No. 00-1293 

In the Supreme Court of the United States 

JOHN ASHCROFT, ATTORNEY GENERAL, PETITIONER 

v. 

AMERICAN CIVIL LIBERTIES UNION, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 

BRIEF FOR THE PETITIONER 

THEODORE B. OLSON 
Solicitor General 

Counsel of Record 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

IRVING L. GORNSTEIN 

Assistant to the Solicitor 

General 

BARBARA L. HERWIG 
JACOB M. LEWIS 
CHARLES SCARBOROUGH 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

The Child Online Protection Act (COPA) makes it 
unlawful to make any communication for commercial 
purposes by means of the World Wide Web that is 
available to minors and that includes material that is 
“harmful to minors,” unless good faith efforts are made 
to prevent children from obtaining access to such 
material. 47 U.S.C. 231(a)(1) and (c)(1) ( Supp. V 1999). 
COPA relies in part on “community standards” to 
identify material that is “harmful to minors.” 47 U.S.C. 
231(e)(6) (Supp. V 1999). The question presented is 
whether the court of appeals properly barred enforce- 
ment of COPA on First Amendment grounds because 
the statute relies on community standards to identify 
material that is harmful to minors. 

(I) 

PARTIES TO THE PROCEEDINGS 

Petitioner is John Ashcroft, Attorney General of the 
United States. Respondents are American Civil Liber- 
ties Union, Androgyny Books, Inc. d/b/a/ a Different 
Light BookStores, American Booksellers Foundation 
for Free Expression, Artnet Worldwide Corp., Back- 
stripe, Addazi Inc. d/b/a Condomania, Electronic Fron- 
tier Foundation, Electronic Privacy Information Cen- 
ter, Free Speech Media, Internet Content Coalition, 
OBGYN.net, Philadelphia Gay News, Planetout Corpo- 
ration, Powell’s Bookstore, Riotgrrl, Salon Internet, 
Inc., and West Stock, Inc. 

(II) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Constitutional and statutory provisions involved ................... 
2 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 
14 

Argument: 

The Child Online Protection Act’s reliance on 

community standards does not violate the First 

Amendment ............................................................................ 19 

A. COPA’s harmful-to-minors standard is modeled 

on state harmful-to-minors laws that have been 

held constitutional .......................................................... 
21 

B. Community standards are an established com- 
ponent of obscenity and harmful-to-minors laws ...... 
26 

C. It is appropriate to require a nationwide business 

to conform to community standards throughout 

the country ....................................................................... 
28 

D. The harmful-to-minors test significantly 

circumscribes the types of material covered by 

COPA ................................................................................ 33 

E. Community standards concerning what is harm- 
ful to minors are likely to be reasonably constant .... 
36 

F. COPA’s reliance on community standards does 

not unduly burden speech ............................................. 

39 

G. COPA’s reliance on community standards is 

consistent with Reno v. ACLU .................................. 

43 

Conclusion ....................................................................................... 45 

Addendum I .................................................................................... 
1a 

Addendum II .................................................................................. 
3a 

Addendum III ................................................................................. 4a 

(III) 

IV 

TABLE OF AUTHORITIES 

Cases: Page 

American Booksellers v. Webb, 919 F.2d 1493 

(11th Cir. 1990), cert. denied, 500 U.S. 942 (1991) ....... 

25, 42 

American Booksellers Ass’n v. Rendell, 481 A.2d 

919 (Pa. Super. Ct. 1984) .................................................. 

25, 43 

American Booksellers Ass’n v. Virginia, 882 F.2d 

125 (4th Cir. 1989), cert. denied, 494 U.S. 1056 

(1990) ........................................................................................ 24 

Commonwealth v. American Booksellers Ass’n, 

372 S.E.2d 618 (1988) ............................................. 

23, 24, 35, 43 

Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996), 

cert. denied, 520 U.S 1117 (1997) ................................ 

24-25, 42 

Davis-Kidd Booksellers, Inc. v. McWherter, 866 

S.W.2d 520 (Tenn. 1993) ............................................. 

25, 34, 43 

Erznoznik v. City of Jacksonville, 422 U.S. 205 

(1975) ........................................................................................ 35 

FCC v. Pacifica Found., 438 U.S. 726 (1978) ................. 

9, 35 

Ginsberg v. New York, 390 U.S. 629 (1968) .......... 

4, 15, 21, 22 

Hamling v. United States, 418 U.S. 87 (1974) .............. 

14, 17, 

27, 28, 31 

Jenkins v. Georgia, 418 U.S. 153 (1974) .................. 
28, 36, 38 

Ligue Contre le Racisme et l’Antisemitisme v. 

Yahoo!Inc., No. RG: 00/05308 (T.G.I. Paris, Nov. 20, 

2000) ......................................................................................... 30 

M.S. News Co. v. Casado, 721 F.2d 1281 (10th Cir. 

1983) ..................................................................................... 

25, 43 

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

16, 27, 28, 

30, 38, 39 
Pope v. Illinois, 481 U.S. 497 (1987) ................................. 

8, 34 

Reno v. ACLU, 521 U.S. 844 (1997) ........................... 

passim 

Roth v. United States, 354 U.S. 476 (1957) .................... 

27, 28 

Sable Communications, Inc. v. FCC, 492 U.S. 115 

(1989) ............................................................................. 

14, 17, 20, 

27, 31, 32, 33, 41 

V 

Cases—Continued: Page 

Tattered Cover, Inc. v. Tooley, 696 P.2d 780 (Colo. 

1985) ..................................................................................... 

25, 43 

United States v. 12 200-Foot Reels of Super 8 M.M. 

Film, 413 U.S. 123 (1973) .................................................... 

27 

United States v. Playboy Entm’t Group, Inc., 529 

U.S. 803 (2000) ........................................................................ 

20 

United States v. Thomas, 74 F.3d 701 (6th Cir. 

1996) ......................................................................................... 29 

Upper Midwest Booksellers Ass’n v. City of Minnea- 
polis, 780 F.2d 1389 (8th Cir. 1985) ............................... 

25, 43 

Virginia v. American Booksellers Ass’n, 484 U.S. 

383 (1988) ............................................................................. 

22, 23 

Constitution and statutes: 

U.S. Const.: 

Amend. I ............................................................................ 

passim 

Amend. V ................................................................................ 

10 

Child Online Protection Act, Pub. L. No. 105-277, 

Div. C, §§ 1401-1406, 112 Stat. 2681-736 to 2681-741 

(47 U.S.C. 231 (Supp. V 1999) .............................................. 

5 

47 U.S.C. 231(a)(1) (Supp. V 1999) ...................... 

6, 9, 10, 19 

47 U.S.C. 231(c)(1) (Supp. V 1999) ............................... 

8, 19 

47 U.S.C. 231(d)(1) (Supp. V 1999) ................................. 

41 

47 U.S.C. 231(d)(2)(A) (Supp. V 1999) ........................... 

6 

47 U.S.C. 231(e)(2) (Supp. V 1999) ................................. 

19 

47 U.S.C. 231(e)(2)(B) (Supp. V 1999) ................... 

6, 10, 40 

47 U.S.C. 231(e)(6) (Supp. V 1999) ............................... 

7, 20 

47 U.S.C. 231(e)(6)(A) (Supp. V 1999) ................... 

7, 10, 20 

47 U.S.C. 231(e)(6)(B) (Supp. V 1999) ......................... 

9, 35 

47 U.S.C. 231(e)(6)(C) (Supp. V 1999) ........................... 

10 

47 U.S.C. 231(e)(7) (Supp. V 1999) ................................. 

7 

47 U.S.C. 231 note (Supp. V 1999) ............................. 5, 6, 10 

VI 

Statutes—Continued: Page 

Communications Decency Act of 1996, Pub. L. No. 

104-104, § 502, 110 Stat. 133 (47 U.S.C 223 (Supp. V 

1999) ......................................................................................... 3 

47 U.S.C. 223(a) (Supp. V 1999) ...................................... 

3 

47 U.S.C. 223(b) (Supp. V 1999) ..................................... 

31 

47 U.S.C. 223(d)(1) (Supp. V 1999) ................................. 

3 

47 U.S.C. 223(e)(5)(A) (Supp. V 1999) ........................... 

3 

47 U.S.C. 223(e)(5)(B) (Supp. V 1999) ........................... 

3 

18 U.S.C. 1461 ............................................................................ 

31 

Miscellaneous: 

144 Cong. Rec. H9910 (daily ed. Oct. 7, 1998) ...................... 

26 

H.R. Rep. No. 775, 105th Cong., 2d Sess. (1998) ........... 
passim 

Internet Indecency: Hearing Before the Senate 

Comm. on Commerce, Sci. and Transp., 105th Cong., 
2d Sess. (1998) ........................................................................ 

5 
J. Betancourt, Am I Normal? (1983) .................................... 
24 

R. Bell, Changing Bodies, Changing Lives (1980) ............. 
24 

J. Blume, Forever (1975) .......................................................... 
24 

P. Blumstein & P. Schwartz, Amerian Couples (1983) ..... 
24 

J. Collins, Hollywood Wives (1983) ........................................ 
24 

A. Comfort & J. Comfort, The Facts of Love 

(1979) .................................................................................... 

23, 24 

S. Donaldson, Lord Foul’s Bane (1977) ................................ 
24 

J. Goldsmith & A. Sykes, Internet and the Dormant 

Commerce Clause, 110 Yale L.J. 785 (2001) ..................... 

30 

P. Haines, The Diamond Waterfall (1984) ........................... 
24 

J. Joyce, Ulysses (1961) ........................................................... 
24 

J. Lindsey, Tender is the Storm (1985) ................................. 
24 

L. Niven & J. Pournelle, Lucirfer’s Hammer (1977) ......... 
24 

M. Richtel, High Stakes in the Race to Invent a 

Better-Blocker, N.Y. Times (June 28, 2001) ..................... 

30 

M. Sheffield, Where Do Babies Come From? (1972) .......... 
24 

J. Updike, The Witches of Eastwick (1984) .......................... 24 

VII 

Miscellaneous—Continued: Page 

Legislative Proposals to Protect Children from Inap- 
propriate Materials on the Internet: Hearings on 
H.R. 3783, H.R. 774, H.R. 1180, H.R. 1964, H.R. 
3177, and H.R. 3442 Before the Subcomm. on 
Telecomms., Trade and Consumer Protection of the 
House Comm. on Commerce, 105th Cong., 2d Sess. 
(1998) ........................................................................................ 5 

S. Rep. No. 225, 105th Cong., 2d Sess. (1998) ........... 

3, 8, 10, 36 

The Family of Woman (J. Mason ed. 1979) ......................... 
24 

The New Our Bodies Ourselves (J. Pincus & W. 

Sanford eds. 1984) .............................................................. 

23, 24 

The Penguin Book of Love Poetry (J. Stallworthy ed. 
1973) ......................................................................................... 24 

In the Supreme Court of the United States 

No. 00-1293 

JOHN ASHCROFT, ATTORNEY GENERAL, PETITIONER 

v. 

AMERICAN CIVIL LIBERTIES UNION, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 

BRIEF FOR THE PETITIONER 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1a-39a) 
is reported at 217 F.3d 162. The opinion of the district 
court granting respondents’ motion for a preliminary 
injunction (Pet. App. 40a-100a) is reported at 31 F. 
Supp. 2d 473. The opinion of the district court granting 
respondents’ application for a temporary restraining 
order (Pet. App. 101a-114a) is unreported. 

