521 U.S.

844
117 S.Ct. 2329 138 L.Ed.2d 874

Janet RENO, Attorney General of the United States, et al.,

Appellants
v.
AMERICAN CIVIL LIBERTIES UNION et al.
No. 96-511.

Supreme Court of the United States

Argued March 19, 1997.
Decided June 26, 1997.

Syllabus *
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.A.
223(a)(1)(B)(ii) (Supp.1997) 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.'' Affirmative 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)(1) 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)(1)(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. ____-____.
(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. 2341.
(b) A close look at the precedents relied on by the Government-Ginsberg
v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195; FCC v.
Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073; and
Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d
29-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. ____-____.
(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, 89 S.Ct. 1794, 1811-1812, 23
L.Ed.2d 371; the scarcity of available frequencies at its inception, see,
e.g., Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 637-638,
114 S.Ct. 2445, 2456-2457, 129 L.Ed.2d 497; and its "invasive'' nature,
see Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 128, 109
S.Ct. 2829, 2837-2838, 106 L.Ed.2d 93-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. ________.

(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, 111 S.Ct.
2720, 115 L.Ed.2d 888, coupled with its increased deterrent effect as a
criminal statute, see, e.g., Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct.
1116, 14 L.Ed.2d 22, 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'' standard repeats the second part of the three-prong
obscenity test set forth in Miller v. California, 413 U.S. 15, 24, 93 S.Ct.
2607, 2614-2615, 37 L.Ed.2d 419. 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 CDA 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. ____-____.
(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, 88 S.Ct., at 1280, 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, supra, at 126, 109
S.Ct., at 2836-2837. 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., Sable, 492 U.S., at 126, 109 S.Ct., at 2836-2837. 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 than
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. ____-____.
(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. Public Serv.
Comm'n of N.Y., 447 U.S. 530, 536, 100 S.Ct. 2326, 2332-2333, 65
L.Ed.2d 319. 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. ____-____.
(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. ____-____.

(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, supra, at 18,
93 S.Ct., at 2611-2612, 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. ____-____.
(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. 2351.
929 F.Supp. 824, affirmed.
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.
Seth P. Waxman, Washington, DC, for appellants.
Bruce J. Ennis, Washington, DC, for appellees.
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 threejudge District Court that the statute abridges "the freedom of speech'' protected
by the First Amendment.1

* 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
(E.D.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
3

The Internet is an international network of interconnected computers. It is the

outgrowth of what began in 1969 as a 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 commercial 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.
7

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 postings 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, postings 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 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.''8 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 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.
10

From the publishers' point of view, it constitutes a vast platform from which to
address and hear from a world-wide 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 centralized point from which
individual Web sites or services can be blocked from the Web.''10

Sexually Explicit Material

11

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,

12

"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

13
Some
of the communications over the Internet that originate in foreign countries are
also sexually explicit.14

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 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

15

Systems have been developed to help parents control the material that may be
available on a home computer with Internet 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 available.''19

Age Verification
16

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 email, 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 fora for 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

17

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. Using credit card possession as a surrogate

for proof of age would impose costs on non-commercial 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.'' Id., 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
18

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
maintaining such screening systems would be "beyond their reach.''23
In sum, the District Court found:

19

"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 verification and adult password verification
systems make them effectively unavailable to a substantial number of Internet
content providers.'' Ibid. (finding 107).

II
20

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 market, 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 described as the "indecent transmission''
provision and the "patently offensive display'' provision.25
21

The first, 47 U.S.C.A. 223(a) (Supp.1997), prohibits the knowing

transmission of obscene or indecent messages to any recipient under 18 years of
age. It provides in pertinent part:

22

" (a) Whoever-

23

" (1) in interstate or foreign communications-

.....
24
25

" (B) by means of a telecommunications device knowingly-

26

" (i) makes, creates, or solicits, and

27

" (ii) initiates the transmission of,

28

"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;

.....
29
30

" (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,

31

"shall be fined under Title 18, or imprisoned not more than two years, or both.''

