ASHCROFT, ATTORNEY GENERAL v. AMERICAN CIVIL LIBERTIES UNION et al.

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ASHCROFT, ATTORNEY GENERAL v. AMERICAN
CIVIL LIBERTIES UNION et al.
certiorari to the united states court of appeals for
the third circuit
No. 03–218. Argued March 2, 2004—Decided June 29, 2004
To protect minors from exposure to sexually explicit materials on the In-
ternet, Congress enacted the Child Online Protection Act (COPA), 47
U. S. C. § 231, which, among other things, imposes a $50,000 fine and six
months in prison for the knowing posting, for “commercial purposes,”
§ 231(a)(1), of World Wide Web content that is “harmful to minors,” but
provides an affirmative defense to commercial Web speakers who re-
strict access to prohibited materials by “requiring use of a credit card”
or “any other reasonable measures that are feasible under available
technology,” § 231(c)(1). COPA was enacted in response to Reno v.
American Civil Liberties Union, 521 U. S. 844, in which this Court held
that the Communications Decency Act of 1996, Congress’ first attempt
to make the Internet safe for minors by criminalizing certain Internet
speech, was unconstitutional because it was not narrowly tailored to
serve a compelling governmental interest and because less restrictive
alternatives were available. Respondents, Web speakers and others
concerned with protecting the freedom of speech, filed suit for a prelimi-
nary injunction against COPA’s enforcement. After considering testi-
mony presented by both respondents and the Government, the District
Court granted the preliminary injunction, concluding that respondents
were likely to prevail on their argument that there were less restrictive
alternatives to COPA, particularly blocking or filtering technology.
The Third Circuit affirmed on different grounds, but this Court re-
versed, Ashcroft v. American Civil Liberties Union, 535 U. S. 564. On
remand, the Third Circuit again affirmed, concluding, inter alia, that
COPA was not the least restrictive means available for the Government
to serve the interest of preventing minors from using the Internet to
gain access to harmful materials.
Held: The Third Circuit was correct to affirm the District Court’s ruling
that enforcement of COPA should be enjoined because the statute likely
violates the First Amendment. Pp. 664–673.
(a) The District Court did not abuse its discretion when it entered
the preliminary injunction. The abuse-of-discretion standard applies
on review of such an injunction. Because 28 U. S. C. § 1254(1)’s grant
of appellate jurisdiction does not give this Court license to depart from

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an established review standard, Walters v. National Assn. of Radiation
Survivors, 473 U. S. 305, 336, the injunction must be upheld and the case
remanded for trial on the merits if the underlying constitutional ques-
tion is close. There is therefore no need to consider the broader con-
structions of the statute adopted by the Court of Appeals. The District
Court concentrated primarily on the argument that there are plausible,
less restrictive alternatives to COPA. See Reno, 521 U. S., at 874.
When plaintiffs challenge a content-based speech restriction, the Gov-
ernment has the burden to prove that the proposed alternatives will not
be as effective as the challenged statute. Ibid. The purpose of the
test is to ensure that speech is restricted no further than is necessary
to accomplish Congress’ goal. The District Court’s conclusion that re-
spondents were likely to prevail was not an abuse of discretion, because,
on the record, the Government has not met its burden. Most impor-
tantly, respondents propose that blocking and filtering software is a less
restrictive alternative, and the Government had not shown it would be
likely to disprove that contention at trial. Filters impose selective re-
strictions on speech at the receiving end, not universal restrictions at
the source. Under a filtering regime, childless adults may gain access
to speech they have a right to see without having to identify themselves
or provide their credit card information. Even adults with children
may obtain access to the same speech on the same terms simply by
turning off the filter on their home computers. Promoting filter use
does not condemn as criminal any category of speech, and so the poten-
tial chilling effect is eliminated, or at least much diminished. Filters,
moreover, may well be more effective than COPA. First, the record
demonstrates that a filter can prevent minors from seeing all pornogra-
phy, not just pornography posted to the Web from America. That
COPA does not prevent minors from accessing foreign harmful materi-
als alone makes it possible that filtering software might be more effec-
tive in serving Congress’ goals. COPA’s effectiveness is likely to dimin-
ish even further if it is upheld, because providers of the materials
covered by the statute simply can move their operations overseas. In
addition, the District Court found that verification systems may be sub-
ject to evasion and circumvention, e. g., by minors who have their own
credit cards. Finally, filters also may be more effective because they
can be applied to all forms of Internet communication, including e-mail,
not just the World Wide Web. Filtering’s superiority to COPA is con-
firmed by the explicit findings of the Commission on Child Online Pro-
tection, which Congress created to evaluate the relative merits of differ-
ent means of restricting minors’ ability to gain access to harmful
materials on the Internet. 47 U. S. C. § 231, note. Although filtering
software is not a perfect solution because it may block some materials

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not harmful to minors and fail to catch some that are, the Government
has not satisfied its burden to introduce specific evidence proving that
filters are less effective. The argument that filtering software is not
an available alternative because Congress may not require its use car-
ries little weight, since Congress may act to encourage such use by
giving strong incentives to schools and libraries, United States v. Amer-
ican Library Assn., Inc., 539 U. S. 194, and by promoting the develop-
ment of filters by industry and their use by parents. The closest prece-
dent is United States v. Playboy Entertainment Group, Inc., 529 U. S.
803, which, like this case, involved a content-based restriction designed
to protect minors from viewing harmful materials. The Court there
concluded that, absent a showing that a less restrictive technological
alternative already available to parents would not be as effective as
a blanket speech restriction, the more restrictive option preferred by
Congress could not survive strict scrutiny. Id., at 826. The reasoning
of Playboy Entertainment Group, and the holdings and force of this
Court’s precedents, compel the Court to affirm the preliminary injunc-
tion here. To do otherwise would be to do less than the First Amend-
ment commands. Id., at 830. Pp. 664–670.
(b) Important practical reasons also support letting the injunction
stand pending a full trial on the merits. First, the potential harms from
reversal outweigh those of leaving the injunction in place by mistake.
Extraordinary harm and a serious chill upon protected speech may re-
sult where, as here, a prosecution is a likely possibility but only an af-
firmative defense is available, so that speakers may self-censor rather
than risk the perils of trial. Cf. Playboy Entertainment Group, supra,
at 817. The harm done from letting the injunction stand pending a trial
on the merits, in contrast, will not be extensive. Second, there are
substantial factual disputes remaining in the case, including a serious
gap in the evidence as to the filtering software’s effectiveness. By
allowing the preliminary injunction to stand and remanding for trial,
the Court requires the Government to shoulder its full constitutional
burden of proof respecting the less restrictive alternative argument,
rather than excuse it from doing so. Third, the factual record does not
reflect current technological reality—a serious flaw in any case involv-
ing the Internet, which evolves at a rapid pace. It is reasonable to
assume that technological developments important to the First Amend-
ment analysis have occurred in the five years since the District Court
made its factfindings. By affirming the preliminary injunction and re-
manding for trial, the Court allows the parties to update and supplement
the factual record to reflect current technology. Remand will also per-
mit the District Court to take account of a changed legal landscape:
Since that court made its factfindings, Congress has passed at least two

