Transcript:
Argument of Justice Thomas
Mr. Thomas: I have the opinion of the court to announce in two cases.
The first is Ashcroft versus American Civil Liberties Union, No. 00-1293.
The case comes to us on a writ of certiorari to the Court of Appeals for the Third Circuit.
Congress passed the Child Online Protection Act in an attempt the restrict minors access to pornographic material on the internet.
The Act prohibits any person from knowingly and with knowledge of the character of the material in interstate of foreign commerce by means of a World Wide Web making any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors.
In defining material that is harmful to minors, the Act draws down the three-part test for obscenity set forth in our decision in Miller versus California some 30 years ago, and that requires jurys to apply contemporary community standards in assessing the material.
The respondents who post or have members that post sexually oriented material on the web brought a facial challenge before the Act went into effect claiming that it violated the First Amendment.
The District Court issued a preliminary injunction barring the government from enforcing the Act because it thought the statute was unlikely to survive strict scrutiny.
The Court of Appeals affirmed but based its decision on the ground not relied on by the District Court.
The Court of Appeals observed that because web publishers currently do not have any means of limiting access to their sites based on the geographic location of internet users, the Act would effectively force all speakers on the web to abide by the most puritan community standard.
As a result, the Court of Appeals concluded that COPA which is the acronym for this law use of contemporary community standards to identify material that is harmful to minors rendered the statutes substantially over broad.
In an opinion authored by Justice Thomas and filed with the Clerk today, we vacate the judgment of the Court of Appeals and remand the case for further proceeding.
We hold that COPA’s reliance on community standards to identify material that is harmful to minors does not render the statute facially unconstitutional.
Justice O’Connor has filed a opinion concurring in part and concurring in the judgment; Justice Breyer has filed an opinion concurring in part and concurring in the judgment; Justice Kennedy has filed an opinion concurring in the judgment and which Justice Souter and Justice Ginsburg has joined, and Justice Stevens has filed a dissenting opinion.
