U.S.
Supreme Court (b) Expression does not lose constitutional protection to which it would otherwise be
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
New York Times Co. v. Sullivan
No. 39
Argued January 6, 1964
Decided March 9, 1964*
376 U.S. 254
CERTIORARI TO THE SUPREME COURT OF ALABAMA
Syllabus
Respondent, an elected official in Montgomery, Alabama, brought suit in a state court
alleging that he had been libeled by an advertisement in corporate petitioner's
newspaper, the text of which appeared over the names of the four individual petitioners
and many others. The advertisement included statements, some of which were false,
about police action allegedly directed against students who participated in a civil rights
demonstration and against a leader of the civil rights movement; respondent claimed
the statements referred to him because his duties included supervision of the police
department. The trial judge instructed the jury that such statements were "libelous per
se," legal injury being implied without proof of actual damages, and that, for the purpose
of compensatory damages, malice was presumed, so that such damages could be
awarded against petitioners if the statements were found to have been published by
them and to have related to respondent. As to punitive damages, the judge instructed
that mere negligence was not evidence of actual malice, and would not justify an award
of punitive damages; he refused to instruct that actual intent to harm or recklessness
had to be found before punitive damages could be awarded, or that a verdict for
respondent should differentiate between compensatory and punitive damages. The jury
found for respondent, and the State Supreme Court affirmed.
Held: A State cannot, under the First and Fourteenth Amendments, award damages to
a public official for defamatory falsehood relating to his official conduct unless he proves
"actual malice" -- that the statement was made with knowledge of its falsity or with
reckless disregard of whether it was true or false. Pp. 376 U. S. 265-292.
(a) Application by state courts of a rule of law, whether statutory or not, to award a
judgment in a civil action, is "state action" under the Fourteenth Amendment. P. 376 U.
S. 265.
entitled because it appears in the form of a paid advertisement. Pp. 376 U. S. 265-266.
Page 376 U. S. 255
(c) Factual error, content defamatory of official reputation, or both, are insufficient to
warrant an award of damages for false statements unless "actual malice" -- knowledge
that statements are false or in reckless disregard of the truth -- is alleged and proved.
Pp. 376 U. S. 279-283.
(d) State court judgment entered upon a general verdict which does not differentiate
between punitive damages, as to which, under state law, actual malice must be proved,
and general damages, as to which it is "presumed," precludes any determination as to
the basis of the verdict, and requires reversal, where presumption of malice is
inconsistent with federal constitutional requirements. P. 376 U. S. 284.
(e) The evidence was constitutionally insufficient to support the judgment for
respondent, since it failed to support a finding that the statements were made with
actual malice or that they related to respondent. Pp. 376 U. S. 285-292.
273 Ala. 656, 144 So.2d 25, reversed and remanded.
Page 376 U. S. 256
MR. JUSTICE BRENNAN delivered the opinion of the Court.
We are required in this case to determine for the first time the extent to which the
constitutional protections for speech and press limit a State's power to award damages
in a libel action brought by a public official against critics of his official conduct.
Respondent L. B. Sullivan is one of the three elected Commissioners of the City of
Montgomery, Alabama. He testified that he was
"Commissioner of Public Affairs, and the duties are supervision of the Police
Department, Fire Department, Department of Cemetery and Department of Scales."
He brought this civil libel action against the four individual petitioners, who are Negroes
and Alabama clergymen, and against petitioner the New York Times Company, a New
York corporation which publishes the New York Times, a daily newspaper. A jury in the
Circuit Court of Montgomery County awarded him damages of $500,000, the full
amount claimed, against all the petitioners, and the Supreme Court of Alabama
affirmed. 273 Ala. 656, 144 So.2d 25.
Respondent's complaint alleged that he had been libeled by statements in a full-page
advertisement that was carried in the New York Times on March 29, 1960. [Footnote 1]
Entitled "Heed Their Rising Voices," the advertisement began by stating that,
Page 1 of 57
"As the whole world knows by now, thousands of Southern Negro students are engaged
in widespread nonviolent demonstrations in positive affirmation of the right to live in
human dignity as guaranteed by the U.S. Constitution and the Bill of Rights."
It went on to charge that,
"in their efforts to uphold these guarantees, they are being met by an unprecedented
wave of terror by those who would deny and negate that document which the whole
world looks upon as setting the pattern for modern freedom. . . ."
Succeeding
Page 376 U. S. 257
paragraphs purported to illustrate the "wave of terror" by describing certain alleged
events. The text concluded with an appeal for funds for three purposes: support of the
student movement, "the struggle for the right to vote," and the legal defense of Dr.
Martin Luther King, Jr., leader of the movement, against a perjury indictment then
pending in Montgomery.
The text appeared over the names of 64 persons, many widely known for their activities
in public affairs, religion, trade unions, and the performing arts. Below these names, and
under a line reading "We in the south who are struggling daily for dignity and freedom
warmly endorse this appeal," appeared the names of the four individual petitioners and
of 16 other persons, all but two of whom were identified as clergymen in various
Southern cities. The advertisement was signed at the bottom of the page by the
"Committee to Defend Martin Luther King and the Struggle for Freedom in the South,"
and the officers of the Committee were listed.
Of the 10 paragraphs of text in the advertisement, the third and a portion of the sixth
were the basis of respondent's claim of libel. They read as follows:
Third paragraph:
"In Montgomery, Alabama, after students sang 'My Country, 'Tis of Thee' on the State
Capitol steps, their leaders were expelled from school, and truckloads of police armed
with shotguns and tear-gas ringed the Alabama State College Campus. When the entire
student body protested to state authorities by refusing to reregister, their dining hall was
padlocked in an attempt to starve them into submission."
Sixth paragraph:
"Again and again, the Southern violators have answered Dr. King's peaceful protests
with intimidation and violence. They have bombed his home, almost killing his wife and
child. They have
Page 376 U. S. 258
assaulted his person. They have arrested him seven times -- for 'speeding,' 'loitering'
and similar 'offenses.' And now they have charged him with 'perjury' -- a felony under
which they could imprison him for ten years. . . ."
Although neither of these statements mentions respondent by name, he contended that
the word "police" in the third paragraph referred to him as the Montgomery
Commissioner who supervised the Police Department, so that he was being accused of
"ringing" the campus with police. He further claimed that the paragraph would be read
as imputing to the police, and hence to him, the padlocking of the dining hall in order to
starve the students into submission. [Footnote 2] As to the sixth paragraph, he
contended that, since arrests are ordinarily made by the police, the statement "They
have arrested [Dr. King] seven times" would be read as referring to him; he further
contended that the "They" who did the arresting would be equated with the "They" who
committed the other described acts and with the "Southern violators." Thus, he argued,
the paragraph would be read as accusing the Montgomery police, and hence him, of
answering Dr. King's protests with "intimidation and violence," bombing his home,
assaulting his person, and charging him with perjury. Respondent and six other
Montgomery residents testified that they read some or all of the statements as referring
to him in his capacity as Commissioner.
It is uncontroverted that some of the statements contained in the two paragraphs were
not accurate descriptions of events which occurred in Montgomery. Although Negro
students staged a demonstration on the State Capitol steps, they sang the National
Anthem and not "My
Page 376 U. S. 259
Country, 'Tis of Thee." Although nine students were expelled by the State Board of
Education, this was not for leading the demonstration at the Capitol, but for demanding
service at a lunch counter in the Montgomery County Courthouse on another day. Not
the entire student body, but most of it, had protested the expulsion, not by refusing to
register, but by boycotting classes on a single day; virtually all the students did register
for the ensuing semester. The campus dining hall was not padlocked on any occasion,
and the only students who may have been barred from eating there were the few who
had neither signed a preregistration application nor requested temporary meal tickets.
Although the police were deployed near the campus in large numbers on three
occasions, they did not at any time "ring" the campus, and they were not called to the
campus in connection with the demonstration on the State Capitol steps, as the third
paragraph implied. Dr. King had not been arrested seven times, but only four, and
although he claimed to have been assaulted some years earlier in connection with his
arrest for loitering outside a courtroom, one of the officers who made the arrest denied
that there was such an assault.
On the premise that the charges in the sixth paragraph could be read as referring to
him, respondent was allowed to prove that he had not participated in the events
described. Although Dr. King's home had, in fact, been bombed twice when his wife and
Page 2 of 57
child were there, both of these occasions antedated respondent's tenure as
Commissioner, and the police were not only not implicated in the bombings, but had
made every effort to apprehend those who were. Three of Dr. King's four arrests took
place before respondent became Commissioner. Although Dr. King had, in fact, been
indicted (he was subsequently acquitted) on two counts of perjury, each of which carried
a possible five-year sentence, respondent had nothing to do with procuring the
indictment.
Page 376 U. S. 260
Respondent made no effort to prove that he suffered actual pecuniary loss as a result of
the alleged libel. [Footnote 3] One of his witnesses, a former employer, testified that, if
he had believed the statements, he doubted whether he "would want to be associated
with anybody who would be a party to such things that are stated in that ad," and that he
would not reemploy respondent if he believed "that he allowed the Police Department to
do the things that the paper say he did." But neither this witness nor any of the others
testified that he had actually believed the statements in their supposed reference to
respondent. The cost of the advertisement was approximately $4800, and it was
published by the Times upon an order from a New York advertising agency acting for
the signatory Committee. The agency submitted the advertisement with a letter from A.
Philip Randolph, Chairman of the Committee, certifying that the persons whose names
appeared on the advertisement had given their permission. Mr. Randolph was known to
the Times' Advertising Acceptability Department as a responsible person, and, in
accepting the letter as sufficient proof of authorization, it followed its established
practice. There was testimony that the copy of the advertisement which accompanied
the letter listed only the 64 names appearing under the text, and that the statement, "We
in the south . . . warmly endorse this appeal," and the list of names thereunder, which
included those of the individual petitioners, were subsequently added when the first
proof of the advertisement was received. Each of the individual petitioners testified that
he had not authorized the use of his name, and that he had been unaware of its use
until receipt of respondent's demand for a retraction. The manager of the Advertising
Acceptability
Page 376 U. S. 261
Department testified that he had approved the advertisement for publication because he
knew nothing to cause him to believe that anything in it was false, and because it bore
the endorsement of "a number of people who are well known and whose reputation" he
"had no reason to question." Neither he nor anyone else at the Times made an effort to
confirm the accuracy of the advertisement, either by checking it against recent Times
news stories relating to some of the described events or by any other means.
Alabama law denies a public officer recovery of punitive damages in a libel action
brought on account of a publication concerning his official conduct unless he first makes
a written demand for a public retraction and the defendant fails or refuses to comply.
Alabama Code, Tit. 7, § 914. Respondent served such a demand upon each of the
petitioners. None of the individual petitioners responded to the demand, primarily
because each took the position that he had not authorized the use of his name on the
advertisement, and therefore had not published the statements that respondent alleged
had libeled him. The Times did not publish a retraction in response to the demand, but
wrote respondent a letter stating, among other things, that "we . . . are somewhat
puzzled as to how you think the statements in any way reflect on you," and "you might,
if you desire, let us know in what respect you claim that the statements in the
advertisement reflect on you." Respondent filed this suit a few days later without
answering the letter. The Times did, however, subsequently publish a retraction of the
advertisement upon the demand of Governor John Patterson of Alabama, who asserted
that the publication charged him with
"grave misconduct and . . . improper actions and omissions as Governor of Alabama
and Ex-Officio Chairman of the State Board of Education of Alabama."
When asked to explain why there had been a retraction for the Governor but not for
respondent, the
Page 376 U. S. 262
Secretary of the Times testified:
"We did that because we didn't want anything that was published by The Times to be a
reflection on the State of Alabama, and the Governor was, as far as we could see, the
embodiment of the State of Alabama and the proper representative of the State, and,
furthermore, we had by that time learned more of the actual facts which the and
purported to recite and, finally, the ad did refer to the action of the State authorities and
the Board of Education, presumably of which the Governor is the ex-officio chairman. . .
."
On the other hand, he testified that he did not think that "any of the language in there
referred to Mr. Sullivan."
The trial judge submitted the case to the jury under instructions that the statements in
the advertisement were "libelous per se," and were not privileged, so that petitioners
might be held liable if the jury found that they had published the advertisement and that
the statements were made "of and concerning" respondent. The jury was instructed
that, because the statements were libelous per se, "the law . . . implies legal injury from
the bare fact of publication itself," "falsity and malice are presumed," "general damages
need not be alleged or proved, but are presumed," and "punitive damages may be
awarded by the jury even though the amount of actual damages is neither found nor
shown." An award of punitive damages -- as distinguished from "general" damages,
which are compensatory in nature -- apparently requires proof of actual malice under
Alabama law, and the judge charged that
"mere negligence or carelessness is not evidence of actual malice or malice in fact, and
does not justify an award of exemplary or punitive damages."
Page 3 of 57
He refused to charge, however, that the jury must be "convinced" of malice, in the
sense of "actual intent" to harm or "gross negligence and recklessness," to make such
an award, and he also refused to require that a verdict for respondent differentiate
between compensatory and punitive damages. The judge rejected petitioners'
contention
Page 376 U. S. 263
that his rulings abridged the freedoms of speech and of the press that are guaranteed
by the First and Fourteenth Amendments.
In affirming the judgment, the Supreme Court of Alabama sustained the trial judge's
rulings and instructions in all respects. 273 Ala. 656, 144 So.2d 25. It held that,
"where the words published tend to injure a person libeled by them in his reputation,
profession, trade or business, or charge him with an indictable offense, or tend to bring
the individual into public contempt,"
they are "libelous per se"; that "the matter complained of is, under the above doctrine,
libelous per se, if it was published of and concerning the plaintiff", and that it was
actionable without "proof of pecuniary injury . . . . such injury being implied." Id. at 673,
676, 144 So.2d at 37, 41. It approved the trial court's ruling that the jury could find the
statements to have been made "of and concerning" respondent, stating:
"We think it common knowledge that the average person knows that municipal agents,
such as police and firemen, and others, are under the control and direction of the city
governing body, and, more particularly, under the direction and control of a single
commissioner. In measuring the performance or deficiencies of such groups, praise or
criticism is usually attached to the official in complete control of the body."
Id. at 674-675, 144 So.2d at 39. In sustaining the trial court's determination that the
verdict was not excessive, the court said that malice could be inferred from the Times'
"irresponsibility" in printing the advertisement while
"the Times, in its own files, had articles already published which would have
demonstrated the falsity of the allegations in the advertisement;"
from the Times' failure to retract for respondent while retracting for the Governor,
whereas the falsity of some of the allegations was then known to the Times and "the
matter contained in the advertisement was equally false as to both parties", and from
the testimony of the Times' Secretary that,
Page 376 U. S. 264
apart from the statement that the dining hall was padlocked, he thought the two
paragraphs were "substantially correct."Id. at 686-687, 144 So.2d at 50-51. The court
reaffirmed a statement in an earlier opinion that "There is no legal measure of damages
in cases of this character." Id. at 686, 144 So.2d at 50. It rejected petitioners'
constitutional contentions with the brief statements that "The First Amendment of the
U.S. Constitution does not protect libelous publications," and "The Fourteenth
Amendment is directed against State action, and not private action." Id. at 676, 144
So.2d at 40.
Because of the importance of the constitutional issues involved, we granted the
separate petitions for certiorari of the individual petitioners and of the Times. 371 U.S.
946. We reverse the judgment. We hold that the rule of law applied by the Alabama
courts is constitutionally deficient for failure to provide the safeguards for freedom of
speech and of the press that are required by the First and Fourteenth Amendments in a
libel action brought by a public official against critics of his official conduct. [Footnote 4]
We
Page 376 U. S. 265
further hold that, under the proper safeguards, the evidence presented in this case is
constitutionally insufficient to support the judgment for respondent.
I
.
We may dispose at the outset of two grounds asserted to insulate the judgment of the
Alabama courts from constitutional scrutiny. The first is the proposition relied on by the
State Supreme Court -- that "The Fourteenth Amendment is directed against State
action, and not private action." That proposition has no application to this case.
Although this is a civil lawsuit between private parties, the Alabama courts have applied
a state rule of law which petitioners claim to impose invalid restrictions on their
constitutional freedoms of speech and press. It matters not that that law has been
applied in a civil action and that it is common law only, though supplemented by
statute. See, e.g., Alabama Code, Tit. 7, §§ 908-917. The test is not the form in which
state power has been applied but, whatever the form, whether such power has, in fact,
been exercised. See Ex parte Virginia, 100 U. S. 339, 100 U. S. 346-347; American
Federation of Labor v. Swing. 312 U. S. 321.
The second contention is that the constitutional guarantees of freedom of speech and of
the press are inapplicable here, at least so far as the Times is concerned, because the
allegedly libelous statements were published as part of a paid, "commercial"
advertisement. The argument relies on Valentine v. Chrestensen, 316 U. S. 52, where
the Court held that a city ordinance forbidding street distribution of commercial and
business advertising matter did not abridge the First Amendment freedoms, even as
applied to a handbill having a commercial message on one side but a protest against
certain official action, on the other. The reliance is wholly misplaced. The Court
in Chrestensen reaffirmed the constitutional protection for "the freedom of
communicating
Page 4 of 57
Page 376 U. S. 266
information and disseminating opinion"; its holding was based upon the factual
conclusions that the handbill was "purely commercial advertising" and that the protest
against official action had been added only to evade the ordinance.
The publication here was not a "commercial" advertisement in the sense in which the
word was used in Chrestensen. It communicated information, expressed opinion,
recited grievances, protested claimed abuses, and sought financial support on behalf of
a movement whose existence and objectives are matters of the highest public interest
and concern.See NAACP v. Button, 371 U. S. 415, 371 U. S. 435. That the Times was
paid for publishing the advertisement is as immaterial in this connection as is the fact
that newspapers and books are sold. Smith v. California, 361 U. S. 147, 361 U. S.
150; cf. Bantam Books, Inc., v. Sullivan, 372 U. S. 58, 372 U. S. 64, n. 6. Any other
conclusion would discourage newspapers from carrying "editorial advertisements" of
this type, and so might shut off an important outlet for the promulgation of information
and ideas by persons who do not themselves have access to publishing facilities -- who
wish to exercise their freedom of speech even though they are not members of the
press. Cf. Lovell v. Griffin, 303 U. S. 444, 303 U. S. 452; Schneider v. State, 308 U. S.
147, 308 U. S. 164. The effect would be to shackle the First Amendment in its attempt
to secure "the widest possible dissemination of information from diverse and
antagonistic sources." Associated Press v. United States,326 U. S. 1, 326 U. S. 20. To
avoid placing such a handicap upon the freedoms of expression, we hold that, if the
allegedly libelous statements would otherwise be constitutionally protected from the
present judgment, they do not forfeit that protection because they were published in the
form of a paid advertisement. [Footnote 5]
Page 376 U. S. 267
II
Under Alabama law, as applied in this case, a publication is "libelous per se" if the
words "tend to injure a person . . . in his reputation" or to "bring [him] into public
contempt"; the trial court stated that the standard was met if the words are such as to
"injure him in his public office, or impute misconduct to him in his office, or want of
official integrity, or want of fidelity to a public trust. . . ." The jury must find that the words
were published "of and concerning" the plaintiff, but, where the plaintiff is a public
official, his place in the governmental hierarchy is sufficient evidence to support a
finding that his reputation has been affected by statements that reflect upon the agency
of which he is in charge. Once "libel per se" has been established, the defendant has no
defense as to stated facts unless he can persuade the jury that they were true in all their
particulars. Alabama Ride Co. v. Vance, 235 Ala. 263, 178 So. 438 (1938); Johnson
Publishing Co. v. Davis, 271 Ala. 474, 494 495, 124 So.2d 441, 457-458 (1960). His
privilege of "fair comment" for expressions of opinion depends on the truth of the facts
upon which the comment is based. Parsons v. Age-Herald Publishing Co., 181 Ala. 439,
450, 61 So. 345, 350 (1913). Unless he can discharge the burden of proving truth,
general damages are presumed, and may be awarded without proof of pecuniary injury.
A showing of actual malice is apparently a prerequisite to recovery of punitive damages,
and the defendant may, in any event, forestall a punitive award by a retraction meeting
the statutory requirements. Good motives and belief in truth do not negate an inference
of malice, but are relevant only in mitigation of punitive damages if the jury chooses to
accord them weight. Johnson Publishing Co. v. Davis, supra, 271 Ala., at 495, 124
So.2d at 458.
Page 376 U. S. 268
The question before us is whether this rule of liability, as applied to an action brought by
a public official against critics of his official conduct, abridges the freedom of speech
and of the press that is guaranteed by the First and Fourteenth Amendments.
Respondent relies heavily, as did the Alabama courts, on statements of this Court to the
effect that the Constitution does not protect libelous publications. [Footnote 6] Those
statements do not foreclose our inquiry here. None of the cases sustained the use of
libel laws to impose sanctions upon expression critical of the official conduct of public
officials. The dictum in Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 348-349, that
"when the statements amount to defamation, a judge has such remedy in damages for
libel as do other public servants," implied no view as to what remedy might
constitutionally be afforded to public officials. In Beauharnais v. Illinois, 343 U. S. 250,
the Court sustained an Illinois criminal libel statute as applied to a publication held to be
both defamatory of a racial group and "liable to cause violence and disorder." But the
Court was careful to note that it "retains and exercises authority to nullify action which
encroaches on freedom of utterance under the guise of punishing libel"; for "public men
are, as it were, public property," and "discussion cannot be denied, and the right, as well
as the duty, of criticism must not be stifled." Id. at 343 U. S. 263-264, and n. 18. In the
only previous case that did present the question of constitutional limitations upon the
power to award damages for libel of a public official, the Court was equally divided and
the question was not decided. Schenectady Union Pub. Co. v. Sweeney, 316 U.S. 642.
Page 376 U. S. 269
In deciding the question now, we are compelled by neither precedent nor policy to give
any more weight to the epithet "libel" than we have to other "mere labels" of state
law. NAACP v. Button, 371 U. S. 415, 371 U. S. 429. Like insurrection, [Footnote 7]
contempt, [Footnote 8] advocacy of unlawful acts, [Footnote 9] breach of the peace,
[Footnote 10] obscenity, [Footnote 11] solicitation of legal business, [Footnote 12] and
the various other formulae for the repression of expression that have been challenged in
this Court, libel can claim no talismanic immunity from constitutional limitations. It must
be measured by standards that satisfy the First Amendment.
The general proposition that freedom of expression upon public questions is secured by
the First Amendment has long been settled by our decisions. The constitutional
safeguard, we have said, "was fashioned to assure unfettered interchange of ideas for
the bringing about of political and social changes desired by the people." Roth v. United
States, 354 U. S. 476, 354 U. S. 484.
Page 5 of 57
"The maintenance of the opportunity for free political discussion to the end that
government may be responsive to the will of the people and that changes may be
obtained by lawful means, an opportunity essential to the security of the Republic, is a
fundamental principle of our constitutional system."
Stromberg v. California, 283 U. S. 359, 283 U. S. 369. "[I]t is a prized American privilege
to speak one's mind, although not always with perfect good taste, on all public
institutions," Bridges v. California, 314 U. S. 252, 314 U. S. 270, and this opportunity is
to be afforded for "vigorous advocacy" no less than "abstract discussion." NAACP v.
Button, 371 U. S. 415,371 U. S. 429.
Page 376 U. S. 270
The First Amendment, said Judge Learned Hand,
"presupposes that right conclusions are more likely to be gathered out of a multitude of
tongues than through any kind of authoritative selection. To many, this is, and always
will be, folly, but we have staked upon it our all."
United States v. Associated Press, 52 F.Supp. 362, 372 (D.C.S.D.N.Y.1943). Mr.
Justice Brandeis, in his concurring opinion in Whitney v. California, 274 U. S. 357, 274
U. S. 375-376, gave the principle its classic formulation:
"Those who won our independence believed . . . that public discussion is a political duty,
and that this should be a fundamental principle of the American government. They
recognized the risks to which all human institutions are subject. But they knew that
order cannot be secured merely through fear of punishment for its infraction; that it is
hazardous to discourage thought, hope and imagination; that fear breeds repression;
that repression breeds hate; that hate menaces stable government; that the path of
safety lies in the opportunity to discuss freely supposed grievances and proposed
remedies, and that the fitting remedy for evil counsels is good ones. Believing in the
power of reason as applied through public discussion, they eschewed silence coerced
by law -- the argument of force in its worst form. Recognizing the occasional tyrannies
of governing majorities, they amended the Constitution so that free speech and
assembly should be guaranteed."
Thus, we consider this case against the background of a profound national commitment
to the principle that debate on public issues should be uninhibited, robust, and wide-
open, and that it may well include vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public officials. See Terminiello v. Chicago, 337 U. S.
1, 337 U. S. 4; De Jonge v. Oregon, 299 U. S. 353,
Page 376 U. S. 271
299 U. S. 365. The present advertisement, as an expression of grievance and protest
on one of the major public issues of our time, would seem clearly to qualify for the
constitutional protection. The question is whether it forfeits that protection by the falsity
of some of its factual statements and by its alleged defamation of respondent.
Authoritative interpretations of the First Amendment guarantees have consistently
refused to recognize an exception for any test of truth -- whether administered by
judges, juries, or administrative officials -- and especially one that puts the burden of
proving truth on the speaker. Cf. Speiser v. Randall, 357 U. S. 513, 357 U. S. 525-526.
The constitutional protection does not turn upon "the truth, popularity, or social utility of
the ideas and beliefs which are offered." NAACP v. Button, 371 U. S. 415, 371 U. S.
445. As Madison said, "Some degree of abuse is inseparable from the proper use of
every thing, and in no instance is this more true than in that of the press." 4 Elliot's
Debates on the Federal Constitution (1876), p. 571. In Cantwell v. Connecticut, 310 U.
S. 296, 310 U. S. 310, the Court declared:
"In the realm of religious faith, and in that of political belief, sharp differences arise. In
both fields, the tenets of one man may seem the rankest error to his neighbor. To
persuade others to his own point of view, the pleader, as we know, at times resorts to
exaggeration, to vilification of men who have been, or are, prominent in church or state,
and even to false statement. But the people of this nation have ordained, in the light of
history, that, in spite of the probability of excesses and abuses, these liberties are, in the
long view, essential to enlightened opinion and right conduct on the part of the citizens
of a democracy."
That erroneous statement is inevitable in free debate, and that it must be protected if
the freedoms of expression
Page 376 U. S. 272
are to have the "breathing space" that they "need . . . to survive," NAACP v. Button, 371
U. S. 415, 371 U. S. 433, was also recognized by the Court of Appeals for the District of
Columbia Circuit in Sweeney v. Patterson, 76 U.S.App.D.C. 23, 24, 128 F.2d 457, 458
(1942), cert. denied, 317 U.S. 678. Judge Edgerton spoke for a unanimous court which
affirmed the dismissal of a Congressman's libel suit based upon a newspaper article
charging him with anti-Semitism in opposing a judicial appointment. He said:
"Cases which impose liability for erroneous reports of the political conduct of officials
reflect the obsolete doctrine that the governed must not criticize their governors. . . . The
interest of the public here outweighs the interest of appellant or any other individual.
The protection of the public requires not merely discussion, but information. Political
conduct and views which some respectable people approve, and others condemn, are
constantly imputed to Congressmen. Errors of fact, particularly in regard to a man's
mental states and processes, are inevitable. . . . Whatever is added to the field of libel is
taken from the field of free debate. [Footnote 13]"
Injury to official reputation affords no more warrant for repressing speech that would
otherwise be free than does factual error. Where judicial officers are involved, this Court
has held that concern for the dignity and
Page 6 of 57
Page 376 U. S. 273
reputation of the courts does not justify the punishment as criminal contempt of criticism
of the judge or his decision.Bridges v. California, 314 U. S. 252. This is true even
though the utterance contains "half-truths" and "misinformation."Pennekamp v.
Florida, 328 U. S. 331, 328 U. S. 342, 328 U. S. 343, n. 5, 328 U. S. 345. Such
repression can be justified, if at all, only by a clear and present danger of the obstruction
of justice. See also Craig v. Harney, 331 U. S. 367; Wood v. Georgia,370 U. S. 375. If
judges are to be treated as "men of fortitude, able to thrive in a hardy climate," Craig v.
Harney, supra, 331 U.S. at 331 U. S. 376, surely the same must be true of other
government officials, such as elected city commissioners. [Footnote 14] Criticism of
their official conduct does not lose its constitutional protection merely because it is
effective criticism, and hence diminishes their official reputations.
If neither factual error nor defamatory content suffices to remove the constitutional
shield from criticism of official conduct, the combination of the two elements is no less
inadequate. This is the lesson to be drawn from the great controversy over the Sedition
Act of 1798, 1 Stat. 596, which first crystallized a national awareness of the central
meaning of the First Amendment. See Levy, Legacy of Suppression (1960), at 258 et
seq.; Smith, Freedom's Fetters (1956), at 426, 431, and passim. That statute made it a
crime, punishable by a $5,000 fine and five years in prison,
"if any person shall write, print, utter or publish . . . any false, scandalous and malicious
Page 376 U. S. 274
writing or writings against the government of the United States, or either house of the
Congress . . . or the President . . . with intent to defame . . . or to bring them, or either of
them, into contempt or disrepute; or to excite against them, or either or any of them, the
hatred of the good people of the United States."
The Act allowed the defendant the defense of truth, and provided that the jury were to
be judges both of the law and the facts. Despite these qualifications, the Act was
vigorously condemned as unconstitutional in an attack joined in by Jefferson and
Madison. In the famous Virginia Resolutions of 1798, the General Assembly of Virginia
resolved that it
"doth particularly protest against the palpable and alarming infractions of the
Constitution in the two late cases of the 'Alien and Sedition Acts,' passed at the last
session of Congress. . . . [The Sedition Act] exercises . . . a power not delegated by the
Constitution, but, on the contrary, expressly and positively forbidden by one of the
amendments thereto -- a power which, more than any other, ought to produce universal
alarm because it is leveled against the right of freely examining public characters and
measures, and of free communication among the people thereon, which has ever been
justly deemed the only effectual guardian of every other right."
4 Elliot's Debates, supra, pp. 553-554. Madison prepared the Report in support of the
protest. His premise was that the Constitution created a form of government under
which "The people, not the government, possess the absolute sovereignty." The
structure of the government dispersed power in reflection of the people's distrust of
concentrated power, and of power itself at all levels. This form of government was
"altogether different" from the British form, under which the Crown was sovereign and
the people were subjects. "Is
Page 376 U. S. 275
it not natural and necessary, under such different circumstances," he asked, "that a
different degree of freedom in the use of the press should be contemplated?" Id., pp.
569-570. Earlier, in a debate in the House of Representatives, Madison had said:
"If we advert to the nature of Republican Government, we shall find that the censorial
power is in the people over the Government, and not in the Government over the
people."
4 Annals of Congress, p. 934 (1794). Of the exercise of that power by the press, his
Report said:
"In every state, probably, in the Union, the press has exerted a freedom in canvassing
the merits and measures of public men, of every description, which has not been
confined to the strict limits of the common law. On this footing, the freedom of the press
has stood; on this foundation it yet stands. . . ."
4 Elliot's Debates, supra, p. 570. The right of free public discussion of the stewardship
of public officials was thus, in Madison's view, a fundamental principle of the American
form of government. [Footnote 15]
Page 376 U. S. 276
Although the Sedition Act was never tested in this Court, [Footnote 16] the attack upon
its validity has carried the day in the court of history. Fines levied in its prosecution were
repaid by Act of Congress on the ground that it was unconstitutional. See, e.g., Act of
July 4, 1840, c. 45, 6 Stat. 802, accompanied by H.R.Rep. No. 86, 26th Cong., 1st
Sess. (1840). Calhoun, reporting to the Senate on February 4, 1836, assumed that its
invalidity was a matter "which no one now doubts." Report with Senate bill No. 122, 24th
Cong., 1st Sess., p. 3. Jefferson, as President, pardoned those who had been convicted
and sentenced under the Act and remitted their fines, stating:
"I discharged every person under punishment or prosecution under the sedition law
because I considered, and now consider, that law to be a nullity, as absolute and as
palpable as if Congress had ordered us to fall down and worship a golden image."
Letter to Mrs. Adams, July 22, 1804, 4 Jefferson's Works (Washington ed.), pp. 555,
556. The invalidity of the Act has also been assumed by Justices of this
Page 7 of 57
Court. See Holmes, J., dissenting and joined by Brandeis, J., in Abrams v. United
States, 250 U. S. 616, 250 U. S. 630; Jackson, J., dissenting in Beauharnais v.
Illinois, 343 U. S. 250, 343 U. S. 288-289; Douglas, The Right of the People (1958), p.
47. See also Cooley, Constitutional Limitations (8th ed., Carrington, 1927), pp. 899-900;
Chafee, Free Speech in the United States (1942), pp. 27-28. These views reflect a
broad consensus that the Act, because of the restraint it imposed upon criticism of
government and public officials, was inconsistent with the First Amendment.
There is no force in respondent's argument that the constitutional limitations implicit in
the history of the Sedition Act apply only to Congress, and not to the States. It is true
that the First Amendment was originally addressed only to action by the Federal
Government, and
Page 376 U. S. 277
that Jefferson, for one, while denying the power of Congress "to controul the freedom of
the press," recognized such a power in the States. See the 1804 Letter to Abigail
Adams quoted in Dennis v. United States, 341 U. S. 494, 341 U. S. 522, n. 4
(concurring opinion). But this distinction was eliminated with the adoption of the
Fourteenth Amendment and the application to the States of the First Amendment's
restrictions. See, e.g., Gitlow v. New York, 268 U. S. 652, 268 U. S. 666; Schneider v.
State, 308 U. S. 147, 308 U. S. 160; Bridges v. California, 314 U. S. 252, 314 U. S.
268; Edwards v. South Carolina,372 U. S. 229, 372 U. S. 235.
What a State may not constitutionally bring about by means of a criminal statute is
likewise beyond the reach of its civil law of libel. [Footnote 17] The fear of damage
awards under a rule such as that invoked by the Alabama courts here may be markedly
more inhibiting than the fear of prosecution under a criminal statute. See City of
Chicago v. Tribune Co., 307 Ill. 595, 607, 139 N.E. 86, 90 (1923). Alabama, for
example, has a criminal libel law which subjects to prosecution "any person who
speaks, writes, or prints of and concerning another any accusation falsely and
maliciously importing the commission by such person of a felony, or any other indictable
offense involving moral turpitude," and which allows as punishment upon conviction a
fine not exceeding $500 and a prison sentence of six months. Alabama Code, Tit. 14, §
350. Presumably, a person charged with violation of this statute enjoys ordinary criminal
law safeguards such as the requirements of an indictment and of proof beyond a
reasonable doubt. These safeguards are not available to the defendant in a civil action.
The judgment awarded in this case -- without the need for any proof of actual pecuniary
loss -- was one thousand times greater than the maximum fine provided by the Alabama
criminal statute, and one hundred times greater than that provided by the Sedition Act.
Page 376 U. S. 278
And since there is no double jeopardy limitation applicable to civil lawsuits, this is not
the only judgment that may be awarded against petitioners for the same publication.
[Footnote 18] Whether or not a newspaper can survive a succession of such judgments,
the pall of fear and timidity imposed upon those who would give voice to public criticism
is an atmosphere in which the First Amendment freedoms cannot survive. Plainly the
Alabama law of civil libel is
"a form of regulation that creates hazards to protected freedoms markedly greater than
those that attend reliance upon the criminal law."
Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 372 U. S. 70.
The state rule of law is not saved by its allowance of the defense of truth. A defense for
erroneous statements honestly made is no less essential here than was the requirement
of proof of guilty knowledge which, in Smith v. California, 361 U. S. 147, we held
indispensable to a valid conviction of a bookseller for possessing obscene writings for
sale. We said:
"For, if the bookseller is criminally liable without knowledge of the contents, . . . He will
tend to restrict the books he sells to those he has inspected, and thus the State will
have imposed a restriction upon the distribution of constitutionally protected, as well as
obscene, literature. . . . And the bookseller's burden would become the public's burden,
for, by restricting him, the public's access to reading matter would be restricted. . . . [H]is
timidity in the face of his absolute criminal liability thus would tend to restrict the public's
access to forms of the printed word which the State could not constitutionally
Page 376 U. S. 279
suppress directly. The bookseller's self-censorship, compelled by the State, would be a
censorship affecting the whole public, hardly less virulent for being privately
administered. Through it, the distribution of all books, both obscene and not obscene,
would be impeded."
( 361 U. S. 361 U.S. 147, 361 U. S. 153-154.) A rule compelling the critic of official
conduct to guarantee the truth of all his factual assertions -- and to do so on pain of libel
judgments virtually unlimited in amount -- leads to a comparable "self-censorship."
Allowance of the defense of truth, with the burden of proving it on the defendant, does
not mean that only false speech will be deterred. [Footnote 19] Even courts accepting
this defense as an adequate safeguard have recognized the difficulties of adducing
legal proofs that the alleged libel was true in all its factual particulars. See, e.g., Post
Publishing Co. v. Hallam, 59 F. 530, 540 (C.A. 6th Cir. 1893); see also Noel,
Defamation of Public Officers and Candidates, 49 Col.L.Rev. 875, 892 (1949). Under
such a rule, would-be critics of official conduct may be deterred from voicing their
criticism, even though it is believed to be true and even though it is, in fact, true,
because of doubt whether it can be proved in court or fear of the expense of having to
do so. They tend to make only statements which "steer far wider of the unlawful
zone."Speiser v. Randall, supra, 357 U.S. at 357 U. S. 526. The rule thus dampens the
vigor and limits the variety of public debate. It is inconsistent with the First and
Fourteenth Amendments. The constitutional guarantees require, we think, a federal rule
that prohibits a public official from recovering damages for a defamatory falsehood
relating to his official conduct unless he proves that the statement was made
Page 8 of 57
Page 376 U. S. 280
with "actual malice" -- that is, with knowledge that it was false or with reckless disregard
of whether it was false or not. An oft-cited statement of a like rule, which has been
adopted by a number of state courts, [Footnote 20] is found in the Kansas case
of Coleman v. MacLennan, 78 Kan. 711, 98 P. 281 (1908). The State Attorney General,
a candidate for reelection and a member of the commission charged with the
management and control of the state school fund, sued a newspaper publisher for
alleged libel in an article purporting to state facts relating to his official conduct in
connection with a school-fund transaction. The defendant pleaded privilege and the trial
judge, over the plaintiff's objection, instructed the jury that
"where an article is published and circulated among voters for the sole purpose of giving
what the defendant
Page 376 U. S. 281
believes to be truthful information concerning a candidate for public office and for the
purpose of enabling such voters to cast their ballot more intelligently, and the whole
thing is done in good faith and without malice, the article is privileged, although the
principal matters contained in the article may be untrue, in fact, and derogatory to the
character of the plaintiff, and in such a case the burden is on the plaintiff to show actual
malice in the publication of the article."
In answer to a special question, the jury found that the plaintiff had not proved actual
malice, and a general verdict was returned for the defendant. On appeal, the Supreme
Court of Kansas, in an opinion by Justice Burch, reasoned as follows (78 Kan., at 724,
98 P. at 286):
"It is of the utmost consequence that the people should discuss the character and
qualifications of candidates for their suffrages. The importance to the state and to
society of such discussions is so vast, and the advantages derived are so great, that
they more than counterbalance the inconvenience of private persons whose conduct
may be involved, and occasional injury to the reputations of individuals must yield to the
public welfare, although at times such injury may be great. The public benefit from
publicity is so great, and the chance of injury to private character so small, that such
discussion must be privileged."
The court thus sustained the trial court's instruction as a correct statement of the law,
saying:
"In such a case the occasion gives rise to a privilege, qualified to this extent: any one
claiming to be defamed by the communication must show actual malice or go
remediless. This privilege extends to a great variety of subjects, and includes matters of
Page 376 U. S. 282
public concern, public men, and candidates for office."
78 Kan. at 723, 98 P. at 285.
Such a privilege for criticism of official conduct [Footnote 21] is appropriately analogous
to the protection accorded a public official when he is sued for libel by a private citizen.
In Barr v. Matteo, 360 U. S. 564, 360 U. S. 575, this Court held the utterance of a
federal official to be absolutely privileged if made "within the outer perimeter" of his
duties. The States accord the same immunity to statements of their highest officers,
although some differentiate their lesser officials and qualify the privilege they enjoy.
[Footnote 22] But all hold that all officials are protected unless actual malice can be
proved. The reason for the official privilege is said to be that the threat of damage suits
would otherwise "inhibit the fearless, vigorous, and effective administration of policies of
government" and "dampen the ardor of all but the most resolute, or the most
irresponsible, in the unflinching discharge of their duties." Barr v. Matteo, supra, 360
U.S. at 360 U. S. 571. Analogous considerations support the privilege for the citizen-
critic of government. It is as much his duty to criticize as it is the official's duty to
administer. See Whitney v. California, 274 U. S. 357, 274 U. S. 375 (concurring opinion
of Mr. Justice Brandeis), quoted supra, p. 376 U. S. 270. As Madison said, see
supra p. 376 U. S. 275, "the censorial power is in the people over the Government, and
not in the Government over the people." It would give public servants an unjustified
preference over the public they serve, if critics of official conduct
Page 376 U. S. 283
did not have a fair equivalent of the immunity granted to the officials themselves.
We conclude that such a privilege is required by the First and Fourteenth Amendments.
III
We hold today that the Constitution delimits a State's power to award damages for libel
in actions brought by public officials against critics of their official conduct. Since this is
such an action, [Footnote 23] the rule requiring proof of actual malice is applicable.
While Alabama law apparently requires proof of actual malice for an award of punitive
damages, [Footnote 24] where general damages are concerned malice is "presumed."
Such a presumption is inconsistent
Page 376 U. S. 284
with the federal rule. "The power to create presumptions is not a means of escape from
constitutional restrictions," Bailey v. Alabama, 219 U. S. 219, 219 U. S. 239, "the
showing of malice required for the forfeiture of the privilege is not presumed but is a
matter for proof by the plaintiff. . . ." Lawrence v. Fox, 357 Mich. 134, 146, 97 N.W.2d
719, 725 (1959). [Footnote 25] Since the trial judge did not instruct the jury to
differentiate between general and punitive damages, it may be that the verdict was
wholly an award of one or the other. But it is impossible to know, in view of the general
Page 9 of 57
verdict returned. Because of this uncertainty, the judgment must be reversed and the
case remanded. Stromberg v. California, 283 U. S. 359,283 U. S. 367-368; Williams v.
North Carolina, 317 U. S. 287, 317 U. S. 291-292; see Yates v. United States, 354 U. S.
298, 354 U. S. 311-312; Cramer v. United States, 325 U. S. 1, 325 U. S. 36, n. 45.
Since respondent may seek a new trial, we deem that considerations of effective judicial
administration require us to review the evidence in the present record to determine
Page 376 U. S. 285
whether it could constitutionally support a judgment for respondent. This Court's duty is
not limited to the elaboration of constitutional principles; we must also in proper cases
review the evidence to make certain that those principles have been constitutionally
applied. This is such a case, particularly since the question is one of alleged trespass
across "the line between speech unconditionally guaranteed and speech which may
legitimately be regulated." Speiser v. Randall, 357 U. S. 513, 357 U. S. 525. In cases
where that line must be drawn, the rule is that we
"examine for ourselves the statements in issue and the circumstances under which they
were made to see . . . whether they are of a character which the principles of the First
Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment,
protect."
Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 335; see also One, Inc., v. Olesen, 355
U. S. 371; Sunshine Book Co. v. Summerfield, 355 U. S. 372. We must "make an
independent examination of the whole record," Edwards v. South Carolina,372 U. S.
229, 372 U. S. 235, so as to assure ourselves that the judgment does not constitute a
forbidden intrusion on the field of free expression. [Footnote 26]
Applying these standards, we consider that the proof presented to show actual malice
lacks the convincing
Page 376 U. S. 286
clarity which the constitutional standard demands, and hence that it would not
constitutionally sustain the judgment for respondent under the proper rule of law. The
case of the individual petitioners requires little discussion. Even assuming that they
could constitutionally be found to have authorized the use of their names on the
advertisement, there was no evidence whatever that they were aware of any erroneous
statements or were in any way reckless in that regard. The judgment against them is
thus without constitutional support.
As to the Times, we similarly conclude that the facts do not support a finding of actual
malice. The statement by the Times' Secretary that, apart from the padlocking
allegation, he thought the advertisement was "substantially correct," affords no
constitutional warrant for the Alabama Supreme Court's conclusion that it was a
"cavalier ignoring of the falsity of the advertisement [from which] the jury could not have
but been impressed with the bad faith of The Times, and its maliciousness inferable
therefrom."
The statement does not indicate malice at the time of the publication; even if the
advertisement was not "substantially correct" -- although respondent's own proofs tend
to show that it was -- that opinion was at least a reasonable one, and there was no
evidence to impeach the witness' good faith in holding it. The Times' failure to retract
upon respondent's demand, although it later retracted upon the demand of Governor
Patterson, is likewise not adequate evidence of malice for constitutional purposes.
Whether or not a failure to retract may ever constitute such evidence, there are two
reasons why it does not here. First, the letter written by the Times reflected a
reasonable doubt on its part as to whether the advertisement could reasonably be taken
to refer to respondent at all. Second, it was not a final refusal, since it asked for an
explanation on this point -- a request that respondent chose to ignore. Nor does the
retraction upon the demand of the Governor supply the
Page 376 U. S. 287
necessary proof. It may be doubted that a failure to retract, which is not itself evidence
of malice, can retroactively become such by virtue of a retraction subsequently made to
another party. But, in any event, that did not happen here, since the explanation given
by the Times' Secretary for the distinction drawn between respondent and the Governor
was a reasonable one, the good faith of which was not impeached.
Finally, there is evidence that the Times published the advertisement without checking
its accuracy against the news stories in the Times' own files. The mere presence of the
stories in the files does not, of course, establish that the Times "knew" the
advertisement was false, since the state of mind required for actual malice would have
to be brought home to the persons in the Times' organization having responsibility for
the publication of the advertisement. With respect to the failure of those persons to
make the check, the record shows that they relied upon their knowledge of the good
reputation of many of those whose names were listed as sponsors of the advertisement,
and upon the letter from A. Philip Randolph, known to them as a responsible individual,
certifying that the use of the names was authorized. There was testimony that the
persons handling the advertisement saw nothing in it that would render it unacceptable
under the Times' policy of rejecting advertisements containing "attacks of a personal
character"; [Footnote 27] their failure to reject it on this ground was not unreasonable.
We think
Page 376 U. S. 288
the evidence against the Times supports, at most, a finding of negligence in failing to
discover the misstatements, and is constitutionally insufficient to show the recklessness
that is required for a finding of actual malice. Cf. Charles Parker Co. v. Silver City
Crystal Co., 142 Conn. 605, 618, 116 A.2d 440, 446 (1955); Phoenix Newspapers, Inc.,
v. Choisser, 82 Ariz. 271, 277-278, 312 P.2d 150, 154-155 (1957).
Page 10 of 57
We also think the evidence was constitutionally defective in another respect: it was
incapable of supporting the jury's finding that the allegedly libelous statements were
made "of and concerning" respondent. Respondent relies on the words of the
advertisement and the testimony of six witnesses to establish a connection between it
and himself. Thus, in his brief to this Court, he states:
"The reference to respondent as police commissioner is clear from the ad. In addition,
the jury heard the testimony of a newspaper editor . . . ; a real estate and insurance
man . . . ; the sales manager of a men's clothing store . . . ; a food equipment man . . . ;
a service station operator . . . , and the operator of a truck line for whom respondent had
formerly worked. . . . Each of these witnesses stated that he associated the statements
with respondent. . . ."
(Citations to record omitted.) There was no reference to respondent in the
advertisement, either by name or official position. A number of the allegedly libelous
statements -- the charges that the dining hall was padlocked and that Dr. King's home
was bombed, his person assaulted, and a perjury prosecution instituted against him --
did not even concern the police; despite the ingenuity of the arguments which would
attach this significance to the word "They," it is plain that these statements could not
reasonably be read as accusing respondent of personal involvement in the acts
Page 376 U. S. 289
in question. The statements upon which respondent principally relies as referring to him
are the two allegations that did concern the police or police functions: that "truckloads of
police . . . ringed the Alabama State College Campus" after the demonstration on the
State Capitol steps, and that Dr. King had been "arrested . . . seven times." These
statements were false only in that the police had been "deployed near" the campus, but
had not actually "ringed" it, and had not gone there in connection with the State Capitol
demonstration, and in that Dr. King had been arrested only four times. The ruling that
these discrepancies between what was true and what was asserted were sufficient to
injure respondent's reputation may itself raise constitutional problems, but we need not
consider them here. Although the statements may be taken as referring to the police,
they did not, on their face, make even an oblique reference to respondent as an
individual. Support for the asserted reference must, therefore, be sought in the
testimony of respondent's witnesses. But none of them suggested any basis for the
belief that respondent himself was attacked in the advertisement beyond the bare fact
that he was in overall charge of the Police Department and thus bore official
responsibility for police conduct; to the extent that some of the witnesses thought
respondent to have been charged with ordering or approving the conduct or otherwise
being personally involved in it, they based this notion not on any statements in the
advertisement, and not on any evidence that he had, in fact, been so involved, but
solely on the unsupported assumption that, because of his official position, he must
have been. [Footnote 28] This reliance on the bare
Page 376 U. S. 290
fact of respondent's official position [Footnote 29] was made explicit by the Supreme
Court of Alabama. That court, in holding that the trial court "did not err in overruling the
demurrer [of the Times] in the aspect that the libelous
Page 376 U. S. 291
matter was not of and concerning the [plaintiff,]" based its ruling on the proposition that:
"We think it common knowledge that the average person knows that municipal agents,
such as police and firemen, and others, are under the control and direction of the city
governing body, and more particularly under the direction and control of a single
commissioner. In measuring the performance or deficiencies of such groups, praise or
criticism is usually attached to the official in complete control of the body."
273 Ala., at 674-675, 144 So.2d at 39.
This proposition has disquieting implications for criticism of governmental conduct. For
good reason,
"no court of last resort in this country has ever held, or even suggested, that
prosecutions for libel on government have any place in the American system of
jurisprudence."
City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N.E.
Page 376 U. S. 292
86, 88 (1923). The present proposition would sidestep this obstacle by transmuting
criticism of government, however impersonal it may seem on its face, into personal
criticism, and hence potential libel, of the officials of whom the government is
composed. There is no legal alchemy by which a State may thus create the cause of
action that would otherwise be denied for a publication which, as respondent himself
said of the advertisement, "reflects not only on me but on the other Commissioners and
the community." Raising as it does the possibility that a good faith critic of government
will be penalized for his criticism, the proposition relied on by the Alabama courts strikes
at the very center of the constitutionally protected area of free expression. [Footnote 30]
We hold that such a proposition may not constitutionally be utilized to establish that an
otherwise impersonal attack on governmental operations was a libel of an official
responsible for those operations. Since it was relied on exclusively here, and there was
no other evidence to connect the statements with respondent, the evidence was
constitutionally insufficient to support a finding that the statements referred to
respondent.
The judgment of the Supreme Court of Alabama is reversed, and the case is remanded
to that court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Page 11 of 57
Page 12 of 57
U.S. Supreme Court
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
Chaplinsky v. New Hampshire
No. 255
Argued February 5, 1942
Decided March 9, 1942
315 U.S. 568
APPEAL FROM THE SUPREME COURT OF NEW HAMPSHIRE
Syllabus
1. That part of c. 378, § 2, of the Public Law of New Hampshire which forbids under
penalty that any person shall address "any offensive, derisive or annoying word to any
other person who is lawfully in any street or other public place," or "call him by any
offensive or derisive name," was construed by the Supreme Court of the State, in this
case and before this case arose, as limited to the use in a public place of words directly
tending to cause a breach of the peace by provoking the person addressed to acts of
violence.
Held:
(1) That, so construed, it is sufficiently definite and specific to comply with requirements
of due process of law. P. 315 U. S. 573.
(2) That, as applied to a person who, on a public street, addressed another as a
"damned Fascist" and a "damned racketeer," it does not substantially or unreasonably
impinge upon freedom of speech. P. 315 U. S. 574.
(3) The refusal of the state court to admit evidence offered by the defendant tending to
prove provocation and evidence bearing on the truth or falsity of the utterances charged
is open to no constitutional objection. P. 315 U. S. 574.
2. The Court notices judicially that the appellations "damned racketeer" and "damned
Fascist" are epithets likely to provoke the average person to retaliation, and thereby
cause a breach of the peace. P. 315 U. S. 574
91 N.H. 310, 18 A.2d 754, affirmed.
APPEAL from a judgment affirming a conviction under a state law denouncing the use
of offensive words when addressed by one person to another in a public place.
Page 315 U. S. 569
MR. JUSTICE MURPHY delivered the opinion of the Court.
Appellant, a member of the sect known as Jehovah's Witnesses, was convicted in the
municipal court of Rochester, New Hampshire, for violation of Chapter 378, § 2, of the
Public Laws of New Hampshire:
"No person shall address any offensive, derisive or annoying word to any other person
who is lawfully in any street or other public place, nor call him by any offensive or
derisive name, nor make any noise or exclamation in his presence and hearing with
intent to deride, offend or annoy him, or to prevent him from pursuing his lawful
business or occupation."
The complaint charged that appellant,
"with force and arms, in a certain public place in said city of Rochester, to-wit, on the
public sidewalk on the easterly side of Wakefield Street, near unto the entrance of the
City Hall, did unlawfully repeat the words following, addressed to the complainant, that
is to say, 'You are a God damned racketeer' and 'a damned Fascist and the whole
government of Rochester are Fascists or agents of Fascists,' the same being offensive,
derisive and annoying words and names."
Upon appeal, there was a trial de novo of appellant before a jury in the Superior Court.
He was found guilty, and the judgment of conviction was affirmed by the Supreme Court
of the State. 91 N.H. 310, 18 A.2d 754.
By motions and exceptions, appellant raised the questions that the statute was invalid
under the Fourteenth Amendment of the Constitution of the United States in that it
placed an unreasonable restraint on freedom of speech, freedom of the press, and
freedom of worship, and because it was vague and indefinite. These contentions were
overruled, and the case comes here on appeal.
There is no substantial dispute over the facts. Chaplinsky was distributing the literature
of his sect on the streets
Page 315 U. S. 570
of Rochester on a busy Saturday afternoon. Members of the local citizenry complained
to the City Marshal, Bowering, that Chaplinsky was denouncing all religion as a "racket."
Bowering told them that Chaplinsky was lawfully engaged, and then warned Chaplinsky
that the crowd was getting restless. Some time later, a disturbance occurred and the
traffic officer on duty at the busy intersection started with Chaplinsky for the police
Page 13 of 57
station, but did not inform him that he was under arrest or that he was going to be
arrested. On the way, they encountered Marshal Bowering, who had been advised that
a riot was under way and was therefore hurrying to the scene. Bowering repeated his
earlier warning to Chaplinsky, who then addressed to Bowering the words set forth in
the complaint.
Chaplinsky's version of the affair was slightly different. He testified that, when he met
Bowering, he asked him to arrest the ones responsible for the disturbance. In reply,
Bowering cursed him and told him to come along. Appellant admitted that he said the
words charged in the complaint, with the exception of the name of the Deity.
Over appellant's objection, the trial court excluded, as immaterial, testimony relating to
appellant's mission "to preach the true facts of the Bible," his treatment at the hands of
the crowd, and the alleged neglect of duty on the part of the police. This action was
approved by the court below, which held that neither provocation nor the truth of the
utterance would constitute a defense to the charge.
It is now clear that
"Freedom of speech and freedom of the press, which are protected by the First
Amendment from infringement by Congress, are among the fundamental personal rights
and liberties which are protected by the Fourteenth Amendment from invasion by state
Page 315 U. S. 571
action."
Lovell v. Griffin, 303 U. S. 444, 303 U. S. 450. [Footnote 1] Freedom of worship is
similarly sheltered. Cantwell v. Connecticut,310 U. S. 296, 310 U. S. 303.
Appellant assails the statute as a violation of all three freedoms, speech, press and
worship, but only an attack on the basis of free speech is warranted. The spoken, not
the written, word is involved. And we cannot conceive that cursing a public officer is the
exercise of religion in any sense of the term. But even if the activities of the appellant
which preceded the incident could be viewed as religious in character, and therefore
entitled to the protection of the Fourteenth Amendment, they would not cloak him with
immunity from the legal consequences for concomitant acts committed in violation of a
valid criminal statute. We turn, therefore, to an examination of the statute itself.
Allowing the broadest scope to the language and purpose of the Fourteenth
Amendment, it is well understood that the right of free speech is not absolute at all times
and under all circumstances. [Footnote 2] There are certain well defined and narrowly
limited classes of speech, the prevention
Page 315 U. S. 572
and punishment of which have never been thought to raise any Constitutional problem.
[Footnote 3] These include the lewd and obscene, the profane, the libelous, and the
insulting or "fighting" words -- those which, by their very utterance, inflict injury or tend to
incite an immediate breach of the peace. [Footnote 4] It has been well observed that
such utterances are no essential part of any exposition of ideas, and are of such slight
social value as a step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality. [Footnote 5]
"Resort to epithets or personal abuse is not in any proper sense communication of
information or opinion safeguarded by the Constitution, and its punishment as a criminal
act would raise no question under that instrument."
Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 309-310.
The state statute here challenged comes to us authoritatively construed by the highest
court of New Hampshire. It has two provisions -- the first relates to words or names
addressed to another in a public place; the second refers to noises and exclamations.
The court said:
"The two provisions are distinct. One may stand separately from the other. Assuming,
without holding, that the second were unconstitutional, the first could stand if
constitutional."
We accept that construction of severability and limit our consideration to the first
provision of the statute. [Footnote 6]
Page 315 U. S. 573
On the authority of its earlier decisions, the state court declared that the statute's
purpose was to preserve the public peace, no words being "forbidden except such as
have a direct tendency to cause acts of violence by the persons to whom, individually,
the remark is addressed." [Footnote 7] It was further said:
"The word 'offensive' is not to be defined in terms of what a particular addressee thinks.
. . . The test is what men of common intelligence would understand would be words
likely to cause an average addressee to fight. . . . The English language has a number
of words and expressions which, by general consent, are 'fighting words' when said
without a disarming smile. . . . [S]uch words, as ordinary men know, are likely to cause a
fight. So are threatening, profane or obscene revilings. Derisive and annoying words
can be taken as coming within the purview of the statute as heretofore interpreted only
when they have this characteristic of plainly tending to excite the addressee to a breach
of the peace. . . . The statute, as construed, does no more than prohibit the face-to-face
words plainly likely to cause a breach of the peace by the addressee, words whose
speaking constitutes a breach of the peace by the speaker -- including 'classical fighting
words,' words in current use less 'classical' but equally likely to cause violence, and
other disorderly words, including profanity, obscenity and threats."
Page 14 of 57
We are unable to say that the limited scope of the statute as thus construed
contravenes the Constitutional right of free expression. It is a statute narrowly drawn
and limited to define and punish specific conduct lying within the domain of state power,
the use in a public place of words likely to cause a breach of the peace. Cf. Cantwell v.
Connecticut, 310 U. S. 296, 310 U. S. 311; Thornhill v. Alabama,