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further statutes that might qualify as less restrictive alternatives to
COPA—a prohibition on misleading domain names, and a statute creat-
ing a minors-safe “dot-Kids” domain. Pp. 670–673.
322 F. 3d 240, affirmed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Stevens,
Souter, Thomas, and Ginsburg, JJ., joined. Stevens, J., filed a concur-
ring opinion, in which Ginsburg, J., joined, post, p. 673. Scalia, J., filed
a dissenting opinion, post, p. 676. Breyer, J., filed a dissenting opinion,
in which Rehnquist, C. J., and O’Connor, J., joined, post, p. 676.
Solicitor General Olson argued the cause for petitioner.
With him on the briefs were Assistant Attorney General
Keisler, Deputy Solicitor General Kneedler, Irving L. Gorn-
stein, Barbara L. Herwig, Charles W. Scarborough, and Au-
gust E. Flentje.
Ann E. Beeson argued the cause for respondents. With
her on the brief were Christopher A. Hansen, Steven R. Sha-
piro, Stefan Presser, Christopher R. Harris, and David L.
Sobel.*
Justice Kennedy delivered the opinion of the Court.
This case presents a challenge to a statute enacted by Con-
gress to protect minors from exposure to sexually explicit
materials on the Internet, the Child Online Protection Act
*Briefs of amici curiae urging reversal were filed for DuPage County,
Illinois, by Richard Hodyl, Jr., and Joseph E. Birkett; for the American
Center for Law and Justice et al. by Jay Alan Sekulow, Stuart J. Roth,
Colby M. May, Joel H. Thornton, John P. Tuskey, and Shannon D. Wood-
ruff; for Focus on the Family et al. by William Wagner, Steve Reed, and
Pat Trueman; for Morality in Media, Inc., by Paul J. McGeady; for Wall-
Builders, Inc., by Barry C. Hodge; and for Senator John S. McCain et al.
by Carol A. Clancy and Bruce A. Taylor.
Briefs of amici curiae urging affirmance were filed for the American
Society of Journalists and Authors et al. by Carl A. Solano, Theresa E.
Loscalzo, Jennifer DuFault James, and Stephen J. Shapiro; for the Associ-
ation of American Publishers, Inc., et al. by R. Bruce Rich, Jonathan
Bloom, Jerry Berman, John B. Morris, Jr., and Robert Corn-Revere; and
for Volunteer Lawyers for the Arts et al. by Seth M. Galanter, Charles
H. Kennedy, Lois K. Perrin, and Elliot M. Mincberg.

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(COPA), 112 Stat. 2681–736, codified at 47 U. S. C. § 231. We
must decide whether the Court of Appeals was correct to
affirm a ruling by the District Court that enforcement of
COPA should be enjoined because the statute likely violates
the First Amendment.
In enacting COPA, Congress gave consideration to our
earlier decisions on this subject, in particular the decision in
Reno v. American Civil Liberties Union, 521 U. S. 844
(1997). For that reason, “the Judiciary must proceed with
caution and . . . with care before invalidating the Act.” Ash-
croft v. American Civil Liberties Union, 535 U. S. 564, 592
(2002) (Ashcroft I) (Kennedy, J., concurring in judgment).
The imperative of according respect to the Congress, how-
ever, does not permit us to depart from well-established
First Amendment principles. Instead, we must hold the
Government to its constitutional burden of proof.
Content-based prohibitions, enforced by severe criminal
penalties, have the constant potential to be a repressive force
in the lives and thoughts of a free people. To guard against
that threat the Constitution demands that content-based re-
strictions on speech be presumed invalid, R. A. V. v. St. Paul,
505 U. S. 377, 382 (1992), and that the Government bear the
burden of showing their constitutionality, United States v.
Playboy Entertainment Group, Inc., 529 U. S. 803, 817
(2000). This is true even when Congress twice has at-
tempted to find a constitutional means to restrict, and pun-
ish, the speech in question.
This case comes to the Court on certiorari review of an
appeal from the decision of the District Court granting a
preliminary injunction. The Court of Appeals reviewed the
decision of the District Court for abuse of discretion. Under
that standard, the Court of Appeals was correct to conclude
that the District Court did not abuse its discretion in grant-
ing the preliminary injunction. The Government has failed,
at this point, to rebut the plaintiffs’ contention that there are
plausible, less restrictive alternatives to the statute. Sub-

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stantial practical considerations, furthermore, argue in favor
of upholding the injunction and allowing the case to proceed
to trial. For those reasons, we affirm the decision of the
Court of Appeals upholding the preliminary injunction, and
we remand the case so that it may be returned to the District
Court for trial on the issues presented.
I
A
COPA is the second attempt by Congress to make the In-
ternet safe for minors by criminalizing certain Internet
speech. The first attempt was the Communications Decency
Act of 1996, Pub. L. 104–104, § 502, 110 Stat. 133, 47 U. S. C.
§ 223 (1994 ed., Supp. II). The Court held the CDA uncon-
stitutional because it was not narrowly tailored to serve a
compelling governmental interest and because less restric-
tive alternatives were available. Reno, supra.
In response to the Court’s decision in Reno, Congress
passed COPA. COPA imposes criminal penalties of a
$50,000 fine and six months in prison for the knowing post-
ing, for “commercial purposes,” of World Wide Web content
that is “harmful to minors.” § 231(a)(1). Material that is
“harmful to minors” is defined as:
“any communication, picture, image, graphic image file,
article, recording, writing, or other matter of any kind
that is obscene or that—
“(A) the average person, applying contemporary com-
munity standards, would find, taking the material as a
whole and with respect to minors, is designed to appeal
to, or is designed to pander to, the prurient interest;
“(B) depicts, describes, or represents, in a manner pat-
ently offensive with respect to minors, an actual or
simulated sexual act or sexual contact, an actual or
simulated normal or perverted sexual act, or a lewd

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exhibition of the genitals or post-pubescent female
breast; and
“(C) taken as a whole, lacks serious literary, artistic, po-
litical, or scientific value for minors.” § 231(e)(6).
“Minor[s]” are defined as “any person under 17 years of
age.” § 231(e)(7). A person acts for “commercial purposes
only if such person is engaged in the business of making such
communications.” “Engaged in the business,” in turn,
“means that the person who makes a communication, or
offers to make a communication, by means of the World
Wide Web, that includes any material that is harmful to
minors, devotes time, attention, or labor to such activi-
ties, as a regular course of such person’s trade or busi-
ness, with the objective of earning a profit as a result of
such activities (although it is not necessary that the per-
son make a profit or that the making or offering to make
such communications be the person’s sole or principal
business or source of income).” § 231(e)(2).
While the statute labels all speech that falls within these
definitions as criminal speech, it also provides an affirmative
defense to those who employ specified means to prevent mi-
nors from gaining access to the prohibited materials on their
Web site. A person may escape conviction under the statute
by demonstrating that he
“has restricted access by minors to material that is
harmful to minors—
“(A) by requiring use of a credit card, debit account,
adult access code, or adult personal identification
number;
“(B) by accepting a digital certificate that verifies age;
or
“(C) by any other reasonable measures that are feasible
under available technology.” § 231(c)(1).

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Since the passage of COPA, Congress has enacted addi-
tional laws regulating the Internet in an attempt to protect
minors. For example, it has enacted a prohibition on mis-
leading Internet domain names, 18 U. S. C. § 2252B (2000 ed.,
Supp. III), in order to prevent Web site owners from disguis-
ing pornographic Web sites in a way likely to cause uninter-
ested persons to visit them. See Brief for Petitioner 7 (giv-
ing, as an example, the Web site “whitehouse.com”). It has
also passed a statute creating a “Dot Kids” second-level In-
ternet domain, the content of which is restricted to that
which is fit for minors under the age of 13. 47 U. S. C. § 941
(2000 ed., Supp. II).
B
Respondents, Internet content providers and others con-
cerned with protecting the freedom of speech, filed suit in
the United States District Court for the Eastern District
of Pennsylvania. They sought a preliminary injunction
against enforcement of the statute. After considering testi-
mony from witnesses presented by both respondents and the
Government, the District Court issued an order granting the
preliminary injunction. The court first noted that the stat-
ute would place a burden on some protected speech. Amer-
ican Civil Liberties Union v. Reno, 31 F. Supp. 2d 473, 495
(1999). The court then concluded that respondents were
likely to prevail on their argument that there were less re-
strictive alternatives to the statute: “On the record to date,
it is not apparent . . . that [petitioner] can meet its burden to
prove that COPA is the least restrictive means available to
achieve the goal of restricting the access of minors” to harm-
ful material. Id., at 497. In particular, it noted that “[t]he
record before the Court reveals that blocking or filtering
technology may be at least as successful as COPA would be
in restricting minors’ access to harmful material online with-
out imposing the burden on constitutionally protected speech
that COPA imposes on adult users or Web site operators.”
Ibid.

