No. 96-511

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

JANET RENO, ATTORNEY GENERAL OF THE UNITED
STATES, ET AL., APPELLANTS

v.

AMERICAN CIVIL LIBERTIES UNION, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RELY BRIEF FOR THE APPELLANTS

WALTER DELLINGER
Acting Solicitor General
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

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TABLE OF AUTHORITIES

Cases:                   Page

Alaska  Airliners, Inc. v. Brock, 480 U. S. 678
(1987) . . . . 20
American Booksellers v. Webb, 919 F.2d 1493
(llth Cir.1990), cert. denied, 500 U.S. 942(1991) . . . . 5
Bolger  v. Youngs Drug Prods. Corp, 463 U.S. 60
(19830 . . . . 7
Boos v. Barry, 485 U.S. 312 (1988) . . . . 6
Butler v. Michigan, 352 U. S. 380 (1957) . . . . 7
Church of Lukimi  Babalu  Aye v. City of Hialeah,
508 U.S. 520 (1993) . . . . 16
City of  Renton v. Playtime Theaters, Inc., 475 U.S.
41(1986) . . . . 3, 8
Consolidated Edison Co. v. Public Serv. Comm'n,
447 U.S. 530 (1980) . . . . 4
Denver Area Educ. Telecommunications Consortium
V. FCC, 116 S. Ct. 2374 (1996) . . . . 8, 17, 18
FCC v. Pacifica Foundation, 438 U.S. 726
(1978) . . . . 2,4
Ginsberg v. New York, 390 U.S. 629 (1968) . . . . 2, 16, 18
Hartford Fire Ins. Co. v. California, 509 U.S. 764
(1993) . . . . 16
INS v. Chadha, 462 U.S. 919 (1983) . . . . 20
Jenkins v. Georgia, 418 U.S. 153 (1974) . . . . 18
M.S. News Co. v. Casado, 721 F.2d 1281 (10th
Cir. 1983) . . . . 6
Miller V. California, 413 U.S. 15 (1973) . . . . 18, 19
Sable Communications v. FCC, 492 U.S. 115
(1989) . . . . 7, 19
Shea  v. Reno, 930 F. Supp. 916 (S.D.N.Y. 1996),
appeal pending, No. 96-595 . . . . 19
Turner Broadcasting Sys. Inc. v. FCC, 512 U.S.
622 (1994) . . . . 15
Upper Midwest Booksellers Ass'n v. City of
Minneapolis, 780 F.2d 1389 (8th Cir. 1986) . . . . 5-6

(I)

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II

Cases-Continued:              Page

Yee v. City of Escondido, 503 U.S. 519 (1992) . . . . 1
Young v. American Mini Theatres, Inc., 427
U.S. 50 (1976) . . . . 8
Constitution and statute:
U.S. Const. Amend. I . . . . 1, 2
Communications Decency Act of 1996, Pub. L.
No. 104-104, 110 Stat. 133 . . . . 1
  47 U.S.C. 223(a)(1)(B) . . . . 1
47 U.S.C. 223(d) (1) . . . .  17
  47 U.S.C. 223(d)(l)(A) . . . . 1
  47 U.S.C. 223(d)(l)(B) . . . . 1, 6
  47 U.S.C. 223(e)(5) . . . . 2, 6
  47 U.S.C. 223(e)(5)(A) . . . . 12

Miscellaneous:

American Heritage Dictionary (3d  ed. 1992) . . . . 17
141 Cong. Rec. (daily cd.):
p. S8092 (June 9, 1995) . . . . 13
p. S8339 (June 14, 1995) . . . . 14
pp. S8339-S8340 . . . .  14
p. S8473 (June 15, 1995) . . . .  13
Cyberporn and Children: The Scope of the Problem,
the State of the Technology, and the Need for
Congressional Action, Hearing Before the Senate
Comm, on the Judiciary, 104th Cong., 1st. Sess.
(1995) . . . . 14
H.R. Conf. Rep. No. 458, 104th Cong., 2d Sess.
(1996) . .. . .17, 19
Katie Hafner, Look Who's Talking, Newsweek,
Feb. 17, 1997 . . . . 10
Linton Weeks, A Safety Net for Children, Wash.
Post, Feb. 27, 1997 . . . . 4, 15

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 REPLY  BRIEF FOR THE APPELLANTS