32

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:

33

" (d) Whoever-

34

" (1) in interstate or foreign communications knowingly-

35

" (A) uses an interactive computer service to send to a specific person or

persons under 18 years of age, or

36

" (B) uses any interactive computer service to display in a manner available to a
person under 18 years of age,

37

"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

38

" (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,

39

"shall be fined under Title 18, or imprisoned not more than two years, or both.''

40

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 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
41

On February 8, 1996, immediately after the President signed the statute, 20

plaintiffs27 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,28 the two cases were consolidated, and a three-judge
District Court was convened pursuant to 561 of the Act.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.

42

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.
43

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. 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.

44

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 Act 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 "mediumspecific'' 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

45

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.

46

The Government appealed under the Act's special review provisions, 561, 110
Stat. 142-143, and we noted probable jurisdiction, see 519 U.S. ----, 117 S.Ct.
554, 136 L.Ed.2d 436 (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
47

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, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); (2) FCC v. Pacifica
Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978); and (3)
Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29
(1986). A close look at these cases, however, raises-rather than relieves-doubts
concerning the constitutionality of the CDA.

48

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 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, 88
S.Ct., at 1279. 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
49

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, 88 S.Ct., at 1280. Under the CDA, by contrast,
neither the parents' consent-nor even their participation-in the communication
would avoid the application of the statute.32 Second, the New York statute
applied only to commercial transactions, id., at 647, 88 S.Ct., at 1284-1285,
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,
88 S.Ct., at 1284. 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 of 17, whereas the CDA, in applying to all
those under 18 years, includes an additional year of those nearest majority.

50

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, 98 S.Ct., at 3030 (internal quotations 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, 98 S.Ct., at 3033. 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 abridgement of the right to broadcast it on the radio.

51

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, 98 S.Ct., at
3036-3037. 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, 98 S.Ct., at 3037-3040. Relying on the

premise that "of all forms of communication'' broadcasting had received the
most limited First Amendment protection, id., at 748-749, 98 S.Ct., at 30393040, the Court concluded that the ease with which children may obtain access
to broadcasts, "coupled with the concerns recognized in Ginsberg, '' justified
special treatment of indecent broadcasting. Id., at 749-750, 98 S.Ct., at 30403041.
52

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.''
Id., at 750, 98 S.Ct., at 3041. 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, 98 S.Ct., at 3040, 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.

53

In Renton, we upheld a zoning ordinance that kept adult movie theatres 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 th[e]
secondary effect which these zoning ordinances attempt to avoid, not the
dissemination of "offensive'' speech.''' 475 U.S., at 49, 106 S.Ct., at 930
(quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 71, n. 34, 96
S.Ct. 2440, 2453, n. 34, 49 L.Ed.2d 310 (1976)). According to the Government,
the CDA is constitutional because 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, 106 S.Ct., at 928. See also Boos v. Barry, 485 U.S.
312, 321, 108 S.Ct. 1157, 1163, 99 L.Ed.2d 333 (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,
112 S.Ct. 2395, 2403, 120 L.Ed.2d 101 (1992) ("Listeners' reaction to speech is
not a content-neutral basis for regulation'').
54

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.

V
55

In Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557, 95 S.Ct. 1239,
1245-1246, 43 L.Ed.2d 448 (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, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969); FCC v. Pacifica Foundation,
438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (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, 89 S.Ct., at 1811-1812; the
scarcity of available frequencies at its inception, see, e.g., Turner Broadcasting
System, Inc. v. FCC, 512 U.S. 622, 637-638, 114 S.Ct. 2445, 2456-2457, 129
L.Ed.2d 497 (1994); and its "invasive'' nature, see Sable Communications of
Cal., Inc. v. FCC, 492 U.S. 115, 128, 109 S.Ct. 2829, 2837-2838, 106 L.Ed.2d
93 (1989).