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The Government appealed the District Court’s decision to
the United States Court of Appeals for the Third Circuit.
The Court of Appeals affirmed the preliminary injunction,
but on a different ground. American Civil Liberties Union
v. Reno, 217 F. 3d 162, 166 (2000). The court concluded that
the “community standards” language in COPA by itself
rendered the statute unconstitutionally overbroad. Ibid.
We granted certiorari and reversed, holding that the
community-standards language did not, standing alone, make
the statute unconstitutionally overbroad. Ashcroft I, 535
U. S., at 585. We emphasized, however, that our decision
was limited to that narrow issue. Ibid. We remanded the
case to the Court of Appeals to reconsider whether the Dis-
trict Court had been correct to grant the preliminary injunc-
tion. On remand, the Court of Appeals again affirmed the
District Court. 322 F. 3d 240 (2003). The Court of Appeals
concluded that the statute was not narrowly tailored to serve
a compelling Government interest, was overbroad, and was
not the least restrictive means available for the Government
to serve the interest of preventing minors from using the
Internet to gain access to materials that are harmful to
them. Id., at 266–271. The Government once again sought
review from this Court, and we again granted certiorari.
540 U. S. 944 (2003).
II
A
“This Court, like other appellate courts, has always ap-
plied the abuse of discretion standard on review of a prelimi-
nary injunction.” Walters v. National Assn. of Radiation
Survivors, 473 U. S. 305, 336 (1985) (O’Connor, J., concur-
ring) (internal quotation marks omitted). “The grant of ap-
pellate jurisdiction under [28 U. S. C.] § 1252 does not give
the Court license to depart from established standards of
appellate review.” Ibid. If the underlying constitutional
question is close, therefore, we should uphold the injunction

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and remand for trial on the merits. Applying this mode of
inquiry, we agree with the Court of Appeals that the District
Court did not abuse its discretion in entering the preliminary
injunction. Our reasoning in support of this conclusion,
however, is based on narrower, more specific grounds than
the rationale the Court of Appeals adopted. The Court of
Appeals, in its opinion affirming the decision of the District
Court, construed a number of terms in the statute, and held
that COPA, so construed, was unconstitutional. None of
those constructions of statutory terminology, however, were
relied on by or necessary to the conclusions of the District
Court. Instead, the District Court concluded only that the
statute was likely to burden some speech that is protected
for adults, 31 F. Supp. 2d, at 495, which petitioner does not
dispute. As to the definitional disputes, the District Court
concluded only that respondents’ interpretation was “not un-
reasonable,” and relied on their interpretation only to con-
clude that respondents had standing to challenge the statute,
id., at 481, which, again, petitioner does not dispute. Be-
cause we affirm the District Court’s decision to grant the
preliminary injunction for the reasons relied on by the Dis-
trict Court, we decline to consider the correctness of the
other arguments relied on by the Court of Appeals.
The District Court, in deciding to grant the preliminary
injunction, concentrated primarily on the argument that
there are plausible, less restrictive alternatives to COPA.
A statute that “effectively suppresses a large amount of
speech that adults have a constitutional right to receive and
to address to one another . . . is unacceptable if less restric-
tive alternatives would be at least as effective in achieving
the legitimate purpose that the statute was enacted to
serve.” Reno, 521 U. S., at 874. When plaintiffs challenge
a content-based speech restriction, the burden is on the Gov-
ernment to prove that the proposed alternatives will not be
as effective as the challenged statute. Ibid.

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In considering this question, a court assumes that certain
protected speech may be regulated, and then asks what is
the least restrictive alternative that can be used to achieve
that goal. The purpose of the test is not to consider
whether the challenged restriction has some effect in achiev-
ing Congress’ goal, regardless of the restriction it imposes.
The purpose of the test is to ensure that speech is restricted
no further than necessary to achieve the goal, for it is impor-
tant to ensure that legitimate speech is not chilled or pun-
ished. For that reason, the test does not begin with the
status quo of existing regulations, then ask whether the chal-
lenged restriction has some additional ability to achieve Con-
gress’ legitimate interest. Any restriction on speech could
be justified under that analysis. Instead, the court should
ask whether the challenged regulation is the least restrictive
means among available, effective alternatives.
In deciding whether to grant a preliminary injunction, a
district court must consider whether the plaintiffs have dem-
onstrated that they are likely to prevail on the merits. See,
e. g., Doran v. Salem Inn, Inc., 422 U. S. 922, 931 (1975).
(The court also considers whether the plaintiff has shown
irreparable injury, see ibid., but the parties in this case
do not contest the correctness of the District Court’s conclu-
sion that a likelihood of irreparable injury had been estab-
lished. See 31 F. Supp. 2d, at 497–498.) As the Govern-
ment bears the burden of proof on the ultimate question of
COPA’s constitutionality, respondents must be deemed likely
to prevail unless the Government has shown that respond-
ents’ proposed less restrictive alternatives are less effective
than COPA. Applying that analysis, the District Court con-
cluded that respondents were likely to prevail. Id., at 496–
497. That conclusion was not an abuse of discretion, because
on this record there are a number of plausible, less restric-
tive alternatives to the statute.
The primary alternative considered by the District Court
was blocking and filtering software. Blocking and filtering

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software is an alternative that is less restrictive than COPA,
and, in addition, likely more effective as a means of restrict-
ing children’s access to materials harmful to them. The Dis-
trict Court, in granting the preliminary injunction, did so
primarily because the plaintiffs had proposed that filters are
a less restrictive alternative to COPA and the Government
had not shown it would be likely to disprove the plaintiffs’
contention at trial. Ibid.
Filters are less restrictive than COPA. They impose se-
lective restrictions on speech at the receiving end, not uni-
versal restrictions at the source. Under a filtering regime,
adults without children may gain access to speech they have
a right to see without having to identify themselves or pro-
vide their credit card information. Even adults with chil-
dren may obtain access to the same speech on the same
terms simply by turning off the filter on their home comput-
ers. Above all, promoting the use of filters does not con-
demn as criminal any category of speech, and so the potential
chilling effect is eliminated, or at least much diminished.
All of these things are true, moreover, regardless of how
broadly or narrowly the definitions in COPA are construed.
Filters also may well be more effective than COPA.
First, a filter can prevent minors from seeing all pornogra-
phy, not just pornography posted to the Web from America.
The District Court noted in its factfindings that one witness
estimated that 40% of harmful-to-minors content comes from
overseas. Id., at 484. COPA does not prevent minors from
having access to those foreign harmful materials. That
alone makes it possible that filtering software might be more
effective in serving Congress’ goals. Effectiveness is likely
to diminish even further if COPA is upheld, because the pro-
viders of the materials that would be covered by the statute
simply can move their operations overseas. It is not an an-
swer to say that COPA reaches some amount of materials
that are harmful to minors; the question is whether it would
reach more of them than less restrictive alternatives. In

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addition, the District Court found that verification systems
may be subject to evasion and circumvention, for example,
by minors who have their own credit cards. See id., at 484,
496–497. Finally, filters also may be more effective because
they can be applied to all forms of Internet communication,
including e-mail, not just communications available via the
World Wide Web.
That filtering software may well be more effective than
COPA is confirmed by the findings of the Commission on
Child Online Protection, a blue-ribbon Commission created
by Congress in COPA itself. Congress directed the Com-
mission to evaluate the relative merits of different means of
restricting minors’ ability to gain access to harmful materials
on the Internet. Note following 47 U. S. C. § 231. It unam-
biguously found that filters are more effective than age-
verification requirements. See Commission on Child Online
Protection (COPA), Report to Congress 19–21, 23–25, 27
(Oct. 20, 2000) (assigning a score for “Effectiveness” of 7.4
for server-based filters and 6.5 for client-based filters, as
compared to 5.9 for independent adult-ID verification, and
5.5 for credit card verification). Thus, not only has the Gov-
ernment failed to carry its burden of showing the District
Court that the proposed alternative is less effective, but also
a Government Commission appointed to consider the ques-
tion has concluded just the opposite. That finding supports
our conclusion that the District Court did not abuse its dis-
cretion in enjoining the statute.
Filtering software, of course, is not a perfect solution to
the problem of children gaining access to harmful-to-minors
materials. It may block some materials that are not harm-
ful to minors and fail to catch some that are. See 31 F. Supp.
2d, at 492. Whatever the deficiencies of filters, however, the
Government failed to introduce specific evidence proving
that existing technologies are less effective than the restric-
tions in COPA. The District Court made a specific factfind-
ing that “[n]o evidence was presented to the Court as to the