    As we argue in our opening brief, the "transmission"
(47 U.S.C. 223(a)(l)(B)), "specific child" (47 U.S.C.
223(d)(l)(A)), and "display" (47 U.S.C. 223(d)(l)(B)) provi-
sions of the Communications Decency Act of 1996 (CDA)
(Pub. L. No. 104-104, 110 Stat. 133) are facially constitu-
tional. All three provisions constitutionally advance two
overriding government interests  protecting children
from the harmful effects of sexually explicit patently of-
fensive communications, and facilitating the First Amend-
ment interest of parents and children in using the In-
ternet and other interactive computer services.
    la.  Appellees devote very little effort to defending the
district court's invalidation of the transmission and spe-
cific child provisions. Instead, appellees argue (ALA Br.
46;  ACLU  Br.46) that the Court should not consider the
government's arguments on those provisions because the
government did not argue below that they have a narrower
scope than the display provision. In fact, however, the
government made the same argument in the district court
that it is making now, except in abbreviated form. U.S.
Opp. to Mot. to Aff. 3.
    In any event, in framing the questions presented for
review by this Court, the government was not required to
limit itself to the precise arguments made below. Yee  v.
City of Escondido, 503 U.S. 519, 534-535 (1992). In our
jurisdictional statement, we presented a separate question
concerning the validity of each provision, and we argued
that the transmission and specific child provisions are
narrower than the display provision and easily survive
constitutional analysis. J.S. I, 20-21. We reiterated that
argument in our opposition to the motion to affirm (at 2-4).
That argument is therefore properly before the Court.
    b. Appellees contend (ALA  Br. 44; ACLU  Br. 47) that
we have not made clear whether the transmission and
specific child provisions are limited to situations in which

(1)

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2

the sender knows that the only persons receiving the
communication are under 18, or whether those provisions
also apply when the sender knows that at least one of the
recipients is under 18. In our opposition to the motion to
affirm (at 4 n.1), however, we explained that the provisions
apply to both situations. We have never suggested other-
wise.
     c. ACLU contends (Br. 47) that Congress could not
have intended to limit the transmission and specific child
provisions to situations in which the sender knows that a
particular recipient is a minor, because the statutory de-
fenses apply to those provisions, and it would be "non-
sensical" to permit someone who committed such a know-
ing violation to assert a "good faith" or "verified credit
card" defense. Section 223(e)(5), however, establishes a
"defense to prosecution," and Congress reasonably could
have decided to add an additional layer of protection in
order to relieve persons without the relevant knowledge
from having to litigate that issue. Thus, if a speaker sends
an indecent message to a minor, and the speaker can show
that the minor used a verified credit card, the speaker will
not be required to litigate the question of whether he
knew that the recipient was a minor. There is nothing
"nonsensical" about that approach. In any event, ACLU's
concerns do not provide any basis for ignoring the text of
the transmission and specific child provisions, both of
which clearly impose a knowledge requirement.
    d. Appellees contend (ALA Br. 44-45; ACLU Br. 47-48)
that, even when the transmission and specific child provi-
sions are construed in the manner we have suggested,
they are facially unconstitutional.  That contention is
without merit.
    As we explain in our opening brief (at 19-20), Ginsberg v.
New York, 390 U.S. 629 (1968), and FCC v. Pacifica
Foundation, 438 U.S. 726 (1978), establish that there is no
First Amendment right to disseminate indecent material

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to children. As applied to situations in which the sender
knows that the only recipients are children, the transmis-
sion and specific child provisions are indistinguishable
from the prohibition on the sale of indecent material to
children upheld in Ginsberg and are therefore clearly con-
stitutional.
    The transmission and specific child provisions are also
constitutional as applied to situations in which a person
disseminates information to a group, knowing that at least
one of the members of the group is a minor. Requiring
someone to refrain from disseminating an indecent com-
munication to such a mixed group does not significantly
burden adult-to-adult communications. For example, if a
person who wants to transmit an indecent communication
learns that one of the persons in a chat group is under 18,
he can simply tell the child to leave the chat room and wait
for the child to sign off, or he can invite the adults to
another chat room.
    In daily life, adults having a sexually explicit con-
versation ordinarily would not think of continuing the
conversation when a child walked into the room and could
overhear what was being said. Instead, the child would be
told to leave the room, or the adults would arrange to have
the conversation at a different place or a different time.
The transmission and specific child provisions do nothing
more than require adults to exercise that same degree of
responsibility when they use the Internet.
    2. As we argue in our opening brief (at 28-33), the dis-
play provision is constitutional under the principles estab-
lished in Pacifica and City of Renton v. Playtime Thea-
tres, Inc., 475 U.S. 41 (1986). Those cases hold that, in lim-
ited circumstances, government may adopt reasonable
time, place, or manner restrictions that apply exclusively
to indecent content. Pacifica holds that such restrictions
are permissible when indecent communications perva-
sively invade the home; Renton holds that such restric-

