OPINION OF THE COURT ASHCROFT V. AMERICAN CIVIL LIBERTIES UNION 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-218 JOHN D. ASHCROFT, ATTORNEY GENERAL, PETITIONER v. AMERICAN CIVIL LIBERTIES UNION et al.

															on writ of certiorari to the united states court of
appeals for the third circuit

															[June 29, 2004]

															   Justice Kennedy delivered the
opinion of the Court.

															   This case presents a challenge to
a statute enacted by Congress to protect minors from exposure to
sexually explicit materials on the Internet, the Child Online
Protection Act (COPA). 112 Stat. 2681–736, codified at 47 U.
S. C. §231. We must decide whether the Court of Appeals was
correct to affirm a ruling by the District Court that enforcement
of COPA should be enjoined because the statute likely violates the
First Amendment.

															   In enacting COPA, Congress gave consideration
to our earlier decisions on this subject, in particular the
decision in Reno v. American Civil Liberties
Union , 521 U. S. 844 (1997). For that reason,
“the Judiciary must proceed with caution and . . . with care before
invalidating the Act.” Ashcroft v. American Civil
Liberties Union , 535 U. S. 564 , 592
( Ashcroft I ) (Kennedy, J., concurring in judgment). The
imperative of according respect to the Congress, however, does not
permit us to depart from well-established First Amendment
principles. Instead, we must hold the Government to its
constitutional burden of proof.

															   Content-based prohibitions, enforced by severe
criminal penalties, have the constant potential to be a repressive
force in the lives and thoughts of a free people. To guard against
that threat the Constitution demands that content-based
restrictions on speech be presumed invalid, R. A. V. v. St. Paul , 505 U. S. 377 , 382
(1992), and that the Government bear the burden of showing their
constitutionality. United States v. Playboy
Entertainment Group, Inc. , 529 U. S. 803 , 817
(2000). This is true even when Congress twice has attempted to find
a constitutional means to restrict, and punish, the speech in
question.

															   This case comes to the Court on certiorari
review of an appeal from the decision of the District Court
granting a preliminary injunction. The Court of Appeals reviewed
the decision of the District Court for abuse of discretion. Under
that standard, the Court of Appeals was correct to conclude that
the District Court did not abuse its discretion in granting the
preliminary injunction. The Government has failed, at this point,
to rebut the plaintiffs’ contention that there are plausible less
restrictive alternatives to the statute. Substantial practical
considerations, furthermore, argue in favor of upholding the
injunction and allowing the case to proceed to trial. For those
reasons, we affirm the decision of the Court of Appeals upholding
the preliminary injunction, and we remand the case so that it may
be returned to the District Court for trial on the issues
presented.

															I

															A

															   COPA is the second attempt by
Congress to make the Internet safe for minors by criminalizing
certain Internet speech.    The first attempt was
the Communications Decency Act of 1996, Pub. L. 104–104, §502, 110
Stat. 133, 47 U. S. C. §223 (1994 ed., Supp. II). The Court
held the CDA unconstitutional because it was not narrowly tailored
to serve a compelling governmental interest and because less
restrictive alternatives were available. Reno , supra .

															   In response to the Court’s
decision in Reno , Congress passed COPA. COPA imposes
criminal penalties of a $50,000 fine and six months in prison for
the knowing posting, for “commercial purposes,” of World Wide Web
content that is “harmful to minors.” §231(a)(1). Material that is
"harmful to minors" is defined as:

															“any communication, picture, image, graphic image
file, article, recording, writing, or other matter of any kind that
is obscene or that—

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

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

															“(C) taken as a whole, lacks serious literary, artistic,
political, or scientific value for minors.” §231(e)(6).

															   “Minors” are defined as “any
person under 17 years of age.” §231(e)(7). A person acts for
“commercial purposes only if such person is engaged in the business
of making such communications.” “Engaged in the business,” in
turn,

															“means that the person who makes a communication,
or offers to make a communication, by means of the World Wide Web,
that includes any material that is harmful to minors, devotes time,
attention, or labor to such activities, as a regular course of such
person’s trade or business, with the objective of earning a profit
as a result of such activities (although it is not necessary that
the person make a profit or that the making or offering to make
such communications be the person’s sole or principal business or
source of income).” §231(e)(2).

															   While the statute labels all
speech that falls within these definitions as criminal speech, it
also provides an affirmative defense to those who employ specified
means to prevent minors from gaining access to the prohibited
materials on their Web site. A person may escape conviction under
the statute by demonstrating that he

															“has restricted access by minors to material that
is harmful to minors—

															“(A) by requiring use of a credit card, debit account, adult
access code, or adult personal identification number;

															“(B) by accepting a digital certificate that verifies age,
or

															“(C) by any other reasonable measures that are feasible under
available technology.” §231(c)(1).

															   Since the passage of COPA,
Congress has enacted additional laws regulating the Internet in an
attempt to protect minors. For example, it has enacted a
prohibition on misleading Internet domain names, 18 U.
S. C. A. §2252B (Supp. 2004), in order to prevent Web
site owners from disguising pornographic Web sites in a way likely
to cause uninterested persons to visit them. See Brief for
Petitioner 7 (giving, as an example, the Web site
“whitehouse.com”). It has also passed a statute creating a “Dot
Kids” second-level Internet domain, the content of which is
restricted to that which is fit for minors under the age of 13. 47
U. S. C. A. §941 (Supp. 2004).

															B

															   Respondents, Internet content
providers and others concerned with protecting the freedom of
speech, filed suit in the United States District Court for the
Eastern District of Pennsylvania. They sought a preliminary
injunction against enforcement of the statute. After considering
testimony from witnesses presented by both respondents and the
Government, the District Court issued an order granting the
preliminary injunction. The court first noted that the statute
would place a burden on some protected speech. American Civil
Liberties Union v. Reno , 31 F. Supp. 2d 473, 495
(1999). The court then concluded that respondents were likely to
prevail on their argument that there were less restrictive
alternatives to the statute: “On the record to date, it is not
apparent … that [petitioner] can meet its burden to prove that COPA
is the least restrictive means available to achieve the goal of
restricting the access of minors” to harmful material. Id. , at 497. In particular, it noted that “[t]he record
before the Court reveals that blocking or filtering technology may
be at least as successful as COPA would be in restricting minors’
access to harmful material online without imposing the burden on
constitutionally protected speech that COPA imposes on adult users
or Web site operators.” Ibid .

