Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 15 (2002)

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578

ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION

Opinion of Thomas, J.

atic in light of that statute's unprecedented breadth and vagueness. The statute covered communications depicting or describing "sexual or excretory activities or organs" that were "patently offensive as measured by contemporary community standards"—a standard somewhat similar to the second prong of Miller's three-prong test. But the CDA did not include any limiting terms resembling Miller's additional two prongs. See Reno, 521 U. S., at 873. It neither contained any requirement that restricted material appeal to the prurient interest nor excluded from the scope of its coverage works with serious literary, artistic, political, or scientific value. Ibid. The tremendous breadth of the CDA magnified the impact caused by differences in community standards across the country, restricting Web publishers from openly displaying a significant amount of material that would have constituted protected speech in some communities across the country but run afoul of community standards in others.

COPA, by contrast, does not appear to suffer from the same flaw because it applies to significantly less material than did the CDA and defines the harmful-to-minors material restricted by the statute in a manner parallel to the Miller definition of obscenity. See supra, at 569-570, 574-575. To fall within the scope of COPA, works must not only "depic[t], describ[e], or represen[t], in a manner patently offensive with respect to minors," particular sexual acts or parts of the anatomy,8 they must also be designed to appeal to the prurient interest of minors and, "taken as a whole, lac[k] serious

8 While the CDA allowed juries to find material to be patently offensive so long as it depicted or described "sexual or excretory activities or organs," COPA specifically delineates the sexual activities and anatomical features, the depictions of which may be found to be patently offensive: "an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast." 47 U. S. C. § 231(e)(6)(B).

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