*479Mr. Justice Brennan

delivered the opinion of the Court.

The constitutionality of a criminal obscenity statute is the question in each of these cases. In Roth, the primary constitutional question is whether the federal obscenity statute 1 violates the provision of the First Amendment that “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .” In Alberts, the primary constitutional question is whether the obscenity provisions of the California Penal Code 2 invade the freedoms of speech and press as they may be incorporated in *480the liberty protected from state action by the Due Process Clause of the Fourteenth Amendment.

Other constitutional questions are: whether these statutes violate due process,3 because too vague to support conviction for crime; whether power to punish speech and press offensive to decency and morality is in the States alone, so that the federal obscenity statute violates the Ninth and Tenth Amendments (raised in Roth); and whether Congress, by enacting the federal obscenity statute, under the power delegated by Art. I, § 8, cl. 7, to establish post offices and post roads, pre-empted the regulation of the subject matter (raised in Alberts).

Roth conducted a business in New York in the publication and sale of books, photographs and magazines. He used circulars and advertising matter to solicit sales. He was convicted by a jury in the District Court for the Southern District of New York upon 4 counts of a 26-count indictment charging him with mailing obscene circulars and advertising, and an obscene book, in violation of the federal obscenity statute. His conviction was affirmed by the Court of Appeals for the Second Circuit.4 We granted certiorari.5

*481Alberts conducted a mail-order business from Los Angeles. He was convicted by the Judge of the Municipal Court of the Beverly Hills Judicial District (having waived a jury trial) under a misdemeanor complaint which charged him with lewdly keeping for sale obscene and indecent books, and with writing, composing and publishing an obscene advertisement of them, in violation of the California Penal Code. The conviction was affirmed by the Appellate Department of the Superior Court of the State of California in and for the County of Los Angeles.6 We noted probable jurisdiction.7

The dispositive question is whether obscenity is utterance within the area of protected speech and press.8 Although this is the first time the question has been squarely presented to this Court, either under the First Amendment or under the Fourteenth Amendment, expressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press. Ex parte Jackson, 96 U. S. 727, 736-737; United States v. Chase, 135 U. S. 255, 261; Robertson v. Baldwin, 165 U. S. 275, 281; Public Clearing House v. Coyne, 194 U. S. 497, 508; Hoke v. United States, 227 U. S. 308, 322; Near v. Minnesota, 283 U. S. 697, 716; Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572; Hannegan v. Esquire, Inc., 327 U. S. 146, 158; Winters v. New York, 333 U. S. 507, 510; Beauharnais v. Illinois, 343 U. S. 250, 266.9

*482The guaranties of freedom of expression10 in effect in 10 of the 14 States which by 1792 had ratified the Constitution, gave no absolute protection for every utterance. Thirteen of the 14 States provided for the prosecution of libel,11 and all of those States made either blasphemy or profanity, or both, statutory crimes.12 As early as *4831712, Massachusetts made it criminal to publish “any filthy, obscene, or profane song, pamphlet, libel or mock sermon” in imitation or mimicking of religious services. Acts and Laws of the Province of Mass. Bay, c. CV, § 8 (1712), Mass. Bay Colony Charters & Laws 399 (1814). Thus, profanity and obscenity were related offenses.

In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech. Beauharnais v. Illinois, 343 U. S. 250, 266. At the time of the adoption of the First Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press.13

*484The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. This objective was made explicit as early as 1774 in a letter of the Continental Congress to the inhabitants of Quebec:

“The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.” 1 Journals of the Continental Congress 108 (1774).

All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests.14 But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for *485that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations,15 in the obscenity laws of all of the 48 States,16 and in the 20 obscenity laws enacted by the Congress from 1842 to 1956.17 This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572:

“. . . There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene .... It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . .” (Emphasis added.)

We hold that obscenity is not within the area of constitutionally protected speech or press.

It is strenuously urged that these obscenity statutes offend the constitutional guaranties because they punish *486incitation to impure sexual thoughts, not shown to be related to any overt antisocial conduct which is or may be incited in the persons stimulated to such thoughts. In Roth, the trial judge instructed the jury: “The words 'obscene, lewd and lascivious’ as used in the law, signify that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts.” (Emphasis added.) In Alberts, the trial judge applied the test laid down in People v. Wepplo, 78 Cal. App. 2d Supp. 959, 178 P. 2d 853, namely, whether the material has “a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desires.” (Emphasis added.) It is insisted that the constitutional guaranties are violated because convictions may be had without proof either that obscene material will perceptibly create a clear and present danger of antisocial conduct,18 or will probably induce its recipients to such conduct.19 But, in light of our holding that obscenity is not protected speech, the complete answer to this argument is in the holding of this Court in Beauharnais v. Illinois, supra, at 266:

“Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase ‘clear and present danger.’ Certainly no one would contend that obscene speech, *487for example, may be punished only upon a showing of such circumstances. Libel, as we have seen, is in the same class.”

However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest.20 The portrayal of sex, e. g., in art, literature and scientific works,21 is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern. As to all such problems, *488this Court said in Thornhill v. Alabama, 310 U. S. 88, 101-102:

“The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.” (Emphasis added.)

The fundamental freedoms of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth.22 Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.23 It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.

The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated *489excerpt upon particularly susceptible persons. Regina v. Hicklin, [1868] L. R. 3 Q. B. 360.24 Some American courts adopted this standard25 but later decisions have rejected it and substituted this test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.26 The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity.

Both trial courts below sufficiently followed the proper standard. Both courts used the proper definition of obscenity. In addition, in the Alberts case, in ruling on a motion to dismiss, the trial judge indicated that, as the *490trier of facts, he was judging each item as a whole as it would affect the normal person,27 and in Roth, the trial judge instructed the jury as follows:

“. . . The test is not whether it would arouse sexual desires or sexual impure thoughts in those comprising a particular segment of the community, the young, the immature or the highly prudish or would leave another segment, the scientific or highly educated or the so-called worldly-wise and sophisticated indifferent and unmoved. . . .

“The test in each case is the effect of the book, picture or publication considered as a whole, not upon any particular class, but upon all those whom it is likely to reach. In other words, you determine its impact upon the average person in the community. The books, pictures and circulars must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion. You judge the circulars, pictures and publications which have been put in evidence by present-day standards of the community. You may ask yourselves does it offend the common conscience of the community by present-day standards.

“In this case, ladies and gentlemen of the jury, you and you alone are the exclusive judges of what the common conscience of the community is, and in determining that conscience you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious — men, women and children.”

*491It is argued that the statutes do not provide reasonably ascertainable standards of guilt and therefore violate the constitutional requirements of due process. Winters v. New York, 333 U. S. 507. The federal obscenity statute makes punishable the mailing of material that is “obscene, lewd, lascivious, or filthy ... or other publication of an indecent character.”28 The California statute makes punishable, inter alia, the keeping for sale or advertising material that is “obscene or indecent.” The thrust of the argument is that these words are not sufficiently precise because they do not mean the same thing to all people, all the time, everywhere.

Many decisions have recognized that these terms of obscenity statutes are not precise.29 This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. “. . . [T]he Constitution does not require impossible standards”; all that is required is that the language “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices....” United States v. Petrillo, 332 U. S. 1, 7-8. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark “. . . boundaries sufficiently distinct for judges and juries fairly to administer the law .... That there may be marginal cases in which it is difficult to determine the side of the line on *492which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . ." Id., at 7. See also United States v. Harriss, 347 U. S. 612, 624, n. 15; Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, 340; United States v. Ragen, 314 U. S. 513, 523-524; United States v. Wurzbach, 280 U. S. 396; Hygrade Provision Co. v. Sherman, 266 U. S. 497; Fox v. Washington, 236 U. S. 273; Nash v. United States, 229 U. S. 373.30

In summary, then, we hold that these statutes, applied according to the proper standard for judging obscenity, do not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited.

Roth’s argument that the federal obscenity statute unconstitutionally encroaches upon the powers reserved by the Ninth and Tenth Amendments to the States and to the people to punish speech and press where offensive to decency and morality is hinged upon his contention that obscenity is expression not excepted from the sweep of the provision of the First Amendment that “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .” (Emphasis added.) That argument falls in light of our holding that obscenity is not expression protected by the First Amendment.31 We *493therefore hold that the federal obscenity statute punishing the use of the mails for obscene material is a proper exercise of the postal power delegated to Congress by Art. I, § 8, cl. 7.32 In United Public Workers v. Mitchell, 330 U. S. 75, 95-96, this Court said:

“. . . The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail. . .

Alberts argues that because his was a mail-order business, the California statute is repugnant to Art. I, § 8, cl. 7, under which the Congress allegedly pre-empted the regulatory field by enacting the federal obscenity statute punishing the mailing or advertising by mail of obscene material. The federal statute deals only with actual *494mailing; it does not eliminate the power of the state to punish "keeping for sale” or “advertising” obscene material. The state statute in no way imposes a burden or interferes with the federal postal functions. “. . . The decided cases which indicate the limits of state regulatory power in relation to the federal mail service involve situations where state regulation involved a direct, physical interference with federal activities under the postal power or some direct, immediate burden on the performance of the postal functions. . . .” Railway Mail Assn. v. Corsi, 326 U. S. 88, 96.

The judgments are

Affirmed.

Mr. Chief Justice Warren,

concurring in the result.

I agree with the result reached by the Court in these cases, but, because we are operating in a field of expression and because broad language used here may eventually be applied to the arts and sciences and freedom of communication generally, I would limit our decision to the facts before us and to the validity of the statutes in question as applied.

Appellant Alberts was charged with wilfully, unlawfully and lewdly disseminating obscene matter. Obscenity has been construed by the California courts to mean having a substantial tendency to corrupt by arousing lustful desires. People v. Wepplo, 78 Cal. App. 2d Supp. 959, 178 P. 2d 853. Petitioner Roth was indicted for unlawfully, wilfully and knowingly mailing obscene material that was calculated to corrupt and debauch the minds and morals of those to whom it was sent. Each was accorded all the protections of a criminal trial. Among other things, they contend that the statutes under which they were convicted violate the constitutional guarantees of freedom of speech, press and communication.

*495That there is a social problem presented by obscenity is attested by the expression of the legislatures of the forty-eight States as well as the Congress. To recognize the existence of a problem, however, does not require that we sustain any and all measures adopted to meet that problem. The history of the application of laws designed to suppress the obscene demonstrates convincingly that the power of government can be invoked under them against great art or literature, scientific treatises, or works exciting social controversy. Mistakes of the past prove that there is a strong countervailing interest to be considered in the freedoms guaranteed by the First and Fourteenth Amendments.

The line dividing the salacious or pornographic from literature or science is not straight and unwavering. Present laws depend largely upon the effect that the materials may have upon those who receive them. It is manifest that the same object may have a different impact, varying according to the part of the community it reached. But there is more to these cases. It is not the book that is on trial; it is a person. The conduct of the defendant is the central issue, not the obscenity of a book or picture. The nature of the materials is, of course, relevant as an attribute of the defendant’s conduct, but the materials are thus placed in context from which they draw color and character. A wholly different result might be reached in a different setting.

The personal element in these cases is seen most strongly in the requirement of scienter. Under the California law, the prohibited activity must be done “wilfully and lewdly.” The federal statute limits the crime to acts done “knowingly.” In his charge to the jury, the district judge stated that the matter must be “calculated” to corrupt or debauch. The defendants in both these cases were engaged in the business of purveying textual or *496graphic matter openly advertised to appeal to the erotic interest of their customers. They were plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. I believe that the State and Federal Governments can constitutionally punish such conduct. That is all that these cases present to us, and that is all we need to decide.

I agree with the Court’s decision in its rejection of the other contentions raised by these defendants.

MR. Justice Harlan,

concurring in the result in No. 61, and dissenting in No. 582.

I regret not to be able to join the Court’s opinion. I cannot do so because I find lurking beneath its disarming generalizations a number of problems which not only leave me with serious misgivings as to the future effect of today’s decisions, but which also, in my view, call for different results in these two cases.

I.

My basic difficulties with the Court’s opinion are threefold. First, the opinion paints with such a broad brush that I fear it may result in a loosening of the tight reins which state and federal courts should hold upon the enforcement of obscenity statutes. Second, the Court fails to discriminate between the different factors which, in my opinion, are involved in the constitutional adjudication of state and federal obscenity cases. Third, relevant distinctions between the two obscenity statutes here involved, and the Court’s own definition of “obscenity,” are ignored.

In final analysis, the problem presented by these cases is how far, and on what terms, the state and federal governments have power to punish individuals for disseminating books considered to be undesirable because of their *497nature or supposed deleterious effect upon human conduct. Proceeding from the premise that “no issue is presented in either case, concerning the obscenity of the material involved,” the Court finds the “dispositive question” to be “whether obscenity is utterance within the area of protected speech and press,” and then holds that “obscenity” is not so protected because it is “utterly without redeeming social importance.” This sweeping formula appears to me to beg the very question before us. The Court seems to assume that “obscenity” is a peculiar genus of “speech and press,” which is as distinct, recognizable, and classifiable as poison ivy is among other plants. On this basis the constitutional question before us simply becomes, as the Court says, whether “obscenity,” as an abstraction, is protected by the First and Fourteenth Amendments, and the question whether a particular book may be suppressed becomes a mere matter of classification, of “fact,” to be entrusted to a fact-finder and insulated from independent constitutional judgment. But surely the problem cannot be solved in such a generalized fashion. Every communication has an individuality and “value” of its own. The suppression of a particular writing or other tangible form of expression is, therefore, an individual matter, and in the nature of things every such suppression raises an individual constitutional problem, in which a reviewing court must determine for itself whether the attacked expression is suppressable within constitutional standards. Since those standards do not readily lend themselves to generalized definitions, the constitutional problem in the last analysis becomes one of particularized judgments which appellate courts must make for themselves.

I do not think that reviewing courts can escape this responsibility by saying that the trier of the facts, be it a jury or a judge, has labeled the questioned matter as “obscene,” for, if “obscenity” is to be suppressed, the *498question whether a particular work is of that character involves not really an issue of fact but a question of constitutional judgment of the most sensitive and delicate kind. Many juries might find that Joyce's “Ulysses” or Bocaccio’s “Decameron” was obscene, and yet the conviction of a defendant for selling either book would raise, for me, the gravest constitutional problems, for no such verdict could convince me, without more, that these books are “utterly without redeeming social importance.” In short, I do not understand how the Court can resolve the constitutional problems now before it without making its own independent judgment upon the character of the material upon which these convictions were based. I am very much afraid that the broad manner in which the Court has decided these cases will tend to obscure the peculiar responsibilities resting on state and federal courts in this field and encourage them to rely on easy labeling and jury verdicts as a substitute for facing up to the tough individual problems of constitutional judgment involved in every obscenity case.

My second reason for dissatisfaction with the Court’s opinion is that the broad strides with which the Court has proceeded has led it to brush aside with perfunctory ease the vital constitutional considerations which, in my opinion, differentiate these two cases. It does not seem to matter to the Court that in one case we balance the power /of a State in this field against the restrictions of the Four- | teenth Amendment, and in the other the power of the j Federal Government against the limitations of the First \ Amendment. I deal with this subject more particularly later.

Thirdly, the Court has not been bothered by the fact that the two cases involve different statutes. In California the book must have a “tendency to deprave or corrupt its readers”; under the federal statute it must tend “to stir sexual impulses and lead to sexually impure *499thoughts.” 1 The two statutes do not seem to me to present the same problems. Yet the Court compounds confusion when it superimposes on these two statutory definitions a third, drawn from the American Law Institute’s Model Penal Code, Tentative Draft No. 6: “A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest.” The bland assurance that this definition is the same as the ones with which we deal flies in the face of the authors’ express rejection of the “deprave and corrupt” and “sexual thoughts” tests:

“Obscenity [in the Tentative Draft] is defined in terms of material which appeals predominantly to prurient interest in sexual matters and which goes beyond customary freedom of expression in these matters. We reject the prevailing test of tendency to arouse lustful thoughts or desires because it is *500unrealistically broad for a society that plainly tolerates a great deal of erotic interest in literature, advertising, and art, and because regulation of thought or desire, unconnected with overt misbehavior, raises the most acute constitutional as well as practical difficulties. We likewise reject the common definition of obscene as that which ‘tends to corrupt or debase.’ If this means anything different from tendency to arouse lustful thought and desire, it suggests that change of character or actual misbehavior follows from contact with obscenity. Evidence of such consequences is lacking .... On the other hand, ‘appeal to prurient interest’ refers to qualities of the material itself: the capacity to attract individuals eager for a forbidden look . ...” 2

As this passage makes clear, there is a significant distinction between the definitions used in the prosecutions before us, and the American Law Institute formula. If, therefore, the latter is the correct standard, as my Brother Brennan elsewhere intimates,3 then these convictions should surely be reversed. Instead, the Court merely assimilates the various tests into one indiscriminate potpourri.

I now pass to the consideration of the two cases before us.

II.

1 concur in the judgment of the Court in No. 61, Alberts v. California.

The question in this case is whether the defendant was deprived of liberty without due process of law when he was convicted for selling certain materials found by the judge to be obscene because they would have a “tendency *501to deprave or corrupt its readers by exciting lascivious thoughts or arousing lustful desire.”

In judging the constitutionality of this conviction, we should remember that our function in reviewing state judgments under the Fourteenth Amendment is a narrow one. We do not decide whether the policy of the State is wise, or whether it is based on assumptions scientifically substantiated. We can inquire only whether the state action so subverts the fundamental liberties implicit in the Due Process Clause that it cannot be sustained as a rational exercise of power. See Jackson, J., dissenting in Beauharnais v. Illinois, 343 U. S. 250, 287. The States’ power to make printed words criminal is, of course, confined by the Fourteenth Amendment, but only insofar as such power is inconsistent with our concepts of “ordered liberty.” Palko v. Connecticut, 302 U. S. 319, 324-325.

What, then, is the purpose of this California statute? Clearly the state legislature has made the judgment that I printed words can “deprave or corrupt” the reader — that' words can incite to antisocial or immoral action. The assumption seems to be that the distribution of certain types of literature will induce criminal or immoral sexual conduct. It is well known, of course, that the validity of this assumption is a matter of dispute among critics, sociologists, psychiatrists, and penologists. There is a large school of thought, particularly in the scientific community, which denies any causal connection between the reading of pornography and immorality, crime, or delinquency. Others disagree. Clearly it is not our function to decide this question. That function belongs to the state legislature. Nothing in the Constitution requires California to accept as truth the most advanced and sophisticated psychiatric opinion. It seems to me clear that it is not irrational, in our present state of knowledge, to consider that pornography can induce a type of sexual conduct which a State may deem obnoxious to the *502moral fabric of society. In fact the very division of opinion on the subject counsels us to respect the choice made by the State.

Furthermore, even assuming that pornography cannot be deemed ever to cause, in an immediate sense, criminal sexual conduct, other interests within the proper cognizance of the States may be protected by the prohibition placed on such materials. The State can reasonably draw the inference that over a long period of time the indiscriminate dissemination of materials, the essential character of which is to degrade sex, will have an eroding effect on moral standards. And the State has a legitimate interest in protecting the privacy of the home against invasion of unsolicited obscenity.

Above all stands the realization that we deal here with an area where knowledge is small, data are insufficient, and experts are divided. Since the domain of sexual morality is pre-eminently a matter of state concern, this Court should be slow to interfere with state legislation calculated to protect that morality. It seems to me that nothing in the broad and flexible command of the Due Process Clause forbids California to prosecute one who sells books whose dominant tendency might be to “deprave or corrupt” a reader. I agree with the Court, of course, that the books must be judged as a whole and in relation to the normal adult reader.

What has been said, however, does not dispose of the case. It still remains for us to decide whether the state court’s determination that this material should be suppressed is consistent with the Fourteenth Amendment; and that, of course, presents a federal question as to which we, and not the state court, have the ultimate responsibility. And so, in the final analysis, I concur in the judgment because, upon an independent perusal of the material involved, and in light of the considerations dis*503cussed above, I cannot say that its suppression would so interfere with the communication of “ideas” in any proper sense of that term that it would offend the Due Process Clause. I therefore agree with the Court that appellant’s conviction must be affirmed.

III.

I dissent in No. 582, Roth v. United States.

We are faced here with the question whether the federal obscenity statute, as construed and applied in this case, violates the First Amendment to the Constitution. To me, this question is of quite a different order than one where we are dealing with state legislation under the Fourteenth Amendment. I do not think it follows that state and federal powers in this area are the same, and that just because the State may suppress a particular utterance, it is automatically permissible for the Federal Government to do the same. I agree with Mr. Justice Jackson that the historical evidence does not bear out the claim that the Fourteenth Amendment “incorporates” the First in any literal sense. See Beauharnais v. Illinois, supra. But laying aside any consequences which might flow from that conclusion, cf. Mr. Justice Holmes in Gitlow v. New York, 268 U. S. 652, 672,4 I prefer to rest my views about this case on broader and less abstract grounds.

The Constitution differentiates between those areas of human conduct subject to the regulation of the States and those subject to the powers of the Federal Government. The substantive powers of the two governments, in many *504instances, are distinct. And in every case where wé are called upon to balance the interest in free expression against other interests, it seems to me important that we should keep in the forefront the question of whether those other interests are state or federal. Since under our constitutional scheme the two are not necessarily equivalent, the balancing process must needs often produce different results. Whether a particular limitation on speech or press is to be upheld because it subserves a paramount governmental interest must, to a large extent, I think, depend on whether that government has, under the Constitution, a direct substantive interest, that is, the power to act, in the particular area involved.

The Federal Government has, for example, power to restrict seditious speech directed against it, because that Government certainly has the substantive authority to protect itself against revolution. Cf. Pennsylvania v. Nelson, 350 U. S. 497. But in dealing with obscenity we are faced with the converse situation, for the interests which obscenity statutes purportedly protect are primarily entrusted to the care, not of the Federal Government, but of the States. Congress has no substantive power over sexual morality. Such powers as the Federal Government, has in this field are but incidental to its other powers, here the postal power, and are not of the same nature as those possessed by the States, which bear direct responsibility for the protection of the local moral fabric.5 *505What Mr. Justice Jackson said in Beauharnais, supra, 343 U. S., at 294-295, about criminal libel is equally true of obscenity:

“The inappropriateness of a single standard for restricting State and Nation is indicated by the disparity between their functions and duties in relation to those freedoms. Criminality of defamation is predicated upon power either to protect the private right to enjoy integrity of reputation or the public right to tranquillity. Neither of these are objects of federal cognizance except when necessary to the accomplishment of some delegated power . . . . When the Federal Government puts liberty of press in one scale, it has a very limited duty to personal reputation or local tranquillity to weigh against it in the other. But state action affecting speech or press can and should be weighed against and reconciled with these conflicting social interests.”