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percentage of time that blocking and filtering technology is
over- or underinclusive.” Ibid. In the absence of a show-
ing as to the relative effectiveness of COPA and the al-
ternatives proposed by respondents, it was not an abuse of
discretion for the District Court to grant the preliminary
injunction. The Government’s burden is not merely to show
that a proposed less restrictive alternative has some flaws;
its burden is to show that it is less effective. Reno, 521
U. S., at 874. It is not enough for the Government to show
that COPA has some effect. Nor do respondents bear a bur-
den to introduce, or offer to introduce, evidence that their
proposed alternatives are more effective. The Government
has the burden to show they are less so. The Government
having failed to carry its burden, it was not an abuse of
discretion for the District Court to grant the preliminary
injunction.
One argument to the contrary is worth mentioning—the
argument that filtering software is not an available alterna-
tive because Congress may not require it to be used. That
argument carries little weight, because Congress undoubt-
edly may act to encourage the use of filters. We have held
that Congress can give strong incentives to schools and li-
braries to use them. United States v. American Library
Assn., Inc., 539 U. S. 194 (2003). It could also take steps
to promote their development by industry, and their use by
parents. It is incorrect, for that reason, to say that filters
are part of the current regulatory status quo. The need for
parental cooperation does not automatically disqualify a pro-
posed less restrictive alternative. Playboy Entertainment
Group, 529 U. S., at 824 (“A court should not assume a plau-
sible, less restrictive alternative would be ineffective; and a
court should not presume parents, given full information,
will fail to act”). In enacting COPA, Congress said its goal
was to prevent the “widespread availability of the Internet”
from providing “opportunities for minors to access materials
through the World Wide Web in a manner that can frustrate

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parental supervision or control.” Congressional Findings,
note following 47 U. S. C. § 231 (quoting Pub. L. 105–277, Tit.
XIV, § 1402(1), 112 Stat. 2681–736). COPA presumes that
parents lack the ability, not the will, to monitor what their
children see. By enacting programs to promote use of fil-
tering software, Congress could give parents that ability
without subjecting protected speech to severe penalties.
The closest precedent on the general point is our decision
in Playboy Entertainment Group. Playboy Entertainment
Group, like this case, involved a content-based restriction
designed to protect minors from viewing harmful materials.
The choice was between a blanket speech restriction and a
more specific technological solution that was available to par-
ents who chose to implement it. 529 U. S., at 825. Absent
a showing that the proposed less restrictive alternative
would not be as effective, we concluded, the more restrictive
option preferred by Congress could not survive strict scru-
tiny. Id., at 826 (reversing because “[t]he record is silent as
to the comparative effectiveness of the two alternatives”).
In the instant case, too, the Government has failed to show,
at this point, that the proposed less restrictive alternative
will be less effective. The reasoning of Playboy Entertain-
ment Group and the holdings and force of our precedents
require us to affirm the preliminary injunction. To do oth-
erwise would be to do less than the First Amendment com-
mands. “The ‘starch’ in our constitutional standards cannot
be sacrificed to accommodate the enforcement choices of the
Government.” Id., at 830 (Thomas, J., concurring).
B
There are also important practical reasons to let the in-
junction stand pending a full trial on the merits. First, the
potential harms from reversing the injunction outweigh
those of leaving it in place by mistake. Where a prosecution
is a likely possibility, yet only an affirmative defense is avail-
able, speakers may self-censor rather than risk the perils of

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671 Cite as: 542 U. S. 656 (2004)
Opinion of the Court
trial. There is a potential for extraordinary harm and a se-
rious chill upon protected speech. Cf. id., at 817 (“Error in
marking that line exacts an extraordinary cost”). The harm
done from letting the injunction stand pending a trial on the
merits, in contrast, will not be extensive. No prosecutions
have yet been undertaken under the law, so none will be
disrupted if the injunction stands. Further, if the injunc-
tion is upheld, the Government in the interim can enforce
obscenity laws already on the books.
Second, there are substantial factual disputes remaining in
the case. As mentioned above, there is a serious gap in the
evidence as to the effectiveness of filtering software. See
supra, at 668. For us to assume, without proof, that filters
are less effective than COPA would usurp the District
Court’s factfinding role. By allowing the preliminary in-
junction to stand and remanding for trial, we require the
Government to shoulder its full constitutional burden of
proof respecting the less restrictive alternative argument,
rather than excuse it from doing so.
Third, and on a related point, the factual record does not
reflect current technological reality—a serious flaw in any
case involving the Internet. The technology of the Internet
evolves at a rapid pace. Yet the factfindings of the District
Court were entered in February 1999, over five years ago.
Since then, certain facts about the Internet are known to
have changed. Compare, e. g., 31 F. Supp. 2d, at 481 (36.7
million Internet hosts as of July 1998), with Internet Sys-
tems Consortium, Internet Domain Survey, Jan. 2004, http://
www.isc.org/index.pl?/ops/ds (as visited June 22, 2004, and
available in Clerk of Court’s case file) (233.1 million hosts as
of Jan. 2004). It is reasonable to assume that other techno-
logical developments important to the First Amendment
analysis have also occurred during that time. More and bet-
ter filtering alternatives may exist than when the District
Court entered its findings. Indeed, we know that after the
District Court entered its factfindings, a congressionally ap-

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Opinion of the Court
pointed commission issued a report that found that filters are
more effective than verification screens. See supra, at 668.
Delay between the time that a district court makes fact-
findings and the time that a case reaches this Court is inevi-
table, with the necessary consequence that there will be
some discrepancy between the facts as found and the facts
at the time the appellate court takes up the question. See,
e. g., Benjamin, Stepping into the Same River Twice: Rapidly
Changing Facts and the Appellate Process, 78 Texas L. Rev.
269, 290–296 (1999) (noting the problems presented for appel-
late courts by changing facts in the context of cases involving
the Internet, and giving as a specific example the Court’s
decision in Reno, 521 U. S. 844). We do not mean, therefore,
to set up an insuperable obstacle to fair review. Here, how-
ever, the usual gap has doubled because the case has been
through the Court of Appeals twice. The additional two
years might make a difference. By affirming the prelimi-
nary injunction and remanding for trial, we allow the parties
to update and supplement the factual record to reflect cur-
rent technological realities.
Remand will also permit the District Court to take ac-
count of a changed legal landscape. Since the District Court
made its factfindings, Congress has passed at least two fur-
ther statutes that might qualify as less restrictive alterna-
tives to COPA—a prohibition on misleading domain names,
and a statute creating a minors-safe “Dot Kids” domain.
See supra, at 663. Remanding for trial will allow the Dis-
trict Court to take into account those additional potential
alternatives.
On a final point, it is important to note that this opinion
does not hold that Congress is incapable of enacting any reg-
ulation of the Internet designed to prevent minors from gain-
ing access to harmful materials. The parties, because of the
conclusion of the Court of Appeals that the statute’s defini-
tions rendered it unconstitutional, did not devote their atten-

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673 Cite as: 542 U. S. 656 (2004)
Stevens, J., concurring
tion to the question whether further evidence might be intro-
duced on the relative restrictiveness and effectiveness of al-
ternatives to the statute. On remand, however, the parties
will be able to introduce further evidence on this point.
This opinion does not foreclose the District Court from con-
cluding, upon a proper showing by the Government that
meets the Government’s constitutional burden as defined in
this opinion, that COPA is the least restrictive alternative
available to accomplish Congress’ goal.
* * *
On this record, the Government has not shown that the
less restrictive alternatives proposed by respondents should
be disregarded. Those alternatives, indeed, may be more
effective than the provisions of COPA. The District Court
did not abuse its discretion when it entered the preliminary
injunction. The judgment of the Court of Appeals is af-
firmed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Justice Stevens, with whom Justice Ginsburg joins,
concurring.
When it first reviewed the constitutionality of the Child
Online Protection Act (COPA), the Court of Appeals held
that the statute’s use of “contemporary community stand-
ards” to identify materials that are “harmful to minors” was
a serious, and likely fatal, defect. American Civil Liberties
Union v. Reno, 217 F. 3d 162 (CA3 2000). I have already
explained at some length why I agree with that holding.
See Ashcroft v. American Civil Liberties Union, 535 U. S.
564, 603 (2002) (dissenting opinion) (“In the context of the
Internet, . . . community standards become a sword, rather
than a shield. If a prurient appeal is offensive in a puritan
village, it may be a crime to post it on the World Wide Web”).

