(Slip Opinion: 521 U.S.)
 
 NOTE: Where it is feasible, a syllabus (headnote) will be released,
as is being done in connection with this case, at the time the opinion
is issued.  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 Co., 200 U. S. 321,
337.
 SUPREME COURT OF THE UNITED STATES
 
 Syllabus
 
 RENO, ATTORNEY GENERAL OF THE UNITED STATES, et al. v. AMERICAN CIVIL
  LIBERTIES UNION et al.
 appeal from the united states district court for the eastern district
of pennsylvania
 No. 96511.   Argued March 19, 1997Decided June 26, 1997
 
 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. 1740.
      (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. 17.
      (b) A close look at the precedents relied on by the GovernmentGinsberg
v. New York, 390 U. S. 629; FCC v. Pacifica Foundation, 438 U. S. 726;
and Renton v. Playtime Theatres, Inc., 475 U. S. 41raises, 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. 1721.
      (c) The special factors recognized in some of the Court's cases
as justifying regulation of the broadcast mediathe history of extensive
government regulation of broadcasting, see, e.g., Red Lion Broadcasting
Co. v. FCC, 395 U. S. 367, 399400; the scarcity of available frequencies
at its inception, see, e.g., Turner Broadcasting System, Inc. v. FCC,
512 U. S. 622, 637638; and its "invasive" nature, see Sable Communications
of Cal., Inc. v. FCC, 492 U. S. 115, 128are 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. 2224.
      (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, coupled
with its increased deterrent effect as a criminal statute, see, e.g.,
Dombrowski v. Pfister, 380 U. S. 479, 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.  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. 2428.
      (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, 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.  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.
 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. 2833.
      (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.  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. 3335.
      (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. 3537.
      (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, 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. 3739.
      (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. 40.
 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. 
 NOTICE: This opinion is subject to formal revision before publication
in the preliminary print of the United States Reports.  Readers are
requested to notify the Reporter of Decisions, Supreme Court of the
United States, Wash-ington, D.C. 20543, of any typographical or other
formal errors, in order that corrections may be made before the preliminary print
goes to press.
 SUPREME COURT OF THE UNITED STATES
 ________
 No. 96511
 ________
 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
 [June 26, 1997]
 
      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
three-judge District Court that the statute abridges "the freedom of
speech" protected by the First Amendment.
 
      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, 830849 (ED Pa. 1996). 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
      The Internet is an international network of interconnected computers.
It is the outgrowth of what began in 1969 as a military program called
"ARPANET," 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."
      The Internet has experienced "extraordinary growth." The number
of "host" computersthose that store information and relay communicationsincreased
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 mediumknown to its users as "cyberspace"located
in no particular geographical location but available to anyone, anywhere
in the world, with access to the Internet.
      E-mail enables an individual to send an electronic messagegenerally
akin to a note or letterto 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 dialoguein 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." It is "no exaggeration to conclude that the
content on the Internet is as diverse as human thought."
      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." 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 textsometimes
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.
      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. 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."
 
 Sexually Explicit Material
      Sexually explicit material on the Internet includes text, pictures,
and chat and "extends from the modestly titillating to the hardest-core."
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." Thus, for example,
 
 "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 Beijingwherever 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."
 Some of the communications over the Internet that originate in foreign
countries are also sexually explicit.
      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." For that reason, the "odds are slim" that a user would enter
a sexually explicit site by accident. 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."
      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."
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."
 Age Verification
      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 e-mail, mail exploders, newsgroups or
chat rooms." 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."
      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."
      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."
      In sum, the District Court found:
      "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).
 
 
      The Telecommunications Act of 1996, Pub. L. 104104, 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 Vknown 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. They are informally described as the "indecent
transmission" provision and the "patently offensive display" provision.
      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:
      "(a) Whoever
 "(1) in interstate or foreign communications
      .     .     .     .     .
      "(B) by means of a telecommunications device knowingly
 "(i) makes, creates, or solicits, and
 "(ii) initiates the transmission of,
 "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;
      .     .     .     .     .
      "(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,
 "shall be fined under Title 18, or imprisoned not more than two years,
or both." 
      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:
      "(d) Whoever
      "(1) in interstate or foreign communications knowingly
      "(A) uses an interactive computer service to send to a specific
person or persons under 18 years of age, or
      "(B) uses any interactive computer service to display in a manner
available to a person under 18 years of age,
 "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
      "(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,
 "shall be fined under Title 18, or imprisoned not more than two years,
or both."
      The breadth of these prohibitions is qualified by two affirmative
defenses. See 223(e)(5). 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).
 