Not only is the federal interest in protecting the Nation against pornography attenuated, but the dangers of federal censorship in this field are far greater than anything the States may do. It has often been said that one of the great strengths of our' federal system is that we have, in the forty-eight States, forty-eight experimental social laboratories. “State statutory law reflects predominantly this capacity of a legislature to introduce novel techniques of social control. The federal system has the immense advantage of providing forty-eight separate centers for such experimentation.” 6 Different States will have different attitudes toward the same work of literature. The same book which is freely read in one State might be *506classed as obscene in another.7 And it seems to me that no overwhelming danger to our freedom to experiment and to gratify our tastes in literature is likely to result from the suppression of a borderline book in one of the States, so long as there is no uniform nation-wide suppression of the book, and so long as other States are free to experiment with the same or bolder books.

Quite a different situation is presented, however, where the Federal Government imposes the ban. The danger is perhaps not great if the people of one State, through their legislature, decide that “Lady Chatterley’s Lover” goes so far beyond the acceptable standards of candor that it will be deemed offensive and non-sellable, for the State next door is still free to make its own choice. At least we do not have one uniform standard. But the dangers to free thought and expression are truly great if the Federal Government imposes a blanket ban over the Nation on such a book. The prerogative of the States to differ on their ideas of morality will be destroyed, the ability of States to experiment will be stunted. The fact that the people of one State cannot read some of the works of D. H. Lawrence seems to me, if not wise or desirable, at least acceptable. But that no person in the United States should be allowed to do so seems to me to be intolerable, and violative of both the letter and spirit of the First Amendment.

I judge this case, then, in view of what I think is the attenuated federal interest in this field, in view of the very real danger of a deadening uniformity which can result from nation-wide federal censorship, and in view of the *507fact that the constitutionality of this conviction must be weighed against the First and not the Fourteenth Amendment. So viewed, I do not think that this conviction can be upheld. The petitioner was convicted under a statute which, under the judge’s charge,8 makes it criminal to sell books which “tend to stir sexual impulses and lead to sexually impure thoughts.” I cannot agree that any book which tends to stir sexual impulses and lead to sexually impure thoughts necessarily is “utterly without redeeming social importance.” Not only did this charge fail to measure up to the standards which I understand the Court to approve, but as far as I can see, much of the great literature of the world could lead to conviction under such a view of the statute. Moreover, in no event do I think that the limited federal interest in this area can extend to mere “thoughts.” The Federal Government has no business, whether under the postal or commerce power, to bar the sale of books because they might lead to any kind of “thoughts.” 9

It is no answer to say, as the Court does, that obscenity is not protected speech. The point is that this statute, as here construed, defines obscenity so widely that it encompasses matters which might very well be protected speech. I do not think that the federal statute can be constitutionally construed to reach other than what the Government has termed as “hard-core” pornography. Nor do I think the statute can fairly be read as directed *508only at persons who are engaged in the business of catering to the prurient minded, even though their wares fall short of hard-core pornography. Such a statute would raise constitutional questions of a different order. That being so, and since in my opinion the material here involved cannot be said to be hard-core pornography, I would reverse this case with instructions to dismiss the indictment.

Mr. Justice Douglas,

dissenting.

When we sustain these convictions, we make the legality of a publication turn on the purity of thought which a book or tract instills in the mind of the reader. I do not think we can approve that standard and be faithful to the command of the 'First Amendment, which by its terms is a restraint on Congress and which by the Fourteenth is a restraint on the States.

In the Roth case the trial judge charged the jury that the statutory words “obscene, lewd and lascivious” describe “that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts.” He stated that the term “filthy” in the statute pertains “to that sort of treatment of sexual matters in such a vulgar and indecent way, so that it tends to arouse a feeling of disgust and revulsion.” He went on to say that the material “must be calculated to corrupt and debauch the minds and morals” of “the average person in the community,” not those of any particular class. “You judge the circulars, pictures and publications which have been put in evidence by present-day standards of the community. You may ask yourselves does it offend the common conscience of the community by present-day standards.”

The trial judge who, sitting without a jury, heard the Alberts case and the appellate court that sustained the *509judgment of conviction, took California’s definition of “obscenity” from People v. Wepplo, 78 Cal. App. 2d Supp. 959, 961, 178 P. 2d 853, 855. That case held that a book is obscene “if it has a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desire.”

By these standards punishment is inflicted for thoughts provoked, not for overt acts nor antisocial conduct. This test cannot be squared with our decisions under the First Amendment. Even the ill-starred Dennis case conceded that speech to be punishable must have some relation to action which could be penalized by government. Dennis v. United States, 341 U. S. 494, 502-511. Cf. Chafee, The Blessings of Liberty (1956), p. 69. This issue cannot be avoided by saying that obscenity is not protected by the First Amendment. The question remains, what is the constitutional test of obscenity?

The tests by which these convictions were obtained require only the arousing of sexual thoughts. Yet the arousing of sexual thoughts and desires happens every day in normal life in dozens of ways. Nearly 30 years ago a questionnaire sent to college and normal school women graduates asked what things were most stimulating sexually. Of 409 replies, 9 said “music”; 18 said “pictures”; 29 said “dancing”; 40 said “drama”; 95 said “books”; and 218 said “man.” Alpert, Judicial Censorship of Obscene Literature, 52 Harv. L. Rev. 40, 73.

The test of obscenity the Court endorses today gives the censor free range over a vast domain. To allow the State to step in and punish mere speech or publication that the judge or the jury thinks has an undesirable impact on thoughts but that is not shown to be a part of unlawful action is drastically to curtail the First Amendment. As recently stated by two of our outstanding authorities on obscenity, “The danger of influencing a change in the current moral standards of the community, or of shocking *510or offending readers, or of stimulating sex thoughts or desires apart from objective conduct, can never justify the losses to society that result from interference with literary freedom.” Lockhart & McClure, Literature, The Law of Obscenity, and the Constitution, 38 Minn. L. Rev. 295, 387.

If we were certain that impurity of sexual thoughts impelled to action, we would be on less dangerous ground in punishing the distributors of this sex literature. But it is by no means clear that obscene literature, as so defined, is a significant factor in influencing substantial deviations from the community standards.

“There are a number of reasons for real and substantial doubts as to the soundness of that hypothesis. (1) Scientific studies of juvenile delinquency demonstrate that those who get into trouble, and are the greatest concern of the advocates of censorship, are far less inclined to read than those who do not become delinquent. The delinquents are generally the adventurous type, who have little use for reading and other non-active entertainment. Thus, even assuming that reading sometimes has an adverse effect upon moral conduct, the effect is not likely to be substantial, for those who are susceptible seldom read. (2) Sheldon and Eleanor Glueck, who are among the country’s leading authorities on the treatment and causes of juvenile delinquency, have recently published the results of a ten year study of its causes. They exhaustively studied approximately 90 factors and influences that might lead to or explain juvenile delinquency, but the Gluecks gave no consideration to the type of reading material, if any, read by the delinquents. This is, of course, consistent with their finding that delinquents read very little. When those who know so much about the problem of delinquency among youth — the very *511group about whom the advocates of censorship are most concerned — conclude that what delinquents read has so little effect upon their conduct that it is not worth investigating in an exhaustive study of causes, there is good reason for serious doubt concerning the basic hypothesis on which obscenity censorship is defended. (3) The many other influences in society that stimulate sexual desire are so much more frequent in their influence, and so much more potent in their effect, that the influence of reading is likely, at most, to be relatively insignificant in the composite of forces that lead an individual into conduct deviating from the community sex standards. The Kinsey studies show the minor degree to which literature serves as a potent sexual stimulant. And the studies demonstrating that sex knowledge seldom results from reading indicates [sic] the relative unimportance of literature in sex thoughts as compared with other factors in society.” Lockhart & McClure, op. cit. supra, pp. 385-386.

The absence of dependable information on the effect of obscene literature on human conduct should make us wary. It should put us on the side of protecting society’s interest in literature, except and unless it can be said that the particular publication has an impact on action that the government can control.

As noted, the trial judge in the Roth case charged the jury in the alternative that the federal obscenity statute outlaws literature dealing with sex which offends “the common conscience of the community.” That standard is, in my view, more inimical still to freedom of expression.

The standard of what offends “the common conscience of the community” conflicts, in my judgment, with the command of the First Amendment that “Congress shall make no law . . . abridging the freedom of speech, or *512of the press.” Certainly that standard would not be an acceptable one if religion, economics, politics or philosophy were involved. How does it become a constitutional standard when literature treating with sex is concerned?

Any test that turns on what is offensive to the community’s standards is too loose, too capricious, too destructive of freedom of expression to be squared with the First Amendment. Under that test, juries can censor, suppress, and punish what they don’t like, provided the matter relates to “sexual impurity” or has a tendency “to excite lustful thoughts.” This is community censorship in one of its worst forms. It creates a regime where in the battle between the literati and the Philistines, the Philistines are certain to win. If experience in this field teaches anything, it is that “censorship of obscenity has almost always been both irrational and indiscriminate.” Lockhart & McClure, op. cit. supra, at 371. The test adopted here accentuates that trend.

I assume there is nothing in the Constitution which forbids Congress from using its power over the mails to proscribe conduct on the grounds of good morals. No one would suggest that the First Amendment permits nudity in public places, adultery, and other phases of sexual misconduct.

I can understand (and at times even sympathize) with programs of civic groups and church groups to protect and defend the existing moral standards of the community. I can understand the motives of the Anthony Comstocks who would impose Victorian standards on the community. When speech alone is involved, I do not think that government, consistently with the First Amendment, can become the sponsor of any of these movements. I do not think that government, consistently with the First Amendment, can throw its weight behind one school or another. Government should be *513concerned with antisocial conduct, not with utterances. Thus, if the First Amendment guarantee of freedom of speech and press is to mean anything in this field, it must allow protests even against the moral code that the standard of the day sets for the community. In other words, literature should not be suppressed merely because it offends the moral code of the censor.

The legality of a publication in this country should never be allowed to turn either on the purity of thought which it instills in the mind of the reader or on the degree to which it offends the community conscience. By either test the role of the censor is exalted, and society’s values in literary freedom are sacrificed.

The Court today suggests a third standard. It defines obscene material as that “which deals with sex in a manner appealing to prurient interest.”* Like the standards applied by the trial judges below, that standard does not require any nexus between the literature which is prohibited and action which the legislature can regulate or prohibit. Under the First Amendment, that standard is no more valid than those which the courts below adopted.

I do not think that the problem can be resolved by the Court’s statement that “obscenity is not expression pro*514tected by the First Amendment.” With the exception of Beauharnais v. Illinois, 343 U. S. 250, none of our cases has resolved problems of free speech and free press by placing any form of expression beyond the pale of the absolute prohibition of the First Amendment. Unlike the law of libel, wrongfully relied on in Beauharnais, there is no special historical evidence that literature dealing with sex was intended to be treated in a special manner by those who drafted the First Amendment. In fact, the first reported court decision in this country involving obscene literature was in 1821. Lockhart & McClure, op. cit. supra, at 324, n. 200. I reject too the implication that problems of freedom of speech and of the press are to be resolved by weighing against the values of free expression, the judgment of the Court that a particular form of that expression has “no redeeming social importance.” The First Amendment, its prohibition in terms absolute, was designed to preclude courts as well as legislatures from weighing the values of speech against silence. The First Amendment puts free speech in the preferred position.

Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it. Giboney v. Empire Storage Co., 336 U. S. 490, 498; Labor Board v. Virginia Power Co., 314 U. S. 469, 477-478. As a people, we cannot afford to relax that standard. For the test that suppresses a cheap tract today can suppress a literary gem tomorrow. All it need do is to incite a lascivious thought or arouse a lustful desire. The list of books that judges or juries can place in that category is endless.

I would give the broad sweep of the First Amendment full support. I have the same confidence in the ability of our people to reject noxious literature as I have in their capacity to sort out the true from the false in theology, economics, politics, or any other field.

Mr. Chief Justice Burger

delivered the opinion of the Court.

This is one of a group of “obscenity-pornography” cases being reviewed by the Court in a re-examination of standards enunciated in earlier cases involving what Mr. Justice Harlan called “the intractable obscenity problem.” Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 704 (1968) (concurring and dissenting).

Appellant conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called “adult” material. After a jury trial, he was convicted of violating California Penal Code § 311.2 (a), a misdemeanor, by knowingly distributing obscene matter,1 *17and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed the judgment without opinion. Appellant's conviction was spe*18cifically based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures; they complained to the police.

The brochures advertise four books entitled “Intercourse,” “Man-Woman,” “Sex Orgies Illustrated,” and “An Illustrated History of Pornography,” and a film entitled “Marital Intercourse.” While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed.

I

This case involves the application of a State’s criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients who had in no way indicated any desire to receive such materials. This Court has recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material2 *19when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles. Stanley v. Georgia, 394 U. S. 557, 567 (1969); Ginsberg v. New York, 390 U. S. 629, 637-643 (1968); Interstate Circuit, Inc. v. Dallas, supra, at 690; Redrup v. New York, 386 U. S. 767, 769 (1967); Jacobellis v. Ohio, 378 U. S. 184, 195 (1964). See Robe v. Washington, 405 U. S. 313, 317 (1972) (Burger, C. J., concurring); United States v. Reidel, 402 U. S. 351, 360-362 (1971) (opinion of Marshall, J.); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 502 (1952); Breard v. Alexandria, 341 U. S. 622, 644-645 (1951); Kovacs v. Cooper, 336 U. S. 77, 88-89 (1949); Prince v. Massachusetts, 321 U. S. 158, 169-170 (1944). Cf. Butler v. Michigan, 352 U. S. 380, 382-383 (1957); Public Utilities Comm’n v. Pollak, 343 U. S. 451, 464—465 (1952). It is in this context that we are called *20on to define the standards which must be used to identify obscene material that a State may regulate without infringing on the First Amendment as applicable to the States through the Fourteenth Amendment.

The dissent of Mr. Justice Brennan reviews the background of the obscenity problem, but since the Court now undertakes to formulate standards more concrete than those in the past, it is useful for us to focus on two of the landmark cases in the somewhat tortured history of the Court’s obscenity decisions. In Roth v. United States, 354 U. S. 476 (1957), the Court sustained a conviction under a federal statute punishing the mailing of “obscene, lewd, lascivious or filthy ...” materials. The key to that holding was the Court’s rejection of the claim that obscene materials were protected by the First Amendment. Five Justices joined in the opinion stating:

“All ideas having even the slightest redeeming social importance- — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the [First Amendment] guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. . . . This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572:

“ ‘. . . There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene .... It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social *21value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . [Emphasis by Court in Roth opinion.]

“We hold that obscenity is not within the area of constitutionally protected speech or press.” 354 U. S., at 484-485 (footnotes omitted).

Nine years later, in Memoirs v. Massachusetts, 383 U. S. 413 (1966), the Court veered sharply away from the Roth concept and, with only three Justices in the plurality opinion, articulated a new test of obscenity. The plurality held that under the Roth definition

“as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” Id., at 418.

The sharpness of the break with Roth, represented by the third element of the Memoirs test and emphasized by Mr. Justice White’s dissent, id., at 460-462, was further underscored when the Memoirs plurality went on to state:

“The Supreme Judicial Court erred in holding that a book need not be 'unqualifiedly worthless before it can be deemed obscene.’ A book cannot be proscribed unless it is found to be utterly without redeeming social value.” Id., at 419 (emphasis in original).

While Roth presumed “obscenity” to be “utterly without redeeming social importance,” Memoirs required *22that to prove obscenity it must be affirmatively established that the material is “utterly without redeeming social value.” Thus, even as they repeated the words of Both, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i. e., that the material was “utterly without redeeming social value” — a burden virtually impossible to discharge under our criminal standards of proof. Such considerations caused Mr. Justice Harlan to wonder if the “utterly without redeeming social value” test had any meaning at all. See Memoirs v. Massachusetts, id., at 459 (Harlan, J., dissenting). See also id., at 461 (White, J., dissenting); United States v. Groner, 479 F. 2d 577, 579-581 (CA5 1973).

Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States’ police power. See, e. g., Redrup v. New York, 386 U. S., at 770-771. We have seen “a variety of views among the members of the Court unmatched in any other course of constitutional adjudication.” Interstate Circuit, Inc. v. Dallas, 390 U. S., at 704-705 (Harlan, J., concurring and dissenting) (footnote omitted).3 This is not remarkable, for in the area *23of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression. This is an area in which there are few eternal verities.

The case we now review was tried on the theory that the California Penal Code § 311 approximately incorporates the three-stage Memoirs test, supra. But now the Memoirs test has been abandoned as unworkable by its author,4 and no Member of the Court today supports the Memoirs formulation.

II

This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. Kois v. Wisconsin, 408 U. S. 229 (1972); United States v. Reidel, 402 U. S., at 354; Roth v. United States, supra, at 485.5 “The First and Fourteenth Amendments have never been treated as absolutes [footnote omitted].” Breard v. Alexandria, 341 U. S., at 642, and cases cited. See Times Film Corp. v. Chicago, 365 U. S. 43, 47-50 (1961); Joseph Burstyn, Inc. v. Wilson, 343 U. S., at 502. We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be *24carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, at 682-685. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed.6 A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 230, quoting Roth v. United States, supra, at 489; (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, artistic, political, or scientific value. We do not adopt as a constitutional standard the “utterly without redeeming social value” test of Memoirs v. Massachusetts, *25383 U. S., at 419; that concept has never commanded the adherence of more than three Justices at one time.7 See supra, at 21. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. See Kois v. Wisconsin, supra, at 232; Memoirs v. Massachusetts, supra, at 459-460 (Harlan, J., dissenting); Jacobellis v. Ohio, 378 U. S., at 204 (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U. S. 254, 284-285 (1964); Roth v. United States, supra, at 497—198 (Harlan, J., concurring and dissenting).

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can *26be exhibited or sold without limit in such public places.8 At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. See Kois v. Wisconsin, supra, at 230-232; Roth v. United States, supra, at 487; Thornhill v. Alabama, 310 U. S. 88, 101-102 (1940). For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members.9

Mr. Justice Brennan, author of the opinions of the Court, or the plurality opinions, in Roth v. United States, supra; Jacobellis v. Ohio, supra; Ginzburg v. United *27States, 383 U. S. 463 (1966), Mishkin v. New York, 383 U. S. 502 (1966); and Memoirs v. Massachusetts, supra, has abandoned his former position and now maintains that no formulation of this Court, the Congress, or the States can adequately distinguish obscene material unprotected by the First Amendment from protected expression, Paris Adult Theatre I v. Slaton, post, p. 73 (Brennan, J., dissenting). Paradoxically, Mr. Justice Brennan indicates that suppression of unprotected obscene material is permissible to avoid exposure to un-consenting adults, as in this case, and to juveniles, although he gives no indication of how the division between protected and nonprotected materials may be drawn with greater precision for these purposes than for regulation of commercial exposure to consenting adults only. Nor does he indicate where in the Constitution he finds the authority to distinguish between a willing “adult” one month past the state law age of majority and a willing “juvenile” one month younger.

Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive “hard core” sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution. See Roth v. United States, supra, at 491-492. Cf. Ginsberg v. New York, 390 U. S., at 643.10 If *28the inability to define regulated materials with ultimate, god-like precision altogether removes the power of the States or the Congress to regulate, then “hard core” pornography may be exposed without limit to the juvenile, the passerby, and the consenting adult alike, as, indeed, Mr. Justice Douglas contends. As to Mr. Justice Douglas’ position, see United States v. Thirty-seven Photographs, 402 U. S. 363, 379-380 (1971) (Black, J., joined by Douglas, J., dissenting); Ginzburg v. United States, supra, at 476, 491-492 (Black, J., and Douglas, J., dissenting); Jacobellis v. Ohio, supra, at 196 (Black, J., joined by Douglas, J., concurring); Roth, supra, at 508-514 (Douglas, J., dissenting). In this belief, however, Mr. Justice Douglas now stands alone.

Mr. Justice Brennan also emphasizes “institutional stress” in justification of his change of view. Noting that “[t]he number of obscenity cases on our docket gives ample testimony to the burden that has been placed upon this Court,” he quite rightly remarks that the examination of contested materials “is hardly a source of edification to the members of this Court.” Paris Adult *29Theatre I v. Slaton, post, at 92, 93. He also notes, and we agree, that “uncertainty of the standards creates a continuing source of tension between state and federal courts . . . “The problem is . . . that one cannot say with certainty that material is obscene until at least five members of this Court, applying inevitably obscure standards, have pronounced it so.” Id., at 93, 92.

It is certainly true that the absence, since Roth, of a single majority view of this Court as to proper standards for testing obscenity has placed a strain on both state and federal courts. But today, fojr the first time since Roth was decided in 1957j a majority of this Court has agreed on concrete guidelines to isolate “hard core” pornography from expression protected fey the First Amendment. Now we may abandon the casual practice of Redrup v. New York, 386 U. S. 767 (1967), and attempt to provide positive guidance to federal' and state courts alike.

This may not be an easy road, free from difficulty. But no amount of “fatigue” should lead us to adopt a convenient “institutional” rationale — an absolutist, “anything goes” view of the First Amendment — because it will lighten our burdens.11 “Such an abnegation of judicial supervision in this field would be inconsistent with our duty to uphold the constitutional guarantees.” Jacobellis v. Ohio, supra, at 187-188 (opinion of Brennan, J.). Nor should we remedy “tension between state and federal courts” by arbitrarily depriving the States of a power reserved to them under the Constitution, a power which they have enjoyed and exercised continuously from before the adoption of the First Amendment to this day. See Roth v. United States, supra, at 482-485. “Our duty admits of no 'substitute for facing up *30to the tough individual problems of constitutional judgment involved in every obscenity case.’ [Roth v. United States, supra, at 498]; see Manual Enterprises, Inc. v. Day, 370 U. S. 478, 488 (opinion of Harlan, J.) [footnote omitted].” Jacobellis v. Ohio, supra, at 188 (opinion of Brennan, J.).

III.

Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the “prurient interest” or is “patently offensive.” These 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. When triers of fact are asked to decide whether “the average person, applying contemporary community standards” would consider certain materials “prurient,” it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national “community standard” would be an exercise in futility.

As noted before, this case was tried on the theory that the California obscenity statute sought to incorporate the tripartite test of Memoirs. This, a “national” standard of First Amendment protection enumerated by a plurality of this Court, was correctly regarded at the time of trial as limiting state prosecution under the controlling case *31law. The jury, however, was explicitly instructed that, in determining whether the "dominant theme of the material as a whole . . . appeals to the prurient interest” and in determining whether the material “goes substantially beyond customary limits of candor and affronts contemporary community standards of decency,” it was to apply “contemporary community standards of the State of California.”

During the trial, both the prosecution and the defense assumed that the relevant “community standards” in making the factual determination of obscenity were those of the State of California, not some hypothetical standard of the entire United States of America. Defense counsel at trial never objected to the testimony of the State's expert on community standards12 or to the instructions of the trial judge on “statewide” standards. On appeal to the Appellate Department, Superior Court of California, County of Orange, appellant for the first time contended that application of state, rather than national, standards violated the First and Fourteenth Amendments.

We conclude that neither the State’s alleged failure to offer evidence of “national standards,” nor the trial court’s charge that the jury consider state community standards, were constitutional errors. Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable “national standards” when attempting to determine whether certain materials are obscene as a mat*32ter of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v. Ohio, supra, at 200:

“It is my belief that when the Court said in Both that obscenity is to be defined by reference to 'community standards/ it meant community standards — not a national standard, as is sometimes argued. I believe that there is no provable 'national standard’ .... At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one.”

