Ashcroft, Attorney General v. American Civil Liberties Union


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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. Writing for the majority (or plurality, depending on the section of the opinion), Justice Clarence Thomas declared that the use of COPA’s “community standards” to identify material harmful to children did not render the statute facially invalid in part because COPA applied to a narrower class of material than did the CDA.

But the decision did not settle the matter. By its own reckoning, Ashcroft was “quite limited,” stating only that the community standards criterion itself does not necessarily run afoul of the First Amendment. Indeed, the Court did not express an opinion on other questions (such as whether the law is unconstitutionally vague or would fail to pass a strict scrutiny analysis) and instead sent the case back to the court of appeals.

Once again, the court of appeals held that COPA violated the First Amendment, this time on the ground that it was not the “least restrictive” alternative available to accomplish Congress’s goal of shielding children from harmful materials, and once again, the case came back to the Court.


JUSTICE KENNEDY delivered the opinion of the Court.

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

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

The purpose of the test is to ensure that speech is restricted no further than necessary to achieve the goal, for it is important to ensure that legitimate speech is not chilled or punished. For that reason, the test does not begin with the status quo of existing regulations, then ask whether the challenged restriction has some additional ability to achieve Congress' legitimate interest. Any restriction on speech could be justified under that analysis. Instead, the court should ask whether the challenged regulation is the least restrictive means among available, effective alternatives. . . .

Filters [blocking and filtering software] are less restrictive than COPA. They impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Under a filtering regime, adults without children may gain access to speech they have a right to see without having to identify themselves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Above all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. All of these things are true, moreover, regardless of how broadly or narrowly the definitions in COPA are construed.

Filters also may well be more effective than COPA. [A] filter can prevent minors from seeing all pornography, not just pornography posted to the Web from America. COPA does not prevent minors from having access to those foreign harmful materials. That alone makes it possible that filtering software might be more effective in serving Congress' goals. . . .

Filtering software, of course, is not a perfect solution to the problem of children gaining access to harmful-to-minors materials. It may block some materials that are not harmful to minors and fail to catch some that are Whatever the deficiencies of filters, however, the Government failed to introduce specific evidence proving that existing technologies are less effective than the restrictions in COPA. . . .

[Moreover,] the Government's burden is not merely to show that a proposed less restrictive alternative has some flaws; its burden is to show that it is less effective. It is not enough for the Government to show that COPA has some effect. Nor do respondents bear a burden to introduce, or offer to introduce, evidence that their proposed alternatives are more effective. The Government has the burden to show they are less so. The Government having failed to carry its burden . . .

The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.


JUSTICE STEVENS, with whom JUSTICE GINSBURG joins, concurring.

When it first reviewed the constitutionality of the Child Online Protection Act (COPA), the Court of Appeals held that the statute's use of "contemporary community standards" to identify materials that are "harmful to minors" was a serious, and likely fatal, defect. I have already explained at some length why I agree with that holding. I continue to believe that the Government may not penalize speakers for making available to the general World Wide Web audience that which the least tolerant communities in America deem unfit for their children's consumption, cf. Reno v. American Civil Liberties Union (1997), and consider that principle a sufficient basis for deciding this case.

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


JUSTICE SCALIA, dissenting.

I agree with JUSTICE BREYER'S conclusion that the Child Online Protection Act (COPA) is constitutional. Both the Court and JUSTICE BREYER err, however, in subjecting COPA to strict scrutiny. Nothing in the First Amendment entitles the type of material covered by COPA to that exacting standard of review. “We have recognized that commercial entities which engage in ‘the sordid business of pandering’ by ‘deliberately emphasiz[ing] the sexually provocative aspects of [their nonobscene products], in order to catch the salaciously disposed,’ engage in constitutionally unprotected behavior.’

There is no doubt that the commercial pornography covered by COPA fits this description. The statute applies only to a person who, "as a regular course of such person's trade or business, with the objective of earning a profit," and "with knowledge of the character of the material” communicates material that depicts certain specified sexual acts and that “is designed to appeal to, or is designed to pander to, the prurient interest.” Since this business could, consistent with the First Amendment, be banned entirely, COPA's lesser restrictions raise no constitutional concern.



The majority . . . refers to “blocking and filtering software” as [a] “less restrictive alternative.”

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

[According to the Court] the Government might “act to encourage” the use of blocking and filtering software. The problem is that any argument that rests upon this alternative proves too much. If one imagines enough Government resources devoted to the problem and perhaps additional scientific advances, then, of course, the use of software might become as effective and less restrictive. Obviously, the Government could give all parents, schools, and Internet cafes free computers with filtering programs already installed, hire federal employees to train parents and teachers on their use, and devote millions of dollars to the development of better software. The result might be an alternative that is extremely effective.

But the Constitution does not, because it cannot, require the Government to disprove the existence of magic solutions, i.e., solutions that, put in general terms, will solve any problem less restrictively but with equal effectiveness. . . .

The [Court] finds that the Government has not proved the nonexistence of “less restrictive alternatives.” That finding, if appropriate here, is universally appropriate. And if universally appropriate, it denies to Congress, in practice, the legislative leeway that the Court's language seems to promise. If this statute does not pass the Court's “less restrictive alternative” test, what does? If nothing does, then the Court should say so clearly.