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P['CP&[G' ԦGG P['C^Platino Bold ItalicPalatino ItalicITC Zapf DingbatsCourier Courier BoldCourier "m^ #-AAa_'':G ' AAAAAAAAAA GGG4VTTT[TN[a/A[Nn_[N[TJN_TrRRG'G'G:AA4C:'?G%#E%hG:CA46-G?[??8'G'G' ''u''''''''''C%TATATATATAu]T4T:T:T:T:/%/%/%/%_G[:[:[:[:_G_G_G_GR?TA[C[:[:R?[:NCTATATAT4T4T4T4[CT:T:T:T:[?[?[?[?[?[?aGaG/%/%/%/%A[EN%N%N%N%N%_G_G_G_G[:[:uaT4T4T4J6J6J6J6N-N-N-_G_G_G_G_G_Gr[R?G8G8G8[CN%_GT4J6N-R?R?[C[:_GNG G:#422AAA'#aaA'VVAa'--Au::uGGu-u'GG@@S G&&@@@SZSSGssFFz/G `S:0P]sssFFzZSSSS3`ZZZFFM:@e@@SSSTJN@F0G:G3G:TFV='&T@P@hGT=K:T@Z@A@EF3G3QCY=T@]PZPJ3F&&@CCPJHFSJJJJJJJJJJJJJJJJJJJ3333333FFFFFFFFFFFFFFFFFFFF&&&&&&&&&&&&@@@@@@@CCCCCCCCCCCCPPPPPPPPPPPPPPPPPPPPTGT'TQZ'Q@Opin InitInitial Opinion codesdpЊ #  ( (    П I. A. 1. a.(1)(a) i) a) I A 1 a (1)(a) i) a)@@2^W2XoMZH[BQck QuoteSingle spaced indented quote - Circv C   (  Cd  ( ( ( 5 EllipsisParagraph Ellipsis<;X` hp x (#%'0*,.8135@8: Reply Brief for Appellants 18, n. 13 (citing Ginsberg v. New York, 390 U.S. 629, 633 (1968)). But the Conferees expressly rejected amendments that would have imposed such a harmful to minors standard. See S. Conf. Rep. No. 104!230, p. 189 (1996) (S. Conf. Rep.), 142 Cong. Rec. H1145, H1165!1166 (Feb. 1, 1996). The Conferees also rejected amendments that would have limited the proscribed materials to those lacking redeeming value. See S. Conf. Rep., at 189, 142 Cong. Rec. H1165!1166 (Feb. 1, 1996).  Could a speaker confidently assume that a serious discussion about birth control practices, homosexuality, the First Amendment issues raised by the  J8 Appendix to our Pacifica opinion, or the consequences of prison rape would not violate the CDA? This uncertainty undermines the likelihood that the CDA has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials.  The vagueness of the CDA is a matter of special concern for two reasons. First, the CDA is a contentbased regulation of speech. The vagueness of such a regulation raises special First Amendment concerns because of its  J obvious chilling effect on free speech. See, e.g., Gentile  J v. State Bar of Nev., 501 U.S. 1030, 1048!1051 (1991). Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two years in prison for each act of violation. The severin%"  Ԯty of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably  J unlawful words, ideas, and images. See, e.g.,  J ԚDombrowski v. Pfister, 380 U.S. 479, 494 (1965). As a practical matter, this increased deterrent effect, coupled with the risk of discriminatory enforcement of vague regulations, poses greater First Amendment concerns than those implicated by the civil regulation reviewed in  J Denver Area Ed. Telecommunications Consortium, Inc. v.  J FCC, 518 U.S. ___ (1996).  The Government argues that the statute is no more vague than the obscenity standard this Court estab J lished in Miller v. California, 413 U.S. 15 (1973). But  J that is not so. In Miller, this Court reviewed a criminal conviction against a commercial vendor who mailed brochures containing pictures of sexually explicit activities to individuals who had not requested such materi JX als. Id., at 18. Having struggled for some time to estab J0 lish a definition of obscenity, we set forth in Miller the test for obscenity that controls to this day: BQ C  , , (  (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary,  J  artistic, political, or scientific value. Id., at 24 (internal quotation marks and citations omitted).E BQ d   ( , , Because the CDA's patently offensive standard (and,  J we assume arguendo, its synonymous indecent stan J dard) is one part of the threeprong Miller test, the Government reasons, it cannot be unconstitutionally vague.  The Government's assertion is incorrect as a matter of  J/ fact. The second prong of the Miller test"the purported/%"  Ԯly analogous standard"contains a critical requirement that is omitted from the CDA: that the proscribed material be specifically defined by the applicable state law. This requirement reduces the vagueness inherent in the openended term patently offensive as used in the  J8 CDA. Moreover, the Miller definition is limited to sexual conduct, whereas the CDA extends also to include (1) excretory activities as well as (2) organs of both a sexual and excretory nature.  