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Stevens, J., concurring
I continue to believe that the Government may not penalize
speakers for making available to the general World Wide
Web audience that which the least tolerant communities in
America deem unfit for their children’s consumption, cf. Reno
v. American Civil Liberties Union, 521 U. S. 844, 878 (1997),
and consider that principle a sufficient basis for deciding
this case.
But COPA’s use of community standards is not the stat-
ute’s only constitutional defect. Today’s decision points to
another: that, as far as the record reveals, encouraging de-
ployment of user-based controls, such as filtering software,
would serve Congress’ interest in protecting minors from
sexually explicit Internet materials as well or better than
attempting to regulate the vast content of the World Wide
Web at its source, and at a far less significant cost to First
Amendment values.
In registering my agreement with the Court’s less-
restrictive-means analysis, I wish to underscore just how re-
strictive COPA is. COPA is a content-based restraint on
the dissemination of constitutionally protected speech. It
enforces its prohibitions by way of the criminal law, threat-
ening noncompliant Web speakers with a fine of as much as
$50,000, and a term of imprisonment as long as six months,
for each offense. 47 U. S. C. § 231(a). Speakers who “inten-
tionally” violate COPA are punishable by a fine of up to
$50,000 for each day of the violation. Ibid. And because
implementation of the various adult-verification mechanisms
described in the statute provides only an affirmative defense,
§ 231(c)(1), even full compliance with COPA cannot guarantee
freedom from prosecution. Speakers who dutifully place
their content behind age screens may nevertheless find
themselves in court, forced to prove the lawfulness of their
speech on pain of criminal conviction. Cf. Ashcroft v. Free
Speech Coalition, 535 U. S. 234, 255 (2002).
Criminal prosecutions are, in my view, an inappropriate
means to regulate the universe of materials classified as “ob-

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Stevens, J., concurring
scene,” since “the line between communications which ‘of-
fend’ and those which do not is too blurred to identify crimi-
nal conduct.” Smith v. United States, 431 U. S. 291, 316
(1977) (Stevens, J., dissenting). See also Marks v. United
States, 430 U. S. 188, 198 (1977) (Stevens, J., concurring in
part and dissenting in part). COPA’s creation of a new cate-
gory of criminally punishable speech that is “harmful to
minors” only compounds the problem. It may be, as Jus-
tice Breyer contends, that the statute’s coverage extends
“only slightly” beyond the legally obscene, and therefore in-
trudes little into the realm of protected expression. Post, at
679 (dissenting opinion). But even with Justice Breyer’s
guidance, I find it impossible to identify just how far past
the already ill-defined territory of “obscenity” he thinks the
statute extends. Attaching criminal sanctions to a mistaken
judgment about the contours of the novel and nebulous cate-
gory of “harmful to minors” speech clearly imposes a heavy
burden on the exercise of First Amendment freedoms.
COPA’s criminal penalties are, moreover, strong medicine
for the ill that the statute seeks to remedy. To be sure,
our cases have recognized a compelling interest in protecting
minors from exposure to sexually explicit materials. See,
e. g., Ginsberg v. New York, 390 U. S. 629, 640 (1968). As a
parent, grandparent, and great-grandparent, I endorse that
goal without reservation. As a judge, however, I must con-
fess to a growing sense of unease when the interest in
protecting children from prurient materials is invoked as a
justification for using criminal regulation of speech as a sub-
stitute for, or a simple backup to, adult oversight of children’s
viewing habits.
In view of the gravity of the burdens COPA imposes on
Web speech, the possibility that Congress might have accom-
plished the goal of protecting children from harmful materi-
als by other, less drastic means is a matter to be considered
with special care. With that observation, I join the opinion
of the Court.

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Breyer, J., dissenting
Justice Scalia, dissenting.
I agree with Justice Breyer’s conclusion that the Child
Online Protection Act (COPA), 47 U. S. C. § 231, is consti-
tutional. See post, at 689 (dissenting opinion). Both the
Court and Justice Breyer err, however, in subjecting
COPA to strict scrutiny. Nothing in the First Amendment
entitles the type of material covered by COPA to that exact-
ing standard of review. “We have recognized that commer-
cial entities which engage in ‘the sordid business of pander-
ing’ by ‘deliberately emphasiz[ing] the sexually provocative
aspects of [their nonobscene products], in order to catch the
salaciously disposed,’ engage in constitutionally unprotected
behavior.” United States v. Playboy Entertainment Group,
Inc., 529 U. S. 803, 831 (2000) (Scalia, J., dissenting) (quoting
Ginzburg v. United States, 383 U. S. 463, 467, 472 (1966)).
See also Los Angeles v. Alameda Books, Inc., 535 U. S. 425,
443–444 (2002) (Scalia, J., concurring); FW/PBS, Inc. v. Dal-
las, 493 U. S. 215, 256–261 (1990) (Scalia, J., concurring in
part and dissenting in part).
There is no doubt that the commercial pornography cov-
ered by COPA fits this description. The statute applies only
to a person who, “as a regular course of such person’s trade
or business, with the objective of earning a profit,” 47
U. S. C. § 231(e)(2)(B), and “with knowledge of the character
of the material,” § 231(a)(1), communicates material that de-
picts certain specified sexual acts and that “is designed to
appeal to, or is designed to pander to, the prurient interest,”
§ 231(e)(6)(A). Since this business could, consistent with the
First Amendment, be banned entirely, COPA’s lesser restric-
tions raise no constitutional concern.
Justice Breyer, with whom The Chief Justice and
Justice O’Connor join, dissenting.
The Child Online Protection Act (Act), 47 U. S. C. § 231,
seeks to protect children from exposure to commercial por-
nography placed on the Internet. It does so by requiring

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Breyer, J., dissenting
commercial providers to place pornographic material behind
Internet “screens” readily accessible to adults who produce
age verification. The Court recognizes that we should
“ ‘proceed . . . with care before invalidating the Act,’ ” while
pointing out that the “imperative of according respect to
the Congress . . . does not permit us to depart from well-
established First Amendment principles.” Ante, at 660. I
agree with these generalities. Like the Court, I would
subject the Act to “the most exacting scrutiny,” Turner
Broadcasting System, Inc. v. FCC, 512 U. S. 622, 642 (1994),
requiring the Government to show that any restriction of
nonobscene expression is “narrowly drawn” to further a
“compelling interest” and that the restriction amounts to the
“least restrictive means” available to further that interest,
Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115,
126 (1989). See also Denver Area Ed. Telecommunications
Consortium, Inc. v. FCC, 518 U. S. 727, 755–756 (1996).
Nonetheless, my examination of (1) the burdens the Act
imposes on protected expression, (2) the Act’s ability to fur-
ther a compelling interest, and (3) the proposed “less restric-
tive alternatives” convinces me that the Court is wrong. I
cannot accept its conclusion that Congress could have accom-
plished its statutory objective—protecting children from
commercial pornography on the Internet—in other, less re-
strictive ways.
I
Although the Court rests its conclusion upon the existence
of less restrictive alternatives, I must first examine the bur-
dens that the Act imposes upon protected speech. That is
because the term “less restrictive alternative” is a compara-
tive term. An “alternative” is “less restrictive” only if it
will work less First Amendment harm than the statute itself,
while at the same time similarly furthering the “compelling”
interest that prompted Congress to enact the statute. Un-
like the majority, I do not see how it is possible to make
this comparative determination without examining both the

