535 U.S. 564 (2002)
In 1998 Congress enacted the Child Online Protection Act after the Court had invalidated the Communications Decency Act of 1996 in Reno v. American Civil Liberties Union.1 COPA prohibits any person from knowingly making, in interstate or foreign commerce by means of the World Wide Web, a communication for commercial purposes that is available to any minor and that includes material harmful to minors.2
The statute defines material harmful to minors as any communication that is obscene or that meets three requirements.3 The average person applying contemporary community standards would find the material as a whole appeals to the prurient interest of minors.4 It depicts sexual acts or lewd exhibitions of genitals or post-pubescent female breasts in a patently offensive manner with respect to minors.5 It lacks serious literary, artistic, political, or scientific value for minors.6 COPA also supplies affirmative defenses for those who restrict minors' access through credit-card verification or other feasible technology.7
Respondents, a group of organizations and individuals that maintain Web sites containing sexually oriented material available for free or for sale, filed suit in the United States District Court for the Eastern District of Pennsylvania.8 They alleged that COPA violated the First and Fifth Amendments and sought a preliminary injunction barring enforcement.9 After a hearing the District Court issued the injunction in 1999, finding respondents had shown a substantial likelihood of success on the merits of their First Amendment claim.10
The Government appealed. A divided panel of the Third Circuit affirmed. The en banc court granted rehearing, gave the statute a narrowing construction limiting the community-standards inquiry to the prurient-interest prong, and again affirmed the injunction.11 The Supreme Court granted certiorari, vacated the judgment, and remanded. On remand the Third Circuit once more affirmed. The Government petitioned for certiorari a second time and the Supreme Court granted review.12
Whether the Child Online Protection Act's use of contemporary community standards to identify material that is harmful to minors violates the First Amendment?13
A content-based restriction on speech is presumptively invalid under the First Amendment and must survive strict scrutiny, yet statutes regulating the dissemination of material harmful to minors may employ contemporary community standards to define the prohibited content without rendering the statute facially unconstitutional when the statute incorporates the full Miller test, limits its scope to commercial communications, and supplies affirmative defenses, as the Court held in Miller v. California and reaffirmed in Hamling v. United States and Sable Communications of California, Inc. v. FCC.14
No. COPA is a content-based regulation that suppresses speech adults have a constitutional right to receive, yet the statute narrows its reach to commercial World Wide Web communications and adopts the three-part Miller definition of material harmful to minors, including the serious-value prong that supplies a national floor independent of local standards.15 Web publishers, like the mail distributors in Hamling or the dial-a-porn operators in Sable, must bear the burden of compliance even though they cannot control the geographic location of their audience.16 The resulting variance across communities is not substantial enough to justify facial invalidation on overbreadth grounds alone.17
COPA's reliance on contemporary community standards does not by itself render the statute facially unconstitutional under the First Amendment.18
Related opinions on this issue
Justice O’Connor concurred in the judgment.19 She agreed that variation in local community standards does not alone render COPA substantially overbroad on a facial challenge.20 She observed that respondents failed to supply examples of material lacking serious value for minors that would produce substantial variation across communities.21
She stressed that the statute's burden on protected speech remains substantial even after the community-standards holding.22 She expressed a preference for a national adult standard for Internet regulation because local standards could suppress too much speech given speakers' inability to control geographic reach.23 She noted that as-applied challenges or vagueness claims could still succeed on remand.24
Justice Breyer concurred in the judgment.25 He read the statute to adopt a national adult community standard rather than varying local standards.26 He relied on the House Report stating that the standard is an adult standard reasonably constant among adults in America.27
He concluded that this construction avoids the most serious First Amendment difficulty that would arise from the most puritan community exercising a heckler's veto.28 He noted that any residual regional variation is inherent in the jury system and does not violate the First Amendment.29 He joined much of the reasoning in Parts III-B and III-D of the plurality opinion.30
Justice Kennedy concurred in the judgment.31 He concluded that the Court of Appeals' single-ground analysis was insufficient to sustain its ruling.32 He explained that the significance of varying community standards cannot be assessed without first determining the breadth of speech covered by COPA's commercial-purpose and as-a-whole requirements.33
He would have remanded for that comprehensive examination rather than assuming the statute is narrow enough to survive.34 He observed that the District Court had attempted a more complete analysis of multiple dimensions of potential overbreadth.35 He left open the possibility that variation in standards might justify an injunction once the full scope of the Act is properly construed.36
Justice Stevens dissented.37 He maintained that community standards function as a sword rather than a shield on the Internet because publishers cannot prevent material from entering the most restrictive communities.38 He explained that this forces all speakers to comply with the least tolerant standards.39
He concluded that this feature renders COPA substantially overbroad regardless of its other limitations such as the serious-value prong.40 He argued that the serious-value inquiry judged for minors still leaves substantial protected speech vulnerable to the most restrictive communities.41 He would have affirmed the judgment of the Court of Appeals.42
Justice Souter dissented by joining Justice Stevens' opinion in full.43 He agreed that COPA imposes an unconstitutional burden on protected adult speech by subjecting every Web communication to the standards of the most puritanical community.44 He emphasized that the statute is a content-based regulation of speech on the Internet.
He noted that it suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another.45 The statute is not narrowly tailored to serve a compelling governmental interest.46 It is overbroad.
And it is not the least restrictive means of achieving the Government’s interest in protecting minors from material that is harmful to them.47 He concluded that the Court of Appeals correctly held that COPA is facially unconstitutional and would affirm its judgment.48