JURISDICTION 

The judgment of the court of appeals was entered on 
June 22, 2000. A petition for rehearing was denied on 
September 15, 2000 (Pet. App. 124a-125a). On Decem- 
ber 5, 2000, Justice Souter extended the time within 
which to file a petition for a writ of certiorari to and 
including January 15, 2001. On January 9, 2001, Justice 

(1) 

2 

Souter further extended the time within which to file a 
petition for a writ of certiorari to and including Febru- 
ary 12, 2001. The petition for a writ of certiorari was 
filed on February 12, 2001, and was granted on May 21, 
2001. The jurisdiction of this Court rests on 28 U.S.C. 
1254(1). 

CONSTITUTIONAL AND STATUTORY PROVISIONS 
INVOLVED 

The First Amendment to the United States Con- 
stitution provides in relevant part that “Congress shall 
make no law * * * abridging the freedom of speech, or 
of the press.” The pertinent provisions of the Child 
Online Protection Act are reprinted in the appendix to 
the petition for a writ of certiorari. Pet. App. 115a- 
123a. 

STATEMENT 

1. Pornographic material, from “the modestly titil- 
lating to the hardest-core,” is “widely available” on the 
Internet. Reno v. ACLU, 521 U.S. 844, 853-854 (1997). 
In 1998, there were approximately 28,000 pornographic 
sites on the World Wide Web (Web), and those sites 
generated approximately $925 million in annual reve- 
nues. H.R. Rep. No. 775, 105th Cong., 2d Sess. 7 (1998). 
Pornographic Web sites often offer “teasers”—free 
pornographic images designed to entice users to pay a 
fee to explore the whole site. H.R. Rep. No. 775, supra, 
at 10; Pet. App. 41a. 

Because Web software is easy to use, “minors who 
can read and type are capable of conducting Web 
searches as easily as operating a television remote.” 
H.R. Rep. No. 775, supra, at 9-10. As a result, porno- 
graphic material on the Internet is “widely accessible” 
to minors. Id. at 9. While many children deliberately 
search for pornographic Web sites, others accidentally 

3 

stumble upon them. Id. at 10. Searches using common 
terms such as toys, girls, boys, beanie babies, bambi, 
and doggy all lead directly to pornographic sites. Ibid. 

Pornography is harmful to children because it does 
not provide them with a normal sexual perspective. 
H.R. Rep. No. 775, supra, at 11. It teaches without 
supervision or guidance, “inundating children’s minds 
with graphic messages about their bodies, their own 
sexuality, and those of adults and children around 
them.” Id. at 11. Moreover, “[t]he prevalence of vio- 
lent, abusive, and degrading pornography can induce 
beliefs that such practices are not only common, but 
acceptable.” S. Rep. No. 225, 105th Cong., 2d Sess. 2-3 
(1998). 

2. Congress first addressed the harmful effects of 
pornographic material on the Internet in the Com- 
munications Decency Act of 1996 (CDA), Pub. L. No. 
104-104, § 502, 110 Stat. 133. The CDA prohibited the 
transmission to minors over the Internet of “indecent” 
messages, 47 U.S.C. 223(a) (Supp. V 1999), as well as 
the display, in a manner available to minors, of material 
that is “patently offensive” as measured by “contempo- 
rary community standards,” 47 U.S.C. 223(d)(1) (Supp. 
V 1999). The CDA provided a defense to prosecution to 
persons who conditioned access to covered material on 
proof of adult status, or who limited minors’ access 
through other reasonable and effective means. 
47 U.S.C. 223(e)(5) (A) and (B) (Supp. V 1999). 

In Reno v. ACLU, this Court held that the CDA’s 
regulation of “indecent” and “patently offensive” speech 
violated the First Amendment. The Court reaffirmed 
that government has “ ‘a compelling interest in protect- 
ing the physical and psychological well-being of minors’ 
which extend[s] to shielding them from indecent 
messages that are not obscene by adult standards.” 

4 

521 U.S. at 869. It concluded, however, that the gov- 
ernment had failed to demonstrate that the CDA was 
the least restrictive alternative available to further that 
compelling interest. Id. at 879. 

In defending the constitutionality of the CDA, the 
government relied on Ginsberg v. New York, 390 U.S. 
629 (1968), which upheld the constitutionality of a state 
statute that prohibited the sale to minors of magazines 
that were obscene as to minors, but not as to adults. 
The Court distinguished the CDA from the “harmful- 
to-minors” statute upheld in Ginsberg on four grounds. 
Reno v. ACLU, 521 U.S. at 865-866, 877-878. First, the 
statute upheld in Ginsberg did not prohibit parents 
from purchasing material for their children, while the 
CDA made no such exception. Id. at 865, 878. Second, 
the statute upheld in Ginsberg applied only to com- 
mercial transactions, while the CDA contained no such 
limitation. Id. at 865, 877. Third, the statute upheld in 
Ginsberg expressly did not apply to material that had 
redeeming value for minors, whereas the CDA did not 
define “indecent” and “patently offensive,” and omitted 
any requirement that the material lack serious value for 
minors. Ibid. Fourth, the statute upheld in Ginsberg 
defined a minor as a person under the age of 17, 
whereas the CDA applied to persons under 18 years. 
Id. at 865-866, 878. In connection with the third 
distinction—that the CDA failed to define its key terms 
and covered material having serious value for minors— 
the Court also observed that the “ ‘community stan- 
dards’ 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.” Id. at 877-878. 

Because of the breadth of the CDA’s coverage, the 
Court also rejected the government’s argument that 

5 

the CDA’s affirmative defenses created sufficient 
opportunities for adult-to-adult communication. The 
Court relied on the district court’s findings that there 
was no effective way to determine the age of a user who 
seeks access to material through e-mail, mail exploders, 
newsgroups, or chat rooms, and that it would be 
prohibitively expensive for noncommercial Web sites to 
verify that their users were adults. Reno v. ACLU, 521 
U.S. at 876-877. 

3. Congress reexamined the problem of minors’ 
access to pornographic material on the Internet in light 
of Reno v. ACLU. 

Both the House of Representatives 
and the Senate conducted hearings on the subject. See 
Legislative Proposals to Protect Children from 
Inappropriate Materials on the Internet: Hearings on 
H. R. 3783, H.R. 774, H.R. 1180, H.R. 1964, H.R. 3177, 
and H.R. 3442 Before the Subcomm. on Telecomms., 
Trade and Consumer Protection of the House Comm. 
on Commerce, 105th Cong., 2d Sess. (1998); Internet 
Indecency: Hearing Before the Senate Comm. on 
Commerce, Sci. and Transp., 105th Cong., 2d Sess. 
(1998). Following those hearings, Congress enacted, 
and the President signed into law, the Child Online 
Protection Act (COPA), Pub. L. No. 105-277, Div. C, §§ 
1401-1406, 112 Stat. 2681-736 to 2681-741 (codified at 47 
U.S.C. 231 (Supp. V 1999)). 

a. Congress enacted legislative findings that explain 
the basis for COPA. Congress found that there con- 
tinue to be “opportunities for minors to access materials 
through the World Wide Web in a manner that can 
frustrate parental supervision and control.” 47 U.S.C. 
231 note (Supp. V 1999) (Finding 1). Congress further 
determined that “protection of the physical and psy- 
chological well-being of minors by shielding them from 
materials that are harmful to them is a compelling gov- 

6 

ernmental interest.” 47 U.S.C. 231 note (Supp. V 1999) 
(Finding 2). Congress noted that “the industry has 
developed innovative ways to help parents and educa- 
tors restrict material that is harmful to minors through 
parental control protections and self-regulation.” 47 
U.S.C. 231 note (Supp. V 1999) (Finding 3). It found, 
however, that “such efforts have not provided a na- 
tional solution to the problem of minors accessing 
harmful material on the World Wide Web.” Ibid. Con- 
gress therefore concluded that “a prohibition on the 
distribution of material harmful to minors, combined 
with legitimate defenses, is currently the most effective 
and least restrictive means by which to satisfy the 
compelling government interest.” 47 U.S.C. 231 note 
(Supp. V 1999) (Finding 4). 

b. COPA subjects to criminal and civil sanctions any 
person who “knowingly and with knowledge of the 
character of the material, in interstate or foreign com- 
merce by means of the World Wide Web, makes any 
communication for commercial purposes that is avail- 
able to any minor and that includes any material that is 
harmful to minors.” 47 U.S.C. 231(a)(1) (Supp. V 1999). 
A person communicates “for commercial purposes” only 
if he “is engaged in the business of making such com- 
munications,” 47 U.S.C. 231(d)(2)(A)—i.e., if he “de- 
votes time, attention, or labor” to making harmful-to- 
minor communications “as a regular course of [his] 
trade or business, with the objective of earning a profit 
as a result of such activities.” 47 U.S.C. 231(e)(2)(B) 
(Supp. V 1999). 
COPA defines “material that is harmful to minors” as 
“any communication, picture, image, graphic image file, 

7 

article, recording, writing, or other matter of any kind” 
that is “obscene” or that 

(A) the average person, applying contemporary 
community standards, would find, taking the mate- 
rial as a whole and with respect to minors, is de- 
signed to appeal to, or is designed to pander to, the 
prurient interest; 

(B) depicts, describes, or represents, in a manner 
patently offensive with respect to minors, an actual 
or simulated sexual act or sexual contact, an actual 
or simulated normal or perverted sexual act, or a 
lewd exhibition of the genitals or post-pubescent 
female breast; and 

(C) taken as a whole, lacks serious literary, artistic, 
political, or scientific value for minors. 

47 U.S.C. 231(e)(6) (Supp. V 1999). A “minor” is defined 
as any person under the age of 17. 47 U.S.C. 231(e)(7) 
(Supp. V 1999). 

COPA’s definition of nonobscene material that is 
“harmful to minors” parallels the three-part “harmful to 
minors” standard approved in Ginsberg. H.R. Rep. No. 
775, supra, at 13, 27-28. It also tracks the standard that 
is used in many state laws that prohibit the public 
display of material that is harmful to minors and that 
effectively require such material to be placed behind a 
blinder rack, in a sealed wrapper, or in an opaque cover. 
H.R. Rep. No. 775, supra, at 13. COPA expressly 
provides that the question whether material is designed 
to appeal to the “prurient interest” shall be deter- 
mined according to “community standards,” 47 U.S.C. 
231(e)(6)(A) (Supp. V 1999). With respect to the other 
two prongs, Congress intended for its definition “to 
parallel the Ginsberg and Miller definitions of obscenity 

8 

and harmful to minors, as those definitions were later 
refined in Smith v. United States, 431 U.S. 291, at 300- 
02, 309 (1977) and Pope v. Illinois, 481 U.S. 497, at 500- 
01 (1987).” H.R. Rep. No. 775, supra, at 27-28. Under 
that line of cases, “prurient interest” and “patent offen- 
siveness” are determined according to “community 
standards,” but “serious value” is determined under a 
“reasonable person” test, and not according to “commu- 
nity standards.” Pope v. Illinois, 481 U.S. 497, 500-501 
& n.3 (1987). Congress regarded “community stan- 
dards” as “reasonably constant among adults in Amer- 
ica with respect to what is suitable for minors.” H.R. 
Rep. No. 775, supra, at 28. 