Page 315 U. S. 574

310 U. S. 88, 310 U. S. 105. This conclusion necessarily disposes of appellant's

contention that the statute is so vague and indefinite as to render a conviction
thereunder a violation of due process. A statute punishing verbal acts, carefully drawn
so as not unduly to impair liberty of expression, is not too vague for a criminal law. Cf.
Fox v. Washington 236 U.S. 273, 236 U. S. 277. [Footnote 8]

Nor can we say that the application of the statute to the facts disclosed by the record
substantially or unreasonably impinges upon the privilege of free speech. Argument is
unnecessary to demonstrate that the appellations "damned racketeer" and "damned
Fascist" are epithets likely to provoke the average person to retaliation, and thereby
cause a breach of the peace.

The refusal of the state court to admit evidence of provocation and evidence bearing on
the truth or falsity of the utterances is open to no Constitutional objection. Whether the
facts sought to be proved by such evidence constitute a defense to the charge, or may
be shown in mitigation, are questions for the state court to determine. Our function is
fulfilled by a determination that the challenged statute, on its face and as applied, doe
not contravene the Fourteenth Amendment.

Affirmed.

Page 15 of 57
Page 16 of 57
U.S. Supreme Court
Miller v. California, 413 U.S. 15 (1973)
Miller v. California
No. 70-73
Argued January 18-19, 1972
Reargued November 7, 1972
Decided June 21, 1973
413 U.S. 15
APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR COURT
OF CALIFORNIA, COUNTY OF ORANGE
Syllabus
Appellant was convicted of mailing unsolicited sexually explicit material in violation of a
California statute that approximately incorporated the obscenity test formulated
in Memoirs v. Massachusetts, 383 U. S. 413, 383 U. S. 418(plurality opinion). The trial
court instructed the jury to evaluate the materials by the contemporary community
standards of California. Appellant's conviction was affirmed on appeal. In lieu of the
obscenity criteria enunciated by the Memoirsplurality, it is held:
1. Obscene material is not protected by the First Amendment. Roth v. United
States, 354 U. S. 476, reaffirmed. A work may be subject to state regulation where that
work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently
offensive way, sexual conduct specifically defined by the applicable state law; and,
taken as a whole, does not have serious literary, artistic, political, or scientific value.
Pp. 413 U. S. 23-24.
2. The basic guidelines for the trier of fact must be: (a) whether "the average person,
applying contemporary community standards" would find that the work, taken as a
whole, appeals to the prurient interest, Roth, supra, at 354 U. S. 489, (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law, and (c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value. If a state obscenity law is thus
limited, First Amendment values are adequately protected by ultimate independent
appellate review of constitutional claims when necessary. Pp. 413 U. S. 24-25.
3. The test of "utterly without redeeming social value" articulated in Memoirs, supra, is
rejected as a constitutional standard. Pp. 413 U. S. 24-25.
4. The jury may measure the essentially factual issues of prurient appeal and patent
offensiveness by the standard that prevails in the forum community, and need not
employ a "national standard." Pp. 413 U. S. 30-34.
Vacated and remanded.
Page 413 U. S. 16
BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN,
POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting
opinion, post, p. 413 U. S. 37. BRENNAN, J., filed a dissenting opinion, in which
STEWART and MARSHALL, JJ., joined, post, p. 413 U. S. 47.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
This is one of a group of "obscenity-pornography" cases being reviewed by the Court in
a reexamination of standards enunciated in earlier cases involving what Mr. Justice
Harlan called "the intractable obscenity problem." Interstate Circuit, Inc. v. Dallas, 390
U. S. 676, 390 U. S. 704 (1968) (concurring and dissenting).
Appellant conducted a mass mailing campaign to advertise the sale of illustrated books,
euphemistically called "adult" material. After a jury trial, he was convicted of violating
California Penal Code § 311.2(a), a misdemeanor, by knowingly distributing obscene
matter, [Footnote 1]
Page 413 U. S. 17
and the Appellate Department, Superior Court of California, County of Orange,
summarily affirmed the judgment without opinion. Appellant's conviction was specifically
Page 413 U. S. 18
based on his conduct in causing five unsolicited advertising brochures to be sent
through the mail in an envelope addressed to a restaurant in Newport Beach, California.
The envelope was opened by the manager of the restaurant and his mother. They had
not requested the brochures; they complained to the police.
The brochures advertise four books entitled "Intercourse," "Man-Woman," "Sex Orgies
Illustrated," and "An Illustrated History of Pornography," and a film entitled "Marital
Intercourse." While the brochures contain some descriptive printed material, primarily
they consist of pictures and drawings very explicitly depicting men and women in groups
of two or more engaging in a variety of sexual activities, with genitals often prominently
displayed.
Page 17 of 57
I ". . . There are certain well defined and narrowly limited classes of speech, the
This case involves the application of a State's criminal obscenity statute to a situation in
which sexually explicit materials have been thrust by aggressive sales action upon
unwilling recipients who had in no way indicated any desire to receive such materials.
This Court has recognized that the States have a legitimate interest in prohibiting
dissemination or exhibition of obscene material [Footnote 2]
Page 413 U. S. 19
when the mode of dissemination carries with it a significant danger of offending the
sensibilities of unwilling recipients or of exposure to juveniles. Stanley v. Georgia, 394
U. S. 557, 394 U. S. 567 (1969); Ginsberg v. New York, 390 U. S. 629, 390 U. S. 637-
643 (1968); Interstate Circuit, Inc. v. Dallas, supra, at 390 U. S. 690; Redrup v. New
York, 386 U. S. 767, 386 U. S. 769 (1967); Jacobellis v. Ohio, 378 U. S. 184, 378 U. S.
195 (1964). See Rabe v. Washington, 405 U. S. 313, 405 U. S. 317 (1972) (BURGER,
C.J., concurring); United States v. Reidel, 402 U. S. 351, 402 U. S. 360-362 (1971)
(opinion of MARSHALL, J.); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 343 U. S.
502 (1952); Breard v. Alexandria, 341 U. S. 622, 341 U. S. 644 645 (1951); Kovacs v.
Cooper,336 U. S. 77, 336 U. S. 88-89 (1949); Prince v. Massachusetts, 321 U. S.
158, 321 U. S. 169-170 (1944). Cf. Butler v. Michigan,352 U. S. 380, 352 U. S. 382-383
(1957); Public Utilities Comm'n v. Pollak, 343 U. S. 451, 343 U. S. 464-465 (1952) It is
in this context that we are called
Page 413 U. S. 20
on to define the standards which must be used to identify obscene material that a State
may regulate without infringing on the First Amendment as applicable to the States
through the Fourteenth Amendment.
The dissent of MR. JUSTICE BRENNAN reviews the background of the obscenity
problem, but since the Court now undertakes to formulate standards more concrete
than those in the past, it is useful for us to focus on two of the landmark cases in the
somewhat tortured history of the Court's obscenity decisions. In Roth v. United
States, 354 U. S. 476(1957), the Court sustained a conviction under a federal statute
punishing the mailing of "obscene, lewd, lascivious or filthy . . ." materials. The key to
that holding was the Court's rejection of the claim that obscene materials were protected
by the First Amendment. Five Justices joined in the opinion stating:
"All ideas having even the slightest redeeming social importance -- unorthodox ideas,
controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the
full protection of the [First Amendment] guaranties, unless excludable because they
encroach upon the limited area of more important interests. But implicit in the history of
the First Amendment is the rejection of obscenity as utterly without redeeming social
importance. . . . This is the same judgment expressed by this Court in Chaplinsky v.
New Hampshire, 315 U. S. 568, 315 U. S. 571-572: "
prevention and punishment of which have never been thought to raise any
Constitutional problem. These include the lewd and obscene. . . . It has been well
observed that such utterances are no essential part of any exposition of ideas, and are
of such slight social
Page 413 U. S. 21
value as a step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality. . . ."
[Emphasis by Court in Roth opinion.]
"We hold that obscenity is not within the area of constitutionally protected speech or
press."
354 U.S. at 354 U. S. 48 85 (footnotes omitted).
Nine years later, in Memoirs v. Massachusetts, 383 U. S. 413 (1966), the Court veered
sharply away from the Roth concept and, with only three Justices in the plurality
opinion, articulated a new test of obscenity. The plurality held that, under
the Roth definition,
"as elaborated in subsequent cases, three elements must coalesce: it must be
established that (a) the dominant theme of the material, taken as a whole, appeals to a
prurient interest in sex; (b) the material is patently offensive because it affronts
contemporary community standards relating to the description or representation of
sexual matters; and (c) the material is utterly without redeeming social value."
Id. at 383 U. S. 418. The sharpness of the break with Roth, represented by the third
element of the Memoirs test and emphasized by MR. JUSTICE WHITE's
dissent, id. at 383 U. S. 460-462, was further underscored when the Memoirs plurality
went on to state:
"The Supreme Judicial Court erred in holding that a book need not be 'unqualifiedly
worthless before it can be deemed obscene.' A book cannot be proscribed unless it is
found to be utterly without redeeming social value."
Id. at 383 U. S. 419 (emphasis in original).
While Roth presumed "obscenity" to be "utterly without redeeming social
importance," Memoirs required
Page 413 U. S. 22
Page 18 of 57
that to prove obscenity it must be affirmatively established that the material is
"utterly without redeeming social value." Thus, even as they repeated the words
of Roth, the Memoirs plurality produced a drastically altered test that called on the
prosecution to prove a negative, i.e., that the material was "utterly without redeeming
social value" -- a burden virtually impossible to discharge under our criminal standards
of proof. Such considerations caused Mr. Justice Harlan to wonder if the "utterly without
redeeming social value" test had any meaning at all. See Memoirs v. Massachusetts,
id. at 383 U. S. 459(Harlan, J., dissenting). See also id. at 383 U. S. 461 (WHITE, J.,
dissenting); United States v. Groner, 479 F.2d 577, 579581 (CA5 1973).
Apart from the initial formulation in the Roth case, no majority of the Court has at any
given time been able to agree on a standard to determine what constitutes obscene,
pornographic material subject to regulation under the States' police power. See, e.g.,
Redrup v. New York, 386 U.S. at 386 U. S. 770-771. We have seen "a variety of views
among the members of the Court unmatched in any other course of constitutional
adjudication." Interstate Circuit, Inc. v. Dallas, 390 U.S. at 390 U. S. 704-705 (Harlan, J.,
concurring and dissenting) (footnote omitted). [Footnote 3] This is not remarkable, for in
the area
Page 413 U. S. 23
of freedom of speech and press the courts must always remain sensitive to any
infringement on genuinely serious literary, artistic, political, or scientific expression. This
is an area in which there are few eternal verities.
The case we now review was tried on the theory that the California Penal Code § 311
approximately incorporates the three-stage Memoirs test, supra. But now
the Memoirs test has been abandoned as unworkable by its author, [Footnote 4] and no
Member of the Court today supports the Memoirs formulation.
II
This much has been categorically settled by the Court, that obscene material is
unprotected by the First Amendment. Kois v. Wisconsin, 408 U. S. 229 (1972); United
States v. Reidel, 402 U.S. at 402 U. S. 354; Roth v. United States, supra, at 354 U. S.
485. [Footnote 5] "The First and Fourteenth Amendments have never been treated as
absolutes [footnote omitted]."Breard v. Alexandria, 341 U.S. at 341 U. S. 642, and
cases cited. See Times Film Corp. v. Chicago, 365 U. S. 43, 365 U. S. 47-50
(1961); Joseph Burstyn, Inc. v. Wilson, 343 U.S. at 343 U. S. 502. We acknowledge,
however, the inherent dangers of undertaking to regulate any form of expression. State
statutes designed to regulate obscene materials must be
Page 413 U. S. 24
carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, at 390 U. S. 682-685. As a
result, we now confine the permissible scope of such regulation to works which depict or
describe sexual conduct. That conduct must be specifically defined by the applicable
state law, as written or authoritatively construed. [Footnote 6] A state offense must also
be limited to works which, taken as a whole, appeal to the prurient interest in sex, which
portray sexual conduct in a patently offensive way, and which, taken as a whole, do not
have serious literary, artistic, political, or scientific value.
The basic guidelines for the trier of fact must be: (a) whether "the average person,
applying contemporary community standards" would find that the work, taken as a
whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 408 U. S. 230,
quoting Roth v. United States, supra, at 354 U. S. 489; (b) whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value. We do not adopt as a constitutional standard the
"utterly without redeeming social value" test of Memoirs v. Massachusetts,
Page 413 U. S. 25
383 U.S. at 383 U. S. 419; that concept has never commanded the adherence of more
than three Justices at one time. [Footnote 7] See supra at 413 U. S. 21. If a state law
that regulates obscene material is thus limited, as written or construed, the First
Amendment values applicable to the States through the Fourteenth Amendment are
adequately protected by the ultimate power of appellate courts to conduct an
independent review of constitutional claims when necessary. See Kois v. Wisconsin,
supra, at 408 U. S. 232; Memoirs v. Massachusetts, supra, at 383 U. S. 459-460
(Harlan, J., dissenting); Jacobellis v. Ohio, 378 U.S. at 204 (Harlan, J., dissenting); New
York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 284-285 (1964); Roth v. United
States, supra, at 354 U. S. 497-498 (Harlan, J., concurring and dissenting).
We emphasize that it is not our function to propose regulatory schemes for the States.
That must await their concrete legislative efforts. It is possible, however, to give a few
plain examples of what a state statute could define for regulation under part (b) of the
standard announced in this opinion, supra:
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or
perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory
functions, and lewd exhibition of the genitals.
Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in
places of public accommodation any more than live sex and nudity can
Page 413 U. S. 26
be exhibited or sold without limit in such public places. [Footnote 8] At a minimum,
prurient, patently offensive depiction or description of sexual conduct must have serious
literary, artistic, political, or scientific value to merit First Amendment protection. See
Kois v. Wisconsin, supra, at 408 U. S. 230-232; Roth v. United States, supra, at 354 U.
Page 19 of 57
S. 487; Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 101-102 (1940). For example,
medical books for the education of physicians and related personnel necessarily use
graphic illustrations and descriptions of human anatomy. In resolving the inevitably
sensitive questions of fact and law, we must continue to rely on the jury system,
accompanied by the safeguards that judges, rules of evidence, presumption of
innocence, and other protective features provide, as we do with rape, murder, and a
host of other offenses against society and its individual members. [Footnote 9]
MR. JUSTICE BRENNAN, author of the opinions of the Court, or the plurality opinions,
in Roth v. United States, supra; Jacobellis v. Ohio, supra; Ginzburg v. United
Page 413 U. S. 27
States, 383 U. S. 463 (1966), Mishkin v. New York, 383 U. S. 502 (1966); and Memoirs
v. Massachusetts, supra, has abandoned his former position and now maintains that no
formulation of this Court, the Congress, or the States can adequately distinguish
obscene material unprotected by the First Amendment from protected expression, Paris
Adult Theatre I v. Slaton, post, p. 413 U. S. 73 (BRENNAN, J., dissenting).
Paradoxically, MR. JUSTICE BRENNAN indicates that suppression of unprotected
obscene material is permissible to avoid exposure to unconsenting adults, as in this
case, and to juveniles, although he gives no indication of how the division between
protected and nonprotected materials may be drawn with greater precision for these
purposes than for regulation of commercial exposure to consenting adults only. Nor
does he indicate where in the Constitution he finds the authority to distinguish between
a willing "adult" one month past the state law age of majority and a willing "juvenile" one
month younger.
Under the holdings announced today, no one will be subject to prosecution for the sale
or exposure of obscene materials unless these materials depict or describe patently
offensive "hard core" sexual conduct specifically defined by the regulating state law, as
written or construed. We are satisfied that these specific prerequisites will provide fair
notice to a dealer in such materials that his public and commercial activities may bring
prosecution. See Roth v. United States, supra, at354 U. S. 491-492. Cf. Ginsberg v.
New York, 390 U.S. at 390 U. S. 643. [Footnote 10] If
Page 413 U. S. 28
the inability to define regulated materials with ultimate, god-like precision altogether
removes the power of the States or the Congress to regulate, then "hard core"
pornography may be exposed without limit to the juvenile, the passerby, and the
consenting adult alike, as, indeed, MR. JUSTICE DOUGLAS contends. As to MR.
JUSTICE DOUGLAS' position, see United States v. Thirty-seven Photographs, 402 U.
S. 363, 402 U. S. 379-380 (1971) (Black, J., joined by DOUGLAS, J.,
dissenting); Ginzburg v. United States, supra, at 383 U. S. 476, 383 U. S. 491-492
(Black, J., and DOUGLAS, J., dissenting); Jacobellis v. Ohio, supra, at 378 U. S.
196 (Black, J., joined by DOUGLAS, J., concurring); Roth, supra, at 354 U. S. 508-514
(DOUGLAS, J., dissenting). In this belief, however, MR. JUSTICE DOUGLAS now
stands alone.
MR. JUSTICE BRENNAN also emphasizes "institutional stress" in justification of his
change of view. Noting that "[t]he number of obscenity cases on our docket gives ample
testimony to the burden that has been placed upon this Court," he quite rightly remarks
that the examination of contested materials "is hardly a source of edification to the
members of this Court." Paris Adult
Page 413 U. S. 29
Theatre I v. Slaton, post, at 413 U. S. 92, 413 U. S. 93. He also notes, and we agree,
that "uncertainty of the standards creates a continuing source of tension between state
and federal courts. . . ."
"The problem is . . . that one cannot say with certainty that material is obscene until at
least five members of this Court, applying inevitably obscure standards, have
pronounced it so."
Id. at 413 U. S. 93, 413 U. S. 92.
It is certainly true that the absence, since Roth, of a single majority view of this Court as
to proper standards for testing obscenity has placed a strain on both state and federal
courts. But today, for the first time since Roth was decided in 1957, a majority of this
Court has agreed on concrete guidelines to isolate "hard core" pornography from
expression protected by the First Amendment. Now we may abandon the casual
practice of Redrup v. New York, 386 U. S. 767 (1967), and attempt to provide positive
guidance to federal and state courts alike.
This may not be an easy road, free from difficulty. But no amount of "fatigue" should
lead us to adopt a convenient "institutional" rationale -- an absolutist, "anything goes"
view of the First Amendment -- because it will lighten our burdens. [Footnote 11] "Such
an abnegation of judicial supervision in this field would be inconsistent with our duty to
uphold the constitutional guarantees." Jacobellis v. Ohio, supra, at 378 U. S. 187-188
(opinion of BRENNAN, J.). Nor should we remedy "tension between state and federal
courts" by arbitrarily depriving the States of a power reserved to them under the
Constitution, a power which they have enjoyed and exercised continuously from before
the adoption of the First Amendment to this day. See Roth v. United States,
supra, at 354 U. S. 482-485.
"Our duty admits of no 'substitute for facing up
Page 413 U. S. 30
to the tough individual problems of constitutional judgment involved in every obscenity
case.' [Roth v. United States, supra,at 354 U. S. 498]; see Manual Enterprises, Inc. v.
Day, 370 U. S. 478, 370 U. S. 488 (opinion of Harlan, J.) [footnote omitted]."
Jacobellis v. Ohio, supra, at 378 U. S. 188 (opinion of BRENNAN, J.).
Page 20 of 57
III
Under a National Constitution, fundamental First Amendment limitations on the powers
of the States do not vary from community to community, but this does not mean that
there are, or should or can be, fixed, uniform national standards of precisely what
appeals to the "prurient interest" or is "patently offensive." These are essentially
questions of fact, and our Nation is simply too big and too diverse for this Court to
reasonably expect that such standards could be articulated for all 50 States in a single
formulation, even assuming the prerequisite consensus exists. When triers of fact are
asked to decide whether "the average person, applying contemporary community
standards" would consider certain materials "prurient," it would be unrealistic to require
that the answer be based on some abstract formulation. The adversary system, with lay
jurors as the usual ultimate factfinders in criminal prosecutions, has historically
permitted triers of fact to draw on the standards of their community, guided always by
limiting instructions on the law. To require a State to structure obscenity proceedings
around evidence of a national "community standard" would be an exercise in futility.
As noted before, this case was tried on the theory that the California obscenity statute
sought to incorporate the tripartite test of Memoirs. This, a "national" standard of First
Amendment protection enumerated by a plurality of this Court, was correctly regarded
at the time of trial as limiting state prosecution under the controlling case
Page 413 U. S. 31
law. The jury, however, was explicitly instructed that, in determining whether the
"dominant theme of the material as a whole . . . appeals to the prurient interest," and, in
determining whether the material "goes substantially beyond customary limits of candor
and affronts contemporary community standards of decency," it was to apply
"contemporary community standards of the State of California."
During the trial, both the prosecution and the defense assumed that the relevant
"community standards" in making the factual determination of obscenity were those of
the State of California, not some hypothetical standard of the entire United States of
America. Defense counsel at trial never objected to the testimony of the State's expert
on community standards [Footnote 12] or to the instructions of the trial judge on "state-
wide" standards. On appeal to the Appellate Department, Superior Court of California,
County of Orange, appellant for the first time contended that application of state, rather
than national, standards violated the First and Fourteenth Amendments.
We conclude that neither the State's alleged failure to offer evidence of "national
standards," nor the trial court's charge that the jury consider state community standards,
were constitutional errors. Nothing in the First Amendment requires that a jury must
consider hypothetical and unascertainable "national standards" when attempting to
determine whether certain materials are obscene as a matter
Page 413 U. S. 32
of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v.
Ohio, supra, at 378 U. S. 200:
"It is my belief that, when the Court said in Roth that obscenity is to be defined by
reference to 'community standards,' it meant community standards -- not a national
standard, as is sometimes argued. I believe that there is no provable 'national standard.'
. . . At all events, this Court has not been able to enunciate one, and it would be
unreasonable to expect local courts to divine one."
It is neither realistic nor constitutionally sound to read the First Amendment as requiring
that the people of Maine or Mississippi accept public depiction of conduct found
tolerable in Las Vegas, or New York City. [Footnote 13]
Page 413 U. S. 33
See Hoyt v. Minnesota, 399 U.S. at 524-525 (1970) (BLACKMUN, J.,
dissenting); Walker v. Ohio, 398 U.S. at 434 (1970) (BURGER, C.J., dissenting); id. at
434-435 (Harlan, J., dissenting); Cain v. Kentucky, 397 U. S. 319 (1970) (BURGER,
C.J., dissenting); id. at 397 U. S. 319-320 (Harlan, J., dissenting); United States v.
Groner, 479 F.2d at 581-583; O'Meara & Shaffer, Obscenity in The Supreme Court: A
Note on Jacobellis v. Ohio, 40 Notre Dame Law. 1, 6-7 (1964). See also Memoirs v.
Massachusetts, 383 U.S. at 383 U. S. 458 (Harlan, J., dissenting); Jacobellis v. Ohio,
supra, at 378 U. S. 203-204 (Harlan, J., dissenting); Roth v. United States, supra, at 354
U. S. 505-506 (Harlan, J., concurring and dissenting). People in different States vary in
their tastes and attitudes, and this diversity is not to be strangled by the absolutism of
imposed uniformity. As the Court made clear in Mishkin v. New York, 383 U.S. at 383 U.
S. 508-509, the primary concern with requiring a jury to apply the standard of "the
average person, applying contemporary community standards" is to be certain that, so
far as material is not aimed at a deviant group, it will be judged by its impact on an
average person, rather than a particularly susceptible or sensitive person -- or indeed a
totally insensitive one. See Roth v. United States, supra, at 354 U. S. 489. Cf. the now
discredited test in Regina v. Hicklin, [1868] L.R. 3 Q.B. 360. We hold that the
requirement that the jury evaluate the materials with reference to "contemporary
Page 413 U. S. 34
standards of the State of California" serves this protective purpose and is
constitutionally adequate. [Footnote 14]
IV
The dissenting Justices sound the alarm of repression. But, in our view, to equate the
free and robust exchange of ideas and political debate with commercial exploitation of
obscene material demeans the grand conception of the First Amendment and its high
purposes in the historic struggle for freedom. It is a "misuse of the great guarantees of
free speech and free press. . . ." Breard v. Alexandria, 341 U.S. at 341 U. S. 645. The
First Amendment protects works which, taken as a whole, have serious literary, artistic,
Page 21 of 57
political, or scientific value, regardless of whether the government or a majority of the
people approve of the ideas these works represent.
"The protection given speech and press was fashioned to assure unfettered interchange
of ideas for the bringing about of
In sum, we (a) reaffirm the Roth holding that obscene material is not protected by the
First Amendment; (b) hold that such material can be regulated by the States, subject to
the specific safeguards enunciated
Page 413 U. S. 37

Page 413 U. S. 35 above, without a showing that the material is "utterly without redeeming social value";
and (c) hold that obscenity is to be determined by applying "contemporary community
political and social changes desired by the people," standards," see Kois v. Wisconsin, supra, at 408 U. S. 230, and Roth v. United States,
supra, at 354 U. S. 489, not "national standards." The judgment of the Appellate
Department of the Superior Court, Orange County, California, is vacated and the case
Roth v. United States, supra, at 354 U. S. 484 (emphasis added). See Kois v. remanded to that court for further proceedings not inconsistent with the First
Wisconsin, 408 U.S. at 408 U. S. 230-232; Thornhill v. Alabama, 310 U.S. at 310 U. S. Amendment standards established by this opinion. See United States v. 12 200-ft.
101-102. But the public portrayal of hard-core sexual conduct for its own sake, and for Reels of Film, post at 413 U. S. 130 n. 7.
the ensuing commercial gain, is a different matter. [Footnote 15]
Vacated and remanded.
There is no evidence, empirical or historical, that the stern 19th century American
censorship of public distribution and display of material relating to sex, see Roth v.
United States, supra, at 354 U. S. 482-485, in any way limited or affected expression of
serious literary, artistic, political, or scientific ideas. On the contrary, it is beyond any
question that the era following Thomas Jefferson to Theodore Roosevelt was an
"extraordinarily vigorous period" not just in economics and politics, but in belles
lettres and in "the outlying fields of social and political philosophies." [Footnote 16] We
do not see the harsh hand

Page 413 U. S. 36

of censorship of ideas -- good or bad, sound or unsound -- and "repression" of political

liberty lurking in every state regulation of commercial exploitation of human interest in
sex.

MR. JUSTICE BRENNAN finds "it is hard to see how state-ordered regimentation of our
minds can ever be forestalled."Paris Adult Theatre I v. Slaton, post, at 413 U. S.
110 (BRENNAN, J., dissenting). These doleful anticipations assume that courts cannot
distinguish commerce in ideas, protected by the First Amendment, from commercial
exploitation of obscene material. Moreover, state regulation of hard-core pornography
so as to make it unavailable to nonadults, a regulation which MR. JUSTICE BRENNAN
finds constitutionally permissible, has all the elements of "censorship" for adults; indeed
even more rigid enforcement techniques may be called for with such dichotomy of
regulation. See Interstate Circuit, Inc. v. Dallas, 390 U.S. at 390 U. S. 690. [Footnote 17]
One can concede that the "sexual revolution" of recent years may have had useful
byproducts in striking layers of prudery from a subject long irrationally kept from needed
ventilation. But it does not follow that no regulation of patently offensive "hard core"
materials is needed or permissible; civilized people do not allow unregulated access to
heroin because it is a derivative of medicinal morphlne.