      On February 8, 1996, immediately after the President signed the
statute, 20 plaintiffs 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,
the two cases were consolidated, and a three-judge District Court was
convened pursuant to 561 of the Act. 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.
      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
854855.
      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.
      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 "medium-specific" approach to the analysis of the regulation of mass communication,
id., at 873, and concluded that the Internetas "the most participatory
form of mass speech yet developed," id., at 883is entitled to "the highest
protection from governmental intrusion," ibid.
      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.
      The Government appealed under the Act's special review provisions,
561, 110 Stat. 142143, and we noted probable jurisdiction, see 519 U.
S. ___ (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.
 
       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 (1968); (2) FCC v. Pacifica Foundation, 438
U. S. 726 (1978); and (3) Renton v. Playtime Theatres, Inc., 475 U.
S. 41 (1986). A close look at these cases, however, raisesrather than
relievesdoubts concerning the constitutionality of the CDA.
      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. 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."       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.
Under the CDA, by contrast, neither the parents' consentnor even their
participationin the communication would avoid the application of the
statute. Second, the New York statute applied only to commercial transactions,
id., at 647, 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. 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.
      In Pacifica, we upheld a declaratory order of the Federal Communications
Commission, holding that the broadcast of a recording of a 12minute
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 (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. 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.
      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 742743. 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 744748. Relying on the premise
that "of all forms of communication" broadcasting had received the most
limited First Amendment protection, id., at 748749, 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 749750.
      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 whenrather than whetherit 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. 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, 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.
      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 valuesthat 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 (quoting Young v. American Mini Theatres, Inc., 427 U.
S. 50, 71, n. 34 (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. See also Boos v. Barry,
485 U. S. 312, 321 (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 (1992) ("Listeners'
reaction to speech is not a content-neutral basis for regulation").
      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.
 
      In Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 557 (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 (1969);
FCC v. Pacifica Foundation, 438 U. S. 726 (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 399400; the scarcity of available
frequencies at its inception, see, e.g., Turner Broadcasting System,
Inc. v. FCC, 512 U. S. 622, 637638 (1994); and its "invasive" nature,
see Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128 (1989).

      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. 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.
      We distinguished Pacifica in Sable, 492 U. S., at 128, 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,
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. We explained that "the dial-it
medium requires the listener to take affirmative steps to receive the
communication." Id., at 127128. "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.
      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." 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.
 
      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, this difference in language will provoke uncertainty
among speakers about how the two standards relate to each other and
just what they mean. 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.
      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, 10481051 (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 (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. ___ (1996).
      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 (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. 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:
 "(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 (internal quotation marks
and citations omitted).
 Because the CDA's "patently offensive" standard (and, we assume arguendo,
its synonymous "indecent" standard) is one part of the three-prong Miller
test, the Government reasons, it cannot be unconstitutionally vague.
      The Government's assertion is incorrect as a matter of fact. The second
prong of the Miller testthe purportedly analogous standardcontains 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.
      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.  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 (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.
      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.
      
 
      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.
      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. See also
Carey v. Population Services Int'l, 431 U. S. 678, 701 (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.
      It is true that we have repeatedly recognized the governmental interest
in protecting children from harmful materials. See Ginsberg, 390 U.
S., at 639; Pacifica, 438 U. S., at 749. 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
___ (slip op., at 29) (internal quotation marks omitted) (quoting Sable, 492
U. S., at 128). "[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, 7475 (1983).
      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, 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. 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 ___ (slip op., at 11).
      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 minorand therefore
that it would be a crime to send the group an indecent messagewould
surely burden communication among adults.
      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 9094). As
a practical matter, the Court also found that it would be prohibitively
expensive for noncommercialas well as some commercialspeakers who have
Web sites to verify that their users are adults. Id., at 845848 (findings
95116). 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).
      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. 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. 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, 53:1654:10. 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.
      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 oldno 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-year-old 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-year-old 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.
      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 Internetsuch
as commercial web sitesdifferently 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.
 