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extent to which the Act regulates protected expression and
the nature of the burdens it imposes on that expression.
That examination suggests that the Act, properly inter-
preted, imposes a burden on protected speech that is no more
than modest.
A
The Act’s definitions limit the material it regulates to ma-
terial that does not enjoy First Amendment protection,
namely, legally obscene material, and very little more. A
comparison of this Court’s definition of unprotected, “legally
obscene,” material with the Act’s definitions makes this clear.
Material is legally obscene if
“(a) . . . ‘the average person, applying contemporary
community standards’ would find that the work, taken
as a whole, appeals to the prurient interest . . . ; (b) . . .
the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by the applicable
state law; and (c) . . . the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value.”
Miller v. California, 413 U. S. 15, 24 (1973).
The present statute defines the material that it regulates as
material that meets all of the following criteria:
“(A) the average person, applying contemporary com-
munity standards, would find, taking the material as a
whole and with respect to minors, [that the material] is
designed to appeal to, or is designed to pander to, the
prurient interest;
“(B) [the material] depicts, describes, or represents, in
a manner patently offensive with respect to minors, an
actual or simulated sexual act or sexual contact, an ac-
tual or simulated normal or perverted sexual act, or a
lewd exhibition of the genitals or post-pubescent female
breast; and
“(C) [the material] taken as a whole, lacks serious liter-
ary, artistic, political, or scientific value for minors.” 47
U. S. C. § 231(e)(6) (emphasis added).

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Both definitions define the relevant material through use
of the critical terms “prurient interest” and “lacks serious
literary, artistic, political, or scientific value.” Insofar as
material appeals to, or panders to, “the prurient interest,” it
simply seeks a sexual response. Insofar as “patently offen-
sive” material with “no serious value” simply seeks that re-
sponse, it does not seek to educate, it does not seek to eluci-
date views about sex, it is not artistic, and it is not literary.
Compare, e. g., Erznoznik v. Jacksonville, 422 U. S. 205, 213
(1975) (invalidating an ordinance regulating nudity in films,
where the ban was not confined to “sexually explicit nudity”
or otherwise limited), with Ginzburg v. United States, 383
U. S. 463, 471 (1966) (finding unprotected material that was
“created, represented and sold solely as a claimed instrument
of the sexual stimulation it would bring”). That is why this
Court, in Miller, held that the First Amendment did not pro-
tect material that fit its definition.
The only significant difference between the present statute
and Miller’s definition consists of the addition of the words
“with respect to minors,” § 231(e)(6)(A), and “for minors,”
§ 231(e)(6)(C). But the addition of these words to a defini-
tion that would otherwise cover only obscenity expands the
statute’s scope only slightly. That is because the material
in question (while potentially harmful to young children)
must, first, appeal to the “prurient interest” of, i. e., seek a
sexual response from, some group of adolescents or postado-
lescents (since young children normally do not so respond).
And material that appeals to the “prurient interest[s]” of
some group of adolescents or postadolescents will almost in-
evitably appeal to the “prurient interest[s]” of some group of
adults as well.
The “lack of serious value” requirement narrows the stat-
ute yet further—despite the presence of the qualification
“for minors.” That is because one cannot easily imagine ma-
terial that has serious literary, artistic, political, or scientific
value for a significant group of adults, but lacks such value
for any significant group of minors. Thus, the statute, read

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literally, insofar as it extends beyond the legally obscene,
could reach only borderline cases. And to take the words
of the statute literally is consistent with Congress’ avowed
objective in enacting this law; namely, putting material
produced by professional pornographers behind screens that
will verify the age of the viewer. See S. Rep. No. 105–225,
p. 3 (1998) (hereinafter S. Rep.) (“The bill seeks to restrict
access to commercial pornography on the Web by requiring
those engaged in the business of the commercial distribu-
tion of material that is harmful to minors to take certain
prescribed steps to restrict access to such material by
minors . . .”); H. R. Rep. No. 105–775, pp. 5, 14 (1998) (herein-
after H. R. Rep.) (explaining that the bill is aimed at the
sale of pornographic materials and provides a defense for the
“commercial purveyors of pornography” that the bill seeks
to regulate).
These limitations on the statute’s scope answer many of
the concerns raised by those who attack its constitutionality.
Respondents fear prosecution for the Internet posting of ma-
terial that does not fall within the statute’s ambit as limited
by the “prurient interest” and “no serious value” require-
ments; for example: an essay about a young man’s experience
with masturbation and sexual shame; “a serious discussion
about birth control practices, homosexuality, . . . or the conse-
quences of prison rape”; an account by a 15-year-old, written
for therapeutic purposes, of being raped when she was 13;
a guide to self-examination for testicular cancer; a graphic
illustration of how to use a condom; or any of the other post-
ings of modern literary or artistic works or discussions of
sexual identity, homosexuality, sexually transmitted dis-
eases, sex education, or safe sex, let alone Aldous Huxley’s
Brave New World, J. D. Salinger’s Catcher in the Rye, or,
as the complaint would have it, “Ken Starr’s report on the
Clinton-Lewinsky scandal.” See G. Dillard, Shame on Me,
Lodging 609–612; Reno v. American Civil Liberties Union,
521 U. S. 844, 871 (1997); Brief for Respondents 29 (citing

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Lodging 732–736); Brief for American Society of Journalists
and Authors et al. as Amici Curiae 8, and n. 7 (referring
to a guide on the medical advice site www.afraidtoask.com);
322 F. 3d 240, 268 (CA3 2003) (citing Safer Sex Institute,
safersex.org/condoms/how.to.use); Complaint ¶ 1, Lodging
40–41 (“a Mapplethorpe photograph,” referring to the work
of controversial artist Robert Mapplethorpe); id., at 667–669
(Pl. Exh. 80, PlanetOut Youth Message Boards (Internet dis-
cussion board for gay teens)); declaration of Adam K. Glick-
man, president and CEO, Addazi, Inc., d/ b/a Condomania,
Supp. Lodging of Petitioner 4–10 (describing how Web site
has been used for health education); declaration of Roberta
Speyer, president and publisher, OBGYN.net, id., at 15–16
(describing Web site as resource for obstetrics, gynecology,
and women’s health issues); Brief for Volunteer Lawyers for
the Arts et al. as Amici Curiae 15 (listing works of litera-
ture removed from some schools).
These materials are not both (1) “designed to appeal to,
or . . . pander to, the prurient interest” of significant groups
of minors and (2) lacking in “serious literary, artistic, politi-
cal, or scientific value” for significant groups of minors.
§§ 231(e)(6)(A), (C). Thus, they fall outside the statute’s
definition of the material that it restricts, a fact the Govern-
ment acknowledged at oral argument. Tr. of Oral Arg.
50–51.
I have found nothing elsewhere in the statute’s language
that broadens its scope. Other qualifying phrases, such as
“taking the material as a whole,” §§ 231(e)(6)(A), (C), and “for
commercial purposes,” § 231(a)(1), limit the statute’s scope
still more, requiring, for example, that individual images be
considered in context. See Roth v. United States, 354 U. S.
476, 490 (1957). In sum, the Act’s definitions limit the stat-
ute’s scope to commercial pornography. It affects unpro-
tected obscene material. Given the inevitable uncertainty
about how to characterize close-to-obscene material, it could
apply to (or chill the production of) a limited class of border-

