Ashcroft v. American Civil Liberties Union

535 U.S. 564

FACTS

In Reno v. American Civil Liberties Union the Court found that the Communications Decency Act of 1996 (CDA)--Congress's first attempt to protect children from exposure to pornographic material on the Internet--violated the First Amendment. That conclusion was based, in part, on the pivotal decision to treat the CDA's breadth as overreaching and unprecedented.

After the Court's decision in Reno, Congress attempted to address the Court's concerns with passage in 1998 of the Child OnLine Protection Act (COPA, or sometimes CDA II), which prohibited the distribution of "any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors" (in distinction to the CDA, which prohibited "indecent" and "patently offensive" communications in a manner accessible to minors). To determine whether material was "harmful to minors" the act relied on the Miller test, including the "community standards" prong. A federal district court struck down COPA on much the same grounds as the Supreme Court used in Reno, and a U.S. court of appeals agreed, concluding that the Supreme Court's prior community standards jurisprudence "has no applicability to the Internet and the Web" because Web publishers are "currently without the ability to control the geographic scope of the recipients of their communications." This logic reflected the Court's words in Reno that "the "community standards' criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message." In Ashcroft v. American Civil Liberties Union (2002), however, a fractured Court disagreed.

---

 

JUSTICE THOMAS ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED THE OPINION OF THE COURT WITH RESPECT TO PARTS I, II, AND IV, AN OPINION WITH RESPECT TO PARTS III-A, III-C, AND III-D, IN WHICH THE CHIEF JUSTICE AND JUSTICE SCALIA JOIN, AND AN OPINION WITH RESPECT TO PART III-B, IN WHICH THE CHIEF JUSTICE, JUSTICE O'CONNOR, AND JUSTICE SCALIA JOIN.

This case presents the narrow question whether the Child Online Protection Act's (COPA or Act) use of "community standards" to identify "material that is harmful to minors" violates the First Amendment. We hold that this aspect of COPA does not render the statute facially unconstitutional.

I

... We granted the Attorney General's petition for certiorari to review the Court of Appeals' determination that COPA likely violates the First Amendment because it relies, in part, on community standards to identify material that is harmful to minors, and now vacate the Court of Appeals' judgment.

II

The First Amendment states that "Congress shall make no law ... abridging the freedom of speech." This provision embodies "[o]ur profound national commitment to the free exchange of ideas."... However, this principle, like other First Amendment principles, is not absolute....

Obscene speech, for example, has long been held to fall outside the purview of the First Amendment.... But this Court struggled in the past to define obscenity in a manner that did not impose an impermissible burden on protected speech....

Ending over a decade of turmoil, this Court in Miller set forth the governing three-part test for assessing whether material is obscene and thus unprotected by the First Amendment: "(a) [W]hether 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."...

Miller adopted the use of "community standards" from Roth, which repudiated an earlier approach for assessing objectionable material. Beginning in the 19th century, English courts and some American courts allowed material to be evaluated from the perspective of particularly sensitive persons.... But in Roth, this Court held that this sensitive person standard was "unconstitutionally restrictive of the freedoms of speech and press" and approved a standard requiring that material be judged from the perspective of "the average person, applying contemporary community standards."... The Court preserved the use of community standards in formulating the Miller test, explaining that they furnish a valuable First Amendment safeguard: "[T]he primary concern ... is to be certain that ... [material] will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person--or indeed a totally insensitive one."...

III

The Court of Appeals, however, concluded that this Court's prior community standards jurisprudence "has no applicability to the Internet and the Web" because "Web publishers are currently without the ability to control the geographic scope of the recipients of their communications." We therefore must decide whether this technological limitation renders COPA's reliance on community standards constitutionally infirm.

A

In addressing this question, the parties first dispute the nature of the community standards that jurors will be instructed to apply when assessing, in prosecutions under COPA, whether works appeal to the prurient interest of minors and are patently offensive with respect to minors. Respondents contend that jurors will evaluate material using "local community standards,"... while petitioner maintains that jurors will not consider the community standards of any particular geographic area, but rather will be "instructed to consider the standards of the adult community as a whole, without geographic specification."...