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4

tions are permissible when they are aimed at the secon-
dary effects of indecent communications. Both justifica-
tions are present here. 1.
    a. Appellees contend (ALA Br. 26-27; ACLU Br. 24)
that Pacifica is distinguishable because its approval of the
FCC's approach depended on the likelihood that persons
would chance upon indecent broadcasts inadvertently.
There is a significant danger of inadvertent exposure to
indecent material on the Internet as well. 2  More signifi-
cant, however, the danger of inadvertent exposure was not
a necessary element of the decision in Pacifica. The FCC
relied on that factor only because one reason for its
restriction was the protection of unconsenting adults. 438
U.S. at 731 n.2. The principal reason for the restriction in
pacifica was the FCC's "special concern" that "children
have access to radios and in many cases are unsupervised
by parents." Ibid. That concern for unsupervised access
exists regardless of whether children inadvertently
stumble upon indecent material or deliberately search for
it. The lesson of Pacifica is that when the danger that

___________________(footnotes)

    1  In general, time, place, or manner restrictions that address speech
on the basis of content are subject to strict scrutiny. Consolidated
Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 536(1980). Pacifica
and  Renton  create narrow exceptions to that general principle. Be-
cause the display provision is constitutional under Pacifica and Renton,
it need not be subjected to strict scrutiny. In any event, for the reasons
set forth here and in our opening brief, the display provision is nar-
rowly tailored to further two compelling interests. Thus, even if strict
scrutiny were applicable, the display provision would be Facially
constitutional.

    2  See Linton Weeks, A Safety Net For Children, Wash. Post, Feb.
27,1997, at B1 (noting that while the search term "eruption'' recovered
sites containing valuable information on the earth's crust, its first
retrievable site was titled "Eruption" and promised "all nude" sex,
"[a]ll presented in a manner designed to ensure your eruption''); see also
Gov't Br. 29 ("Jasmine,"  "Sleeping Beauty," and "Little Women"
retrieved long lists of sexually explicit sites).

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5

children  will  obtain access to indecent material becomes
sufficiently serious, government may channel the indecent
communications  so  as  to  minimize the risk that children
will be exposed.
    The  danger  that  unsupervised children will obtain ac-
cess to indecent material is especially acute on the In-
ternet. As we explain in our opening brief (at 28-29), the
amount of indecent material on the Internet is staggering,
and many children have a strong proclivity to seek it out.
Moreover, it may even be more difficult to supervise a
child's Internet use than his television use. Because of its
educational importance, many parents may want their
children to use the Internet for significant periods of time,
including when the parents are away;  a computer may
often be located in a child's bedroom, making effective
monitoring more difficult; and even parents who check
which television shows their children are watching may
simply not have the time or patience to watch their chil-
dren conduct extended Internet searches. Thus, in many
ways, there is even a stronger justification for the display
provision than for the restriction upheld in Pacifica.
    b. Appellees' attempt to distinguish Renton is also
unsuccessful.  Appellees contend (ALA Br. 28;  ACLU  Br.
25-26) that the effect of patently offensive communications
on children is a primary rather than a secondary effect.
The primary effect of constitutionally protected adult-to-
adult communication, however, is on adults. The harm to
children  is  a  secondary,  spillover effect of that constitu-
tionally protected adult-to-adult expression. See Ameri-
can Booksellers v. Webb, 919 F.2d 1493, 1502 n.16 (11th
Cir. 1990) (identifying harm to children from display of
sexually explicit magazines in retail stores as secondary
effect that justified requirement that stores put maga-
zines in opaque wrappers), cert. denied, 500 U.S. 942 (1991);
see also Upper Midwest Booksellers Ass'n. v. City of Min-
neapolis, 780 F.2d 1389 (8th Cir. 1986) (upholding wrapper

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6

law as reasonable time, place, and manner restriction);
M.S. News Co. v. Casado, 721 F.2d 1281 (10th Cir. 1983)
(same).
    Appellees' reliance (ALA Br. 28) on Boos v. Barry, 485
U.S. 312 (1988), is misplaced. There, the Court stated that
"[regulations. that focus on the direct impact of speech on
its audience" cannot be justified under Renton. Id. at 321.
Because there is no constitutionally protected right to
disseminate indecent material to children, the relevant
"audience" here consists entirely of adults. Thus, while a
law premised on the view that indecent material causes
psychological damage to adults could not be justified under
Renton, a law premised on the view that such material
harms children can  be.
    As we explain in our opening brief (at 30-31), the display
provision is also addressed to the danger that parents will
be deterred from bringing the Internet into their homes
because of concern for their children. That danger is one
step further removed from the impact of the communica-
tions on adults and is even more clearly a secondary effect.
    3. Appellees contend (ALA Br. 14-25; ACLU  Br. 21-22)
that the display provision is not a time, place, or manner
restriction, but is instead an absolute ban on constitution-
ally protected adult-to-adult communication. The display
provision, however, does not legally prohibit the dissemi-
nation of indecent communications to adults. It prohibits
only those communications that are displayed "in a man-
ner available to a person under 18 years of age," 47 U.S.C.
223(d)(l)(B), and it establishes a defense to prosecution for
persons who restrict minors' access to their indecent
postings through a credit card, adult identification num-
ber, or any other effective means, 47 U.S.C. 223(e)(5). The
display provision therefore expressly permits adults to
disseminate indecent material to other adults. It limits
only the place and manner in which indecent material may
be communicated.