COPA provides “an affirmative defense to prosecu- 
tion” if a person engaged in the business of making 
harmful-to-minors communications, “in good faith, has 
restricted access by minors to material that is harmful 
to minors.” 47 U.S.C. 231(c)(1) (Supp. V 1999). To 
qualify for the defense, the person may (A) “requir[e] 
use of a credit card, debit account, adult access code, or 
adult personal identification number,” (B) “accept[] a 
digital certificate that verifies age,” or (C) use “any 
other reasonable measures that are feasible under ex- 
isting technology.” 47 U.S.C. 231(c)(1) (Supp. V 1999). 

c. In crafting COPA, Congress sought to “address[] 
the specific concerns raised” by this Court when it 
invalidated the CDA in Reno v. ACLU, and to track 
more closely the statute upheld in Ginsberg. H.R. Rep. 
No. 775, supra, at 12-16; S. Rep. No. 225, supra, at 2, 5- 

6. Six changes are significant. 
First, the CDA applied to communications other than 
those made by means of the Web, including communica- 
tions made by e-mail, newsgroups, and chat rooms, 
Reno v. ACLU, 521 U.S. at 851, and age screening was 
found not to be technologically feasible for those forms 

9 

of communication, id. at 876-877. In contrast, COPA 
applies only to material that is communicated by means 
of the Web, 47 U.S.C. 231(a)(1) (Supp. V 1999), where 
age screening is both technologically feasible and 
economically affordable. H.R. Rep. No. 775, supra, at 
13-14. 

Second, the CDA applied to materials that were “in- 
decent” or “patently offensive,” without defining either 
term and without making clear whether the “indecent” 
and “patently offensive” determinations should be made 
with respect to adults or minors. Reno v. ACLU, 521 
U.S. at 871 & n.37, 873, 877. In contrast, COPA identi- 
fies the particular sexual activities and anatomical fea- 
tures depiction of which may be found to be “patently 
offensive,” and makes clear that the determination 
whether material containing such a depiction is “pat- 
ently offensive” shall be made “with respect to minors.” 
47 U.S.C. 231(a)(1) and (e)(6)(B) (Supp. V 1999). 

Third, the CDA did not require that the covered 
material “appeal to the prurient interest” or lack 
“serious value.” It therefore covered vast amounts of 
non-pornographic materials having serious value, in- 
cluding material containing any of the seven “dirty 
words” used in the monologue at issue in FCC v. 
Pacifica Foundation, 438 U.S. 726 (1978), discussions 
about prison rape or safe sexual practices, artistic 
images of nude subjects, and arguably the card catalog 
of the Carnegie Library. Reno v. ACLU, 521 U.S. at 
873, 877-878. In contrast, COPA contains all three 
prongs of the Ginsberg test. Thus, by its terms, COPA 
applies only to material that, “taken as a whole and 
with respect to minors,” is designed to appeal to the 
“prurient interest,” and that, “taken as a whole, lacks 
serious literary, artistic, political, or scientific value for 
minors.” 47 U.S.C. 231(e)(6)(A) and (C) (Supp. V 1999). 

10 

Fourth, the CDA applied not only to commercial 
transactions, to which the statute in Ginsberg was 
limited, but also to all nonprofit entities and to individu- 
als posting messages on their own computers. It there- 
fore included categories of speakers who might not 
have been able to afford the costs of age screening. 
Reno v. ACLU, 521 U.S. at 856, 877. In contrast, COPA 
applies only to persons engaged in business who make 
harmful-to-minors Web communications “for commer- 
cial purposes,” 47 U.S.C. 231(a)(1) (Supp. V 1999), 
“as a regular course” of their businesses, 47 U.S.C., 
231(e)(2)(B) (Supp. V 1999). Such persons, Congress 
determined, can afford the costs of compliance. H.R. 
Rep. No. 775, supra, at 13-5. 

Fifth, the CDA made it unlawful for parents to 
permit their children to use the family computer to 
view covered material. Reno v. ACLU, 521 U.S. at 865, 
878. In contrast, COPA contains no such intrusion on 
the parent-child relationship. H.R. Rep. No. 775, supra, 
at 15; S. Rep. No. 225, supra, at 6. 

Sixth, the CDA defined a minor as any person under 
18 years of age, thereby including some persons in their 
first year of college. Reno v. ACLU, 521 U.S. at 865- 
866, 878. In contrast, COPA defines “minor” as “any 
person under 17 years of age.” 47 U.S.C. 231(e)(7) 
(Supp. V 1999). 

4. Immediately after COPA was signed into law, the 
American Civil Liberties Union and others (respon- 
dents) filed suit in federal district court to challenge it. 
Respondents alleged that COPA violates the First and 
Fifth Amendments to the Constitution, and they sought 
to enjoin its enforcement. Pet. App. 12a & n.13, 42a. 
The district court entered a temporary restraining 
order prohibiting the government from enforcing the 

11 

Act, id. at 112a, and that order was extended for a brief 
period by agreement of the parties, id. at 42a-43a. 

The day the TRO was set to expire, the district court 
entered a preliminary injunction prohibiting the gov- 
ernment from enforcing COPA. Pet. App. 42a-43a, 98a. 
Although the court determined that respondents were 
likely to prevail on their First Amendment claim, many 
of the court’s findings and conclusions support COPA’s 
constitutionality. For example, the district court found 
that pornographic material is widely available to minors 
who “surf ” the Web. Id. at 41a. The court also held 
that the government has a compelling interest in pro- 
tecting minors from harmful material on the Web that 
is not obscene by adult standards. Id. at 90a. 

The court further found that adult identification 
systems permit Web site operators to prevent minors 
from obtaining access to harmful materials, while still 
offering such materials to adults. Pet. App. 71a. The 
court noted that Adult Check provides, at no cost to a 
Web site operator, a screen that can be used to block 
access by minors. Id. at 75a. An adult who comes 
across such a screen may click on a link to the Adult 
Check site, immediately purchase a Personal Identifica- 
tion Number (PIN) for an annual fee of $16.95, return to 
the original site, and use the PIN to obtain access to the 
site. Id. at 75a-76a. The court cited testimony that 
approximately three million people possess a valid 
Adult Check PIN, and 46,000 Web sites accept them. 
Id. at 76a. Despite those findings, the district court 
determined that respondents were likely to show that 
COPA imposes an impermissible burden on speech that 
is protected for adults. Id. at 90a. In support of that 
conclusion, the court found only that respondents were 
likely to establish at trial that the placement of adult 
screens in front of harmful-to-minor materials “may 

12 

deter” users from seeking access to such materials, 
which “may affect” the speakers’ economic ability to 
provide such communications. Id. at 89a. 

The district court also found that the voluntary use of 
“blocking” technology might be “at least as successful 
as COPA” in restricting minors’ access to harmful 
material without imposing the same burdens on consti- 
tutionally protected speech. Pet. App. 94a. The court 
acknowledged that blocking software is both over- and 
under-inclusive—it blocks some sites that contain no 
harmful material, and permits access to some sites that 
contain such material. Ibid. The court also noted that 
“[i]t is possible that a computer-savvy minor with some 
patience would be able to defeat the blocking device,” 
and that “a minor’s access to the Web is not restricted if 
[that minor] accesses the Web from an unblocked 
computer.” Id. at 82a. The court found it more signifi- 
cant, however, that blocking software can block harmful 
material not covered by COPA, such as material on 
foreign Web sites and material outside the Web. Id. at 
94a. 

5. The court of appeals affirmed the district court’s 
preliminary injunction. Pet. App. 1a-39a. It did so, 
however, on a ground upon which the district court had 
not relied, the parties had not briefed on appeal, and 
the court of appeals had raised for the first time at oral 
argument. Id. at 21a, 22a n.19. 

Like the district court, the court of appeals held that 
“the government has a compelling interest in protecting 
children from material that is harmful to them, even if 
not obscene by adult standards.” Pet. App. 20a. Unlike 
the district court, the court of appeals did not question 
the government’s ability to demonstrate that COPA is 
the least restrictive means available to further that 
compelling interest. Thus, the court of appeals rejected 

13 

the district court’s reliance on the voluntary use of 
blocking software as a less restrictive alternative (id. at 
15a n.16); it acknowledged that, in enacting COPA, 
Congress had sought to address the “specific concerns” 
raised in Reno v. ACLU (id. at 6a); and it assumed for 
purposes of its decision that “there may be no other 
means by which harmful material on the Web may be 
constitutionally restricted” (id. at 3a). The court held, 
however, that “[t]he State may not regulate at all if it 
turns out that even the least restrictive means of regu- 
lation is still unreasonable when its limitations on free- 
dom of speech are balanced against the benefits gained 
from those limitations,” id. at 33a (citation omitted), and 
it concluded that “regulation under existing technology 
is unreasonable here,” id. at 34a. 

The court of appeals based that finding of unreason- 
ableness on COPA’s “reliance on ‘contemporary com- 
munity standards’ in the context of the electronic 
medium of the Web to identify material that is harmful 
to minors.” Pet. App. 21a. The court held that COPA’s 
reliance on community standards, “in and of itself, im- 
poses an impermissible burden on constitutionally pro- 
tected First Amendment speech.” Id. at 3a. 

The court of appeals noted that in Reno v. ACLU, 
this Court had pointed out that “the ‘community stan- 
dards’ 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.” Pet. App. 22a 
(quoting 521 U.S. at 877-878). The court then deter- 
mined that “Web publishers are without any means to 
limit access to their sites based on the geographic loca- 
tion of particular Internet users,” making all content 
posted on the Web available to a nationwide audience. 
Id. at 24a. As a result, the court reasoned, “to avoid 

14 

liability under COPA, affected Web publishers would 
either need to severely censor their publications or 
implement an age or credit card verification system 
whereby any material that might be deemed harmful 
by the most puritan of communities in any state is 
shielded behind such a verification system.” Id. at 24a- 
25a. If Web publishers were to choose to comply 
through age screening, the court noted, it “would pre- 
vent access to protected material by any adult * * * 
without the necessary age verification credentials.” Id. 
at 25a. Based on those considerations, the court con- 
cluded that COPA “imposes an overreaching burden 
and restriction on constitutionally protected speech.” 
Id. at 29a. 

The court of appeals acknowledged that in Hamling 

v. United States, 418 U.S. 87 (1974), and Sable 
Communications, Inc. v. FCC, 492 U.S. 115 (1989), this 
Court upheld the application of varying community 
standards to persons whose commercial conduct had 
effects in different geographic areas. Pet. App. 25a-26a. 
It distinguished those cases, however, on the ground 
that the parties involved “had the ability to control the 
distribution of controversial material with respect to 
the geographic communities into which they released 
it.” Id. at 26a. 

SUMMARY OF ARGUMENT 

This Court has repeatedly held that the government 
has a compelling interest in protecting children from 
material that is harmful to them, even if it is not 
obscene for adults. The court of appeals in this case 
agreed with that fundamental proposition. Further- 
more, the court of appeals assumed for purposes of its 
decision that the Child Online Protection Act repre- 
sents the least restrictive alternative to further that 

15 

compelling interest, and that there may be no other 
means by which harmful material on the Web may be 
constitutionally restricted. The court nonetheless held 
that COPA’s reliance on community standards to deter- 
mine whether material is harmful to minors imposes an 
impermissible burden on protected speech. This Court, 
however, has long approved the use of community stan- 
dards as a central component of obscenity and harmful- 
to-minors statutes, and has viewed them as furnishing 
an indispensable First Amendment safeguard. 

A. COPA’s harmful-to-minors standard is firmly 
grounded in widely accepted and constitutionally sound 
state harmful-to-minors laws. In Ginsberg v. New 
York, 390 U.S. 629, 641 (1968), this Court upheld the 
constitutionality of a state law that prohibited the sale 
to minors of “harmful” material, explaining that it con- 
stitutionally advances the state’s interest in shielding 
minors from material that impairs their moral develop- 
ment. 