In the context of this case, which involves a facial challenge to a statute that has never been enforced, we do not think it prudent to engage in speculation as to whether certain hypothetical jury instructions would or would not be consistent with COPA, and deciding this case does not require us to do so. It is sufficient to note that community standards need not be defined by reference to a precise geographic area.... Absent geographic specification, a juror applying community standards will inevitably draw upon personal "knowledge of the community or vicinage from which he comes."... Petitioner concedes the latter point, and admits that, even if jurors were instructed under COPA to apply the standards of the adult population as a whole, the variance in community standards across the country could still cause juries in different locations to reach inconsistent conclusions as to whether a particular work is "harmful to minors."...

B

Because juries would apply different standards across the country, and Web publishers currently lack the ability to limit access to their sites on a geographic basis, the Court of Appeals feared that COPA's "community standards" component would effectively force all speakers on the Web to abide by the "most puritan" community's standards.... And such a requirement, the Court of Appeals concluded, "imposes an overreaching burden and restriction on constitutionally protected speech."...

In evaluating the constitutionality of the CDA, this Court expressed a similar concern over that statute's use of community standards to identify patently offensive material on the Internet. We noted that "the `community standards' criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message."... The Court of Appeals below relied heavily on this observation, stating that it was "not persuaded that the Supreme Court's concern with respect to the `community standards' criterion has been sufficiently remedied by Congress in COPA."...

The CDA's use of community standards to identify patently offensive material, however, was particularly problematic in light of that statute's unprecedented breadth and vagueness. The statute covered communications depicting or describing "sexual or excretory activities or organs" that were "patently offensive as measured by contemporary community standards"--a standard somewhat similar to the second prong of Miller's three-prong test. But the CDA did not include any limiting terms resembling Miller's additional two prongs.... It neither contained any requirement that restricted material appeal to the prurient interest nor excluded from the scope of its coverage works with serious literary, artistic, political, or scientific value. Ibid. The tremendous breadth of the CDA magnified the impact caused by differences in community standards across the country, restricting Web publishers from openly displaying a significant amount of material that would have constituted protected speech in some communities across the country but run afoul of community standards in others.

COPA, by contrast, does not appear to suffer from the same flaw because it applies to significantly less material than did the CDA and defines the harmful-to-minors material restricted by the statute in a manner parallel to the Miller definition of obscenity.... To fall within the scope of COPA, works must not only "depic[t], describ[e], or represen[t], in a manner patently offensive with respect to minors," particular sexual acts or parts of the anatomy,-they must also be designed to appeal to the prurient interest of minors and "taken as a whole, lac[k] serious literary, artistic, political, or scientific value for minors."...

These additional two restrictions substantially limit the amount of material covered by the statute. Material appeals to the prurient interest, for instance, only if it is in some sense erotic.... Of even more significance, however, is COPA's exclusion of material with serious value for minors.... In Reno, we emphasized that the serious value "requirement is particularly important because, unlike the 'patently offensive' and 'prurient interest' criteria, it is not judged by contemporary community standards."... This is because "the value of [a] work [does not] vary from community to community based on the degree of local acceptance it has won."... Rather, the relevant question is "whether a reasonable person would find ... value in the material, taken as a whole."... Thus, the serious value requirement "allows appellate courts to impose some limitations and regularity on the definition by setting, as a matter of law, a national floor for socially redeeming value,"... a safeguard nowhere present in the CDA.

C

When the scope of an obscenity statute's coverage is sufficiently narrowed by a "serious value" prong and a "prurient interest" prong, we have held that requiring a speaker disseminating material to a national audience to observe varying community standards does not violate the First Amendment. In Hamling v. United States (1974), this Court considered the constitutionality of applying community standards to the determination of whether material is obscene under [the federal statute prohibiting the mailing of obscene material]. Although this statute does not define obscenity, the petitioners inHamling were tried and convicted under the definition of obscenity set forth in Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass., (1966), which included both a "prurient interest" requirement and a requirement that prohibited material be "'utterly without redeeming social value.'"...