Page 22 of 57
U.S. Supreme Court
New York v. Ferber, 458 U.S. 747 (1982)
New York v. Ferber
No. 81-55
Argued April 27, 1982
Decided July 2, 1982
458 U.S. 747
CERTIORARI TO THE COURT OF APPEALS OF NEW YORK
Syllabus
A New York statute prohibits persons from knowingly promoting a sexual performance
by a child under the age of 16 by distributing material which depicts such a
performance. The statute defines "sexual performance" as any performance that
includes sexual conduct by such a child, and "sexual conduct" is in turn defined as
actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality,
masturbation, sado-masochistic abuse, or lewd exhibition of the genitals. Respondent
bookstore proprietor was convicted under the statute for selling films depicting young
boys masturbating, and the Appellate Division of the New York Supreme Court affirmed.
The New York Court of Appeals reversed, holding that the statute violated the First
Amendment as being both underinclusive and overbroad. The court reasoned that, in
light of the explicit inclusion of an obscenity standard in a companion statute banning
the knowing dissemination of similarly defined material, the statute in question could not
be construed to include an obscenity standard, and therefore would prohibit the
promotion of materials traditionally entitled to protection under the First Amendment.
Held: As applied to respondent and others who distribute similar material, the statute in
question does not violate the First Amendment as applied to the States through the
Fourteenth Amendment. Pp. 458 U. S. 753-774.
(a) The States are entitled to greater leeway in the regulation of pornographic depictions
of children for the following reasons: (1) the legislative judgment that the use of children
as subjects of pornographic materials is harmful to the physiological, emotional, and
mental health of the child easily passes muster under the First Amendment; (2) the
standard of Miller v. California, 413 U. S. 15, for determining what is legally obscene is
not a satisfactory solution to the child pornography problem; (3) the advertising and
selling of child pornography provide an economic motive for, and are thus an integral
part of, the production of such materials, an activity illegal throughout the Nation; (4) the
value of permitting live performances and photographic reproductions of children
engaged in lewd exhibitions is exceedingly modest, if not de minimis; and (5)
recognizing and classifying child pornography as a category of material outside the First
Amendment's protection is not incompatible with this Court's decisions dealing with
what speech is unprotected. When a definable class of material, such as that covered
by the New
Page 458 U. S. 748
York statute, bears so heavily and pervasively on the welfare of children engaged in its
production, the balance of competing interests is clearly struck, and it is permissible to
consider these materials as without the First Amendment's protection. Pp. 458 U. S.
756-764.
(b) The New York statute describes a category of material the production and
distribution of which is not entitled to First Amendment protection. Accordingly, there is
nothing unconstitutionally "underinclusive" about the statute, and the State is not barred
by the First Amendment from prohibiting the distribution of such unprotected materials
produced outside the State. Pp. 458 U. S. 764-766.
(c) Nor is the New York statute unconstitutionally overbroad as forbidding the
distribution of material with serious literary, scientific, or educational value. The
substantial overbreadth rule of Broadrick v. Oklahoma, 413 U. S. 601, applies. This is
the paradigmatic case of a state statute whose legitimate reach dwarfs its arguably
impermissible applications.
"[W]hatever overbreadth may exist should be cured through case-by-case analysis of
the fact situations to which [the statute's] sanctions, assertedly, may not be applied."
Broadrick v. Oklahoma, supra, at 413 U. S. 615-616. Pp. 458 U. S. 766-774.
52 N.Y.2d 674, 422 N.E.2d 523, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL,
REHNQUIST, and O'CONNOR, JJ., joined. O'CONNOR, J., filed a concurring
opinion, post, p. 458 U. S. 774. BRENNAN, J., filed an opinion concurring in the
judgment, in which MARSHALL, J., joined, post, p. 458 U. S. 775. BLACKMUN, J.,
concurred in the result. STEVENS, J., filed an opinion concurring in the
judgment, post, p. 458 U. S. 777.
Page 458 U. S. 749
JUSTICE WHITE delivered the opinion of the Court.
At issue in this case is the constitutionality of a New York criminal statute which
prohibits persons from knowingly promoting sexual performances by children under the
age of 16 by distributing material which depicts such performances.
Page 23 of 57
I "'Promote' means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver,
In recent years, the exploitive use of children in the production of pornography has
become a serious national problem. [Footnote 1] The Federal Government and 47
States have sought to combat the problem with statutes specifically directed at the
production of child pornography. At least half of such statutes do not require that the
materials produced be legally obscene. Thirty-five States and the United States
Congress have also passed legislation prohibiting the distribution of such materials; 20
States prohibit the distribution of material depicting children engaged in sexual conduct
without requiring that the material be legally obscene. [Footnote 2]
Page 458 U. S. 750
New York is one of the 20. In 1977, the New York Legislature enacted Article 263 of its
Penal Law. N.Y.Penal Law, Art. 263 (McKinney 1980). Section 263.05 criminalizes as a
class C felony the use of a child in a sexual performance:
"A person is guilty of the use of a child in a sexual performance if knowing the character
and content thereof he employs, authorizes or induces a child less than sixteen years of
age to engage in a sexual performance or being a parent, legal guardian or custodian of
such child,
Page 458 U. S. 751
he consents to the participation by such child in a sexual performance."
A "[s]exual performance" is defined as "any performance or part thereof which includes
sexual conduct by a child less than sixteen years of age." § 263.00(1). "Sexual conduct"
is in turn defined in § 263.00(3):
"'Sexual conduct' means actual or simulated sexual intercourse, deviate sexual
intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition
of the genitals."
A performance is defined as "any play, motion picture, photograph or dance" or "any
other visual representation exhibited before an audience." § 263.00(4).
At issue in this case is § 263.15, defining a class D felony: [Footnote 3]
"A person is guilty of promoting a sexual performance by a child when, knowing the
character and content thereof, he produces, directs or promotes any performance which
includes sexual conduct by a child less than sixteen years of age."
To "promote" is also defined:
transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or
advertise, or to offer or agree to do the same."
§ 263.00(5). A companion provision bans only the knowing dissemination of obscene
material. § 263.10.
This case arose when Paul Ferber, the proprietor of a Manhattan
Page 458 U. S. 752
bookstore specializing in sexually oriented products, sold two films to an undercover
police officer. The films are devoted almost exclusively to depicting young boys
masturbating. Ferber was indicted on two counts of violating § 263.10 and two counts of
violating § 263.15, the two New York laws controlling dissemination of child
pornography. [Footnote 4] After a jury trial, Ferber was acquitted of the two counts of
promoting an obscene sexual performance, but found guilty of the two counts under §
263.15, which did not require proof that the films were obscene. Ferber's convictions
were affirmed without opinion by the Appellate Division of the New York State Supreme
Court. 74 App.Div.2d 558, 424 N.Y.S.2d 967 (1980).
The New York Court of Appeals reversed, holding that § 263.15 violated the First
Amendment. 52 N.Y.2d 674, 422 N.E.2d 523 (1981). The court began by noting that, in
light of § 263.10's explicit inclusion of an obscenity standard, § 263.15 could not be
construed to include such a standard. Therefore,
"the statute would . . . prohibit the promotion of materials which are traditionally entitled
to constitutional protection from government interference under the First Amendment."
52 N.Y.2d at 678, 422 N.E.2d at 525. Although the court recognized the State's
"legitimate interest in protecting the welfare of minors" and noted that this "interest may
transcend First Amendment concerns," id. at 679, 422 N.E.2d at 525-526, it
nevertheless found two fatal defects in the New York statute. Section 263.15 was
underinclusive because it discriminated against visual portrayals of children engaged in
sexual activity by not also prohibiting the distribution of films of other dangerous activity.
It was also overbroad because it prohibited the distribution of materials produced
outside the State, as well as materials, such as medical books and educational sources,
which
Page 458 U. S. 753
"deal with adolescent sex in a realistic but nonobscene manner." 52 N.Y.2d at 681, 422
N.E.2d at 526. Two judges dissented. We granted the State's petition for certiorari, 454
U.S. 1052 (1981), presenting the single question:
"To prevent the abuse of children who are made to engage in sexual conduct for
commercial purposes, could the New York State Legislature, consistent with the First
Page 24 of 57
Amendment, prohibit the dissemination of material which shows children engaged in
sexual conduct, regardless of whether such material is obscene?"
II
The Court of Appeals proceeded on the assumption that the standard of obscenity
incorporated in § 263.10, which follows the guidelines enunciated in Miller v.
California, 413 U. S. 15 (1973), [Footnote 5] constitutes the appropriate line dividing
protected from unprotected expression by which to measure a regulation directed at
child pornography. It was on the premise that "nonobscene adolescent sex" could not
be singled out for special treatment that the court found § 263.15 "strikingly
underinclusive." Moreover, the assumption that the constitutionally permissible
regulation of pornography could not be more extensive with respect to the distribution of
material depicting children may also have led the court to conclude that a narrowing
construction of § 263.15 was unavailable.
The Court of Appeals' assumption was not unreasonable in light of our decisions. This
case, however, constitutes our first examination of a statute directed at and limited to
depictions of sexual activity involving children. We believe our inquiry should begin with
the question of whether a State has somewhat more freedom in proscribing works
which portray sexual acts or lewd exhibitions of genitalia by children.
Page 458 U. S. 754
A
In Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), the Court laid the foundation for
the excision of obscenity from the realm of constitutionally protected expression:
"There are certain well-defined and narrowly limited classes of speech, the prevention
and punishment of which have never been thought to raise any Constitutional problem.
These include the lewd and obscene. . . . It has been well observed that such
utterances are no essential part of any exposition of ideas, and are of such slight social
value as a step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality."
Id. at 315 U. S. 571-572 (footnotes omitted).
Embracing this judgment, the Court squarely held in Roth v. United States, 354 U. S.
476 (1957), that "obscenity is not within the area of constitutionally protected speech or
press." Id. at 354 U. S. 485. The Court recognized that "rejection of obscenity as utterly
without redeeming social importance" was implicit in the history of the First Amendment:
the original States provided for the prosecution of libel, blasphemy, and profanity, and
the
"universal judgment that obscenity should be restrained [is] reflected in the international
agreement of over 50 nations, in the obscenity laws of all of the 48 states, and in the 20
obscenity laws enacted by Congress from 1842 to 1956."
Id. at 354 U. S. 484-485 (footnotes omitted).
Roth was followed by 15 years during which this Court struggled with "the intractable
obscenity problem." Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 390 U. S.
704 (1968) (opinion of Harlan, J.). See, e.g., Redrup v. New York, 386 U. S. 767 (1967).
Despite considerable vacillation over the proper definition of obscenity, a majority of the
Members of the Court remained firm in the position that
"the States have a legitimate interest in prohibiting dissemination or exhibition of
obscene material when the mode of dissemination carries with it a significant danger of
offending the sensibilities of
Page 458 U. S. 755
unwilling recipients or of exposure to juveniles."
Miller v. California, supra, at 413 U. S. 119 (footnote omitted); Stanley v. Georgia, 394
U. S. 557, 394 U. S. 567 (1969); Ginsberg v. New York, 390 U. S. 629, 390 U. S. 637-
643 (1968); Interstate Circuit, Inc. v. Dallas, supra, at 390 U. S. 690; Redrup v. New
York, supra, at 386 U. S. 769; Jacobellis v. Ohio, 378 U. S. 184, 378 U. S. 195 (1964).
Throughout this period, we recognized "the inherent dangers of undertaking to regulate
any form of expression." Miller v. California, supra, at 413 U. S. 23. Consequently, our
difficulty was not only to assure that statutes designed to regulate obscene materials
sufficiently defined what was prohibited, but also to devise substantive limits on what fell
within the permissible scope of regulation. In Miller v. California, supra, a majority of the
Court agreed that a
"state offense must also be limited to works which, taken as a whole, appeal to the
prurient interest in sex, which portray sexual conduct in a patently offensive way, and
which, taken as a whole, do not have serious literary, artistic, political, or scientific
value."
Id. at 413 U. S. 24. Over the past decade, we have adhered to the guidelines expressed
in Miller, [Footnote 6] which subsequently has been followed in the regulatory schemes
of most States. [Footnote 7]
Page 458 U. S. 756
B
Page 25 of 57
The Miller standard, like its predecessors, was an accommodation between the State's
interests in protecting the "sensibilities of unwilling recipients" from exposure to
pornographic material and the dangers of censorship inherent in unabashedly content-
based laws. Like obscenity statutes, laws directed at the dissemination of child
pornography run the risk of suppressing protected expression by allowing the hand of
the censor to become unduly heavy. For the following reasons, however, we are
persuaded that the States are entitled to greater leeway in the regulation of
pornographic depictions of children.
First. It is evident beyond the need for elaboration that a State's interest in
"safeguarding the physical and psychological
Page 458 U. S. 757
wellbeing of a minor" is "compelling." Globe Newspaper Co. v. Superior Court, 457 U. S.
596, 457 U. S. 607 (1982). "A democratic society rests, for its continuance, upon the
healthy, well-rounded growth of young people into full maturity as citizens." Prince v.
Massachusetts, 321 U. S. 158, 321 U. S. 168 (1944). Accordingly, we have sustained
legislation aimed at protecting the physical and emotional wellbeing of youth even when
the laws have operated in the sensitive area of constitutionally protected rights.
In Prince v. Massachusetts, supra, the Court held that a statute prohibiting use of a child
to distribute literature on the street was valid notwithstanding the statute's effect on a
First Amendment activity. In Ginsberg v. New York, supra, we sustained a New York
law protecting children from exposure to nonobscene literature. Most recently, we held
that the Government's interest in the "wellbeing of its youth" justified special treatment
of indecent broadcasting received by adults as well as children. FCC v. Pacifica
Foundation, 438 U. S. 726 (1978).
The prevention of sexual exploitation and abuse of children constitutes a government
objective of surpassing importance. The legislative findings accompanying passage of
the New York laws reflect this concern:
"[T]here has been a proliferation of exploitation of children as subjects in sexual
performances. The care of children is a sacred trust and should not be abused by those
who seek to profit through a commercial network based upon the exploitation of
children. The public policy of the state demands the protection of children from
exploitation through sexual performances."
1977 N.Y.Laws, ch. 910, § 1. [Footnote 8]
Page 458 U. S. 758
We shall not second-guess this legislative judgment. Respondent has not intimated that
we do so. Suffice it to say that virtually all of the States and the United States have
passed legislation proscribing the production of or otherwise combating "child
pornography." The legislative judgment, as well as the judgment found in the relevant
literature, is that the use of children as subjects of pornographic materials is harmful to
the physiological, emotional, and mental health of the child. [Footnote 9] That judgment,
we think, easily passes muster under the First Amendment.
Page 458 U. S. 759
Second. The distribution of photographs and films depicting sexual activity by juveniles
is intrinsically related to the sexual abuse of children in at least two ways. First, the
materials produced are a permanent record of the children's participation and the harm
to the child is exacerbated by their circulation. [Footnote 10] Second, the distribution
network for child pornography must be closed if the production of material which
requires the sexual exploitation of children is to be effectively controlled. Indeed, there is
no serious contention that the legislature was unjustified in believing that it is difficult, if
Page 458 U. S. 760
not impossible, to halt the exploitation of children by pursuing only those who produce
the photographs and movies. While the production of pornographic materials is a low
profile, clandestine industry, the need to market the resulting products requires a visible
apparatus of distribution. The most expeditious, if not the only practical, method of law
enforcement may be to dry up the market for this material by imposing severe criminal
penalties on persons selling, advertising, or otherwise promoting the product. Thirty-five
States and Congress have concluded that restraints on the distribution of pornographic
materials are required in order to effectively combat the problem, and there is a body of
literature and testimony to support these legislative conclusions. [Footnote 11] Cf.
United States v. Darby, 312 U. S. 100(1941) (upholding federal restrictions on sale of
goods manufactured in violation of Fair Labor Standards Act).
Respondent does not contend that the State is unjustified in pursuing those who
distribute child pornography. Rather, he argues that it is enough for the State to prohibit
the distribution of materials that are legally obscene under the Miller test. While some
States may find that this approach properly accommodates its interests, it does not
follow
Page 458 U. S. 761
that the First Amendment prohibits a State from going further. The Miller standard, like
all general definitions of what may be banned as obscene, does not reflect the State's
particular and more compelling interest in prosecuting those who promote the sexual
exploitation of children. Thus, the question under the Miller test of whether a work, taken
as a whole, appeals to the prurient interest of the average person bears no connection
to the issue of whether a child has been physically or psychologically harmed in the
production of the work. Similarly, a sexually explicit depiction need not be "patently
offensive" in order to have required the sexual exploitation of a child for its production.
In addition, a work which, taken on the whole, contains serious literary, artistic, political,
or scientific value may nevertheless embody the hardest core of child pornography. "It is
irrelevant to the child [who has been abused] whether or not the material . . . has a
literary, artistic, political or social value." Memorandum of Assemblyman Lasher in
Page 26 of 57
Support of § 263.15. We therefore cannot conclude that the Miller standard is a
satisfactory solution to the child pornography problem. [Footnote 12]
Third. The advertising and selling of child pornography provide an economic motive for,
and are thus an integral part of, the production of such materials, an activity illegal
throughout the Nation. [Footnote 13]
"It rarely has been suggested that
Page 458 U. S. 762
the constitutional freedom for speech and press extends its immunity to speech or
writing used as an integral part of conduct in violation of a valid criminal statute."
Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 336 U. S. 498 (1949). [Footnote
14] We note that, were the statutes outlawing the employment of children in these films
and photographs fully effective, and the constitutionality of these laws has not been
questioned, the First Amendment implications would be no greater than that presented
by laws against distribution: enforceable production laws would leave no child
pornography to be marketed. [Footnote 15]
Fourth. The value of permitting live performances and photographic reproductions of
children engaged in lewd sexual conduct is exceedingly modest, if not de minimis. We
consider it unlikely that visual depictions of children performing sexual acts or lewdly
exhibiting their genitals would often constitute an important and necessary part of a
literary performance
Page 458 U. S. 763
or scientific or educational work. As a state judge in this case observed, if it were
necessary for literary or artistic value, a person over the statutory age who perhaps
looked younger could be utilized. [Footnote 16] Simulation outside of the prohibition of
the statute could provide another alternative. Nor is there any question here of
censoring a particular literary theme or portrayal of sexual activity. The First
Amendment interest is limited to that of rendering the portrayal somewhat more
"realistic" by utilizing or photographing children.
Fifth. Recognizing and classifying child pornography as a category of material outside
the protection of the First Amendment is not incompatible with our earlier decisions.
"The question whether speech is, or is not, protected by the First Amendment often
depends on the content of the speech." Young v. American Mini Theatres, Inc., 427 U.
S. 50, 427 U. S. 66 (1976) (opinion of STEVENS, J., joined by BURGER, C.J., and
WHITE and REHNQUIST JJ.). See also FCC v. Pacifica Foundation, 438 U. S.
726, 438 U. S. 742-748 (1978) (opinion of STEVENS, J., joined by BURGER, C.J., and
REHNQUIST, J.). "[I]t is the content of [an] utterance that determines whether it is a
protected epithet or an unprotected fighting comment.'"Young v. American Mini
Theatres, Inc., supra, at 427 U. S. 66. See Chaplinsky v. New Hampshire, 315 U. S.
568 (1942). Leaving aside the special considerations when public officials are the
target, New York Times Co. v. Sullivan, 376 U. S. 254 (1964), a libelous publication is
not protected by the Constitution. Beauharnais v. Illinois, 343 U. S. 250 (1952). Thus, it
is not rare that a content-based classification of speech has been accepted because it
may be appropriately generalized that within the confines of the given classification, the
evil to be restricted so overwhelmingly outweighs
Page 458 U. S. 764
the expressive interests, if any, at stake, that no process of case-by-case adjudication is
required. When a definable class of material, such as that covered by § 263.15, bears
so heavily and pervasively on the welfare of children engaged in its production, we think
the balance of competing interests is clearly struck, and that it is permissible to consider
these materials as without the protection of the First Amendment.
C
There are, of course, limits on the category of child pornography which, like obscenity,
is unprotected by the First Amendment. As with all legislation in this sensitive area, the
conduct to be prohibited must be adequately defined by the applicable state law, as
written or authoritatively construed. Here the nature of the harm to be combated
requires that the state offense be limited to works that visually depict sexual conduct by
children below a specified age. [Footnote 17] The category of "sexual conduct"
proscribed must also be suitably limited and described.
The test for child pornography is separate from the obscenity standard enunciated
in Miller, but may be compared to it for the purpose of clarity. The Miller formulation is
adjusted in the following respects: a trier of fact need not find that the material appeals
to the prurient interest of the average person; it is not required that sexual conduct
portrayed be done so in a patently offensive manner; and the material at issue need not
be considered as a whole. We note that the distribution
Page 458 U. S. 765
of descriptions or other depictions of sexual conduct, not otherwise obscene, which do
not involve live performance or photographic or other visual reproduction of live
performances, retains First Amendment protection. As with obscenity laws, criminal
responsibility may not be imposed without some element of scienter on the part of the
defendant. Smith v. California, 361 U. S. 147 (1959); Hamling v. United States, 418 U.
S. 87 (1974).
D
Section 263.15's prohibition incorporates a definition of sexual conduct that comports
with the above-stated principles. The forbidden acts to be depicted are listed with
sufficient precision and represent the kind of conduct that, if it were the theme of a work,
could render it legally obscene:
Page 27 of 57
"actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality,
masturbation, sado-masochistic abuse, or lewd exhibition of the genitals."
§ 263.00(3). The term "lewd exhibition of the genitals" is not unknown in this area and,
indeed, was given in Miller as an example of a permissible regulation. 413 U.S. at 413
U. S. 25. A performance is defined only to include live or visual depictions: "any play,
motion picture, photograph or dance . . . [or] other visual representation exhibited before
an audience." § 263.00(4). Section 263.15 expressly includes a scienter requirement.
We hold that § 263.15 sufficiently describes a category of material the production and
distribution of which is not entitled to First Amendment protection. It is therefore clear
that there is nothing unconstitutionally "underinclusive" about a statute that singles out
this category of material for proscription. [Footnote 18] It also follows that the State is
not barred by
Page 458 U. S. 766
the First Amendment from prohibiting the distribution of unprotected materials produced
outside the State. [Footnote 19]
III
It remains to address the claim that the New York statute is unconstitutionally overbroad
because it would forbid the distribution of material with serious literary, scientific, or
educational value or material which does not threaten the harms sought to be combated
by the State. Respondent prevailed on that ground below, and it is to that issue that we
now turn.
The New York Court of Appeals recognized that overbreadth scrutiny has been limited
with respect to conduct-related regulation, Broadrick v. Oklahoma, 413 U. S.
601 (1973), but it did not apply the test enunciated in Broadrick because the challenged
statute, in its view, was directed at "pure speech." The court went on to find that §
263.15 was fatally overbroad:
"[T]he statute would prohibit the showing of any play or movie in which a child portrays a
defined sexual act, real or simulated, in a nonobscene manner. It would also prohibit the
sale, showing, or distributing of medical or educational materials containing
photographs of such acts.
Page 458 U. S. 767
Indeed, by its terms, the statute would prohibit those who oppose such portrayals from
providing illustrations of what they oppose."
52 N.Y.2d at 678, 422 N.E.2d at 525.
While the construction that a state court gives a state statute is not a matter subject to
our review, Wainwright v. Stone, 414 U. S. 21, 414 U. S. 22-23 (1973); Gooding v.
Wilson, 405 U. S. 518, 405 U. S. 520 (1972), this Court is the final arbiter of whether the
Federal Constitution necessitated the invalidation of a state law. It is only through this
process of review that we may correct erroneous applications of the Constitution that err
on the side of an overly broad reading of our doctrines and precedents, as well as state
court decisions giving the Constitution too little shrift. A state court is not free to avoid a
proper facial attack on federal constitutional grounds. Bigelow v. Virginia, 421 U. S.
809, 421 U. S. 817 (1975). By the same token, it should not be compelled to entertain
an overbreadth attack when not required to do so by the Constitution.
A
The traditional rule is that a person to whom a statute may constitutionally be applied
may not challenge that statute on the ground that it may conceivably be applied
unconstitutionally to others in situations not before the Court. Broadrick v. Oklahoma,
supra, at 413 U. S. 610; United States v. Raines, 362 U. S. 17, 362 U. S.
21 (1960); Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 301 U. S.
513 (1937); Yazoo & M. V. R. Co. v. Jackson Vinegar Co., 226 U. S. 217, 226 U. S.
219-220 (1912). In Broadrick, we recognized that this rule reflects two cardinal
principles of our constitutional order: the personal nature of constitutional
rights, McGowan v. Maryland, 366 U. S. 420, 366 U. S. 429 (1961), and prudential
limitations on constitutional adjudication. [Footnote 20] In United States v. Raines,
supra, at 362 U. S. 21, we
Page 458 U. S. 768
noted the "incontrovertible proposition" that it
"'would indeed be undesirable for this Court to consider every conceivable situation
which might possibly arise in the application of complex and comprehensive
legislation,'"
(quoting Barrows v. Jackson, 346 U. S. 249, 346 U. S. 256 (1953)). By focusing on the
factual situation before us, and similar cases necessary for development of a
constitutional rule, [Footnote 21] we face "flesh-and-blood" [Footnote 22] legal problems
with data "relevant and adequate to an informed judgment." [Footnote 23] This practice
also fulfills a valuable institutional purpose: it allows state courts the opportunity to
construe a law to avoid constitutional infirmities.
What has come to be known as the First Amendment overbreadth doctrine is one of the
few exceptions to this principle, and must be justified by "weighty countervailing
policies." United States v. Raines, supra, at 362 U. S. 223. The doctrine is predicated on
the sensitive nature of protected expression:
Page 28 of 57
"persons whose expression is constitutionally protected may well refrain from exercising
their rights for fear of criminal sanctions by a statute susceptible of application to
protected expression."
Village of Schaumburg v.
Page 458 U. S. 769
Citizens for a Better Environment, 444 U. S. 620, 444 U. S. 634 (1980); Gooding v.
Wilson, supra, at 405 U. S. 521. It is for this reason that we have allowed persons to
attack overly broad statutes even though the conduct of the person making the attack is
clearly unprotected, and could be proscribed by a law drawn with the requisite
specificity. Dombrowski v. Pfister,380 U. S. 479, 380 U. S. 486 (1965); Thornhill v.
Alabama, 310 U. S. 88, 310 U. S. 97-98 (1940); United States v. Raines, supra, at362
U. S. 21-22; Gooding v. Wilson, supra, at 405 U. S. 521.
The scope of the First Amendment overbreadth doctrine, like most exceptions to
established principles, must be carefully tied to the circumstances in which facial
invalidation of a statute is truly warranted. Because of the wide-reaching effects of
striking down a statute on its face at the request of one whose own conduct may be
punished despite the First Amendment, we have recognized that the overbreadth
doctrine is "strong medicine," and have employed it with hesitation, and then "only as a
last resort." Broadrick, 413 U.S. at 413 U. S. 613. We have, in consequence, insisted
that the overbreadth involved be "substantial" before the statute involved will be
invalidated on its face. [Footnote 24]
Page 458 U. S. 770
In Broadrick, we explained the basis for this requirement:
"[T]he plain import of our cases is, at the very least, that facial overbreadth adjudication
is an exception to our traditional rules of practice, and that its function, a limited one at
the outset, attenuates as the otherwise unprotected behavior that it forbids the State to
sanction moves from 'pure speech' toward conduct, and that conduct -- even if
expressive -- falls within the scope of otherwise valid criminal laws that reflect legitimate
state interests in maintaining comprehensive controls over harmful, constitutionally
unprotected conduct. Although such laws, if too broadly worded, may deter protected
speech to some unknown extent, there comes a point where that effect -- at best a
prediction -- cannot, with confidence, justify invalidating a statute on its face, and so
prohibiting a State from enforcing the statute against conduct that is admittedly within its
power to proscribe. Cf. Aldelman v. United States, 394 U. S. 165, 394 U. S. 174-175
(1969)."
Id. at 413 U. S. 615. We accordingly held that,
"particularly where conduct, and not merely speech, is involved, we believe that the
overbreadth of a statute must not only be real, but substantial as well, judged in relation
to the statute's plainly legitimate sweep."
Ibid. [Footnote 25]
Page 458 U. S. 771
Broadrick examined a regulation involving restrictions on political campaign activity, an
area not considered "pure speech," and thus it was unnecessary to consider the proper
overbreadth test when a law arguably reaches traditional forms of expression such as
books and films. As we intimated in Broadrick, the requirement of substantial
overbreadth extended "at the very least" to cases involving conduct plus speech. This
case, which poses the question squarely, convinces us that the rationale of Broadrick is
sound, and should be applied in the present context involving the harmful employment
of children to make sexually explicit materials for distribution.
The premise that a law should not be invalidated for overbreadth unless it reaches a
substantial number of impermissible applications is hardly novel. On most occasions
involving facial invalidation, the Court has stressed the embracing sweep of the statute
over protected expression. [Footnote 26]
Page 458 U. S. 772
Indeed, JUSTICE BRENNAN observed in his dissenting opinion in Broadrick:
"We have never held that a statute should be held invalid on its face merely because it
is possible to conceive of a single impermissible application, and in that sense, a
requirement of substantial overbreadth is already implicit in the doctrine."
Id. at 413 U. S. 630. The requirement of substantial overbreadth is directly derived from
the purpose and nature of the doctrine. While a sweeping statute, or one incapable of
limitation, has the potential to repeatedly chill the exercise of expressive activity by
many individuals, the extent of deterrence of protected speech can be expected to
decrease with the declining reach of the regulation. [Footnote 27] This observation
appears equally applicable to the publication of books and films as it is to activities,
such as picketing or participation in election campaigns, which have previously been
categorized as involving conduct plus speech. We see no appreciable difference
between the position of a publisher or bookseller in doubt as to the reach of New York's
child pornography law and the situation faced by the Oklahoma state employees with
respect to that State's restriction on partisan political activity. Indeed, it could reasonably
be argued that the bookseller, with an economic incentive to sell materials that may fall
within the statute's scope, may be less likely to be deterred than the employee who
wishes to engage in political campaign activity. Cf. Bates v. State Bar of Arizona, 433 U.
S. 350, 433 U. S. 380-381 (1977) (overbreadth analysis inapplicable to commercial
speech).
Page 29 of 57
This requirement of substantial overbreadth may justifiably be applied to statutory York Court of Appeals is reversed, and the case is remanded to that court for further
challenges which arise in defense proceedings not inconsistent with this opinion.

Page 458 U. S. 773 So ordered.

of a criminal prosecution as well as civil enforcement or actions seeking a declaratory

judgment. Cf. Parker v. Levy, 417 U. S. 733, 417 U. S. 760 (1974). Indeed, the Court's
practice when confronted with ordinary criminal laws that are sought to be applied
against protected conduct is not to invalidate the law in toto, but rather to reverse the
particular conviction.Cantwell v. Connecticut, 310 U. S. 296 (1940); Edwards v. South
Carolina, 372 U. S. 229 (1973). We recognize, however, that the penalty to be imposed
is relevant in determining whether demonstrable overbreadth is substantial. We simply
hold that the fact that a criminal prohibition is involved does not obviate the need for the
inquiry or a priori warrant a finding of substantial overbreadth.

Applying these principles, we hold that § 263.15 is not substantially overbroad. We

consider this the paradigmatic case of a state statute whose legitimate reach dwarfs its
arguably impermissible applications. New York, as we have held, may constitutionally
prohibit dissemination of material specified in § 263.15. While the reach of the statute is
directed at the hard core of child pornography, the Court of Appeals was
understandably concerned that some protected expression, ranging from medical
textbooks to pictorials in the National Geographic would fall prey to the statute. How
often, if ever, it may be necessary to employ children to engage in conduct clearly within
the reach of § 263.15 in order to produce educational, medical, or artistic works cannot
be known with certainty. Yet we seriously doubt, and it has not been suggested, that
these arguably impermissible applications of the statute amount to more than a tiny
fraction of the materials within the statute's reach. Nor will we assume that the New
York courts will widen the possibly invalid reach of the statute by giving an expansive
construction to the proscription on "lewd exhibition[s] of the genitals." Under these
circumstances, § 263.15 is

"not substantially overbroad, and . . . whatever overbreadth may exist

Page 458 U. S. 774

should be cured through case-by-case analysis of the fact situations to which its
sanctions, assertedly, may not be applied."

Broadrick v. Oklahoma, 413 U.S. at 413 U. S. 615-616.

IV

Because § 263.15 is not substantially overbroad, it is unnecessary to consider its