															   The Government appealed the
District Court’s decision to the United States Court of Appeals for
the Third Circuit. The Court of Appeals affirmed the preliminary
injunction, but on a different ground. 217 F. 3d 162, 166
(2000). The court concluded that the “community standards” language
in COPA by itself rendered the statute unconstitutionally
overbroad. Id. , at 166. We granted certiorari and
reversed, holding that the community-standards language did not,
standing alone, make the statute unconstitutionally overbroad. Ashcroft I , 535 U. S., at 585. We emphasized, however,
that our decision was limited to that narrow issue. Ibid .
We remanded the case to the Court of Appeals to reconsider whether
the District Court had been correct to grant the preliminary
injunction. On remand, the Court of Appeals again affirmed the
District Court. 322 F. 3d 240 (2003). The Court of Appeals
concluded that the statute was not narrowly tailored to serve a
compelling Government interest, was overbroad, and was not the
least restrictive means available for the Government to serve the
interest of preventing minors from using the Internet to gain
access to materials that are harmful to them. Id. , at
266–271. The Government once again sought review from this Court,
and we again granted certiorari. 540 U. S. 944 (2003).

															II

															A

															   “This Court, like other appellate
courts, has always applied the abuse of discretion standard on the
review of a preliminary injunction.” Walters v .
National Assn. of Radiation Survivors , 473 U. S. 305 , 336
(1985) (O’Connor, J., concurring) (internal quotation marks
omitted). “The grant of appellate jurisdiction under [28 U.
S. C.] §1252 does not give the Court license to depart from
established standards of appellate review.” Ibid. If the
underlying constitutional question is close, therefore, we should
uphold the injunction and remand for trial on the merits. Applying
this mode of inquiry, we agree with the Court of Appeals that the
District Court did not abuse its discretion in entering the
preliminary injunction. Our reasoning in support of this
conclusion, however, is based on a narrower, more specific grounds
than the rationale the Court of Appeals adopted. The Court of
Appeals, in its opinion affirming the decision of the District
Court, construed a number of terms in the statute, and held that
COPA, so construed, was unconstitutional. None of those
constructions of statutory terminology, however, were relied on by
or necessary to the conclusions of the District Court. Instead, the
District Court concluded only that the statute was likely to burden
some speech that is protected for adults, 31 F. Supp.2d, at
495, which petitioner does not dispute. As to the definitional
disputes, the District Court concluded only that respondents’
interpretation was “not unreasonable,” and relied on their
interpretation only to conclude that respondents had standing to
challenge the statute, id. , at 481, which, again,
petitioner does not dispute. Because we affirm the District Court’s
decision to grant the preliminary injunction for the reasons relied
on by the District Court, we decline to consider the correctness of
the other arguments relied on by the Court of Appeals.

															   The District Court, in deciding
to grant the preliminary injunction, concentrated primarily on the
argument that there are plausible, less restrictive alternatives to
COPA. A statute that “effectively suppresses a large amount of
speech that adults have a constitutional right to receive and to
address to one another … is unacceptable if less restrictive
alternatives would be at least as effective in achieving the
legitimate purpose that the statute was enacted to serve.” Reno , 521 U. S., at 874. When plaintiffs challenge a
content-based speech restriction, the burden is on the Government
to prove that the proposed alternatives will not be as effective as
the challenged statute. Id. , at 874.

															   In considering this question, a court assumes
that certain protected speech may be regulated, and then asks what
is the least restrictive alternative that can be used to achieve
that goal. The purpose of the test is not to consider whether the
challenged restriction has some effect in achieving Congress’ goal,
regardless of the restriction it imposes. The purpose of the test
is to ensure that speech is restricted no further than necessary to
achieve the goal, for it is important to assure that legitimate
speech is not chilled or punished. For that reason, the test does
not begin with the status quo of existing regulations, then ask
whether the challenged restriction has some additional ability to
achieve Congress’ legitimate interest. Any restriction on speech
could be justified under that analysis. Instead, the court should
ask whether the challenged regulation is the least restrictive
means among available, effective alternatives.

															   In deciding whether to grant a preliminary
injunction stage, a district court must consider whether the
plaintiffs have demonstrated that they are likely to prevail on the
merits. See, e.g. , Doran v. Salem Inn , Inc. , 422
U. S. 922 , 931 (1975). (The court also considers whether the
plaintiff has shown irreparable injury, see id. , at 931,
but the parties in this case do not contest the correctness of the
District Court’s conclusion that a likelihood of irreparable injury
had been established. See 31 F. Supp. 2d, at 497–498). As the
Government bears the burden of proof on the ultimate question of
COPA’s constitutionality, respondents must be deemed likely to
prevail unless the Government has shown that respondents’ proposed
less restrictive alternatives are less effective than COPA.
Applying that analysis, the District Court concluded that
respondents were likely to prevail. Id. , at 496–497. That
conclusion was not an abuse of discretion, because on this record
there are a number of plausible, less restrictive alternatives to
the statute.

															   The primary alternative considered by the
District Court was blocking and filtering software. Blocking and
filtering software is an alternative that is less restrictive than
COPA, and, in addition, likely more effective as a means of
restricting children’s access to materials harmful to them. The
District Court, in granting the preliminary injunction, did so
primarily because the plaintiffs had proposed that filters are a
less restrictive alternative to COPA and the Government had not
shown it would be likely to disprove the plaintiffs’ contention at
trial. Ibid .

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

															   Filters also may well be more effective than
COPA. First, a filter can prevent minors from seeing all
pornography, not just pornography posted to the Web from America.
The District Court noted in its factfindings that one witness
estimated that 40% of harmful-to-minors content comes from
overseas. Id. , at 484. COPA does not prevent minors from
having access to those foreign harmful materials. That alone makes
it possible that filtering software might be more effective in
serving Congress’ goals. Effectiveness is likely to diminish even
further if COPA is upheld, because the providers of the materials
that would be covered by the statute simply can move their
operations overseas. It is not an answer to say that COPA reaches
some amount of materials that are harmful to minors; the question
is whether it would reach more of them than less restrictive
alternatives. In addition, the District Court found that
verification systems may be subject to evasion and circumvention,
for example by minors who have their own credit cards. See id. , at 484, 496–497. Finally, filters also may be more
effective because they can be applied to all forms of Internet
communication, including e-mail, not just communications available
via the World Wide Web.

															   That filtering software may well be more
effective than COPA is confirmed by the findings of the Commission
on Child Online Protection, a blue-ribbon commission created by
Congress in COPA itself. Congress directed the Commission to
evaluate the relative merits of different means of restricting
minors’ ability to gain access to harmful materials on the
Internet. Note following 47 U. S. C. §231. It unambiguously
found that filters are more effective than age-verification
requirements. See Commission on Child Online Protection (COPA),
Report to Congress, at 19–21, 23–25, 27 (Oct. 20, 2000) (assigning
a score for “Effectiveness” of 7.4 for server-based filters and 6.5
for client-based filters, as compared to 5.9 for independent
adult-id verification, and 5.5 for credit card verification). Thus,
not only has the Government failed to carry its burden of showing
the District Court that the proposed alternative is less effective,
but also a Government Commission appointed to consider the question
has concluded just the opposite. That finding supports our
conclusion that the District Court did not abuse its discretion in
enjoining the statute.