It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.13 *33See Hoyt v. Minnesota, 399 U. S. 524-525 (1970) (Black-MUN, J., dissenting); Walker v. Ohio, 398 U. S. 434 (1970) (Burgee, C. J., dissenting); id., at 434-435 (Harlan, J., dissenting); Cain v. Kentucky, 397 U. S. 319 (1970) (Burger, C. J., dissenting); id., at 319-320 (Harlan, J., dissenting); United States v. Groner, 479 F. 2d, at 581-583; O’Meara & Shaffer, Obscenity in The Supreme Court: A Note on Jacobellis v. Ohio, 40 Notre Dame Law. 1, 6-7 (1964). See also Memoirs v. Massachusetts, 383 U. S., at 458 (Harlan, J., dissenting); Jacobellis v. Ohio, supra, at 203-204 (Harlan, J., dissenting); Roth v. United States, supra, at 505-506 (Harlan, J., concurring and dissenting). People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity. As the Court made clear in Mishkin v. New York, 383 U. S., at 508-509, the primary concern with requiring a jury to apply the standard of “the average person, applying contemporary community standards” is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person — or indeed a totally insensitive one. See Roth v. United States, supra, at 489. Cf. the now discredited test in Regina v. Hicklin, [1868] L. R. 3 Q. B. 360. We hold that the requirement that the jury evaluate the materials with reference to “contemporary *34standards of the State of California” serves this protective purpose and is constitutionally adequate.14

IV

The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a “misuse of the great guarantees of free speech and free press . . . Breard v. Alexandria, 341 U. S., at 645. The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent. “The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of *35political and social changes desired by the people/' Roth v. United States, supra, at 484 (emphasis added). See Kois v. Wisconsin, 408 U. S., at 230-232; Thornhill v. Alabama, 310 U. S., at 101-102. But the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter.15

There is no evidence, empirical or historical, that the stern 19th century American censorship of public distribution and display of material relating to sex, see Roth v. United States, supra, at 482-485, in any way limited or affected expression of serious literary, artistic, political, or scientific ideas. On the contrary, it is beyond any question that the era following Thomas Jefferson to Theodore Roosevelt was an “extraordinarily vigorous period,” not just in economics and politics, but in belles lettres and in “the outlying fields of social and political philosophies.” 16 We do not see the harsh hand *36of censorship of ideas — good or bad, sound or unsound— and “repression” of political liberty lurking in every state regulation of commercial exploitation of human interest in sex.

Mr. Justice Brennan finds “it is hard to see how state-ordered regimentation of our minds can ever be forestalled.” Paris Adult Theatre I v. Slaton, post, at 110 (Brennan, J., dissenting). These doleful anticipations assume that courts cannot distinguish commerce in ideas, protected by the First Amendment, from commercial exploitation of obscene material. Moreover, state regulation of hard-core pornography so as to make it unavailable to nonadults, a regulation which Mr. Justice Brennan finds constitutionally permissible, has all the elements of “censorship” for adults; indeed even more rigid enforcement techniques may be called for with such dichotomy of regulation. See Interstate Circuit, Inc. v. Dallas, 390 U. S., at 690.17 One can concede that the “sexual revolution” of recent years may have had useful byproducts in striking layers of prudery from a subject long irrationally kept from needed ventilation. But it does not follow that no regulation of patently offensive “hard core” materials is needed or permissible; civilized people do not allow unregulated access to heroin because it is a derivative of medicinal morphine.

In sum, we (a) reaffirm the Both holding that obscene material is not protected by the First Amendment; (b) hold that such material can be regulated by the States, subject to the specific safeguards enunciated *37above, without a showing that the material is “utterly without redeeming social value”; and (c) hold that obscenity is to be determined by applying “contemporary community standards,” see Kois v. Wisconsin, supra, at 230, and Roth v. United States, supra, at 489, not “national standards.” The judgment of the Appellate Department of the Superior Court, Orange County, California, is vacated and the case remanded to that court for further proceedings not inconsistent with the First Amendment standards established by this opinion. See United States v. 12 200-ft. Reels of Film, post, at 130 n. 7.

Vacated and remanded.

Mr. Justice Douglas,

dissenting.

I

Today we leave open the way for California1 to send a man to prison for distributing brochures that advertise books and a movie under freshly written standards defining obscenity which until today’s decision were never the part of any law.

The Court has worked hard to define obscenity and con-cededly has failed. In Roth v. United States, 354 U. S. 476, it ruled that “[o]bscene material is material which deals with sex in a manner appealing to prurient interest.” Id., at 487. Obscenity, it was said, was rejected by the First Amendment because it is “utterly without redeem*38ing social importance.” Id., at 484. The presence of a “prurient interest” was to be determined by “contemporary community standards.” Id., at 489. That test, it has been said, could not be determined by one standard here and another standard there, Jacobellis v. Ohio, 378 U. S. 184, 194, but “on the basis of a national standard.” Id., at 195. My Brother Stewart in Jacobellis commented that the difficulty of the Court in giving content to obscenity was that it was “faced with the task of trying to define what may be indefinable.” Id., at 197.

In Memoirs v. Massachusetts, 383 U. S. 413, 418, the Both test was elaborated to read as follows: “[T]hree elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.”

In Ginzburg v. United States, 383 U. S. 463, a publisher was sent to prison, not for the kind of books and periodicals he sold, but for the manner in which the publications were advertised. The “leer of the sensualist” was said to permeate the advertisements. Id., at 468. The Court said, “Where the purveyor’s sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity.” Id., at 470. As Mr. Justice Black said in dissent, “. . . Ginzburg ... is now finally and authoritatively condemned to serve five years in prison for distributing printed matter about sex which neither Ginzburg nor anyone else could possibly have known to be criminal.” Id., at 476. That observation by Mr. Justice Black is underlined by the fact that the Ginzburg decision was five to four.

*39A further refinement was added by Ginsberg v. New York, 390 U. S. 629, 641, where the Court held that “it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors.”

But even those members of this Court who had created the new and changing standards of “obscenity” could not agree on their application. And so we adopted a per curiam treatment of so-called obscene publications that seemed to pass constitutional muster under the several constitutional tests which had been formulated. See Redrup v. New York, 386 U. S. 767. Some condemn it if its “dominant tendency might be to ‘deprave or corrupt’ a reader.” 2 Others look not to the content of the book but to whether it is advertised “ ‘to appeal to the erotic interests of customers.’ ”3 Some condemn only “hardcore pornography”; but even then a true definition is lacking. It has indeed been said of that definition, “I could never succeed in [defining it] intelligibly,” but “I know it when I see it.” 4

Today we would add a new three-pronged test: “(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 (e) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

Those are the standards we ourselves have written into the Constitution.5 Yet how under these vague tests can *40we sustain convictions for the sale of an article prior to the time when some court has declared it to be obscene?

Today the Court retreats from the earlier formulations of the constitutional test and undertakes to make new definitions. This effort, like the earlier ones, is earnest and well intentioned. The difficulty is that we do not deal with constitutional terms, since “obscenity” is not mentioned in the Constitution or Bill of Rights. And the First Amendment makes no such exception from “the press” which it undertakes to protect nor, as I have said on other occasions, is an exception necessarily implied, for there was no recognized exception to the free press at the time the Bill of Rights was adopted which treated “obscene” publications differently from other types of papers, magazines, and books. So there are no constitutional guidelines for deciding what is and what is not “obscene.” The Court is at large because we deal with tastes and standards of literature. What shocks me may *41be sustenance for my neighbor. What causes one person to boil up in rage over one pamphlet or movie may reflect only his neurosis, not shared by others. We deal here with a regime of censorship which, if adopted, should be done by constitutional amendment after full debate by the people.

Obscenity cases usually generate tremendous emotional outbursts. They have no business being in the courts. If a constitutional amendment authorized censorship, the censor would probably be an administrative agency. Then criminal prosecutions could follow as, if, and when publishers defied the censor and sold their literature. Under that regime a publisher would know when he was on dangerous ground. Under the present regime— whether the old standards or the new ones are used — the criminal law becomes a trap. A brand new test would put a publisher behind bars under a new law improvised by the courts after the publication. That was done in Ginzburg and has all the evils of an ex post jacto law.

My contention is that until a civil proceeding has placed a tract beyond the pale, no criminal prosecution should be sustained. For no more vivid illustration of vague and uncertain laws could be designed than those we have fashioned. As Mr. Justice Harlan has said:

“The upshot of all this divergence in viewpoint is that anyone who undertakes to examine the Court's decisions since Roth which have held particular material obscene or not obscene would find himself in utter bewilderment.” Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 707.

In Bouie v. City of Columbia, 378 U. S. 347, we upset a conviction for remaining on property after being asked to leave, while the only unlawful act charged by the statute was entering. We held that the defendants had received no “fair warning, at the time of their con*42duct” while on the property “that the act for which they now stand convicted was rendered criminal” by the state statute. Id., at 355. The same requirement of “fair warning” is due here, as much as in Bouie. The latter involved racial discrimination; the present case involves rights earnestly urged as being protected by the First Amendment. In any case — certainly when constitutional rights are concerned — we should not allow men to go to prison or be fined when they had no “fair warning” that what they did was criminal conduct.

II

If a specific book, play, paper, or motion picture has in a civil proceeding been condemned as obscene and review of that finding has been completed, and thereafter a person publishes, shows, or displays that particular book or film, then a vague law has been made specific. There would remain the underlying question whether the First Amendment allows an implied exception in the case of obscenity. I do not think it does 6 and my views *43on the issue have been stated over and over again.7 But at least a criminal prosecution brought at that juncture would not violate the time-honored void-for-vagueness test.8

No such protective procedure has been designed by-California in this case. Obscenity — which even we cannot define with precision — is a hodge-podge. To send *44men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process.

Ill

While the right to know is the corollary of the right to speak or publish, no one can be forced by government to listen to disclosure that he finds offensive. That was the basis of my dissent in Public Utilities Comm’n v. Pollak, 343 U. S. 451, 467, where I protested against making streetcar passengers a "captive” audience. There is no “captive audience” problem in these obscenity cases. No one is being compelled to look or to listen. Those who enter newsstands or bookstalls may be offended by what they see. But they are not compelled by the State to frequent those places; and it is only state or governmental action against which the First Amendment, applicable to the States by virtue of the Fourteenth, raises a ban.

The idea that the First Amendment permits government to ban publications that are “offensive” to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place. The First Amendment was designed "to invite dispute,” to induce “a condition of unrest,” to “create dissatisfaction with conditions as they are,” and even to stir “people to anger.” Terminiello v. Chicago, 337 U. S. 1, 4. The idea that the First Amendment permits punishment for ideas that are “offensive” to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First- Amendment was not fashioned as a vehicle for *45dispensing tranquilizers to the people. Its prime function was to keep debate open to “offensive” as well as to “staid” people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard “offensive” gives authority to government that cuts the very vitals out of the First Amendment.9 As is intimated by the Court’s opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV, or over the radio. By reason of the First Amendment — and solely because of it — • speakers and publishers have not been threatened or subdued because their thoughts and ideas may be “offensive” to some.

The standard “offensive” is unconstitutional in yet another way. In Coates v. City of Cincinnati, 402 U. S. 611, we had before us a municipal ordinance that made it a crime for three or more persons to assemble on a street and conduct themselves “in a manner annoying to persons *46passing by.” We struck it down, saying: “If three or more people meet together on a sidewalk or street corner, they must conduct themselves so as not to annoy any police officer or other person who should happen to pass by. In our opinion this ordinance is unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct.

“Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensive normative standard, but rather in the sense that no standard of conduct is specified at all.” Id., at 614.

How we can deny Ohio the convenience of punishing people who “annoy” others and allow California power to punish people who publish materials “offensive” to some people is difficult to square with constitutional requirements.

If there are to be restraints on what is obscene, then a constitutional amendment should be the way of achieving the end. There are societies where religion and mathematics are the only free segments. It would be a dark day for America if that were our destiny. But the people can make it such if they choose to write obscenity into the Constitution and define it.

We deal with highly emotional, not rational, questions. To many the Song of Solomon is obscene. I do not think we, the judges, were ever given the constitutional power to make definitions of obscenity. If it is to be defined, let the people debate and decide by a constitutional amendment what they want to ban as obscene and what standards they want the legislatures and the courts to apply. Perhaps the people will decide that the path towards a mature, integrated society requires *47that all ideas competing for acceptance must have no censor. Perhaps they- will decide otherwise. Whatever the choice, the courts will have some guidelines. Now we have none except our own predilections.

Me. Justice Brennan,

with whom Mr. Justice Stewart and Mr. Justice Marshall join, dissenting.

In my dissent in Paris Adult Theatre I v. Slaton, post, p. 73, decided this date, I noted that I had no occasion to consider the extent of state power to regulate the distribution of sexually oriented material to juveniles or .the offensive exposure of such material to unconsenting adults. In the case before us, appellant was convicted of distributing obscene matter in violation of California Penal Code § 311.2, on the basis of evidence that he had caused to be mailed unsolicited brochures advertising various books and a movie. I need not now decide whether a statute might be drawn to impose, within the requirements of the First Amendment, criminal penalties for the precise conduct at issue here. For it is clear that under my dissent in Paris Adult Theatre I, the statute under which the prosecution was brought is unconstitutionally overbroad, and therefore invalid on its face.* “[T]he transcendent value to all society of constitutionally protected expression is deemed to justify allowing ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’ ” Gooding v. Wilson, 405 U. S. 518, 521 (1972), quoting *48from Dombrowski v. Pfister, 380 U. S. 479, 486 (1965). See also Baggett v. Bullitt, 377 U. S. 360, 366 (1964); Coates v. City of Cincinnati, 402 U. S. 611, 616 (1971); id., at 619-620 (White, J., dissenting); United States v. Raines, 362 U. S. 17, 21-22 (1960); NAACP v. Button, 371 U. S. 415, 433 (1963). Since my view in Paris Adult Theatre I represents a substantial departure from the course of our prior decisions, and since the state courts have as yet had no opportunity to consider whether a “readily apparent construction suggests itself as a vehicle for rehabilitating the [statute] in a single prosecution,” Dombrowski v. Pfister, supra, at 491, I would reverse the judgment of the Appellate Department of the Superior Court and remand the case for proceedings not inconsistent with this opinion. See Coates v. City of Cincinnati, supra, at 616.

*749Justice White

delivered the opinion of the Court.

At issue in this case is the constitutionality of a New York criminal statute which prohibits persons from knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances.

I

In recent years, the exploitive use of children in the production of pornography has become a serious national problem.1 The Federal Government and 47 States have sought to combat the problem with statutes specifically directed at the production of child pornography. At least half of such statutes do not require that the materials produced be legally obscene. Thirty-five States and the United States Congress have also passed legislation prohibiting the distribution of such materials; 20 States prohibit the distribution of material depicting children engaged in sexual conduct without requiring that the material be legally obscene.2

*750New York is one of the 20. In 1977, the New York Legislature enacted Article 263 of its Penal Law. N. Y. Penal Law, Art. 263 (McKinney 1980). Section 263.05 criminalizes as a class C felony the use of a child in a sexual performance:

“A person is guilty of the use of a child in a sexual performance if knowing the character and content thereof he employs, authorizes or induces a child less than sixteen years of age to engage in a sexual performance or being a parent, legal guardian or custodian of such child, *751he consents to the participation by such child in a sexual performance.”

A “[s]exual performance” is defined as “any performance or part thereof which includes sexual conduct by a child less than sixteen years of age.” § 263.00(1). “Sexual conduct” is in turn defined in §263.00(3):

“ ‘Sexual conduct’ means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.”

A performance is defined as “any play, motion picture, photograph or dance” or “any other visual representation exhibited before an audience.” §263.00(4).

At issue in this case is §263.15, defining a class D felony:3

“A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than sixteen years of age.”

To “promote” is also defined:

“‘Promote’ means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same.” §263.00(5).

A companion provision bans only the knowing dissemination of obscene material. §263.10.

This case arose when Paul Ferber, the proprietor of a Man*752hattan bookstore specializing in sexually oriented products, sold two films to an undercover police officer. The films are devoted almost exclusively to depicting young boys masturbating. Ferber was indicted on two counts of violating §263.10 and two counts of violating §263.15, the two New York laws controlling dissemination of child pornography.4 After a jury trial, Ferber was acquitted of the two counts of promoting an obscene sexual performance, but found guilty of the two counts under §263.15, which did not require proof that the films were obscene. Ferber’s convictions were affirmed without opinion by the Appellate Division of the New York State Supreme Court. 74 App. Div. 2d 558, 424 N. Y. S. 2d 967 (1980).

The New York Court of Appeals reversed, holding that §263.15 violated the First Amendment. 52 N. Y. 2d 674, 422 N. E. 2d 523 (1981). The court began by noting that in light of § 263.10’s explicit inclusion of an obscenity standard, §263.15 could not be construed to include such a standard. Therefore, “the statute would . . . prohibit the promotion of materials which are traditionally entitled to constitutional protection from government interference under the First Amendment.” 52 N. Y. 2d, at 678, 422 N. E. 2d, at 525. Although the court recognized the State’s “legitimate interest in protecting the welfare of minors” and noted that this “interest may transcend First Amendment concerns,” id., at 679, 422 N. E. 2d, at 525-526, it nevertheless found two fatal defects in the New York statute. Section 263.15 was under-inclusive because it discriminated against visual portrayals of children engaged in sexual activity by not also prohibiting the distribution of films of other dangerous activity. It was also overbroad because it prohibited the distribution of materials produced outside the State, as well as materials, such as medical books and educational sources, which *753“deal with adolescent sex in a realistic but nonobscene manner.” 52 N. Y. 2d, at 681, 422 N. E. 2d, at 526. Two judges dissented. We granted the State’s petition for certiorari, 454 U. S. 1052 (1981), presenting the single question:

“To prevent the abuse of children who are made to engage in sexual conduct for commercial purposes, could the New York State Legislature, consistent with the First Amendment, prohibit the dissemination of material which shows children engaged in sexual conduct, regardless of whether such material is obscene?”

II

The Court of Appeals proceeded on the assumption that the standard of obscenity incorporated in §263.10, which follows the guidelines enunciated in Miller v. California, 413 U. S. 15 (1973),5 constitutes the appropriate line dividing protected from unprotected expression by which to measure a regulation directed at child pornography. It was on the premise that “nonobscene adolescent sex” could not be singled out for special treatment that the court found §263.15 “strikingly underinclusive.” Moreover, the assumption that the constitutionally permissible regulation of pornography could not be more extensive with respect to the distribution of material depicting children may also have led the court to conclude that a narrowing construction of §263.15 was unavailable.

The Court of Appeals’ assumption was not unreasonable in light of our decisions. This case, however, constitutes our first examination of a statute directed at and limited to depictions of sexual activity involving children. We believe our inquiry should begin with the question of whether a State has somewhat more freedom in proscribing works which portray sexual acts or lewd exhibitions of genitalia by children.

*754A

In Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), the Court laid the foundation for the excision of obscenity from the realm of constitutionally protected expression:

“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene .... It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Id., at 571-572 (footnotes omitted).

Embracing this judgment, the Court squarely held in Roth v. United States, 354 U. S. 476 (1957), that “obscenity is not within the area of constitutionally protected speech or press.” Id., at 485. The Court recognized that “rejection of obscenity as utterly without redeeming social importance” was implicit in the history of the First Amendment: The original States provided for the prosecution of libel, blasphemy, and profanity, and the “universal judgment that obscenity should be restrained [is] reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 states, and in the 20 obscenity laws enacted by Congress from 1842 to 1956.” Id., at 484-485 (footnotes omitted).

Roth was followed by 15 years during which this Court struggled with “the intractable obscenity problem.” Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 704 (1968) (opinion of Harlan, J.). See, e. g., Redrup v. New York, 386 U. S. 767 (1967). Despite considerable vacillation over the proper definition of obscenity, a majority of the Members of the Court remained firm in the position that “the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibil*755ities of unwilling recipients or of exposure to juveniles.” Miller v. California, supra, at 18-19 (footnote omitted); Stanley v. Georgia, 394 U. S. 557, 567 (1969); Ginsberg v. New York, 390 U. S. 629, 637-643 (1968); Interstate Circuit, Inc. v. Dallas, supra, at 690; Redrup v. New York, supra, at 769; Jacobellis v. Ohio, 378 U. S. 184, 195 (1964).

Throughout this period, we recognized “the inherent dangers of undertaking to regulate any form of expression.” Miller v. California, supra, at 23. Consequently, our difficulty was not only to assure that statutes designed to regulate obscene materials sufficiently defined what was prohibited, but also to devise substantive limits on what fell within the permissible scope of regulation. In Miller v. California, supra, a majority of the Court agreed that a “state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” Id., at 24. Over the past decade, we have adhered to the guidelines expressed in Miller,6 which subsequently has been followed in the regulatory schemes of most States.7

*756B

The Miller standard, like its predecessors, was an accommodation between the State’s interests in protecting the “sensibilities of unwilling recipients” from exposure to pornographic material and the dangers of censorship inherent in unabashedly content-based laws. Like obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy. For the following reasons, however, we are persuaded that the States are entitled to greater leeway in the regulation of pornographic depictions of children.

First. It is evident beyond the need for elaboration that a State’s interest in “safeguarding the physical and psychologi*757cal well-being of a minor” is “compelling.” Globe Newspaper Co. v. Superior Court, 457 U. S. 596, 607 (1982). “A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens.” Prince v. Massachusetts, 321 U. S. 158, 168 (1944). Accordingly, we have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights. In Prince v. Massachusetts, supra, the Court held that a statute prohibiting use of a child to distribute literature on the street was valid notwithstanding the statute’s effect on a First Amendment activity. In Ginsberg v. New York, supra, we sustained a New York law protecting children from exposure to nonobscene literature. Most recently, we held that the Government’s interest in the “well-being of its youth” justified special treatment of indecent broadcasting received by adults as well as children. FCC v. Pacifica Foundation, 438 U. S. 726 (1978).

The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance. The legislative findings accompanying passage of the New York laws reflect this concern:

“[T]here has been a proliferation of exploitation of children as subjects in sexual performances. The care of children is a sacred trust and should not be abused by those who seek to profit through a commercial network based upon the exploitation of children. The public policy of the state demands the protection of children from exploitation through sexual performances.” 1977 N. Y. Laws, ch. 910, § l.8

*758We shall not second-guess this legislative judgment. Respondent has not intimated that we do so. Suffice it to say that virtually all of the States and the United States have passed legislation proscribing the production of or otherwise combating “child pornography.” The legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child.9 That judgment, we think, easily passes muster under the First Amendment.

*759Second. The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation.10 Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. Indeed, there is no serious contention that the legislature was unjustified in believing that it is difficult, if *760not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies. While the production of pornographic materials is a low-profile, clandestine industry, the need to market the resulting products requires a visible apparatus of distribution. The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product. Thirty-five States and Congress have concluded that restraints on the distribution of pornographic materials are required in order to effectively combat the problem, and there is a body of literature and testimony to support these legislative conclusions.11 Cf. United States v. Darby, 312 U. S. 100 (1941) (upholding federal restrictions on sale of goods manufactured in violation of Fair Labor Standards Act).