Fifteen years later, Hamling's holding was reaffirmed in Sable Communications of Cal., Inc.v. FCC (1989). Sable addressed the constitutionality of... a statutory provision prohibiting the use of telephones to make obscene or indecent communications for commercial purposes. The petitioner in that case, a "dial-a-porn" operator, challenged, in part, that portion of the statute banning obscene phone messages. Like respondents here, the "dial-a-porn" operator argued that reliance on community standards to identify obscene material impermissibly compelled "message senders ... to tailor all their messages to the least tolerant community."... Relying on Hamling, however, this Court once again rebuffed this attack on the use of community standards in a federal statute of national scope: "There is no constitutional barrier underMiller to prohibiting communications that are obscene in some communities under local standards even though they are not obscene in others. If Sable's audience is comprised of different communities with different local standards, Sable ultimately bears the burden of complying with the prohibition on obscene messages."...

The Court of Appeals below concluded that Hamling and Sable "are easily distinguished from the present case" because in both of those cases "the defendants had the ability to control the distribution of controversial material with respect to the geographic communities into which they released it" whereas "Web publishers have no such comparable control."...

While JUSTICE KENNEDY and JUSTICE STEVENS question the applicability of this Court's community standards jurisprudence to the Internet, we do not believe that the medium's "unique characteristics" justify adopting a different approach than that set forth in Hamling and Sable.... If a publisher chooses to send its material into a particular community, this Court's jurisprudence teaches that it is the publisher's responsibility to abide by that community's standards. The publisher's burden does not change simply because it decides to distribute its material to every community in the Nation.... Nor does it change because the publisher may wish to speak only to those in a "community where avant garde culture is the norm,"... but nonetheless utilizes a medium that transmits its speech from coast to coast. If a publisher wishes for its material to be judged only by the standards of particular communities, then it need only take the simple step of utilizing a medium that enables it to target the release of its material into those communities.

Respondents offer no other grounds upon which to distinguish this case from Hamling and Sable. While those cases involved obscenity rather than material that is harmful to minors, we have no reason to believe that the practical effect of varying community standards under COPA, given the statute's definition of "material that is harmful to minors," is significantly greater than the practical effect of varying community standards under federal obscenity statutes. It is noteworthy, for example, that respondents fail to point out even a single exhibit in the record as to which coverage under COPA would depend upon which community in the country evaluated the material. As a result, if we were to hold COPA unconstitutional because of its use of community standards, federal obscenity statutes would likely also be unconstitutional as applied to the Web, a result in substantial tension with our prior suggestion that the application of the CDA to obscene speech was constitutional....

D

Respondents argue that COPA is "unconstitutionally overbroad" because it will require Web publishers to shield some material behind age verification screens that could be displayed openly in many communities across the Nation if Web speakers were able to limit access to their sites on a geographic basis.... "[T]o prevail in a facial challenge," however, "it is not enough for a plaintiff to show `some' overbreadth."... Rather, "the overbreadth of a statute must not only be real, but substantial as well."... At this stage of the litigation, respondents have failed to satisfy this burden, at least solely as a result of COPA's reliance on community standards. Because Congress has narrowed the range of content restricted by COPA in a manner analogous to Miller's definition of obscenity, we conclude, consistent with our holdings in Hamling and Sable, that any variance caused by the statute's reliance on community standards is not substantial enough to violate the First Amendment.

IV

The scope of our decision today is quite limited. We hold only that COPA's reliance on community standards to identify "material that is harmful to minors" does not by itself render the statute substantially overbroad for purposes of the First Amendment. We do not express any view as to whether COPA suffers from substantial overbreadth for other reasons, whether the statute is unconstitutionally vague, or whether the District Court correctly concluded that the statute likely will not survive strict scrutiny analysis once adjudication of the case is completed below. While respondents urge us to resolve these questions at this time, prudence dictates allowing the Court of Appeals to first examine these difficult issues.

Petitioner does not ask us to vacate the preliminary injunction entered by the District Court, and in any event, we could not do so without addressing matters yet to be considered by the Court of Appeals. As a result, the Government remains enjoined from enforcing COPA absent further action by the Court of Appeals or the District Court.

For the foregoing reasons, we vacate the judgment of the Court of Appeals and remand the case for further proceedings.

It is so ordered.

JUSTICE O'CONNOR, CONCURRING IN PART AND CONCURRING IN THE JUDGMENT.