application to material that does not depict sexual conduct of a type that New York may
restrict consistent with the First Amendment. As applied to Paul Ferber and to others
who distribute similar material, the statute does not violate the First Amendment as
applied to the States through the Fourteenth. [Footnote 28] The judgment of the New
Page 30 of 57
OCTOBER TERM, 1996
Syllabus
RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL. v. AMERICAN
CIVIL LIBERTIES UNION ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA
No. 96-511. Argued March 19, 1997-Decided June 26, 1997
Two provisions of the Communications Decency Act of 1996 (CDA or Act) seek to
protect minors from harmful material on the Internet, an international network of
interconnected computers that enables millions of people to communicate with one
another in "cyberspace" and to access vast amounts of information from around the
world. Title 47 U. S. C. § 223(a)(I)(B)(ii) (1994 ed., Supp. II) criminalizes the "knowing"
transmission of "obscene or indecent" messages to any recipient under 18 years of age.
Section 223(d) prohibits the "knowin[g]" sending or displaying to a person under 18 of
any message "that, in context, depicts or describes, in terms patently offensive as
measured by contemporary community standards, sexual or excretory activities or
organs." Mfirmative defenses are provided for those who take "good faith, ... effective ...
actions" to restrict access by minors to the prohibited communications, § 223(e)(5)(A),
and those who restrict such access by requiring certain designated forms of age proof,
such as a verified credit card or an adult identification number, §223(e)(5)(B). A number
of plaintiffs filed suit challenging the constitutionality of §§ 223(a)(I) and 223(d). After
making extensive findings of fact, a three-judge District Court convened pursuant to the
Act entered a preliminary injunction against enforcement of both challenged provisions.
The court's judgment enjoins the Government from enforcing § 223(a)(I)(B)'s
prohibitions insofar as they relate to "indecent" communications, but expressly
preserves the Government's right to investigate and prosecute the obscenity or child
pornography activities prohibited therein. The injunction against enforcement of § 223(d)
is unqualified because that section contains no separate reference to obscenity or child
pornography. The Government appealed to this Court under the Act's special review
provisions, arguing that the District Court erred in holding that the CDA violated both the
First Amendment because it is overbroad and the Fifth Amendment because it is vague.
Held: The CDA's "indecent transmission" and "patently offensive display" provisions
abridge "the freedom of speech" protected by the First Amendment. Pp. 864-885.
845
(a) Although the CDA's vagueness is relevant to the First Amendment overbreadth
inquiry, the judgment should be affirmed without reaching the Fifth Amendment issue.
P. 864.
(b) A close look at the precedents relied on by the GovernmentGinsberg v. New
York, 390 U. S. 629; FCC v. Pacifica Foundation, 438 U. S. 726;
and Renton v. Playtime Theatres, Inc., 475 U. S. 41-raises, rather than relieves, doubts
about the CDA's constitutionality. The CDA differs from the various laws and orders
upheld in those cases in many ways, including that it does not allow parents to consent
to their children's use of restricted materials; is not limited to commercial transactions;
fails to provide any definition of "indecent" and omits any requirement that "patently
offensive" material lack socially redeeming value; neither limits its broad categorical
prohibitions to particular times nor bases them on an evaluation by an agency familiar
with the medium's unique characteristics; is punitive; applies to a medium that, unlike
radio, receives full First Amendment protection; and cannot be properly analyzed as a
form of time, place, and manner regulation because it is a content-based blanket
restriction on speech. These precedents, then, do not require the Court to uphold the
CDA and are fully consistent with the application of the most stringent review of its
provisions. Pp. 864-868.
(c) The special factors recognized in some of the Court's cases as justifying regulation
of the broadcast media-the history of extensive Government regulation of broadcasting,
see, e. g., Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 399-400; the scarcity of
available frequencies at its inception, see, e. g., Turner Broadcasting System,
Inc. v. FCC, 512 U. S. 622, 637-638; and its "invasive" nature, see Sable
Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128-are not present in cyberspace.
Thus, these cases provide no basis for qualifying the level of First Amendment scrutiny
that should be applied to the Internet. Pp.868-870.
(d) Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the
many ambiguities concerning the scope of its coverage render it problematic for First
Amendment purposes. For instance, its use of the undefined terms "indecent" and
"patently offensive" will provoke uncertainty among speakers about how the two
standards relate to each other and just what they mean. The vagueness of such a
content-based regulation, see, e. g., Gentile v. State Bar of Nev., 501 U. S. 1030,
coupled with its increased deterrent effect as a criminal statute, see, e. g.,
Dombrowski v. Pfister, 380 U. S. 479, raise special First Amendment concerns because
of its obvious chilling effect on free speech. Contrary to the Government's argument, the
CDA is not saved from vagueness by the fact that its "patently offensive" stand-
846
ard repeats the second part of the three-prong obscenity test set forth
in Miller v. California, 413 U. S. 15,24. The second Miller prong reduces the inherent
vagueness of its own "patently offensive" term by requiring that the proscribed material
be "specifically defined by the applicable state law." In addition, the Miller definition
applies only to "sexual conduct," whereas the CDA prohibition extends also to
"excretory activities" and "organs" of both a sexual and excretory nature. Each
of Miller's other two prongs also critically limits the uncertain sweep of the obscenity
definition. Just because a definition including three limitations is not vague, it does not
follow that one of those limitations, standing alone, is not vague. The CDA's vagueness
undermines the likelihood that it has been carefully tailored to the congressional goal of
protecting minors from potentially harmful materials. Pp.870-874.
Page 31 of 57
(e) The CDA lacks the precision that the First Amendment requires when a statute
regulates the content of speech. Although the Government has an interest in protecting
children from potentially harmful materials, see, e. g., Ginsberg, 390 U. S., at 639, the
CDA pursues that interest by suppressing a large amount of speech that adults have a
constitutional right to send and receive, see, e. g., Sable, 492 U. S., at 126. Its breadth
is wholly unprecedented. The CDA's burden on adult speech is unacceptable if less
restrictive alternatives would be at least as effective in achieving the Act's legitimate
purposes. See, e. g., id., at 126. The Government has not proved otherwise. On the
other hand, the District Court found that currently available user-based software
suggests that a reasonably effective method by which parents can prevent their children
from accessing material which the parents believe is inappropriate will soon be widely
available. Moreover, the arguments in this Court referred to possible alternatives such
as requiring that indecent material be "tagged" to facilitate parental control, making
exceptions for messages with artistic or educational value, providing some tolerance for
parental choice, and regulating some portions of the Internet differently from others.
Particularly in the light of the absence of any detailed congressional findings, or even
hearings addressing the CDA's special problems, the Court is persuaded that the CDA
is not narrowly tailored. Pp.874-879.
(f) The Government's three additional arguments for sustaining the CDA's affirmative
prohibitions are rejected. First, the contention that the Act is constitutional because it
leaves open ample "alternative channels" of communication is unpersuasive because
the CDA regulates speech on the basis of its content, so that a "time, place, and
manner" analysis is inapplicable. See, e. g., Consolidated Edison Co. of N. Y. v.
847
Public Servo Comm'n of N. Y., 447 U. S. 530, 536. Second, the assertion that the
CDA's "knowledge" and "specific person" requirements significantly restrict its
permissible application to communications to persons the sender knows to be under 18
is untenable, given that most Internet forums are open to all comers and that even the
strongest reading of the "specific person" requirement would confer broad powers of
censorship, in the form of a "heckler's veto," upon any opponent of indecent speech.
Finally, there is no textual support for the submission that material having scientific,
educational, or other redeeming social value will necessarily fall outside the CDA's
prohibitions. Pp. 879-881.
(g) The § 223(e)(5) defenses do not constitute the sort of "narrow tailoring" that would
save the CDA. The Government's argument that transmitters may take protective "good
faith actio[n]" by "tagging" their indecent communications in a way that would indicate
their contents, thus permitting recipients to block their reception with appropriate
software, is illusory, given the requirement that such action be "effective": The proposed
screening software does not currently exist, but, even if it did, there would be no way of
knowing whether a potential recipient would actually block the encoded material. The
Government also failed to prove that § 223(b)(5)'s verification defense would
significantly reduce the CDA's heavy burden on adult speech. Although such verification
is actually being used by some commercial providers of sexually explicit material, the
District Court's findings indicate that it is not economically feasible for most
noncommercial speakers. Pp.881-882.
(h) The Government's argument that this Court should preserve the CDA's
constitutionality by honoring its severability clause, § 608, and by construing
nonseverable terms narrowly, is acceptable in only one respect. Because obscene
speech may be banned totally, see Miller, 413 U. S., at 18, and § 223(a)'s restriction of
"obscene" material enjoys a textual manifestation separate from that for "indecent"
material, the Court can sever the term "or indecent" from the statute, leaving the rest of
§ 223(a) standing. Pp. 882-885.
(i) The Government's argument that its "significant" interest in fostering the Internet's
growth provides an independent basis for upholding the CDA's constitutionality is
singularly unpersuasive. The dramatic expansion of this new forum contradicts the
factual basis underlying this contention: that the unregulated availability of "indecent"
and "patently offensive" material is driving people away from the Internet. P. 885.
929 F. Supp. 824, affirmed.
848
STEVENS, J., delivered the opinion of the Court, in which SCALIA, KENNEDY,
SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed an
opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST,
C. J., joined, post, p. 886.
Deputy Solicitor General Waxman argued the cause for appellants. On the briefs were
Acting Solicitor General Dellinger, Assistant Attorney General Hunger, Deputy Solicitor
General Kneedler, Irving L. Gornstein, Barbara
Bruce J. Ennis, Jr., argued the cause for appellees. With him on the brief for appellees
American Library Association et al. were Ann M. Kappler, Paul M. Smith, Donald B.
Verrilli, Jr., John B. Morris, Jr., Jill Lesser, Richard M. Schmidt, Jr., Bruce Rich, James
Wheaton, Jerry Berman, Elliot M. Mincberg, Lawrence S. Ottinger, Andrew J.
Schwartzman, Ronald L. Plesser, James J. Halpert, Michael Traynor, Robert P. Taylor,
Rene Milam, Marc Jacobson, Bruce W Sanford, and Henry S. Hoberman. Christopher
A. Hansen, Steven R. Shapiro, Marjorie Heins, Catherine Weiss, Stefan Presser, David
L. Sobel, Marc Rotenberg, and Roger Evans filed a brief for appellees American Civil
Liberties Union Foundation et al. *
*Briefs of amici curiae urging reversal were filed for Member of Congress Dan Coats et
al. by Bruce A. Taylor and Cathleen A. Cleaver; for Enough is Enough et al. by Ronald
D. Maines; for the Family Life Project of the American Center for Law and Justice
by Jay Alan Sekulow, James M. Henderson, Sr., Colby M. May, Keith A. Fournier,
John G. Stepanovich, and Thomas P. Monaghan; for Morality in Media, Inc.,
by Paul J. McGeady and Robert W Peters; and for James J. Clancy by Mr. Clancy, pro
se, and Carol A. Clancy.
Briefs of amici curiae urging affirmance were filed for the American Association of
University Professors et al. by James D. Crawford, Carl A. Solano, Theresa E.
Page 32 of 57
Loscalzo, Jennifer DuFault James, and Joseph T. Lukens; for Apollomedia Corporation
et al. by William Bennett Turner; for the Association of National Advertisers, Inc., by P.
Cameron DeVore, John J. Walsh, Steven G. Brody, Mary Elizabeth Taylor, Gilbert H.
Weil, and Sol Schildhause; for the Chamber of Commerce of the United States by
Clifford M. Sloan, Bert W Rein, Robert J. Butler, Stephen A. Bokat, and
849
JUSTICE STEVENS delivered the opinion of the Court.
At issue is the constitutionality of two statutory provisions enacted to protect minors
from "indecent" and "patently offensive" communications on the Internet.
Notwithstanding the legitimacy and importance of the congressional goal of protecting
children from harmful materials, we agree with the three-judge District Court that the
statute abridges "the freedom of speech" protected by the First Amendment.1
I
The District Court made extensive findings of fact, most of which were based on a
detailed stipulation prepared by the parties. See 929 F. Supp. 824, 830-849 (ED Pa.
1996).2 The findings describe the character and the dimensions of the Internet, the
availability of sexually explicit material in that medium, and the problems confronting
age verification for recipients of Internet communications. Because those findings
provide the underpinnings for the legal issues, we begin with a summary of the
undisputed facts.
The Internet
The Internet is an international network of interconnected computers. It is the outgrowth
of what began in 1969 as a
Robin S. Conrad; for Feminists for Free Expression by Barbara M cDowell; for the
National Association of Broadcasters et al. by Floyd Abrams, Jack N.
Goodman, and Susanna M. Lowy; for Playboy Enterprises, Inc., by Robert Corn-
Revere and Burton Joseph; for the Reporters Committee for Freedom of the Press et al.
by Jane E. Kirtley and S. Mark Goodman; for Site Specific, Inc., et al. by Jamie B. W
Stecher; and for Volunteer Lawyers for the Arts et al. by Daniel H. Weiner.
Raphael Winick filed a brief of amicus curiae for the Speech Communication
Association.
1 "Congress shall make no law ... abridging the freedom of speech."
2 The Court made 410 findings, including 356 paragraphs of the parties' stipulation and
54 findings based on evidence received in open court. See 929 F. Supp., at 830, n. 9,
842, n. 15.
850
military program called "ARPANET," 3 which was designed to enable computers
operated by the military, defense contractors, and universities conducting defense-
related research to communicate with one another by redundant channels even if some
portions of the network were damaged in a war. While the ARPANET no longer exists, it
provided an example for the development of a number of civilian networks that,
eventually linking with each other, now enable tens of millions of people to communicate
with one another and to access vast amounts of information from around the world. The
Internet is "a unique and wholly new medium of worldwide human communication."4
The Internet has experienced "extraordinary growth." 5 The number of "host"
computers-those that store information and relay communications-increased from about
300 in 1981 to approximately 9,400,000 by the time of the trial in 1996. Roughly 60% of
these hosts are located in the United States. About 40 million people used the Internet
at the time of trial, a number that is expected to mushroom to 200 million by 1999.
Individuals can obtain access to the Internet from many different sources, generally
hosts themselves or entities with a host affiliation. Most colleges and universities
provide access for their students and faculty; many corporations provide their
employees with access through an office network; many communities and local libraries
provide free access; and an increasing number of storefront "computer coffee shops"
provide access for a small hourly fee. Several major national "online services" such as
America Online, CompuServe, the Microsoft Network, and Prodigy offer access to their
own extensive proprietary networks as well as a link to the much larger resources of the
Internet. These com-
3 An acronym for the network developed by the Advanced Research Project Agency.
4Id., at 844 (finding 81). 5Id., at 831 (finding 3).
851
mercial online services had almost 12 million individual subscribers at the time of trial.
Anyone with access to the Internet may take advantage of a wide variety of
communication and information retrieval methods. These methods are constantly
evolving and difficult to categorize precisely. But, as presently constituted, those most
relevant to this case are electronic mail (e-mail), automatic mailing list services ("mail
exploders," sometimes referred to as "listservs"), "newsgroups," "chat rooms," and the
"World Wide Web." All of these methods can be used to transmit text; most can transmit
sound, pictures, and moving video images. Taken together, these tools constitute a
unique medium-known to its users as "cyberspace" -located in no particular
geographical location but available to anyone, anywhere in the world, with access to the
Internet.
Page 33 of 57
E-mail enables an individual to send an electronic message-generally akin to a note or
letter-to another individual or to a group of addressees. The message is generally
stored electronically, sometimes waiting for the recipient to check her "mailbox" and
sometimes making its receipt known through some type of prompt. A mail exploder is a
sort of e-mail group. Subscribers can send messages to a common e-mail address,
which then forwards the message to the group's other subscribers. Newsgroups also
serve groups of regular participants, but these po stings may be read by others as well.
There are thousands of such groups, each serving to foster an exchange of information
or opinion on a particular topic running the gamut from, say, the music of Wagner to
Balkan politics to AIDS prevention to the Chicago Bulls. About 100,000 new messages
are posted every day. In most newsgroups, po stings are automatically purged at
regular intervals. In addition to posting a message that can be read later, two or more
individuals wishing to communicate more immediately can enter a chat room to engage
in real-time dialogue-in other words, by typing messages to one another that appear
almost immediately on
852
the others' computer screens. The District Court found that at any given time "tens of
thousands of users are engaging in conversations on a huge range of subjects." 6 It is
"no exaggeration to conclude that the content on the Internet is as diverse as human
thought."7
The best known category of communication over the Internet is the World Wide Web,
which allows users to search for and retrieve information stored in remote computers,
as well as, in some cases, to communicate back to designated sites. In concrete terms,
the Web consists of a vast number of documents stored in different computers all over
the world. Some of these documents are simply files containing information. However,
more elaborate documents, commonly known as Web "pages," are also prevalent. Each
has its own address-"rather like a telephone number."s Web pages frequently contain
information and sometimes allow the viewer to communicate with the page's (or "site's")
author. They generally also contain "links" to other documents created by that site's
author or to other (generally) related sites. Typically, the links are either blue or
underlined text-sometimes images.
Navigating the Web is relatively straightforward. A user may either type the address of a
known page or enter one or more keywords into a commercial "search engine" in an
effort to locate sites on a subject of interest. A particular Web page may contain the
information sought by the "surfer," or, through its links, it may be an avenue to other
documents located anywhere on the Internet. Users generally explore a given Web
page, or move to another, by clicking a computer "mouse" on one of the page's icons or
links. Access to most Web pages is freely available, but some allow access only to
those who have purchased the right from a
6Id., at 835 (finding 27). 7Id., at 842 (finding 74). 8Id., at 836 (finding 36).
853
commercial provider. The Web is thus comparable, from the readers' viewpoint, to both
a vast library including millions of readily available and indexed publications and a
sprawling mall offering goods and services.
From the publishers' point of view, it constitutes a vast platform from which to address
and hear from a worldwide audience of millions of readers, viewers, researchers, and
buyers. Any person or organization with a computer connected to the Internet can
"publish" information. Publishers include government agencies, educational institutions,
commercial entities, advocacy groups, and individuals.9 Publishers may either make
their material available to the entire pool of Internet users, or confine access to a
selected group, such as those willing to pay for the privilege. "No single organization
controls any membership in the Web, nor is there any single centralized point from
which individual Web sites or services can be blocked from the Web." 10
Sexually Explicit Material
Sexually explicit material on the Internet includes text, pictures, and chat and "extends
from the modestly titillating to the hardest-core." 11 These files are created, named, and
posted in the same manner as material that is not sexually explicit, and may be
accessed either deliberately or unintentionally during the course of an imprecise search.
"Once a provider posts its content on the Internet, it cannot prevent that content from
entering any community." 12 Thus, for example,
9 "Web publishing is simple enough that thousands of individual users and small
community organizations are using the Web to publish their own personal 'home pages,'
the equivalent of individualized newsletters about that person or organization, which are
available to everyone on the Web." Id., at 837 (finding 42).
l°Id., at 838 (finding 46). 11 Id., at 844 (finding 82). 12 Ibid. (finding 86).
854
"when the UCR/California Museum of Photography posts to its Web site nudes by
Edward Weston and Robert Mapplethorpe to announce that its new exhibit will travel to
Baltimore and New York City, those images are available not only in Los Angeles,
Baltimore, and New York City, but also in Cincinnati, Mobile, or Beijing-wherever
Internet users live. Similarly, the safer sex instructions that Critical Path posts to its Web
site, written in street language so that the teenage receiver can understand them, are
available not just in Philadelphia, but also in Provo and Prague." 13
Some of the communications over the Internet that originate in foreign countries are
also sexually explicit.14
Though such material is widely available, users seldom encounter such content
accidentally. "A document's title or a description of the document will usually appear
Page 34 of 57
before the document itself ... and in many cases the user will receive detailed
information about a site's content before he or she need take the step to access the
document. Almost all sexually explicit images are preceded by warnings as to the
content." 15 For that reason, the "odds are slim" that a user would enter a sexually
explicit site by accident.16 Unlike communications received by radio or television, "the
receipt of information on the Internet requires a series of affirmative steps more
deliberate and directed than merely turning a dial. A child requires some sophistication
and some ability to read to retrieve material and thereby to use the Internet unattended."
17
Systems have been developed to help parents control the material that may be
available on a home computer with In-
13 Ibid. (finding 85).
14Id., at 848 (finding 117). 15Id., at 844-845 (finding 88). 16 Ibid.
17Id., at 845 (finding 89).
855
ternet access. A system may either limit a computer's access to an approved list of
sources that have been identified as containing no adult material, it may block
designated inappropriate sites, or it may attempt to block messages containing
identifiable objectionable features. "Although parental control software currently can
screen for certain suggestive words or for known sexually explicit sites, it cannot now
screen for sexually explicit images."18 Nevertheless, the evidence indicates that "a
reasonably effective method by which parents can prevent their children from accessing
sexually explicit and other material which parents may believe is inappropriate for their
children will soon be widely available." 19
Age Verification
The problem of age verification differs for different uses of the Internet. The District
Court categorically determined that there "is no effective way to determine the identity or
the age of a user who is accessing material through e-mail, mail exploders, newsgroups
or chat rooms." 20 The Government offered no evidence that there was a reliable way
to screen recipients and participants in such forums for
18Id., at 842 (finding 72). 19 Ibid. (finding 73).
2°Id., at 845 (finding 90): "An e-mail address provides no authoritative information about
the addressee, who may use an e-mail .alias. or an anonymous remailer. There is also
no universal or reliable listing of e-mail addresses and corresponding names or
telephone numbers, and any such listing would be or rapidly become incomplete. For
these reasons, there is no reliable way in many instances for a sender to know if the e-
mail recipient is an adult or a minor. The difficulty of e-mail age verification is
compounded for mail exploders such as listservs, which automatically send information
to all e-mail addresses on a sender's list. Government expert Dr. Olsen agreed that no
current technology could give a speaker assurance that only adults were listed in a
particular mail exploder's mailing list."
856
age. Moreover, even if it were technologically feasible to block minors' access to
newsgroups and chat rooms containing discussions of art, politics, or other subjects that
potentially elicit "indecent" or "patently offensive" contributions, it would not be possible
to block their access to that material and "still allow them access to the remaining
content, even if the overwhelming majority of that content was not indecent." 21
Technology exists by which an operator of a Web site may condition access on the
verification of requested information such as a credit card number or an adult password.
Credit card verification is only feasible, however, either in connection with a commercial
transaction in which the card is used, or by payment to a verification agency. U sing
credit card possession as a surrogate for proof of age would impose costs on
noncommercial Web sites that would require many of them to shut down. For that
reason, at the time of the trial, credit card verification was "effectively unavailable to a
substantial number of Internet content providers." 929 F. Supp., at 846 (finding 102).
Moreover, the imposition of such a requirement "would completely bar adults who do
not have a credit card and lack the resources to obtain one from accessing any blocked
material." 22
Commercial pornographic sites that charge their users for access have assigned them
passwords as a method of age verification. The record does not contain any evidence
concerning the reliability of these technologies. Even if passwords are effective for
commercial purveyors of indecent material, the District Court found that an adult
password requirement would impose significant burdens on noncommercial sites, both
because they would discourage users from accessing their sites and because the cost
of creating and
21 Ibid. (finding 93).
22Id., at 846 (finding 102).
857
maintaining such screening systems would be "beyond their reach." 23
In sum, the District Court found:
"Even if credit card verification or adult password verification were implemented, the
Government presented no testimony as to how such systems could ensure that the user
of the password or credit card is in fact over 18. The burdens imposed by credit card
Page 35 of 57
verification and adult password verification systems make them effectively unavailable
to a substantial number of Internet content providers." Ibid. (finding 107).
II
The Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56, was an unusually
important legislative enactment. As stated on the first of its 103 pages, its primary
purpose was to reduce regulation and encourage "the rapid deployment of new
telecommunications technologies." The major components of the statute have nothing
to do with the Internet; they were designed to promote competition in the local
telephone service market, the multichannel video mar-
23Id., at 847 (findings 104-106):
"At least some, if not almost all, non-commercial organizations, such as the ACLU, Stop
Prisoner Rape or Critical Path AIDS Project, regard charging listeners to access their
speech as contrary to their goals of making their materials available to a wide audience
free of charge.
"There is evidence suggesting that adult users, particularly casual Web browsers, would
be discouraged from retrieving information that required use of a credit card or
password. Andrew Anker testified that HotWired has received many complaints from its
members about HotWired's registration system, which requires only that a member
supply a name, e-mail address and self-created password. There is concern by
commercial content providers that age verification requirements would decrease
advertising and revenue because advertisers depend on a demonstration that the sites
are widely available and frequently visited."
858
ket, and the market for over-the-air broadcasting. The Act includes seven Titles, six of
which are the product of extensive committee hearings and the subject of discussion in
Reports prepared by Committees of the Senate and the House of Representatives. By
contrast, Title V-known as the "Communications Decency Act of 1996" (CDA)-contains
provisions that were either added in executive committee after the hearings were
concluded or as amendments offered during floor debate on the legislation. An
amendment offered in the Senate was the source of the two statutory provisions
challenged in this case.24 They are informally de-
24 See Exon Amendment No. 1268, 141 Congo Rec. 15536 (1995). See also id., at
15505. This amendment, as revised, became § 502 of the Telecommunications Act of
1996, 110 Stat. 133, 47 U. S. C. §§ 223(a)-(e) (1994 ed., Supp. II). Some Members of
the House of Representatives opposed the Exon Amendment because they thought it
"possible for our parents now to child-proof the family computer with these products
available in the private sector." They also thought the Senate's approach would "involve
the Federal Government spending vast sums of money trying to define elusive terms
that are going to lead to a flood of legal challenges while our kids are unprotected."
These Members offered an amendment intended as a substitute for the Exon
Amendment, but instead enacted as an additional section of the Act entitled "Online
Family Empowerment." See 110 Stat. 137, 47 U. S. C. §230 (1994 ed., Supp. II); 141
Congo Rec. 27881 (1995). No hearings were held on the provisions that became law.
See S. Rep. No. 104-23, p. 9 (1995). After the Senate adopted the Exon Amendment,
however, its Judiciary Committee did conduct a one-day hearing on "Cyberporn and
Children." In his opening statement at that hearing, Senator Leahy observed:
"It really struck me in your opening statement when you mentioned, Mr. Chairman, that
it is the first ever hearing, and you are absolutely right. And yet we had a major debate
on the floor, passed legislation overwhelmingly on a subject involving the Internet,
legislation that could dramatically change-some would say even wreak havoc-on the
Internet. The Senate went in willy-nilly, passed legislation, and never once had a
hearing, never once had a discussion other than an hour or so on the floor." Cyberporn
and Children: The Scope of the Problem, The State of the Technology, and the Need for
Congressional Action, Hearing on S. 892 before the Senate Committee on the Judiciary,
104th Cong., 1st Sess., 7-8 (1995).
859
scribed as the "indecent transmission" provision and the "patently offensive display"
provision.25
The first, 47 U. s. C. § 223(a) (1994 ed., Supp. II), prohibits the knowing transmission of
obscene or indecent messages to any recipient under 18 years of age. It provides in
pertinent part:
"(a) Whoever-
"(1) in interstate or foreign communications-
"(B) by means of a telecommunications device knowingly-
"(i) makes, creates, or solicits, and "(ii) initiates the transmission of,
"any comment, request, suggestion, proposal, image, or other communication which is
obscene or indecent, knowing that the recipient of the communication is under 18 years
of age, regardless of whether the maker of such communication placed the call or
initiated the communication;
"(2) knowingly permits any telecommunications facility under his control to be used for
any activity prohibited by paragraph (1) with the intent that it be used for such activity,
"shall be fined under Title 18, or imprisoned not more than two years, or both."
Page 36 of 57
The second provision, § 223(d), prohibits the knowing sending or displaying of patently
offensive messages in a manner that is available to a person under 18 years of age. It
provides:
25 Although the Government and the dissent break § 223(d)(1) into two separate
"patently offensive" and "display" provisions, we follow the convention of both parties
below, as well as the District Court's order and opinion, in describing § 223(d)(1) as one
provision.
860
"(d) Whoever-
"(1) in interstate or foreign communications knowingly-
"(A) uses an interactive computer service to send to a specific person or persons under
18 years of age, or
"(B) uses any interactive computer service to display in a manner available to a person
under 18 years of age,
"any comment, request, suggestion, proposal, image, or other communication that, in
context, depicts or describes, in terms patently offensive as measured by contemporary
community standards, sexual or excretory activities or organs, regardless of whether the
user of such service placed the call or initiated the communication; or
"(2) knowingly permits any telecommunications facility under such person's control to be
used for an activity prohibited by paragraph (1) with the intent that it be used for such
activity,
"shall be fined under Title 18, or imprisoned not more than two years, or both."
The breadth of these prohibitions is qualified by two affirmative defenses. See §
223(e)(5).26 One covers those who take "good faith, reasonable, effective, and
appropriate actions" to restrict access by minors to the prohibited communications. §
223(e)(5)(A). The other covers those who
26 In full, § 223(e)(5) provides:
"(5) It is a defense to a prosecution under subsection (a)(l)(B) or (d) of this section, or
under subsection (a)(2) of this section with respect to the use of a facility for an activity
under subsection (a)(l)(B) of this section that a person-
"(A) has taken, in good faith, reasonable, effective, and appropriate actions under the
circumstances to restrict or prevent access by minors to a communication specified in
such subsections, which may involve any appropriate measures to restrict minors from
such communications, including any method which is feasible under available
technology; or
"(B) has restricted access to such communication by requiring use of a verified credit
card, debit account, adult access code, or adult personal identification number."
861
restrict access to covered material by requiring certain designated forms of age proof,
such as a verified credit card or an adult identification number or code. § 223(e)(5)(B).
III
On February 8, 1996, immediately after the President signed the statute, 20 plaintiffs 27
filed suit against the Attorney General of the United States and the Department of
Justice challenging the constitutionality of §§ 223(a)(1) and 223(d). A week later, based
on his conclusion that the term "indecent" was too vague to provide the basis for a
criminal prosecution, District Judge Buckwalter entered a temporary restraining order
against enforcement of § 223(a)(1)(B)(ii) insofar as it applies to indecent
communications. A second suit was then filed by 27 additional plaintiffs,2S the two
cases
27 American Civil Liberties Union; Human Rights Watch; Electronic Privacy Information
Center; Electronic Frontier Foundation; Journalism Education Association; Computer
Professionals for Social Responsibility; N ational Writers Union; Clarinet
Communications Corp.; Institute for Global Communications; Stop Prisoner Rape; AIDS
Education Global Information System; Bibliobytes; Queer Resources Directory; Critical
Path AIDS Project, Inc.; Wildcat Press, Inc.; Declan McCullagh dba Justice on Campus;
Brock Meeks dba Cyberwire Dispatch; John Troyer dba The Safer Sex Page; Jonathan
Wallace dba The Ethical Spectacle; and Planned Parenthood Federation of America,
Inc.
28 American Library Association; America Online, Inc.; American Booksellers
Association, Inc.; American Booksellers Foundation for Free Expression; American
Society of Newspaper Editors; Apple Computer, Inc.; Association of American
Publishers, Inc.; Association of Publishers, Editors and Writers; Citizens Internet
Empowerment Coalition; Commercial Internet Exchange Association; CompuServe
Incorporated; Families Against Internet Censorship; Freedom to Read Foundation, Inc.;
Health Sciences Libraries Consortium; Hotwired Ventures LLC; Interactive Digital
Software Association; Interactive Services Association; Magazine Publishers of
America; Microsoft Corporation; The Microsoft Network, L. L. C.; National Press
Photographers Association; Netcom On-Line Communication Services, Inc.; Newspaper
Association of America; Opnet, Inc.; Prodigy Services Company; Society of Professional
Journalists; and Wired Ventures, Ltd.
862
Page 37 of 57
were consolidated, and a three-judge District Court was convened pursuant to § 561 of
the CDA.29 After an evidentiary hearing, that court entered a preliminary injunction
against enforcement of both of the challenged provisions. Each of the three judges
wrote a separate opinion, but their judgment was unanimous.
Chief Judge Sloviter doubted the strength of the Government's interest in regulating "the
vast range of online material covered or potentially covered by the CDA," but
acknowledged that the interest was "compelling" with respect to some of that material.
929 F. Supp., at 853. She concluded, nonetheless, that the statute "sweeps more
broadly than necessary and thereby chills the expression of adults" and that the terms
"patently offensive" and "indecent" were "inherently vague." Id., at 854. She also
determined that the affirmative defenses were not "technologically or economically
feasible for most providers," specifically considering and rejecting an argument that
providers could avoid liability by "tagging" their material in a manner that would allow
potential readers to screen out unwanted transmissions. Id., at 856. Chief Judge
Sloviter also rejected the Government's suggestion that the scope of the statute could
be narrowed by construing it to apply only to commercial pornographers. Id., at 854-
855.
Judge Buckwalter concluded that the word "indecent" in § 223(a)(1)(B) and the terms
"patently offensive" and "in context" in § 223(d)(1) were so vague that criminal
enforcement of either section would violate the "fundamental constitutional principle" of
"simple fairness," id., at 861, and the specific protections of the First and Fifth
Amendments, id., at 858. He found no statutory basis for the Government's argument
that the challenged provisions would be applied only to "pornographic" materials, noting
that, unlike obscenity, "indecency has not been defined to exclude works of serious
literary, artistic, political or scientific value." Id., at 863.
29110 Stat. 142-143, note following 47 U. S. C. §223 (1994 ed., Supp. II).
863
Moreover, the Government's claim that the work must be considered patently offensive
"in context" was itself vague because the relevant context might "refer to, among other
things, the nature of the communication as a whole, the time of day it was conveyed,
the medium used, the identity of the speaker, or whether or not it is accompanied by
appropriate warnings." Id., at 864. He believed that the unique nature of the Internet
aggravated the vagueness of the statute. Id., at 865, n. 9.
Judge Dalzell's review of "the special attributes of Internet communication" disclosed by
the evidence convinced him that the First Amendment denies Congress the power to
regulate the content of protected speech on the Internet. Id., at 867. His opinion
explained at length why he believed the CDA would abridge significant protected
speech, particularly by noncommercial speakers, while "[p]erversely, commercial
pornographers would remain relatively unaffected." Id., at 879. He construed our cases
as requiring a "medium-specific" approach to the analysis of the regulation of mass
communication, id., at 873, and concluded that the Internet-as "the most participatory
form of mass speech yet developed," id., at 883-is entitled to "the highest protection
from governmental intrusion," ibid.30
30 See also 929 F. Supp., at 877: "Four related characteristics of Internet
communication have a transcendent importance to our shared holding that the CDA is
unconstitutional on its face. We explain these characteristics in our Findings of fact
above, and I only rehearse them briefly here. First, the Internet presents very low
barriers to entry. Second, these barriers to entry are identical for both speakers and
listeners. Third, as a result of these low barriers, astoundingly diverse content is
available on the Internet. Fourth, the Internet provides significant access to all who wish
to speak in the medium, and even creates a relative parity among speakers." According
to Judge Dalzell, these characteristics and the rest of the District Court's findings "lead
to the conclusion that Congress may not regulate indecency on the Internet at
all." Ibid. Because appellees do not press this argument before this Court, we do not
consider it. Appellees also do not dispute that the Government generally has a
compelling interest in protecting minors from "indecent" and "patently offensive" speech.
864
The judgment of the District Court enjoins the Government from enforcing the
prohibitions in § 223(a)(1)(B) insofar as they relate to "indecent" communications, but
expressly preserves the Government's right to investigate and prosecute the obscenity
or child pornography activities prohibited therein. The injunction against enforcement of
§§ 223(d)(1) and (2) is unqualified because those provisions contain no separate
reference to obscenity or child pornography.
The Government appealed under the CDA's special review provisions, § 561, 110 Stat.
142-143, and we noted probable jurisdiction, see 519 U. S. 1025 (1996). In its appeal,
the Government argues that the District Court erred in holding that the CDA violated
both the First Amendment because it is overbroad and the Fifth Amendment because it
is vague. While we discuss the vagueness of the CDA because of its relevance to the
First Amendment overbreadth inquiry, we conclude that the judgment should be
affirmed without reaching the Fifth Amendment issue. We begin our analysis by
reviewing the principal authorities on which the Government relies. Then, after
describing the overbreadth of the CDA, we consider the Government's specific
contentions, including its submission that we save portions of the statute either by
severance or by fashioning judicial limitations on the scope of its coverage.
IV
In arguing for reversal, the Government contends that the CDA is plainly constitutional
under three of our prior decisions: (1) Ginsberg v. New York, 390 U. S. 629 (1968);
(2) FCC v. Pacifica Foundation, 438 U. S. 726 (1978); and (3) Renton v. Playtime
Theatres, Inc., 475 U. S. 41 (1986). A close look at these cases, however, raises-rather
than relievesdoubts concerning the constitutionality of the CDA.
Page 38 of 57
In Ginsberg, we upheld the constitutionality of a New York statute that prohibited selling
to minors under 17 years of age material that was considered obscene as to them even
if not obscene as to adults. We rejected the defendant's broad
865
submission that "the scope of the constitutional freedom of expression secured to a
citizen to read or see material concerned with sex cannot be made to depend on
whether the citizen is an adult or a minor." 390 U. S., at 636. In rejecting that contention,
we relied not only on the State's independent interest in the well-being of its youth, but
also on our consistent recognition of the principle that "the parents' claim to authority in
their own household to direct the rearing of their children is basic in the structure of our
society." 31
In four important respects, the statute upheld in Ginsberg was narrower than the CDA.
First, we noted in Ginsberg that "the prohibition against sales to minors does not bar
parents who so desire from purchasing the magazines for their children." Id., at 639.
Under the CDA, by contrast, neither the parents' consent-nor even their participationin
the communication would avoid the application of the statute.32 Second, the New York
statute applied only to commercial transactions, id., at 647, whereas the CDA contains
no such limitation. Third, the New York statute cabined its definition of material that is
harmful to minors with the requirement that it be "utterly without redeeming social
importance for minors." Id., at 646. The CDA fails to provide us with any definition of the
term "indecent" as used in § 223(a)(1) and, importantly, omits any requirement that the
"patently offensive" material covered by § 223(d) lack serious literary, artistic, political,
or scientific value. Fourth, the New York statute defined a minor as a person under the
age
31390 U. S., at 639. We quoted from Prince v. Massachusetts, 321 U. S. 158, 166
(1944): "It is cardinal with us that the custody, care and nurture of the child reside first in
the parents, whose primary function and freedom include preparation for obligations the
state can neither supply nor hinder."
32 Given the likelihood that many e-mail transmissions from an adult to a minor are
conversations between family members, it is therefore incorrect for the partial dissent to
suggest that the provisions of the CDA, even in this narrow area, "are no different from
the law we sustained in Ginsberg." Post, at 892.
866
of 17, whereas the CDA, in applying to all those under 18 years, includes an additional
year of those nearest majority.
In Pacifica, we upheld a declaratory order of the Federal Communications Commission,
holding that the broadcast of a recording of a 12-minute monologue entitled "Filthy
Words" that had previously been delivered to a live audience "could have been the
subject of administrative sanctions." 438 U. S., at 730 (internal quotation marks
omitted). The Commission had found that the repetitive use of certain words referring to
excretory or sexual activities or organs "in an afternoon broadcast when children are in
the audience was patently offensive" and concluded that the monologue was indecent
"as broadcast." Id., at 735. The respondent did not quarrel with the finding that the
afternoon broadcast was patently offensive, but contended that it was not "indecent"
within the meaning of the relevant statutes because it contained no prurient appeal.
After rejecting respondent's statutory arguments, we confronted its two constitutional
arguments: (1) that the Commission's construction of its authority to ban indecent
speech was so broad that its order had to be set aside even if the broadcast at issue
was unprotected; and (2) that since the recording was not obscene, the First
Amendment forbade any abridgment of the right to broadcast it on the radio.
In the portion of the lead opinion not joined by Justices Powell and Blackmun, the
plurality stated that the First Amendment does not prohibit all governmental regulation
that depends on the content of speech. Id., at 742-743. Accordingly, the availability of
constitutional protection for a vulgar and offensive monologue that was not obscene
depended on the context of the broadcast. Id., at 744-748. Relying on the premise that
"of all forms of communication" broadcasting had received the most limited First
Amendment protection, id., at 748-749, the Court concluded that the ease with which
children may obtain access to broadcasts,
867
"coupled with the concerns recognized in Ginsberg," justified special treatment of
indecent broadcasting. Id., at 749-750.
As with the New York statute at issue in Ginsberg, there are significant differences
between the order upheld in Pacifica and the CDA. First, the order in Pacifica, issued by
an agency that had been regulating radio stations for decades, targeted a specific
broadcast that represented a rather dramatic departure from traditional program content
in order to designate when-rather than whether-it would be permissible to air such a
program in that particular medium. The CDA's broad categorical prohibitions are not
limited to particular times and are not dependent on any evaluation by an agency
familiar with the unique characteristics of the Internet. Second, unlike the CDA, the
Commission's declaratory order was not punitive; we expressly refused to decide
whether the indecent broadcast "would justify a criminal prosecution." 438 U. S., at 750.
Finally, the Commission's order applied to a medium which as a matter of history had
"received the most limited First Amendment protection," id., at 748, in large part
because warnings could not adequately protect the listener from unexpected program
content. The Internet, however, has no comparable history. Moreover, the District Court
found that the risk of encountering indecent material by accident is remote because a
series of affirmative steps is required to access specific material.
In Renton, we upheld a zoning ordinance that kept adult movie theaters out of
residential neighborhoods. The ordinance was aimed, not at the content of the films
shown in the theaters, but rather at the "secondary effects" -such as crime and
deteriorating property values-that these theaters fostered: "'It is thee] secondary effect
which these zoning ordinances attempt to avoid, not the dissemination of "offensive"
Page 39 of 57
speech.''' 475 U. S., at 49 (quoting Young v. American Mini Theatres, Inc., 427 U. S. 50,
71, n. 34 (1976)). According to the Government, the CDA is constitutional be-
868
cause it constitutes a sort of "cyberzoning" on the Internet. But the CDA applies broadly
to the entire universe of cyberspace. And the purpose of the CDA is to protect children
from the primary effects of "indecent" and "patently offensive" speech, rather than any
"secondary" effect of such speech. Thus, the CDA is a content-based blanket restriction
on speech, and, as such, cannot be "properly analyzed as a form of time, place, and
manner regulation." 475 U. S., at 46. See also Boos v. Barry, 485 U. S. 312, 321 (1988)
("Regulations that focus on the direct impact of speech on its audience" are not properly
analyzed under Renton); Forsyth County v. Nationalist Movement, 505 U. S. 123, 134
(1992) ("Listeners' reaction to speech is not a content-neutral basis for regulation").
These precedents, then, surely do not require us to uphold the CDA and are fully
consistent with the application of the most stringent review of its provisions.
In Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 557 (1975), we observed
that "[e]ach medium of expression ... may present its own problems." Thus, some of our
cases have recognized special justifications for regulation of the broadcast media that
are not applicable to other speakers, see Red Lion Broadcasting Co. v. FCC, 395 U. S.
367 (1969); FCC v. Pacifica Foundation, 438 U. S. 726 (1978). In these cases, the
Court relied on the history of extensive Government regulation of the broadcast
medium, see, e. g., Red Lion, 395 U. S., at 399-400; the scarcity of available
frequencies at its inception, see, e. g., Turner Broadcasting System, Inc. v. FCC, 512 U.
S. 622, 637-638 (1994); and its "invasive" nature, see Sable Communications of Cal.,
Inc. v. FCC, 492 U. S. 115, 128 (1989).
Those factors are not present in cyberspace. Neither before nor after the enactment of
the CDA have the vast democratic forums of the Internet been subject to the type
869
of government supervision and regulation that has attended the broadcast industry.33
Moreover, the Internet is not as "invasive" as radio or television. The District Court
specifically found that "[c]ommunications over the Internet do not 'invade' an individual's
home or appear on one's computer screen unbidden. Users seldom encounter content
'by accident.' " 929 F. Supp., at 844 (finding 88). It also found that "[a]lmost all sexually
explicit images are preceded by warnings as to the content," and cited testimony that"
'odds are slim' that a user would come across a sexually explicit sight by accident." Ibid.
We distinguished Pacifica in Sable, 492 U. S., at 128, on just this basis. In Sable, a
company engaged in the business of offering sexually oriented prerecorded telephone
messages (popularly known as "dial-a-porn") challenged the constitutionality of an
amendment to the Communications Act of 1934 that imposed a blanket prohibition on
indecent as well as obscene interstate commercial telephone messages. We held that
the statute was constitutional insofar as it applied to obscene messages but invalid as
applied to indecent messages. In attempting to justify the complete ban and
criminalization of indecent commercial telephone messages, the Government relied
on Pacifica, arguing that the ban was necessary to prevent children from gaining access
to such messages. We agreed that "there is a compelling interest in protecting the
physical and psychological well-being of minors" which extended to shielding them from
indecent messages that are not obscene by adult standards, 492 U. S., at
33 Cf. Pacifica Foundation v. FCC, 556 F.2d 9, 36 (CADC 1977) (LevanthaI, J.,
dissenting), rev'd, FCC v. Pacifica Foundation, 438 U. S. 726 (1978).
When Pacifica was decided, given that radio stations were allowed to operate only
pursuant to federal license, and that Congress had enacted legislation prohibiting
licensees from broadcasting indecent speech, there was a risk that members of the
radio audience might infer some sort of official or societal approval of whatever was
heard over the radio, see 556 F. 2d, at 37, n. 18. No such risk attends messages
received through the Internet, which is not supervised by any federal agency.
870
126, but distinguished our "emphatically narrow holding" in Pacifica because it did not
involve a complete ban and because it involved a different medium of communication,
id., at 127. We explained that "the dial-it medium requires the listener to take affirmative
steps to receive the communication." Id., at 127-128. "Placing a telephone call," we
continued, "is not the same as turning on a radio and being taken by surprise by an
indecent message." Id., at 128.
Finally, unlike the conditions that prevailed when Congress first authorized regulation of
the broadcast spectrum, the Internet can hardly be considered a "scarce" expressive
commodity. It provides relatively unlimited, low-cost capacity for communication of all
kinds. The Government estimates that "[a]s many as 40 million people use the Internet
today, and that figure is expected to grow to 200 million by 1999."34 This dynamic,
multifaceted category of communication includes not only traditional print and news
services, but also audio, video, and still images, as well as interactive, real-time
dialogue. Through the use of chat rooms, any person with a phone line can become a
town crier with a voice that resonates farther than it could from any soapbox. Through
the use of Web pages, mail exploders, and newsgroups, the same individual can
become a pamphleteer. As the District Court found, "the content on the Internet is as
diverse as human thought." 929 F. Supp., at 842 (finding 74). We agree with its
conclusion that our cases provide no basis for qualifying the level of First Amendment
scrutiny that should be applied to this medium.
VI
Page 40 of 57
Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the
many ambiguities concerning the scope of its coverage render it problematic for
purposes of the First Amendment. For instance, each of the two parts
34 Juris. Statement 3 (citing 929 F. Supp., at 831 (finding 3)).
871
of the CDA uses a different linguistic form. The first uses the word "indecent," 47 U. s.
C. § 223(a) (1994 ed., Supp. II), while the second speaks of material that "in context,
depicts or describes, in terms patently offensive as measured by contemporary
community standards, sexual or excretory activities or organs," § 223(d). Given the
absence of a definition of either term,35 this difference in language will provoke
uncertainty among speakers about how the two standards relate to each other36 and
just what they mean.37 Could a speaker confidently assume that a serious discussion
about birth control practices, homosexuality, the First Amendment issues raised by the
Appendix to our Pacifica opinion, or the consequences of prison rape would not violate
the CDA? This uncertainty undermines the likelihood that the CDA has been carefully
tailored to the congressional goal of protecting minors from potentially harmful
materials.
The vagueness of the CDA is a matter of special concern for two reasons. First, the
CDA is a content-based regulation of speech. The vagueness of such a regulation
raises
35 "Indecent" does not benefit from any textual embellishment at all.
"Patently offensive" is qualified only to the extent that it involves "sexual or excretory
activities or organs" taken "in context" and "measured by contemporary community
standards."
36 See Gozlon-Peretz v. United States, 498 U. S. 395, 404 (1991) ("[W]here Congress
includes particular language in one section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress acts intentionally and purposely in
the disparate inclusion and exclusion" (internal quotation marks omitted)).
37 The statute does not indicate whether the "patently offensive" and "indecent"
determinations should be made with respect to minors or the population as a whole.
The Government asserts that the appropriate standard is "what is suitable material for
minors." Reply Brief for Appellants 18, n. 13 (citing Ginsberg v. New York, 390 U. S.
629, 633 (1968)). But the Conferees expressly rejected amendments that would have
imposed such a "harmful to minors" standard. See S. Conf. Rep. No. 104-230, p. 189
(1996) (S. Conf. Rep.), 142 Congo Rec. H1145, H1165-H1166 (Feb. 1, 1996). The
Conferees also rejected amendments that would have limited the proscribed materials
to those lacking redeeming value. See ibid.
872
special First Amendment concerns because of its obvious chilling effect on free speech.
See, e. g., Gentile v. State Bar of Nev., 501 U. S. 1030, 1048-1051 (1991). Second, the
CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal
conviction, the CDA threatens violators with penalties including up to two years in prison