Respondent does not contend that the State is unjustified in pursuing those who distribute child pornography. Rather, he argues that it is enough for the State to prohibit the distribution of materials that are legally obscene under the Miller test. While some States may find that this approach properly accommodates its interests, it does not fol*761low that the First Amendment prohibits a State from going further. The Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State’s particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. Thus, the question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be “patently offensive” in order to have required the sexual exploitation of a child for its production. In addition, a work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography. “It is irrelevant to the child [who has been abused] whether or not the material. . . has a literary, artistic, political or social value.” Memorandum of Assemblyman Lasher in Support of §263.15. We therefore cannot conclude that the Miller standard is a satisfactory solution to the child pornography problem.12

Third. The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials, an activity illegal throughout the Nation.13 “It rarely has been suggested that *762the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.” Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498 (1949).14 We note that were the statutes outlawing the employment of children in these films and photographs fully effective, and the constitutionality of these laws has not been questioned, the First Amendment implications would be no greater than that presented by laws against distribution: enforceable production laws would leave no child pornography to be marketed.15

Fourth. The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis. We consider it unlikely that visual depictions of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary per*763formance or scientific or educational work. As a state judge in this case observed, if it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized.16 Simulation outside of the prohibition of the statute could provide another alternative. Nor is there any question here of censoring a particular literary theme or portrayal of sexual activity. The First Amendment interest is limited to that of rendering the portrayal somewhat more “realistic” by utilizing or photographing children.

Fifth. Recognizing and classifying child pornography as a category of material outside the protection of the First Amendment is not incompatible with our earlier decisions. “The question whether speech is, or is not, protected by the First Amendment often depends on the content of the speech.” Young v. American Mini Theatres, Inc., 427 U. S. 50, 66 (1976) (opinion of Stevens, J., joined by Burger, C. J., and White and Rehnquist, JJ.). See also FCC v. Pacifica Foundation, 438 U. S. 726, 742-748 (1978) (opinion of Stevens, J., joined by Burger, C. J., and Rehnquist, J.). “[I]t is the content of [an] utterance that determines whether it is a protected epithet or an unprotected ‘fighting comment.’” Young v. American Mini Theatres, Inc., supra, at 66. See Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). Leaving aside the special considerations when public officials are the target, New York Times Co. v. Sullivan, 376 U. S. 254 (1964), a libelous publication is not protected by the Constitution. Beauhamais v. Illinois, 343 U. S. 250 (1952). Thus, it is not rare that a content-based classification of speech has been accepted because it may be appropriately generalized that within the confines of the given classification, the evil to be restricted so overwhelmingly outweighs *764the expressive interests, if any, at stake, that no process of case-by-case adjudication is required. When a definable class of material, such as that covered by § 26B. 15, bears so heavily and pervasively on the welfare of children engaged in its production, we think the balance of competing interests is clearly struck and that it is permissible to consider these materials as without the protection of the First Amendment.

C

There are, of course, limits on the category of child pornography which, like obscenity, is unprotected by the First Amendment. As with all legislation in this sensitive area, the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed. Here the nature of the harm to be combated requires that the state offense be limited to works that visually depict sexual conduct by children below a specified age.17 The category of “sexual conduct” proscribed must also be suitably limited and described.

The test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for the purpose of clarity. The Miller formulation is adjusted in the following respects: A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole. We note that the distri*765bution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection. As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant. Smith v. California, 361 U. S. 147 (1959); Hamling v. United States, 418 U. S. 87 (1974).

D

Section 263.15’s prohibition incorporates a definition of sexual conduct that comports with the above-stated principles. The forbidden acts to be depicted are listed with sufficient precision and represent the kind of conduct that, if it were the theme of a work, could render it legally obscene: “actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.” § 263.00(3). The term “lewd exhibition of the genitals” is not unknown in this area and, indeed, was given in Miller as an example of a permissible regulation. 413 U. S., at 25. A performance is defined only to include live or visual depictions: “any play, motion picture, photograph or dance . . . [or] other visual representation exhibited before an audience.” §263.00(4). Section 263.15 expressly includes a scienter requirement.

We hold that §263.15 sufficiently describes a category of material the production and distribution of which is not entitled to First Amendment protection. It is therefore clear that there is nothing unconstitutionally “underinclusive” about a statute that singles out this category of material for proscription.18 It also follows that the State is not barred by *766the First Amendment from prohibiting the distribution of unprotected materials produced outside the State.19

Ill

It remains to address the claim that the New York statute is unconstitutionally overbroad because it would forbid the distribution of material with serious literary, scientific, or educational value or material which does not threaten the harms sought to be combated by the State. Respondent prevailed on that ground below, and it is to that issue that we now turn.

The New York Court of Appeals recognized that over-breadth scrutiny has been limited with respect to conduct-related regulation, Broadrick v. Oklahoma, 413 U. S. 601 (1973), but it did not apply the test enunciated in Broadrick because the challenged statute, in its view, was directed at “pure speech.” The court went on to find that §263.15 was fatally overbroad: “[T]he statute would prohibit the showing of any play or movie in which a child portrays a defined sexual act, real or simulated, in a nonobscene manner. It would also prohibit the sale, showing, or distributing of medical or educational materials containing photographs of such acts. *767Indeed, by its terms, the statute would prohibit those who oppose such portrayals from providing illustrations of what they oppose.” 52 N. Y. 2d, at 678, 422 N. E. 2d, at 525.

While the construction that a state court gives a state statute is not a matter subject to our review, Wainwright v. Stone, 414 U. S. 21, 22-28 (1973); Gooding v. Wilson, 405 U. S. 518, 520 (1972), this Court is the final arbiter of whether the Federal Constitution necessitated-the invalidation of a state law. It is only through this process of review that we may correct erroneous applications of the Constitution that err on the side of an overly broad reading of our doctrines and precedents, as well as state-court decisions giving the Constitution too little shrift. A state court is not free to avoid a proper facial attack on federal constitutional grounds. Bigelow v. Virginia, 421 U. S. 809, 817 (1975). By the same token, it should not be compelled to entertain an overbreadth attack when not required to do so by the Constitution.

A

The traditional rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court. Broadrick v. Oklahoma, supra, at 610; United States v. Raines, 362 U. S. 17, 21 (1960); Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 513 (1937); Yazoo & M. V. R. Co. v. Jackson Vinegar Co., 226 U. S. 217, 219-220 (1912). In Broadrick, we recognized that this rule reflects two cardinal principles of our constitutional order: the personal nature of constitutional rights, McGowan v. Maryland, 366 U. S. 420, 429 (1961), and prudential limitations on constitutional adjudication.20 In United States v. Raines, supra, at 21, we *768noted the “incontrovertible proposition” that it “‘would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation/” (quoting Barrows v. Jackson, 346 U. S. 249, 256 (1953)). By focusing on the factual situation before us, and similar cases necessary for development of a constitutional rule,21 we face “flesh-and-blood”22 legal problems with data “relevant and adequate to an informed judgment.”23 This practice also fulfills a valuable institutional purpose: it allows state courts the opportunity to construe a law to avoid constitutional infirmities.

What has come to be known as the First Amendment overbreadth doctrine is one of the few exceptions to this principle and must be justified by “weighty countervailing policies.” United States v. Raines, supra, at 22-23. The doctrine is predicated on the sensitive nature of protected expression: “persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression.” Village of Schaumburg v. *769Citizens for a Better Environment, 444 U. S. 620, 634 (1980); Gooding v. Wilson, supra, at 521. It is for this reason that we have allowed persons to attack overly broad statutes even though the conduct of the person making the attack is clearly unprotected and could be proscribed by a law drawn with the requisite specificity. Dombrowski v. Pfister, 380 U. S. 479, 486 (1965); Thornhill v. Alabama, 310 U. S. 88, 97-98 (1940); United States v. Raines, supra, at 21-22; Gooding v. Wilson, supra, at 521.

The scope of the First Amendment overbreadth doctrine, like most exceptions to established principles, must be carefully tied to the circumstances in which facial invalidation of a statute is truly warranted. Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, we have recognized that the overbreadth doctrine is “strong medicine” and have employed it with hesitation, and then “only as a last resort.” Broadrick, 413 U. S., at 613. We have, in consequence, insisted that the over-breadth involved be “substantial” before the statute involved will be invalidated on its face.24

*770In Broadrick, we explained the basis for this requirement:

“[T]he plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward conduct and that conduct — even if expressive — falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect — at best a prediction — cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. Cf. Alderman v. United States, 394 U. S. 165, 174-175 (1969).” Id., at 615.

We accordingly held that “particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Ibid.25

*771Broadrick examined a regulation involving restrictions on political campaign activity, an area not considered “pure speech,” and thus it was unnecessary to consider the proper overbreadth test when a law arguably reaches traditional forms of expression such as books and films. As we intimated in Broadrick, the requirement of substantial over-breadth extended “at the very least” to cases involving conduct plus speech. This case, which poses the question squarely, convinces us that the rationale of Broadrick is sound and should be applied in the present context involving the harmful employment of children to make sexually explicit materials for distribution.

The premise that a law should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications is hardly novel. On most occasions involving facial invalidation, the Court has stressed the embracing sweep of the statute over protected expression.26 *772Indeed, Justice Brennan observed in his dissenting opinion in Broadrick:

“We have never held that a statute should be held invalid on its face merely because it is possible to conceive of a single impermissible application, and in that sense a requirement of substantial overbreadth is already implicit in the doctrine.” Id., at 630.

The requirement of substantial overbreadth is directly derived from the purpose and nature of the doctrine. While a sweeping statute, or one incapable of limitation, has the potential to repeatedly chill the' exercise of expressive activity by many individuals, the extent of deterrence of protected speech can be expected to decrease with the declining reach of the regulation.27 This observation appears equally applicable to the publication of books and films as it is to activities, such as picketing or participation in election campaigns, which have previously been categorized as involving conduct plus speech. We see no appreciable difference between the position of a publisher or bookseller in doubt as to the reach of New York’s child pornography law and the situation faced by the Oklahoma state employees with respect to that State’s restriction on partisan political activity. Indeed, it could reasonably be argued that the bookseller, with an economic incentive to sell materials that may fall within the statute’s scope, may be less likely to be deterred than the employee who wishes to engage in political campaign activity. Cf. Bates v. State Bar of Arizona, 433 U. S. 350, 380-381 (1977) (overbreadth analysis inapplicable to commercial speech).

This requirement of substantial overbreadth may justifiably be applied to statutory challenges which arise in defense *773of a criminal prosecution as well as civil enforcement or actions seeking a declaratory judgment. Cf. Parker v. Levy, 417 U. S. 733, 760 (1974). Indeed, the Court’s practice when confronted with ordinary criminal laws that are sought to be applied against protected conduct is not to invalidate the law in toto, but rather to reverse the particular conviction. Cantwell v. Connecticut, 310 U. S. 296 (1940); Edwards v. South Carolina, 372 U. S. 229 (1973). We recognize, however, that the penalty to be imposed is relevant in determining whether demonstrable overbreadth is substantial. We simply hold that the fact that a criminal prohibition is involved does not obviate the need for the inquiry or a priori warrant a finding of substantial overbreadth.

B

Applying these principles, we hold that § 263.15 is not substantially overbroad. We consider this the paradigmatic case of a state statute whose legitimate reach dwarfs its arguably impermissible applications. New York, as we have held, may constitutionally prohibit dissemination of material specified in §263.15. While the reach of the statute is directed at the hard core of child pornography, the Court of Appeals was understandably concerned that some protected expression, ranging from medical textbooks to pictorials in the National Geographic would fall prey to the statute. How often, if ever, it may be necessary to employ children to engage in conduct clearly within the reach of §263.15 in order to produce educational, medical, or artistic works cannot be known with certainty. Yet we seriously doubt, and it has not been suggested, that these arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statute’s reach. Nor will we assume that the New York courts will widen the possibly invalid reach of the statute by giving an expansive construction to the proscription on “lewd exhibition[s] of the genitals.” Under these circumstances, §263.15 is “not substantially overbroad and . . . whatever overbreadth may exist *774should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.” Broadrick v. Oklahoma, 413 U. S., at 615-616.

IV

Because § 263.15 is not substantially overbroad, it is unnecessary to consider its application to material that does not depict sexual conduct of a type that New York may restrict consistent with the First Amendment. As applied to Paul Ferber and to others who distribute similar material, the statute does not violate the First Amendment as applied to the States through the Fourteenth.28 The judgment of the New York Court of Appeals is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.

So ordered.

Justice O’Connor,

concurring.

Although I join the Court’s opinion, I write separately to stress that the Court does not hold that New York must except “material with serious literary, scientific, or educational value,” ante, at 766, from its statute. The Court merely holds that, even if the First Amendment shelters such material, New York’s current statute is not sufficiently overbroad to support respondent’s facial attack. The compelling interests identified in today’s opinion, see ante, at 756-764, suggest that the Constitution might in fact permit New York to ban knowing distribution of works depicting minors engaged in explicit sexual conduct, regardless of the social value of the depictions. For example, a 12-year-old child photographed while *775masturbating surely suffers the same psychological harm whether the community labels the photograph “edifying” or “tasteless.” The audience’s appreciation of the depiction is simply irrelevant to New York’s asserted interest in protecting children from psychological, emotional, and mental harm.

An exception for depictions of serious social value, moreover, would actually increase opportunities for the content-based censorship disfavored by the First Amendment. As drafted, New York’s statute does not attempt to suppress the communication of particular ideas. The statute permits discussion of child sexuality, forbidding only attempts to render the “portrayal[s] somewhat more ‘realistic’ by utilizing or photographing children.” Ante, at 763. Thus, the statute attempts to protect minors from abuse without attempting to restrict the expression of ideas by those who might use children as live models.

On the other hand, it is quite possible that New York’s statute is overbroad because it bans depictions that do not actually threaten the harms identified by the Court. For example, clinical pictures of adolescent sexuality, such as those that might appear in medical textbooks, might not involve the type of sexual exploitation and abuse targeted by New York’s statute. Nor might such depictions feed the poisonous “kiddie porn” market that New York and other States have attempted to regulate. Similarly, pictures of children engaged in rites widely approved by their cultures, such as those that might appear in issues of the National Geographic, might not trigger the compelling interests identified by the Court. It is not necessary to address these possibilities further today, however, because this potential overbreadth is not sufficiently substantial to warrant facial invalidation of New York’s statute.

Justice Brennan,

concurring in the judgment.

I agree with much of what is said in the Court’s opinion. As I made clear in the opinion I delivered for the Court in *776Ginsburg v. New York, 390 U. S. 629 (1968), the State has a special interest in protecting the well-being of its youth. Id., at 638-641. See also Globe Newspaper Co. v. Superior Court, 457 U. S. 596, 607 (1982). This special and compelling interest, and the particular vulnerability of children, afford the State the leeway to regulate pornographic material, the promotion of which is harmful to children, even though the State does not have such leeway when it seeks only to protect consenting adults from exposure to such material. Ginsburg v. New York, supra, at 637, 638, n. 6, 642-643, n. 10. See also Jacobellis v. Ohio, 378 U. S. 184, 195 (1964) (opinion of Brennan, J.). I also agree with the Court that the “tiny fraction,” ante, at 773, of material of serious artistic, scientific, or educational value that could conceivably fall within the reach of the statute is insufficient to justify striking the statute on the grounds of overbreadth. See Broadrick v. Oklahoma, 413 U. S. 601, 630 (1973) (Brennan, J., dissenting).

But in my view application of §263.15 or any similar statute to depictions of children that in themselves do have serious literary, artistic, scientific, or medical value, would violate the First Amendment. As the Court recognizes, the limited classes of speech, the suppression of which does not raise serious First Amendment concerns, have two attributes. They are of exceedingly “slight social value,” and the State has a compelling interest in their regulation. See Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942). The First Amendment value of depictions of children that are in themselves serious contributions to art, literature, or science, is, by definition, simply not “de minimis.” See ante, at 761. At the same time, the State’s interest in suppression of such materials is likely to be far less compelling. For the Court’s assumption of harm to the child resulting from the “permanent record” and “circulation” of the child’s “participation,” ante, at 759, lacks much of its force where the depiction is a serious contribution to art or science. The production of materials of serious value is not the “low-*777profile, clandestine industry” that according to the Court produces purely pornographic materials. See ante, at 760. In short, it is inconceivable how a depiction of a child that is itself a serious contribution to the world of art or literature or science can be deemed “material outside the protection of the First Amendment.” See ante, at 763.

I, of course, adhere to my view that, in the absence of exposure, or particular harm, to juveniles or unconsenting adults, the State lacks power to suppress sexually oriented materials. See, e. g., Paris Adult Theatre I v. Slaton, 413 U. S. 49, 73 (1973) (Brennan, J., dissenting). With this understanding, I concur in the Court’s judgment in this case.

Justice Stevens,

concurring in the judgment.

Two propositions seem perfectly clear to me. First, the specific conduct that gave rise to this criminal prosecution is not protected by the Federal Constitution; second, the state statute that respondent violated prohibits some conduct that is protected by the First Amendment. The critical question, then, is whether this respondent, to whom the statute may be applied without violating the Constitution, may challenge the statute on the ground that it conceivably may be applied unconstitutionally to others in situations not before the Court. I agree with the Court’s answer to this question but not with its method of analyzing the issue.

Before addressing that issue, I shall explain why respondent’s conviction does not violate the Constitution. The two films that respondent sold contained nothing more than lewd exhibition; there is no claim that the films included any material that had literary, artistic, scientific, or educational value.1 Respondent was a willing participant in a commercial market that the State of New York has a legitimate interest in suppressing. The character of the State’s interest in protecting children from sexual abuse justifies the imposition *778of criminal sanctions against those who profit, directly or indirectly, from the promotion of such films. In this respect my evaluation of this case is different from the opinion I have expressed concerning the imposition of criminal sanctions for the promotion of obscenity in other contexts.2

A holding that respondent may be punished for selling these two films does not require us to conclude that other users of these very films, or that other motion pictures containing similar scenes, are beyond the pale of constitutional protection. Thus, the exhibition of these films before a legislative committee studying a proposed amendment to a state law, or before a group of research scientists studying human behavior, could not, in my opinion, be made a crime. Moreover, it is at least conceivable that a serious work of art, a documentary on behavioral problems, or a medical or psychiatric teaching device, might include a scene from one of these films and, when viewed as a whole in a proper setting, be entitled to constitutional protection. The question whether a specific act of communication is protected by the First Amendment always requires some consideration of both its content and its context.

The Court’s holding that this respondent may not challenge New York’s statute as overbroad follows its discussion of the contours of the category of nonobscene child pornography that New York may legitimately prohibit. Having defined that category in an abstract setting,3 the Court makes the *779empirical judgment that the arguably impermissible application of the New York statute amounts to only a “tiny fraction of the materials within the statute’s reach.” Ante, at 773. Even assuming that the Court’s empirical analysis is sound,4 I believe a more conservative approach to the issue would adequately vindicate the State’s interest in protecting its children and cause less harm to the federal interest in free expression.

A hypothetical example will illustrate my concern. Assume that the operator of a New York motion picture theater specializing in the exhibition of foreign feature films is offered a full-length movie containing one scene that is plainly lewd if viewed in isolation but that nevertheless is part of a serious work of art. If the child actor resided abroad, New York’s interest in protecting its young from sexual exploitation would be far less compelling than in the case before us. The federal interest in free expression would, however, be just as strong as if an adult actor had been used. There are at least three different ways to deal with the statute’s potential application to that sort of case.

First, at one extreme and as the Court appears to hold, the First Amendment inquiry might be limited to determining *780whether the offensive scene, viewed in isolation, is lewd. When the constitutional protection is narrowed in this drastic fashion, the Court is probably safe in concluding that only a tiny fraction of the materials covered by the New York statute is protected. And with respect to my hypothetical exhibitor of foreign films, he need have no uncertainty about the permissible application of the statute; for the one lewd scene would deprive the entire film of any constitutional protection.

Second, at the other extreme and as the New York Court of Appeals correctly perceived, the application of this Court’s cases requiring that an obscenity determination be based on the artistic value of a production taken as a whole would afford the exhibitor constitutional protection and result in a holding that the statute is invalid because of its overbreadth. Under that approach, the rationale for invalidating the entire statute is premised on the concern that the exhibitor’s understanding about its potential reach could cause him to engage in self-censorship. This Court’s approach today substitutes broad, unambiguous, state-imposed censorship for the self-censorship that an overbroad statute might produce.

Third, as an intermediate position, I would refuse to apply overbreadth analysis for reasons unrelated to any prediction concerning the relative number of protected communications that the statute may prohibit. Specifically, I would postpone decision of my hypothetical case until it actually arises. Advocates of a liberal use of overbreadth analysis could object to such postponement on the ground that it creates the risk that the exhibitor’s uncertainty may produce self-censorship. But that risk obviously interferes less with the interest in free expression than does an abstract, advance ruling that the film is simply unprotected whenever it contains a lewd scene, no matter how brief.

My reasons for avoiding overbreadth analysis in this case are more qualitative than quantitative. When we follow our *781traditional practice of adjudicating difficult and novel constitutional questions only in concrete factual situations, the adjudications tend to be crafted with greater wisdom. Hypothetical rulings are inherently treacherous and prone to lead us into unforeseen errors; they are qualitatively less reliable than the products of case-by-case adjudication.

Moreover, it is probably safe to assume that the category of speech that is covered by the New York statute generally is of a lower quality than most other types of communication. On a number of occasions, I have expressed the view that the First Amendment affords some forms of speech more protection from governmental regulation than other forms of speech.5 Today the Court accepts this view, putting the category of speech described in the New York statute in its rightful place near the bottom of this hierarchy. Ante, at 761-763. Although I disagree with the Court’s position that such speech is totally without First Amendment protection, I agree that generally marginal speech does not warrant the extraordinary protection afforded by the overbreadth doctrine.6

Because I have no difficulty with the statute’s application in this case, I concur in the Court’s judgment.

*239Justice Kennedy

delivered the opinion of the Court.

We consider in this case whether the Child Pornography Prevention Act of 1996 (CPPA), 18 U. S. C. §2251 et seq., abridges the freedom of speech. The CPPA extends the federal prohibition against child pornography to sexually explicit images that appear to depict minors but were produced without using any real children. The statute prohibits, in specific circumstances, possessing or distributing these images, which may be created by using adults who *240look like minors or by using computer imaging. The new technology, according to Congress, makes it possible to create realistic images of children who do not exist. See Congressional Findings, notes following 18 U. S. C. §2251.

By prohibiting child pornography that does not depict an actual child, the statute goes beyond New York v. Ferber, 458 U. S. 747 (1982), which distinguished child pornography from other sexually explicit speech because of the State’s interest in protecting the children exploited by the production process. See id., at 758. As a general rule, pornography can be banned only if obscene, but under Ferber, pornography showing minors can be proscribed whether or not the images are obscene under the definition set forth in Miller v. California, 413 U. S. 15 (1973). Ferber recognized that “[t]he Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State’s particular and more compelling interest in prosecuting those who promote the sexual exploitation of children.” 458 U. S., at 761.