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7

    a. Appellees nonetheless contend (ALA Br. 16-21) that
the display provision should be regarded as an absolute ban
because of the technical difficulties of screening children
from certain areas of the Internet and because of the costs
and burdens associated with screening children from
others. This Court has never treated a regulation that
legally permits  adult-to-adult  indecent communication as a
ban. All three cases relied upon by  appellees  involved legal
prohibitions against the dissemination of information to
adults. Sable Communications v. FCC, 492 U.S. 115
(1989); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60
(1983); Butler  v. Michigan,352 U.S. 380(1957). To accept
appellees' contention that the display provision consti-
tutes a ban on protected speech would require a dramatic
extension of those cases. 3. 
     It may be reasonable to equate technological impossibil-
ity with a ban. But appellees' contention that the costs
and burdens of utilizing means that are technically feasi-
ble transform a time, place, or manner restriction into a
ban eliminates any distinction between flat ban and other
restrictions on constitutionally protected speech  The
costs and burdens of complying with a time, place, or

___________________(footnotes)

    3 Appellees also contend (ACLU Br. 21-22) that a ban on indecent
speech is per se unconstitutional.  The three cases relied upon by
appellees do not support that contention. In each of those cases, there
was an alternative to a ban that would have effectively served the gov-
ernment's interest. Sable, 492 U.S. at 128-130 (ban on dissemination of
indecent messages held unconstitutional when credit card, access code,
and scrambling rules would be effective in protecting children); Bolger,
463 U.S. at 73 (ban on use of mail to send unsolicited advertisements for
contraceptive products held unconstitutional when parents could either
prevent such information from reaching their mailboxes or could exert
sufficient control of what entered their mail boxes to prevent unwanted
mailings from reaching children); Butler, 352 U.S. at 383 (ban on sale to
adults of books deemed harmful to children held unconstitutional when
prohibition on sale of such books to children would satisfy State's
interest).

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8

manner restriction will almost always cause some persons
to refrain from speaking. What distinguishes a ban from
other speech-related regulations is the certainty and
universality of its effect. See Denver Area Educ. Tele-
communications  Consortium v. FCC, 116 S. Ct. 2374, 2387
(1996) (noting that a distinguishing feature of a govern-
mental ban is its "certainty"). In assessing whether the
display provision is the equivalent of a ban, the relevant
inquiry should therefore be whether there are technically
feasible means for adult-to-adult communication, not
whether the use of available technology to screen children
entails burdens and costs  that  deter some or even many
from speaking.
    That distinction is supported by Renton. There, the
Court upheld a zoning scheme that restricted the places in
which adult theaters could locate. While more than 5% of
the land in the city was technically available for the
opening of adult theaters, the theater operators asserted
that none of the existing sites were "commercially viable."
475 U.S. at 52. The Court rejected the operators' conten-
tion that the zoning scheme therefore effectively operated
as a ban on speech, relying in part on Justice Powell's
observation in Young v. American Mini Theatres, 427
U.S. 50, 78 (1976) (concurring opinion), that "[t]he inquiry
for First Amendment purposes is not concerned with eco-
nomic impact." Renton, 475 US. at 54.
    Appellees argue (ALA Br. 23) that a restriction should
be viewed as a ban unless, as a practical matter, speakers
can reach the audience they  want to reach at the time they
want to reach it.  That view cannot be squared with
Pacifica or Renton. As a practical matter, programmers
who are limited to late-night hours are unlikely to obtain
the same audience they could obtain during prime time,
and adult theaters that locate miles away from residential
areas may not attract the same audience they would if
they were closer. That kind of practical consequence does

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9

not transform a time, place, or manner restriction into a
ban. In general, speakers are entitled to no more than a
reasonable opportunity to reach their intended audience.
    b. Appellees  concede  (ALA  Br.18) that it is technologi-
cally possible for speakers to screen forage on the World
Wide Web. Under the correct legal standard, that con-
cession is sufficient to dispose of appellees' contention
that the display provision is the equivalent of a ban on
adult-to-adult  communication of indecency.  The Web
affords almost unlimited opportunities for those who are
so inclined to disseminate and receive patently offensive
communications.  And with the use of available screening
technologies, all but the most determined children can be
prevented from obtaining access to that material. 4.
    ALA contends (Br. 23) that chat rooms, newsgroups, and
mail exploders (none of which had been developed on the
Web at the time of the preliminary injunction (PI) hear-
ing) involve distinctive forms of communication. But ALA
does not identify what makes those forms of com-
munication so distinctive that communication through the
Web (as it existed at the time of the PI hearing) would not
largely serve the same purpose. ACLU asserts (Br. 33)
that telling someone who is in a chat room that she must
switch to the Web before disseminating patently offensive