Since Ginsberg, many States have also prohibited the 
public display of material that is harmful to minors. 
Such laws effectively require pornographic magazines 
such as Hustler, Penthouse, and Playboy to be placed 
behind blinder racks, in a sealed wrapper, or otherwise 
shielded from minors. Courts of appeals and state 
courts have regularly upheld such state display laws, 
rejecting claims that they impermissibly interfere with 
adult access to protected speech. 

Pornographic material is so widely available on the 
World Wide Web that it threatens to render state 
blinder laws largely meaningless. To address that 
serious problem, COPA requires commercial entities 
that regularly display harmful-to-minors material to 
place behind age verification screens the same kind of 
material covered by state blinder laws. 

16 

B. The court of appeals singled out COPA’s reliance 
on community standards as constitutionally flawed. 
But community standards have long been a component 
of both state harmful-to-minors laws and state and 
federal obscenity laws. Far from treating a reliance on 
community standards as constitutionally suspect, this 
Court has viewed community standards as furnishing 
an indispensable First Amendment safeguard. As 
explained in Miller v. California, 413 U.S. 15, 33 (1973), 
reliance on community standards ensures that material 
is assessed in terms of its effect on an average person, 
rather than on an unusually susceptible one. 

C. The court of appeals rested its condemnation of 
community standards on a finding that Web businesses 
cannot prevent material from reaching particular 
geographic areas, effectively forcing those businesses 
to conform to the standards of the most puritan com- 
munity. There are ways for Web businesses to limit 
their material to particular geographic areas. Even if 
we assume, however, that Web businesses must con- 
form to community standards throughout the country, 
that would not render COPA unconstitutional. 

The inevitable consequence of Miller’s approval of 
community standards is that a commercial entity that 
chooses to operate a business on a nationwide medium 
must observe community standards throughout the 
nation. There is nothing unreasonable about that con- 
sequence. A commercial entity that regularly displays 
harmful-to-minors material on a nationwide medium 
obtains the advantages of a nationwide market for its 
profit-making activities. It is entirely reasonable to 
require businesses that have made that choice, and 
have reaped the associated economic advantages, to 
make sure that their business activities do not cause 

17 

harm to minors in the communities from which they 
seek to profit. 

In Hamling v. United States, 418 U.S. 87 (1974), and 
Sable Communications, Inc. v. FCC, 492 U.S. 115 
(1989), this Court held that commercial entities that dis- 
tribute possibly obscene material to multiple communi- 
ties have the responsibility to ensure that their com- 
mercial activities are lawful in each of the affected 
communities. The principle involved in those cases is 
equally applicable here. 

D. The court of appeals rested its holding in large 
part on its view that COPA’s reliance on community 
standards requires vast amounts of material to be 
placed behind age verification screens. In reaching that 
conclusion, however, the court ignored the serious 
value prong of the harmful-to-minors statute. That 
prong of the statute does not incorporate community 
standards, and it excludes from coverage as a matter of 
law material that has serious value for a legitimate 
minority of older minors. The serious value prong of 
the statute, together with the legal limitations imposed 
by the other two prongs, confines COPA’s reach to 
material that is clearly pornographic, and excludes from 
coverage material that contains explicit but serious 
discussions of sexual issues. 

E. The constitutionality of COPA’s reliance on com- 
munity standards is further supported by Congress’s 
judgment that community standards are reasonably 
constant throughout the country. The exhibits intro- 
duced in this case confirm that common-sense judg- 
ment. They illustrate that, as to material that is not 
excluded from coverage as a matter of law, there is 
unlikely to be much variance throughout the nation on 
the question whether the material appeals to the 
prurient interest and is patently offensive with respect 

18 

to minors. Congress’s intent that juries would be 
instructed to apply community standards without geo- 
graphic specification further promotes a reasonably 
constant application of community standards. 

F. COPA’s reliance on community standards does 
not impose an undue burden on speech. The Act is 
directed primarily to commercial pornographers who 
already put most of their material behind age verifica- 
tion screens. The principal effect of the Act is to 
require those commercial pornographers to put their 
teasers behind age verification screens as well. COPA’s 
reliance on community standards also does not impose 
an undue burden on other businesses that regularly 
display material that may be harmful to minors. As to 
material that lacks serious value for a legitimate minor- 
ity of older minors, such businesses could reasonably 
anticipate that juries in different communities would 
react similarly to the material. 

To the extent that there remains any meaningful 
variance in community standards, however, businesses 
that regularly display possibly harmful material would 
simply need to place somewhat more material behind an 
age verification screen. At least one adult verification 
service (Adult Check) will set up an adult verification 
system at no cost to the Web site. Moreover, as of the 
time of the district court’s decision, an adult identifica- 
tion number could be purchased for less than $20 per 
year, and millions of adults had purchased adult IDs. 
At most, COPA’s reliance on community standards im- 
poses a modest burden on adult access to pornographic 
material, and that modest burden is outweighed by the 
government’s compelling interest in shielding minors 
from material that is harmful to them. 

G. In Reno v. ACLU, the Court noted that one fea- 
ture of the CDA was that the community standards 

19 

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. 521 U.S. at 877-878. The Court 
made that observation, however, in connection with a 
statute that it found to be of unprecedented vagueness 
and breadth, and that was not limited to material that 
was harmful to minors, for which Congress determined 
in enacting COPA that community standards are 
reasonably constant throughout the United States. In 
COPA, Congress responded directly to the Court’s 
concern about the unprecedented breadth and unde- 
fined parameters of the CDA. In contrast to the CDA, 
COPA’s coverage is both narrow and well-defined. In 
the context of that very different statute, a reliance on 
community standards does not raise independent 
constitutional concerns. 

ARGUMENT 

THE CHILD ONLINE PROTECTION ACT’S RELI- 
ANCE ON COMMUNITY STANDARDS DOES NOT 
VIOLATE THE FIRST AMENDMENT 

COPA makes it unlawful for a person engaged in 
business to make communications for commercial 
purposes by means of the World Wide Web that are 
available to minors and that regularly include material 
that is “harmful to minors.” 47 U.S.C. 231(a)(1) and 
(e)(2) (Supp. V 1999). The Act affords a defense to pro- 
secution if access to “harmful-to-minors” material is 
conditioned on verification of adult status or if other 
good faith efforts are made to prevent minors from 
obtaining access to such material. 47 U.S.C. 231(c)(1) 
(Supp. V 1999). COPA uses a three-part test to deter- 
mine whether material is harmful to minors: the 
material must (A) taken as a whole, be designed to 

20 

appeal to the “prurient interest” of minors, (B) depict 
sexual acts or contact or specified parts of the anatomy 
in a manner that is “patently offensive” with respect to 
minors; and (C) taken as a whole, “lack[] serious liter- 
ary, artistic, political, or scientific value for minors.” 
47 U.S.C. 231(e)(6) (Supp. V 1999). The first two 
inquiries—prurient interest and patent offensiveness 
—are to be decided from the perspective of “the aver- 
age person” applying “contemporary community stan- 
dards.” 47 U.S.C. 231(e)(6)(A) (Supp. V 1999); see pp. 7- 
8, supra. Congress understood “community standards” 
to be “reasonably constant among adults in America 
with respect to what is suitable for minors.” H.R. Rep. 
No. 775, supra, at 28. The “serious value” prong has a 
“reasonable person” test that does not incorporate 
community standards. See pp. 7-8, supra. 

COPA regulates speech based on its content. Ac- 
cordingly, in order to survive constitutional scrutiny, it 
must be supported by a compelling interest, and it must 
be the least restrictive alternative available to further 
that interest. United States v. Playboy Entm’t Group, 
Inc., 529 U.S. 803, 813 (2000); Sable Communications, 
Inc. v. FCC, 492 U.S. 115, 126 (1989). The court of 
appeals did not suggest that COPA failed either of 
those requirements. To the contrary, the court held 
that “the government has a compelling interest in pro- 
tecting children from material that is harmful to them, 
even if not obscene by adult standards,” Pet. App. 20a, 
and it assumed for purposes of its decision that “there 
may be no other means by which harmful material on 
the Web may be constitutionally restricted,” id. at 3a. 
The court of appeals nonetheless held that COPA’s 
reliance on “community standards” to help identify 
material that is harmful to minors “imposes an over- 
reaching burden and restriction on constitutionally 

21 

protected speech.” Id. at 29a; see also id. at 2a-3a, 21a, 
34a. That holding is incorrect. COPA’s reliance on 
community standards does not violate the First 
Amendment. 

A. COPA’s Harmful-to-Minors Standard Is Modeled On 

State Harmful-to-Minors Laws That Have Been Held 

Constitutional 

1. COPA’s harmful-to-minors standard has its ori- 
gins in statutes that prohibit the sale to minors of 
material that is “harmful” to them. This Court ad- 
dressed the constitutionality of such a statute in Gins- 
berg v. New York, 390 U.S. 629 (1968). The harmful-to- 
minors statute at issue in Ginsberg covered “any de- 
scription or representation, in whatever form, of nudity, 
sexual conduct, sexual excitement, or sadomasochistic 
abuse when it”: 

(i) predominantly appeals to the prurient, shame- 
ful or morbid interest of minors, and 

(ii) is patently offensive to prevailing standards in 
the adult community as a whole with respect to 
what is suitable material for minors, and 

(iii) is utterly without redeeming social importance 
for minors. 

Id. at 646. The Court described the New York statute 
as covering “ ‘girlie’ picture magazines” that are not ob- 
scene by adult standards, but are obscene with respect 
to minors. Id. at 634. 

With that understanding of the limited reach of the 
statute, the Court upheld its constitutionality, stating 
that “[w]e do not regard New York’s regulation in 
defining obscenity on the basis of its appeal to minors 
under 17 as involving an invasion of such minors’ 

22 

constitutionally protected freedoms.” Ginsberg, 390 
U.S. at 638. The Court explained that “[t]he legislature 
could properly conclude” that parents who have “pri- 
mary responsibility for children’s well-being are en- 
titled to the support of laws designed to aid discharge of 
that responsibility,” id. at 639, “[t]he State also has an 
independent interest in the well-being of its youth,” id. 
at 640, and the legislature was entitled to regard the 
material covered by the statute as “impairing the 
ethical and moral development” of minors, id. at 641. 

2. At the time of Ginsberg, nearly every State had a 
prohibition on the sale to minors of “harmful-to-minors” 
material. 390 U.S. at 647-648. Those state laws, or 
slight modifications of them, remain in effect today. 
See Addendum I, infra, 1a-2a. Many States have found, 
however, that a sale prohibition is insufficient to 
vindicate their interest in shielding minors from the 
harmful effects of pornographic materials, such as the 
pornographic photographs that appear in Hustler, 
Penthouse, and Playboy. When such magazines are 
placed in a public area of a store, minors may be able to 
gain access to them without having to purchase them. 
Many States have therefore established a prohibition 
on the public display of material that is harmful to 
minors. Such laws effectively require “harmful-to- 
minors” material to be placed behind a blinder rack, in a 
sealed wrapper, in an opaque cover, in a separate room, 
or behind the counter. See Addendum II, infra, 3a. 
This Court was presented with a facial challenge to 
one such law in Virginia v. American Booksellers 
Ass’n, 484 U.S. 383 (1988). The statute at issue in 
American Booksellers made it unlawful to display 
material that was “harmful to juveniles” in a manner 
that permitted juveniles to examine and peruse the 
material, and defined “harmful to juveniles” in much 

23 

the same way that the statute in Ginsberg defined 
“harmful to minors.” Id. at 386-387. The district court 
held the statute unconstitutional, on the ground that it 
impermissibly interfered with adult access to 
nonobscene works, and the court of appeals affirmed. 
Id. at 391. 