While we have not had occasion to consider the question, we may assume that the apparent age of persons engaged in sexual conduct is relevant to whether a depiction offends community standards. Pictures of young children engaged in certain acts might be obscene where similar depictions of adults, or perhaps even older adolescents, would not. The CPPA, however, is not directed at speech that is obscene; Congress has proscribed those materials through a separate statute. 18 U. S. C. §§ 1460-1466. Like the law in Ferber, the CPPA seeks to reach beyond obscenity, and it makes no attempt to conform to the Miller standard. For instance, the statute would reach visual depictions, such as movies, even if they have redeeming social value.

The principal question to be resolved, then, is whether the CPPA is constitutional where it proscribes a significant universe of speech that is neither obscene under Miller nor child pornography under Ferber.

*241I

Before 1996, Congress defined child pornography as the type of depictions at issue in Ferber, images made using actual minors. 18 U. S. C. § 2252 (1994 ed.). The CPPA retains that prohibition at 18 U. S. C. § 2256(8)(A) and adds three other prohibited categories of speech, of which the first, §2256(8)(B), and the third, §2256(8)(D), are at issue in this case. Section 2256(8)(B) prohibits “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture,” that “is, or appears to be, of a minor engaging in sexually explicit conduct.” The prohibition on “any visual depiction” does not depend at all on how the image is produced. The section captures a range of depictions, sometimes called “virtual child pornography,” which include computer-generated images, as well as images produced by more traditional means. For instance, the literal terms of the statute embrace a Renaissance painting depicting a scene from classical mythology, a “picture” that “appears to be, of a minor engaging in sexually explicit conduct.” The statute also prohibits Hollywood movies, filmed without any child actors, if a jury believes an actor “appears to be” a minor engaging in “actual or simulated . . . sexual intercourse.” §2256(2).

These images do not involve, let alone harm, any children in the production process; but Congress decided the materials threaten children in other, less direct, ways. Pedophiles might use the materials to encourage children to participate in sexual activity. “[A] child who is reluctant to engage in sexual activity with an adult, or to pose for sexually explicit photographs, can sometimes be convinced by viewing depictions of other children ‘having fun’ participating in such activity.” Congressional Finding (3), notes following § 2251. Furthermore, pedophiles might “whet their own sexual appetites” with the pornographic images, “thereby increasing the creation and distribution of child pornography and the sexual abuse and exploitation of actual children.” Id., Find*242ings (4), (10)(B). Under these rationales, harm flows from the content of the images, not from the means of their production. In addition, Congress identified another problem created by computer-generated images: Their existence can make it harder to prosecute pornographers who do use real minors. See id., Finding (6)(A). As imaging technology improves, Congress found, it becomes more difficult to prove that a particular picture was produced using actual children. To ensure that defendants possessing child pornography using real minors cannot evade prosecution, Congress extended the ban to virtual child pornography.

Section 2256(8)(C) prohibits a more common and lower tech means of creating virtual images, known as computer morphing. Rather than creating original images, pornographers can alter innocent pictures of real children so that the children appear to be engaged in sexual activity. Although morphed images may fall within the definition of virtual child pornography, they implicate the interests of real children and are in that sense closer to the images in Ferber. Respondents do not challenge this provision, and we do not consider it.

Respondents do challenge § 2256(8)(B). Like the text of the “appears to be” provision, the sweep of this provision is quite broad. Section 2256(8)(B) defines child pornography to include any sexually explicit image that was “advertised, promoted, presented, described, or distributed in such a manner that conveys the impression” it depicts “a minor engaging in sexually explicit conduct.” One Committee Report identified the provision as directed at sexually explicit images pandered as child pornography. See S. Rep. No. 104-358, p. 22 (1996) (“This provision prevents child pornographers and pedophiles from exploiting prurient interests in child sexuality and sexual activity through the production or distribution of pornographic material which is intentionally pandered as child pornography”). The statute is not so limited in its reach, however, as it punishes even *243those possessors who took no part in pandering. Once a work has been described as child pornography, the taint remains on the speech in the hands of subsequent possessors, making possession unlawful even though the content otherwise would not be objectionable.

Fearing that the CPPA threatened the activities of its members, respondent Free Speech Coalition and others challenged the statute in the United States District Court for the Northern District of California. The Coalition, a California trade association for the adult-entertainment industry, alleged that its members did not use minors in their sexually explicit works, but they believed some of these materials might fall within the CPPA’s expanded definition of child pornography; The other respondents are Bold Type, Inc., the publisher of a book advocating the nudist lifestyle; Jim Gingerich, a painter of nudes; and Ron Raffaelli, a photographer specializing in erotic images. Respondents alleged that the “appears to be” and “conveys the impression” provisions are overbroad and vague, chilling them from producing works protected by the First Amendment. The District Court disagreed and granted summary judgment to the Government. The court dismissed the overbreadth claim because it was “highly unlikely” that any “adaptations of sexual works like ‘Romeo and Juliet,’ . .. will be treated as ‘criminal contraband.’” App. to Pet. for Cert. 62a-63a.

The Court of Appeals for the Ninth Circuit reversed. See 198 F. 3d 1083 (1999). The court reasoned that the Government could not prohibit speech because of its tendency to persuade viewers to commit illegal acts. The court held the CPPA to be substantially overbroad because it bans materials that are neither obscene nor produced by the exploitation of real children as in New York v. Ferber, 458 U. S. 747 (1982). Judge Ferguson dissented on the ground that virtual images, like obscenity and real child pornography, should be treated as a category of speech unprotected by the First Amendment. 198 F. 3d, at 1097. The Court of Appeals voted to *244deny the petition for rehearing en banc, over the dissent of three judges. See 220 F. 3d 1113 (2000).

While the Ninth Circuit found the CPPA invalid on its face, four other Courts of Appeals have sustained it. See United States v. Fox, 248 F. 3d 394 (CA5 2001); United States v. Mento, 231 F. 3d 912 (CA4 2000); United States v. Acheson, 195 F. 3d 645 (CA11 1999); United States v. Hilton, 167 F. 3d 61 (CA1), cert. denied, 528 U. S. 844 (1999). We granted certiorari. 531 U. S. 1124 (2001).

II

The First Amendment commands, “Congress shall make no law . . . abridging the freedom of speech.” The government may violate this mandate in many ways, e. g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995); Keller v. State Bar of Cal., 496 U. S. 1 (1990), but a law imposing criminal penalties on protected speech is a stark example of speech suppression. The CPPA’s penalties are indeed severe. A first offender may be imprisoned for 15 years. § 2252A(b)(l). A repeat offender faces a prison sentence of not less than 5 years and not more than 30 years in prison. Ibid. While even minor punishments can chill protected speech, see Wooley v. Maynard, 430 U. S. 705 (1977), this case provides a textbook example of why we permit facial challenges to statutes that burden expression. With these severe penalties in force, few legitimate movie producers or book publishers, or few other speakers in any capacity, would risk distributing images in or near the uncertain reach of this law. The Constitution gives significant protection from overbroad laws that chill speech within the First Amendment’s vast and privileged sphere. Under this principle, the CPPA is unconstitutional on its face if it prohibits a substantial amount of protected expression. See Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973).

The sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people. In *245its legislative findings, Congress recognized that there are subcultures of persons who harbor illicit desires for children and commit criminal acts to gratify the impulses. See Congressional Findings, notes following §2251; see also U. S. Dept. of Health and Human Services, Administration on Children, Youth and Families, Child Maltreatment 1999 (estimating that 93,000 children were victims of sexual abuse in 1999). Congress also found that surrounding the serious offenders are those who flirt with these impulses and trade pictures and written accounts of sexual activity with young children.

Congress may pass valid laws to protect children from abuse, and it has. E. g., 18 U. S. C. §§2241, 2251. The prospect of crime, however, by itself does not justify laws suppressing protected speech. See Kingsley Int’l Pictures Corp. v. Regents of Univ. of N. Y., 360 U. S. 684, 689 (1959) (“Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech” (internal quotation marks and citation omitted)). It is also well established that speech may not be prohibited because it concerns subjects offending our sensibilities. See FCC v. Pacifica Foundation, 438 U. S. 726, 745 (1978) (“[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it”); see also Reno v. American Civil Liberties Union, 521 U. S. 844, 874 (1997) (“In evaluating the free speech rights of adults, we have made it perfectly clear that ‘[sjexual expression which is indecent but not obscene is protected by the First Amendment’ ”) (quoting Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989)); Carey v. Population Services Int'l, 431 U. S. 678, 701 (1977) (“[T]he fact that protected speech may be offensive to some does not justify its suppression”).

As a general principle, the First Amendment bars the government from dictating what we see or read or speak or hear. The freedom of speech has its limits; it does not *246embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children. See Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Kennedy, J., concurring). While these categories may be prohibited without violating the First Amendment, none of them includes the speech prohibited by the CPPA. In his dissent from the opinion of the Court of Appeals, Judge Ferguson recognized this to be the law and proposed that virtual child pornography should be regarded as an additional category of unprotected speech. See 198 F. 3d, at 1101. It would be necessary for us to take this step to uphold the statute.

As we have noted, the CPPA is much more than a supplement to the existing federal prohibition on obscenity. Under Miller v. California, 413 U. S. 15 (1973), the Government must prove that the work, taken as a whole, appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value. Id., at 24. The CPPA, however, extends to images that appear to depict a minor engaging in sexually explicit activity without regard to the Miller requirements. The materials need not appeal to the prurient interest. Any depiction of sexually explicit activity, no matter how it is presented, is proscribed. The CPPA applies to a picture in a psychology manual, as well as a movie depicting the horrors of sexual abuse. It is not necessary, moreover, that the image be patently offensive. Pictures of what appear to be 17-year-olds engaging in sexually explicit activity do not in every case contravene community standards.

The CPPA prohibits speech despite its serious literary, artistic, political, or scientific value. The statute proscribes the visual depiction of an idea — that of teenagers engaging in sexual activity — that is a fact of modern society and has been a theme in art and literature throughout the ages. *247Under the CPPA, images are prohibited so long as the persons appear to be under 18 years of age. 18 U. S. C. §2256(1). This is higher than the legal age for marriage in many States, as well as the age at which persons may consent to sexual relations. See § 2243(a) (age of consent in the federal maritime and territorial jurisdiction is 16); U. S. National Survey of State Laws 384-388 (R. Leiter ed., 3d ed. 1999) (48 States permit 16-year-olds to marry with parental consent); W. Eskridge & N. Hunter, Sexuality, Gender, and the Law 1021-1022 (1997) (in 39 States and the District of Columbia, the age of consent is 16 or younger). It is, of course, undeniable that some youths engage in sexual activity before the legal age, either on their own inclination or because they are victims of sexual abuse.

Both themes — teenage sexual activity and the sexual abuse of children — have inspired countless literary works. William Shakespeare created the most famous pair of teenage lovers, one of whom is just 13 years of age. See Romeo and Juliet, act I, sc. 2,1. 9 (“She hath not seen the change of fourteen years”). In the drama, Shakespeare portrays the relationship as something splendid and innocent, but not juvenile. The work has inspired no less than 40 motion pictures, some of which suggest that the teenagers consummated their relationship. E. g., Romeo and Juliet (B. Luhr-mann director, 1996). Shakespeare may not have written sexually explicit scenes for the Elizabethan audience, but were modern directors to adopt a less conventional approach, that fact alone would not compel the conclusion that the work was obscene.

Contemporary movies pursue similar themes. Last year’s Academy Awards featured the movie, Traffic, which was nominated for Best Picture. See Predictable and Less So, the Academy Award Contenders, N. Y. Times, Feb. 14, 2001, p. Ell. The film portrays a teenager, identified as a 16-year-old, who becomes addicted to drugs. The viewer sees the degradation of her addiction, which in the end leads her *248to a filthy room to trade sex for drugs. The year before, American Beauty won the Academy Award for Best Picture. See “American Beauty” Tops the Oscars, N. Y. Times, Mar. 27, 2000, p. El. In the course of the movie, a teenage girl engages in sexual relations with her teenage boyfriend, and another yields herself to the gratification of a middle-aged man. The film also contains a scene where, although the movie audience understands the act is not taking place, one character believes he is watching a teenage boy performing a sexual act on an older man.

Our society, like other cultures, has empathy and enduring fascination with the lives and destinies of the young. Art and literature express the vital interest we all have in the formative years we ourselves once knew, when wounds can be so grievous, disappointment so profound, and mistaken choices so tragic, but when moral acts and self-fulfillment are still in reach. Whether or not the films we mention violate the CPPA, they explore themes within the wide sweep of the statute’s prohibitions. If these films, or hundreds of others of lesser note that explore those subjects, contain a single graphic depiction of sexual activity within the statutory definition, the possessor of the film would be subject to severe punishment without inquiry into the work’s redeeming value. This is inconsistent with an essential First Amendment rule: The artistic merit of a work does not depend on the presence of a single explicit scene. See Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Mass., 383 U. S. 413, 419 (1966) (plurality opinion) (“[T]he social value of the book can neither be weighed against nor canceled by its prurient appeal or patent offensiveness”). Under Miller, the First Amendment requires that redeeming value be judged by considering the work as a whole. Where the scene is part of the narrative, the work itself does not for this reason become obscene, even though the scene in isolation might be offensive. See Kois v. Wisconsin, 408 U. S. 229, 231 (1972) (per *249curiam). For this reason, and the others we have noted, the CPPA cannot be read to prohibit obscenity, because it lacks the required link between its prohibitions and the affront to community standards prohibited by the definition of obscenity.

The Government seeks to address this deficiency by arguing that speech prohibited by the CPPA is virtually indistinguishable from child pornography, which may be banned without regard to whether it depicts works of value. See New York v. Ferber, 458 U. S., at 761. Where the images are themselves the product of child sexual abuse, Ferber recognized that the State had an interest in stamping it out without regard to any judgment about its content. Id., at 761, n. 12; see also id., at 775 (O’Connor, J., concurring) (“As drafted, New York’s statute does not attempt to suppress the communication of particular ideas”). The production of the work, not its content, was the target of the statute. The fact that a work contained serious literary, artistic, or other value did not excuse the harm it caused to its child participants. It was simply “unrealistic to equate a community’s toleration for sexually oriented materials with the permissible scope of legislation aimed at protecting children from sexual exploitation.” Id., at 761, n. 12.

Ferber upheld a prohibition on the distribution and sale of child pornography, as well as its production, because these acts were “intrinsically related” to the sexual abuse of children in two ways. Id., at 759. First, as a permanent record of a child’s abuse, the continued circulation itself would harm the child who had participated. Like a defamatory statement, each new publication of the speech would cause new injury to the child’s reputation and emotional well-being. See id., at 759, and n. 10. Second, because the traffic in child pornography was an economic motive for its production, the State had an interest in closing the distribution network. “The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material *250by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product.” Id., at 760. Under either rationale, the speech had what the Court in effect held was a proximate link to the crime from which it came.

Later, in Osborne v. Ohio, 495 U. S. 103 (1990), the Court ruled that these same interests justified a ban on the possession of pornography produced by using children. “Given the importance of the State’s interest in protecting the victims of child pornography,” the State was justified in “attempting to stamp out this vice at all levels in the distribution chain.” Id., at 110. Osborne also noted the State’s interest in preventing child pornography from being used as an aid in the solicitation of minors. Id., at 111. The Court, however, anchored its holding in the concern for the participants, those whom it called the “victims of child pornography.” Id., at 110. It did not suggest that, absent this concern, other governmental interests would suffice. See infra, at 251-253.

In contrast to the speech in Ferber, speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not “intrinsically related” to the sexual abuse of children, as were the materials in Ferber. 458 U. S., at 759. While the Government asserts that the images can lead to actual instances of child abuse, see infra, at 251-254, the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts.

The Government says these indirect harms are sufficient because, as Ferber acknowledged, child pornography rarely can be valuable speech. See 458 U. S., at 762 (“The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis”). This argument, however, suffers from two flaws. First, Ferber’s judg*251ment about child pornography was based upon how it was made, not on what it communicated. The case reaffirmed that where the speech is neither obscene nor the product of sexual abuse, it does not fall outside the protection of the First Amendment. See id., at 764-765 (“[T]he distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection”).

The second flaw in the Government’s position is that Ferber did not hold that child pornography is by definition without value. On the contrary, the Court recognized some works in this category might have significant value, see id., at 761, but relied on virtual images — the very images prohibited by the CPPA — as an alternative and permissible means of expression: “[I]f it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized. Simulation outside of the prohibition of the statute could provide another alternative.” Id., at 763. Ferber, then, not only referred to the distinction between actual and virtual child pornography, it relied on it as a reason supporting its holding. Ferber provides no support for a statute that eliminates the distinction and makes the alternative mode criminal as well.

Ill

The CPPA, for reasons we have explored, is inconsistent with Miller and finds no support in Ferber. The Government seeks to justify its prohibitions in other ways. It argues that the CPPA is necessary because pedophiles may use virtual child pornography to seduce children. There are many things innocent in themselves, however, such as cartoons, video games, and candy, that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused. The Government, of course, may punish adults who provide unsuitable mate*252rials to children, see Ginsberg v. New York, 390 U. S. 629 (1968), and it may enforce criminal penalties for unlawful solicitation. The precedents establish, however, that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it. See Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989). In Butler v. Michigan, 352 U. S. 380, 381 (1957), the Court ■invalidated a statute prohibiting distribution of an indecent publication because of its tendency to “ ‘incite minors to violent or depraved or immoral acts.’” A unanimous Court agreed upon the important First Amendment principle that the State could not “reduce the adult population ... to reading only what is fit for children.” Id., at 383. We have reaffirmed this holding. See United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 814 (2000) (“[T]he objective of shielding children does not suffice to support a blanket ban if the protection can be accomplished by a less restrictive alternative”); Reno v. American Civil Liberties Union, 521 U. S., at 875 (The “governmental interest in protecting children from harmful materials ... does not justify an unnecessarily broad suppression of speech addressed to adults”); Sable Communications v. FCC, supra, at 130-131 (striking down a ban on “dial-a-porn” messages that had “the invalid effect of limiting the content of adult telephone conversations to that which is suitable for children to hear”).

Here, the Government wants to keep speech from children not to protect them from its content but to protect them from those who would commit other crimes. The principle, however, remains the same: The Government cannot ban speech fit for adults simply because it may fall into the hands of children. The evil in question depends upon the actor’s unlawful conduct, conduct defined as criminal quite apart from any link to the speech in question. This establishes that the speech ban is not narrowly drawn. The objective is to prohibit illegal conduct, but this restriction goes well *253beyond that interest by restricting the speech available to law-abiding adults.

The Government submits further that virtual child pornography whets the appetites of pedophiles and encourages them to engage in illegal conduct. This rationale cannot sustain the provision in question. The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The government “cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” Stanley v. Georgia, 394 U. S. 557, 566 (1969). First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.

To preserve these freedoms, and to protect speech for its own sake, the Court’s First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct. See Kingsley Int’l Pictures Corp., 360 U. S., at 689; see also Bartnicki v. Vopper, 532 U. S. 514, 529 (2001) (“The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it”). The government may not prohibit speech because it increases the chance an unlawful act will be committed “at some indefinite future time.” Hess v. Indiana, 414 U. S. 105, 108 (1973) (per curiam). The government may suppress speech for advocating the use of force or a violation of law only if “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam). There is here no attempt, incitement, solicitation, or conspiracy. The Government has shown no more than a remote connection between speech that might encourage thoughts or impulses and any resulting child abuse. Without a significantly stronger, more direct connection, the Government may not prohibit *254speech on the ground that it may encourage pedophiles to engage in illegal conduct.

The Government next argues that its objective of eliminating the market for pornography produced using real children necessitates a prohibition on virtual images as well. Virtual images, the Government contends, are indistinguishable from real ones; they are part of the same market and are often exchanged. In this way, it is said, virtual images promote the trafficking in works produced through the exploitation of real children. The hypothesis is somewhat implausible. If virtual images were identical to illegal child pornography, the illegal images would be driven from the market by the indistinguishable substitutes. New pornographers would risk prosecution by abusing real children if fictional, computerized images would suffice.

In the case of the material covered by Ferber, the creation of the speech is itself the crime of child abuse; the prohibition deters the crime by removing the profit motive. See Osborne, 495 U. S., at 109-110. Even where there is an underlying crime, however, the Court has not allowed the suppression of speech in all cases. E. g., Bartnicki, supra, at 529 (market deterrence would not justify law prohibiting a radio commentator from distributing speech that had been unlawfully intercepted). We need not consider where to strike the balance in this case, because here, there is no underlying crime at all. Even if the Government’s market deterrence theory were persuasive in some contexts, it would not justify this statute.

Finally, the Government says that the possibility of producing images by using computer imaging makes it very difficult for it to prosecute those who produce pornography by using real children. Experts, we are told, may have difficulty in saying whether the pictures were made by using real children or by using computer imaging. The necessary solution, the argument runs, is to prohibit both kinds of im*255ages. The argument, in essence, is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down.

The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse. “[TJhe possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted . . . .” Broadrick v. Oklahoma, 413 U. S., at 612. The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.

To avoid the force of this objection, the Government would have us read the CPPA not as a measure suppressing speech but as a law shifting the burden to the accused to prove the speech is lawful. In this connection, the Government relies on an affirmative defense under the statute, which allows a defendant to avoid conviction for nonpossession offenses by showing that the materials were produced using only adults and were not otherwise distributed in a manner conveying the impression that they depicted real children. See 18 U. S. C. §2252A(c).

The Government raises serious constitutional difficulties by seeking to impose on the defendant the burden of proving his speech is not unlawful. An affirmative defense applies only after prosecution has begun, and the speaker must himself prove, on pain of a felony conviction, that his conduct falls within the affirmative defense. In cases under the CPPA, the evidentiary burden is not trivial. Where the defendant is not the producer of the work, he may have no way of establishing the identity, or even the existence, of the actors. If the evidentiary issue is a serious problem for the Government, as it asserts, it will be at least as difficult *256for the innocent possessor. The statute, moreover, applies to work created before 1996, and the producers themselves may not have preserved the records necessary to meet the burden of proof. Failure to establish the defense can lead to a felony conviction.

We need not decide, however, whether the Government could impose this burden on a speaker. Even if an affirmative defense can save a statute from First Amendment challenge, here the defense is incomplete and insufficient, even on its own terms. It allows persons to be convicted in some instances where they can prove children were not exploited in the production. A defendant charged with possessing, as opposed to distributing, proscribed works may not defend on the ground that the film depicts only adult actors. See ibid. So while the affirmative defense may protect a movie producer from prosecution for the act of distribution, that same producer, and all other persons in the subsequent distribution chain, could be liable for possessing the prohibited work. Furthermore, the affirmative defense provides no protection to persons who produce speech by using computer imaging, or through other means that do not involve the use of adult actors who appear to be minors. See ibid. In these cases, the defendant can demonstrate no children were harmed in producing the images, yet the affirmative defense would not bar the prosecution. For this reason, the affirmative defense cannot save the statute, for it leaves unprotected a substantial amount of speech not tied to the Government’s interest in distinguishing images produced using real children from virtual ones.