    ___________________(footnotes)
    
    4 ALA's assertion (Br. 18) that AOL subscribers cannot screen for
age on the Web sites made available to them is somewhat misleading.
While AOL subscribers would have to establish a site through a
different server in order to screen for age, AOL subscribers can obtain
access to all Web sites through AOL (including those that screen for
age). ACLU's contention (Br. 28) that the display provision operates as
a ban on persons who want to put content on AOL sites reflects a
misuse of the term "ban." Such persons can simply establish a Web
site through a different service provider-or AOL itself could conform
its Web-posting software to that used by many others. By ACLU's
logic, the FCC policy in Pacifica was a "ban" on broadcasting indecent
material  and  the  ordinance  in  Renton was a "ban" on adult  theaters.

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10

material "is analogous to requiring a speaker chatting on
a street corner, before [communicating indecency], to stop
mid-sentence, leave the corner, write `down her thoughts,
and have them published and sold at a bookstore that
screens out minors." Once a person has established a Web
site that screens for age, however, our proposed "chat
room to Web site switch" is much more analogous to an
adult talking to members of the public on a street corner,
starting to discuss the latest X-rated movie in graphic
terms, noticing that children may overhear the conversa-
tion, and then asking the group to accompany her across
the street so that she can complete her thoughts outside
the presence of children.
    Moreover, appellees' concerns about the inability to en-
gage in "distinctive" forms of communication have largely
become moot since the time of the PI hearing. As we
explain in our opening brief (at 37-38 & n.10), since the
time of that hearing, chat rooms and newsgroups have
begun to proliferate on the Web. A recent Newsweek
article documents that trend. Katie Hafner, Look Who's
Talking, Newsweek, Feb. 17, 1997, at 70-72. 5.  While appel-

___________________(footnotes)    
                          
5 Among others, Newsweek lists the following chat rooms and dis-
cussion groups:
    (1) www.chat.yahoo.com: "Its approach is to center chat on the
    categories in the directory."
    (2) www.talk.com: "Created by [appellee]  HotWired[]  the uncen-
    sored chat here is in keeping with Wired's cyber-libertarian phi-
    losophy."
    (3) www.wbs.net: "Chatters on this popular system can put a
    picture of themselves next to their typed text."
    (4) www.talkcity.com: "300-plus chat rooms. It also provides a
    calendar with dates and times when special-interest chats are
    taking place."
    (5) www.minds.com: "[E]mphasiz[es] conferenc[es]" in which
    "conversations take place as a series of postings organized into dif-

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11

lees correctly note (ACLU  Br. 32-33) that no evidence was
presented to that effect at the PI hearing, it is telling that
they do not dispute our assertion concerning the status of
the Web todays Having enacted the display provision at a
time when the Web already provided wide-ranging opportu-
nity to communicate indecent material to adults, Congress
could reasonably rely on such market developments to
afford even greater opportunity for such communication.
    4. As we acknowledge in our opening brief (at 39), the
cost of complying with the display provision is relevant to
the constitutional inquiry. When a limitation on speech
imposes significant costs, and a much less costly alterna-
tive would serve the government's interest equally well,
government must choose the less burdensome alternative.
But the costs of complying with the display provision are
reasonable, and there is no alternative that would vindi-
cate the government's interest equally well.
    a. Appellees rely (ALA Br. 18) on a district court find-
ing (J.S. App. 74a) that it would be "prohibitively expen-
sive" for many speakers to operate adult verification sys -
tems. But as appellees acknowledge (ALA Br. 21), many
commercial providers already require credit cards for the
purchase of their material. The district court did not
suggest that compliance with the display provision would
be prohibitively expensive for them. Even as to noncom-
mercial providers, the district court's finding addresses
only the cost of creating and operating an adult verifica-
tion system by oneself. That is not the only option.
Appellees may pool their resources and create and main-

___________________(footnotes)

        ferent topics. * * * Postings * * * stay up on the system for
        months at a time."

    6. The district court anticipated this development. See J.S. App. 32a
("Because of the rapidity of developments in this field, some of the
technological facts we have found may become partially obsolete by the
time of publication of these findings.").

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tain a common. adult verification system. Alternatively,
appellees may hire another entity to provide such a service
for them. The district court did not find that either one of
those alternatives would be prohibitively expensive?
    In assessing the reasonableness of the costs of com-
pliance, it is also significant that they do not come in the
form of an undifferentiated tax. All the display provision
requires is that speakers bear whatever costs are neces-
sary to prevent their communications from harming chil-
dren. Equally important, Congress expressly provided a
forward-looking, open-ended defense that allows a person
to use any method for screening that is effective. 47
U.S.C. 223(e)(5)(A). As the private market and technology
volve, the costs associated with protecting children are
likely to become trivial.
     b. Appellees contend (ALA Br. 34-37;  ACLU  Br. 36-37)
that parental control software provides a more effective
and less restrictive means of protecting children from
Internet indecency. But  as we explain in our opening brief
(at 40-41), parental control software programs that at-
tempt to screen out indecent sites are not effective
because they can neither find all existing indecent sites
nor keep pace with the explosion of new ones. At the same