															   Filtering software, of course, is not a
perfect solution to the problem of children gaining access to
harmful-to-minors materials. It may block some materials that are
not harmful to minors and fail to catch some that are. See 31
F. Supp. 2d, at 492. Whatever the deficiencies of filters,
however, the Government failed to introduce specific evidence
proving that existing technologies are less effective than the
restrictions in COPA. The District Court made a specific
factfinding that “[n]o evidence was presented to the Court as to
the percentage of time that blocking and filtering technology is
over- or underinclusive.” Ibid . In the absence of a
showing as to the relative effectiveness of COPA and the
alternatives proposed by respondents, it was not an abuse of
discretion for the District Court to grant the preliminary
injunction. The Government’s burden is not merely to show that a
proposed less restrictive alternative has some flaws; its burden is
to show that it is less effective. Reno , 521 U. S., at
874. It is not enough for the Government to show that COPA has some
effect. Nor do respondents bear a burden to introduce, or offer to
introduce, evidence that their proposed alternatives are more
effective. The Government has the burden to show they are less so.
The Government having failed to carry its burden, it was not an
abuse of discretion for the District Court to grant the preliminary
injunction.

															   One argument to the contrary is worth
mentioning—the argument that filtering software is not an available
alternative because Congress may not require it to be used. That
argument carries little weight, because Congress undoubtedly may
act to encourage the use of filters. We have held that Congress can
give strong incentives to schools and libraries to use them. United States v. American Library Assn., Inc , 539 U.S.
194 (2003). It could also take steps to promote their
development by industry, and their use by parents. It is incorrect,
for that reason, to say that filters are part of the current
regulatory status quo. The need for parental cooperation does not
automatically disqualify a proposed less restrictive alternative. Playboy Entertainment Group , 529 U. S., at 824. (“A court
should not assume a plausible, less restrictive alternative would
be ineffective; and a court should not presume parents, given full
information, will fail to act ” ). In enacting COPA,
Congress said its goal was to prevent the “widespread availability
of the Internet” from providing “opportunities for minors to access
materials through the World Wide Web in a manner that can frustrate
parental supervision or control.” Congressional Findings, note
following 47 U. S. C. §231 (quoting Pub. L. 105–277, Tit. XIV,
§1402(1), 112 Stat. 2681–736). COPA presumes that parents lack the
ability, not the will, to monitor what their children see. By
enacting programs to promote use of filtering software, Congress
could give parents that ability without subjecting protected speech
to severe penalties.

															   The closest precedent on the general point is
our decision in Playboy Entertainment Group . Playboy
Entertainment Group , like this case, involved a content-based
restriction designed to protect minors from viewing harmful
materials. The choice was between a blanket speech restriction and
a more specific technological solution that was available to
parents who chose to implement it. 529 U. S., at 825. Absent a
showing that the proposed less restrictive alternative would not be
as effective, we concluded, the more restrictive option preferred
by Congress could not survive strict scrutiny. Id. , at 826
(reversing because “[t]he record is silent as to the comparative
effectiveness of the two alternatives”). In the instant case, too,
the Government has failed to show, at this point, that the proposed
less restrictive alternative will be less effective. The reasoning
of Playboy Entertainment Group , and the holdings and force
of our precedents require us to affirm the preliminary injunction.
To do otherwise would be to do less than the First Amendment
commands. “The starch in our constitutional standards cannot be
sacrificed to accommodate the enforcement choices of the
Government.” Id., at 830 (Thomas, J., concurring).

															B

															    There are also important
practical reasons to let the injunction stand pending a full trial
on the merits. First, the potential harms from reversing the
injunction outweigh those of leaving it in place by mistake. Where
a prosecution is a likely possibility, yet only an affirmative
defense is available, speakers may self-censor rather than risk the
perils of trial. There is a potential for extraordinary harm and a
serious chill upon protected speech. Cf. id., at 817
(“Error in marking that line exacts an extraordinary cost”). The
harm done from letting the injunction stand pending a trial on the
merits, in contrast, will not be extensive. No prosecutions have
yet been undertaken under the law, so none will be disrupted if the
injunction stands. Further, if the injunction is upheld, the
Government in the interim can enforce obscenity laws already on the
books.

															    Second, there are substantial
factual disputes remaining in the case. As mentioned above, there
is a serious gap in the evidence as to the effectiveness of
filtering software. See supra , at 9. For us to assume,
without proof, that filters are less effective than COPA would
usurp the District Court’s factfinding role. By allowing the
preliminary injunction to stand and remanding for trial, we require
the Government to shoulder its full constitutional burden of proof
respecting the less restrictive alternative argument, rather than
excuse it from doing so.

															   Third, and on a related point, the factual
record does not reflect current technological reality—a serious
flaw in any case involving the Internet. The technology of the
Internet evolves at a rapid pace. Yet the factfindings of the
District Court were entered in February 1999, over five years ago.
Since then, certain facts about the Internet are known to have
changed. Compare, e.g., 31 F. Supp. 2d, at 481 (36.7
million Internet hosts as of July 1998) with Internet Systems
Consortium, Internet Domain Survey, Jan. 2004,
http://www.isc.org/index.pl?/ops/ds (as visited June 22, 2004, and
available in the Clerk of Court’s case file) (233.1 million hosts
as of Jan. 2004). It is reasonable to assume that other
technological developments important to the First Amendment
analysis have also occurred during that time. More and better
filtering alternatives may exist than when the District Court
entered its findings. Indeed, we know that after the District Court
entered its factfindings, a congressionally appointed commission
issued a report that found that filters are more effective than
verification screens. See supra , at 8.

															   Delay between the time that a district court
makes factfindings and the time that a case reaches this Court is
inevitable, with the necessary consequence that there will be some
discrepancy between the facts as found and the facts at the time
the appellate court takes up the question. See, e.g .,
Benjamin, Stepping into the Same River Twice: Rapidly Changing
Facts and the Appellate Process, 78 Texas L. Rev. 269, 290–296
(1999) (noting the problems presented for appellate courts by
changing facts in the context of cases involving the Internet, and
giving as a specific example the Court’s decision in Reno , 521 U. S. 844 ). We do not mean,
therefore, to set up an insuperable obstacle to fair review. Here,
however, the usual gap has doubled because the case has been
through the Court of Appeals twice. The additional two years might
make a difference. By affirming the preliminary injunction and
remanding for trial, we allow the parties to update and supplement
the factual record to reflect current technological realities.

