606
Stevens, J., dissenting
undisputed fact that a provider who posts material on the Internet cannot prevent it from entering any geographic community, see ante, at 575, n. 6 (opinion of Thomas, J.), a law that criminalizes a particular communication in just a handful of destinations effectively prohibits transmission of that message to all of the 176.5 million Americans that have access to the Internet, see ante, at 567, n. 2 (majority opinion). In light of this fundamental difference in technologies, the rules applicable to the mass mailing of an obscene montage or to obscene dial-a-porn should not be used to judge the legality of messages on the World Wide Web.2
In his attempt to fit this case within the framework of Hamling and Sable, Justice Thomas overlooks the more obvious comparison—namely, the CDA invalidated in ACLU I. When we confronted a similar attempt by Congress to limit speech on the Internet based on community standards, we explained that because Web publishers cannot control who accesses their Web sites, using community standards to regulate speech on the Internet creates an overbreadth problem. "[T]he '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." 521 U. S., at 877-878. Although our holding in ACLU I did not turn on that factor alone, we did not adopt the position relied on by Justice Thomas—that applying community standards to the Internet is constitutional based on Hamling and
2 It is hardly a solution to say, as Justice Thomas suggests, ante, at 583, that a speaker need only choose a different medium in order to avoid having its speech judged by the least tolerant community. Our over-breadth doctrine would quickly become a toothless protection if we were to hold that substituting a more limited forum for expression is an acceptable price to pay. Since a content-based restriction is presumptively invalid, I would place the burden on parents to "take the simple step of utilizing a medium that enables," ibid., them to avoid this material before requiring the speaker to find another forum.
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