In this Court, the plaintiffs argued that the display 
prohibition applied to as much as 25% of a typical 
bookseller’s stock, and cited 16 examples of valuable 
works that allegedly were covered. 484 U.S. at 394-395. 
The State, by contrast, argued that the law covered 
only “a very few ‘borderline’ obscene works,” and none 
of the plaintiffs’ examples. Id. at 394. This Court noted 
that, if the State’s description of the statute’s coverage 
was accurate, it would affect “substantially” the cost of 
complying with the law, and the burden on adult access 
to speech would be “dramatically altered.” Ibid. Ac- 
cordingly, rather than addressing the merits, the Court 
certified to the Virginia Supreme Court the question 
whether any of the 16 books introduced as plaintiffs’ 
exhibits were covered by the statute. Id. at 398. 

In Commonwealth v. American Booksellers Ass’n, 
372 S.E.2d 618 (1988), the Virginia Supreme Court 
answered the certified question by holding that none of 
16 books fell within the ambit of the state statute. The 
court construed the statute as not applying to works 
that “have serious literary, artistic, political or scientific 
value for a legitimate minority of normal, older adoles- 
cents.” Id. at 624. The court then concluded that 
although the 16 books “vary widely in merit, none of 
them lacks ‘serious literary, artistic, political or scien- 
tific value’ ” for that group of minors. Ibid. The books 
at issue included A. Comfort & J. Comfort, The Facts of 
Love (1979), and The New Our Bodies Ourselves (J. 
Pincus and W. Sanford eds. 1984). 372 S.E. 2d at 622. 

24 

The Facts of Love contains graphic drawings of the 
human anatomy, and both books contain explicit, but 
informative, discussions of sexual acts. Facts of Love, 
at 25-55; The New Our Bodies Ourselves, at 164-197.1 

After the Virginia Supreme Court’s decision, this 
Court remanded the case to the Fourth Circuit for 
reconsideration in light of that decision. On remand, 
the Fourth Circuit upheld the constitutionality of the 
state statute, stating that it “agree[d] with the Virginia 
Supreme Court that the amendment to the statute 
places a minimal burden on booksellers and represents 
a constitutionally permissible exercise of the state’s 
police powers.” American Booksellers Ass’n v. Vir- 
ginia, 882 F.2d 125, 127-128 (1989). This Court then 
denied certiorari. 494 U.S. 1056 (1990). 

Other courts of appeals and state courts have simi- 
larly upheld the constitutionality of state statutes that 
prohibit the public display of “harmful-to-minors” ma- 
terial. Despite claims that such laws impose unaccept- 
able burdens on adult access to speech, those courts 
have held that the laws constitutionally further the 
government’s interest in protecting minors from mate- 
rial that is harmful to them. Crawford v. Lungren, 96 
F.3d 380 (9th Cir. 1996), cert. denied, 520 U.S. 1117 

1 The other 14 books at issue in Virginia v. American Book- 
seller were: R. Bell, Changing Bodies, Changing Lives (1980); J. 
Betancourt, Am I Normal? (1983); J. Blume, Forever (1975); P. 
Blumstein & P. Schwartz, American Couples (1983); J. Collins, 
Hollywood Wives (1983); S. Donaldson, Lord Foul’s Bane (1977); 
The Family of Woman (J. Mason ed. 1979); P. Haines, The Dia- 
mond Waterfall (1984); J. Joyce, Ulysses (1961); J. Lindsey, Tender 
is the Storm (1985); L. Niven & J. Pournelle, Lucifer’s Hammer 
(1977); The Penguin Book of Love Poetry (J. Stallworthy ed. 1973); 
M. Sheffield, Where Do Babies Come From? (1972); and J. Updike, 
The Witches of Eastwick (1984). See 372 S.E.2d at 622. 

25 

(1997); American Booksellers v. Webb, 919 F.2d 1493 
(11th Cir. 1990), cert. denied, 500 U.S. 942 (1991); M.S. 
News Co. v. Casado, 721 F.2d 1281 (10th Cir. 1983); 
Upper Midwest Booksellers Ass’n v. City of Minneapo- 
lis, 780 F.2d 1389 (8th Cir. 1985); Davis-Kidd Booksell- 
ers, Inc. v. McWherter, 866 S.W.2d 520, 526-529 (Tenn. 
1993); American Booksellers Ass’n v. Rendell, 481 A.2d 
919, 941-942 (Pa. Super. Ct. 1984); but see Tattered 
Cover, Inc. v. Tooley, 696 P. 2d 780 (Colo. 1985). 

3. The Web threatens to render state harmful-to- 
minors laws largely meaningless. There are literally 
thousands of pornographic sites on the Web. Those 
sites often offer “teasers”—free pornographic images 
designed to entice users to pay a fee to explore the 
whole site. H.R. Rep. No. 775, supra, at 7, 10. Minors 
today can search the Web as easily as they can change 
television channels. Id. at 9-10. Thus, in the privacy of 
their homes or those of friends, unsupervised minors 
can, with the click of a mouse, visit one pornographic 
site after another, and view and then print one set of 
pornographic teasers after another. 

In adopting COPA, Congress sought to address that 
serious problem. Responding to this Court’s holding in 
Reno v. ACLU, 521 U.S. at 865-866, 877-878, that the 
CDA suffered from vices not shared by state harmful- 
to-minor laws, and drawing on the successful experi- 
ence that States have had with harmful-to-minors dis- 
play laws, Congress adopted the same basic approach 
for the Web that States have adopted for local stores. 
Like those display laws, COPA does not ban the sale of 
harmful-to-minors material. Instead, it simply requires 
that the same kind of material that States require to be 
placed behind blinder racks must be placed behind 
adult identification screens or otherwise shielded from 
minors who are surfing the Web. See H.R. Rep. No. 

26 

775, supra, at 15 (By requiring “age verification before 
pornography is made available,” COPA in effect re- 
quires commercial online pornographers “to put sexu- 
ally explicit images ‘behind the counter.’ ”); 144 Cong. 
Rec. H9910 (daily ed. Oct. 7, 1998) (remarks of Rep. 
Wilson) (“we are really doing no more than is required 
by most Circle K’s or convenience stores”). 

Because COPA uses the same harmful-to-minors 
standard as state display laws, its scope is similarly 
narrow. Like those laws, COPA applies to porno- 
graphic material such as pictures that appear in 
Hustler, Penthouse, and Playboy. Like those laws, and 
unlike the CDA, COPA does not apply to material that 
has serious value for a legitimate minority of older 
minors, such as the use of graphic language to make a 
serious or humorous point, discussions about prison 
rape, discussions about safe sex, or the kind of artistic 
paintings of nude subjects that are displayed in the 
National Gallery of Art. Compare Reno v. ACLU, 521 
U.S. at 873, 877-878. Moreover, like the state display 
laws, COPA’s harmful-to-minors standard does not 
impose an undue burden on protected speech. Instead, 
its principal effect is simply to require commercial 
pornographers who already place most of their 
pornographic material behind adult verification screens 
to place their pornographic teasers behind those 
screens as well. COPA’s harmful-to-minors standard is 
therefore firmly grounded in widely accepted and 
constitutionally sound state harmful-to-minors laws. 

B. Community Standards Are An Established Component 

Of Obscenity And Harmful-To-Minors Laws 

The court of appeals isolated one aspect of COPA’s 
harmful-to-minors standard as constitutionally flawed 
—its reliance on community standards to help deter- 

27 

mine whether material is designed to appeal to the 
prurient interest of minors and is patently offensive 
with respect to minors. That reliance, however, is not 
unique to COPA. Community standards have long been 
a component of obscenity and harmful-to-minors stat- 
utes, and this Court has repeatedly approved their use. 

The application of community standards in deter- 
mining obscenity predated this Court’s seminal decision 
in Roth v. United States, 354 U.S. 476 (1957). See id. at 
488-489 & n.26. In Roth, the Court upheld the constitu- 
tionality of applying “contemporary community stan- 
dards” to determine whether material is obscene. Ibid. 
The statute upheld in Ginsberg similarly applied to 
material that was “patently offensive to prevailing 
standards in the adult community as a whole with 
respect to what is suitable material for minors.” 390 
U.S. at 646 (emphasis added). In Miller v. California, 
413 U.S. 15, 30-34 (1973), the Court reaffirmed that, in 
enforcing obscenity laws, States are free to apply “com- 
munity standards” rather than a hypothetical “national 
standard” in determining what is designed to appeal to 
the “prurient interest” or what is “patently offensive.” 
And in subsequent cases, the Court has upheld the 
constitutionality of applying “community standards” in 
deciding those issues under federal obscenity laws. 
Sable, 492 U.S. at 124-126; Hamling v. United States, 
418 U.S. 87, 106 (1974); United States v. 12 200-Foot 
Reels of Super 8 M.M. Film, 413 U.S. 123, 129-130 
(1973). State harmful-to-minors laws, including display 
laws, similarly incorporate “community standards” to 
determine whether material is designed to appeal to the 
prurient interest of minors, is patently offensive with 
respect to minors, or both. See Addendum III, infra, 
4a-5a. 

28 

Far from treating community standards as constitu- 
tionally suspect, this Court has always viewed commu- 
nity standards as furnishing an indispensable First 
Amendment safeguard. Early lower court obscenity 
cases had permitted obscenity to be judged by its effect 
upon “particularly susceptible persons.” Roth, 354 U.S. 
at 489. In Roth, the Court rejected that standard as 
inconsistent with the First Amendment, and approved 
application of community standards as a safeguard 
against the censoring of works that legitimately ad- 
dress sexual issues. 354 U.S. at 488-489. In Miller, the 
Court emphasized the crucial role of community stan- 
dards, explaining that they ensure that material “will 
be judged by its impact on an average person, rather 
than a particularly susceptible or sensitive person.” 413 
U.S. at 33. And in Hamling, 418 U.S. at 107, the Court 
reiterated that the application of community standards 
“assure[s] 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.”2 

C. It Is Appropriate To Require A Nationwide Business 

To Conform To Community Standards Throughout The 

Country 

1. The court of appeals acknowledged that commu- 
nity standards could be applied constitutionality in all 
contexts other than the Internet and the Web. Pet. 

2 Under this Court’s decisions, the legislature is free to define 
community standards in terms of a particular statewide commu- 
nity, a particular local community within a State, or without any 
geographic specification. Jenkins v. Georgia, 418 U.S. 153, 157 
(1974); Miller, 413 U.S. at 33-34. In COPA, Congress has chosen to 
have juries instructed to apply community standards without geo- 
graphic specification. See p. 38, infra. 

29 

App. 35a. The court held, however, that community 
standards could not be applied constitutionally to the 
Web. Based on the determination that there is no 
technology on the Web that permits a Web site opera- 
tor to limit a communication to a particular geographic 
area, it concluded that applying community standards 
to the Web effectively means that a commercial Web 
site must place behind an age verification screen the 
material that offends the most puritan community. Id. 
at 24a-25a. The court viewed that burden as constitu- 
tionally impermissible. Id. at 29a. 