for each act of violation. The severity of criminal sanctions may well cause speakers to
remain silent rather than communicate even arguably unlawful words, ideas, and
images. See, e. g., Dombrowski v. Pfister, 380 U. S. 479, 494 (1965). As a practical
matter, this increased deterrent effect, coupled with the "risk of discriminatory
enforcement" of vague regulations, poses greater First Amendment concerns than
those implicated by the civil regulation reviewed in Denver Area Ed.
Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727 (1996).
The Government argues that the statute is no more vague than the obscenity standard
this Court established in Miller v. California, 413 U. S. 15 (1973). But that is not so.
In Miller, this Court reviewed a criminal conviction against a commercial vendor who
mailed brochures containing pictures of sexually explicit activities to individuals who had
not requested such materials. Id., at 18. Having struggled for some time to establish a
definition of obscenity, we set forth in Miller the test for obscenity that controls to this
day:
"(a) whether the average person, applying contemporary community standards would
find that the work, taken as a whole, appeals to the prurient interest; (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and (c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value." Id., at 24 (internal quotation marks
and citations omitted).
873
Because the CDA's "patently offensive" standard (and, we assume, arguendo, its
synonymous "indecent" standard) is one part of the three-prong Miller test, the
Government reasons, it cannot be unconstitutionally vague.
The Government's assertion is incorrect as a matter of fact. The second prong of
the Miller test-the purportedly analogous standard-contains a critical requirement that is
omitted from the CDA: that the proscribed material be "specifically defined by the
applicable state law." This requirement reduces the vagueness inherent in the open-
ended term "patently offensive" as used in the CDA. Moreover, the Miller definition is
limited to "sexual conduct," whereas the CDA extends also to include (1) "excretory
activities" as well as (2) "organs" of both a sexual and excretory nature.
The Government's reasoning is also flawed. Just because a definition including three
limitations is not vague, it does not follow that one of those limitations, standing by itself,
is not vague.38 Each of Miller's additional two prongs-(l) that, taken as a whole, the
material appeal to the "prurient" interest, and (2) that it "lac[k] serious literary, artistic,
political, or scientific value"-critically limits the uncertain sweep of the obscenity
definition. The second requirement is particularly important because, unlike the "patently
offensive" and "prurient interest" criteria, it is not judged by contemporary community
Page 41 of 57
standards. See Pope v. Illinois, 481 U. S. 497, 500 (1987). This "societal value"
requirement, absent in the CDA, allows appellate courts to impose some limitations and
regularity on the definition by setting, as a matter of law, a national floor for socially
redeeming value. The Government's contention that courts will be able to give such
legal limitations to the CDA's standards is belied by Miller's own rationale for having
juries determine whether material
38 Even though the word "trunk," standing alone, might refer to luggage, a swimming
suit, the base of a tree, or the long nose of an animal, its meaning is clear when it is one
prong of a three-part description of a species of gray animals.
874
is "patently offensive" according to community standards: that such questions are
essentially ones of fact.39
In contrast to Miller and our other previous cases, the CDA thus presents a greater
threat of censoring speech that, in fact, falls outside the statute's scope. Given the
vague contours of the coverage of the statute, it unquestionably silences some
speakers whose messages would be entitled to constitutional protection. That danger
provides further reason for insisting that the statute not be overly broad. The CDA's
burden on protected speech cannot be justified if it could be avoided by a more carefully
drafted statute.
VII
We are persuaded that the CDA lacks the precision that the First Amendment requires
when a statute regulates the content of speech. In order to deny minors access to
potentially harmful speech, the CDA effectively suppresses a large amount of speech
that adults have a constitutional right to receive and to address to one another. That
burden on adult speech is unacceptable if less restrictive alternatives would be at least
as effective in achieving the legitimate purpose that the statute was enacted to serve.
In evaluating the free speech rights of adults, we have made it perfectly clear that
"[s]exual expression which is indecent but not obscene is protected by the First
Amendment." Sable, 492 U. S., at 126. See also Carey v. Population Services Int'l, 431
U. S. 678, 701 (1977) ("[W]here obscenity is not involved, we have consistently held
that the
39413 U. S., at 30 (Determinations of "what appeals to the 'prurient interest' or is
'patently offensive' ... are essentially questions of fact, and our Nation is simply too big
and too diverse for this Court to reasonably expect that such standards could be
articulated for all 50 States in a single formulation, even assuming the prerequisite
consensus exists"). The CDA, which implements the "contemporary community
standards" language of Miller, thus conflicts with the Conferees' own assertion that the
CDA was intended "to establish a uniform national standard of content regulation." S.
Conf. Rep., at 191.
875
fact that protected speech may be offensive to some does not justify its suppression").
Indeed, Pacifica itself admonished that "the fact that society may find speech offensive
is not a sufficient reason for suppressing it." 438 U. S., at 745.
It is true that we have repeatedly recognized the governmental interest in protecting
children from harmful materials. See Ginsberg, 390 U. S., at 639; Pacifica, 438 U. S., at
749. But that interest does not justify an unnecessarily broad suppression of speech
addressed to adults. As we have explained, the Government may not "reduc[e] the adult
population ... to ... only what is fit for children." Denver, 518 U. S., at 759 (internal
quotation marks omitted) (quoting Sable, 492 U. S., at 128).40 "[R]egardless of the
strength of the government's interest" in protecting children, "[t]he level of discourse
reaching a mailbox simply cannot be limited to that which would be suitable for a
sandbox." Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 74-75 (1983).
The District Court was correct to conclude that the CDA effectively resembles the ban
on "dial-a-porn" invalidated in Sable. 929 F. Supp., at 854. In Sable, 492 U. S., at 129,
this Court rejected the argument that we should defer to the congressional judgment
that nothing less than a total ban would be effective in preventing enterprising
youngsters from gaining access to indecent communications. Sable thus made clear
that the mere fact that a statutory regulation of speech was enacted for the important
purpose of protecting children from exposure to sexually explicit material does not
foreclose inquiry into its validity.41 As we pointed out last
40 Accord, Butler v. Michigan, 352 U. S. 380, 383 (1957) (ban on sale to adults of books
deemed harmful to children unconstitutional); Sable Communications of Cal.,
Inc. v. FCC, 492 U. S. 115, 128 (1989) (ban on "dial-aporn" messages
unconstitutional); Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 73 (1983) (ban
on mailing of unsolicited advertisement for contraceptives unconstitutional).
41 The lack of legislative attention to the statute at issue in Sable suggests another
parallel with this case. Compare 492 U. S., at 129-130 ("[A]side from conc1usory
statements during the debates by proponents of
876
Term, that inquiry embodies an "overarching commitment" to make sure that Congress
has designed its statute to accomplish its purpose "without imposing an unnecessarily
great restriction on speech." Denver, 518 U. S., at 741.
In arguing that the CDA does not so diminish adult communication, the Government
relies on the incorrect factual premise that prohibiting a transmission whenever it is
known that one of its recipients is a minor would not interfere with adult-to-adult
communication. The findings of the District Court make clear that this premise is
untenable. Given the size of the potential audience for most messages, in the absence
of a viable age verification process, the sender must be charged with knowing that one
Page 42 of 57
or more minors will likely view it. Knowledge that, for instance, one or more members of
a 100-person chat group will be a minor-and therefore that it would be a crime to send
the group an indecent message-would surely burden communication among adults.42
The District Court found that at the time of trial existing technology did not include any
effective method for a sender to prevent minors from obtaining access to its
communications on the Internet without also denying access to adults. The Court found
no effective way to determine the age of a user who is accessing material through e-
mail, mail exploders, newsgroups, or chat rooms. 929 F. Supp., at 845 (findings 90-94).
As a practical matter, the Court also found
the bill, as well as similar assertions in hearings on a substantially identical bill the year
before, ... the congressional record presented to us contains no evidence as
to how effective or ineffective the FCC's most recent regulations were or might prove to
be .... No Congressman or Senator purported to present a considered judgment with
respect to how often or to what extent minors could or would circumvent the rules and
have access to dial-a-porn messages" (footnote omitted)), with n. 24, supra.
42 The Government agrees that these provisions are applicable whenever "a sender
transmits a message to more than one recipient, knowing that at least one of the
specific persons receiving the message is a minor." Opposition to Motion to Affirm and
Reply to Juris. Statement 4-5, n. 1.
877
that it would be prohibitively expensive for noncommercialas well as some commercial-
speakers who have Web sites to verify that their users are adults. Id., at 845-848
(findings 95-116).43 These limitations must inevitably curtail a significant amount of
adult communication on the Internet. By contrast, the District Court found that "[dJespite
its limitations, currently available user-based software suggests that a reasonably
effective method by which parents can prevent their children from accessing sexually
explicit and other material which parents may believe is inappropriate for their children
will soon be widely available." Id., at 842 (finding 73) (emphases added).
The breadth of the CDA's coverage is wholly unprecedented. Unlike the regulations
upheld in Ginsberg and Pacifica, the scope of the CDA is not limited to commercial
speech or commercial entities. Its open-ended prohibitions embrace all nonprofit entities
and individuals posting indecent messages or displaying them on their own computers
in the presence of minors. The general, undefined terms "indecent" and "patently
offensive" cover large amounts of nonpornographic material with serious educational or
other value.44 Moreover, the "community standards" criterion as applied to the Internet
means that any communication avail-
43 The Government asserts that "[t]here is nothing constitutionally suspect about
requiring commercial Web site operators ... to shoulder the modest burdens associated
with their use." Brief for Appellants 35. As a matter of fact, however, there is no
evidence that a "modest burden" would be effective.
44 Transmitting obscenity and child pornography, whether via the Internet or other
means, is already illegal under federal law for both adults and juveniles. See 18 U. S. C.
§§ 1464-1465 (criminalizing obscenity); § 2251 (criminalizing child pornography). In fact,
when Congress was considering the CDA, the Government expressed its view that the
law was unnecessary because existing laws already authorized its ongoing efforts to
prosecute obscenity, child pornography, and child solicitation. See 141 Congo Rec.
16026 (1995) (letter from Kent Markus, Acting Assistant Attorney General, U. S.
Department of Justice, to Sen. Leahy).
78
able to a nationwide audience will be judged by the standards of the community most
likely to be offended by the message.45 The regulated subject matter includes any of
the seven "dirty words" used in the Pacifica monologue, the use of which the
Government's expert acknowledged could constitute a felony. See Olsen Testimony, Tr.
Vol. V, 53:1654:10. It may also extend to discussions about prison rape or safe sexual
practices, artistic images that include nude subjects, and arguably the card catalog of
the Carnegie Library.
For the purposes of our decision, we need neither accept nor reject the Government's
submission that the First Amendment does not forbid a blanket prohibition on all
"indecent" and "patently offensive" messages communicated to a 17-year-old-no matter
how much value the message may contain and regardless of parental approval. It is at
least clear that the strength of the Government's interest in protecting minors is not
equally strong throughout the coverage of this broad statute. Under the CDA, a parent
allowing her 17-year-old to use the family computer to obtain information on the Internet
that she, in her parental judgment, deems appropriate could face a lengthy prison term.
See 47 U. S. C. § 223(a)(2) (1994 ed., Supp. II). Similarly, a parent who sent his 17-
year-old college freshman information on birth control via e-mail could be incarcerated
even though neither he, his child, nor anyone in their home community found the
material "indecent" or "patently offensive," if the college town's community thought
otherwise.
45 Citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993), among
other cases, appellees offer an additional reason why, in their view, the CDA fails strict
scrutiny. Because so much sexually explicit content originates overseas, they argue, the
CDA cannot be "effective." Brief for Appellees American Library Association et al. 33-
34. This argument raises difficult issues regarding the intended, as well as the
permissible scope of, extraterritorial application of the CDA. We find it unnecessary to
address those issues to dispose of this case.
879
The breadth of this content-based restriction of speech imposes an especially heavy
burden on the Government to explain why a less restrictive provision would not be as
effective as the CDA. It has not done so. The arguments in this Court have referred to
possible alternatives such as requiring that indecent material be "tagged" in a way that
facilitates parental control of material coming into their homes, making exceptions for
Page 43 of 57
messages with artistic or educational value, providing some tolerance for parental
choice, and regulating some portions of the Internet-such as commercial Web sites-
differently from others, such as chat rooms. Particularly in the light of the absence of
any detailed findings by the Congress, or even hearings addressing the special
problems of the CDA, we are persuaded that the CDA is not narrowly tailored if that
requirement has any meaning at all.
VIII
In an attempt to curtail the CDA's facial overbreadth, the Government advances three
additional arguments for sustaining the Act's affirmative prohibitions: (1) that the CDA is
constitutional because it leaves open ample "alternative channels" of communication;
(2) that the plain meaning of the CDA's "knowledge" and "specific person" requirement
significantly restricts its permissible applications; and (3) that the CDA's prohibitions are
"almost always" limited to material lacking redeeming social value.
The Government first contends that, even though the CDA effectively censors discourse
on many of the Internet's modalities-such as chat groups, newsgroups, and mail
exploders-it is nonetheless constitutional because it provides a "reasonable opportunity"
for speakers to engage in the restricted speech on the World Wide Web. Brief for
Appellants 39. This argument is unpersuasive because the CDA regulates speech on
the basis of its content. A "time, place, and manner" analysis is therefore inapplicable.
See Consolidated Edison Co. of N. Y. v. Public Servo Comm'n of N. Y.,
880
447 U. S. 530, 536 (1980). It is thus immaterial whether such speech would be feasible
on the Web (which, as the Government's own expert acknowledged, would cost up to
$10,000 if the speaker's interests were not accommodated by an existing Web site, not
including costs for data base management and age verification). The Government's
position is equivalent to arguing that a statute could ban leaflets on certain subjects as
long as individuals are free to publish books. In invalidating a number of laws that
banned leafletting on the streets regardless of their content, we explained that "one is
not to have the exercise of his liberty of expression in appropriate places abridged on
the plea that it may be exercised in some other place." Schneider v. State (Town of
Irvington), 308 U. S. 147, 163 (1939).
The Government also asserts that the "knowledge" requirement of both §§ 223(a) and
(d), especially when coupled with the "specific child" element found in § 223(d), saves
the CDA from overbreadth. Because both sections prohibit the dissemination of
indecent messages only to persons known to be under 18, the Government argues, it
does not require transmitters to "refrain from communicating indecent material to adults;
they need only refrain from disseminating such materials to persons they know to be
under 18." Brief for Appellants 24. This argument ignores the fact that most Internet
forums-including chat rooms, newsgroups, mail exploders, and the Web-are open to all
comers. The Government's assertion that the knowledge requirement somehow
protects the communications of adults is therefore untenable. Even the strongest
reading of the "specific person" requirement of § 223(d) cannot save the statute. It
would confer broad powers of censorship, in the form of a "heckler's veto," upon any
opponent of indecent speech who might simply log on and inform the would-be
discoursers that his 17-year-old child-a "specific person ... under 18 years of age," 47 U.
S. C. §223(d)(1)(A) (1994 ed., Supp. H)-would be present.
881
Finally, we find no textual support for the Government's submission that material having
scientific, educational, or other redeeming social value will necessarily fall outside the
CDA's "patently offensive" and "indecent" prohibitions. See also n. 37, supra.
IX
The Government's three remaining arguments focus on the defenses provided in §
223(e)(5).46 First, relying on the "good faith, reasonable, effective, and appropriate
actions" provision, the Government suggests that "tagging" provides a defense that
saves the constitutionality of the CDA. The suggestion assumes that transmitters may
encode their indecent communications in a way that would indicate their contents, thus
permitting recipients to block their reception with appropriate software. It is the
requirement that the good-faith action must be "effective" that makes this defense
illusory. The Government recognizes that its proposed screening software does not
currently exist. Even if it did, there is no way to know whether a potential recipient will
actually block the encoded material. Without the impossible knowledge that every
guardian in America is screening for the "tag," the transmitter could not reasonably rely
on its action to be "effective."
For its second and third arguments concerning defenseswhich we can consider
together-the Government relies on the latter half of § 223(e)(5), which applies when the
transmitter has restricted access by requiring use of a verified credit card or adult
identification. Such verification is not only technologically available but actually is used
by commercial providers of sexually explicit material. These providers, therefore, would
be protected by the defense. Under the findings of the District Court, however, it is not
economically feasible for most noncommercial speakers to employ such verification.
Accordingly, this defense would not signifi-
46 For the full text of § 223(e )(5), see n. 26, supra.
882
cantly narrow the statute's burden on noncommercial speech. Even with respect to the
commercial pornographers that would be protected by the defense, the Government
failed to adduce any evidence that these verification techniques actually preclude
minors from posing as adults.47 Given that the risk of criminal sanctions "hovers over
each content provider, like the proverbial sword of Damocles,"48 the District Court
correctly refused to rely on unproven future technology to save the statute. The
Government thus failed to prove that the proffered defense would significantly reduce
the heavy burden on adult speech produced by the prohibition on offensive displays.
Page 44 of 57
We agree with the District Court's conclusion that the CDA places an unacceptably
heavy burden on protected speech, and that the defenses do not constitute the sort of
"narrow tailoring" that will save an otherwise patently invalid unconstitutional provision.
In Sable, 492 U. S., at 127, we remarked that the speech restriction at issue there
amounted to "'burn[ing] the house to roast the pig.'" The CDA, casting a far darker
shadow over free speech, threatens to torch a large segment of the Internet community.
X
At oral argument, the Government relied heavily on its ultimate fall-back position: If this
Court should conclude that the CDA is insufficiently tailored, it urged, we should save
the statute's constitutionality by honoring the severability clause, see 47 U. S. C. § 608,
and construing nonseverable terms narrowly. In only one respect is this argument
acceptable.
A severability clause requires textual provisions that can be severed. We will follow §
608's guidance by leaving con-
47 Thus, ironically, this defense may significantly protect commercial purveyors of
obscene postings while providing little (or no) benefit for transmitters of indecent
messages that have significant social or artistic value. 48929 F. Supp., at 855-856.
883
stitutional textual elements of the statute intact in the one place where they are, in fact,
severable. The "indecency" provision, 47 U. S. C. § 223(a) (1994 ed., Supp. II), applies
to "any comment, request, suggestion, proposal, image, or other communication which
is obscene or indecent." (Emphasis added.) Appellees do not challenge the application
of the statute to obscene speech, which, they acknowledge, can be banned totally
because it enjoys no First Amendment protection. See Miller, 413 U. S., at 18. As set
forth by the statute, the restriction of "obscene" material enjoys a textual manifestation
separate from that for "indecent" material, which we have held unconstitutional.
Therefore, we will sever the term "or indecent" from the statute, leaving the rest of §
223(a) standing. In no other respect, however, can § 223(a) or § 223(d) be saved by
such a textual surgery.
The Government also draws on an additional, less traditional aspect of the CDA's
severability clause, 47 U. S. C. § 608, which asks any reviewing court that holds the
statute facially unconstitutional not to invalidate the CDA in application to "other persons
or circumstances" that might be constitutionally permissible. It further invokes this
Court's admonition that, absent "countervailing considerations," a statute should "be
declared invalid to the extent it reaches too far, but otherwise left
intact." Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 503-504 (1985). There are
two flaws in this argument.
First, the statute that grants our jurisdiction for this expedited review, § 561 of the
Telecommunications Act of 1961, note following 47 U. S. C. § 223 (1994 ed., Supp. II),
limits that jurisdictional grant to actions challenging the CDA "on its face." Consistent
with § 561, the plaintiffs who brought this suit and the three-judge panel that decided it
treated it as a facial challenge. We have no authority, in this particular posture, to
convert this litigation into an "as-applied" challenge. Nor, given the vast array of
plaintiffs, the range of their expressive activities, and the vagueness of the stat-
884
ute, would it be practicable to limit our holding to a judicially defined set of specific
applications.
Second, one of the "countervailing considerations" mentioned in Brockett is present
here. In considering a facial challenge, this Court may impose a limiting construction on
a statute only if it is "readily susceptible" to such a construction. Virginia v. American
Booksellers Assn., Inc., 484 U. S. 383, 397 (1988). See
also Erznoznik v. Jacksonville, 422 U. S. 205, 216 (1975) ("readily subject" to narrowing
construction). The open-ended character of the CDA provides no guidance whatever for
limiting its coverage.
This case is therefore unlike those in which we have construed a statute narrowly
because the text or other source of congressional intent identified a clear line that this
Court could draw. Cf., e. g., Brockett, 472 U. S., at 504-505 (invalidating obscenity
statute only to the extent that word "lust" was actually or effectively excised from
statute); United States v. Grace, 461 U. S. 171, 180-183 (1983) (invalidating federal
statute banning expressive displays only insofar as it extended to public sidewalks when
clear line could be drawn between sidewalks and other grounds that comported with
congressional purpose of protecting the building, grounds, and people therein). Rather,
our decision in United States v. Treasury Employees, 513 U. S. 454, 479, n. 26 (1995),
is applicable. In that case, we declined to "dra[w] one or more lines between categories
of speech covered by an overly broad statute, when Congress has sent inconsistent
signals as to where the new line or lines should be drawn" because doing so "involves a
far more serious invasion of the legislative domain."49 This Court "will not rewrite a ...
law
49 As this Court long ago explained: "It would certainly be dangerous if the legislature
could set a net large enough to catch all possible offenders, and leave it to the courts to
step inside and say who could be rightfully detained, and who should be set at large.
This would, to some extent, substitute the judicial for the legislative department of the
government." United States v. Reese, 92 U. S. 214, 221 (1876). In part because of
these
885
to conform it to constitutional requirements." American Booksellers, 484 U. S., at 397.50
XI
Page 45 of 57
In this Court, though not in the District Court, the Government asserts that-in addition to
its interest in protecting children-its "[e]qually significant" interest in fostering the growth
of the Internet provides an independent basis for upholding the constitutionality of the
CDA. Brief for Appellants 19. The Government apparently assumes that the unregulated
availability of "indecent" and "patently offensive" material on the Internet is driving
countless citizens away from the medium because of the risk of exposing themselves or
their children to harmful material.
We find this argument singularly unpersuasive. The dramatic expansion of this new
marketplace of ideas contradicts the factual basis of this contention. The record
demonstrates that the growth of the Internet has been and continues to be phenomenal.
As a matter of constitutional tradition, in the absence of evidence to the contrary, we
presume that governmental regulation of the content of speech is more likely to interfere
with the free exchange of ideas than to encourage it. The interest in encouraging
freedom of expression in a democratic society outweighs any theoretical but unproven
benefit of censorship.
For the foregoing reasons, the judgment of the District Court is affirmed.
It is so ordered.
separation-of-powers concerns, we have held that a severability clause is "an aid
merely; not an inexorable command." Dorchy v. Kansas, 264 U. S. 286, 290 (1924).
50 See also Osborne v. Ohio, 495 U. S. 103, 121 (1990) (judicial rewriting of statutes
would derogate Congress' "incentive to draft a narrowly tailored law in the first place").
886
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE joins, concurring in the
judgment in part and dissenting in part.
I write separately to explain why I view the Communications Decency Act of 1996 (CDA)
as little more than an attempt by Congress to create "adult zones" on the Internet. Our
precedent indicates that the creation of such zones can be constitutionally sound.
Despite the soundness of its purpose, however, portions of the CDA are
unconstitutional because they stray from the blueprint our prior cases have developed
for constructing a "zoning law" that passes constitutional muster.
Appellees bring a facial challenge to three provisions of the CDA. The first, which the
Court describes as the "indecency transmission" provision, makes it a crime to
knowingly transmit an obscene or indecent message or image to a person the sender
knows is under 18 years old. 47 U. S. C. § 223(a)(1)(B) (1994 ed., Supp. II). What the
Court classifies as a single" 'patently offensive display'" provision, see ante, at 859, is in
reality two separate provisions. The first of these makes it a crime to knowingly send a
patently offensive message or image to a specific person under the age of 18 ("specific
person" provision). § 223(d)(1)(A). The second criminalizes the display of patently
offensive messages or images "in a[ny] manner available" to minors ("display"
provision). § 223(d)(1)(B). None of these provisions purports to keep indecent (or
patently offensive) material away from adults, who have a First Amendment right to
obtain this speech. Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126
(1989) ("Sexual expression which is indecent but not obscene is protected by the First
Amendment"). Thus, the undeniable purpose of the CDA is to segregate indecent
material on the Internet into certain areas that minors cannot access. See S. Conf. Rep.
No. 104-230, p. 189 (1996) (CDA imposes "access restrictions ... to protect minors from
exposure to indecent material").
887
The creation of "adult zones" is by no means a novel concept. States have long denied
minors access to certain establishments frequented by adults.1 States have also denied
minors access to speech deemed to be "harmful to minors." 2
1 See, e. g., Alaska Stat. Ann. § 11.66.300 (1996) (no minors in "adult entertainment"
places); Ariz. Rev. Stat. Ann. § 13-3556 (1989) (no minors in places where people
expose themselves); Ark. Code Ann. §§ 5-27-223, 5-27-224 (1993) (no minors in
poolrooms and bars); Colo. Rev. Stat. § 18-7502(2) (1986) (no minors in places
displaying movies or shows that are "harmful to children"); Del. Code Ann., Tit. 11, §
1365(i)(2) (1995) (same); D. C. Code Ann. § 22-2001(b)(I)(B) (1996) (same); Fla. Stat. §
847.013(2) (1994) (same); Ga. Code Ann. § 16-12-103(b) (1996) (same); Haw. Rev.
Stat. § 712-1215(1)(b) (1994) (no minors in movie houses or shows that are
"pornographic for minors"); Idaho Code § 18-1515(2) (1987) (no minors in places
displaying movies or shows that are "harmful to minors"); La. Rev. Stat. Ann. §
14:91.11(B) (West 1986) (no minors in places displaying movies that depict sex acts
and appeal to minors' prurient interest); Md. Ann. Code, Art. 27, §416E (1996) (no
minors in establishments where certain enumerated acts are performed or portrayed);
Mich. Compo Laws § 750.141 (1991) (no minors without an adult in places where
alcohol is sold); Minn. Stat. § 617.294 (1987 and Supp. 1997) (no minors in places
displaying movies or shows that are "harmful to minors"); Miss. Code Ann. § 97-5-11
(1994) (no minors in poolrooms, billiard halls, or where alcohol is sold); Mo. Rev. Stat. §
573.507 (1995) (no minors in adult cabarets); Neb. Rev. Stat. § 28-809 (1995) (no
minors in places displaying movies or shows that are "harmful to minors"); Nev. Rev.
Stat. §201.265(3) (1997) (same); N. H. Rev. Stat. Ann. § 571-B:2(II) (1986) (same); N.
M. Stat. Ann. § 30-37-3 (1989) (same); N. Y. Penal Law §235.21(2) (McKinney 1989)
(same); N. D. Cent. Code § 12.1-27.1-03 (1985 and Supp. 1995) (same); 18 Pa. Cons.
Stat. § 5903(a) (Supp. 1997) (same); S. D. Compo Laws Ann. §22-24-30 (1988) (same);
Tenn. Code Ann. §39-17-911(b) (1991) (same); Vt. Stat. Ann., Tit. 13, §2802(b) (1974)
(same); Va. Code Ann. § 18.2-391 (1996) (same).
2 See, e. g., Ala. Code § 13A-12-200.5 (1994); Ariz. Rev. Stat. Ann. § 133506 (1989);
Ark. Code Ann. § 5-68-502 (1993); Cal. Penal Code Ann. §313.1 (West Supp. 1997);
Colo. Rev. Stat. § 18-7-502(1) (1986); Conn. Gen. Stat. § 53a-196 (1994); Del. Code
Ann., Tit. 11, § 1365(i)(I) (1995); D. C. Code Ann. § 22-2001(b)(I)(A) (1996); Fla. Stat. §
847.012 (1994); Ga. Code Ann. § 16-12-103(a) (1996); Haw. Rev. Stat. § 712-1215(1)
(1994); Idaho Code § 18-1515(1) (1987); Ill. Compo Stat., ch. 720, § 5/11-21 (1993);
Page 46 of 57
Ind. Code § 35-49-3-3(1) (Supp. 1996); Iowa Code § 728.2 (1993); Kan. Stat. Ann. §21-
4301c(a)(2) (1988); La. Rev. Stat. Ann. § 14:91.11(B) (West 1986);
888
The Court has previously sustained such zoning laws, but only if they respect the First
Amendment rights of adults and minors. That is to say, a zoning law is valid if (i) it does
not unduly restrict adult access to the material; and (ii) minors have no First Amendment
right to read or view the banned material. As applied to the Internet as it exists in 1997,
the "display" provision and some applications of the "indecency transmission" and
"specific person" provisions fail to adhere to the first of these limiting principles by
restricting adults' access to protected materials in certain circumstances. Unlike the
Court, however, I would invalidate the provisions only in those circumstances.
I proprietor to prevent children from entering the establishment, but to let adults inside.
Our cases make clear that a "zoning" law is valid only if adults are still able to obtain the
regulated speech. If they cannot, the law does more than simply keep children away
from speech they have no right to obtain-it interferes with the rights of adults to obtain
constitutionally protected speech and effectively "reduce[s] the adult population ... to
reading only what is fit for children." Butler v. Michigan, 352 U. S. 380, 383 (1957). The
First Amendment does not tolerate such interference. See ibid. (striking down a Michi-
Md. Ann. Code, Art. 27, §416B (1996); Mass. Gen. Laws, ch. 272, §28 (1992); Minn.
Stat. § 617.293 (1987 and Supp. 1997); Miss. Code Ann. § 975-11 (1994); Mo. Rev.
Stat. § 573.040 (1995); Mont. Code Ann. § 45-8-206 (1995); Neb. Rev. Stat. § 28-808
(1995); Nev. Rev. Stat. §§ 201.265(1), (2) (1997); N. H. Rev. Stat. Ann. § 571-B:2(I)
(1986); N. M. Stat. Ann. § 30-37-2 (1989); N. Y. Penal Law § 235.21(1) (McKinney
1989); N. C. Gen. Stat. § 14190.15(a) (1993); N. D. Cent. Code § 12.1-27.1-03 (1985
and Supp. 1995); Ohio Rev. Code Ann. § 2907.31(A)(I) (Supp. 1997); Okla. Stat., Tit.
21, § 1040.76(2) (Supp. 1997); 18 Pa. Cons. Stat. § 5903(c) (Supp. 1997); R. 1. Gen.
Laws § 11-31-10(a) (1996); S. C. Code Ann. § 16-15-385(A) (Supp. 1996); S. D. Compo
Laws Ann. §22-24-28 (1988); Tenn. Code Ann. §39-17911(a) (1991); Tex. Penal Code
Ann. § 43.24(b) (1994); Utah Code Ann. § 7610-1206(2) (1995); Vt. Stat. Ann., Tit. 13,
§2802(a) (1974); Va. Code Ann. § 18.2-391 (1996); Wash. Rev. Code § 9.68.060 (1988
and Supp. 1997); Wis. Stat. § 948.11(2) (Supp. 1995).
889
gan criminal law banning sale of books-to minors or adults-that contained words or
pictures that" 'tende[d] to ... corrup[t] the morals of youth' "); Sable Communications,
supra (invalidating federal law that made it a crime to transmit indecent, but
nonobscene, commercial telephone messages to minors and adults); Bolger v. Youngs
Drug Products Corp., 463 U. S. 60, 74 (1983) (striking down a federal law prohibiting
the mailing of unsolicited advertisements for contraceptives). If the law does not unduly
restrict adults' access to constitutionally protected speech, however, it may be valid.
In Ginsberg v. New York, 390 U. S. 629, 634 (1968), for example, the Court sustained a
New York law that barred store owners from selling pornographic magazines to minors
in part because adults could still buy those magazines.
The Court in Ginsberg concluded that the New York law created a constitutionally
adequate adult zone simply because, on its face, it denied access only to minors. The
Court did not question-and therefore necessarily assumed-that an adult zone, once
created, would succeed in preserving adults' access while denying minors' access to
the regulated speech. Before today, there was no reason to question this assumption,
for the Court has previously only considered laws that operated in the physical world, a
world that with two characteristics that make it possible to create "adult zones":
geography and identity. See Lessig, Reading the Constitution in Cyberspace, 45 Emory
L. J. 869, 886 (1996). A minor can see an adult dance show only if he enters an
establishment that provides such entertainment. And should he attempt to do so, the
minor will not be able to conceal completely his identity (or, consequently, his age).
Thus, the twin characteristics of geography and identity enable the establishment's
The electronic world is fundamentally different. Because it is no more than the
interconnection of electronic pathways, cyberspace allows speakers and listeners to
mask their iden-
890
tities. Cyberspace undeniably reflects some form of geography; chat rooms and Web
sites, for example, exist at fixed "locations" on the Internet. Since users can transmit
and receive messages on the Internet without revealing anything about their identities or
ages, see id., at 901, however, it is not currently possible to exclude persons from
accessing certain messages on the basis of their identity.
Cyberspace differs from the physical world in another basic way: Cyberspace is
malleable. Thus, it is possible to construct barriers in cyberspace and use them to
screen for identity, making cyberspace more like the physical world and, consequently,
more amenable to zoning laws. This transformation of cyberspace is already
underway. Id., at 888-889; id., at 887 (cyberspace "is moving ... from a relatively
unzoned place to a universe that is extraordinarily well zoned"). Internet speakers
(users who post material on the Internet) have begun to zone cyberspace itself through
the use of "gateway" technology. Such technology requires Internet users to enter
information about themselves-perhaps an adult identification number or a credit card
number-before they can access certain areas of cyberspace, 929 F. Supp. 824, 845
(ED Pa. 1996), much like a bouncer checks a person's driver's license before admitting
him to a nightclub. Internet users who access information have not attempted to zone
cyberspace itself, but have tried to limit their own power to access information in
cyberspace, much as a parent controls what her children watch on television by
installing a lock box. This user-based zoning is accomplished through the use of
screening software (such as Cyber Patrol or SurfWatch) or browsers with screening
capabilities, both of which search addresses and text for keywords that are associated
with "adult" sites and, if the user wishes, blocks access to such sites. Id., at 839-842.
Page 47 of 57
The Platform for Internet Content Selection project is designed to facilitate user-based
zoning by encouraging Internet speakers to rate the content
891
of their speech using codes recognized by all screening programs. Id., at 838-839.
Despite this progress, the transformation of cyberspace is not complete. Although
gateway technology has been available on the World Wide Web for some time now, id.,
at 845; Shea v. Reno, 930 F. Supp. 916, 933-934 (SDNY 1996), it is not available to all
Web speakers, 929 F. Supp., at 845-846, and is just now becoming technologically
feasible for chat rooms and USE NET newsgroups, Brief for Appellants 3738. Gateway
technology is not ubiquitous in cyberspace, and because without it "there is no means of
age verification," cyberspace still remains largely unzoned-and unzoneable. 929 F.
Supp., at 846; Shea, supra, at 934. U serbased zoning is also in its infancy. For it to be
effective, (i) an agreed-upon code (or "tag") would have to exist; (ii) screening software
or browsers with screening capabilities would have to be able to recognize the "tag";
and (iii) those programs would have to be widely available-and widely used-by Internet
users. At present, none of these conditions is true. Screening software "is not in wide
use today" and "only a handful of browsers have screening capabilities." Shea, supra, at
945-946. There is, moreover, no agreedupon "tag" for those programs to recognize. 929
F. Supp., at 848; Shea, supra, at 945.
Although the prospects for the eventual zoning of the Internet appear promising, I agree
with the Court that we must evaluate the constitutionality of the CDA as it applies to the
Internet as it exists today. Ante, at 881. Given the present state of cyberspace, I agree
with the Court that the "display" provision cannot pass muster. Until gateway technology
is available throughout cyberspace, and it is not in 1997, a speaker cannot be
reasonably assured that the speech he displays will reach only adults because it is
impossible to confine speech to an "adult zone." Thus, the only way for a speaker to
avoid liability under the CDA is to refrain completely from using indecent speech. But
this
892
forced silence impinges on the First Amendment right of adults to make and obtain this
speech and, for all intents and purposes, "reduce[s] the adult population [on the
Internet] to reading only what is fit for children." Butler, 352 U. S., at 383. As a result, the
"display" provision cannot withstand scrutiny. Accord, Sable Communications, 492 U.
S., at 126131; Bolger v. Youngs Drug Products Corp., 463 U. S., at 73-75.
The "indecency transmission" and "specific person" provisions present a closer issue,
for they are not unconstitutional in all of their applications. As discussed above, the
"indecency transmission" provision makes it a crime to transmit knowingly an indecent
message to a person the sender knows is under 18 years of age. 47 U. S. C. §
223(a)(1)(B) (1994 ed., Supp. II). The "specific person" provision proscribes the same
conduct, although it does not as explicitly require the sender to know that the intended
recipient of his indecent message is a minor. § 223(d)(1)(A). The Government urges the
Court to construe the provision to impose such a knowledge requirement, see Brief for
Appellants 2527, and I would do so. See Edward J. DeBartolo Corp. v. Florida Gulf
Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988) ("[W]here an
otherwise acceptable construction of a statute would raise serious constitutional
problems, the Court will construe the statute to avoid such problems unless such
construction is plainly contrary to the intent of Congress").
So construed, both provisions are constitutional as applied to a conversation involving
only an adult and one or more minors-e. g., when an adult speaker sends an e-mail
knowing the addressee is a minor, or when an adult and minor converse by themselves
or with other minors in a chat room. In this context, these provisions are no different
from the law we sustained in Ginsberg. Restricting what the adult may say to the minors
in no way restricts the adult's ability to communicate with other adults. He is not
prevented from
893
speaking indecently to other adults in a chat room (because there are no other adults
participating in the conversation) and he remains free to send indecent e-mails to other
adults. The relevant universe contains only one adult, and the adult in that universe has
the power to refrain from using indecent speech and consequently to keep all such
speech within the room in an "adult" zone.
The analogy to Ginsberg breaks down, however, when more than one adult is a party to
the conversation. If a minor enters a chat room otherwise occupied by adults, the CDA
effectively requires the adults in the room to stop using indecent speech. If they did not,
they could be prosecuted under the "indecency transmission" and "specific person"
provisions for any indecent statements they make to the group, since they would be
transmitting an indecent message to specific persons, one of whom is a minor.
Accord, ante, at 876. The CDA is therefore akin to a law that makes it a crime for a
bookstore owner to sell pornographic magazines to anyone once a minor enters his
store. Even assuming such a law might be constitutional in the physical world as a
reasonable alternative to excluding minors completely from the store, the absence of
any means of excluding minors from chat rooms in cyberspace restricts the rights of
adults to engage in indecent speech in those rooms. The "indecency transmission" and
"specific person" provisions share this defect.
But these two provisions do not infringe on adults' speech in all situations. And as
discussed below, I do not find that the provisions are overbroad in the sense that they
restrict minors' access to a substantial amount of speech that minors have the right to
read and view. Accordingly, the CDA can be applied constitutionally in some situations.
Normally, this fact would require the Court to reject a direct facial challenge. United
States v. Salerno, 481 U. S. 739, 745 (1987) ("A facial challenge to a legislative Act
[succeeds only if] the challenger ... establish[es] that no set of circum-
894
Page 48 of 57
stances exists under which the Act would be valid"). Appellees' claim arises under the
First Amendment, however, and they argue that the CDA is facially invalid because it is
"substantially overbroad"-that is, it "sweeps too broadly ... [and] penaliz[es] a substantial
amount of speech that is constitutionally protected," Forsyth County v. Nationalist
Movement, 505 U. S. 123, 130 (1992). See Brief for Appellees American Library
Association et al. 48; Brief for Appellees American Civil Liberties Union et al. 39-41. I
agree with the Court that the provisions are overbroad in that they cover any and all
communications between adults and minors, regardless of how many adults might be
part of the audience to the communication.
This conclusion does not end the matter, however.
Where, as here, "the parties challenging the statute are those who desire to engage in
protected speech that the overbroad statute purports to punish, ... [t]he statute may
forthwith be declared invalid to the extent that it reaches too far, but otherwise left
intact." Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 504 (1985). There is no
question that Congress intended to prohibit certain communications between one adult
and one or more minors. See 47 U. S. C. § 223(a)(1)(B) (1994 ed., Supp. II) (punishing
"[w]hoever ... initiates the transmission of [any indecent communication] knowing that
the recipient of the communication is under 18 years of age"); § 223(d)(1)(A) (punishing
"[w]hoever ... send[s] to a specific person or persons under 18 years of age [a patently
offensive message]"). There is also no question that Congress would have enacted a
narrower version of these provisions had it known a broader version would be declared
unconstitutional. 47 U. S. C. § 608 ("If ... the application [of any provision of the CDA] to
any person or circumstance is held invalid, ... the application of such provision to other
persons or circumstances shall not be affected thereby"). I would therefore sustain the
"indecency transmission" and "specific person" provisions to the extent they
895
apply to the transmission of Internet communications where the party initiating the
communication knows that all of the recipients are minors.
II
Whether the CDA substantially interferes with the First Amendment rights of minors,
and thereby runs afoul of the second characteristic of valid zoning laws, presents a
closer question. In Ginsberg, the New York law we sustained prohibited the sale to
minors of magazines that were "harmful to minors." Under that law, a magazine was
"harmful to minors" only if it was obscene as to minors. 390 U. S., at 632-633. Noting
that obscene speech is not protected by the First Amendment, Roth v. United
States, 354 U. S. 476, 485 (1957), and that New York was constitutionally free to adjust
the definition of obscenity for minors, 390 U. S., at 638, the Court concluded that the law
did not "invad[e] the area of freedom of expression constitutionally secured to minors,"
id., at 637. New York therefore did not infringe upon the First Amendment rights of
minors. Cf. Erznoznik v. Jacksonville, 422 U. S. 205, 213 (1975) (striking down city
ordinance that banned nudity that was not "obscene even as to minors").
The Court neither "accept[s] nor reject[s]" the argument that the CDA is facially
overbroad because it substantially interferes with the First Amendment rights of
minors. Ante, at 878. I would reject it. Ginsberg established that minors may
constitutionally be denied access to material that is obscene as to minors.
As Ginsberg explained, material is obscene as to minors if it (i) is "patently offensive to
prevailing standards in the adult community as a whole with respect to what is suitable
... for minors"; (ii) appeals to the prurient interest of minors; and (iii) is "utterly without
redeeming social importance for minors." 390 U. S., at 633. Because the CDA denies
minors the right to obtain material that is "patently offensive"-even if it has some
redeeming value for minors and even if it does not appeal to their pruri-
896
ent interests-Congress' rejection of the Ginsberg "harmful to minors" standard means
that the CDA could ban some speech that is "indecent" (i. e., "patently offensive") but
that is not obscene as to minors.
I do not deny this possibility, but to prevail in a facial challenge, it is not enough for a
plaintiff to show "some" overbreadth. Our cases require a proof of "real" and
"substantial" overbreadth, Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973), and
appellees have not carried their burden in this case. In my view, the universe of speech
constitutionally protected as to minors but banned by the CDA-i. e., the universe of
material that is "patently offensive," but which nonetheless has some redeeming value
for minors or does not appeal to their prurient interest-is a very small one. Appellees cite
no examples of speech falling within this universe and do not attempt to explain why
that universe is substantial "in relation to the statute's plainly legitimate
sweep." Ibid. That the CDA might deny minors the right to obtain material that has some
"value," see ante, at 878, is largely beside the point. While discussions about prison
rape or nude art, see ibid., may have some redeeming educational value for adults, they
do not necessarily have any such value for minors, and under Ginsberg, minors only
have a First Amendment right to obtain patently offensive material that has "redeeming
social importance for minors," 390 U. S., at 633 (emphasis added). There is also no
evidence in the record to support the contention that "many e-mail transmissions from
an adult to a minor are conversations between family members," ante, at 865, n. 32,
and no support for the legal proposition that such speech is absolutely immune from
regulation. Accordingly, in my view, the CDA does not burden a substantial amount of
minors' constitutionally protected speech.
Thus, the constitutionality of the CDA as a zoning law hinges on the extent to which it
substantially interferes with the First Amendment rights of adults. Because the rights of
adults are infringed only by the "display" provision and by the "indecency transmission"
and "specific person" provisions as applied to communications involving more than one
adult, I would invalidate the CDA only to that extent. Insofar as the "indecency
transmission" and "specific person" provisions prohibit the use of indecent speech in
communications between an adult and one or more minors, however, they can and
should be sustained. The Court reaches a contrary conclusion, and from that holding I
respectfully dissent.
Page 49 of 57
Page 50 of 57
SYLLABUS
OCTOBER TERM, 2007
UNITED STATES V. WILLIAMS
SUPREME COURT OF THE UNITED STATES
UNITED STATES v. WILLIAMS
certiorari to the united states court of appeals for the eleventh circuit
No. 06–694. Argued October 30, 2007—Decided May 19, 2008
After this Court found facially overbroad a federal statutory provision criminalizing the
possession and distribution of material pandered as child pornography, regardless of
whether it actually was that, Ashcroft v. Free Speech Coalition, 535 U. S. 234, Congress
passed the pandering and solicitation provision at issue, 18 U. S. C. §2252A(a)(3)(B).
Respondent Williams pleaded guilty to this offense and others, but reserved the right to
challenge his pandering conviction’s constitutionality. The District Court rejected his
challenge, but the Eleventh Circuit reversed, finding the statute both overbroad under
the First Amendment and impermissibly vague under the Due Process Clause.
Held:
1. Section 2252A(a)(3)(B) is not overbroad under the First Amendment. Pp. 6–18.
(a) A statute is facially invalid if it prohibits a substantial amount of protected
speech. Section 2252A(a)(3)(B) generally prohibits offers to provide and requests to
obtain child pornography. It targets not the underlying material, but the collateral speech
introducing such material into the child-pornography distribution network. Its definition of
material or purported material that may not be pandered or solicited precisely tracks the
material held constitutionally proscribable in New York v. Ferber, 458 U. S. 747,
and Miller v. California, 413 U. S. 15: obscene material depicting (actual or virtual)
children engaged in sexually explicit conduct, and any other material depicting actual
children engaged in sexually explicit conduct. The statute’s important features
include: (1) a scienter requirement; (2) operative verbs that are reasonably read to
penalize speech that accompanies or seeks to induce a child pornography transfer from
one person to another; (3) a phrase—“in a manner that reflects the belief,” ibid.—that
has both the subjective component that the defendant must actually have held the
“belief” that the material or purported material was child pornography, and the objective
component that the statement or action must manifest that belief; (4) a phrase—“in a
manner … that is intended to cause another to believe,”ibid —that has only the
subjective element that the defendant must “intend” that the listener believe the material
to be child pornography; and (5) a “sexually explicit conduct” definition that is very
similar to that in the New York statute upheld in Ferber. Pp. 6–11.
(b) As thus construed, the statute does not criminalize a substantial amount of
protected expressive activity. Offers to engage in illegal transactions are categorically
excluded from First Amendment protection. E.g., Pittsburgh Press Co. v. Pittsburgh
Comm’n on Human Relations, 413 U. S. 376, 388. The Eleventh Circuit mistakenly
believed that this exclusion extended only to commercial offers to provide or receive
contraband. The exclusion’s rationale, however, is based not on the less privileged
status of commercial speech, but on the principle that offers to give or receive what it is
unlawful to possess have no social value and thus enjoy no First Amendment
protection. The constitutional defect in Free Speech Coalition’s pandering provision was
that it went beyond pandering to prohibit possessing material that could not otherwise
be proscribed. The Eleventh Circuit’s erroneous conclusion led it to apply strict scrutiny
to §2252A(a)(3)(B), lodging three fatal objections that lack merit. Pp. 11–18.
2. Section 2252A(a)(3)(B) is not impermissibly vague under the Due Process Clause.
A conviction fails to comport with due process if the statute under which it is obtained
fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so
standardless that it authorizes or encourages seriously discriminatory
enforcement. Hill v. Colorado, 530 U. S. 703, 732. In the First Amendment context
plaintiffs may argue that a statute is overbroad because it is unclear whether it regulates
a substantial amount of protected speech. Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U. S. 489, 494–495, and nn. 6 and 7. The Eleventh Circuit mistakenly
believed that “in a manner that reflects the belief” and “in a manner … that is intended to
cause another to believe” were vague and standardless phrases that left the public with
no objective measure of conformance. What renders a statute vague, however, is not
the possibility that it will sometimes be difficult to determine whether the incriminating
fact it establishes has been proved; but rather the indeterminacy of what that fact is.
See, e.g., Coates v. Cincinnati, 402 U. S. 611, 614. There is no such indeterminacy
here. The statute’s requirements are clear questions of fact. It may be difficult in some
cases to determine whether the requirements have been met, but courts and juries
every day pass upon the reasonable import of a defendant’s statements and upon
“knowledge, belief and intent.” American Communications Assn. v. Douds, 339 U. S.
382, 411. Pp. 18–21.
444 F. 3d 1286, reversed.
Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens,
Kennedy, Thomas, Breyer, and Alito, JJ., joined. Stevens, J., filed a concurring opinion,
in which Breyer, J., joined. Souter, J., filed a dissenting opinion, in which Ginsburg, J.,
joined.
Justice Scalia delivered the opinion of the Court.
Section 2252A(a)(3)(B) of Title 18, United States Code, criminalizes, in certain
specified circumstances, the pandering or solicitation of child pornography. This case
presents the question whether that statute is overbroad under the First Amendment or
impermissibly vague under the Due Process Clause of the Fifth Amendment.
I
A
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 We have long held that obscene speech—sexually explicit material that violates “(B) advertises, promotes, presents, distributes, or solicits through the mails, or in
fundamental notions of decency—is not protected by the First Amendment. interstate or foreign commerce by any means, including by computer, any material or
See Roth v. United States, 354 U. S. 476, 484–485 (1957). But to protect explicit purported material in a manner that reflects the belief, or that is intended to cause
material that has social value, we have limited the scope of the obscenity exception, another to believe, that the material or purported material is, or contains—
and have overturned convictions for the distribution of sexually graphic but nonobscene
material. See Miller v. California, 413 U. S. 15, 23–24 (1973); see also, “(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or
e.g., Jenkins v. Georgia, 418 U. S. 153, 161 (1974).
“(ii) a visual depiction of an actual minor engaging in sexually explicit conduct,
Over the last 25 years, we have confronted a related and overlapping category of
proscribable speech: child pornography. See Ashcroft v. Free Speech Coalition, 535 U.
S. 234 (2002); Osborne v. Ohio, 495 U. S. 103 (1990); New York v. Ferber, 458 U. S. . . . . .
747 (1982). This consists of sexually explicit visual portrayals that feature children. We
have held that a statute which proscribes the distribution of all child pornography, even “shall be punished as provided in subsection (b).” §2252A(a)(3)(B) (2000 ed., Supp. V).
material that does not qualify as obscenity, does not on its face violate the First
Amendment. See id., at 751–753, 756–764. Moreover, we have held that the Section 2256(2)(A) defines “sexually explicit conduct” as
government may criminalize the possession of child pornography, even though it may
not criminalize the mere possession of obscene material involving adults.
Compare Osborne, supra, at 111, with Stanley v. Georgia, 394 U. S. 557, 568 (1969). “actual or simulated—