56

Those factors are not present in cyberspace. Neither before nor after the
enactment of the CDA have the vast democratic fora of the Internet been
subject to the type 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.

57

We distinguished Pacifica in Sable, 492 U.S., at 128, 109 S.Ct., at 2837-2838,

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 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 126, 109 S.Ct., at 2836-2837, 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,
109 S.Ct., at 2837. We explained that "the dial-it medium requires the listener
to take affirmative steps to receive the communication.'' Id., at 127-128, 109
S.Ct., at 2837. "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, 109 S.Ct., at 2837.
58

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
59

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 of the CDA uses a different linguistic form. The first uses the word
"indecent,'' 47 U.S.C.A. 223(a) (Supp.1997), 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.
60

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 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, 111 S.Ct. 2720, 2731-2733, 115 L.Ed.2d 888 (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, 85 S.Ct. 1116, 1125, 14 L.Ed.2d 22 (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. ----, 116 S.Ct. 2374,
135 L.Ed.2d 888 (1996).

61

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, 93 S.Ct.
2607, 37 L.Ed.2d 419 (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, 93 S.Ct., at 2611-2612. 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:

62

" (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, 93 S.Ct., at 2615 (internal quotation marks and citations
omitted).
Because
the CDA's "patently offensive'' standard (and, we assume arguendo, its
63
synonymous "indecent'' standard) is one part of the three-prong Miller test, the
Government reasons, it cannot be unconstitutionally vague.
64

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.

65

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- (1)
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 standards. See
Pope v. Illinois, 481 U.S. 497, 500, 107 S.Ct. 1918, 1920-1921, 95 L.Ed.2d 439
(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 is "patently offensive'' according to community
standards: that such questions are essentially ones of fact.39

66

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
67

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.

68

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, 109 S.Ct., at 2836. See also Carey
v. Population Services Int'l, 431 U.S. 678, 701, 97 S.Ct. 2010, 2024, 52
L.Ed.2d 675 (1977) (" [W]here obscenity is not involved, we have consistently
held that the 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, 98 S.Ct., at 3038.

69

It is true that we have repeatedly recognized the governmental interest in

protecting children from harmful materials. See Ginsberg, 390 U.S., at 639, 88
S.Ct., at 1280; Pacifica, 438 U.S., at 749, 98 S.Ct., at 3040. 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 ----, 116
S.Ct., at 2393 (internal quotation marks omitted) (quoting Sable, 492 U.S., at
128, 109 S.Ct., at 2837-2838).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, 103
S.Ct. 2875, 2884-2885, 77 L.Ed.2d 469 (1983).

70

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, 109 S.Ct., at 2838, 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 Term, that inquiry embodies an "over-

arching 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 ----, 116 S.Ct., at 2385.
71

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 or more minors will likely
view it. Knowledge that, for instance, one or more members of a 100-person
chat group will be minor-and therefore that it would be a crime to send the
group an indecent message-would surely burden communication among
adults.42

72

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 that it would be prohibitively expensive for noncommercial-as 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 " [d]espite 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).

73

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 available to a nation-wide 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 Test., Tr. Vol. V, 53:16-54:10. It may also
extend to discussions about prison rape or safe sexual practices, artistic images
that include nude subjects, and arguably the card catalogue of the Carnegie
Library.
74

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-yearold 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.A. 223(a)(2) (Supp.1997). Similarly, a parent who sent his 17-yearold 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.

75

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 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 than 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
76

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 Act's
"knowledge'' and "specific person'' requirement significantly restricts its

permissible applications; and (3) that the Act's prohibitions are "almost always''
limited to material lacking redeeming social value.
77

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 Serv. Comm'n of N.Y., 447 U.S. 530, 536, 100
S.Ct. 2326, 2332-2333, 65 L.Ed.2d 319 (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 database
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 of N.J. (Town of Irvington), 308 U.S. 147, 163, 60 S.Ct. 146, 151-152, 84
L.Ed. 155 (1939).