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line material that courts might ultimately find is protected.
But the examples I have just given fall outside that class.
B
The Act does not censor the material it covers. Rather,
it requires providers of the “harmful to minors” material to
restrict minors’ access to it by verifying age. They can do
so by inserting screens that verify age using a credit card,
adult personal identification number, or other similar tech-
nology. See § 231(c)(1). In this way, the Act requires cre-
ation of an Internet screen that minors, but not adults, will
find difficult to bypass.
I recognize that the screening requirement imposes some
burden on adults who seek access to the regulated material,
as well as on its providers. The cost is, in part, monetary.
The parties agreed that a Web site could store card numbers
or passwords at between 15 and 20 cents per number.
American Civil Liberties Union v. Reno, 31 F. Supp. 2d 473,
488–489, ¶¶ 45–47 (ED Pa. 1999). And verification services
provide free verification to Web site operators, while charg-
ing users less than $20 per year. Id., at 489–490, ¶¶ 48–53.
According to the trade association for the commercial por-
nographers who are the statute’s target, use of such verifi-
cation procedures is “standard practice” in their online oper-
ations. See S. Rep., at 7; Legislative Proposals to Protect
Children from Inappropriate Materials on the Internet:
Hearing on H. R. 3783 et al. before the House Subcommittee
on Telecommunications, Trade and Consumer Protection of
the House Committee on Commerce, 105th Cong., 2d Sess.,
46, 48 (1998) (prepared statement of Jeffrey J. Douglas, Exec-
utive Director and Chairman, Free Speech Coalition (calling
the proposed child-protecting mechanisms “effective and
appropriate”)).
In addition to the monetary cost, and despite strict re-
quirements that identifying information be kept confidential,
see 47 U. S. C. §§ 231(d)(1), 501, the identification require-

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Breyer, J., dissenting
ments inherent in age screening may lead some users to fear
embarrassment. See 31 F. Supp. 2d, at 495. Both mone-
tary costs and potential embarrassment can deter potential
viewers and, in that sense, the statute’s requirements may
restrict access to a site. But this Court has held that in the
context of congressional efforts to protect children, restric-
tions of this kind do not automatically violate the Constitu-
tion. And the Court has approved their use. See, e. g.,
United States v. American Library Assn., Inc., 539 U. S. 194,
209 (2003) (plurality opinion) (“[T]he Constitution does not
guarantee the right to acquire information at a public library
without any risk of embarrassment”). Cf. Reno, 521 U. S.,
at 890 (O’Connor, J., concurring in judgment in part and
dissenting in part) (calling the age-verification requirement
similar to “a bouncer [who] checks a person’s driver’s license
before admitting him to a nightclub”).
In sum, the Act at most imposes a modest additional
burden on adult access to legally obscene material, perhaps
imposing a similar burden on access to some protected
borderline obscene material as well.
II
I turn next to the question of “compelling interest,” that
of protecting minors from exposure to commercial pornogra-
phy. No one denies that such an interest is “compelling.”
See Denver Area Ed. Telecommunications Consortium,
Inc., 518 U. S., at 743 (opinion of Breyer, J.) (interest in
protecting minors is “compelling”); Sable Communications,
492 U. S., at 126 (same); Ginsberg v. New York, 390 U. S. 629,
639–640 (1968). Rather, the question here is whether the
Act, given its restrictions on adult access, significantly ad-
vances that interest. In other words, is the game worth
the candle?
The majority argues that it is not, because of the existence
of “blocking and filtering software.” Ante, at 666–670.
The majority refers to the presence of that software as a

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“less restrictive alternative.” But that is a misnomer—a
misnomer that may lead the reader to believe that all we
need do is look to see if the blocking and filtering software
is less restrictive; and to believe that, because in one sense
it is (one can turn off the software), that is the end of the
constitutional matter.
But such reasoning has no place here. Conceptually
speaking, the presence of filtering software is not an alterna-
tive legislative approach to the problem of protecting chil-
dren from exposure to commercial pornography. Rather, it
is part of the status quo, i. e., the backdrop against which
Congress enacted the present statute. It is always true, by
definition, that the status quo is less restrictive than a new
regulatory law. It is always less restrictive to do nothing
than to do something. But “doing nothing” does not ad-
dress the problem Congress sought to address—namely, that,
despite the availability of filtering software, children were
still being exposed to harmful material on the Internet.
Thus, the relevant constitutional question is not the ques-
tion the Court asks: Would it be less restrictive to do noth-
ing? Of course it would be. Rather, the relevant question
posits a comparison of (a) a status quo that includes filtering
software with (b) a change in that status quo that adds to it
an age-verification screen requirement. Given the existence
of filtering software, does the problem Congress identified
remain significant? Does the Act help to address it? These
are questions about the relation of the Act to the compelling
interest. Does the Act, compared to the status quo, signifi-
cantly advance the ball? (An affirmative answer to these
questions will not justify “[a]ny restriction on speech,” as the
Court claims, ante, at 666, for a final answer in respect to
constitutionality must take account of burdens and alterna-
tives as well.)
The answers to these intermediate questions are clear: Fil-
tering software, as presently available, does not solve the
“child protection” problem. It suffers from four serious in-

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adequacies that prompted Congress to pass legislation in-
stead of relying on its voluntary use. First, its filtering is
faulty, allowing some pornographic material to pass through
without hindrance. Just last year, in American Library
Assn., Justice Stevens described “fundamental defects in
the filtering software that is now available or that will be
available in the foreseeable future.” 539 U. S., at 221 (dis-
senting opinion). He pointed to the problem of under-
blocking: “Because the software relies on key words or
phrases to block undesirable sites, it does not have the capac-
ity to exclude a precisely defined category of images.” Ibid.
That is to say, in the absence of words, the software alone
cannot distinguish between the most obscene pictorial image
and the Venus de Milo. No Member of this Court disagreed.
Second, filtering software costs money. Not every family
has the $40 or so necessary to install it. See 31 F. Supp. 2d,
at 492, ¶ 65. By way of contrast, age screening costs less.
See supra, at 682 (citing costs of up to 20 cents per password
or $20 per user for an identification number).
Third, filtering software depends upon parents willing to
decide where their children will surf the Web and able to
enforce that decision. As to millions of American families,
that is not a reasonable possibility. More than 28 million
school age children have both parents or their sole parent in
the work force, at least 5 million children are left alone at
home without supervision each week, and many of those chil-
dren will spend afternoons and evenings with friends who
may well have access to computers and more lenient parents.
See United States v. Playboy Entertainment Group, Inc.,
529 U. S. 803, 842 (2000) (Breyer, J., dissenting).
Fourth, software blocking lacks precision, with the result
that those who wish to use it to screen out pornography find
that it blocks a great deal of material that is valuable. As
Justice Stevens pointed out, “the software’s reliance on
words to identify undesirable sites necessarily results in the
blocking of thousands of pages that contain content that is

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completely innocuous for both adults and minors, and that no
rational person could conclude matches the filtering com-
panies’ category definitions, such as pornography or sex.”
American Library Assn., supra, at 222 (internal quota-
tion marks omitted). Indeed, the American Civil Liberties
Union (ACLU), one of the respondents here, told Congress
that filtering software “block[s] out valuable and protected
information, such as information about the Quaker religion,
and web sites including those of the American Association of
University Women, the AIDS Quilt, the Town Hall Political
Site (run by the Family Resource Center, Christian Coalition
and other conservative groups).” Hearing on Internet Inde-
cency before the Senate Committee on Commerce, Science,
and Transportation, 105th Cong., 2d Sess., 64 (1998). The
software “is simply incapable of discerning between constitu-
tionally protected and unprotected speech.” Id., at 65. It
“inappropriately blocks valuable, protected speech, and does
not effectively block the sites [it is] intended to block.” Id.,
at 66 (citing reports documenting overblocking).
Nothing in the District Court record suggests the con-
trary. No respondent has offered to produce evidence at
trial to the contrary. No party has suggested, for example,
that technology allowing filters to interpret and discern
among images has suddenly become, or is about to become,
widely available. Indeed, the Court concedes that “[f]ilter-
ing software, of course, is not a perfect solution to the prob-
lem.” Ante, at 668.
In sum, a “filtering software status quo” means filtering
that underblocks, imposes a cost upon each family that uses
it, fails to screen outside the home, and lacks precision.
Thus, Congress could reasonably conclude that a system that
relies entirely upon the use of such software is not an effec-
tive system. And a law that adds to that system an age-
verification screen requirement significantly increases the
system’s efficacy. That is to say, at a modest additional cost