___________________(footnotes)

    7  As we explain in our opening brief (at  36), third-party  verification
systems already exist that do not charge content providers for their
services. While appellees do not wish to be associated with services
that cater to pornographic sites, nothing would prevent appellees from
using their market power to secure the services of an entity that would
serve non-pornographic sites. Appellees' concern (ALA Br. 19) that per-
sons will not purchase adult IDs in order to visit a single site is
misguided. An adult ID, which can be purchased for a small fee, would
entitle a person to visit multiple sites over an extended period.
Appellees' desire to distribute their material cost-free (ibid.) and to
remain completely anonymous (ACLU Br. 32) cannot take precedence
over the interests in protecting children from the harmful effects of
patently offensive communications and in ensuring that everyone
enjoys the educational benefits of the Internet.

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time, parental control software programs that screen out
all sites except those that have been rated decent are
effective in screening out indecent sites, but provide
access to only a minuscule portion of the Internet. Reli-
ance on such software would therefore defeat the govern-
ment's ability to further the interests of parents and
children in obtaining the educational benefits of the
Internet. All existing software, including that provided by
the major on-line services, suffers from one of those two
deficiencies.  Congress therefore reasonably concluded
that, while parental control software could provide part of
the answer to the problem of indecency on the Internet, it
could not provide the full answer. Gov't Br. 40.
    The district court did not conclude otherwise. Judges
Sloviter and Buckwalter pointedly refrained from con-
cluding that parental control software was a less restric-
tive alternative that would effectively vindicate the gov-
ernment's interests. See J.S. App. 77a-81a (Sloviter, J.);
id. at 86a-87a (Buckwalter, J.). 8
    5. a. Appellees contend (ALA Br. 30-31) that Congress
did not have evidence that patently offensive communica-
tions on the Internet pose a serious problem.  But
proponents and opponents of the CDA agreed that the
problem was a serious  one, 9  and the evidence introduced at
trial confirms the pervasive nature of the problem. The

___________________(footnotes)    

    8 Although Judge Dalzell identified blocking software as an option
available to parents, he did not rely on such software to conclude that
the statute was constitutionally infirm. J.S. App. 146a. Contrary to
ACLU's assertion (Br. 36), Judge Dalzell's statement is not a Winding"
of the district court.
    9 E.g., 141 Cong. Rec. S8092 (daily ed. June 9, 1995) (remarks of
Sen. Kerrey) (" I am prepared to acknowledge, and I think we should all
acknowledge, there is a serious problem here."); id. at S8473 (daily ed.
June 15, 1995) (remarks of Sen. Robb) (noting "the widespread avail-
ability  of materials on the Internet that are entirely inappropriate for
children"); Gov't Br. 6-7.

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14

government's expert conducted a search of the Internet
for pornography using the most obvious search terms and
retrieved long lists of sites containing sexually explicit
pictures. See generally J.A. 1-42 (declaration of Howard A.
Schmidt). A notebook accompanying the expert's declara-
tion contains the results of his search and leaves no doubt
that Congress was addressing an extremely serious prob-
lem. 
    b. Appellees argue (ALA Br. 31-32; ACLU  Br. 26) that
Congress did not assert an interest in ensuring that
parents would not be deterred from using the Internet
when it enacted the CDA and that the government there-
fore may not assert such an interest now. The leading
supporters of the CDA, however, clearly voiced that inter-
est. 10 . Appellees also assert (ALA Br. 31-32; ACLU  Br. 30)
that Congress did not have sufficient evidence to support
its conclusion about the effect of indecency on Internet
use. But Congress did not need to compile an evidentiary
record to know that, if pornography remained freely

___________________(footnotes)

    10 Cyberporn and Children: The Scope of the Problem, the State of
the Technology, and the Need for Congressional Action: Hearing Before
the Senate Comm. on the Judiciary, 104th Cong., lst. Sess. 7 (1995)
(opening statement of Sen. Grassley) ("Congress must give America's
parents a new comfort level in public and commercial networks if these
are to be transformed from the private preserve of a special class of
computer hackers into a widely used communications medium.  This
necessary transformation will never happen if parents abandon the
Internet and computer communications technology remains threaten-
ing."); 141 Cong. Rec. S8339  (daily ed. June 14, 1995);  id. at S8339-S8340
(remarks of Sen. Exon) (expressing the desire to make the Internet
"even bigger" and "even better, but not for raunchy pornography that
would turn most people off"); id. at S8339 (remarks of Sen. Exon) ("it
has been estimated that up to 75 percent * * * of present computer
owners have refused to join the Internet system with their borne
computer, precisely because they know and they fear-and evidently
they have seen or been advised as to [the prevalence of pornography on
the Intemet]").        .