The Government's reasoning is also flawed. Just because a definition including three limitations is not vague, it does not follow that one of those limitations,  J standing by itself, is not vague.F&  uB ԍ FTN  &  XFrXFr ddf < Even though the word trunk, standing alone, might refer to luggage, a swimming suit, the base of a tree, or the long nose of an animal, its meaning is clear when it is one prong of a threepart description of a species of gray animals.F Each of Miller's additional two prongs"(1) that, taken as a whole, the material appeal to the prurient interest, and (2) that it lac[k] serious literary, artistic, political, or scientific value"critically limits the uncertain sweep of the obscenity definition. The second requirement is particularly important because, unlike the patently offensive and prurient interest criteria, it is not judged by  J contemporary community standards. See Pope v. Illinois, 481 U.S. 497, 500 (1987). This societal value requirement, absent in the CDA, allows appellate courts to impose some limitations and regularity on the definition by setting, as a matter of law, a national floor for socially redeeming value. The Government's contention that courts will be able to give such legal limitations to  J the CDA's standards is belied by Miller's own rationale for having juries determine whether material is patently offensive according to community standards: that  JP such questions are essentially ones of fact.'oPl uB ԍ FTN  &  XFrXFr ddf < 413 U.S., at 30 (Determinations of what appeals to the `pruri&"##Ԯent interest' or is `patently offensive'.... are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists). The CDA, which implements the contem uB# porary community standards language of Miller, thus conflicts with the Conferees' own assertion that the CDA was intended to establish a uniform national standard of content regulation. S. Conf. Rep., at 191.P'"  Ԍ J  In contrast to Miller and our other previous cases, the CDA thus presents a greater threat of censoring speech that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger provides further reason for insisting that the statute not be overly broad. The CDA's burden on protected speech cannot be justified if it could be avoided by a more carefully drafted statute.   9H1 d d\7VII؃  2  We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.  In evaluating the free speech rights of adults, we have made it perfectly clear that [s]exual expression which is indecent but not obscene is protected by the First  J Amendment. Sable, 492 U.S., at 126. See also Carey v.  J Population Services Int'l, 431 U.S. 678, 701 (1977) ( [W]here obscenity is not involved, we have consistently'"   held that the fact that protected speech may be offensive to some does not justify its suppression). Indeed,  J Pacifica itself admonished that the fact that society may find speech offensive is not a sufficient reason for suppressing it. 438 U.S., at 745.  It is true that we have repeatedly recognized the governmental interest in protecting children from harm J ful materials. See Ginsberg, 390 U.S., at 639; Pacifica, 438 U.S., at 749. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not reduc[e] the adult population ... to ... only what is  J fit for children. Denver, 518 U.S., at ___ (slip op., at  J 29) (internal quotation marks omitted) (quoting Sable,  J 492 U.S., at 128).1(  uB8 ԍ FTN  &  XFrXFr ddf < Accord, Butler v. Michigan, 352 U.S. 380, 383 (1957) (ban onsale to adults of books deemed harmful to children unconstitu uB tional); Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 128 (1989) (ban on dialaporn messages unconstitutional);  uB ԚÚBolgerĠv. Youngs Drug Products Corp., 463 U.S. 60, 73 (1983) (banon mailing of unsolicited advertisement for contraceptives unconstitutional).1 [R]egardless of the strength of the government's interest in protecting children, [t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.  J0 Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74!75 (1983).  The District Court was correct to conclude that the CDA effectively resembles the ban on dialaporn  J invalidated in Sable. 929 F.Supp., at 854. In Sable, 492 U.S., at 129, this Court rejected the argument that we should defer to the congressional judgment that nothing less than a total ban would be effective in preventing enterprising youngsters from gaining access to indecent  J communications. Sable thus made clear that the mere fact that a statutory regulation of speech was enacted("   for the important purpose of protecting children from exposure to sexually explicit material does not foreclose  J inquiry into its validity.P) uB ԍ FTN  &  XFrXFr ddf < The lack of legislative attention to the statute at issue in Sable suggests another parallel with this case. Compare 492 U.S., at 129!130 ( [A]side from conclusory statements during the debates by proponents of the bill, as well as similar assertions in hearings on a substantially identical bill the year before, ... the congressional  uB record presented to us contains no evidence as to how effective or ineffective the FCC's most recent regulations were or might prove to be.... No Congressman or Senator purported to present a considered judgment with respect to how often or to what extent minors could or would circumvent the rules and have access to dialaporn  uB> messages) with n. 24, supra.P As we pointed out last Term, that inquiry embodies an overarching commitment to make sure that Congress has designed its statute to accomplish its purpose without imposing an unnecessar J ily great restriction on speech. Denver, 518 U.S., at ___ (slip op., at 11).  