The court of appeals’ belief that there is no way for a 
Web site operator to avoid disseminating its material to 
a particular geographic community is incorrect. As 
discussed in the footnote below, a Web business can 
target particular geographic areas.3 Even if we accept 

3 In support of its conclusion, the court of appeals cited a 
finding of the district court. Pet. App. 24a. The district court 
found that, once a Web site “chooses to make [material] available 
to all, it generally cannot prevent that content from entering any 
geographic community.” Id. at 62a. The district court’s limited 
finding does not support the court of appeals’ broader conclusion 
that there is no way at all in which a web site operator can limit its 
material to particular geographic communities. For example, a 
Web business can require persons who wish to gain access to its 
site to register and obtain a password before they can proceed 
further. The online version of the New York Times, for example, 
requires such registration in order to gain access to all but the first 
page of its Web site. See http://www.nytimes.com. Following that 
model, a Web publisher could obtain name and address information 
through a registration process, and then mail passwords to the ad- 
dresses provided at registration, limiting such mailings to the geo- 
graphic areas of its choice. Compare United States v. Thomas, 74 
F.3d 701, 705 (6th Cir. 1996) (upholding application of community 
standards to electronic bulletin board, noting that access to the 
board was “limited to members who were given a password after 
they paid a membership fee and submitted a signed application 

30 

for present purposes the premise of the court of 
appeals’ holding—that COPA effectively requires 
Web businesses to conform to community standards 
throughout the country concerning what material must 
be placed behind an age verification screen—that 
consequence does not violate the First Amendment. 

2. As already discussed, the Court in Miller upheld 
the constitutionality of applying community standards 
rather than uniform national standards in determining 
whether material appeals to the prurient interest and is 
patently offensive. 413 U.S. at 30-34. The inevitable 
consequence of that approval is that a person who 
chooses to conduct a nationwide business or to operate 
a business on a nationwide medium must observe com- 
munity standards throughout the nation. 

There is nothing “unreasonable” about that conse- 
quence. Pet. App. 33a. When a commercial entity 
chooses to conduct a nationwide business or to operate 
on a nationwide medium, like the Web, and to regularly 
display harmful-to-minors material, it obtains the 
advantages of a nationwide market for its profit-making 
activities. It is entirely reasonable to require busi- 

form” that “requested the applicant’s age, address, and telephone 
number”). In addition, developing technologies now permit a Web 
business to determine instantly a content receiver’s geographical 
identity based on the Internet protocol (IP) address of the user’s 
computer. J. Goldsmith & A. Sykes, The Internet and the Dormant 
Commerce Clause, 110 Yale L.J. 785, 810 (2001). See Interim 
Order, Ligue Contre le Racisme et l’Antisemitisme v. Yahoo! Inc., 
No. Rg: 00/05308 (T.G.I. Paris, Nov. 20, 2000) (detailing ways in 
which Yahoo! Inc., could block access from France to sites auction- 
ing Nazi memorabilia). See also M. Richtel, High Stakes in the 
Race to Invent a Bettor-Blocker, N.Y. Times, June 28, 2001, at E6 
(describing efforts of online gambling companies to avoid liability 
by restricting access by persons from countries where such 
gambling is illegal). 

31 

nesses that have made that choice and that have reaped 
that economic advantage to make sure that their 
business activities do not cause harm to minors in the 
communities from which they seek to profit. 

3. This Court’s decisions in Hamling and Sable 
support that conclusion. Hamling involved a criminal 
prosecution under 18 U.S.C. 1461 for mailing obscene 
material. The Court upheld the constitutionality of 
applying community standards rather than uniform 
national standards to determine the issue of obscenity 
under that statute. 418 U.S. at 106-107. In dissent, 
Justice Brennan argued that application of community 
standards under the mail statute violated the First 
Amendment. He contended that “[n]ational distribu- 
tors choosing to send their products in interstate 
travels will be forced to cope with the community 
standards of every hamlet into which their goods may 
wander,” and that rather than “risking the expense and 
difficulty of defending against prosecution in any of 
several remote communities,” national distributors will 
“retreat to debilitating self-censorship.” Id. at 144. The 
Court rejected Justice Brennan’s argument that ex- 
posing a national distributor to potentially varying 
community standards imposed an impermissible burden 
on protected speech. Id. at 106. The Court stated that 
“[t]he fact that distributors of allegedly obscene materi- 
als may be subjected to varying community standards 
in the various federal judicial districts into which they 
transmit [their] materials does not render a federal 
statute unconstitutional because of the failure of appli- 
cation of uniform national standards of obscenity.” Ibid. 
In Sable, 492 U.S. at 124-126, the Court upheld the 
constitutionality of the prohibition in 47 U.S.C. 223(b) 
against obscene telephone messages. The Court re- 
jected Sable’s argument that the statute violated the 

32 

First Amendment because it effectively “compell[ed]” 
those who operate dial-a-porn businesses “to tailor all 
their messages to the least tolerant community.” 492 
U.S. at 124-126. The Court read Hamling to foreclose 
the argument that the need to comply with potentially 
varying community standards renders a federal statute 
unconstitutional. Id. at 125. The Court further noted 
that “Sable is free to tailor its messages, on a selective 
basis, if it so chooses, to the communities it chooses to 
serve.” Ibid. While the development of a system to 
screen calls might involve some costs, the Court 
concluded, “there is no constitutional impediment to 
enacting a law which may impose such costs on a 
medium electing to provide these messages.” Ibid. 
Ultimately, the Court viewed the question of how to 
comply with a statute that may be triggered by varying 
community standards to be one “for the message 
provider to make.” Ibid. The Court explained that 
“[t]here is no constitutional barrier * * * 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 com- 
prised of different communities with different local 
standards, Sable ultimately bears the burden of com- 
plying with the prohibition on obscene messages.” Id. 
at 125-126. 

4. The court of appeals sought to distinguish Ham- 
ling and Sable on the ground that the parties involved 
in those cases “had the ability to control the distribu- 
tion of controversial material with respect to the 
geographic communities into which they released it.” 
Pet. App. 26a. “By contrast,” the court stated, “Web 
publishers have no such comparable control.” Ibid. As 
we have pointed out, see note 3, supra, Web businesses 

33 

can control—albeit at some expense—the distribution 
of their materials into particular geographic areas. 

More fundamentally, Hamling’s and Sable’s approval 
of the application of varying community standards did 
not depend on the ability of the parties in those cases to 
exercise geographic control over the material they 
distributed. Hamling did not mention geographic 
control as a factor in its analysis. While Sable noted the 
distributor’s ability to exercise geographic control 
(albeit by incurring “some cost[]”) as a further factor 
supporting the constitutionality of the prohibition 
against obscene telephone messages, it held that, re- 
gardless of that factor, “Sable ultimately bears the 
burden of complying with the prohibition on obscene 
messages.” Sable, 492 U.S. at 125-126. 

Thus, the principle that emerges from Hamling and 
Sable, and the inevitable consequence of Miller’s ap- 
proval of community standards, is that a business that 
chooses to engage in commercial conduct that has ef- 
fects in more than one community has the responsibility 
to ensure that those effects are lawful in each of the 
affected communities. That principle applies as much to 
commercial pornographers on the Web as to the parties 
involved in Hamling and Sable. 

D. The Harmful-To-Minors Test Significantly Circum- 
scribes The Types of Material Covered By COPA 

The court of appeals’ view that community standards 
cannot be applied constitutionally to the Web was 
premised in large part on its assumption that COPA’s 
reliance on community standards effectively requires 
“vast amounts” of worthwhile material to be placed 
behind adult verification screens. Pet. App. 25a. The 
harmful-to-minors test, however, narrowly cabins the 
material that is covered by the Act, so that COPA 

34 

applies primarily to pornographic teasers that appear 
on the Web sites of commercial pornographers. Thus, if 
COPA requires vast amounts of material on the Web to 
be placed behind screens, it is only because commercial 
pornographers display so many pornographic teasers. 

The serious value prong, in particular, significantly 
circumscribes the types of material subject to COPA. 
In Pope v. Illinois, 481 U.S. 497 (1987), the Court held 
that the serious value prong of the Miller obscenity 
standard does not incorporate community standards. 
The Court explained that “insofar as the First Amend- 
ment is concerned, * * * the value of the work [does 
not] vary from community to community based on the 
degree of local acceptance it has won.” Id. at 500. 
Instead, the proper inquiry is “whether a reasonable 
person would find * * * value in the material, taken as 
a whole.” Id. at 500-501. Moreover, “the mere fact that 
only a minority of a population may believe a work has 
serious value does not mean the ‘reasonable person’ 
standard would not be met.” Id. at 501 n.3. 

In the context of state harmful-to-minors display 
laws, that has meant that material is excluded from 
coverage if it has “serious literary, artistic, political, or 
scientific value for a legitimate minority of normal, 
older adolescents.” Commonwealth v. American Book- 
seller Ass’n, 372 S.E.2d at 624; see also Davis-Kidd 
Booksellers, 866 S.W.2d at 528. Thus, pornographic 
magazines, like Hustler, Penthouse, and Playboy, must 
be put behind blinder racks, while books that contain 
serious and informative discussions about sexual acts 
need not. See pp. 23-24 & note 1, supra. COPA’s 
serious value prong draws that same line. H.R. Rep. 
No. 775, supra, at 13 (COPA adopts the same standard 
as state harmful-to-minors display laws); id. at 27-28 
(COPA incorporates the standard set forth in Pope). 

35 

That component of COPA, entirely ignored by the court 
of appeals, effectively limits COPA’s reach to a narrow 
band of material. 

Moreover, because the serious value prong does not 
incorporate community standards, appellate court en- 
forcement of its limitations can be particularly effective. 
As this Court explained in Reno v. ACLU, the serious 
value prong “allows appellate courts to impose some 
limitations and regularity on the definition by setting, 
as a matter of law, a national floor for socially redeem- 
ing value.” 521 U.S. at 873. The Virginia Supreme 
Court performed that function in American Book- 
sellers, providing clear guidance on what must be 
placed behind blinder racks or otherwise shielded from 
examination by minors. 372 S.E.2d at 624. Appellate 
courts can perform the same function in enforcing 
COPA’s serious value limitation. 

Other elements of COPA also place legal limits on 
what may be found to fall within the scope of the 
statute. For example, material is covered by the first 
prong—appeal to the prurient interest—only if it is, “in 
some significant way, erotic.” Erznoznik v. City of 
Jacksonville, 422 U.S. 205, 213 & n.10 (1975). That 
requirement excludes as a matter of law pictures of a 
nude baby, the nude body of a war victim, or scenes 
from a culture in which nudity is indigenous. Ibid. It 
also excludes, as a matter of law, the seven-dirty-words 
monologue at issue in Pacifica, and other similar non- 
erotic uses of graphic language. See FCC v. Pacifica 
Found., 438 U.S. 726, 739 (1978). 

Similarly, material is covered by the second prong— 
“patent offensiveness”—only if it falls within one of the 
specifically defined categories of depictions: “an actual 
or simulated sexual act or sexual contact, an actual or 
simulated normal or perverted sexual act, or a lewd 

36 

exhibition of the genitals or post-pubescent female 
breast.” 47 U.S.C. 231(e)(6)(B) (Supp. V 1999). Thus, 
COPA does not apply to a picture of a scantily clad 
belly dancer, the typical cover of Cosmopolitan or 
Vogue, or scenes from Britney Spears’ Pepsi commer- 
cial, no matter how erotic some minors might find such 
depictions. Like the legal limitations on what can be 
found to lack serious value, the legal limitations on 
what can be found to satisfy the first two prongs of the 
harmful-to-minors statute can be enforced by a review- 
ing court. See Jenkins v. Georgia, 418 U.S. 153, 159-161 
(1974) (establishing substantive limits on what may be 
deemed “patently offensive” with respect to adults, and 
stating that “it would be a serious misreading of Miller 
to conclude that juries have unbridled discretion in 
determining what is ‘patently offensive’ ”). 