I agree with the plurality that even if obscenity on the Internet is defined in terms of local community standards, respondents have not shown that the Child Online Protection Act (COPA) is overbroad solely on the basis of the variation in the standards of different communities. See ante, at 13-15. Like JUSTICE BREYER however,... I write separately to express my views on the constitutionality and desirability of adopting a national standard for obscenity for regulation of the Internet.

The plurality's opinion argues that, even under local community standards, the variation between the most and least restrictive communities is not so great with respect to the narrow category of speech covered by COPA as to, alone, render the statute substantially overbroad.... I agree, given respondents' failure to provide examples of materials that lack literary, artistic, political, and scientific value for minors, which would nonetheless result in variation among communities judging the other elements of the test. Respondents' examples of material for which community standards would vary include such things as the appropriateness of sex education and the desirability of adoption by same-sex couples.... Material addressing the latter topic, however, seems highly unlikely to be seen to appeal to the prurient interest in any community, and educational material like the former must, on any objective inquiry,... have scientific value for minors.

But respondents' failure to prove substantial overbreadth on a facial challenge in this case still leaves open the possibility that the use of local community standards will cause problems for regulation of obscenity on the Internet, for adults as well as children, in future cases. In an as-applied challenge, for instance, individual litigants may still dispute that the standards of a community more restrictive than theirs should apply to them. And in future facial challenges to regulation of obscenity on the Internet, litigants may make a more convincing case for substantial overbreadth. Where adult speech is concerned, for instance, there may in fact be a greater degree of disagreement about what is patently offensive or appeals to the prurient interest....

Our precedents do not forbid adoption of a national standard. Local community-based standards originated with Miller v. California (1973). In that case, we approved jury instructions that based the relevant "community standards" on those of the State of California rather than on the Nation as a whole. In doing so, we held that "[n]othing in the First Amendment requires" that a jury consider national standards when determining if something is obscene as a matter of fact.... The First Amendment, we held, did not require that "the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City."... But we said nothing about the constitutionality of jury instructions that would contemplate a national standard-- i.e. , requiring that the people who live in all of these places hold themselves to what the nationwide community of adults would find was patently offensive and appealed to the prurient interest....

To be sure, the Court in Miller also stated that a national standard might be "unascertainable," and "[un]realistic," id. , at 32. But where speech on the Internet is concerned, I do not share that skepticism. It is true that our Nation is diverse, but many local communities encompass a similar diversity. For instance, in Miller itself, the jury was instructed to consider the standards of the entire State of California, a large (today, it has a population of greater than 33 million people...) and diverse State that includes both Berkeley and Bakersfield. If the Miller Court believed generalizations about the standards of the people of California were possible, and that jurors would be capable of assessing them, it is difficult to believe that similar generalizations are not also possible for the Nation as a whole. Moreover, the existence of the Internet, and its facilitation of national dialogue, has itself made jurors more aware of the views of adults in other parts of the United States. Although jurors asked to evaluate the obscenity of speech based on a national standard will inevitably base their assessments to some extent on their experience of their local communities, I agree with JUSTICE BREYER that the lesser degree of variation that would result is inherent in the jury system and does not necessarily pose a First Amendment problem.... In my view, a national standard is not only constitutionally permissible, but also reasonable.

While I would prefer that the Court resolve the issue before it by explicitly adopting a national standard for defining obscenity on the Internet, given respondents' failure to demonstrate substantial overbreadth due solely to the variation between local communities, I join Parts I, II, III-B, and IV of JUSTICE THOMAS' opinion and the judgment.

JUSTICE BREYER, CONCURRING IN PART AND CONCURRING IN THE JUDGMENT.

I write separately because I believe that Congress intended the statutory word "community" to refer to the Nation's adult community taken as a whole, not to geographically separate local areas. The statutory language does not explicitly describe the specific "community" to which it refers. It says only that the "average person, applying contemporary community standards" must find that the "material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest.... In the statute's legislative history, however, Congress made clear that it did not intend this ambiguous statutory phrase to refer to separate standards that might differ significantly among different communities. The relevant House of Representatives Report says:

"The Committee recognizes that the applicability of community standards in the context of the Web is controversial, but understands it as an 'adult' standard, rather than a `geographic' standard, and one that is reasonably constant among adults in America with respect to what is suitable for minors."...

This statement, reflecting what apparently was a uniform view within Congress, makes clear that the standard, and the relevant community, is national and adult.