In arguing that the CDA does not so diminish adult communication, the Government relies on the incorrect factual premise that prohibiting a transmission whenever it is known that one of its recipients is a minor would not interfere with adulttoadult communication. The findings of the District Court make clear that this  J premise is untenable. Given the size of the potential audience for most messages, in the absence of a viable age verification process, the sender must be charged with knowing that one or more minors will likely view it. Knowledge that, for instance, one or more members of a 100person chat group will be minor"and therefore that it would be a crime to send the group an indecent message"would surely burden communication among  J adults.*%nm  uB ԍ FTN  &  XFrXFr ddf < The Government agrees that these provisions are applicable whenever a sender transmits a message to more than one recipient, knowing that at least one of the specific persons receiving theC)"## message is a minor. Opposition to Motion to Affirm and Reply to Juris. Statement 4!5, n. 1.*"  Ԍ The District Court found that at the time of trial existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults. The Court found no effective way to determine the age of a user who is accessing material through email, mail exploders, newsgroups, or chat rooms. 929 F.Supp., at 845 (findings 90!94). As a practical matter, the Court also found that it would be prohibitively expensive for noncommercial"as well as some commercial"speakers who have Web sites to  JH verify that their users are adults. Id., at 845!848 (find J ings 95!116).+  uB ԍ FTN  &  XFrXFr ddf < The Government asserts that [t]here is nothing constitutionally suspect about requiring commercial Web site operators ... to shoulder the modest burdens associated with their use. Brief for Appellants 35. As a matter of fact, however, there is no evidence that a modest burden would be effective.  These limitations must inevitably curtail a significant amount of adult communication on the Internet. By contrast, the District Court found that  J  [d]espite its limitations, currently available userbased software suggests that a reasonably effective method by  JX which parents can prevent their children from accessing  J0 sexually explicit and other material which parents may believe is inappropriate for their children will soon be  J widely available. Id., at 842 (finding 73) (emphases added).  The breadth of the CDA's coverage is wholly unprece Jh dented. Unlike the regulations upheld in Ginsberg and  J@ Pacifica, the scope of the CDA is not limited to commercial speech or commercial entities. Its openended prohibitions embrace all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors. The general,+"   undefined terms indecent and patently offensive cover large amounts of nonpornographic material with  J serious educational or other value.,& uB ԍ FTN  &  XFrXFr ddf < Transmitting obscenity and child pornography, whether via the Internet or other means, is already illegal under federal law for both adults and juveniles. See 18 U.S.C. 1464!1465 (criminalizing obscenity); 2251 (criminalizing child pornography). In fact, when Congress was considering the CDA, the Government expressed its view that the law was unnecessary because existing laws already authorized its ongoing efforts to prosecute obscenity, child pornography, and child solicitation. See 141 Cong. Rec. S8342 (June 14, 1995) (letter from Kent Markus, Acting Assistant Attorney General, U. S. Department of Justice, to Sen. Leahy). Moreover, the 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 mes J sage.o- uBv ԍCiting Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993), among other cases, appellees offer an additional reason why, in their view, the CDA fails strict scrutiny. Because so much sexually explicit content originates overseas, they argue, the CDA cannot be effective. Brief for Appellees American Library Association et al. 33!34. This argument raises difficult issues regarding the intended, as well as the permissible scope of, extraterritorial application of the CDA. We find it unnecessary to address those issues to dispose of this case. o The regulated subject matter includes any of the seven dirty words used in the Pacifica monologue, the use of which the Government's expert acknowledged could constitute a felony. See Olsen Test., Tr. Vol. V, 53:16!54:10. It may also extend to discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalogue of the Carnegie Library.  