Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 14 (2002)

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Cite as: 535 U. S. 564 (2002)

Opinion of Thomas, J.

specification, a juror applying community standards will inevitably draw upon personal "knowledge of the community or vicinage from which he comes." Hamling, supra, at 105. Petitioner concedes the latter point, see Reply Brief for Petitioner 3-4, and admits that, even if jurors were instructed under COPA to apply the standards of the adult population as a whole, the variance in community standards across the country could still cause juries in different locations to reach inconsistent conclusions as to whether a particular work is "harmful to minors." Brief for Petitioner 39.

B

Because juries would apply different standards across the country, and Web publishers currently lack the ability to limit access to their sites on a geographic basis, the Court of Appeals feared that COPA's "community standards" component would effectively force all speakers on the Web to abide by the "most puritan" community's standards. 217 F. 3d, at 175. And such a requirement, the Court of Appeals concluded, "imposes an overreaching burden and restriction on constitutionally protected speech." Id., at 177.

In evaluating the constitutionality of the CDA, this Court expressed a similar concern over that statute's use of community standards to identify patently offensive material on the Internet. We noted that "the 'community standards' criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message." Reno, 521 U. S., at 877-878. The Court of Appeals below relied heavily on this observation, stating that it was "not persuaded that the Supreme Court's concern with respect to the 'community standards' criterion has been sufficiently remedied by Congress in COPA." 217 F. 3d, at 174.

The CDA's use of community standards to identify patently offensive material, however, was particularly problem-

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