78

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.

79

This argument ignores the fact that most Internet fora-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.A. 223(d)(1)(A) (Supp.1997)- would be present.

80

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
81

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 Act. 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.''

82

For its second and third arguments concerning defenses-which 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 significantly 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.

83

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, 109 S.Ct., at

2837, 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
84

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.

85

A severability clause requires textual provisions that can be severed. We will

follow 608's guidance by leaving constitutional textual elements of the statute
intact in the one place where they are, in fact, severable. The "indecency''
provision, 47 U.S.C.A. 223(a) (Supp.1997), 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,
93 S.Ct., at 2611-2612. 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.

86

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, 105 S.Ct. 2794, 2801-2802, 86 L.Ed.2d 394
(1985). There are two flaws in this argument.

87

First, the statute that grants our jurisdiction for this expedited review, 47
U.S.C.A. 561 (Supp.1997), 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 statute, would
it be practicable to limit our holding to a judicially defined set of specific
applications.
88

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 Bookseller's Assn., Inc., 484 U.S. 383, 397,
108 S.Ct. 636, 645, 98 L.Ed.2d 782 (1988). See also Erznoznik, v. Jacksonville,
422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125 (1975) ("readily
subject'' to narrowing construction). The open-ended character of the CDA
provides no guidance what ever for limiting its coverage.

89

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,
105 S.Ct., at 2802 (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, 103 S.Ct. 1702, 1708-1710, 75 L.Ed.2d 736 (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. National Treasury Employees Union, 513 U.S. 454, 479, n. 26,
115 S.Ct. 1003, 1019, n. 26, 130 L.Ed.2d 964 (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 to conform it to constitutional requirements.'' American
Booksellers, 484 U.S., at 397, 108 S.Ct., at 645. 50

XI
90

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.
91

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.

92

For the foregoing reasons, the judgment of the district court is affirmed.

93

It is so ordered.

94

Justice O'CONNOR, with whom THE CHIEF JUSTICE joins, concurring in

the judgment in part and dissenting in part.

95

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.

96

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.A. 223(a)(1)(B)
(May 1996 Supp.). What the Court classifies as a single ""patently offensive
display''' provision, see ante, at __, 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, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93 (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'').
97

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
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.

98

* 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, 77 S.Ct. 524, 526, 1 L.Ed.2d 412
(1957). The First Amendment does not tolerate such interference. See id., at
383, 77 S.Ct., at 526 (striking down a Michigan 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, 103 S.Ct. 2875, 2884, 77 L.Ed.2d 469 (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, 88 S.Ct. 1274, 1277-1278, 20
L.Ed.2d 195 (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.

99

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 proprietor to prevent children from entering the establishment,
but to let adults inside.
100 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 identities. 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 Lessig, supra, at
901, however, it is not currently possible to exclude persons from accessing
certain messages on the basis of their identity.
101 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. Lessig, supra, 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 numberbefore they can access certain areas of cyberspace, 929 F.Supp. 824, 845
(E.D.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. The Platform for
Internet Content Selection (PICS) project is designed to facilitate user-based
zoning by encouraging Internet speakers to rate the content of their speech
using codes recognized by all screening programs. Id., at 838-839.
102 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
(S.D.N.Y.1996), it is not available to all Web speakers, 929 F.Supp., at 845846, and is just now becoming technologically feasible for chat rooms and
USENET newsgroups, Brief for Federal Parties 37-38. 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. User-based 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 agreed-upon "tag'' for those programs to recognize. 929
F.Supp., at 848; Shea, supra, at 945.
103 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 __. 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
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, 77 S.Ct., at 526. As a result, the "display'' provision cannot
withstand scrutiny. Accord, Sable Communications, 492 U.S., at 126-131, 109
S.Ct., at 2836-2839; Bolger v. Youngs Drug Products Corp., 463 U.S., at 7375, 103 S.Ct., at 2883-2885.
104 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.A. 223(a)(1)(B) (May 1996 Supp.). 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). Appellant urges the Court to construe the provision to
impose such a knowledge requirement, see Brief for Federal Parties 25-27, and
I would do so. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building
& Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99
L.Ed.2d 645 (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'').
105 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 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.
106 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 __. 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.

