I. Pacifica Foundation v. FCC, 556 F.2d 9, 36 (CADC 1977) (LevanthaI, J., dissenting), rev'd, FCC v. Pacifica Foundation, 438 U. S. 726 (1978). . The Government's reasoning is also flawed. 2 American Civil Liberties Union v. Reno, 31 F. Supp.2d 473, 477, 485, ¶24 & n.5 (E.D. Finally, the CDA is unconstitutionally vague because it fails to define the relevant "community" that will set the standard for what is "indecent" on the global Internet. . "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. 32, Miller v. California,413 U.S. 15 (1973) . . Id. Id. Supp., at 845-846, and is just now becoming technologically feasible for chat rooms and USE NET newsgroups, Brief for Appellants 3738. . at ¶103; see also J.A. . The government failed to show why less restrictive alternatives ... (Supp. In the 1997 case of Reno v. ACLU (521 U.S. 844) . ."). . . 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." See pp.13-14, supra. Id. . . 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." A child requires some sophistication and some ability to read to retrieve material and thereby to use the Internet unattended." Rev. Turner Broadcasting System v. FCC, 512 U.S. __, __, 114 S.Ct. The Government's Reasons For Rejecting Strict Scrutiny Are Unpersuasive, A. by Ronald D. Maines; for the Family Life Project of the American Center for Law and Justice by Jay Alan Sekulow, James M. Henderson, Sr., Colby M. May, Keith A. Fournier, John G. Stepanovich, and Thomas P. Monaghan; for Morality in Media, Inc., by Paul J. McGeady and Robert W Peters; and for James J. Clancy by Mr. Clancy, pro se, and Carol A. Clancy. 864-868. 29. Raphael Winick filed a brief of amicus curiae for the Speech Communication Association. Ibid. 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. at 43a, ¶75. is an automated process that does not require direct human intervention or review," id. del. . 133a. 916 (S.D.N.Y. "[I]f the medium is reconstituted to accommodate the Act, it will cease to possess those unique characteristics which are responsible for its growth and adoption as a communications medium by individuals the world over and which represent its potential as a revolution in democratic communication." See J.S. . . . Appendix to the Jurisdictional Statement 146a (J.S. 48929 F. J.S. passim, §223(f)(a) . It provides millions of people around the globe with a low-cost method of conversing, publishing, and exchanging information on a vast array of subjects with a worldwide and virtually limitless audience. Accord, Sable Communications, 492 U. S., at 126131; Bolger v. Youngs Drug Products Corp., 463 U. S., at 73-75. Without any support in the record, the government on appeal coins a separate, independent interest in the CDA -- it suggests that "[u]nless steps are taken to restrict the availability of such material to children, parents . subject to strict scrutiny, Reno v. ACLU, 521 U.S. 844, 872 (1997), because such measures “have the constant potential to be a repressive force in the lives and thoughts of a free people.” Ashcroft v. ACLU, 542 U.S. 656, 660 (2004). App. App. 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. with certainty that the content will not reach a person under eighteen"). In this case, a convicted sex offender, … J.S. . 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." . 13, Some of the communications over the Internet that originate in foreign countries are also sexually explicit.14, Though such material is widely available, users seldom encounter such content accidentally. The Reach Of The CDA: Plaintiffs And Their SpeechC. 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. . . . J.S. We held that the statute was constitutional insofar as it applied to obscene messages but invalid as applied to indecent messages. § 223(d)(1)(A). . 1511 (1995). 50 See also Osborne v. Ohio, 495 U. S. 103, 121 (1990) (judicial rewriting of statutes would derogate Congress' "incentive to draft a narrowly tailored law in the first place"). at 28a, ¶39. 2010), was a United States Court of Appeals for the Tenth Circuit case assessing the constitutionality of Utah Code Ann. Sable, 492 U. S., at 126. Code Ann. Likewise, speakers who communicate in real time through chat rooms "cannot ensure that all readers are adults." App. The CDA's vagueness undermines the likelihood that it has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials. . But some of these same members of Congress now assert as amici that "[o]nline indecency was not intended and should not be held to have the same scope as broadcast indecency," and that the two standards "differ markedly." A severability clause requires textual provisions that can be severed. See id. . See Lessig, Reading the Constitution in Cyberspace, 45 Emory L. J. . at 100a. Since users can transmit and receive messages on the Internet without revealing anything about their identities or ages, see id., at 901, however, it is not currently possible to exclude persons from accessing certain messages on the basis of their identity. Id. . . . 45, U.S. Dep't of Commerce,Bureau of the Census,School Enrollment -- Socialand Economic Characters ofStudents: October 1992(Oct. 1993). This Court's cases allowing cities to use zoning regulations to prevent "secondary effects" caused by adult bookstores and theaters also fail to support a lower level of scrutiny in this case. Stuart Brotman Shiela Hawkins. Supp., at 854. 104-104, §552(1), 110 Stat. 2 ACLU v. Reno, 929 F.Supp. It has not done so. J.S. 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. Id. Amici and the government also offer inconsistent opinions about whether indecency excludes material of value and whether value is to be measured for adults or minors. at 191, the government below suggested that local community standards would apply. 