In sum, §2256(8)(B) covers materials beyond the categories recognized in Ferber and Miller, and the reasons the Government offers in support of limiting the freedom of speech have no justification in our precedents or in the law of the First Amendment. The provision abridges the freedom to engage in a substantial amount of lawful speech. For this reason, it is overbroad and unconstitutional.

*257IV

Respondents challenge §2256(8)(D) as well. This provision bans depictions of sexually explicit conduct that are “advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.” The parties treat the section as nearly identical to the provision prohibiting materials that appear to be child pornography. In the Government’s view, the difference between the two is that “the 'conveys the impression’ provision requires the jury to assess the material at issue in light of the manner in which it is promoted.” Brief for Petitioners 18, n. 3. The Government’s assumption, however, is that the determination would still depend principally upon the content of the prohibited work.

We disagree with this view. The CPPA prohibits sexually explicit materials that “conve[y] the impression” they depict minors. While that phrase may sound like the “appears to be” prohibition in §2256(8)(B), it requires little judgment about the content of the image. Under §2256(8)(D), the work must be sexually explicit, but otherwise the content is irrelevant. Even if a film contains no sexually explicit scenes involving minors, it could be treated as child pornography if the title and trailers convey the impression that the scenes would be found in the movie. The determination turns on how the speech is presented, not on what is depicted. While the legislative findings address at length the problems posed by materials that look like child pornography, they are silent on the evils posed by images simply pandered that way.

The Government does not offer a serious defense of this provision, and the other arguments it makes in support of the CPPA do not bear on §2256(8)(D). The materials, for instance, are not likely to be confused for child pornography in a criminal trial. The Court has recognized that pandering may be relevant, as an evidentiary matter, to *258the question whether particular materials are obscene. See Ginzburg v. United States, 383 U. S. 463, 474 (1966) (“[I]n close cases evidence of pandering may be probative with respect to the nature of the material in question and thus satisfy the [obscenity] test”). Where a defendant engages in the “commercial exploitation of erotica solely for the sake of their prurient appeal,” id., at 466, the context he or she creates may itself be relevant to the evaluation of the materials.

Section 2256(8)(D), however, prohibits a substantial amount of speech that falls outside Ginzburg’s rationale. Materials falling within the proscription are tainted and unlawful in the hands of all who receive it, though they bear no responsibility for how it was marketed, sold, or described. The statute, furthermore, does not require that the context be part of an effort at “commercial exploitation.” Ibid. As a consequence, the CPPA does more than prohibit pandering. It prohibits possession of material described, or pandered, as child pornography by someone earlier in the distribution chain. The provision prohibits a sexually explicit film containing no youthful actors, just because it is placed in a box suggesting a prohibited movie. Possession is a crime even when the possessor knows the movie was mislabeled. The First Amendment requires a more precise restriction. For this reason, §2256(8)(D) is substantially overbroad and in violation of the First Amendment.

V

For the reasons we have set forth, the prohibitions of §§2256(8)(B) and 2256(8)(D) are overbroad and unconstitutional. Having reached this conclusion, we need not address respondents’ further contention that the provisions are unconstitutional because of vague statutory language.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

*259Justice Thomas,

concurring in the judgment.

In my view, the Government’s most persuasive asserted interest in support of the Child Pornography Prevention Act of 1996 (CPPA), 18 U. S. C. §2251 et seq., is the prosecution rationale — that persons who possess and disseminate pornographic images of real children may escape conviction by claiming that the images are computer generated, thereby raising a reasonable doubt as to their guilt. See Brief for Petitioners 37. At this time, however, the Government asserts only that defendants raise such defenses, not that they have done so successfully. In fact, the Government points to no case in which a defendant has been acquitted based on a “computer-generated images” defense. See id., at 37-38, and n. 8. While this speculative interest cannot support the broad reach of the CPPA, technology may evolve to the point where it becomes impossible to enforce actual child pornography laws because the Government cannot prove that certain pornographic images are of real children. In the event this occurs, the Government should not be foreclosed from enacting a regulation of virtual child pornography that contains an appropriate affirmative defense or some other narrowly drawn restriction.

The Court suggests that the Government’s interest in enforcing prohibitions against real child pornography cannot justify prohibitions on virtual child pornography, because “[t]his analysis turns the First Amendment upside down. The Government may not suppress lawful speech as the means to suppress unlawful speech.” Ante, at 255. But if technological advances thwart prosecution of “unlawful speech,” the Government may well have a compelling interest in barring or otherwise regulating some narrow category of “lawful speech” in order to enforce effectively laws against pornography made through the abuse of real children. The Court does leave open the possibility that a more complete affirmative defense could save a statute’s constitutionality, see ante, at 256, implicitly accepting that some *260regulation of virtual child pornography might be constitutional. I would not prejudge, however, whether a more complete affirmative defense is the only way to narrowly tailor a criminal statute that prohibits the possession and dissemination of virtual child pornography. Thus, I concur in the judgment of the Court.

Justice O’Connor,

concurring in the judgment in part and dissenting in part.

The Child Pornography Prevention Act of 1996 (CPPA), 18 Ú. S. C. §2251 et seq., proscribes the “knowin[g]” reproduction, distribution, sale, reception, or possession of images that fall under the statute’s definition of child pornography, §2252A(a). Possession is punishable by up to 5 years in prison for a first offense, § 2252A(b), and all other transgressions are punishable by up to 15 years in prison for a first offense, § 2252A(a). The CPPA defines child pornography to include “any visual depiction ... of sexually explicit conduct” where “such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct,” § 2256(8)(B) (emphasis added), or “such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct,” §2256(8)(D) (emphasis added). The statute defines “sexually explicit conduct” as “actual or simulated — ... sexual intercourse bestiality; . . . masturbation; . . . sadistic or masochistic abuse; or . . . lascivious exhibition of the genitals or pubic area of any person.” § 2256(2).

The CPPA provides for two affirmative defenses. First, a defendant is not liable for possession if the defendant possesses less than three proscribed images and promptly destroys such images or reports the matter to law enforcement. § 2252A(d). Second, a defendant is not liable for the remaining acts proscribed in § 2252A(a) if the images involved were *261produced using only adult subjects and are not presented in such a manner as to “convey the impression” they contain depictions of minors engaging in sexually explicit conduct. §2252A(c).

This litigation involves a facial challenge to the CPPA’s prohibitions of pornographic images that “appea[r] to be . . . of a minor” and of material that “conveys the impression” that it contains pornographic images of minors. While I agree with the Court’s judgment that the First Amendment requires that the latter prohibition be struck down, I disagree with its decision to strike down the former prohibition in its entirety. The “appears to be ... of a minor” language in § 2256(8)(B) covers two categories of speech: pornographic images of adults that look like children (“youthful adult pornography”) and pornographic images of children created wholly on a computer, without using any actual children (“virtual child pornography”). The Court concludes, correctly, that the CPPA’s ban on youthful adult pornography is overbroad. In my view, however, respondents fail to present sufficient evidence to demonstrate that the ban on virtual child pornography is overbroad. Because invalidation due to overbreadth is such “strong medicine,” Broadrick v. Oklahoma, 413 U. S. 601, 613 (1973), I would strike down . the prohibition of pornography that “appears to be” of minors only insofar as it is applied to the class of youthful adult pornography.

I

Respondents assert that the CPPA’s prohibitions of youthful adult pornography, virtual child pornography, and material that “conveys the impression” that it contains actual child pornography are overbroad, that the prohibitions are content-based regulations not narrowly tailored to serve a compelling Government interest, and that the prohibitions are unconstitutionally vague. The Government not only disagrees with these specific contentions, but also requests that *262the Court exclude youthful adult and virtual child pornography from the protection of the First Amendment.

I agree with the Court’s decision not to grant this request. Because the Government may already prohibit obscenity without violating the First Amendment, see Miller v. California, 413 U. S. 15, 23 (1973), what the Government asks this Court to rule is that it may also prohibit youthful adult and virtual child pornography that is merely indecent without violating that Amendment. Although such pornography looks like the material at issue in New York v. Ferber, 458 U. S. 747 (1982), no children are harmed in the process of creating such pornography. Id., at 759. Therefore, Ferber does not support the Government’s ban on youthful adult and virtual child pornography. See ante, at 249-251. The Government argues that, even if the production of such pornography does not directly harm children, this material aids and abets child abuse. See ante, at 251-254. The Court correctly concludes that the causal connection between pornographic images that “appear” to include minors and actual child abuse is not strong enough to justify withdrawing First Amendment protection for such speech. See ante, at 250.

I also agree with the Court’s decision to strike down the CPPA’s ban on material presented in a manner that “conveys the impression” that it contains pornographic depictions of actual children (“actual child pornography”). 18 U. S. C. § 2256(8)(D). The Government fails to explain how this ban serves any compelling state interest. Any speech covered by § 2256(8)(D) that is obscene, actual child pornography, or otherwise indecent is prohibited by other federal statutes. See §§1460-1466 (obscenity), 2256(8)(A), (B) (actual child pornography), 2256(8)(B) (youthful adult and virtual child pornography). The Court concludes that §2256(8)(D) is overbroad, but its reasoning also persuades me that the provision is not narrowly tailored. See ante, at 257-258. The provision therefore fails strict scrutiny. United States *263v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813 (2000).

Finally, I agree with the Court that the CPPA’s ban on youthful adult pornography is overbroad. The Court provides several examples of movies that, although possessing serious literary, artistic, or political value and employing only adult actors to perform simulated sexual conduct, fall under the CPPA’s proscription on images that “appea[r] to be ... of a minor engaging in sexually explicit conduct,” 18 U. S. C. § 2256(8)(B). See ante, at 247-248 (citing Romeo and Juliet, Traffic, and American Beauty). Individuals or businesses found to possess just three such films have no defense to criminal liability under the CPPA. § 2252A(d).

II

I disagree with the Court, however, that the CPPA’s prohibition of virtual child pornography is overbroad. Before I reach that issue, there are two preliminary questions: whether the ban on virtual child pornography fails strict scrutiny and whether that ban is unconstitutionally vague. I would answer both in the negative.

The Court has long recognized that the Government has a compelling interest in protecting our Nation’s children. See Ferber, supra, at 756-757 (citing eases). This interest is promoted by efforts directed against sexual offenders and actual child pornography. These efforts, in turn, are supported by the CPPA’s ban on virtual child pornography. Such images whet the appetites of child molesters, § 121,110 Stat. 3009-26, Congressional Findings (4), (10)(B), notes following 18 U. S. C. §2251, who may use the images to seduce young children, id., Finding (3). Of even more serious concern is the prospect that defendants indicted for the production, distribution, or possession of actual child pornography máy evade liability by claiming that the images attributed to them are in fact computer generated. Id., Finding (6)(A). Respondents may be correct that no defendant has success*264fully employed this tactic. See, e. g., United States v. Fox, 248 F. 3d 394 (CA5 2001); United States v. Vig, 167 F. 3d 443 (CA8 1999); United States v. Kimbrough, 69 F. 3d 723 (CA5 1995); United States v. Coleman, 54 M. J. 869 (Army Ct. Crim. App. 2001). But, given the rapid pace of advances in computer-graphics technology, the Government’s concern is reasonable. Computer-generated images lodged with the Court by amici curiae National Law Center for Children and Families et al. bear a remarkable likeness to actual human beings. Anyone who has seen, for example, the film Final Fantasy: The Spirits Within (H. Sakaguchi and M. Sakakibara directors, 2001) can understand the Government’s concern. Moreover, this Court’s cases do not require Congress to wait for harm to occur before it can legislate against it. See Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 212 (1997).

Respondents argue that, even if the Government has a compelling interest to justify banning virtual child pornography, the “appears to be ... of a minor” language is not narrowly tailored to serve that interest. See Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989). They assert that the CPPA would capture even cartoon sketches or statues of children that were sexually suggestive. Such images surely could not be used, for instance, to seduce children. I agree. A better interpretation of “appears to be ... of” is “virtually indistinguishable from” — an interpretation that would not cover the examples respondents provide. Not only does the text of the statute comfortably bear this narrowing interpretation, the interpretation comports with the language that Congress repeatedly used in its findings of fact. See, e. g., Congressional Finding (8), notes following 18 U. S. C. § 2251 (discussing how “visual depictions produced wholly or in part by electronic, mechanical, or other means, including by computer, which are virtually indistinguishable to the unsuspecting viewer from photographic images of actual children” may whet the appetites of *265child molesters). See also id., Findings (5), (12). Finally, to the extent that the phrase “appears to be . . . of” is ambiguous, the narrowing interpretation avoids constitutional problems such as overbreadth and lack of narrow tailoring. See Crowell v. Benson, 285 U. S. 22, 62 (1932).

Reading the statute only to bar images that are virtually indistinguishable from actual children would not only assure that the ban on virtual child pornography is narrowly tailored, but would also assuage any fears that the “appears to be ... of a minor” language is vague. The narrow reading greatly limits any risks from “‘discriminatory enforcement.’ ” Reno v. American Civil Liberties Union, 521 U. S. 844, 872 (1997). Respondents maintain that the “virtually indistinguishable from” language is also vague because it begs the question: from whose perspective? This problem is exaggerated. This Court has never required “mathematical certainty” or “ ‘meticulous specificity’ ” from the language of a statute. Grayned v. City of Rockford, 408 U. S. 104, 110 (1972).

The Court concludes that the CPPA’s ban on virtual child pornography is overbroad. The basis for this holding is unclear. Although a content-based regulation may serve a compelling state interest, and be as narrowly tailored as possible while substantially serving that interest, the regulation may unintentionally ensnare speech that has serious literary, artistic, political, or scientific value or that does not threaten the harms sought to be combated by the Government. If so, litigants may challenge the regulation on its face as over-broad, but in doing so they bear the heavy burden of demonstrating that the regulation forbids a substantial amount of valuable or harmless speech. See Reno, supra, at 896 (O’Connor, J., concurring in judgment in part and dissenting in part) (citing Broadrick, 413 U. S., at 615). Respondents have not made such a demonstration. Respondents provide no examples of films or other materials that are wholly computer generated and contain images that “appea[r] to be ... *266of minors” engaging in indecent conduct, but that have serious value or do not facilitate child abuse. Their overbreadth challenge therefore fails.

Ill

Although in my view the CPPA’s ban on youthful adult pornography appears to violate the First Amendment, the ban on virtual child pornography does not. It is true that both bans are authorized by the same text: The statute’s definition of child pornography to include depictions that “appea[r] to be” of children in sexually explicit poses. 18 U. S. C. § 2256(8)(B). Invalidating a statute due to over-breadth, however, is an extreme remedy, one that should be employed “sparingly and only as a last resort.” Broadrick, supra, at 613. We have observed that “[i]t is not the usual judicial practice, . . . nor do we consider it generally desirable, to proceed to an overbreadth issue unnecessarily.” Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 484-485 (1989).

Heeding this caution, I would strike the “appears to be” provision only insofar as it is applied to the subset of cases involving youthful adult pornography. This approach is similar to that taken in United States v. Grace, 461 U. S. 171 (1983), which considered the constitutionality of a federal statute that makes it unlawful to “parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement.” 40 U. S. C. § 13k (1994 ed.). The term “Supreme Court... grounds” technically includes the sidewalks surrounding the Court, but because sidewalks have traditionally been considered a public forum, the Court held the statute unconstitutional only when applied to sidewalks.

Although 18 U. S. C. § 2256(8)(B) does not distinguish between youthful adult and virtual child pornography, the CPPA elsewhere draws a line between these two classes of *267speech. The statute provides an affirmative defense for those who produce, distribute, or receive pornographic images of individuals who are actually adults, §2252A(c), but not for those with pornographic images that are wholly computer generated. This is not surprising given that the legislative findings enacted by Congress contain no mention of youthful adult pornography. Those findings focus explicitly only on actual child pornography and virtual child pornography. See, e. g., Finding (9), notes following § 2251 (“[T]he danger to children who are seduced and molested with the aid of child sex pictures is just as great when the child pornographer or child molester uses visual depictions of child sexual activity produced wholly or in part by electronic, mechanical, or other means, including by computer, as when the material consists of unretouched photographic images of actual children engaging in sexually explicit conduct”). Drawing a line around, and striking just, the CPPA’s ban on youthful adult pornography not only is consistent with Congress’ understanding of the categories of speech encompassed by § 2256(8)(B), but also preserves the CPPA’s prohibition of the material that Congress found most dangerous to children.

In sum, I would strike down the CPPA’s ban on material that “conveys the impression” that it contains actual child pornography, but uphold the ban on pornographic depictions that “appea[r] to be” of minors so long as it is not applied to youthful adult pornography.

Chief Justice Rehnquist,

dissenting.

I agree with Part II of Justice O’Connor’s opinion concurring in the judgment in part and dissenting in part. Congress has a compelling interest in ensuring the ability to enforce prohibitions of actual child pornography, and we should defer to its findings that rapidly advancing technology soon will make it all but impossible to do so. Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 195 (1997) (we *268“ ‘accord substantial deference to the predictive judgments of Congress’ ” in First Amendment cases).

I also agree with Justice O’Connor that serious First Amendment concerns would arise were the Government ever to prosecute someone for simple distribution or possession of a film with literary or artistic value, such as Traffic or American Beauty. Ante, at 262-263 (opinion concurring in judgment in part and dissenting in part). I write separately, however, because the Child Pornography Prevention Act of 1996 (CPPA), 18 U. S. C. §2251 et seq., need not be construed to reach such materials.

We normally do not strike down a statute on First Amendment grounds “when a limiting construction has been or could be placed on the challenged statute.” Broadrick v. Oklahoma, 413 U. S. 601, 613 (1973). See, e. g., New York v. Ferber, 458 U. S. 747, 769 (1982) (appreciating “the wide-reaching effects of striking down a statute on its face”); Parker v. Levy, 417 U. S. 733, 760 (1974) (“This Court has . . . repeatedly expressed its reluctance to strike down a statute on its face where there were a substantial number of situations to which it might be validly applied”). This case should be treated no differently.

Other than computer-generated images that are virtually indistinguishable from real children engaged in sexually explicit conduct, the CPPA can be limited so as not to reach any material that was not already unprotected before the CPPA. The CPPA’s definition of “sexually explicit conduct” is quite explicit in this regard. It makes clear that the statute only reaches “visual depictions” of:

“[AJctual or simulated . . . sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; . . . bestiality; . . . masturbation; . . . sadistic or masochistic abuse; or... lascivious exhibition of the genitals or pubic area of any person.” 18 U. S. C. §2256(2).

*269The Court and Justice O’Connor suggest that this very graphic definition reaches the depiction of youthful looking adult actors engaged in suggestive sexual activity, presumably because the definition extends to “simulated” intercourse. Ante, at 247-248 (majority opinion); ante, at 263 (opinion concurring in judgment in part and dissenting in part). Read as a whole, however, I think the definition reaches only the sort of “hard core of child pornography” that we found without protection in Ferber, supra, at 773-774. So construed, the CPPA bans visual depictions of youthful looking adult actors engaged in actual sexual activity; mere suggestions of sexual activity, such as youthful looking adult actors squirming under a blanket, are more akin to written descriptions than visual depictions, and thus fall outside the purview of the statute.1

The reference to “simulated” has been part of the definition of “sexually explicit conduct” since the statute was first passed. See Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. 95-225,92 Stat. 7. But the inclusion of “simulated” conduct, alongside “actual” conduct, does not change the “hard core” nature of the image banned. The reference to “simulated” conduct simply brings within the statute’s reach depictions of hardcore pornography that are “made to look genuine,” Webster’s Ninth New Collegiate Dictionary 1099 (1983) — including the main target of the CPPA, computer-generated images virtually indistinguishable from real children engaged in sexually explicit conduct. Neither actual conduct nor simulated conduct, however, is properly construed to reach depictions such as those in a film portrayal of Romeo and Juliet, ante, at 247-248 (majority opinion); ante, at 263 (O’Connor, J., concurring in judgment *270in part and dissenting in part), which are far removed from the hardcore pornographic depictions that Congress intended to reach.

Indeed, we should be loath to construe a statute as banning film portrayals of Shakespearian tragedies, without some indication — from text or legislative history — that such a result was intended. In fact, Congress explicitly instructed that such a reading of the CPPA would be wholly unwarranted. As the Court of Appeals for the First Circuit has observed:

“[T]he legislative record, which makes plain that the [CPPA] was intended to target only a narrow class of images — visual depictions ‘which are virtually indistinguishable to unsuspecting viewers from unretouched photographs of actual children engaging in identical sexual conduct.’” United States v. Hilton, 167 F. 3d 61, 72 (1999) (quoting S. Rep. No. 104-358, pt. I, p. 7 (1996)).

Judge Ferguson similarly observed in his dissent in the Court of Appeals in this case:

“From reading the legislative history, it becomes clear that the CPPA merely extends the existing prohibitions on ‘real’ child pornography to a narrow class of computer-generated pictures easily mistaken for real photographs of real children.” Free Speech Coalition v. Reno, 198 F. 3d 1083, 1102 (CA9 1999).

See also S. Rep. No. 104-358, pt. IV(C), at 21 (“[The CPPA] does not, and is not intended to, apply to a depiction produced using adults engaging i[n] sexually explicit conduct, even where a depicted individual may appear to be a minor” (emphasis in original)); id., pt. I, at 7 (“[The CPPA] addresses the problem of ‘high-tech kiddie porn’”). We have looked to legislative history to limit the scope of child pornography statutes in the past, United States v. *271X-Citement Video, Inc., 513 U. S. 64, 73-77 (1994), and we should do so here as well.2

This narrow reading of “sexually explicit conduct” not only accords with the text of the CPPA and the intentions of Congress; it is exactly how the phrase was understood prior to the broadening gloss the Court gives it today. Indeed, had “sexually explicit conduct” been thought to reach the sort of material the Court says it does, then films such as Traffic and American Beauty would not have been made the way they were. Ante, at 247-248 (discussing these films’ portrayals of youthful looking adult actors engaged in sexually suggestive conduct). Traffic won its Academy Award in 2001. American Beauty won its Academy Award in 2000. But the CPPA has been on the books, and has been enforced, since 1996. The chill felt by the Court, ante, at 244 (“[F]ew legitimate movie producers . . . would risk distributing images in or near the uncertain reach of this law”), has apparently never been felt by those who actually make movies.

To the extent the CPPA prohibits possession or distribution of materials that “convey the impression” of a child engaged in sexually explicit conduct, that prohibition can and should be limited to reach “the sordid business of pandering” which lies outside the bounds of First Amendment protection. Ginzburg v. United States, 383 U. S. 463, 467 (1966); e. g., id., at 472 (conduct that “deliberately emphasized the sexually provocative aspects of the work, in order to catch the salaciously disposed,” may lose First Amendment protection); United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 831-832 (2000) (Scalia, J., dissenting) (collecting cases). This is how the Government asks us to construe the statute, Brief for Petitioners 18, and n. 3; Tr. of Oral Arg. 27, and it is the most plausible reading of the text, which prohibits only materials “advertised, promoted, presented, described, or distributed in such a manner that conveys the *272impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.” 18 U. S. C. § 2256(8)(B) (emphasis added).