For the purposes of our decision, we need neither accept nor reject the Government's submission that the First Amendment does not forbid a blanket prohibition on all indecent and patently offensive messages communicated to a 17year old"no matter how much value n-"   the message may contain and regardless of parental approval. It is at least clear that the strength of the Government's interest in protecting minors is not equally strong throughout the coverage of this broad statute. Under the CDA, a parent allowing her 17yearold to use the family computer to obtain information on the Internet that she, in her parental judgment, deems appropriate could face a lengthy prison term. See 47 U.S.C.A. 223(a)(2) (Supp. 1997). Similarly, a parent who sent his 17yearold college freshman information on birth control via email could be incarcerated even though neither he, his child, nor anyone in their home community, found the material indecent or patently offensive, if the college town's community thought otherwise.  The breadth of this contentbased restriction of speech imposes an especially heavy burden on the Government to explain why a less restrictive provision would not be as effective as the CDA. It has not done so. The arguments in this Court have referred to possible alternatives such as requiring that indecent material be tagged in a way that facilitates parental control of material coming into their homes, making exceptions for messages with artistic or educational value, providing some tolerance for parental choice, and regulating some portions of the Internet"such as commercial web sites"differently than others, such as chat rooms. Particularly in the light of the absence of any detailed findings by the Congress, or even hearings addressing the special problems of the CDA, we are persuaded that the CDA is not narrowly tailored if that requirement has any meaning at all.  9H1 d d66VIII؃  <2  In an attempt to curtail the CDA's facial overbreadth, the Government advances three additional arguments for sustaining the Act's affirmative prohibitions: (1) that!-"   the CDA is constitutional because it leaves open ample alternative channels of communication; (2) that the plain meaning of the Act's knowledge and specific person requirement significantly restricts its permissible applications; and (3) that the Act's prohibitions are almost always limited to material lacking redeeming social value.  The Government first contends that, even though the CDA effectively censors discourse on many of the Internet's modalities"such as chat groups, newsgroups, and mail exploders"it is nonetheless constitutional because it provides a reasonable opportunity for speakers to engage in the restricted speech on the World Wide Web. Brief for Appellants 39. This argument is unpersuasive because the CDA regulates speech on the basis of its content. A time, place, and manner analy J sis is therefore inapplicable. See Consolidated Edison  JX Co. of N.Y. v. Public Serv. Comm'n of N.Y., 447 U.S. 530, 536 (1980). It is thus immaterial whether such speech would be feasible on the Web (which, as the Government's own expert acknowledged, would cost up to $10,000 if the speaker's interests were not accommodated by an existing Web site, not including costs for database management and age verification). The Government's position is equivalent to arguing that a statute could ban leaflets on certain subjects as long as individuals are free to publish books. In invalidating a number  J of laws that banned leafletting on the streets regardless  J of their content"we explained that one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in  J( some other place. Schneider v. State (Town of Irving J ton), 308 U.S. 147, 163 (1939).  The Government also asserts that the knowledge requirement of both 223(a) and (d), especially when coupled with the specific child element found in 223(d), saves the CDA from overbreadth. Because both`"-"   sections prohibit the dissemination of indecent messages only to persons known to be under 18, the Government argues, it does not require transmitters to refrain from communicating indecent material to adults; they need only refrain from disseminating such materials to persons they know to be under 18. Brief for Appellants 24.  This argument ignores the fact that most Internet fora"including chat rooms, newsgroups, mail exploders, and the Web"are open to all comers. The Government's assertion that the knowledge requirement somehow protects the communications of adults is therefore untenable. Even the strongest reading of the specific person requirement of 223(d) cannot save the statute. It would confer broad powers of censorship, in the form of a heckler's veto, upon any opponent of indecent speech who might simply log on and inform the wouldbe discoursers that his 17yearold child"a specific person ... under 18 years of age, 47 U.S.C.A. 223(d)(1)(A) (Supp. 1997)"would be present.  