The broad authority to proscribe child pornography is not, however, unlimited. Four “(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal,
Terms ago, we held facially overbroad two provisions of the federal Child Pornography whether between persons of the same or opposite sex;
Protection Act of 1996 (CPPA). Free Speech Coalition, 535 U. S., at 258. The first of
these banned the possession and distribution of “ ‘any visual depiction’ ” that “ ‘is, or “(ii) bestiality;
appears to be, of a minor engaging in sexually explicit conduct,’ ” even if it contained
only youthful-looking adult actors or virtual images of children generated by a
“(iii) masturbation;
computer. Id., at 239–241 (quoting 18 U. S. C. §2256(8)(B)). This was invalid, we
explained, because the child-protection rationale for speech restriction does not apply to
materials produced without children. See 535 U. S., at 249–251, 254. The second “(iv) sadistic or masochistic abuse; or
provision at issue in Free Speech Coalition criminalized the possession and distribution
of material that had been pandered as child pornography, regardless of whether it “(v) lascivious exhibition of the genitals or pubic area of any person.”
actually was that. See id., at 257 (citing 18 U. S. C. §2256(8)(D)). A person could thus
face prosecution for possessing unobjectionable material that someone else had
Violation of §2252A(a)(3)(B) incurs a minimum sentence of 5 years imprisonment and a
pandered. 535 U. S., at 258. We held that this prohibition, which did “more than prohibit
maximum of 20 years. 18 U. S. C. §2252A(b)(1).
pandering,” was also facially overbroad. Ibid.