															   Remand will also permit the
District Court to take account of a changed legal landscape. Since
the District Court made its factfindings, Congress has passed at
least two further statutes that might qualify as less restrictive
alternatives to COPA—a prohibition on misleading domain names, and
a statute creating a minors-safe “Dot Kids” domain. See supra , at 4. Remanding for trial will allow the District
Court to take into account those additional potential
alternatives.

															   On a final point, it is important to note that
this opinion does not hold that Congress is incapable of enacting
any regulation of the Internet designed to prevent minors from
gaining access to harmful materials. The parties, because of the
conclusion of the Court of Appeals that the statute’s definitions
rendered it unconstitutional, did not devote their attention to the
question whether further evidence might be introduced on the
relative restrictiveness and effectiveness of alternatives to the
statute. On remand, however, the parties will be able to introduce
further evidence on this point. This opinion does not foreclose the
District Court from concluding, upon a proper showing by the
Government that meets the Government’s constitutional burden as
defined in this opinion, that COPA is the least restrictive
alternative available to accomplish Congress’ goal.

															* * *

															   On this record, the Government
has not shown that the less restrictive alternatives proposed by
respondents should be disregarded. Those alternatives, indeed, may
be more effective than the provisions of COPA. The District Court
did not abuse its discretion when it entered the preliminary
injunction. The judgment of the Court of Appeals is affirmed, and
the case is remanded for proceedings consistent with this
opinion.

															It is so ordered. STEVENS, J., CONCURRING ASHCROFT V. AMERICAN CIVIL LIBERTIES UNION 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-218 JOHN D. ASHCROFT, ATTORNEY GENERAL, PETITIONER v. AMERICAN CIVIL LIBERTIES UNION et al.

															on writ of certiorari to the united states court of
appeals for the third circuit

															[June 29, 2004]

															   Justice Stevens, with whom
Justice Ginsburg joins, concurring.

															   When it first reviewed the
constitutionality of the Child Online Protection Act (COPA), the
Court of Appeals held that the statute’s use of “contemporary
community standards” to identify materials that are “harmful to
minors” was a serious, and likely fatal, defect. American Civil
Liberties Union v. Reno , 217 F. 3d 162 (CA3
2000). I have already explained at some length why I agree with
that holding. See Ashcroft v. American Civil Liberties
Union, 535 U.
S. 564 , 603 (2002) (dissenting opinion) (“In the context of the
Internet, … community standards become a sword, rather than a
shield. If a prurient appeal is offensive in a puritan village, it
may be a crime to post it on the World Wide Web”). I continue to
believe that the Government may not penalize speakers for making
available to the general World Wide Web audience that which the
least tolerant communities in America deem unfit for their
children’s consumption, cf. Reno v. American Civil
Liberties Union, 521 U. S. 844 , 878
(1997), and consider that principle a sufficient basis for deciding
this case.

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

															   In registering my agreement with the Court’s
less-restrictive-means analysis, I wish to underscore just how
restrictive COPA is. COPA is a content-based restraint on the
dissemination of constitutionally protected speech. It enforces its
prohibitions by way of the criminal law, threatening noncompliant
Web speakers with a fine of as much as $50,000, and a term of
imprisonment as long as six months, for each offense. 47 U.
S. C. §231(a). Speakers who “intentionally” violate COPA are
punishable by a fine of up to $50,000 for each day of the
violation. Ibid. And because implementation of the various
adult-verification mechanisms described in the statute provides
only an affirmative defense, §231(c)(1), even full compliance with
COPA cannot guarantee freedom from prosecution. Speakers who
dutifully place their content behind age screens may nevertheless
find themselves in court, forced to prove the lawfulness of their
speech on pain of criminal conviction. Cf. Ashcroft v. Free Speech Coalition, 535 U. S. 234 , 255
(2002).

															   Criminal prosecutions are, in my view, an
inappropriate means to regulate the universe of materials
classified as “obscene,” since “the line between communications
which ‘offend’ and those which do not is too blurred to identify
criminal conduct.” Smith v. United
States, 431 U. S. 291 , 316
(1977) (Stevens, J., dissenting). See also Marks v. United States, 430 U. S. 188 , 198
(1977) (Stevens, J., concurring in part and dissenting in part).
COPA’s creation of a new category of criminally punishable speech
that is “harmful to minors” only compounds the problem. It may be,
as Justice Breyer contends, that the statute’s coverage extends
“only slightly” beyond the legally obscene, and therefore intrudes
little into the realm of protected expression. Post, at 4
(dissenting opinion). But even with Justice Breyer’s guidance, I
find it impossible to identify just how far past the already
ill-defined territory of “obscenity” he thinks the statute extends.
Attaching criminal sanctions to a mistaken judgment about the
contours of the novel and nebulous category of “harmful to minors”
speech clearly imposes a heavy burden on the exercise of First
Amendment freedoms.

															   COPA’s criminal penalties are, moreover,
strong medicine for the ill that the statute seeks to remedy. To be
sure, our cases have recognized a compelling interest in protecting
minors from exposure to sexually explicit materials. See, e.g., Ginsberg v. New
York, 390
U. S. 629 , 640 (1968). As a parent, grandparent, and
great-grandparent, I endorse that goal without reservation. As a
judge, however, I must confess to a growing sense of unease when
the interest in protecting children from prurient materials is
invoked as a justification for using criminal regulation of speech
as a substitute for, or a simple backup to, adult oversight of
children’s viewing habits.

															   In view of the gravity of the burdens COPA
imposes on Web speech, the possibility that Congress might have
accomplished the goal of protecting children from harmful materials
by other, less drastic means is a matter to be considered with
special care. With that observation, I join the opinion of the
Court. 542 U. S. ____ (2004) ASHCROFT V. AMERICAN CIVIL LIBERTIES UNION 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-218 JOHN D. ASHCROFT, ATTORNEY GENERAL, PETITIONER v. AMERICAN CIVIL LIBERTIES UNION et al.

															on writ of certiorari to the united states court of
appeals for the third circuit

															[June 29, 2004]

															   Justice Scalia, dissenting.

