Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 19 (2002)

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582

ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION

Opinion of Thomas, J.

to control the distribution of controversial material with respect to the geographic communities into which they released it" whereas "Web publishers have no such comparable control." 217 F. 3d, at 175-176. In neither Hamling nor Sable, however, was the speaker's ability to target the release of material into particular geographic areas integral to the legal analysis. In Hamling, the ability to limit the distribution of material to targeted communities was not mentioned, let alone relied upon,12 and in Sable, a dial-a-porn operator's ability to screen incoming calls from particular areas was referenced only as a supplemental point, see 492 U. S., at 125.13 In the latter case, this Court made no effort to evaluate how burdensome it would have been for dial-aporn operators to tailor their messages to callers from thousands of different communities across the Nation, instead concluding that the burden of complying with the statute rested with those companies. See id., at 126.

12 This fact was perhaps omitted because under the federal statute at issue in Hamling v. United States, 418 U. S. 87 (1974), a defendant could be prosecuted in any district through which obscene mail passed while it was on route to its destination, see id., at 143-144 (Brennan, J., dissenting), and a postal customer obviously lacked the ability to control the path his letter traveled as it made its way to its intended recipient.

13 Justice Stevens' contention that this Court "upheld the application of community standards to a nationwide medium" in Sable due to the fact that "[it] was at least possible" for dial-a-porn operators to tailor their messages to particular communities is inaccurate. See post, at 605 (dissenting opinion). This Court's conclusion clearly did not hinge either on the fact that dial-a-porn operators could prevent callers in particular communities from accessing their messages or on an assessment of how burdensome it would have been for dial-a-porn operators to take that step. Rather, these companies were required to abide by the standards of various communities for the sole reason that they transmitted their material into those communities. See Sable, 492 U. S., at 126 ("If Sable's audience is comprised of different communities with different local standards, Sable ultimately bears the burden of complying with the prohibition on obscene messages").

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