After our decision in Free Speech Coalition, Congress went back to the drawing board
and produced legislation with the unlikely title of the Prosecutorial Remedies and Other
Tools to end the Exploitation of Children Today Act of 2003, 117 Stat. 650. We shall
refer to it as the Act. Section 503 of the Act amended 18 U. S. C. §2252A to add a new
pandering and solicitation provision, relevant portions of which now read as follows:
“(a) Any person who—
“(3) knowingly—
. . . . .
The Act’s express findings indicate that Congress was concerned that limiting the
child-pornography prohibition to material that could be proved to feature actual children,
as our decision in Free Speech Coalition required, would enable many child
pornographers to evade conviction. See §501(9), (10), 117 Stat. 677. The emergence of
new technology and the repeated retransmission of picture files over the Internet could
make it nearly impossible to prove that a particular image was produced using real
children—even though “[t]here is no substantial evidence that any of the child
pornography images being trafficked today were made other than by the abuse of real
children,” virtual imaging being prohibitively expensive. §501(5), (7), (8), (11), id., at
676–678; see also Dept. of Justice, Office of Community Oriented Policing Services, R.
Wortley & S. Smallbone, Child Pornography on the Internet 9 (May 2006), on line at
hhtp://www.cops. usdoj.gov/mime/open.pdf?Item=1729 (hereinafter Child Pornography
on the Internet) (as visited Jan. 7, 2008, and available in Clerk of Court’s case file).