At the same time, this view of the statute avoids the need to examine the serious First Amendment problem that would otherwise exist.... To read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler's Internet veto affecting the rest of the Nation. The technical difficulties associated with efforts to confine Internet material to particular geographic areas make the problem particularly serious.... And these special difficulties also potentially weaken the authority of prior cases in which they were not present.... A nationally uniform adult-based standard--which Congress, in its Committee Report, said that it intended--significantly alleviates any special need for First Amendment protection. Of course some regional variation may remain, but any such variations are inherent in a system that draws jurors from a local geographic area and they are not, from the perspective of the First Amendment, problematic....

For these reasons I do not join Part III of JUSTICE THOMAS' opinion, although I agree with much of the reasoning set forth in Parts III-B and III-D, insofar as it explains the conclusion to which I just referred, namely that variation reflecting application of the same national standard by different local juries does not violate the First Amendment.

JUSTICE KENNEDY, WITH WHOM JUSTICE SOUTER AND JUSTICE GINSBURG JOIN, CONCURRING IN THE JUDGMENT.

If a law restricts substantially more speech than is justified, it may be subject to a facial challenge.... There is a very real likelihood that the Child Online Protection Act (COPA or Act) is overbroad and cannot survive such a challenge. Indeed, content-based regulations like this one are presumptively invalid abridgements of the freedom of speech.... Yet COPA is a major federal statute, enacted in the wake of our previous determination that its predecessor violated the First Amendment.... Congress and the President were aware of our decision, and we should assume that in seeking to comply with it they have given careful consideration to the constitutionality of the new enactment. For these reasons, even if this facial challenge appears to have considerable merit, the Judiciary must proceed with caution and identify overbreadth with care before invalidating the Act....

The Court of Appeals found that COPA in effect subjects every Internet speaker to the standards of the most puritanical community in the United States. This concern is a real one, but it alone cannot suffice to invalidate COPA without careful examination of the speech and the speakers within the ambit of the Act. For this reason, I join the judgment of the Court vacating the opinion of the Court of Appeals and remanding for consideration of the statute as a whole. Unlike JUSTICE THOMAS, however, I would not assume that the Act is narrow enough to render the national variation in community standards unproblematic. Indeed, if the District Court correctly construed the statute across its other dimensions, then the variation in community standards might well justify enjoining enforcement of the Act. I would leave that question to the Court of Appeals in the first instance.

JUSTICE STEVENS, DISSENTING.

Appeals to prurient interests are commonplace on the Internet, as in older media. Many of those appeals lack serious value for minors as well as adults. Some are offensive to certain viewers but welcomed by others. For decades, our cases have recognized that the standards for judging their acceptability vary from viewer to viewer and from community to community. Those cases developed the requirement that communications should be protected if they do not violate contemporary community standards. In its original form, the community standard provided a shield for communications that are offensive only to the least tolerant members of society. Thus, the Court "has emphasized on more than one occasion that a principal concern in requiring that a judgment be made on the basis of 'contemporary community standards' is to assure that the material is judged neither on the basis of each juror's personal opinion, nor by its effect on a particularly sensitive or insensitive person or group."... In the context of the Internet, however, community standards become a sword, rather than a shield. If a prurient appeal is offensive in a puritan village, it may be a crime to post it on the World Wide Web....

In his attempt to fit this case within the framework of Hamling and Sable, JUSTICE THOMAS overlooks the more obvious comparison--namely, the CDA invalidated in ACLU I. When we confronted a similar attempt by Congress to limit speech on the Internet based on community standards, we explained that because Web publishers cannot control who accesses their Web sites, using community standards to regulate speech on the Internet creates an overbreadth problem. "[T]he `community standards' criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message."... Although our holding in ACLU I did not turn on that factor alone, we did not adopt the position relied on by JUSTICE THOMAS--that applying community standards to the Internet is constitutional based on Hamling and Sable....

