662
ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION
Opinion of the Court
exhibition of the genitals or post-pubescent female
breast; and
"(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." §231(e)(6).
"Minor[s]" are defined as "any person under 17 years of
age." §231(e)(7). A person acts for "commercial purposes
only if such person is engaged in the business of making such
communications." "Engaged in the business," in turn,
"means that the person who makes a communication, or
offers to make a communication, by means of the World
Wide Web, that includes any material that is harmful to
minors, devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of
such activities (although it is not necessary that the person make a profit or that the making or offering to make
such communications be the person's sole or principal
business or source of income)." §231(e)(2).
While the statute labels all speech that falls within these
definitions as criminal speech, it also provides an affirmative
defense to those who employ specified means to prevent minors from gaining access to the prohibited materials on their
Web site. A person may escape conviction under the statute
by demonstrating that he
"has restricted access by minors to material that is
harmful to minors"(A) by requiring use of a credit card, debit account,
adult-access code, or adult personal identification
number;
"(B) by accepting a digital certificate that verifies age;
or
'(C) by any other reasonable measures that are feasible
under available technology." § 231(c)(1).