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15

available on the Internet, many parents would be "scared
to death" about "its effect on their children" or that
school principals who had encouraged parents to link their
home computers to the Internet would reconsider their
advice after learning more about "the seamy underbelly of
the Internet." Wash. Post, note 2, supra, at B5. Congress
could rely on its common sense and its understanding of
the American people to reach those conclusions.
     6. Appellees contend (ALA Br. 32-34) that the CDA
will not be effective in accomplishing its goal because it
will not deter persons outside the country from posting
indecent communications. In issuing its preliminary in-
junction, however, the district court did not address that
contention.  It therefore did not address the extent to
which the CDA applies to the foreign display of indecency
on the Internet; it made no finding concerning what
percentage of indecent speech originates outside the
United States; it made no finding concerning the extent to
which the CDA would deter the posting of indecent infor-
mation outside the United States; and it reached no con-
clusion concerning the legal significance of any possible
diminution of the CDA's effectiveness caused by indecency
that originates from outside this country. This Court
should not attempt to resolve questions like those in the
first instance. 11
    In any event, appellees err in contending that the CDA
will not serve the government's interests "in a direct and
material way." Turner Broadcasting Sys., Inc. v. FCC,
512 U.S. 622,664 (1994). The CDA will be fully effective in
eliminating domestic displays of indecent material to
children, which could eliminate as much as 70% of all such

___________________(footnotes)

11 ACLU relies on a statement by Judge Dalzell that the CDA "will
almost certainly fail to accomplish the Government's interest." ACLU
Br. 34 (quoting J.S. App. 145a). But that statement was not joined by
either of the other judges.

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16

displays.  See ALA Br. 32 n.42. That still leaves a
significant problem. But other avenues, such as actions by
foreign governments and parental control software, can
work together with the CDA to control the foreign
component of the problem. The existence of a law that is
fully effective in this country assists each of those efforts.
Such a law sets an example for other countries and puts
the United States in a position to urge them to establish
effective controls. At the same time, the effective screen-
ing of 70% of all patently offensive sites makes it easier for
parental control software to keep pace with the sites that
remain. Beyond that, the CDA sends an unambiguous
message that minors' access to patently offensive material
is not condoned in this country.  Because the harm to
children from viewing patently offensive material is
exacerbated when there is an implicit societal approval of
that activity, Ginsberg, 390 U.S.  at 642 n.10, the sending of
a clear message of disapproval is itself significant.

    The extent to which our laws are applied to persons in
other countries raises distinct policy concerns and practi-
cal enforcement difficulties. Hartford Fire Ins. Co. v.
California, 509 U.S. 764, 794-799 (1993). This Court has
never suggested that such considerations could affect the
constitutionality of a law that is fully effective domesti-
cally. 12
    7. a. Appellees contend (ALA  Br. 3743; ACLU  Br. 42-
46) that all three provisions of the CDA are unconst-
tutionally  vague. But the statutory text, when read in

___________________(footnotes)

    12 The cases relied upon by appellees (ALA Br. 34) all involved laws
that regulated certain domestic activities and exempted others that
caused the same problem without any logical basis for treating the
regulated and exempted activities differently. Such half-hearted ef-
forts impeach the genuineness of the government's claim that it is
advancing an interest of the highest order. Church of Lukumi Babalu
Aye  v. City of  Hialeah, 508 U.S. 520, 546-547 (1993). For the reasons
set forth above, those cases are inapposite here.

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17

light of its origins and legislative history, provides suf-
ficient guidance concerning what should and should not be
screened from children to avoid vagueness concerns.
First, the CDA applies only to communications about
"sexual or excretory activities or organs."  47 U.S.C.
223(d)(l). No matter how shocking they may be, depictions
that are not sexual or excretory in nature fall outside the
scope of the CDA. Second, the CDA encompasses only
those communications about sexual or excretory matters
that are "patently offensive." Ibid. The communication
therefore must be offensive in a way that is obvious or
immediately apparent. American Heritage Dictionary
1326 (3d ed. 1992). Third, a communication is indecent only
when it is patently offensive "in context ."  47 U.S.C.
223(d)(l). For example, whereas an entire novel, taken as a
whole, might not be "patently offensive," display of certain
excerpts out of context might well be.  Similarly, an
"occasional expletive" will not render a communication in-
decent. Denver Area, 116 S. Ct. at 2390. Fourth, material
with serious scientific, educational, news, or artistic value
cannot be found to be "patently offensive," except in the
most extreme circumstances, such as when such material
is displayed "with a highly unusual lack of concern for
viewer reaction." Denver Area, 116 S. Ct. at 2390. H.R.
Conf. Rep. No. 458, 104th Cong., 2d Sess. 189 (1996)
("[material with serious redeeming value" that "is quite
obviously intended to edify and educate, not to offend" is
not patently offensive). Thus,  while a few of the examples
discussed by appellees and their amici could be found to be
patently offensive (e.g., Appendix of Exhibits to Brief of
Amici Curiae American Association of University Profes-
sors, et al., Exh. 3, Item 4; id. Exh. 10), the vast majority
could not be. Finally, while nudity alone is not enough to
make material patently offensive, centerfolds and similar
materials that pander to prurient interest are covered by
the CDA (Gov't Br. 6-7).