Finally, we find no textual support for the Government's submission that material having scientific, educational, or other redeeming social value will necessarily fall outside the CDA's patently offensive and inde Jh cent prohibitions. See also n. 37, supra.  9H1 d d7IX؃  |2  The Government's three remaining arguments focus on  J the defenses provided in 223(e)(5).. uB ԍ FTN  &  XFrXFr ddf < For the full text of 223(e)(5), see n. 26, supra. First, relying on the good faith, reasonable, effective, and appropriate actions provision, the Government suggests that tagging provides a defense that saves the constitutionality of the Act. The suggestion assumes that transmitters may encode their indecent communications in a way that would indicate their contents, thus permitting recipients to block their reception with appropriaten#G."   software. It is the requirement that the good faith action must be effective that makes this defense illusory. The Government recognizes that its proposed screening software does not currently exist. Even if it did, there is no way to know whether a potential recipient will actually block the encoded material. Without the impossible knowledge that every guardian in America is screening for the tag, the transmitter could not reasonably rely on its action to be effective.  For its second and third arguments concerning defenses"which we can consider together"the Government relies on the latter half of 223(e)(5), which applies when the transmitter has restricted access by requiring use of a verified credit card or adult identification. Such verification is not only technologically available but actually is used by commercial providers of sexually explicit material. These providers, therefore, would be protected by the defense. Under the findings of the District Court, however, it is not economically feasible for most noncommercial speakers to employ such verification. Accordingly, this defense would not significantly narrow the statute's burden on noncommercial speech. Even with respect to the commercial pornographers that would be protected by the defense, the Government failed to adduce any evidence that these verification techniques actually preclude minors from posing  J as adults.2/ uBX ԍ FTN  &  XFrXFr ddf < Thus, ironically, this defense may significantly protect commercial purveyors of obscene postings while providing little (or no) benefit for transmitters of indecent messages that have significant social or artistic value.2 Given that the risk of criminal sanctions hovers over each content provider, like the proverbial  J sword of Damocles,o0l uB ԍ FTN  &  XFrXFr ddf < 929 F.Supp., at 855!856.o the District Court correctly refused to rely on unproven future technology to save the statute. The Government thus failed to prove that theP$#0"   proffered defense would significantly reduce the heavy burden on adult speech produced by the prohibition on offensive displays.  We agree with the District Court's conclusion that the CDA places an unacceptably heavy burden on protected speech, and that the defenses do not constitute the sort of narrow tailoring that will save an otherwise pat J ently invalid unconstitutional provision. In Sable, 492 U.S., at 127, we remarked that the speech restriction at issue there amounted to  L `burn[ing] the house to roast the pig.'    The CDA, casting a far darker shadow over free speech, threatens to torch a large segment of the Internet community.  9H1 d d8 X؃  4 2  At oral argument, the Government relied heavily on its ultimate fallback position: If this Court should conclude that the CDA is insufficiently tailored, it urged, we should save the statute's constitutionality by honoring the severability clause, see 47 U.S.C. 608, and construing nonseverable terms narrowly. In only one respect is this argument acceptable.  A severability clause requires textual provisions that can be severed. We will follow 608's guidance by leaving constitutional textual elements of the statute intact in the one place where they are, in fact, severable. The indecency provision, 47 U.S.C.A. 223(a) (Supp. 1997), applies to any comment, request, suggestion,  J^ proposal, image, or other communication which is ob J6 scene or indecent. (Emphasis added.) Appellees do not challenge the application of the statute to obscene speech, which, they acknowledge, can be banned totally because it enjoys no First Amendment protection. See  J Miller, 413 U.S., at 18. As set forth by the statute, the restriction of obscene material enjoys a textual manifestation separate from that for indecent material, which we have held unconstitutional. Therefore, we will%0"   sever the term or indecent from the statute, leaving the rest of 223(a) standing. In no other respect, however, can 223(a) or 223(d) be saved by such a textual surgery.  