588
Opinion of O'Connor, J.
Miller v. California, 413 U. S. 15 (1973). In that case, we approved jury instructions that based the relevant "community standards" on those of the State of California rather than on the Nation as a whole. In doing so, we held that "[n]othing in the First Amendment requires" that a jury consider national standards when determining if something is obscene as a matter of fact. Id., at 31. The First Amendment, we held, did not require that "the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City." Id., at 32. But we said nothing about the constitutionality of jury instructions that would contemplate a national standard—i. e., requiring that the people who live in all of these places hold themselves to what the nationwide community of adults would find was patently offensive and appealed to the prurient interest.
Later, in Jenkins v. Georgia, 418 U. S. 153, 157 (1974), we confirmed that "Miller approved the use of [instructions based on local standards]; it did not mandate their use." The instructions we approved in that case charged the jury with applying "community standards" without designating any particular "community." In holding that a State may define the obscenity standard by stating the Miller standard without further specification, 418 U. S., at 157, Jenkins left open the possibility that jurors would apply any number of standards, including a national standard, in evaluating mate-rial's obscenity.
To be sure, the Court in Miller also stated that a national standard might be "unascertainable," 413 U. S., at 31, and "[un]realistic," id., at 32. But where speech on the Internet is concerned, I do not share that skepticism. It is true that our Nation is diverse, but many local communities encompass a similar diversity. For instance, in Miller itself, the jury was instructed to consider the standards of the entire State of California, a large (today, it has a population of greater than 33 million people, see U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 23 (120th
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