															   I agree with Justice Breyer’s
conclusion that the Child Online Protection Act (COPA), 47 U.
S. C. §231, is constitutional. See post , at 14
(dissenting opinion). Both the Court and Justice Breyer err,
however, in subjecting COPA to strict scrutiny. Nothing in the
First Amendment entitles the type of material covered by COPA to
that exacting standard of review. “We have recognized that
commercial entities which engage in ‘the sordid business of
pandering’ by ‘deliberately emphasiz[ing] the sexually provocative
aspects of [their nonobscene products], in order to catch the
salaciously disposed,’ engage in constitutionally unprotected
behavior.” United States v. Playboy Entertainment
Group, Inc., 529 U. S. 803 , 831
(2000) (Scalia, J., dissenting) (quoting Ginzburg v. United States, 383 U. S. 463 , 467, 472
(1966)). See also Los Angeles v. Alameda Books,
Inc., 535 U. S.
425 , 443–444 (2002) (Scalia, J., concurring); FW/PBS,
Inc. v. Dallas, 493 U. S. 215 , 256–261
(1990) (Scalia, J., concurring in part and dissenting in part).

															   There is no doubt that the commercial
pornography covered by COPA fits this description. The statute
applies only to a person who, “as a regular course of such person’s
trade or business, with the objective of earning a profit,” 47 U.
S. C. §231(e)(2)(B), and “with knowledge of the character of
the material,” §231(a)(1), communicates material that depicts
certain specified sexual acts and that “is designed to appeal to,
or is designed to pander to, the prurient interest,” §231(e)(6)(A).
Since this business could, consistent with the First Amendment, be
banned entirely, COPA’s lesser restrictions raise no constitutional
concern. BREYER, J., DISSENTING ASHCROFT V. AMERICAN CIVIL LIBERTIES UNION 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-218 JOHN D. ASHCROFT, ATTORNEY GENERAL, PETITIONER v. AMERICAN CIVIL LIBERTIES UNION et al.

															on writ of certiorari to the united states court of
appeals for the third circuit

															[June 29, 2004]

															   Justice Breyer, with whom The
Chief Justice and Justice O’Connor join, dissenting.

															   The Child Online Protection Act
(Act), 47 U. S. C. §231, seeks to protect children from
exposure to commercial pornography placed on the Internet. It does
so by requiring commercial providers to place pornographic material
behind Internet “screens” readily accessible to adults who produce
age verification. The Court recognizes that we should
“ ‘proceed … with care before invalidating the Act,’ ”
while pointing out that the “imperative of according respect to the
Congress … does not permit us to depart from well-established First
Amendment principles.” Ante, at 1. I agree with these
generalities. Like the Court, I would subject the Act to “the most
exacting scrutiny,” Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 , 642
(1994), requiring the Government to show that any restriction of
nonobscene expression is “narrowly drawn” to further a “compelling
interest” and that the restriction amounts to the “least
restrictive means” available to further that interest, Sable
Communications of Cal., Inc. v. FCC, 492 U. S. 115 , 126
(1989). See also Denver Area Ed. Telecommunications Consortium,
Inc. v. FCC, 518 U. S. 727 , 755–756
(1996).

															   Nonetheless, my examination of (1) the burdens
the Act imposes on protected expression, (2) the Act’s ability to
further a compelling interest, and (3) the proposed “less
restrictive alternatives” convinces me that the Court is wrong. I
cannot accept its conclusion that Congress could have accomplished
its statutory objective—protecting children from commercial
pornography on the Internet—in other, less restrictive ways.

															I

															    Although the Court rests its
conclusion upon the existence of less restrictive alternatives, I
must first examine the burdens that the Act imposes upon protected
speech. That is because the term “less restrictive alternative” is
a comparative term. An “alternative” is “less restrictive” only if
it will work less First Amendment harm than the statute itself,
while at the same time similarly furthering the “compelling”
interest that prompted Congress to enact the statute. Unlike the
majority, I do not see how it is possible to make this comparative
determination without examining both the extent to which the Act
regulates protected expression and the nature of the burdens it
imposes on that expression. That examination suggests that the Act,
properly interpreted, imposes a burden on protected speech that is
no more than modest.

															A

															   The Act’s definitions limit the
material it regulates to material that does not enjoy First
Amendment protection, namely legally obscene material, and very
little more. A comparison of this Court’s definition of
unprotected, “legally obscene,” material with the Act’s definitions
makes this clear.

															   Material is legally obscene
if

															“(a) . . . ‘the average person, applying
contemporary community standards’ would find that the work, taken
as a whole, appeals to the prurient interest . . . ; (b) . . . the
work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law; and (c) .
. . the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.” Miller v. California, 413 U. S. 15 , 24
(1973).

															The present statute defines the material that it
regulates as material that meets all of the following criteria:

															“(A) the average person, applying contemporary
community standards, would find, taking the material as a whole and with respect to minors , [that the material] is
designed to appeal to, or is designed to pander to, the prurient
interest;

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

															“(C) [the material] taken as a whole, lacks serious literary,
artistic, political, or scientific value for minors .” 47
U. S. C. §231(e)(6) (emphasis added).

															   Both definitions define the
relevant material through use of the critical terms “prurient
interest” and “lacks serious literary, artistic, political, or
scientific value.” Insofar as material appeals to, or panders to,
“the prurient interest,” it simply seeks a sexual response. Insofar
as “patently offensive” material with “no serious value” simply
seeks that response, it does not seek to educate, it does not seek
to elucidate views about sex, it is not artistic, and it is not
literary. Compare, e.g., Erznoznik v. Jacksonville, 422 U. S. 205 , 213
(1975) (invalidating an ordinance regulating nudity in films, where
the ban was not confined to “sexually explicit nudity” or otherwise
limited), with Ginzburg v. United
States, 383 U. S. 463 , 471
(1966) (finding unprotected material that was “created,
represented, and sold solely as a claimed instrument of the sexual
stimulation it would bring”). That is why this Court, in Miller, held that the First Amendment did not protect
material that fit its definition.

															   The only significant difference between the
present statute and Miller ’s definition consists of the
addition of the words “with respect to minors,” §231(e)(6)(A), and
“for minors,” §231(e)(6)(C). But the addition of these words to a
definition that would otherwise cover only obscenity expands the
statute’s scope only slightly. That is because the material in
question (while potentially harmful to young children) must, first,
appeal to the “prurient interest” of, i.e., seek a sexual
response from, some group of adolescents or postadolescents (since
young children normally do not so respond). And material that
appeals to the “prurient interest[s]” of some group of adolescents
or postadolescents will almost inevitably appeal to the “prurient
interest[s]” of some group of adults as well.

															   The “lack of serious value” requirement
narrows the statute yet further—despite the presence of the
qualification “for minors.” That is because one cannot easily
imagine material that has serious literary, artistic, political, or
scientific value for a significant group of adults, but lacks such
value for any significant group of minors. Thus, the statute, read
literally, insofar as it extends beyond the legally obscene, could
reach only borderline cases. And to take the words of the statute
literally is consistent with Congress’ avowed objective in enacting
this law; namely, putting material produced by professional
pornographers behind screens that will verify the age of the
viewer. See S. Rep. No. 105–225, p. 3 (1998) (hereinafter
S. Rep.) (“The bill seeks to restrict access to commercial
pornography on the Web by requiring those engaged in the business
of the commercial distribution of material that is harmful to
minors to take certain prescribed steps to restrict access to such
material by minors …”); H. R. Rep. No. 105–775, pp. 5, 14
(1998) (hereinafter H. R. Rep.) (explaining that the bill is
aimed at the sale of pornographic materials and provides a defense
for the “commercial purveyors of pornography” that the bill seeks
to regulate).