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B (1989); Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973). Invalidation for overbreadth
The following facts appear in the opinion of the Eleventh Circuit, 444 F. 3d 1286, 1288
(2006). On April 26, 2004, respondent Michael Williams, using a sexually explicit screen
name, signed in to a public Internet chat room. A Secret Service agent had also signed
in to the chat room under the moniker “Lisa n Miami.” The agent noticed that Williams
had posted a message that read: “Dad of toddler has ‘good’ pics of her an [sic] me for
swap of your toddler pics, or live cam.” The agent struck up a conversation with
Williams, leading to an electronic exchange of nonpornographic pictures of children.
(The agent’s picture was in fact a doctored photograph of an adult.) Soon thereafter,
Williams messaged that he had photographs of men molesting his 4-year-old daughter.
Suspicious that “Lisa n Miami” was a law-enforcement agent, before proceeding further
Williams demanded that the agent produce additional pictures. When he did not,
Williams posted the following public message in the chat room: “HERE ROOM; I CAN
PUT UPLINK CUZ IM FOR REAL—SHE CANT.” Appended to this declaration was a
hyperlink that, when clicked, led to seven pictures of actual children, aged
approximately 5 to 15, engaging in sexually explicit conduct and displaying their
genitals. The Secret Service then obtained a search warrant for Williams’s home, where
agents seized two hard drives containing at least 22 images of real children engaged in
sexually explicit conduct, some of it sadomasochistic.
Williams was charged with one count of pandering child pornography under
§2252A(a)(3)(B) and one count of possessing child pornography under
§2252A(a)(5)(B). He pleaded guilty to both counts but reserved the right to challenge
the constitutionality of the pandering conviction. The District Court rejected his
challenge, and sentenced him to concurrent 60-month sentences on the two counts. No.
04–20299–CR–MIDDLEBROOKS (SD Fla., Aug. 20, 2004), App. B to Pet. for Cert.
46a–69a. The United States Court of Appeals for the Eleventh Circuit reversed the
pandering conviction, holding that the statute was both overbroad and impermissibly
vague. 444 F. 3d, at 1308–1309.[Footnote 1]
We granted certiorari. 549 U. S. ___ (2007).
II
A requirement. Here “knowingly” introduces the challenged provision itself, making clear
According to our First Amendment overbreadth doctrine, a statute is facially invalid if it
prohibits a substantial amount of protected speech. The doctrine seeks to strike a
balance between competing social costs. Virginia v. Hicks, 539 U. S. 113, 119–120
(2003). On the one hand, the threat of enforcement of an overbroad law deters people
from engaging in constitutionally protected speech, inhibiting the free exchange of
ideas. On the other hand, invalidating a law that in some of its applications is perfectly
constitutional—particularly a law directed at conduct so antisocial that it has been made
criminal—has obvious harmful effects. In order to maintain an appropriate balance, we
have vigorously enforced the requirement that a statute’s overbreadth be substantial,
not only in an absolute sense, but also relative to the statute’s plainly legitimate sweep.
See Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 485
is “ ‘ “strong medicine” ’ ” that is not to be “casually employed.” Los Angeles Police
Dept. v. United Reporting Publishing Corp., 528 U. S. 32, 39 (1999) (quoting Ferber,
458 U. S., at 769).
The first step in overbreadth analysis is to construe the challenged statute; it is
impossible to determine whether a statute reaches too far without first knowing what the
statute covers. Generally speaking, §2252A(a)(3)(B) prohibits offers to provide and
requests to obtain child pornography. The statute does not require the actual existence
of child pornography. In this respect, it differs from the statutes in Ferber, Osborne,
and Free Speech Coalition, which prohibited the possession or distribution of child
pornography. Rather than targeting the underlying material, this statute bans the
collateral speech that introduces such material into the child-pornography distribution
network. Thus, an Internet user who solicits child pornography from an undercover
agent violates the statute, even if the officer possesses no child pornography. Likewise,
a person who advertises virtual child pornography as de- picting actual children also
falls within the reach of the statute.
The statute’s definition of the material or purported material that may not be pandered
or solicited precisely tracks the material held constitutionally proscribable
in Ferber and Miller: obscene material depicting (actual or virtual) children engaged in
sexually explicit conduct, and any other material depicting actual children engaged in
sexually explicit conduct. See Free Speech Coalition, 535 U. S., at 245–246 (stating
that the First Amendment does not protect obscenity or pornography produced with
actual children); id., at 256 (holding invalid the challenged provision of the CPPA
because it “cover[ed] materials beyond the categories recognized in Ferber and Miller”).
A number of features of the statute are important to our analysis:
First, the statute includes a scienter requirement. The first word of §2252A(a)(3)—
“knowingly”—applies to both of the immediately following subdivisions, both the
previously existing §2252A(a)(3)(A)[Footnote 2] and the new §2252A(a) (3)(B) at issue
here. We think that the best reading of the term in context is that it applies to every
element of the two provisions. This is not a case where grammar or structure enables
the challenged provision or some of its parts to be read apart from the “knowingly”
that it applies to that provision in its entirety; and there is no grammatical barrier to
reading it that way.
Second, the statute’s string of operative verbs—“advertises, promotes, presents,
distributes, or solicits”—is reasonably read to have a transactional connotation. That is
to say, the statute penalizes speech that accompanies or seeks to induce a transfer of
child pornography—via reproduction or physical delivery—from one person to another.
For three of the verbs, this is obvious: advertising, distributing, and soliciting are steps
taken in the course of an actual or proposed transfer of a product, typically but not
exclusively in a commercial market. When taken in isolation, the two remaining verbs—
“promotes” and “presents”—are susceptible of multiple and wide-ranging meanings. In
context, however, those meanings are narrowed by the commonsense canon
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of noscitur a sociis—which counsels that a word is given more precise content by the
neighboring words with which it is associated. See Jarecki v. G. D. Searle & Co., 367 U.
S. 303, 307 (1961); 2A N. Singer & J. Singer, Sutherland Statutes and Statutory
Construction §47.16 (7th ed. 2007). “Promotes,” in a list that includes “solicits,”
“distributes,” and “advertises,” is most sensibly read to mean the act of recommending
purported child pornography to another person for his acquisition. See American
Heritage Dictionary 1403 (4th ed. 2000) (def. 4: “To attempt to sell or popularize by
advertising or publicity”). Similarly, “presents,” in the context of the other verbs with
which it is associated, means showing or offering the child pornography to another
person with a view to his acquisition. See id., at 1388 (def. 3a: “To make a gift or award
of”). (The envisioned acquisition, of course, could be an electronic one, for example
reproduction of the image on the recipient’s computer screen.)
To be clear, our conclusion that all the words in this list relate to transactions is not to
say that they relate to commercial transactions. One could certainly “distribute” child
pornography without expecting payment in return. Indeed, in much Internet file sharing
of child pornography each participant makes his files available for free to other
participants—as Williams did in this case. “Distribution may involve sophisticated
pedophile rings or organized crime groups that operate for profit, but in many cases, is
carried out by individual amateurs who seek no financial reward.” Child Pornography on
the Internet 9. To run afoul of the statute, the speech need only accompany or seek to
induce the transfer of child pornography from one person to another.
Third, the phrase “in a manner that reflects the belief” includes both subjective and
objective components. “[A] manner that reflects the belief” is quite different from “a
manner that would give one cause to believe.” The first formulation suggests that the
defendant must actually have held the subjective “belief” that the material or purported
material was child pornography. Thus, a misdescription that leads the listener to believe
the defendant is offering child pornography, when the defendant in fact does not believe
the material is child pornography, does not violate this prong of the statute. (It may,
however, violate the “manner … that is intended to cause another to believe” prong if
the misdescription is intentional.) There is also an objective component to the phrase
“manner that reflects the belief.” The statement or action must objectively manifest a
belief that the material is child pornography; a mere belief, without an accompanying
statement or action that would lead a reasonable person to understand that the
defendant holds that belief, is insufficient.
Fourth, the other key phrase, “in a manner . . . that is intended to cause another to
believe,” contains only a subjective element: The defendant must “intend” that the
listener believe the material to be child pornography, and must select a manner of
“advertising, promoting, presenting, distributing, or soliciting” the material that he thinks
will engender that belief—whether or not a reasonable person would think the same. (Of
course in the ordinary case the proof of the defendant’s intent will be the fact that, as an
objective matter, the manner of “advertis- ing, promoting, presenting, distributing, or
soliciting” plainly sought to convey that the material was child pornography.)
Fifth, the definition of “sexually explicit conduct” (the visual depiction of which,
engaged in by an actual minor, is covered by the Act’s pandering and soliciting
prohibition even when it is not obscene) is very similar to the definition of “sexual
conduct” in the New York statute we upheld against an overbreadth challenge in Ferber.
That defined “sexual conduct” as “ ‘actual or simulated sexual intercourse, deviate
sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd
exhibition of the genitals.’ ” 458 U. S., at 751. Congress used essentially the same
constitutionally approved definition in the present Act. If anything, the fact that the
defined term here is “sexually explicit conduct,” rather than (as in Ferber) merely “sexual
conduct,” renders the definition more immune from facial constitutional attack.
“[S]imulated sexual intercourse” (a phrase found in the Ferber definition as well) is even
less susceptible here of application to the sorts of sex scenes found in R-rated
movies—which suggest that intercourse is taking place without explicitly depicting it,
and without causing viewers to believe that the actors are actually engaging in
intercourse. “Sexually explicit conduct” connotes actual depiction of the sex act rather
than merely the suggestion that it is occurring. And “simulated” sexual intercourse is not
sexual intercourse that is merely suggested, but rather sexual intercourse that is
explicitly portrayed, even though (through camera tricks or otherwise) it may not actually
have occurred. The portrayal must cause a reasonable viewer to believe that the actors
actually engaged in that conduct on camera. Critically, unlike in Free Speech Coalition,
§2252A(a)(3)(B)(ii)’s requirement of a “visual depiction of an actual minor” makes clear
that, although the sexual intercourse may be simulated, it must involve actual children
(unless it is obscene). This change eliminates any possibility that virtual child
pornography or sex between youthful-looking adult actors might be covered by the term
“simulated sexual intercourse.”
B
We now turn to whether the statute, as we have construed it, criminalizes a
substantial amount of protected expressive activity.
Offers to engage in illegal transactions are categorically excluded from First
Amendment protection. Pittsburgh Press Co. v. Pittsburgh Comm’n on Human
Relations, 413 U. S. 376, 388 (1973); Giboney v. Empire Storage & Ice Co., 336 U. S.
490, 498 (1949). One would think that this principle resolves the present case, since the
statute criminalizes only offers to provide or requests to obtain contraband—child
obscenity and child pornography involving actual children, both of which are proscribed,
see 18 U. S. C. §1466A(a), §2252A(a)(5)(B) (2000 ed., Supp. V), and the proscription of
which is constitutional, see Free Speech Coalition, 535 U. S., at 245–246, 256. The
Eleventh Circuit, however, believed that the exclusion of First Amendment protection
extended only to commercial offers to provide or receive contraband: “Because [the
statute] is not limited to commercial speech but extends also to non-commercial
promotion, presentation, distribution, and solicitation, we must subject the content-
based restriction of the PROTECT Act pandering provision to strict scrutiny … .” 444
F. 3d, at 1298.
This mistakes the rationale for the categorical exclusion. It is based not on the less
privileged First Amendment status of commercial speech, see Central Hudson Gas &
Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557, 562–563 (1980), but on the
principle that offers to give or receive what it is unlawful to possess have no social value
and thus, like obscenity, enjoy no First Amendment protection. See Pittsburgh Press,
supra, at 387–389.[Footnote 3] Many long established criminal proscriptions—such as
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laws against conspiracy, incitement, and solicitation—criminalize speech (commercial or
not) that is intended to induce or commence illegal activities. See, e.g., ALI, Model
Penal Code §5.02(1) (1985) (solicitation to commit a crime); §5.03(1)(a) (conspiracy to
commit a crime). Offers to provide or requests to obtain unlawful material, whether as
part of a commercial exchange or not, are similarly undeserving of First Amendment
protection. It would be an odd constitutional principle that permitted the government to
prohibit offers to sell illegal drugs, but not offers to give them away for free.
To be sure, there remains an important distinction between a proposal to engage in
illegal activity and the abstract advocacy of illegality. See Brandenburg v. Ohio, 395 U.
S. 444, 447–448 (1969) (per curiam); see also NAACP v. Claiborne Hardware Co., 458
U. S. 886, 928–929 (1982). The Act before us does not prohibit advocacy of child
pornography, but only offers to provide or requests to obtain it. There is no doubt that
this prohibition falls well within constitutional bounds. The constitutional defect we found
in the pandering provision at issue in Free Speech Coalition was that it
went beyondpandering to prohibit possession of material that could not otherwise be
proscribed. 535 U. S., at 258.
In sum, we hold that offers to provide or requests to obtain child pornography are
categorically excluded from the First Amendment. Since the Eleventh Circuit
erroneously concluded otherwise, it applied strict scrutiny to §2252A(a)(3)(B), lodging
three fatal objections. We address these objections because they could be recast as
arguments that Congress has gone beyond the categorical exception.
The Eleventh Circuit believed it a constitutional difficulty that no child pornography
need exist to trigger the statute. In its view, the fact that the statute could punish a
“braggart, exaggerator, or outright liar” rendered it unconstitutional. 444 F. 3d, at 1298.
That seems to us a strange constitutional calculus. Although we have held that the
government can ban both fraudulent offers, see, e.g., Illinois ex rel.
Madigan v. Telemarketing Associates, Inc., 538 U. S. 600, 611–612 (2003), and offers
to provide illegal products, the Eleventh Circuit would forbid the government from
punishing fraudulent offers to provide illegal products. We see no logic in that position; if
anything, such statements are doubly excluded from the First Amendment.
The Eleventh Circuit held that under Brandenburg, the “non-commercial, non-inciteful
promotion of illegal child pornography” is protected, and §2252A(a)(3)(B) therefore
overreaches by criminalizing the promotion of child pornography. 444 F. 3d, at 1298. As
we have discussed earlier, however, the term “promotes” does not refer to abstract
advocacy, such as the statement “I believe that child pornography should be legal” or
even “I encourage you to obtain child pornography.” It refers to the recommendation of
a particular piece of purported child pornography with the intent of initiating a transfer.
The Eleventh Circuit found “particularly objectionable” the fact that the “reflects the
belief” prong of the statute could ensnare a person who mistakenly believes that
material is child pornography. Ibid. This objection has two conceptually distinct parts.
First, the Eleventh Circuit thought that it would be unconstitutional to punish someone
for mistakenly distributing virtual child pornography as real child pornography. We
disagree. Offers to deal in illegal products or otherwise engage in illegal activity do not
acquire First Amendment protection when the offeror is mistaken about the factual
predicate of his offer. The pandering and solicitation made unlawful by the Act are sorts
of inchoate crimes—acts looking toward the commission of another crime, the delivery
of child pornography. As with other inchoate crimes—attempt and conspiracy, for
example—impossibility of completing the crime because the facts were not as the
defendant believed is not a defense. “All courts are in agreement that what is usually
referred to as ‘factual impossibility’ is no defense to a charge of attempt.” 2 W. LaFave,
Substantive Criminal Law §11.5(a)(2) (2d ed. 2003). (The author gives as an example
“the intended sale of an illegal drug [that] actually involved a different
substance.” Ibid.) See also United States v. Hamrick, 43 F. 3d 877, 885 (CA4 1995) (en
banc) (holding that impossibility is no defense to attempt and citing the holdings of four
other Circuits); ALI, Model Penal Code §5.01, Comment (in attempt prosecutions “the
defendant’s conduct should be measured according to the circumstances as he
believes them to be, rather than the circumstances as they may have existed in fact”).
Under this heading the Eleventh Circuit also thought that the statute could apply to
someone who subjectively believes that an innocuous picture of a child is “lascivious.”
(Clause (v) of the definition of “sexually explicit conduct” is “lascivious exhibition of the
genitals or pubic area of any person.”) That is not so. The defendant must believe that
the picture contains certain material, and that material in fact (and not merely in his
estimation) must meet the statutory definition. Where the material at issue is a harmless
picture of a child in a bathtub and the defendant, knowing that material, erroneously
believes that it constitutes a “lascivious display of the genitals,” the statute has no
application.
Williams and amici raise other objections, which demonstrate nothing so forcefully as
the tendency of our overbreadth doctrine to summon forth an endless stream of fanciful
hypotheticals. Williams argues, for example, that a person who offers nonpornographic
photographs of young girls to a pedophile could be punished under the statute if the
pedophile secretly expects that the pictures will contain child pornography. Brief for
Respondent 19–20. That hypothetical does not implicate the statute, because the
offeror does not hold the belief or intend the recipient to believe that the material is child
pornography.
Amici contend that some advertisements for mainstream Hollywood movies that
depict underage characters having sex violate the statute. Brief for Free Speech
Coalition et al. as Amici Curiae 9–18. We think it implausible that a reputable distributor
of Hollywood movies, such as Amazon.com, believes that one of these films
contains actual children engaging in actual or simulated sex on camera; and even more
implausible that Amazon.com would intend to make its customers believe such a thing.
The average person understands that sex scenes in mainstream movies use nonchild
actors, depict sexual activity in a way that would not rise to the explicit level necessary
under the statute, or, in most cases, both.
There was raised at oral argument the question whether turning child pornography
over to the police might not count as “present[ing]” the material. See Tr. of Oral Arg. 9–
11. An interpretation of “presents” that would include turning material over to the
authorities would of course be self-defeating in a statute that looks to the prosecution of
people who deal in child pornography. And it would effectively nullify §2252A(d), which
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provides an affirmative defense to the possession ban if a defendant promptly delivers
child pornography to a law-enforcement agency. (The possession offense would simply
be replaced by a pandering offense for delivering the material to law-enforcement
officers.) In any event, the verb “present”—along with “distribute” and “advertise,” as
well as “give,” “lend,” “deliver,” and “transfer”—was used in the definition of “promote”
in Ferber. See 458 U. S., at 751 (quoting N. Y. Penal Law Ann. §263.15 (McKinney
1980)). Despite that inclusion, we had no difficulty concluding that the New York statute
survived facial challenge. And in the period since Ferber, despite similar statutory
definitions in other state statutes, see, e.g., Alaska Stat. §11.61.125(d) (2006), Del.
Code Ann., Title 11, §1109(5) (2007), we are aware of no prosecution for giving child
pornography to the police. We can hardly say, therefore, that there is a “realistic danger”
that §2252A(a)(3)(B) will deter such activity. New York State Club Assn., Inc. v. City of
New York, 487 U. S. 1, 11 (1988) (citing Thornhill v. Alabama, 310 U. S. 88, 97–98
(1940)).
It was also suggested at oral argument that the statute might cover documentary
footage of atrocities being committed in foreign countries, such as soldiers raping young
children. See Tr. of Oral Arg. 5-7. Perhaps so, if the material rises to the high level of
explicitness that we have held is required. That sort of documentary footage could of
course be the subject of an as-applied challenge. The courts presumably would weigh
the educational interest in the dissemination of information about the atrocities against
the government’s interest in preventing the distribution of materials that constitute “a
permanent record” of the children’s degradation whose dissemination increases “the
harm to the child.” Ferber, 458 U. S., at 759. Assuming that the constitutional balance
would have to be struck in favor of the documentary, the existence of that exception
would not establish that the statute is substantially overbroad. The “mere fact that one
can conceive of some impermissible applications of a statute is not sufficient to render it
susceptible to an overbreadth challenge.”Members of City Council of Los
Angeles v. Taxpayers for Vincent, 466 U. S. 789, 800 (1984). In the vast majority of its
applications, this statute raises no constitutional problems whatever.
Finally, the dissent accuses us of silently overruling our prior decisions
in Ferber and Free Speech Coalition. See post, at 12. According to the dissent,
Congress has made an end-run around the First Amendment’s protection of virtual child
pornography by prohibiting proposals to transact in such images rather than prohibiting
the images themselves. But an offer to provide or request to receive virtual child
pornography is not prohibited by the statute. A crime is committed only when the
speaker believes or intends the listener to believe that the subject of the proposed
transaction depicts realchildren. It is simply not true that this means “a protected
category of expression [will] inevitably be suppressed,” post, at 13. Simulated child
pornography will be as available as ever, so long as it is offered and sought as such,
and not as real child pornography. The dissent would require an exception from the
statute’s prohibition when, unbeknownst to one or both of the parties to the proposal,
the completed transaction would not have been unlawful because it is (we have said)
protected by the First Amendment. We fail to see what First Amendment interest would
be served by drawing a distinction between two defendants who attempt to acquire
contraband, one of whom happens to be mistaken about the contraband nature of what
he would acquire. Is Congress forbidden from punishing those who attempt to acquire
what they believe to be national-security documents, but which are actually fakes? To
ask is to answer. There is no First Amendment exception from the general principle of
criminal law that a person attempting to commit a crime need not be exonerated
because he has a mistaken view of the facts.
III
As an alternative ground for facial invalidation, the Eleventh Circuit held that
§2252A(a)(3)(B) is void for vagueness. Vagueness doctrine is an outgrowth not of the
First Amendment, but of the Due Process Clause of the Fifth Amendment. A conviction
fails to comport with due process if the statute under which it is obtained fails to provide
a person of ordinary intelligence fair notice of what is prohibited, or is so standardless
that it authorizes or encourages seriously discriminatory
enforcement. Hill v. Colorado, 530 U. S. 703, 732 (2000); see also Grayned v. City of
Rockford, 408 U. S. 104, 108–109 (1972). Although ordinarily “[a] plaintiff who engages
in some conduct that is clearly proscribed cannot complain of the vagueness of the law
as applied to the conduct of others,” we have relaxed that requirement in the First
Amendment context, permitting plaintiffs to argue that a statute is overbroad because it
is unclear whether it regulates a substantial amount of protected speech. Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 494–495, and nn. 6 and 7
(1982); see also Reno v. American Civil Liberties Union, 521 U. S. 844, 870–874
(1997). But “perfect clarity and precise guidance have never been required even of
regulations that restrict expressive activity.” Ward v. Rock Against Racism, 491 U. S.
781, 794 (1989).
The Eleventh Circuit believed that the phrases “ ‘in a manner that reflects the belief’ ”
and “ ‘in a manner … that is intended to cause another to believe’ ” are “so vague and
standardless as to what may not be said that the public is left with no objective measure
to which behavior can be conformed.” 444 F. 3d, at 1306. The court gave two examples.
First, an email claiming to contain photograph attachments and including a message
that says “ ‘little Janie in the bath—hubba, hubba!’ ” Ibid. According to the Eleventh
Circuit, given that the statute does not require the actual existence of illegal material,
the Government would have “virtually unbounded discretion” to deem such a statement
in violation of the “ ‘reflects the belief’ ” prong. Ibid. The court’s second example was an
e-mail entitled “ ‘Good pics of kids in bed’ ” with a photograph attachment of toddlers in
pajamas asleep in their beds. Ibid. The court described three hypothetical senders: a
proud grandparent, a “chronic forwarder of cute photos with racy tongue-in-cheek
subject lines,” and a child molester who seeks to trade the photographs for more
graphic material. Id., at 1306–1307. According to the Eleventh Circuit, because the
“manner” in which the photographs are sent is the same in each case, and because the
identity of the sender and the content of the photographs are irrelevant under the
statute, all three senders could arguably be prosecuted for pandering. Id., at 1307.
We think that neither of these hypotheticals, without further facts, would enable a
reasonable juror to find, beyond a reasonable doubt, that the speaker believed and
spoke in a manner that reflected the belief, or spoke in a manner intended to cause
another to believe, that the pictures displayed actual children engaged in “sexually
explicit conduct” as defined in the Act. The prosecutions would be thrown out at the
threshold.
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 But the Eleventh Circuit’s error is more fundamental than merely its selection of
unproblematic hypotheticals. Its basic mistake lies in the belief that the mere fact that
close cases can be envisioned renders a statute vague. That is not so. Close cases can
be imagined under virtually any statute. The problem that poses is addressed, not by
the doctrine of vagueness, but by the requirement of proof beyond a reasonable doubt.
See In re Winship, 397 U. S. 358, 363 (1970).

What renders a statute vague is not the possibility that it will sometimes be difficult to
determine whether the incriminating fact it establishes has been proved; but rather the
indeterminacy of precisely what that fact is. Thus, we have struck down statutes that
tied criminal culpability to whether the defendant’s conduct was “annoying” or
“indecent”—wholly subjective judgments without statutory definitions, narrowing context,
or settled legal meanings. See Coates v. Cincinnati, 402 U. S. 611, 614
(1971); Reno, supra, at 870–871, and n. 35.

There is no such indeterminacy here. The statute requires that the defendant hold,
and make a statement that reflects, the belief that the material is child pornography; or
that he communicate in a manner intended to cause another so to believe. Those are
clear questions of fact. Whether someone held a belief or had an intent is a true-or-false
determination, not a subjective judgment such as whether conduct is “annoying” or
“indecent.” Similarly true or false is the determination whether a particular formulation
reflects a belief that material or purported material is child pornography. To be sure, it
may be difficult in some cases to determine whether these clear requirements have
been met. “But courts and juries every day pass upon knowledge, belief and intent—the
state of men’s minds—having before them no more than evidence of their words and
conduct, from which, in ordinary human experience, mental condition may be
inferred.” American Communications Assn. v. Douds, 339 U. S. 382, 411 (1950) (citing
2 J. Wigmore, Evidence §§244, 256 et seq. (3d ed. 1940)). And they similarly pass
every day upon the reasonable import of a defendant’s statements—whether, for
example, they fairly convey a false representation, see, e.g., 18 U. S. C. §1621
(criminalizing perjury), or a threat of physical injury, see, e.g., §115(a)(1) (criminalizing
threats to assault federal officials). Thus, the Eleventh Circuit’s contention that
§2252A(a)(3)(B) gives law enforcement officials “virtually unfettered discretion” has no
merit. No more here than in the case of laws against fraud, conspiracy, or solicitation.

* * *

Child pornography harms and debases the most defenseless of our citizens. Both the
State and Federal Governments have sought to suppress it for many years, only to find
it proliferating through the new medium of the Internet. This Court held unconstitutional
Congress’s previous attempt to meet this new threat, and Congress responded with a
carefully crafted attempt to eliminate the First Amendment problems we identified. As
far as the provision at issue in this case is concerned, that effort was successful.

The judgment of the Eleventh Circuit is reversed.

It is so ordered.

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