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to those adults who wish to obtain access to a screened pro-
gram, that law will bring about better, more precise block-
ing, both inside and outside the home.
The Court’s response—that 40% of all pornographic mate-
rial may be of foreign origin—is beside the point. Ante, at
667 (citing the District Court’s findings). Even assuming (I
believe unrealistically) that all foreign originators will re-
fuse to use screening, the Act would make a difference in
respect to 60% of the Internet’s commercial pornography. I
cannot call that difference insignificant.
The upshot is that Congress could reasonably conclude
that, despite the current availability of filtering software, a
child protection problem exists. It also could conclude that
a precisely targeted regulatory statute, adding an age-
verification requirement for a narrow range of material,
would more effectively shield children from commercial
pornography.
Is this justification sufficient? The lower courts thought
not. But that is because those courts interpreted the Act
as imposing far more than a modest burden. They assumed
an interpretation of the statute in which it reached far be-
yond legally obscene and borderline obscene material, affect-
ing material that, given the interpretation set forth above,
would fall well outside the Act’s scope. But we must inter-
pret the Act to save it, not to destroy it. NLRB v. Jones &
Laughlin Steel Corp., 301 U. S. 1, 30 (1937). So interpreted,
see supra, at 678–682, the Act imposes a far lesser burden
on access to protected material. Given the modest nature of
that burden and the likelihood that the Act will significantly
further Congress’ compelling objective, the Act may well sat-
isfy the First Amendment’s stringent tests. Cf. Sable Com-
munications, 492 U. S., at 130. Indeed, it does satisfy the
First Amendment unless, of course, there is a genuine al-
ternative, “less restrictive” way similarly to further that
objective.

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III
I turn, then, to the actual “less restrictive alternatives”
that the Court proposes. The Court proposes two real al-
ternatives, i. e., two potentially less restrictive ways in
which Congress might alter the status quo in order to
achieve its “compelling” objective.
First, the Government might “act to encourage” the use of
blocking and filtering software. Ante, at 669. The problem
is that any argument that rests upon this alternative proves
too much. If one imagines enough Government resources
devoted to the problem and perhaps additional scientific ad-
vances, then, of course, the use of software might become
as effective and less restrictive. Obviously, the Government
could give all parents, schools, and Internet cafes free com-
puters with filtering programs already installed, hire fed-
eral employees to train parents and teachers on their use,
and devote millions of dollars to the development of better
software. The result might be an alternative that is ex-
tremely effective.
But the Constitution does not, because it cannot, require
the Government to disprove the existence of magic solutions,
i. e., solutions that, put in general terms, will solve any prob-
lem less restrictively but with equal effectiveness. Other-
wise, “the undoubted ability of lawyers and judges,” who are
not constrained by the budgetary worries and other practical
parameters within which Congress must operate, “to imag-
ine some kind of slightly less drastic or restrictive an ap-
proach would make it impossible to write laws that deal with
the harm that called the statute into being.” Playboy En-
tertainment Group, 529 U. S., at 841 (Breyer, J., dissenting).
As Justice Blackmun recognized, a “judge would be unimagi-
native indeed if he could not come up with something a little
less ‘drastic’ or a little less ‘restrictive’ in almost any sit-
uation, and thereby enable himself to vote to strike legisla-
tion down.” Illinois Bd. of Elections v. Socialist Workers
Party, 440 U. S. 173, 188–189 (1979) (concurring opinion).

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Perhaps that is why no party has argued seriously that addi-
tional expenditure of government funds to encourage the use
of screening is a “less restrictive alternative.”
Second, the majority suggests decriminalizing the statute,
noting the “chilling effect” of criminalizing a category of
speech. Ante, at 667. To remove a major sanction, however,
would make the statute less effective, virtually by definition.
IV
My conclusion is that the Act, as properly interpreted,
risks imposition of minor burdens on some protected mate-
rial—burdens that adults wishing to view the material may
overcome at modest cost. At the same time, it significantly
helps to achieve a compelling congressional goal, protecting
children from exposure to commercial pornography. There
is no serious, practically available “less restrictive” way sim-
ilarly to further this compelling interest. Hence the Act is
constitutional.
V
The Court’s holding raises two more general questions.
First, what has happened to the “constructive discourse be-
tween our courts and our legislatures” that “is an integral
and admirable part of the constitutional design”? Blakely
v. Washington, ante, at 326 (Kennedy, J., dissenting).
After eight years of legislative effort, two statutes, and three
Supreme Court cases the Court sends this case back to the
District Court for further proceedings. What proceedings?
I have found no offer by either party to present more rele-
vant evidence. What remains to be litigated? I know the
Court says that the parties may “introduce further evidence”
as to the “relative restrictiveness and effectiveness of alter-
natives to the statute.” Ante, at 673. But I do not under-
stand what that new evidence might consist of.
Moreover, Congress passed the current statute “[i]n re-
sponse to the Court’s decision in Reno” striking down an
earlier statutory effort to deal with the same problem.

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Ante, at 661. Congress read Reno with care. It dedicated
itself to the task of drafting a statute that would meet each
and every criticism of the predecessor statute that this Court
set forth in Reno. It incorporated language from the
Court’s precedents, particularly the Miller standard, virtu-
ally verbatim. Compare 413 U. S., at 24, with § 231(e)(6).
And it created what it believed was a statute that would
protect children from exposure to obscene professional por-
nography without obstructing adult access to material that
the First Amendment protects. See H. R. Rep., at 5 (ex-
plaining that the bill was “carefully drafted to respond to the
Supreme Court’s decision in Reno”); S. Rep., at 2 (same).
What else was Congress supposed to do?
I recognize that some Members of the Court, now or in
the past, have taken the view that the First Amendment
simply does not permit Congress to legislate in this area.
See, e. g., Ginzburg, 383 U. S., at 476 (Black, J., dissenting)
(“[T]he Federal Government is without any power whatever
under the Constitution to put any type of burden on speech
and expression of ideas of any kind”). Others believe that
the Amendment does not permit Congress to legislate in cer-
tain ways, e. g., through the imposition of criminal penalties
for obscenity. See, e. g., ante, at 674–675 (Stevens, J., con-
curring). There are strong constitutional arguments favor-
ing these views. But the Court itself does not adopt those
views. Instead, it finds that the Government has not proved
the nonexistence of “less restrictive alternatives.” That
finding, if appropriate here, is universally appropriate. And
if universally appropriate, it denies to Congress, in practice,
the legislative leeway that the Court’s language seems to
promise. If this statute does not pass the Court’s “less re-
strictive alternative” test, what does? If nothing does, then
the Court should say so clearly.
As I have explained, I believe the First Amendment per-
mits an alternative holding. We could construe the statute

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narrowly—as I have tried to do—removing nearly all pro-
tected material from its scope. By doing so, we could recon-
cile its language with the First Amendment’s demands. We
would “save” the statute, “not . . . destroy” it. NLRB,
301 U. S., at 30. Accord, McConnell v. Federal Election
Comm’n, 540 U. S. 93, 180 (2003) (where a saving construc-
tion of the statute’s language “ ‘is fairly possible,’ ” we must
adopt it (quoting Crowell v. Benson, 285 U. S. 22, 62 (1932))).
And in the process, we would permit Congress to achieve its
basic child-protecting objectives.
Second, will the majority’s holding in practice mean
greater or lesser protection for expression? I do not find
the answer to this question obvious. The Court’s decision
removes an important weapon from the prosecutorial arse-
nal. That weapon would have given the Government a
choice—a choice other than “ban totally or do nothing at all.”
The Act tells the Government that, instead of prosecuting
bans on obscenity to the maximum extent possible (as re-
spondents have urged as yet another “alternative”), it can
insist that those who make available material that is obscene
or close to obscene keep that material under wraps, mak-
ing it readily available to adults who wish to see it, while
restricting access to children. By providing this third
option—a “middle way”—the Act avoids the need for poten-
tially speech-suppressing prosecutions.
That matters in a world where the obscene and the nonob-
scene do not come tied neatly into separate, easily distin-
guishable, packages. In that real world, this middle way
might well have furthered First Amendment interests by
tempering the prosecutorial instinct in borderline cases. At
least, Congress might have so believed. And this likelihood,
from a First Amendment perspective, might ultimately have
proved more protective of the rights of viewers to retain
access to expression than the all-or-nothing choice available
to prosecutors in the wake of the majority’s opinion.
For these reasons, I dissent.