															   These limitations on the statute’s scope
answer many of the concerns raised by those who attack its
constitutionality. Respondents fear prosecution for the Internet
posting of material that does not fall within the stat- ute’s ambit
as limited by the “prurient interest” and “no serious value”
requirements; for example: an essay about a young man’s experience
with masturbation and sex- ual shame; “a serious discussion about
birth control practices, homosexuality, . . . or the consequences
of prison rape”; an account by a 15-year-old, written for
therapeutic purposes, of being raped when she was 13; a guide to
self-examination for testicular cancer; a graphic illustration of
how to use a condom; or any of the other postings of modern
literary or artistic works or discus- sions of sexual identity,
homosexuality, sexually trans- mitted diseases, sex education, or
safe sex, let alone Aldous Huxley’s Brave New World, J. D.
Salinger’s Catcher in the Rye, or, as the complaint would have it,
“Ken Starr’s report on the Clinton-Lewinsky scan- dal.” See G.
Dillard, Shame on Me, Lodging 609–612; Reno v. American Civil Liberties Union, 521 U. S. 844 , 871
(1997); Brief for Respondents 29 (citing Lodging 732– 736); Brief
for American Society of Journalists and Authors et al. as Amici Curiae 8, and n. 7 (referring to a guide on the
medical advice site www.afraidtoask.com); 322 F. 3d 240, 268
(CA3 2003) (citing Safer Sex Institute,
safersex.org/condoms/how.to.use); Complaint ¶ ;1, Lodging 40–41 (“a
Mapplethorpe photograph,” referring to the work of controversial
artist Robert Mapplethorpe); Id., at 667– 669 (Pl. Exh.
80, PlanetOut Youth Message Boards (Internet discussion board for
gay teens)); declaration of Adam K. Glickman, president and CEO,
Addazi, Inc. d/b/a Condomania, Supp. Lodging of Petitioner 4–10
(describing how Web site has been used for health education);
declaration of Roberta Spyer, president and publisher, OBGYN.net, id., at 15–16 (describing Web site as resource for
obstetrics, gynecology, and women’s health issues); Brief for
Volunteer Lawyers for the Arts et al. as Amici Curiae 15 (listing works of literature removed from some schools);
Complaint ¶ ;1, Lodging 40–41.

															   These materials are not both (1)
“designed to appeal to, or . . . pander to, the prurient interest”
of significant groups of minors and (2) lacking in
“serious literary, artistic, political, or scientific value” for
significant groups of minors. §§231(e)(6)(A), (C). Thus, they fall
outside the statute’s definition of the material that it restricts,
a fact the Government acknowledged at oral argument. Tr. of Oral
Arg. 50–51.

															   I have found nothing elsewhere in the
statute’s language that broadens its scope. Other qualifying
phrases, such as “taking the material as a whole,” §§231(e)(6)(A),
(C), and “for commercial purposes,” §231(a)(1), limit the statute’s
scope still more, requiring, for example, that individual images be
considered in context. See Roth v. United
States, 354 U. S. 476 , 490
(1957). In sum, the Act’s definitions limit the statute’s scope to
commercial pornography. It affects unprotected obscene material.
Given the inevitable uncertainty about how to characterize
close-to-obscene material, it could apply to (or chill the
production of) a limited class of borderline material that courts
might ultimately find is protected. But the examples I have just
given fall outside that class.

															B

															   The Act does not censor the
material it covers. Rather, it requires providers of the “harmful
to minors” material to restrict minors’ access to it by verifying
age. They can do so by inserting screens that verify age using a
credit card, adult personal identification number, or other similar
technology. See §231(c)(1). In this way, the Act requires creation
of an internet screen that minors, but not adults, will find
difficult to bypass.

															   I recognize that the screening
requirement imposes some burden on adults who seek access to the
regulated material, as well as on its providers. The cost is, in
part, monetary. The parties agreed that a Web site could store card
numbers or passwords at between 15 and 20 cents per number. American Civil Liberties Union v. Reno , 31
F. Supp. 2d 473, 488–489, ¶ ;¶ ;45–47 (ED Pa. 1999). And
verification services provide free verification to Web site
operators, while charging users less than $20 per year. Id., at 489–490, ¶ ;¶ ;48–53. According to the trade
association for the commercial pornographers who are the statute’s
target, use of such verification procedures is “standard practice”
in their online operations. See S. Rep., at 7; Legislative
Proposals to Protect Children from Inappropriate Materials on the
Internet: Hearing on H. R. 3783 et al. before the House
Subcommittee on Telecommunications, Trade and Consumer Protection
of the House Committee on Commerce, 105th Cong., 2d Sess., 46, 48
(1998) (prepared statement of Jeffrey J. Douglas, Executive
Director and Chairman, Free Speech Coalition (calling the proposed
child-protecting mechanisms “effective and appropriate”)).

															   In addition to the monetary cost, and despite
strict requirements that identifying information be kept
confidential, see 47 U. S. C. §§231(d)(1), 501, the
identification requirements inherent in age-screening may lead some
users to fear embarrassment. See 31 F. Supp. 2d, at 495. Both
monetary costs and potential embarrassment can deter potential
viewers and, in that sense, the statute’s requirements may restrict
access to a site. But this Court has held that in the context of
congressional efforts to protect children, restrictions of this
kind do not automatically violate the Constitution. And the Court
has approved their use. See, e.g., United States v. American Library Assn., Inc., 539 U. S. 194 , 209
(2003) (plurality opinion) (“[T]he Constitution does not guarantee
the right to acquire information at a public library without any
risk of embarrassment”). Cf. Reno, 521 U. S., at 890
(O’Connor, J., concurring in judgment in part and dissenting in
part) (calling the age-verification requirement similar to “a
bouncer [who] checks a person’s driver’s license before admitting
him to a nightclub”).

															   In sum, the Act at most imposes a modest
additional burden on adult access to legally obscene material,
perhaps imposing a similar burden on access to some protected
borderline obscene material as well.