107 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,
107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987) ("A facial challenge to a
legislative Act [succeeds only if] the challenger . . . establish[es] that no set of
circumstances 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, 112 S.Ct. 2395, 2401, 120 L.Ed.2d 101 (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.
108 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, 105 S.Ct. 2794, 2802, 86
L.Ed.2d 394 (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.A. 223(a)(1)(B) (May 1996 Supp.) (punishing " [w]hoever . . . initiates
the transmission of [any indecent communication] knowingly 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 apply to the
transmission of Internet communications where the party initiating the
communication knows that all of the recipients are minors.
II

109 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, 88 S.Ct., at 1276-1277. Noting that obscene
speech is not protected by the First Amendment, Roth v. United States, 354
U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957), and that New York
was constitutionally free to adjust the definition of obscenity for minors, 390
U.S., at 638, 88 S.Ct., at 1279-1280, the Court concluded that the law did not
"invad[e] the area of freedom of expression constitutionally secured to minors.''
Id., at 637, 88 S.Ct., at 1279. New York therefore did not infringe upon the
First Amendment rights of minors. Cf. Erznoznik v. Jacksonville, 422 U.S. 205,
213, 95 S.Ct. 2268, 2274-2275, 45 L.Ed.2d 125 (1975) (striking down city
ordinance that banned nudity that was not "obscene even as to minors'').
110 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 __. 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, 88 S.Ct., at 1276. 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 prurient 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.
111 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, 93
S.Ct. 2908, 2917-2918, 37 L.Ed.2d 830 (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 __-__, is largely beside the
point. While discussions about prison rape or nude art, see ibid., may have
some redeeming education 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, 88 S.Ct., at 1276 (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 __, 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.
112 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 that I
respectfully dissent.

The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader. See
United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.
282, 287, 50 L.Ed. 499.

" Congress shall make no law . . . abridging the freedom of speech.'' U.S.
Const., Amdt. 1.

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.

An acronym for the network developed by the Advanced Research Project

Agency.

Id., at 844 (finding 81).

Id., at 831 (finding 3).

Id., at 835 (finding 27).

Id., at 842 (finding 74).

Id., at 836 (finding 36).

" 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 the person or
organization, which are available to everyone on the Web.'' Id., at 837 (finding
42).

10

Id., at 838 (finding 46).

11

Id., at 844 (finding 82).

12

Ibid. (finding 86).

13

Ibid. (finding 85).

14

Id., at 848 (finding 117).

15

Id., at 844-845 (finding 88).

16

Ibid.

17

Id., at 845 (finding 89).

18

Id., at 842 (finding 72).

19

Ibid. (finding 73).

20

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.''

21

Ibid. (finding 93).

22

Id., at 846 (finding 102).

23

Id., 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.''

24

See Exon Amendment No. 1268, 141 Cong. Rec. S8120 (June 9, 1995). See
also id., at S8087. This amendment, as revised, became 502 of the
Communications Act of 1996, 110 Stat. 133, 47 U.S.C.A. 223(a)-(e)
(Supp.1997). 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.A. 230
(Supp.1997); 141 Cong. Rec. H8468-H8472. No hearings were held on the
provisions that became law. See S.Rep. No. 104-23 (1995), p. 9. 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).
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 the District Court's order and opinion, in describing
223(d)(1) as one provision.

26

In full, 223(e)(5) provides:

(5) It is a defense to a prosecution under subsection (a)(1)(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)(1)(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.''