      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.
      The Government first contends that, even though the CDA effectively
censors discourse on many of the Internet's modalitiessuch as chat groups,
newsgroups, and mail explodersit 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 (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 contentwe 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 (Town of Irvington), 308 U. S. 147, 163 (1939).
      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.      This argument ignores the fact
that most Internet foraincluding chat rooms, newsgroups, mail exploders,
and the Webare 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 childa "specific person .
. . under 18 years of age," 47 U. S. C. A. 223(d)(1)(A) (Supp. 1997)would
be present.
      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.
  
 
      The Government's three remaining arguments focus on the defenses
provided in 223(e)(5). 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." 
      For its second and third arguments concerning defenseswhich we
can consider togetherthe 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. Given that
the risk of criminal sanctions "hovers over each content provider, like
the proverbial sword of Damocles," 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.
      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, 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.
 
      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.
      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. 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.
      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, 503504 (1985). There
are two flaws in this argument.
      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.
      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 (1988). See also Erznoznik, v. Jacksonville,
422 U. S. 205, 216 (1975) ("readily subject" to narrowing construction).
The open-ended character of the CDA provides no guidance whatever for
limiting its coverage.
      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 504505 (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, 180183 (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. Treasury
Employees, 513 U. S. 454, 479, n. 26 (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." This
Court "will not rewrite a . . . law to conform it to constitutional
requirements." American Booksellers, 484 U. S., at 397.
 
       In this Court, though not in the District Court, the Government asserts
thatin addition to its interest in protecting childrenits "[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.
      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.
      For the foregoing reasons, the judgment of the district court
is affirmed.
 It is so ordered. 
 SUPREME COURT OF THE UNITED STATES
 ________
 No. 96511
 ________
 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
 [June 26, 1997]
 
      Justice O'Connor, with whom The Chief Justice joins, concurring
in the judgment in part and dissenting in part.
      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.
      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 11,
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 (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. 104230, p. 189 (1996) (CDA imposes "access restrictions
. . . to protect minors from exposure to indecent material").
      The creation of "adult zones" is by no means a novel concept.
 States have long denied minors access to certain establishments frequented
by adults.  States have also denied minors access to speech deemed to
be "harmful to minors."  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.
 
      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 obtainit 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 (1957).  The First Amendment does not tolerate such interference.
 See id., at 383 (striking down a Michigan criminal law banning sale
of booksto minors or adultsthat 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 (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 (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.
      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 questionand therefore
necessarily assumedthat 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.
      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.
      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 888889.  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 themselvesperhaps
an adult identification number or a credit card numberbefore they can access
certain areas of cyberspace, 929 F. Supp. 824, 845 (ED 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 839842.  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 838839.
      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, 933934 (SDNY 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 3738.
 Gateway technology is not ubiquitous in cyberspace, and because without
it "there is no means of age verification," cyberspace still remains
largely unzonedand 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 availableand
widely usedby 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 945946.
 There is, moreover, no agreed-upon "tag" for those programs to recognize.
 929 F. Supp., at 848; Shea, supra, at 945.
      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 36.  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.  As a result, the "display" provision cannot withstand
scrutiny.  Accord, Sable Communications, 492 U. S., at 126131; Bolger v.
Youngs Drug Products Corp., 463 U. S., at 7375.
      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
2527, and I would do so.  See Edward J. DeBartolo Corp. v. Florida Gulf
Coast Building  Trades Council, 485 U. S. 568, 575 (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").
      So construed, both provisions are constitutional as applied to
a conversation involving only an adult and one or more minorse.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.
      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 30.  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.  
      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 (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 (1992).  See Brief
for Appellees American Library Association et al. 48; Brief for Appellees
American Civil Liberties Union et al. 3941.  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.
      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 (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.
 
      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 632633.
 Noting that obscene speech is not protected by the First Amendment,
Roth v. United States, 354 U. S. 476, 485 (1957), and that New York
was constitutionally free to adjust the definition of obscenity for
minors, 390 U. S., at 638, the Court concluded that the law did not
"invad[e] the area of freedom of expression constitutionally secured
to minors."  Id., at 637.  New York therefore did not infringe upon
the First Amendment rights of minors.  Cf. Erznoznik v. Jacksonville,
422 U. S. 205, 213 (1975) (striking down city ordinance that banned
nudity that was not "obscene even as to minors").
      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 32.  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.  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 interestsCongress' 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.
      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 (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 CDAi.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 interestis 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 3233, 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 (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 18, 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.
      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.