Thus, all three prongs of the harmful-to-minors stan- 
dard place effective legal limits on what can be found to 
fall within the scope of the statute. Together, they 
confine COPA’s coverage “to materials that are clearly 
pornographic,” while excluding as a matter of law 
“entertainment, library, or news materials that merely 
contain nudity or sexual information, regardless of how 
controversial they may be for their political or sexual 
viewpoints.” H.R. Rep. No. 775, supra, at 28. See also 
S. Rep. No. 225, supra, at 13 (“This definition ensures 
that the bill may not be construed as to restrict access 
to public health information, art, literature, and political 
information.”). 

E. Community Standards Concerning What Is Harmful To 

Minors Are Likely To Be Reasonably Constant 

The constitutionality of applying community stan- 
dards to the Web is further supported by Congress’s 
judgment that, on the relevant issues, community stan- 

37 

dards are likely to be “reasonably constant” throughout 
the country. H.R. Rep. No. 775, supra, at 28. The court 
of appeals cast that judgment aside, finding no evidence 
that “adults everywhere in America would share the 
same standards for determining what is harmful for 
minors.” Pet. App. 31a (emphasis deleted). Congress 
did not assume, however, that communities everywhere 
would have precisely the same understanding of what is 
prurient and patently offensive with respect to minors. 
Instead, Congress concluded that the standard applied 
to those issues is likely to be reasonably constant. As 
applied to the narrow band of material that lacks 
serious value for a legitimate minority of older minors 
and is not excluded from coverage under the first two 
prongs as a matter of law, that judgment is firmly 
grounded in common sense. 

The exhibits introduced in this case provide a con- 
crete context for assessing the reasonableness of Con- 
gress’s judgment that community standards are likely 
to be “reasonably constant” throughout the country. 
See 2 C.A.J.A. 758-812 (Gov’t Exhs.); id. at 601-757 (Pl’s 
Exhs.).4 As even a brief glance at the government 
exhibits in the court of appeals appendix reveals, all of 
them likely would be viewed as prurient and patently 
offensive with respect to minors throughout the coun- 
try. A number of respondents’ exhibits, by contrast, 
would be excluded from coverage as a matter of law by 
one or more of the three prongs of the harmful-to- 
minors standard. Some of respondents’ exhibits, how- 
ever, plainly do test, and likely exceed, the legal limita- 
tions imposed by those three prongs. But there is no 
reason to believe that those exhibits would be assessed 

4 “C.A.J.A.” refers to the joint appendix filed in the court of 
appeals. That joint appendix has been lodged with this Court. 

38 

differently by different communities with respect to 
whether they are prurient and patently offensive for 
minors. Indeed, the court of appeals did not identify a 
single exhibit as to which coverage under COPA would 
depend on which community in the country evaluated 
the material. 

Congress’s judgment that community standards are 
likely to be reasonably constant in the present context 
does not conflict with the observation in Miller that 
communities throughout the country may vary on 
whether material is obscene for adults. Pet. App. 32a 
(quoting Miller, 413 U.S. at 30, 33). Even if the average 
adults in a particular locality or State might feel that 
adults should have relatively free access to porno- 
graphic material, there is no reason to believe that 
those same adults would want minors in the locality or 
State to be exposed to such material. Moreover, there 
is every reason to expect a far greater degree of 
agreement from community to community concerning 
what appeals to the prurient interest and is patently 
offensive with respect to minors on a nationwide and 
readily accessible medium like the Web. 

Congress’s direction that juries should be instructed 
in terms of an “adult” standard rather than a “geo- 
graphic” standard further promotes a reasonably con- 
stant application of community standards. H.R. Rep. 
No, 775, supra at 28. That direction means that juries 
should not be instructed to consider the community 
standards of a particular geographic area, such as a 
city, town, judicial district, or State. Instead, as 
authorized by Jenkins, 418 U.S. at 157, a jury should be 
instructed to consider the standards of the adult com- 
munity as a whole, without geographic specification, 
concerning what materials appeal to the prurient 
interest and are patently offensive with respect to 

39 

minors. To promote a reasonably constant application 
of standards, juries should also be instructed to take 
into account the fact that the Web is a national medium. 

The possibility that the situs of the jury would 
matter in some cases cannot be discounted entirely. 
But “[t]he mere fact that juries may reach different 
conclusions as to the same material does not mean that 
constitutional rights are abridged.” Miller, 413 U.S. at 
26 n.9. 

F. COPA’s Reliance On Community Standards Does Not 

Unduly Burden Speech 

1. Because COPA sharply limits the material that is 
potentially covered, and there is little community-to- 
community variance as to the remainder, COPA’s 
reliance on community standards does not impose an 
undue burden on speech. As we have discussed, COPA 
applies primarily to Web sites that are devoted to 
commercial pornography. The operators of those sites 
already put most of their material behind age verifi- 
cation screens. COPA’s principal effect is to require 
those commercial pornographers to place their free 
teasers behind adult verification screens as well. 
Moreover, because all the pornographic material that 
commercial pornographers display is likely to offend 
community standards with respect to children 
throughout the country, they would have to put all such 
material behind age verification screens, regardless of 
whether it would be evaluated by a jury in the situs of 
the place of posting, a jury in Las Vegas, or a jury in 
Mississippi. Miller, 413 U.S. at 32. Any burden that 
COPA imposes on them cannot be attributed to 
variance in community standards. 
COPA’s reliance on community standards also im- 
poses no costs on Web sites that display sexual material 

40 

that has serious value for a legitimate minority of older 
minors. The operators of those Web sites have no 
obligation to place their material behind a screen, and 
any variances in community standards are irrelevant 
for them. Similarly, because COPA applies only to 
entities that display harmful material regularly and for 
profit, see 47 U.S.C. 231(e)(2)(B) (Supp. V 1999), 
COPA’s reliance on community standards does not 
impose any costs on commercial entities that display 
harmful-to-minors material on isolated occasions. 

COPA’s reliance on community standards also does 
not impose an undue burden on businesses that do not 
operate sites dedicated to pornography, but nonethe- 
less regularly display material that may be harmful to 
minors. As to material that lacks serious value for 
older minors and is not excluded as a matter of law 
from the first two prongs, such businesses, like com- 
mercial pornographers, could not reasonably expect 
that juries in different communities would react differ- 
ently to the material. They would therefore likely 
screen all such material, regardless of the relevant 
community standard. As a result, any burden they 
experience would not be attributable to a variance in 
community standards, but to the fact that material that 
is not excluded from the statute as a matter of law is 
reasonably likely to be prurient and patently offensive 
with respect to minors throughout the country. 

2. Even if we assume that there nevertheless re- 
mains some meaningful variance in community stan- 
dards, the sole consequence would be to require some 
additional age screening. That consequence does not 
unduly burden speech. 

Web sites can easily set up a system for placing 
harmful material behind an adult verification screen. 
One adult verification service, Adult Check, will set up 

41 

such a system at no cost to the Web site. Pet. App. 75a. 
In fact, Web sites can earn substantial commissions 
from Adult Check if users sign up with Adult Check in 
order to view that Web site’s screened content. Ibid. 
At the time of the district court’s decision, nearly 46,000 
Web sites were using Adult Check. Id. at 76a. A vari- 
ance in community standards therefore would not 
impose an undue burden on commercial Web sites that 
regularly display material that may be harmful to 
minors. 

Nor would a variance in community standards impose 
an undue burden on adults who wish to view material 
that might be found to be harmful to minors in some 
communities, but not others. At the time of the district 
court’s decision, at least 25 services provided adult 
identification numbers that enabled users to gain access 
to screened content. Pet. App. 75a. Adults could obtain 
an Adult ID from Adult Check for $16.95 per year, and 
approximately three million people had a valid Adult 
Check PIN. Id. at 76a. COPA also removes disincen- 
tives to obtaining an Adult ID by requiring that inform- 
ation collected in that process must be kept confiden- 
tial. 47 U.S.C. 231(d)(1) (Supp. V 1999). 

As the district court found, some adults may still be 
deterred from obtaining an Adult ID. Pet. App. 89a. 
But since COPA provides significant privacy protec- 
tions for adults who seek to obtain an Adult ID, and 
millions of adults have had no difficulty obtaining and 
using Adult IDs, the reluctance of some adults to obtain 
an Adult ID does not render COPA unconstitutional. 

Any burden that COPA’s reliance on community 
standards imposes, moreover, must be balanced against 
the interests that it serves. This Court has held that 
the government has a compelling interest in protecting 
children from pornographic material that is harmful to 

42 

them, even if the material is not obscene by adult stan- 
dards, Sable, 492 U.S. at 126, and community standards 
are critical in serving that interest. See pp. 26-28, 
supra. Indeed, the court of appeals assumed for 
purposes of its decision in this case that “there may be 
no other means by which harmful material on the Web 
may be constitutionally restricted.” Pet. App. 3a. In 
these circumstances, any burden that COPA’s reliance 
on community standards imposes is outweighed by the 
interests it serves. 

The cases upholding state display laws demonstrate 
that a statute that serves the compelling interest of 
protecting children from harmful material is not 
unconstitutional simply because it imposes some burden 
on adult access to pornographic material. For example, 
in Crawford v. Lungren, the plaintiffs claimed that a 
statute banning the sale of harmful matter in 
unsupervised sidewalk vending machines would “likely 
make it commercially infeasible for the publishers [of 
such matter] to distribute their materials through 
vending machines.” 96 F.3d at 383. The Ninth Circuit 
nonetheless upheld the constitutionality of the statute, 
emphasizing that “[t]he statute provides two defenses 
which allow for the retention of newsracks,” and that 
while those defenses “may impose some economic bur- 
den, they do enable the publishers to continue distribut- 
ing their publications on streets.” Id. at 388. Similarly, 
in American Booksellers v. Webb, the Eleventh Circuit 
upheld a state display restriction despite a district 
court finding that “in-store display of books” is “the 
cornerstone of the [bookselling] industry’s marketing 
practices.” 919 F.2d at 1498. In M.S. News Co. v. 
Casado, the Tenth Circuit upheld an ordinance requir- 
ing blinder racks in front of harmful-to minors material 
even though the court acknowledged that “compliance 

43 

with the ordinance will to some degree restrict the 
viewing by adults of materials which are, as to adults, 
constitutionally protected.” 721 F.2d at 1288. Other 
courts have reached the same conclusion.5 

G. COPA’s Reliance On Community Standards Is Con- 
sistent With Reno v. ACLU. 

In Reno v. ACLU, the Court noted that one feature 
of the CDA was 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.” 521 U.S. at 877- 
878. The Court made that observation, however, in 
connection with a statute that it found to be of 
unprecedented vagueness and breadth. In particular, 
the CDA applied to materials that were “indecent” or 
“patently offensive,” without defining either term; it 
did not require that the covered material “appeal to the 
prurient interest”; it did not make clear whether the 

5 See Upper Midwest Booksellers Ass’n v. City of Minneapolis, 
780 F.2d at 1394 (upholding display ordinance that “limits to some 
extent the ability of adults to visit a bookstore or newsstand and 
browse through material that is obscene as to children but not as 
to adults”); Davis-Kidd Booksellers, Inc., 866 S.W.2d at 526 (up- 
holding display statute despite testimony that “blinder racks, 
accompanied by reasonable steps to prevent perusal by children, 
would disrupt business practices”); Commonwealth v. American 
Booksellers Ass’n, 372 S.E.2d at 625 (concluding that display 
statute “imposes a relatively light burden upon the bookseller, in 
contrast to the state’s interest in protecting juveniles from materi- 
als harmful to them”); American Booksellers Ass’n v. Rendell, 481 
A.2d at 941 (dismissing “any inhibitory effect on dissemination to 
adults” in light of “the state’s legitimate interest in shielding 
children from these materials”); but see Tattered Cover, 696 P.2d 
at 783-785 (state display law violates First Amendment where only 
means of compliance are commercially infeasible). 