27

American Civil Liberties Union; Human Rights Watch; Electronic Privacy

Information Center; Electronic Frontier Foundation; Journalism Education
Association; Computer Professionals for Social Responsibility; National
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; Wired Ventures, Ltd.
29

110 Stat. 142-143, note following 47 U.S.C.A. 223 (Supp.1997).

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.

31

390 U.S., at 639, 88 S.Ct., at 1280. We quoted from Prince v. Massachusetts,

321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (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
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 __.

33

Cf. Pacifica Foundation v. FCC, 556 F.2d 9, 36 (C.A.D.C.1977) (Levanthal, J.,

dissenting), rev'd, FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57
L.Ed.2d 1073 (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.
34

Juris. Statement 3 (citing 929 F.Supp., at 831 (finding 3)).

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, 111 S.Ct. 840, 846-847,
112 L.Ed.2d 919 (1991) ("Where 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, 88 S.Ct. 1274, 1276-1277, 20
L.Ed.2d 195 (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 Cong. Rec. H1145, H11651166 (Feb. 1, 1996). The Conferees also rejected amendments that would have
limited the proscribed materials to those lacking redeeming value. See S. Conf.
Rep., at 189, 142 Cong. Rec. H1165-1166 (Feb. 1, 1996).

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.

39

413 U.S., at 30, 93 S.Ct., at 2618 (Determinations of "what appeals to the

"pruri ent 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.

40

Accord, Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 525-526, 1
L.Ed.2d 412 (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, 109 S.Ct. 2829, 2837-2838, 106 L.Ed.2d 93 (1989) (ban on "dial-a-porn''
messages unconstitutional); Bolger v. Youngs Drug Products Corp., 463 U.S.
60, 73, 103 S.Ct. 2875, 2883-2884, 77 L.Ed.2d 469 (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, 109 S.Ct., at 2838 ("
[A]side from conclusory statements during the debates by proponents of 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'') 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.

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 Cong. Rec. S8342 (June 14, 1995)
(letter from Kent Markus, Acting Assistant Attorney General, U.S. Department
of Justice, to Sen. Leahy).

45

Citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 113 S.Ct.
2217, 124 L.Ed.2d 472 (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.
46

For the full text of 223(e)(5), see n. 26, supra.

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.

48

929 F.Supp., at 855-856.

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 be 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, 23 L.Ed. 563 (1875). In part because of these
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,
44 S.Ct. 323, 325, 68 L.Ed. 686 (1924).

50

See also Osborne v. Ohio, 495 U.S. 103, 121, 110 S.Ct. 1691, 1702-1703, 109
L.Ed.2d 98 (1990) (judicial rewriting of statutes would derogate Congress's
"incentive to draft a narrowly tailored law in the first place'').

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. 18-7-502(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. 222001(b)(1)(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. Comp. 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. Comp. 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. 13-3506

(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)(1) (1995); D.C.Code Ann. 222001(b)(1)(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. Comp. Stat., ch. 720, 5/11-21 (1993); 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); 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. 97-5-11 (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. 571B:2(I) (1986); N.M. Stat. Ann. 30-37-2 (1989); N.Y. Penal Law 235.21(1)
(McKinney 1989); N.C. Gen.Stat. 14-190.15(a) (1993); N.D. Cent.Code
12.1-27.1-03 (1985 and Supp.1995); Ohio Rev.Code Ann. 2907.31(A)(1)
(Supp.1997); Okla. Stat., Tit. 21, 1040.76(2) (Supp.1997); 18 Pa. Cons.Stat.
5903(c) (Supp.1997); R.I. Gen. Laws 11-31-10(a) (1996); S.C.Code Ann.
16-15-385(A) (Supp.1996); S.D. Comp. Laws Ann. 22-24-28 (1988);
Tenn.Code Ann. 39-17-911(a) (1991); Tex Penal Code Ann. 43.24(b)
(1994); Utah Code Ann. 76-10-1206(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).