Scorecard and Headcount of the United States Supreme Court
in Ashcroft v. ACLU
Members FOR Local Standards Members AGAINST Local Standards





Plurality Opinion of Thomas, III-A at 12, joined by Rehnquist and Scalia only.

In the context of this case, which involves a facial challenge to a statute that has never been enforced, we do not think it prudent to engage in speculation as to whether certain hypothetical jury instructions would or would not be consistent with COPA, and deciding this case does not require us to do so. It is sufficient to note that community standards need not be defined by reference to a precise geographic area. See Jenkins v. Georgia, 418 U. S. 153, 157 (1974) (.A State may choose to define an obscenity offense in terms of .contemporary community standards. as defined in Miller without further specification . . . or it may choose to define the standards in more precise geographic terms, as was done by California in Miller.). Absent geographic specification, a juror applying community standards will inevitably draw upon personal .knowledge of the community or vicinage from which he comes. Hamling, supra, at 105.


Part III-C, 15-17, 19, joined by Rehnquist and Scalia only.

When the scope of an obscenity statute.s coverage is sufficiently narrowed by a .serious value. prong and a.prurient interest. prong, we have held that requiring a
speaker disseminating material to a national audience to observe varying community standards does not violate the First Amendment. In Hamling v. United States, 418 U. S. 87 (1974), this Court considered the constitutionality of applying community standards to the determination of whether material is obscene under 18 U. S. C. §1461, the federal statute prohibiting the mailing of obscene material. Although this statute does not define obscenity, the petitioners in Hamling were tried and convicted under the definition of obscenity set forth in Book Named .John Cleland.s Memoirs of a Woman of Pleasure. v. Attorney General of Mass., 383 U. S. 413 (1966), which included both a .prurient interest. requirement and a requirement that prohibited material be . .utterly without redeeming social value.. . Hamling, supra, at 99 (quoting Memoirs, supra, at 418).

This Court, however, rejected Justice Brennan.s argument that the federal mail statute unconstitutionally compelled speakers choosing to distribute materials on a national basis to tailor their messages to the least tolerant community: .The fact that distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials does not render a federal statute unconstitutional.. Id., at 106.

If a publisher chooses to send its material into a particular community, this Court.s jurisprudence teaches that it is the publisher.s responsibility to abide by that community.s standards. The publisher.s burden does not change simply because it decides to distribute its material to every community in the Nation. See Sable, supra, at 125.126. Nor does it change because the publisher may wish to speak only to those in a .community where avant garde culture is the norm,. post, at 6 (KENNEDY, J., concurring in judgment), but nonetheless utilizes a medium that transmits its speech from coast to coast. If a publisher wishes for its material to be judged only by the standards of particular communities, then it need only take the simple step of utilizing a medium that enables it to target the release of its material into those communities.14



O'Connor, Concurrence at 2:

Nor do I think such future cases can be resolved by
application of the approach we took in Hamling v. United States, 418 U. S. 87 (1974), and Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989). I agree with JUSTICE KENNEDY that, given Internet speakers. inability to control the geographic location of their audience, expecting them to bear the burden of controlling the recipients of their speech, as we did in Hamling and Sable, may be entirely too much to ask, and would potentially suppressoan inordinate amount of expression.

Breyer, Concurrence at 2.

To read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler.s Internet veto affecting the rest of the Nation. The technical difficulties associated with efforts to confine Internet material to particular geographic areas make the problem particularly serious. . . And these special difficulties also potentially weaken the authority of prior cases in which they were not present. . . A nationally uniform adult based standard.which Congress, in its Committee Report, said that it intended.significantly alleviates any special need for First Amendment protection. Of course some regional variation may remain, but any such variations are inherent in a system that draws jurors from a local geographic area and they are not, from the perspective of the First Amendment, problematic.