The First Amendment may protect the video shopowner or film distributor who promotes material as “entertaining” or “acclaimed” regardless of whether the material contains depictions of youthful looking adult actors engaged in nonob-scene but sexually suggestive conduct. The First Amendment does not, however, protect the panderer. Thus, materials promoted as conveying the impression that they depict actual minors engaged in sexually explicit conduct do not escape regulation merely because they might warrant First Amendment protection if promoted in a different manner. See Ginzburg, supra, at 474-476; cf. Jacobellis v. Ohio, 378 U. S. 184, 201 (1964) (Warren, C. J., dissenting) (“In my opinion, the use to which various materials are put — not just the words and pictures themselves — must be considered in determining whether or not the materials are obscene”). I would construe “conveys the impression” as limited to the panderer, which makes the statute entirely consistent with Ginzburg and other cases.

The Court says that “conveys the impression” goes well beyond Ginzburg to “prohibi[tj [the] possession of material described, or pandered, as child pornography by someone earlier in the distribution chain.” Ante, at 258. The Court’s concern is that an individual who merely possesses protected materials (such as videoeassettes of Traffic or American Beauty) might offend the CPPA regardless of whether the individual actually intended to possess materials containing unprotected images. Ante, at 248; see also ante, at 263 (O’Connor, J., concurring in judgment in part and dissenting in part) (“Individuals or businesses found to possess just three such films have no defense to criminal liability under the CPPA”).

This concern is a legitimate one, but there is, again, no need or reason to construe the statute this way. In *273X-Citement Video, supra, we faced a provision of the Protection of Children Against Sexual Exploitation Act of 1977, the precursor to the CPPA, which lent itself much less than the. present statute to attributing a “knowingly” requirement to the contents of the possessed visual depictions. We held that such a requirement nonetheless applied, so that the Government would have to prove that a person charged with possessing child pornography actually knew that the materials contained depictions of real minors engaged in sexually explicit conduct. 513 U. S., at 77-78. In light of this holding, and consistent with the narrow class of images the CPPA is intended to prohibit, the CPPA can be construed to prohibit only the knowing possession of materials actually containing visual depictions of real minors engaged in sexually explicit conduct, or computer-generated images virtually indistinguishable from real minors engaged in sexually explicit conduct. The mere possession of materials containing only suggestive depictions of youthful looking adult actors need not be so included.

In sum, while potentially impermissible applications of the CPPA may exist, I doubt that they would be “substantial ... in relation to the statute’s plainly legitimate sweep.” Broadrick, 413 U. S., at 615. The aim of ensuring the enforceability of our Nation’s child pornography laws is a compelling one. The CPPA is targeted to this aim by extending the definition of child pornography to reach computer-generated images that are virtually indistinguishable from real children engaged in sexually explicit conduct. The statute need not be read to do any more than precisely this, which is not offensive to the First Amendment.

For these reasons, I would construe the CPPA in a manner consistent with the First Amendment, reverse the Court of Appeals’ judgment, and uphold the statute in its entirety.

*288Justice Scalia

delivered the opinion of the Court.

Section 2252A(a)(3)(B) of Title 18, United States Code, criminalizes, in certain specified circumstances, the pandering or solicitation of child pornography. This case presents the question whether that statute is overbroad under the First Amendment or impermissibly vague under the Due Process Clause of the Fifth Amendment.

I

A

We have long held that obscene speech — sexually explicit material that violates fundamental notions of decency — is not protected by the First Amendment. See Roth v. United States, 354 U. S. 476,484-485 (1957). But to protect explicit material that has social value, we have limited the scope of the obscenity exception, and have overturned convictions for the distribution of sexually graphic but nonobscene material. See Miller v. California, 413 U. S. 15, 23-24 (1973); see also, e. g., Jenkins v. Georgia, 418 U. S. 153, 161 (1974).

Over the last 25 years, we have confronted a related and overlapping category of proscribable speech: child pornography. See Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002); Osborne v. Ohio, 495 U. S. 103 (1990); New York v. Ferber, 458 U. S. 747 (1982). This consists of sexually explicit visual portrayals that feature children. We have held that a statute which proscribes the distribution of all child pornography, even material that does not qualify as obscenity, does not on its face violate the First Amendment. See id., at 751-753, 756-764. Moreover, we have held that the government may criminalize the possession of child pornography, even though it may not criminalize the mere possession of obscene material involving adults. Compare Os*289borne, supra, at 111, with Stanley v. Georgia, 394 U. S. 557, 568 (1969).

The broad authority to proscribe child pornography is not, however, unlimited. Four Terms ago, we held facially over-broad two provisions of the federal Child Pornography Prevention Act of 1996 (CPPA). Free Speech Coalition, 535 U. S., at 258. The first of these banned the possession and distribution of “ ‘any visual depiction’ ” that “ ‘is, or appears to be, of a minor engaging in sexually explicit conduct,’” even if it contained only youthful-looking adult actors or virtual images of children generated by a computer. Id., at 239-241 (quoting 18 U. S. C. § 2256(8)(B)). This was invalid, we explained, because the child-protection rationale for speech restriction does not apply to materials produced without children. See 535 U. S., at 249-251, 254. The second provision at issue in Free Speech Coalition criminalized the possession and distribution of material that had been pandered as child pornography, regardless of whether it actually was that. See id., at 257 (citing 18 U. S. C. § 2256(8)(D)). A person could thus face prosecution for possessing unobjectionable material that someone else had pandered. 535 U. S., at 258. We held that this prohibition, which did “more than prohibit pandering,” was also facially overbroad. Ibid.

After our decision in Free Speech Coalition, Congress went back to the drawing board and produced legislation with the unlikely title of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003,117 Stat. 650. We shall refer to it as the Act. Section 503 of the Act amended 18 U. S. C. § 2252A to add a new pandering and solicitation provision, relevant portions of which now read as follows:

“(a) Any person who—

“(3) knowingly—

“(B) advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign *290commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains—

“(1) an obscene visual depiction of a minor engaging in sexually explicit conduct; or

“(ii) a visual depiction of an actual minor engaging in sexually explicit conduct,

“shall be punished as provided in subsection (b).” §2252A(a)(3)(B) (2000 ed., Supp. V).

Section 2256(2)(A) defines “‘sexually explicit conduct’” as

“actual or simulated—

“(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

“(ii) bestiality;

“(iii) masturbation;

“(iv) sadistic or masochistic abuse; or

“(v) lascivious exhibition of the genitals or pubic area of any person.”

Violation of § 2252A(a)(3)(B) incurs a minimum sentence of 5 years imprisonment and a maximum of 20 years. 18 U. S. C. § 2252A(b)(l).

The Act’s express findings indicate that Congress was concerned that limiting the child-pornography prohibition to material that could be proved to feature actual children, as our decision in Free Speech Coalition required, would enable many child pornographers to evade conviction. See § 501(9), (10), 117 Stat. 677. The emergence of new technology and the repeated retransmission of picture files over the Internet could make it nearly impossible to prove that a particular image was produced using real children — even though “[t]here is no substantial evidence that any of the child por*291nography images being trafficked today were made other than by the abuse of real children,” virtual imaging being prohibitively expensive. §501(5), (7), (8), (11), id., at 676-678; see also Dept. of Justice, Office of Community Oriented Policing Services, R. Wortley & S. Smallbone, Child Pornography on the Internet 9 (May 2006), online at http://www. cops.usdoj.gov/mime/open.pdf?Item=1729 (hereinafter Child Pornography on the Internet) (as visited Jan. 7, 2008, and available in Clerk of Court’s case file).

B

The following facts appear in the opinion of the Eleventh Circuit, 444 F. 3d 1286, 1288 (2006). On April 26, 2004, respondent Michael Williams, using a sexually explicit screen name, signed in to a public Internet chat room. A Secret Service agent had also signed in to the chat room under the moniker “Lisa n Miami.” The agent noticed that Williams had posted a message that read: “Dad of toddler has ‘good’ pics of her an [sic] me for swap of your toddler pics, or live cam.” The agent struck up a conversation with Williams, leading to an electronic exchange of nonpornographic pictures of children. (The agent’s picture was in fact a doctored photograph of an adult.) Soon thereafter, Williams messaged that he had photographs of men molesting his 4-year-old daughter. Suspicious that “Lisa n Miami” was a law-enforcement agent, before proceeding further Williams demanded that the agent produce additional pictures. When he did not, Williams posted the following public message in the chat room: “HERE ROOM; I CAN PUT UPLINK CUZ IM FOR REAL — SHE CANT.” Appended to this declaration was a hyperlink that, when clicked, led to seven pictures of actual children, aged approximately 5 to 15, engaging in sexually explicit conduct and displaying their genitals. The Secret Service then obtained a search warrant for Williams’s home, where agents seized two hard *292drives containing at least 22 images of real children engaged in sexually explicit conduct, some of it sadomasochistic.

Williams was charged with one count of pandering child pornography under § 2252A(a)(3)(B) and one count of possessing child pornography under §2252A(a)(5)(B). He pleaded guilty to both counts but reserved the right to challenge the constitutionality of the pandering conviction. The District Court rejected his challenge, and imposed concurrent 60-month prison terms on the two counts and a statutory assessment of $100 for each count, see 18 U. S. C. § 3013. No. 04-20299-CR-MIDDLEBROOKS (SD Fla., Aug. 20, 2004), App. B to Pet. for Cert. 46a-69a. The United States Court of Appeals for the Eleventh Circuit reversed the pandering conviction, holding that the statute was both over-broad and impermissibly vague. 444 F. 3d, at 1308-1309.

We granted certiorari. 549 U. S. 1304 (2007).

II

A

According to our First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech. The doctrine seeks to strike a balance between competing social costs. Virginia v. Hicks, 539 U. S. 113, 119-120 (2003). On the one hand, the threat of enforcement of an overbroad law deters people from engaging in constitutionally protected speech, inhibiting the free exchange of ideas. On the other hand, invalidating a law that in some of its applications is perfectly constitutional — particularly a law directed at conduct so antisocial that it has been made criminal — has obvious harmful effects. In order to maintain an appropriate balance, we have vigorously enforced the requirement that a statute’s overbreadth be substantial, not only in .an absolute sense, but also relative to the statute’s plainly legitimate sweep. See Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 485 *293(1989); Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973). Invalidation for overbreadth is “ ‘ “strong medicine” ’ ” that is not to be “casually employed.” Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32, 39 (1999) (quoting Ferber, 458 U. S., at 769).

The first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers. Generally speaking, § 2252A(a)(3)(B) prohibits offers to provide and requests to obtain child pornography. The statute does not require the actual existence of child pornography. In this respect, it differs from the statutes in Ferber, Osborne, and Free Speech Coalition, which prohibited the possession or distribution of child pornography. Rather than targeting the underlying material, this statute bans the collateral speech that introduces such material into the child-pornography distribution network. Thus, an Internet user who solicits child pornography from an undercover agent violates the statute, even if the officer possesses no child pornography. Likewise, a person who advertises virtual child pornography as depicting actual children also falls within the reach of the statute.

The statute’s definition of the material or purported material that may not be pandered or solicited precisely tracks the material held constitutionally proscribable in Ferber and Miller: obscene material depicting (actual or virtual) children engaged in sexually explicit conduct, and any other material depicting actual children engaged in sexually explicit conduct. See Free Speech Coalition, 535 U. S., at 245-246 (stating that the First Amendment does not protect obscenity or pornography produced with actual children); id., at 256 (holding invalid the challenged provision of the CPPA because it “eover[ed] materials beyond the categories recognized in Ferber and-Miller”).

A number of features of the statute are important to our analysis: <

*294First, the statute includes a scienter requirement. The first word of § 2252A(a)(3) — “knowingly”—applies to both of the immediately following subdivisions, both the previously existing § 2252A(a)(3)(A)1 and the new § 2252A(a)(3)(B) at issue here. We think that the best reading of the term in context is that it applies to every element of the two provisions. This is not a case where grammar or structure enables the challenged provision or some of its parts to be read apart from the “knowingly” requirement. Here “knowingly” introduces the challenged provision itself, making clear that it applies to that provision in its entirety; and there is no grammatical barrier to reading it that way.

Second, the statute’s string of operative verbs — “advertises, promotes, presents, distributes, or solicits” — is reasonably read to have a transactional connotation. That is to say, the statute penalizes speech that accompanies or seeks to induce a transfer of child pornography — via reproduction or physical delivery — from one person to another. For three of the verbs, this is obvious: Advertising, distributing, and soliciting are steps taken in the course of an actual or proposed transfer of a product, typically but not exclusively in a commercial market. When taken in isolation, the two remaining verbs — “promotes” and “presents” — are susceptible of multiple and wide-ranging meanings. In context, however, those meanings are narrowed by the commonsense canon of noscitur a sociis — which counsels that a word is given more precise content by the neighboring words with which it is associated. See Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961); 2A N. Singer & J. Singer, Sutherland Statutes and Statutory Construction §47:16 (7th ed. 2007). “Promotes,” in a list that includes “solicits,” “distributes,” and “advertises,” is most sensibly read to mean the act of recommending purported child pornography to another per*295son for his acquisition. See American Heritage Dictionary 1408 (4th ed. 2000) (def. 4: “To attempt to sell or popularize by advertising or publicity”). Similarly, “presents,” in the context of the other verbs with which it is associated, means showing or offering the child pornography to another person with a view to his acquisition. See id., at 1388 (def. 3a: “To make a gift or award of”). (The envisioned acquisition, of course, could be an electronic one, for example, reproduction of the image on the recipient’s computer screen.)

To be clear, our conclusion that all the words in this list relate to transactions is not to say that they relate to commercial transactions. One could certainly “distribute” child pornography without expecting payment in return. Indeed, in much Internet file sharing of child pornography each participant makes his files available for free to other participants — as Williams did in this case. “Distribution may involve sophisticated pedophile rings or organized crime groups that operate for profit, but in many cases, is carried out by individual amateurs who seek no financial reward.” Child Pornography on the Internet 9. To run afoul of the statute, the speech need only accompany or seek to induce the transfer of child pornography from one person to another.

Third, the phrase “in a manner that reflects the belief” includes both subjective and objective components. “[A] manner that reflects the belief” is quite different from “a manner that would give one cause to believe.” The first formulation suggests that the defendant must actually have held the subjective “belief” that the material or purported material was child pornography. Thus, a misdescription that leads the listener to believe the defendant is offering child pornography, when the defendant in fact does not believe the material is child pornography, does not violate this prong of the statute. (It may, however, violate the “manner . . . that is intended to cause another to believe” prong if the misdescription is intentional.) There is also an objective *296component to the phrase “manner that reflects the belief.” The statement or action must objectively manifest a belief that the material is child pornography; a mere belief, without an accompanying statement or action that would lead a reasonable person to understand that the defendant holds that belief, is insufficient.

Fourth, the other key phrase, “in a manner . . . that is intended to cause another to believe,” contains only a subjective element: The defendant must “intend” that the listener believe the material to be child pornography, and must select a manner of “advertising, promoting, presenting, distributing, or soliciting” the material that he thinks will engender that belief — whether or not a reasonable person would think the same. (Of course in the ordinary case the proof of the defendant’s intent will be the fact that, as an objective matter, the manner of “advertising, promoting, presenting, distributing, or soliciting” plainly sought to convey, that the material was child pornography.)

Fifth, the definition of “sexually explicit conduct” (the visual depiction of which, engaged in by an actual minor, is covered by the Act’s pandering and soliciting prohibition even when it is not obscene) is very similar to the definition of “sexual conduct” in the New York statute we upheld against an overbreadth challenge in Ferber. That defined “sexual conduct” as “ ‘actual or simülated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, or lewd exhibition of the genitals.’ ” 458 U. S., at 751. Congress used essentially the same constitutionally approved definition in the present Act. If anything, the fact that the defined term here is “sexually explicit conduct,” rather than (as in Ferber) merely “sexual conduct,” renders the definition more immune from facial constitutional attack. “[Simulated sexual intercourse” (a phrase found in the Ferber definition as well) is even less susceptible here of application to the sorts of sex scenes found in R-rated movies — which suggest that intercourse is taking place with*297out explicitly depicting it, and without causing viewers to believe that the actors are actually engaging in intercourse. “Sexually explicit conduct” connotes actual depiction of the sex act rather than merely the suggestion that it is occurring. And “simulated” sexual intercourse is not sexual intercourse that is merely suggested, but rather sexual intercourse that is explicitly portrayed, even though (through camera tricks or otherwise) it may not actually have occurred. The portrayal must cause a reasonable viewer to believe that the actors actually engaged in that conduct on camera. Critically, unlike in Free Speech Coalition, § 2252A(a)(3)(B)(ii)’s requirement of a “visual depiction of an actual minor” makes clear that, although the sexual intercourse may be simulated, it must involve actual children (unless it is obscene). This change eliminates any possibility that virtual child pornography or sex between youthful-looking adult actors might be covered by the term “simulated sexual intercourse.”

B

We now turn to whether the statute, as we have construed it, criminalizes a substantial amount of protected expressive activity.

Offers to engage in illegal transactions are categorically excluded from First Amendment protection. Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U. S. 376, 388 (1973); Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498 (1949). One would think that this principle resolves the present case, since the statute criminalizes only offers to provide or requests to obtain contraband— child obscenity and child pornography involving actual children, both of which are proscribed, see 18 U. S. C. § 1466A(a), § 2252A(a)(5)(B) (2000 ed., Supp. V), and the proscription of which is constitutional, see Free Speech Coalition, 535 U. S., at 245-246, 256. The Eleventh Circuit, however, believed that the exclusion of First Amendment protection extended only to commercial offers to provide or receive contraband: *298“Because [the statute] is not limited to commercial speech but extends also to non-commercial promotion, presentation, distribution, and solicitation, we must subject the content-based restriction of the PROTECT Act pandering provision to strict scrutiny ...444 F. 3d, at 1298.

This mistakes the rationale for the categorical exclusion. It is based not on the less privileged First Amendment status of commercial speech, see Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y, 447 U. S. 557, 562-563 (1980), but on the principle that offers to give or receive what it is unlawful to possess have no social value and thus, like obscenity, enjoy no First Amendment protection, see Pittsburgh Press, supra, at 387-389.2 Many long established criminal proscriptions — such as laws against conspiracy, incitement, and solicitation — criminalize speech (commercial or not) that is intended to induce or commence illegal activities. See, e. g., ALI, Model Penal Code § 5.02(1) (1985) (solicitation to commit a crime); §5.03(l)(a) (conspiracy to commit a crime). Offers to provide or requests to obtain unlawful material, whether as part of a commercial exchange or not, are similarly undeserving of First Amendment protection. It would be an odd constitutional principle that permitted the government to prohibit offers to sell illegal drugs, but not offers to give them away for free.

To be sure, there remains an important distinction between a proposal to engage in illegal activity and the ab*299stract advocacy of illegality. See Brandenburg v. Ohio, 395 U. S. 444, 447-448 (1969) (per curiam); see also NAACP v. Claiborne Hardware Co., 458 U. S. 886,928-929 (1982). The Act before us does not prohibit advocacy of child pornography, but only offers to provide or requests to obtain it. There is no doubt that this prohibition falls well within constitutional bounds. The constitutional defect we found in the pandering provision at issue in Free Speech Coalition was that it went beyond pandering to prohibit possession of material that could not otherwise be proscribed. 535 U. S., at 258.

In sum, we hold that offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment. Since the Eleventh Circuit erroneously concluded otherwise, it applied strict scrutiny to §2252A(a) (3)(B), lodging three fatal objections. We address these objections because they could be recast as arguments that Congress has gone beyond the categorical exception.

The Eleventh Circuit believed it a constitutional difficulty that no child pornography need exist to trigger the statute. In its view, the fact that the statute could punish a “braggart, exaggerator, or outright liar” rendered it unconstitutional. 444 F. 3d, at 1298. That seems to us a strange constitutional calculus. Although we have held that the government can ban both fraudulent offers, see, e. g., Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U. S. 600, 611-612 (2003), and offers to provide illegal products, the Eleventh Circuit would forbid the government from punishing fraudulent offers to provide illegal products. We see no logic in that position; if anything, such statements are doubly excluded from the First Amendment.

The Eleventh Circuit held that under Brandenburg, the “non-commercial, non-inciteful promotion of illegal child pornography” is protected, and § 2252A(a)(3)(B) therefore overreaches by criminalizing the promotion of child pornography. 444 F. 3d, at 1298. As we have discussed earlier, however, *300the term “promotes” does not refer to abstract advocacy, such as the statement “I believe that child pornography should be legal” or even “I encourage you to obtain child pornography.” It refers to the recommendation of a particular piece of purported child pornography with the intent of initiating a transfer.

The Eleventh Circuit found “particularly objectionable” the fact that the “reflects the belief” prong of the statute could ensnare a person who mistakenly believes that material is child pornography. Ibid. This objection has two conceptually distinct parts. First, the Eleventh Circuit thought that it would be unconstitutional to punish someone for mistakenly distributing virtual child pornography as real child pornography. We disagree. Offers to deal in illegal products or otherwise engage in illegal activity do not acquire First Amendment protection when the offeror is mistaken about the factual predicate of his offer. The pandering and solicitation made unlawful by the Act are sorts of inchoate crimes — acts looking toward the commission of another crime, the delivery of child pornography. As with other inchoate crimes — attempt and conspiracy, for example — impossibility of completing the crime because the facts were not as the defendant believed is not a defense. “All courts are in agreement that what is usually referred to as ‘factual impossibility’ is no defense to a charge of attempt.” 2 W. LaFave, Substantive Criminal Law § 11.5(a)(2) (2d ed. 2003). (The author gives as an example “the intended sale of an illegal drug [that] actually involved a different substance.” Ibid.) See also United States v. Hamrick, 43 F. 3d 877, 885 (CA4 1995) (en banc) (holding that impossibility is no defense to attempt and citing the holdings of four other Circuits); ALI, Model Penal Code §5.01, Comment, p. 307 (in attempt prosecutions “the defendant’s conduct should be measured according to the circumstances as he believes them to be, rather than the circumstances as they may have existed in fact”).

*301Under this heading the Eleventh Circuit also thought that the statute could apply to someone who subjectively believes that an innocuous picture of a child is “lascivious.” (Clause (v) of the definition of “sexually explicit conduct” is “lascivious exhibition of the genitals or pubic area of any person.” §2256(2)(A) (2000 ed., Supp. V).) That is not so. The defendant must believe that the picture contains certain material, and that material in fact (and not merely in his estimation) must meet the statutory definition. Where the material at issue is a harmless picture of a child in a bathtub and the defendant, knowing that material, erroneously believes that it constitutes a “lascivious exhibition of the genitals,” the statute has no application.

Williams and amici raise other objections, which demonstrate nothing so forcefully as the tendency of our over-breadth doctrine to summon forth an endless stream of fanciful hypotheticals. Williams argues, for example, that a person who offers nonpornographic photographs of young girls to a pedophile could be punished under the statute if the pedophile secretly expects that the pictures will contain child pornography. Brief for Respondent 19-20. That hypothetical does not implicate the statute, because the offeror does not hold the belief or intend the recipient to believe that the material is child pornography.