															II

															   I turn next to the question of
“compelling interest,” that of protecting minors from exposure to
commercial pornography. No one denies that such an interest is
“compelling.” See Denver Area Ed. Telecommunications
Consortium, Inc., 518 U. S., at 743 (opinion of Breyer, J.)
(interest in protecting minors is “compelling”); Sable
Communications , 492 U. S., at 126 (same); Ginsberg v. New York, 390 U. S. 629 , 639–640
(1968). Rather, the question here is whether the Act, given its
restrictions on adult access, significantly advances that interest.
In other words, is the game worth the candle?

															   The majority argues that it is
not, because of the existence of “blocking and filtering software.” Ante, at 8–12. The majority refers to the presence of that
software as a “less restrictive alternative.” But that is a
misnomer—a misnomer that may lead the reader to believe that all we
need do is look to see if the blocking and filtering software is
less restrictive; and to believe that, because in one sense it is
(one can turn off the software), that is the end of the
constitutional matter.

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

															   Thus, the relevant constitutional question is
not the question the Court asks: Would it be less restrictive to do
nothing? Of course it would be. Rather, the relevant question
posits a comparison of (a) a status quo that includes filtering
software with (b) a change in that status quo that adds to it an
age-verification screen requirement. Given the existence of
filtering software, does the problem Congress identified remain
significant? Does the Act help to address it? These are questions
about the relation of the Act to the compelling interest. Does the
Act, compared to the status quo, significantly advance the ball?
(An affirmative answer to these questions will not justify “[a]ny
restriction on speech,” as the Court claims, ante , at 8,
for a final answer in respect to constitutionality must take
account of burdens and alternatives as well.)

															   The answers to these intermediate
questions are clear: Filtering software, as presently available,
does not solve the “child protection” problem. It suffers from four
serious inadequacies that prompted Congress to pass legislation
instead of relying on its voluntary use. First, its filtering is
faulty, allowing some pornographic material to pass through without
hindrance. Just last year, in American Library Assn. ,
Justice Stevens described “fundamental defects in the filtering
software that is now available or that will be available in the
foreseeable future.” 539 U. S., at 221 (dissenting opinion). He
pointed to the problem of underblocking: “Because the software
relies on key words or phrases to block undesirable sites, it does
not have the capacity to exclude a precisely defined category of
images.” Ibid. That is to say, in the absence of words,
the software alone cannot distinguish between the most obscene
pictorial image and the Venus de Milo. No Member of this Court
disagreed.

															   Second, filtering software costs
money. Not every family has the $40 or so necessary to install it.
See 31 F. Supp. 2d, at 492, ¶ ;65. By way of contrast, age
screening costs less. See supra, at 7 (citing costs of up
to 20 cents per password or $20 per user for an identification
number).

															   Third, filtering software depends upon parents
willing to decide where their children will surf the Web and able
to enforce that decision. As to millions of American families, that
is not a reasonable possibility. More than 28 million school age
children have both parents or their sole parent in the work force,
at least 5 million children are left alone at home without
supervision each week, and many of those children will spend
afternoons and evenings with friends who may well have access to
computers and more lenient parents. See United States v. Playboy Entertainment Group, Inc., 529 U. S. 803 , 842
(2000) (Breyer, J., dissenting).

															   Fourth, software blocking lacks precision,
with the result that those who wish to use it to screen out
pornography find that it blocks a great deal of material that is
valuable. As Justice Stevens pointed out, “the software’s reliance
on words to identify undesirable sites necessarily results in the
blocking of thousands of pages that contain content that is
completely innocuous for both adults and minors, and that no
rational person could conclude matches the filtering companies’
category definitions, such as pornography or sex.” American
Library Assn., supra, at 222 (internal quotation marks and
citations omitted). Indeed, the American Civil Liberties Union
(ACLU), one of the respondents here, told Congress that filtering
software “block[s] out valuable and protected information, such as
information about the Quaker religion, and web sites including
those of the American Association of University Women, the AIDS
Quilt, the Town Hall Political Site (run by the Family Resource
Center, Christian Coalition and other conservative groups).”
Hearing on Internet Indecency before the Senate Committee on
Commerce, Science, and Transportation, 105th Cong., 2d Sess., 64
(1998). The software “is simply incapable of discerning between
constitutionally protected and unprotected speech.” Id., at 65. It “inappropriately blocks valuable, protected speech, and
does not effectively block the sites [it is] intended to block.” Id., at 66 (citing reports documenting overblocking).

															   Nothing in the District Court record suggests
the contrary. No respondent has offered to produce evidence at
trial to the contrary. No party has suggested, for example, that
technology allowing filters to interpret and discern among images
has suddenly become, or is about to become, widely available.
Indeed, the Court concedes that “[f]iltering software, of course,
is not a perfect solution to the problem.” Ante, at
10.

															   In sum, a “filtering software status quo”
means filtering that underblocks, imposes a cost upon each family
that uses it, fails to screen outside the home, and lacks
precision. Thus, Congress could reasonably conclude that a system
that relies entirely upon the use of such software is not an
effective system. And a law that adds to that system an
age-verification screen requirement significantly increases the
system’s efficacy. That is to say, at a modest additional cost to
those adults who wish to obtain access to a screened program, that
law will bring about better, more precise blocking, both inside and
outside the home.

															   The Court’s response—that 40% of all
pornographic material may be of foreign origin—is beside the point. Ante, at 9 (citing the District Court’s findings). Even
assuming (I believe unrealistically) that all foreign
originators will refuse to use screening, the Act would make a
difference in respect to 60% of the Internet’s commercial
pornography. I cannot call that difference insignificant.

															   The upshot is that Congress could
reasonably conclude that, despite the current availability of
filtering software, a child protection problem exists. It also
could conclude that a precisely targeted regulatory statute, adding
an age-verification requirement for a narrow range of material,
would more effectively shield children from commercial
pornography.

															   Is this justification sufficient?
The lower courts thought not. But that is because those courts
interpreted the Act as imposing far more than a modest burden. They
assumed an interpretation of the statute in which it reached far
beyond legally obscene and borderline-obscene material, affecting
material that, given the interpretation set forth above, would fall
well outside the Act’s scope. But we must interpret the Act to save
it, not to destroy it. NLRB v. Jones & Laughlin
Steel Corp., 301
U. S. 1 , 30 (1937). So interpreted, see supra, at 3–6,
the Act imposes a far lesser burden on access to protected
material. Given the modest nature of that burden and the likelihood
that the Act will significantly further Congress’ compelling
objective, the Act may well satisfy the First Amendment’s stringent
tests. Cf. Sable Communications , 492 U. S., at 130.
Indeed, it does satisfy the First Amendment unless, of course,
there is a genuine alternative, “less restrictive” way similarly to
further that objective.

															III

															   I turn, then, to the actual “less
restrictive alternatives” that the Court proposes. The Court
proposes two real alternatives, i.e., two potentially less
restrictive ways in which Congress might alter the status quo in
order to achieve its “compelling” objective.