44 

“indecent” and “patently offensive” determinations 
should be made with respect to adults or minors; and it 
did not require that covered material lack “serious 
literary, artistic, political, or scientific value.” 521 U.S. 
at 865, 871, & n.37, 873, 877-878. The CDA also applied 
not only to commercial entities, but also to non-profit 
entities and individuals posting material on their com- 
puters. Id. at 856, 877. Given the breadth and vague- 
ness of the CDA and the absence of any effective legal 
limits on what it encompassed, application of com- 
munity standards effectively permitted the community 
most likely to be offended to determine the scope of the 
statute’s coverage in most respects. In that context, 
the CDA’s reliance on community standards exacer- 
bated the inherent constitutional difficulties with the 
statute. 

In COPA, Congress responded directly to the Court’s 
concern about the unprecedented breadth and unde- 
fined parameters of the CDA. COPA defines harmful- 
to-minors material in terms that have been well 
understood since this Court’s decision in Ginsberg; it 
does not cover material unless it is designed to appeal 
to the prurient interest of minors; it specifies the 
particular sexual acts and parts of the anatomy the 
depiction of which can be found to be patently offensive; 
it makes clear that the prurient interest and patently 
offensive determinations should be made “with respect 
to minors”; it does not cover material that has serious 
value for a legitimate minority of older minors; and it 
applies only to businesses that regularly and for profit 
display harmful-to-minors material. For the reasons we 
have discussed, in the context of that very different 
statute, a reliance on community standards does not 
raise independent constitutional concerns. Nothing in 
Reno v. ACLU suggests otherwise. 

45 

CONCLUSION 

The judgment of the court of appeals should be 
reversed and the case should be remanded to that court 
for further proceedings. 

Respectfully submitted. 

THEODORE B. OLSON 
Solicitor General 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

IRVING L. GORNSTEIN 

Assistant to the Solicitor 

General 

BARBARA L. HERWIG 
JACOB M. LEWIS 
CHARLES SCARBOROUGH 

JULY 2001 

ADDENDUM I 

State laws that prohibit the sale to minors of 
harmful-to-minors material: 

Ala. Code § 13A-12-200.5(1) (1994 & Supp. 2000); 
Ariz. Rev. Stat. Ann. § 13-3506.A (West 2001), re- 
printed in as amended 2001 Ariz. Legis. Serv. Ch. 94 
(West); Ark. Code Ann. § 5-68-502(2)(A) (Michie Supp. 
1999); Cal. Penal Code § 313.1(a) (West Supp. 2000); 
Colo. Rev. Stat. Ann. § 18-7-502(1) (West 1986); Conn. 
Gen. Stat. § 53a-196 (1994); Del. Code Ann. tit. 11, 
§ 1365(i) (1995); D.C. Code Ann. § 22-2001(b)(1)(A) 
(1996); Fla. Stat. Ann. § 847.012(2) (West 2000); Ga. 
Code Ann. § 16-12-103(a) (1999); Haw. Rev. Stat. § 712- 
1215(1) (1999 & Supp. 2000); Idaho Code § 18-1515.1 
(1997); Ind. Code Ann. § 35- 49-3-3(1) (West 1998); Iowa 
Code Ann. § 728.2 (West 1993); Kan. Stat. Ann. § 21- 
4301c(a)(2) (1995); Ky. Rev. Stat. Ann. § 531-030(1) & 
commentary (Banks-Baldwin 1995); La. Rev. Stat. Ann. 
§ 14:91.11(A)(1) (West Supp. 2001); Me. Rev. Stat. Ann. 
tit. 17, § 2911(2) (West 1983 & Supp. 2000); Mass. Ann. 
Laws ch. 272, § 28 (Law. Co-op. 1992); Minn. Stat. Ann. 
§ 617.293 (West 1987 & Supp. 2001); Mo. Ann. Stat. 
§ 573.040 (West 1995 & Supp. 2001); Mont. Code Ann. 
§ 45-8-206(1)(b) (1999); Neb. Rev. Stat. § 28-808(1) (1995 
& Supp. 2001); Nev. Rev. Stat. Ann. § 201-265.1 (Michie 
1997); N.H. Rev. Stat. Ann. § 571-B:2.I (1986); N.M. 
Stat. Ann. § 30-37-2 (Michie 1997); N.Y. Penal Law 
§ 235.21.1 (McKinney 2000); N.C. Gen. Stat. § 14- 
190.15(a) (1999); N.D. Cent. Code § 12.1-27.1-03 (1997); 
Ohio Rev. Code Ann. § 2907.31(A) (West 1997); Okla. 
Stat. Ann. tit. 21, § 1040-76.2 (West Supp. 2001); 18 Pa. 
Cons. Stat. Ann. § 5903(c) (West 2000 & Supp. 2001); 
R.I. Gen. Laws § 11-31-10(b) (2000); S.C. Code Ann. 

(1a) 

2a 

§ 16-15-385(A) (Law. Co-op. Supp. 2000); S.D. Codified 
Laws § 22-24-28 (Michie 1998); Tenn. Code Ann. § 39- 
17-911(a) (1997 & Supp. 2000); Tex. Penal Code Ann. 
§ 43.24(b) (West 1994); Utah Code Ann. § 76-10- 
1206(1)(a) (1999 & Supp. 2000); Vt. Stat. Ann. tit. 13, 
§ 2802(a) (1998 & Supp. 2000), reprinted in as amended 
2001 Vt. Acts & Resolves 41, § 6; Va. Code Ann. 
§ 18.2-391.A (Michie Supp. 2000), reprinted as amended 
2001 Va. Acts ch. 451, § 1; Wash. Rev. Code Ann. 

9.68.060(3)(d) (West 1998); Wis. Stat. Ann. 
§ 948.11(2) (West 1996 & Supp. 2000). 

3a 

ADDENDUM II 

State laws that prohibit the display of harmful-to- 
minors material: 

Ala. Code § 13A-12-200.5(2)a. (Supp. 2000); Ariz. 
Rev. Stat. Ann. § 13-3507 (West 2001); Ark. Code Ann. 
§ 5-68-502(1)(A) (Michie Supp. 1999); Cal. Penal Code 
§ 313.1(c)(2) (West Supp. 2000); Colo. Rev. Stat. Ann. 
§ 18-7-502(5) (West 1986); Del. Code Ann. tit. 11, 
§ 1365(i) (1995); Fla. Stat. Ann. § 847.0125(2) (West 
2000); Ga. Code Ann. § 16-12-103(e) (1999); Ind. Code 
Ann. § 35-49-3-3(2) (West 1998); Iowa Code Ann. § 728.2 
(West 1993); Kan. Stat. Ann. § 21-4301c(a)(1) (1995); La. 
Rev. Stat. Ann. § 14:91.11(A)(1) and (B) (West Supp. 
2001); Me. Rev. Stat. Ann. tit. 17, § 2912 (West 1983 & 
Supp. 2000); Minn. Stat. Ann. § 617.293.2 (West Supp. 
2001); Mont. Code Ann. § 45-8-206(1)(a) (1999); Nev. 
Rev. Stat. Ann. § 201-265.2 (Michie 1997); N.M. Stat. 
Ann. § 30-37-2 (Michie 1997); N.C. Gen. Stat. § 14-190.14 
(1999); Ohio Rev. Code Ann. § 2907-311 (West 1997); 
Okla. Stat. Ann. tit. 21, § 1040.76.1 (West Supp. 2001); 
18 Pa. Cons. Stat. Ann. § 5903(a)(1) (West 2000 & Supp. 
2001); R.I. Gen. Laws § 11-31-10(b) (2000); Tenn. Code 
Ann. § 39-17-914 (1997 & Supp. 2000); Vt. Stat. Ann. tit. 
13, § 2804b (1998); Va. Code Ann. § 18.2-391.A (Michie 
Supp. 2000), reprinted in as amended 2001 Va. Acts ch. 
451, § 1. 

4a 

ADDENDUM III 

State laws that incorporate community standards 
into harmful-to-minors definitions: 

Ala. Code § 13A-12-200.1(11) (Supp. 2000); Ariz. Rev. 
Stat. Ann. § 13-3501.1 (West 2001), reprinted in as 
amended 2001 Ariz. Legis. Serv. Ch. 94 (West); Ark. 
Code Ann. § 5-68-501(2) (Michie Supp. 1999); Cal. Penal 
Code § 313.1(a) (West Supp. 2000); Colo. Rev. Stat. 
Ann. § 18-7-501(2) (West 1986); Conn. Gen. Stat. § 53a- 
193(2) (1994); Del. Code Ann. tit. 11, § 1365(a)(1) (1995); 
D.C. Code Ann. § 22-2001(b)(1)(A) (1996); Fla. Stat. 
Ann. § 847.001(3) (West 2000), reprinted in as amended 
2001 Fla. Sess. Law Serv. Ch. 2001-54 (West); Ga. Code 
Ann. § 16-12-102(1) (1999); Haw. Rev. Stat. § 712- 
1210(7) (1999); Idaho Code § 18.1514.6 (1997); Ind. Code 
Ann. § 35-49-2-2 (West 1998); Iowa Code Ann. § 728.1.5 
(West 1993 & Supp. 2001); Kan. Stat. Ann. § 21- 
4301c(d)(2) (1995); La. Rev. Stat. Ann. § 14:91.11(A)(2) 
(West Supp. 2001); Me. Rev. Stat. Ann. tit. 17, 
§ 2911.1(D)(1) (West 1983 & Supp. 2000); Mass. Ann. 
Laws ch. 272, § 31 (Law. Co-op. 1992); Mich. Comp. 
Laws Ann. § 722.674(a) (West 1993); Minn. Stat. Ann. 
§ 617.292.7 (West 1987); Mo. Ann. Stat. § 573-010(11) 
(West Supp. 2001); Mont. Code Ann. § 45-8-205(1) 
(1999); Neb. Rev. Stat. § 28-807(6) (1995); Nev. Rev. 
Stat. Ann. § 201-257 (Michie 1997); N.H. Rev. Stat. Ann. 
§ 571-B:1.I (1986); N.M. Stat. Ann. § 30-37-1.F (Michie 
1997); N.Y. Penal Law § 235.20.6 (McKinney 2000); N.C. 
Gen. Stat. § 14.190.13(1) (1999); N.D. Cent. Code § 12.1- 

27.1-02.2 (1997); Ohio Rev. Code Ann. § 2907.01(E) 
(West 1999); Okla. Stat. Ann. tit. 21, § 1040-75.2 (West 
Supp. 2001), reprinted in as amended 2001 Okla. Sess. 
Law Serv. ch. 387 (West); 18 Pa. Cons. Stat. Ann. 

5a 

§ 5903(e)(6) (West 2000 & Supp. 2001); R.I. Gen. Laws 
§ 11-31-10(a)(1) (1996); S.C. Code Ann. § 16-15-375(1) 
(Law. Co-op. Supp. 2000); S.D. Codified Laws § 22-24- 
27(4) (Michie 1998); Tenn. Code Ann. § 39-17-901(6) 
(1997); Tex. Penal Code Ann. § 43.24(a)(2) (West 1994); 
Utah Code Ann. § 76-10-1201(11) (1999), reprinted in as 
amended 2001 Utah Laws 9, § 2115; Vt. Stat. Ann. tit. 
13, § 2801(6) (1998); Va. Code Ann. § 18.2-390(6) (Michie 
1996); Wash. Rev. Code Ann. § 9.68.050(2) (West 1998); 
Wis. Stat. Ann. § 948.11(1)(b) (West 1996 & Supp. 2000).