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18

    b. Apparently conceding that the formulation Con-
gress chose would survive a vagueness challenge in other
contexts, appellees contend that several factors render
that formulation unconstitutionally vague here. ALA
contends (Br. 38), for example, that the criminal nature of
the offense is significant.  But this Court has already
approved. analogous formulations in criminal statutes. See
Miller v. California, 413 U.S. 15, 25 (1973); Ginsberg, 390
U.S.  at  632-633.13 ALA  points out (Br. 40-41) that patent
offensiveness was only one of the three elements in the
statutes upheld in those cases.  Each of those elements,
however, was independent. Appellees cite no authority for
their view that an independent element of an offense may
be  vague  as  long as  other independent  elements  of  the
offense  are not. Moreover, although lack of serious value
is not an element of a CDA offense, the presence of serious
value would almost always negate a finding of patent
offensiveness. In actual operation, then, there will only be
minor differences between the CDA's provisions and the
statute approved in Ginsberg.
    Appellees also find it significant that the CDA applies to
millions of ordinary citizens.  ALA Br. 38; ACLU  Br. 42.
Ordinary citizens, however, should have no difficulty fig-
uring out that the pornographic pictures in the Schmidt
notebook should be screened for age,  More generally,
there is "no basis for concluding that Internet content
providers are any less capable than those subject to
obscenity laws or other indecency restrictions to acquire
a  general familiarity with the relevant standards."  Shea

___________________(footnotes)

    13 Because the CDA is designed to protect children, the meaning of
patently  offensive  is  that set forth in Ginsberg-''patently    offensive to
prevailing standards in the adult community as a whole with respect to
what is suitable material for minors." 390 U.S. at 633. It is not limited
to the kind of "hard core" pornography that would be patently offensive
for adults. Jenkins v. Georgia, 418 U.S. 153, 160 (1974).

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19

v. Reno, 930 F. Supp. 916, 937 (S.D.N.Y. 1996), appeal
pending, No.96-595 (jurisdictional statement filed Oct. 15,
1996).
    ACLU contends (Br.45-46) that the CDA does not make
clear whether patent offensiveness should be judged by a
national or local standard. Even if a local standard was
intended, ACLU contends, the CDA does not make clear
which local standard applies. Because a jury (rather than
a federal agency) must decide the question of patent offen-
siveness, however, the relevant standard is necessarily
local: to require a local jury to apply a national standard
"would be an exercise in futility." Miller, 413 U.S. at 30.
The relevant community standard is the standard of the
community in which the jury is empaneled. 14
    ALA contends (Br. 39) that, because the Internet is a
global medium, Internet content providers must tailor
their speech to fit the community standards of the least
tolerant community in the nation.  There is nothing
constitutionally problematic, however, about requiring a
nationwide provider of information to take account of the
sensibilities of each of the communities in which it makes
its information available. Sable, 492 U.S. at 125-126 ("If
[the provider's] audience is comprised of different com-
munities with different local standards, [the provider] ulti-
mately bears the burden of complying with the prohibition
on obscene messages."). In most cases, what is patently
offensive in one community will be patently offensive in
most. In borderline cases, where different communities

___________________(footnotes)

    14  The reference in the Conference Report to a "uniform national
standard of content regulation" (H.R. Conf. Rep. No. 458, supra, at 191)
does not suggest that local juries should attempt to divine a national
standard of what is patently offensive. Instead, it means that juries
throughout the country will all decide the same question-whether the
material in question is patently offensive in light of local community
standards.

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20

may react in different ways, a person need only screen for
age in order to avoid the possibility of criminal sanctions. 15
        *****

    For the foregoing reasons, as well as those stated in our
opening brief, the district court's order granting a pre-
liminary injunction should be reversed.

Respectfully submitted.

WALTER DELLINGER
Acting Solicitor General

MARCH 1997

___________________(footnotes)

    15 Appellees provide no answer to our argument (Br. 45-48) that
preliminary injunctive relief must be limited to applications of the
display provision that are determined to be unconstitutional and that
all other applications must be left intact. Appellees' apparent view
(ALA Br. 47 n.64) that a court has authority to ignore an unambiguous 
severability clause is mistaken.  INS v. Chadha, 462 U.S. 919, 932
(1983). While the text of a severability clause is not controlling when
the balance of the statute is incapable of functioning independently,
Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987), that is not the
situation here.