The Government also draws on an additional, less traditional aspect of the CDA's severability clause, 47 U.S.C., 608, which asks any reviewing court that holds the statute facially unconstitutional not to invalidate the CDA in application to other persons or circumstances that might be constitutionally permissible. It further invokes this Court's admonition that, absent countervailing considerations, a statute should be declared invalid to the extent it reaches too far, but  J otherwise left intact. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503!504 (1985). There are two flaws in this argument.  First, the statute that grants our jurisdiction for this expedited review, 47 U.S.C. A. 561 (Supp. 1997), limits that jurisdictional grant to actions challenging the CDA on its face. Consistent with 561, the plaintiffs who brought this suit and the threejudge panel that decided it treated it as a facial challenge. We have no authority, in this particular posture, to convert this litigation into an asapplied challenge. Nor, given the vast array of plaintiffs, the range of their expressive activities, and the vagueness of the statute, would it be practicable to limit our holding to a judicially defined set of specific applications.  Second, one of the countervailing considerations  Jx mentioned in Brockett is present here. In considering a facial challenge, this Court may impose a limiting construction on a statute only if it is readily susceptible  J to such a construction. Virginia v. American Bookseller's  J Assn., Inc., 484 U.S. 383, 397 (1988). See also  J ԚErznoznik, v. Jacksonville, 422 U.S. 205, 216 (1975) ( readily subject to narrowing construction). The openended character of the CDA provides no guidance what`&0"  Ԯever for limiting its coverage.  This case is therefore unlike those in which we have construed a statute narrowly because the text or other source of congressional intent identified a clear line that  J` this Court could draw. Cf., e.g., Brockett, 472 U.S., at 504!505 (invalidating obscenity statute only to the extent that word lust was actually or effectively ex J cised from statute); United States v. Grace, 461 U.S. 171, 180!183 (1983) (invalidating federal statute banning expressive displays only insofar as it extended to public sidewalks when clear line could be drawn between sidewalks and other grounds that comported with congressional purpose of protecting the building, grounds, and people therein). Rather, our decision in  J United States v. Treasury Employees, 513 U.S. 454, 479, n. 26 (1995), is applicable. In that case, we declined to dra[w] one or more lines between categories of speech covered by an overly broad statute, when Congress has sent inconsistent signals as to where the new line or lines should be drawn because doing so involves a far more serious invasion of the legislative  J domain.1& uB  ԍ FTN  &  XFrXFr ddf < As this Court long ago explained, It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could be rightfully be detained and who should be set at large. This would, to some extent, substitute the judicial for the legislative  uB department of the government. United States v. Reese, 92 U.S. 214, 221 (1876). In part because of these separation of powers concerns, we have held that a severability clause is an aid merely;  uB not an inexorable command. Dorchy v. Kansas, 264 U.S. 286, 290 (1924).  This Court will not rewrite a ... law to  J conform it to constitutional requirements. American  Jh Booksellers, 484 U.S., at 397.2%h uB ԍ FTN  &  XFrXFr ddf < See also Osborne v. Ohio, 495 U.S. 103, 121 (1990) (judicial rewriting of statutes would derogate Congress's incentive to draft a narrowly tailored law in the first place). h' 2"  Ԍ 9H1 dЙd7 XI؃  2   In this Court, though not in the District Court, the Government asserts that"in addition to its interest in protecting children"its [e]qually significant interest in fostering the growth of the Internet provides an independent basis for upholding the constitutionality of the CDA. Brief for Appellants 19. The Government apparently assumes that the unregulated availability of indecent and patently offensive material on the Internet is driving countless citizens away from the medium because of the risk of exposing themselves or their children to harmful material.  We find this argument singularly unpersuasive. The dramatic expansion of this new marketplace of ideas contradicts the factual basis of this contention. The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.  For the foregoing reasons, the judgment of the district court is affirmed.  J" ` BIt is so ordered.ă