41, The CDA Operates As A Flat Ban For All Speakers Using Newsgroups, Mail Exploders, Chat Rooms, And Commercial Online Services, And For All Noncommercial Speakers On The World Wide Web, The Burdens Of Age Verification For Content Providers On The World Wide Web Would Drive Many Speakers From The Marketplace, The Government May Not Require Speakers To Switch To Another Form Of Communication, Future Technology Cannot Save A Statute That Criminalizes Speech Today, Other, More Effective Means Exist To Empower Parents And Users, The CDA Is Not Narrowly Tailored To Address The Government's Newly Asserted Interest In Promoting Use Of The Internet. . . Id. . Even if the government had presented actual evidence -- which it did not -- that some parents were deterred from using the Internet because of the presence of sexual material, this would certainly not justify a content-based, criminal ban on protected speech. . Id. . It would confer broad powers of censorship, in the form of a "heckler's veto," upon any opponent of indecent speech who might simply log on and inform the would-be discoursers that his 17-year-old child-a "specific person ... under 18 years of age," 47 U. S. C. §223(d)(1)(A) (1994 ed., Supp. 824, 845 (ED Pa. 1996), much like a bouncer checks a person's driver's license before admitting him to a nightclub. . 390 U. S., at 633. . 882-885. . Id., at 735. at 13a-14a, ¶4. The doctrine of substantial overbreadth arose to permit facial challenges to laws that might have some permissible applications but that threaten a substantial quantity of constitutionally protected speech. . . . 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. Gov't Brief at 34. Code § 35-49-3-3(1) (Supp. Id. 17. . 14Id., at 848 (finding 117). 930 F.Supp. Stat. Jurisdictional Statement at 20. A speaker on the World Wide Web has no control over the "context" in which his speech is viewed; the material is simultaneously presented in potentially thousands of different "contexts" through the ad hoc linking feature of the Web. passim, Erznoznik v. City of Jacksonville,422 U.S. 205 (1975). Stevens argued that adults cannot be restricted to transmit and receive only those forms of speech that would be appropriate for children. There is, moreover, no agreedupon "tag" for those programs to recognize. The government fails to acknowledge another independent set of facts that were crucial to the trial court's conclusion that the CDA is not narrowly tailored. Some of these documents are simply files containing information. Cf., e. g., Brockett, 472 U. S., at 504-505 (invalidating obscenity statute only to the extent that word "lust" was actually or effectively excised from statute); United States v. Grace, 461 U. S. 171, 180-183 (1983) (invalidating federal statute banning expressive displays only insofar as it extended to public sidewalks when clear line could be drawn between sidewalks and other grounds that comported with congressional purpose of protecting the building, grounds, and people therein). . Id. . It is always true that only an "absolute ban" on adult speech "can offer certain protection against assault by a determined child." even if some applications would be `constitutionally unobjectionable.'" 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. Judicial Doctrines Safeguarding the Right to Free Speech ..... 1953 C. Government Regulation of … Id. . Steinhardt Test. . The Government has not proved otherwise. The government correctly conceded in the lower courts that the CDA must be subject to strict scrutiny because it is content-based. Feb. 1, 1996)(statement of Rep. Berman).29. § 617.294 (1987 and Supp. at 32a-35a.24. it now appears to have conceded that it has the burden of proof to show both a compelling interest and that the statute regulates least restrictively." §39-17911(a) (1991); Tex. Many more cases challenging state attempts to regulate the Internet have occurred, and are strengthening and solidifying the Reno v. ACLU decision. . In addition, the ACLU hosts online discussions on a variety of civil liberties topics, ranging from efforts to censor Howard Stern's best-selling book, "Private Parts," to a discussion of masturbation as part of a larger debate over the firing of former Surgeon General Jocelyn Elders. . or an anonymous remailer. . Nearly half of Internet communications originate outside the United States, and some percentage of that figure represents pornography. Reno v. ACLU: Transcript of Supreme Court Oral Argument. . . . II). 1997); Okla. . Stat. The Internet has no parallel in the history of human communication. § 11.66.300 (1996) (no minors in "adult entertainment" places); Ariz. Rev. . . The day the President signed the CDA into law, appellee American Civil Liberties Union (ACLU), joined by other organizations and individuals, filed suit in the United States District Court for the Eastern District of Pennsylvania against the Attorney General and the Department of Justice to challenge the constitutionality of the CDA's restrictions on indecent and patently offensive communications. This amendment, as revised, became § 502 of the Telecommunications Act of 1996, 110 Stat. Md. Each of the three judges wrote a separate opinion, but their judgment was unanimous. Ann. Id., at 879. II. 824, 830-849 (ED Pa. 1996).2 The findings describe the character and the dimensions of the Internet, the availability of sexually explicit material in that medium, and the problems confronting age verification for recipients of Internet communications. Pursuant to this strict scrutiny analysis, the District Court held that COPA placed too large a burden on protected expression. As this Court has said, "[n]o provision . II); 141 Congo Rec. Id., at 854-855. 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. For several reasons, this smokescreen should not divert the Court. 916 (S.D.N.Y. While there was no dispute during the preliminary injunction proceedings that some sexually oriented material is available on the Internet, id. Yet, that is precisely what the CDA does. See J.S. § 975-11 (1994); Mo. 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. . Id. A number of plaintiffs filed suit challenging the constitutionality of §§ 223(a)(I) and 223(d). . 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