JUSTICE THOMAS points to several other provisions in COPA to argue that any overbreadth will be rendered insubstantial by the rest of the statute.... These provisions afford little reassurance, however, as they only marginally limit the sweep of the statute. It is true that, in addition to COPA's "appeals to the prurient interest of minors" prong, the material must be "patently offensive with respect to minors"... and it must lack "serious literary, artistic, political, or scientific value for minors." Nonetheless, the "patently offensive" prong is judged according to contemporary community standards as well.... Whatever disparity exists between various communities' assessment of the content that appeals to the prurient interest of minors will surely be matched by their differing opinions as to whether descriptions of sexual acts or depictions of nudity are patently offensive with respect to minors. Nor does the requirement that the material be "in some sense erotic,"... substantially narrow the category of images covered. Arguably every depiction of nudity--partial or full--is in some sense erotic with respect to minors.

Petitioner's argument that the "serious value" prong minimizes the statute's overbreadth is also unpersuasive. Although we have recognized that the serious value determination in obscenity cases should be based on an objective, reasonable person standard,... this criterion is inadequate to cure COPA's overbreadth because COPA adds an important qualifying phrase to the standard Miller v. California, formulation of the serious value prong. The question for the jury is not whether a reasonable person would conclude that the materials have serious value; instead, the jury must determine whether the materials have serious value for minors. Congress reasonably concluded that a substantial number of works, which have serious value for adults, do not have serious value for minors.... Thus, even though the serious value prong limits the total amount of speech covered by the statute, it remains true that there is a significant amount of protected speech within the category of materials that have no serious value for minors. That speech is effectively prohibited whenever the least tolerant communities find it harmful to minors. While the objective nature of the inquiry may eliminate any worry that the serious value determination will be made by the least tolerant community, it does not change the fact that, within the subset of images deemed to have no serious value for minors, the decision whether minors and adults throughout the country will have access to that speech will still be made by the most restrictive community....

JUSTICE THOMAS acknowledges, and petitioner concedes, that juries across the country will apply different standards and reach different conclusions about whether particular works are harmful to minors.... We recognized as much in ACLU I when we noted that "discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalog of the Carnegie Library" might offend some community's standards and not others.... In fact, our own division on that question provides further evidence of the range of attitudes about such material....

Even if most, if not all, of these works would be excluded from COPA's coverage by the serious value prong, they illustrate the diversity of public opinion on the underlying themes depicted. This diversity of views surely extends to whether materials with the same themes, that do not have serious value for minors, appeal to their prurient interests and are patently offensive. There is no reason to think the differences between communities' standards will disappear once the image or description is no longer within the context of a work that has serious value for minors. Because communities differ widely in their attitudes toward sex, particularly when minors are concerned, the Court of Appeals was correct to conclude that, regardless of how COPA's other provisions are construed, applying community standards to the Internet will restrict a substantial amount of protected speech that would not be considered harmful to minors in many communities.

Whether that consequence is appropriate depends, of course, on the content of the message. The kind of hard-core pornography involved in Hamling, which I assume would be obscene under any community's standard, does not belong on the Internet. Perhaps "teasers" that serve no function except to invite viewers to examine hardcore materials, or the hidden terms written into a Web site's "metatags" in order to dupe unwitting Web surfers into visiting pornographic sites, deserve the same fate. But COPA extends to a wide range of prurient appeals in advertisements, online magazines, Web-based bulletin boards and chat rooms, stock photo galleries, Web diaries, and a variety of illustrations encompassing a vast number of messages that are unobjectionable in most of the country and yet provide no "serious value" for minors. It is quite wrong to allow the standards of a minority consisting of the least tolerant communities to regulate access to relatively harmless messages in this burgeoning market.

In the context of most other media, using community standards to differentiate between permissible and impermissible speech has two virtues. As mentioned above, community standards originally served as a shield to protect speakers from the least tolerant members of society. By aggregating values at the community level, the Miller test eliminated the outliers at both ends of the spectrum and provided some predictability as to what constitutes obscene speech. But community standards also serve as a shield to protect audience members, by allowing people to self-sort based on their preferences. Those who abhor and those who tolerate sexually explicit speech can seek out like-minded people and settle in communities that share their views on what is acceptable for themselves and their children. This sorting mechanism, however, does not exist in cyberspace; the audience cannot self-segregate. As a result, in the context of the Internet this shield also becomes a sword, because the community that wishes to live without certain material not only rids itself, but the entire Internet of the offending speech.

In sum, I would affirm the judgment of the Court of Appeals and therefore respectfully dissent.