Cite as: 535 U. S. 564 (2002)
Stevens, J., dissenting
Sable. See Reply Brief for Appellants in Reno v. ACLU, O. T. 1996, No. 96-511, p. 19.3
Justice Thomas points to several other provisions in COPA to argue that any overbreadth will be rendered in-substantial by the rest of the statute. Ante, at 578-579. These provisions afford little reassurance, however, as they only marginally limit the sweep of the statute. It is true that, in addition to COPA's "appeals to the prurient interest of minors" prong, the material must be "patently offensive with respect to minors" and it must lack "serious literary, artistic, political, or scientific value for minors." 47 U. S. C. § 231(e)(6). Nonetheless, the "patently offensive" prong is judged according to contemporary community standards as well, ante, at 576, n. 7 (opinion of Thomas, J.). Whatever disparity exists between various communities' assessment of the content that appeals to the prurient interest of minors will surely be matched by their differing opinions as to
3 Justice Breyer seeks to avoid the problem by effectively reading the phrase "contemporary national standards" into the statute, ante, at 589 (opinion concurring in part and concurring in judgment). While the legislative history of COPA provides some support for this reading, it is contradicted by the clear text of the statute, which directs jurors to consider "community" standards. This phrase is a term of art that has taken on a particular meaning in light of our precedent. Although we have never held that applying a national standard would be constitutionally impermissible, we have said that asking a jury to do so is "an exercise in futility," Miller v. California, 413 U. S. 15, 30 (1973), and that "[a] juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination," Hamling v. United States, 418 U. S. 87, 104 (1974). Any lingering doubts about the meaning of the phrase were certainly dispelled by our discussion of the issue in ACLU I, 521 U. S., at 874, n. 39, and we presume that Congress legislates against the backdrop of our decisions. Therefore, Justice Thomas has correctly refused to rewrite the statute to substitute a standard that Congress clearly did not choose. And even if the plurality were willing to do so, we would still have to acknowledge, as petitioner does, that jurors instructed to apply a national, or adult, standard will reach widely different conclusions throughout the country, see ante, at 577; Brief for Petitioner 39.
607
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