Kennedy Concurring in the Judgment 3 5-6 , Joined by Souter and Ginzburg

The Court of Appeals found that COPA in effect subjects every Internet speaker to the standards of the most puritanical community in the United States. This concern is a real one, but it alone cannot suffice to invalidate COPA without careful examination of the speech and the speak ers within the ambit of the Act. For this reason, I join the judgment of the Court vacating the opinion of the Court of Appeals and remanding for consideration of the statute as
a whole. Unlike JUSTICE THOMAS, however, I would not assume that the Act is narrow enough to render the national variation in community standards unproblematic. Indeed, if the District Court correctly construed the statute across its other dimensions, then the variation in community standards might well justify enjoining enforcement of the Act. I would leave that question to the Court of Appeals in the first instance. . . It is true, as JUSTICE THOMAS points out, ante, at 16.19, that requiring a speaker addressing a national audience to meet varying community standards does not always violate the First Amendment. See Hamling v. United States, 418 U. S. 87, 106 (1974) (obscene mailings); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 125.126 (1989) (obscene phone messages). These cases, however, are of limited utility in analyzing the one before us, because each mode of expression has its own unique characteristics, and each .must be assessed for First Amendment purposes by standards suited to it.. Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 557 (1975). Indeed, when Congress purports to abridge the freedom of a new medium, we must be particularly attentive to its distinct attributes, for .differences in the characteristics of new media justify . . . differences in the First Amendment standards applied to them.. Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 386 (1969). The economics and the technology of each medium affect both the burden of a speech restriction and the Government.s interest in maintaining it. In this case the District Court found as a fact that
.[o]nce a provider posts its content on the Internet and chooses to make it available to all, it generally cannot prevent that content from entering any geographic community.. American Civil Liberties Union v. Reno, 31 F. Supp. 2d 473, 484 (ED Pa. 1999). By contrast, in upholding a ban on obscene phone messages, we emphasized that the speaker could .hire operators to determine the source of the calls or engag[e] with the telephone company to arrange for the screening and blocking of out-of-area calls or fin[d] another means for providing messages compatible with community standards.. Sable, supra, at 125. And if we did not make the same point in Hamling, that is likely because it is so obvious that mailing lends itself to geographic restriction. (The Court has had no occasion to consider whether venue would be proper in .every hamlet into which [obscene mailings] may wander,. Hamling, supra, at 144 (dissenting opinion), for the petitioners in Hamling did not challenge the statute as overbroad on its face.) A publisher who uses the mails can choose the location of his audience.
The economics and technology of Internet communication differ in important ways from those of telephones and mail. Paradoxically, as the District Court found, it is easy and cheap to reach a worldwide audience on the Internet, see 31 F. Supp. 2d, at 482, but expensive if not impossible to reach a geographic subset, id., at 484. A Web publisher in a community where avant garde culture is the norm may have no desire to reach a national market; he may wish only to speak to his neighbors; nevertheless, if an eavesdropper in a more traditional, rural community chooses to listen in, there is nothing the publisher can do.As a practical matter, COPA makes the eavesdropper the arbiter of propriety on the Web. And it is no answer to say that the speaker should .take the simple step of utilizing a [different] medium.. Ante, at 19 (principal opinion of THOMAS, J.). .Our prior decisions have voiced particular concern with laws that foreclose an entire medium of expression . . . . [T]he danger they pose to the freedom of
speech is readily eliminating a common means of speaking, such measures can suppress too much speech.. City of Ladue v. Gilleo, 512 U. S. 43, 55 (1994).

Stevens Dissent, 4-5

If the material were forwarded through the mails, as in
Hamling, or over the telephone, as in Sable, the sender could avoid destinations with the most restrictive standards. Indeed, in Sable, we upheld the application of community standards to a nationwide medium because the speaker was .free to tailor its messages . . . to the communities it chooses to serve,. by either .hir[ing] operators to determine the source of the calls . . . [or] arrang[ing] for the screening and blocking of out-of-area calls.. 492 U. S., at 125 (emphasis added). Our conclusion that it was permissible for the speaker to bear the ultimate burden of compliance, id., at 126, assumed that such compliance was at least possible without requiring the speaker to choose another medium or to limit its speech to what all would find acceptable. Given the undisputed fact that a provider who posts material on the Internet cannot prevent it from entering any geographic community, see ante, at 11, n. 6 (opinion of THOMAS, J.), a law that criminalizes a particular communication in just a handful of destinations effectively prohibits transmission of that message to all of the 176.5million Americans that have access to the Internet, see ante, at 2, n. 2 (opinion of THOMAS, J.). In light of this fundamental difference in technologies, the rules applicable to the mass mailing of an obscene montage or to obscene dial-a-porn should not be used to judge the legality of messages on the World Wide Web.

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