															   First, the Government might “act
to encourage” the use of blocking and filtering software. Ante, at 11. The problem is that any argument that rests
upon this alternative proves too much. If one imagines enough
government resources devoted to the problem and perhaps additional
scientific advances, then, of course, the use of software might
become as effective and less restrictive. Obviously, the Government
could give all parents, schools, and Internet cafes free computers
with filtering programs already installed, hire federal employees
to train parents and teachers on their use, and devote millions of
dollars to the development of better software. The result might be
an alternative that is extremely effective.

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

															Otherwise, “the undoubted ability of lawyers and judges,” who
are not constrained by the budgetary worries and other practical
parameters within which Congress must operate, “to imagine some kind of slightly less drastic or restrictive an
approach would make it impossible to write laws that deal with the
harm that called the statute into being.” Playboy Entertainment
Group, 529 U. S., at 841 (Breyer, J., dissenting). As Justice
Blackmun recognized, a “judge would be unimaginative indeed if he
could not come up with something a little less ‘drastic’ or a
little less ‘restrictive’ in almost any situation, and thereby
enable himself to vote to strike legislation down.” Illinois
Bd. of Elections v. Socialist Workers
Party, 440
U. S. 173 , 188–189 (1979) (concurring opinion). Perhaps that is
why no party has argued seriously that additional expenditure of
government funds to encourage the use of screening is a “less
restrictive alternative.”

															   Second, the majority suggests decriminalizing
the statute, noting the “chilling effect” of criminalizing a
category of speech. Ante, at 9. To remove a major
sanction, however, would make the statute less effective, virtually
by definition.

															IV

															   My conclusion is that the Act, as
properly interpreted, risks imposition of minor burdens on some
protected material—burdens that adults wishing to view the material
may overcome at modest cost. At the same time, it significantly
helps to achieve a compelling congressional goal, protecting
children from exposure to commercial pornography. There is no
serious, practically available “less restrictive” way similarly to
further this compelling interest. Hence the Act is
constitutional.

															V

															   The Court’s holding raises two
more general questions. First, what has happened to the
“constructive discourse between our courts and our legislatures”
that “is an integral and admirable part of the constitutional
design”? Blakely v. Washington, ante, at 1
(Kennedy, J., dissenting). After eight years of legislative effort,
two statutes, and three Supreme Court cases the Court sends this
case back to the District Court for further proceedings. What
proceedings? I have found no offer by either party to present more
relevant evidence. What remains to be litigated? I know the Court
says that the parties may “introduce further evidence” as to the
“relative restrictiveness and effectiveness of alternatives to the
statute.” Ante , at 14–15. But I do not understand what
that new evidence might consist of.

															   Moreover, Congress passed the
current statute “[i]n response to the Court’s decision in Reno ” striking down an earlier statutory effort to deal
with the same problem. Ante, at 3. Congress read Reno with care. It dedicated itself to the task of
drafting a statute that would meet each and every criticism of the
predecessor statute that this Court set forth in Reno. It
incorporated language from the Court’s precedents, particularly the Miller standard, virtually verbatim. Compare 413 U. S., at
24, with §231(e)(6). And it created what it believed was a statute
that would protect children from exposure to obscene professional
pornography without obstructing adult access to material that the
First Amendment protects. See H. R. Rep., at 5 (explaining
that the bill was “carefully drafted to respond to the Supreme
Court’s decision in Reno” ); S. Rep., at 2
(same). What else was Congress supposed to do?

															   I recognize that some Members of the Court,
now or in the past, have taken the view that the First Amendment
simply does not permit Congress to legislate in this area. See, e.g., Ginzburg, 383 U. S., at 476 (Black, J., dissenting)
(“[T]he Federal Government is without any power whatever under the
Constitution to put any type of burden on speech and expression of
ideas of any kind”). Others believe that the Amendment does not
permit Congress to legislate in certain ways, e.g., through the imposition of criminal penalties for obscenity. See, e.g., ante, at 2 (Stevens, J., concurring). There
are strong constitutional arguments favoring these views. But the
Court itself does not adopt those views. Instead, it finds that the
Government has not proved the nonexistence of “less restrictive
alternatives.” That finding, if appropriate here, is universally
appropriate. And if universally appropriate, it denies to Congress,
in practice, the legislative leeway that the Court’s language seem
to promise. If this statute does not pass the Court’s “less
restrictive alternative” test, what does? If nothing does, then the
Court should say so clearly.

															   As I have explained, I believe the First
Amendment permits an alternative holding. We could construe the
statute narrowly—as I have tried to do—removing nearly all
protected material from its scope. By doing so, we could reconcile
its language with the First Amendment’s demands. We would “save”
the statute, “not . . . destroy it.” NLRB, 301 U. S., at
30. Accord, McConnell v. Federal Election Comm’n, 540 U. S. __, __ (2003) (slip op., at 72) (where a saving
construction of the statute’s language “ ‘is fairly
possible,’ ” we must adopt it (quoting Crowell v. Benson, 285 U.S.
22 , 62 (1932))). And in the process, we would permit Congress
to achieve its basic child-protecting objectives.

															   Second, will the majority’s holding in
practice mean greater or lesser protection for expression? I do not
find the answer to this question obvious. The Court’s decision
removes an important weapon from the prosecutorial arsenal. That
weapon would have given the Government a choice—a choice other than
“ban totally or do nothing at all.” The Act tells the Government
that, instead of prosecuting bans on obscenity to the maximum
extent possible (as respondents have urged as yet another
“alternative”), it can insist that those who make available
material that is obscene or close to obscene keep that material
under wraps, making it readily available to adults who wish to see
it, while restricting access to children. By providing this third
option—a “middle way”—the Act avoids the need for potentially
speech-suppressing prosecutions.

															   That matters in a world where the obscene and
the nonobscene do not come tied neatly into separate, easily
distinguishable, packages. In that real world, this middle way
might well have furthered First Amendment interests by tempering
the prosecutorial instinct in borderline cases. At least, Congress
might have so believed. And this likelihood, from a First Amendment
perspective, might ultimately have proved more protective of the
rights of viewers to retain access to expression than the
all-or-nothing choice available to prosecutors in the wake of the
majority’s opinion.

															   For these reasons, I dissent.

Summary: The Supreme Court upheld a lower court's decision to block the enforcement of the Child Online Protection Act (COPA), a federal statute designed to protect minors from accessing sexually explicit material online. The Court found that the government failed to demonstrate the constitutionality of COPA's content-based restrictions on speech and did not present sufficient evidence to rebut arguments for less restrictive alternatives to the statute. The case was remanded for further proceedings.