cong. Rec. S9017-02, S9019. The potential constitutional flaws of the CDA were the subject of frequent discussion before Congress. See, e.g., 141 Cong. Rec. S19185 (Dec. 22, 1995) (statement of Sen. Feingold); (142 Cong. Rec. S12042-02 (Sept. 30, 1996) (statement of Sen. Feingold). Perhaps, as Senator Leahy suggested, Congress deliberately passed a flawed statute "for the sake of political posturing." Statement of Senator Leahy on Repealing the Communications Decency Act, Feb. 9, 1996. As the Senator also points out, "such serious questions about the constitutionality of this legislation... [were] raised that a new section was added to speed up judicial review to see if the legislation... [would pass] constitutional muster." Id.

14. I say this notwithstanding the strident defense of the Act produced by my Un-brethren Un-SCALIA, Un-REHNQUIST and Un-THOMAS; With the greatest regret I must say that their DISSENT proves a point I had long suspected; our law clerks could produce an argument for any position. There is such a thing as being too clever by half.

15. See generally the discussion of shared responsibility for constitutional interpretation in Bonnie I. Robin-Vergeer's Disposing of the Red Herrings: A Defense of the Religious Freedom Restoration Act, 69 S. Cal. L. Rev. 589 (1995).

16. In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 93 S.Ct. 2628, 2665, 37 L. Ed.2d 446, Mr. Justice Brennan, in a dissent joined by Mr. Justice Stewart and Mr. Justice Marshall, explained his approach to the difficult problem of obscenity under the First Amendment:

17. Bernard D. Nossiter, "Licenses To Coin Money: The F.C.C.'s Big Giveaway Show," 240 Nation 402 (1985) (quoting Mark Fowler, former FCC Chair). Quoted in Cass R. Sunstein, The First Amendment in Cyberspace, 104 Yale L.J. 1757 (1995).

18. While the content of the speech is also of significant import in determining the level to which it is protected, these issues are addressed elsewhere in this dissent.

19. While the fourth element of Pacifica, the scarcity of radio spectrum space, is not yet implicated, it may be so in the future if the Net keeps growing at the current speed.

20. See e.g., id at 127.

21. "Compromise Standard OK'd for Digital TV," Nov. 26, 1996, Chi. Trib., at 3.

22. Id

23. In fact many advertisements now include URLs to the websites of the products being advertised.

24. Joan Indiana Rigdon, "Netscape Offers 'Push' Abilities In New Software," Wall St. J., March 10, 1997. See also Geoff Nairn, "'Push' Technology," Financial Times, March 5, 1997 (While 'push technology' is not new, its firmer commercial base has caused it to become the prominent software development area.)

25. Software modeled after "PointCast" or similar programs allows "viewers" to receive channels without their actually choosing the "bookmark."

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