610
Stevens, J., dissenting
601, 615 (1973), "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." (Emphasis added.) Regardless of how the Court of Appeals interprets the "commercial purposes" or "as a whole" provisions on remand, the question we must answer is whether the statute restricts a substantial amount of protected speech relative to its legitimate sweep by virtue of the fact that it uses community standards.6 These other provisions may reduce the absolute number of Web pages covered by the statute, but even the narrowest version of the statute abridges a substantial amount of protected speech that many communities would not find harmful to minors. Because Web speakers cannot limit access to those specific communities, the statute is substantially overbroad regardless of how its other provisions are construed.
Justice Thomas acknowledges, and petitioner concedes, that juries across the country will apply different standards and reach different conclusions about whether particular works are harmful to minors. See ante, at 577; Brief for Petitioner 3-4, 39. We recognized as much in ACLU I when we noted that "discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalog of the Carnegie Library" might of-fend some community's standards and not others, 521 U. S., at 878. In fact, our own division on that question provides further evidence of the range of attitudes about such material. See, e. g., id., at 896 (O'Connor, J., concurring in judg-6 Justice Kennedy accuses the Court of Appeals of evaluating over-breadth in a vacuum by dismissing most of the concerns raised by the District Court, ante, at 599. But most of those concerns went to whether COPA survives strict scrutiny, not overbreadth. Even under Justice Kennedy's formulation, it is unclear why it is relevant to an overbreadth analysis, for example, whether COPA could have been more narrowly tailored, whether the affirmative defenses impose too great a burden, or whether inclusion of criminal as well as civil penalties was excessive.
Page: Index Previous 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 NextLast modified: October 4, 2007