Amici contend that some advertisements for mainstream Hollywood movies that depict underage characters having sex violate the statute. Brief for Free Speech Coalition et al. as Amici Curiae 9-18. We think it implausible that a reputable distributor of Hollywood movies, such as Amazon, com, believes that one of these films contains actual children engaging in actual or simulated sex on camera; and even more implausible that Amazon.com would intend to make its customers believe such a thing. The average person understands that sex scenes in mainstream movies use nonchild actors, depict sexual activity in a way that would not rise to *302the explicit level necessary under the statute, or, in most cases, both.

There was raised at oral argument the question whether turning child pornography over to the police might not count as “present[ing]” the material. See Tr. of Oral Arg. 9-11. An interpretation of “presents” that would include turning material over to the authorities would of course be self-defeating in a statute that looks to the prosecution of people who deal in child pornography. And it would effectively nullify § 2252A(d), which provides an affirmative defense to the possession ban if a defendant promptly delivers child pornography to a law-enforcement agency. (The possession offense would simply be replaced by a pandering offense for delivering the material to law-enforcement officers.) In any event, the verb “present” — along with “distribute” and “advertise,” as well as “give,” “lend,” “deliver,” and “transfer” — was used in the definition of “promote” in Ferber. See 458 U. S., at 751 (quoting N. Y. Penal Law Ann. §263.15 (McKinney 1980)). Despite that inclusion, we had no difficulty concluding that the New York statute survived facial challenge. And in the period since Ferber, despite similar statutory definitions in other state statutes, see, e. g., Alaska Stat. § 11.61.125(d) (2006), Del. Code Ann., Tit. 11, §1109(5) (2007), we are aware of no prosecution for giving child pornography to the police. We can hardly say, therefore, that there is a “realistic danger” that § 2252A(a)(3)(B) will deter such activity. New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 11 (1988) (citing Thornhill v. Alabama, 310 U. S. 88, 97-98 (1940)).

It was also suggested at oral argument that the statute might cover documentary footage of atrocities being committed in foreign countries, such as soldiers raping young children. See Tr. of Oral Arg. 5-7. Perhaps so, if the material rises to the high level of explicitness that we have held is required. That sort of documentary footage could of course be the subject of an as-applied challenge. The courts *303presumably would weigh the educational interest in the dissemination of information about the atrocities against the government’s interest in preventing the distribution of materials that constitute “a permanent record” of the children’s degradation whose dissemination increases “the harm to the child.” Ferber, supra, at 759. Assuming that the constitutional balance would have to be struck in favor of the documentary, the existence of that exception would not establish that the statute is substantially overbroad. The “mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.” Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 800 (1984). In the vast majority of its applications, this statute raises no constitutional problems whatever.

Finally, the dissent accuses us of silently overruling our prior decisions in Ferber and Free Speech Coalition. See post, at 320 (opinion of Souter, J.). According to the dissent, Congress has made an end run around the First Amendment’s protection of virtual child pornography by prohibiting proposals to transact in such images rather than prohibiting the images themselves. But an offer to provide or request to receive virtual child pornography is not prohibited by the statute. A crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children. It is simply not true that this means “a protected category of expression [will] inevitably be suppressed,” post, at 321. Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography. The dissent would require an exception from the statute’s prohibition when, unbeknownst to one or both of the parties to the proposal, the completed transaction would not have been unlawful because it is (we have said) protected by the First Amendment. We fail to see what First Amendment interest would be served by drawing a *304distinction between two defendants who attempt to acquire contraband, one of whom happens to be mistaken about the contraband nature of what he would acquire. Is Congress prohibited from punishing those who attempt to acquire what they believe to be national-security documents, but which are actually fakes? To ask is to answer. There is no First Amendment exception from the general principle of criminal law that a person attempting to commit a crime need not be exonerated because he has a mistaken view of the facts.

Ill

As an alternative ground for facial invalidation, the Eleventh Circuit held that § 2252A(a)(3)(B) is void for vagueness. Vagueness doctrine is an outgrowth not of the First Amendment, but of the Due Process Clause of the Fifth Amendment. A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement. Hill v. Colorado, 530 U. S. 703, 732 (2000); see also Grayned v. City of Rockford, 408 U. S. 104, 108-109 (1972). Although ordinarily “[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others,” we have relaxed that requirement in the First Amendment context, permitting plaintiffs to argue that a statute is overbroad because it is unclear whether it regulates a substantial amount of protected speech. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 494-495, and nn. 6 and 7 (1982); see also Reno v. American Civil Liberties Union, 521 U. S. 844, 870-874 (1997). But “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.” Ward v. Rock Against Racism, 491 U. S. 781, 794 (1989).

The Eleventh Circuit believed that the phrases “ ‘in a manner that reflects the belief’” and “‘in a manner . . . that *305is intended to cause another to believe’ ” are “so vague and standardless as to what may not be said that the public is left with no objective measure to which behavior can be conformed.” 444 F. 3d, at 1306. The court gave two examples. First, an e-mail claiming to contain photograph attachments and including a message that says “ ‘little Janie in the bath— hubba, hubba!’ ” Ibid. According to the Eleventh Circuit, given that the statute does not require the actual existence of illegal material, the Government would have “virtually unbounded discretion” to deem such a statement in violation of the “ ‘reflects the belief’ ” prong. Ibid. The court’s second example was an e-mail entitled “ ‘Good pics of kids in bed’ ” with a photograph attachment of toddlers in pajamas asleep in their beds. Ibid. The court described three hypothetical senders: a proud grandparent, a “chronic forwarder of cute photos with racy tongue-in-cheek subject lines,” and a child molester who seeks to trade the photographs for more graphic material. Id., at 1306-1307. According to the Eleventh Circuit, because the “manner” in which the photographs are sent is the same in each case, and because the identity of the sender and the content of the photographs are irrelevant under the statute, all three senders could arguably be prosecuted for pandering. Id., at 1307.

We think that neither of these hypotheticals, without further facts, would enable a reasonable juror to find, beyond a reasonable doubt, that the speaker believed and spoke in a manner that reflected the belief, or spoke in a manner intended to cause another to believe, that the pictures displayed actual children engaged in “sexually explicit conduct” as defined in the Act. The prosecutions would be thrown out at the threshold.

But the Eleventh Circuit’s error is more fundamental than merely its selection of unproblematic hypotheticals. Its basic mistake lies in the belief that the mere fact that close cases can be envisioned renders a statute vague. That is not *306so. Close cases can be imagined under virtually any statute. The problem that poses is addressed, not by the doctrine of vagueness, but by the requirement of proof beyond a reasonable doubt. See In re Winship, 397 U. S. 358, 363 (1970).

What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is. Thus, we have struck down statutes that tied criminal culpability to whether the defendant’s conduct was “annoying” or “indecent” — wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings. See Coates v. Cincinnati, 402 U. S. 611, 614 (1971); Reno, supra, at 870-871, and n. 35.

There is no such indeterminacy here. The statute requires that the defendant hold, and make a statement that reflects, the belief that the material is child pornography; or that he communicate in a manner intended to cause another so to believe. Those are clear questions of fact. Whether someone held a belief or had an intent is a true-or-false determination, not a subjective judgment such as whether conduct is “annoying” or “indecent.” Similarly true or false is the determination whether a particular formulation reflects a belief that material or purported material is child pornography. To be sure, it may be difficult in some cases to determine whether these clear requirements have been met. “But courts and juries every day pass upon knowledge, belief and intent — the state of men’s minds — having before them no more than evidence of their words and conduct, from which, in ordinary human experience, mental condition may be inferred.” American Communications Assn. v. Douds, 339 U. S. 382, 411 (1950) (citing 2 J. Wigmore, Evidence §§244, 256 et seq. (3d ed. 1940)). And they similarly pass every day upon the reasonable import of a defendant’s statements — whether, for example, they fairly convey a false rep*307resentation, see, e. g., 18 U. S. C. § 1621 (criminalizing perjury), or a threat of physical injury, see, e.g., § 115(a)(1) (criminalizing threats to assault federal officials). Thus, the Eleventh Circuit’s contention that § 2252A(a)(3)(B) gives law-enforcement officials “virtually unfettered discretion” has no merit. No more here than in the case of laws against fraud, conspiracy, or solicitation.

Child pornography harms and debases the most defenseless of our citizens. Both the State and Federal Governments have sought to suppress it for many years, only to find it proliferating through the new medium of the Internet. This Court held unconstitutional Congress’s previous attempt to meet this new threat, and Congress responded with a carefully crafted attempt to eliminate the First Amendment problems we identified. As far as the provision at issue in this case is concerned, that effort was successful.

The judgment of the Eleventh Circuit is reversed.

It is so ordered.

Justice Stevens, with whom Justice Breyer joins,

concurring.

My conclusion that this statutory provision is not facially unconstitutional is buttressed by two interrelated considerations on which the Court finds it unnecessary to rely. First, I believe the result to be compelled by the principle that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155 U. S. 648, 657 (1895); see also Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988) (collecting cases).

Second, to the extent the statutory text alone is unclear, our duty to avoid constitutional objections makes it especially appropriate to look beyond the text in order to ascertain the intent of its drafters. It is abundantly clear from *308the provision’s legislative history that Congress’ aim was to target materials advertised, promoted, presented, distributed, or solicited with a lascivious purpose — that is, with the intention of inciting sexual arousal. The provision was described throughout the deliberations in both Houses of Congress as the “pandering” or “pandering and solicitation” provision, despite the fact that the term “pandering” appears nowhere in the statute. See, e. g., 149 Cong. Rec. 4227 (2003) (“[T]he bill criminalizes the pandering of child pornography, creating a new crime to respond to the Supreme Court’s recent ruling [in Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002)]” (statement of Sen. Leahy, bill’s cosponsor)); H. R. Conf. Rep. No. 108-66, p. 61 (2003) (“[The bill] includes a new pandering provision . . . that prohibits advertising, promoting, presenting, distributing, or soliciting ... child pornography” (internal quotation marks omitted)); S. Rep. No. 108-2, p. 10 (2003) (“S. 151 creates three new offenses .... One prohibits the pandering or solicitation of child pornography”); id., at 16 (“[T]he bill criminalizes the pandering of child pornography”).

The Oxford English Dictionary defines the verb “pander,” as “to minister to the gratification of (another’s lust),” 11 Oxford English Dictionary 129 (2d ed. 1989). And Black’s Law Dictionary provides, as relevant, this definition of “pandering”: “The act or offense of selling or distributing textual or visual material (such as magazines or videotapes) openly advertised to appeal to the recipient’s sexual interest.” Black’s Law Dictionary 1142 (8th ed. 2004) (hereinafter Black’s).1 Consistent with these dictionary definitions, our cases have explained that “pandering” is “The business of purveying textual or graphic matter openly advertised to appeal to the erotic interest,’ ” Ginzburg v. United States, 383 *309U. S. 463, 467, and n. 7 (1966) (quoting Roth v. United States, 354 U. S. 476, 495-496 (1957)).2

It was against this backdrop that Congress crafted the provision we uphold today. Both this context and the statements surrounding the provision’s enactment convince me that in addition to the other limitations the Court properly concludes constrain the reach of the statute, the heightened scienter requirements described ante, at 295-296, contain an element of lasciviousness.

The dissent argues that the statute impermissibly undermines our First Amendment precedents insofar as it covers proposals to transact in constitutionally protected material. It is true that proof that a pornographic but not obscene representation did not depict real children would place that representation on the protected side of the line. But any constitutional concerns that might arise on that score are surely answered by the construction the Court gives the statute’s operative provisions; that is, proposing a transaction in such material would not give rise to criminal liability under the statute unless the defendant actually believed, or intended to induce another to believe, that the material in question depicted real children.

Accordingly, when material which is protected — particularly if it possesses serious literary, artistic, political, or scientific value — is advertised, promoted, presented, distributed, or solicited for some lawful and nonlascivious purpose, such conduct is not captured by the statutory prohibition. Cf. Miller v. California, 413 U. S. 15, 24-25 (1973).

*310Justice Souter, with whom Justice Ginsburg joins,

dissenting.

Dealing in obscenity is penalized without violating the First Amendment, but as a general matter pornography lacks the harm to justify prohibiting it. If, however, a photograph (to take the kind of image in this case) shows an actual minor child as a pornographic subject, its transfer and even its possession may be made criminal. New York v. Ferber, 458 U. S. 747, 765-766 (1982); Osborne v. Ohio, 495 U. S. 103,110-111 (1990). The exception to the general rule rests not on the content of the picture but on the need to foil the exploitation of child subjects, Ferber, 458 U. S., at 759-760, and the justification limits the exception: only pornographic photographs of actual children may be prohibited, see id., at 763, 764; Ashcroft v. Free Speech Coalition, 535 U. S. 234, 249-251 (2002). Thus, just six years ago the Court struck down a statute outlawing particular material merely represented to be child pornography, but not necessarily depicting actual children. Id., at 257-258.

The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (Act), 117 Stat. 650, was enacted in the wake of Free Speech Coalition. The Act responds by avoiding any direct prohibition of transactions in child pornography1 when no actual minors may be pictured; instead, it prohibits proposals for transactions in pornography when a defendant manifestly believes or would induce belief in a prospective party that the subject of an exchange or exhibition is or will be an actual child, not an impersonated, simulated or “virtual” one, or the subject of a *311composite created from lawful photos spliced together. The Act specifically prohibits three types of those proposals. It outlaws solicitation of child pornography, as well as two distinct kinds of offers: those “advertising]” or “promoting]” prosecutable child pornography, which recommend the material with the implication that the speaker can make it available, and those “presenting]” or “distributing]” such child pornography, which make the material available to anyone who chooses to take it. 18 U. S. C. §2252A(a)(3)(B) (2000 ed., Supp. V).

The Court holds it is constitutional to prohibit these proposals, and up to a point I do not disagree. In particular, I accept the Court’s explanation that Congress may criminalize proposals unrelated to any extant image. I part ways from the Court, however, on the regulation of proposals made with regard to specific, existing representations. Under the new law, the elements of the pandering offense are the same, whether or not the images are of real children. As to those that do not show real children, of course, a transaction in the material could not be prosecuted consistently with the First Amendment, and I believe that maintaining the First Amendment protection of expression we have previously held to cover fake child pornography requires a limit to the law’s criminalization of pandering proposals. In failing to confront the tension between ostensibly protecting the material pandered while approving prosecution of the pandering of that same material, and in allowing the new pandering prohibition to suppress otherwise protected speech, the Court undermines Ferber and Free Speech Coalition in both reasoning and result. This is the significant element of today’s holding, and I respectfully dissent from it.

I

The easy case for applying the Act would be a proposal to obtain or supply child pornography supposedly showing a real child, when the solicitation or offer is unrelated to any *312image (that is, when the existence of pornographic “material” was merely “purported”). See ante, at 293 (“The statute does not require the actual existence of child pornography”). A proposal speaking of a pornographic photograph of a child is (absent any disclaimer or qualification) understood to mean a photo of an actual child; the reasonable assumption is that people desiring child pornography are not looking for fake child pornography, so that those who speak about it mean the real thing. Hence, someone who seeks to obtain child pornography (having no specific artifact in mind) “solicits” an unlawful transfer of contraband. 18 U. S. C. § 2252A(a)(3)(B). On the other side of that sort of proposed transaction, someone with nothing to supply or having only nonexpressive matter who purports to present, distribute, advertise, or promote child pornography also proposes an illegal transaction. In both cases, the activity would amount to an offer to traffic in child pornography that may be suppressed, and the First Amendment does not categorically protect offers to engage in illegal transactions. To the extent the speaker intended to mislead others, a conviction would also square with the unprotected status of fraud, see ante, at 299; and even a nonfraudulent speaker who mistakenly believed he could obtain the forbidden contraband to transfer to anyone who accepted an offer couid be validly convicted consistent with the general rule of criminal law, that attempting to commit a crime is punishable even though the completed crime might (or would) turn out to be impossible in fact, see ante, at 300.

The easy cases for constitutional application of the Act are over, however, when one gets to proposals for transactions related to extant pornographic objects, like photos in a dealer’s inventory, for example. These will in fact be the common cases, as the legislative findings attest. See §§ 501(1)-(15), 117 Stat. 676-678. Congress did not pass the Act to catch unsuccessful solicitors or fraudulent offerors with no photos to sell; rather, it feared that “[t]he mere prospect that *313the technology exists to create composite or computer-generated depictions that are indistinguishable from depictions of real children will allow defendants who possess images of real children to escape prosecution .... This threatens to render child pornography laws that protect real children unenforceable.” Id., § 501(13).

A person who “knowingly” proposes a transaction in an extant image incorporates into the proposal an understanding that the subject of the proposal is or includes that image. Cf. ante, at 300 (“[‘Promotes’] refers to the recommendation of a particular piece of purported child pornography . . . ”). Congress understood that underlying most proposals there will be an image that shows a child, and the proposal referring to an actual child’s picture will thus amount to a proposal to commit an independent crime such as a transfer of child pornography, see 18 U. S. C. §§2252A(a)(l), (2). But even when actual pictures thus occasion proposals, the Act requires no finding that an actual child be shown in the pornographic setting in order to prove a violation. And the fair assumption (apparently made by Congress) is that in some instances, the child pornography in question will be fake, with the picture showing only a simulation of a child, for example, or a very young-looking adult convincingly passed off as a child; in those cases the proposal is for a transaction that could not itself be made criminal, because the absence of a child model means that the image is constitutionally protected. See Free Speech Coalition, 535 U. S., at 246. But under the Act, that is irrelevant. What matters is not the inclusion of an actual child in the image, or the validity of forbidding the transaction proposed; what counts is simply the manifest belief or intent to cause a belief that a true minor is shown in the pornographic depiction referred to.

The tension with existing constitutional law is obvious. Free Speech Coalition reaffirmed that nonobscene virtual pornographic images are protected, because they fail to trigger the concern for child safety that disentitles child pornog*314raphy to First Amendment protection. See id., at 249-251. The case thus held that pictures without real minors (but only simulations, or young-looking adults) may not be the subject of a nonobscenity pornography crime, id., at 246, 251, and it has reasonably been taken to mean that transactions in pornographic pictures featuring children may not be punished without proof of real children, see, e.g., United States v. Salcido, 506 F. 3d 729, 733 (CA9 2007) (per curiam) (“In [Free Speech Coalition], the Supreme Court held that possession of Virtual’ child pornography cannot constitute a criminal offense. ... As a result, the government has the burden of proving beyond a reasonable doubt that the images were of actual children, not computer-generated images”); cf. Free Speech Coalition, supra, at 255 (“The Government raises serious constitutional difficulties by seeking to impose on the defendant the burden of proving his speech is not unlawful”). The Act, however, punishes proposals regarding images when the inclusion of actual children is not established by the prosecution, as well as images that show no real children at all; and this, despite the fact that, under Free Speech Coalition, the first proposed transfer could not be punished without the very proof the Act is meant to dispense with, and the second could not be made criminal at all.

II

What justification can there be for making independent crimes of proposals to engage in transactions that may include protected materials? The Court gives three answers, none of which comes to grips with the difficulty raised by the question. The first, ante, at 303, says it is simply wrong to say that the Act makes it criminal to propose a lawful transaction, since an element of the forbidden proposal must express a belief or inducement to believe that the subject of the proposed transaction shows actual children. But this does not go to the point. The objection is not that the Act criminalizes a proposal for a transaction described as being *315in virtual (that is, protected) child pornography. The point is that some proposals made criminal, because they express a belief that they refer to real child pornography, will relate to extant material that does not, or cannot be, demonstrated to show real children and so may not be prohibited. When a proposal covers existing photographs, the Act does not require that the requisite belief (manifested or encouraged) in the reality of the subjects be a correct belief. Prohibited proposals may relate to transactions in lawful, as well as unlawful, pornography.

Much the same may be said about the Court’s second answer, that a proposal to commit a crime enjoys no speech protection. Ante, at 297. For the reason just given, that answer does not face up to the source of the difficulty: the action actually contemplated in the proposal, the transfer of the particular image, is not criminal if it turns out that an actual child is not shown in the photograph. If Ferber and Free Speech Coalition are good law, the facts sufficient for conviction under the Act do not suffice to show that the image (perhaps merely simulated), and thus a transfer of that image, are outside the bounds of constitutional protection. For this reason, it is not enough just to say that the First Amendment does not protect proposals to commit crimes. For that rule rests on the assumption that the proposal is actually to commit a crime, not to do an act that may turn out to be no crime at all. Why should the general rule of unprotected criminal proposals cover a case like the proposal to transfer what may turn out to be fake child pornography?

The Court’s third answer analogizes the proposal to an attempt to commit a crime, and relies on the rule of criminal law that an attempt is criminal even when some impediment makes it impossible to complete the criminal act (the possible impediment here being the advanced age, say, or simulated character of the child figure). See ante, at 300. Although the actual transfer the speaker has in mind may not turn out to be criminal, the argument goes, the transfer in*316tended by the speaker is criminal, because the speaker believes2 that the contemplated transfer will be of real child pornography, and transfer of real child pornography is criminal. The fact that the circumstances are not as he believes them to be, because the material does not depict actual minors, is no defense to his attempt to engage in an unlawful transaction.

But invoking attempt doctrine to dispense with Free Speech Coalition’s real-child requirement in the circumstances of this case is incoherent with the Act, and it fails to fit the paradigm of factual impossibility or qualify for an extended version of that rule. The incoherence of the Court’s answer with the scheme of the Act appears from § 2252A(b)(l) (2000 ed., Supp. V), which criminalizes attempting or conspiring to violate the Act’s substantive prohibitions, including the pandering provision of § 2252A(a)(3)(B). Treating pandering itself as a species of attempt would thus mean that there is a statutory, inchoate offense of attempting to attempt to commit a substantive child pornography crime. A metaphysician could imagine a system like this, but the *317universe of inchoate crimes is not expandable indefinitely under the actual principles of criminal law, let alone when First Amendment protection is threatened. See 2 W. La-Fave, Substantive Criminal Law § 11.2(a), p. 208 (2d ed. 2003) (“[WJhere a certain crime is actually defined in terms of either doing or attempting a certain crime, then the argument that there is no crime of attempting this attempt is persuasive”).

The more serious failure of the attempt analogy, however, is its unjustifiable extension of the classic factual frustration rule, under which the action specifically intended would be a criminal act if completed. The intending killer who mistakenly grabs the pistol loaded with blanks would have committed homicide if bullets had been in the gun; it was only the impossibility of completing the very intended act of shooting bullets that prevented the completion of the crime. This is not so, however, in the proposed transaction in an identified pornographic image without the showing of a real child; no matter what the parties believe, and no matter how exactly a defendant’s actions conform to his intended course of conduct in completing the transaction he has in mind, if there turns out to be reasonable doubt that a real child was used to make the photos, or none was, there could be, respectively, no conviction and no crime. Thus, in the classic impossibility example, there is attempt liability when the course of conduct intended cannot be completed owing to some fact which the defendant was mistaken about, and which precludes completing the intended physical acts. But on the Court’s reasoning there would be attempt liability even when the contemplated acts had been completed exactly as intended, but no crime had been committed. Why should attempt liability be recognized here (thus making way for “proposal” liability, under the Court’s analogy)?

The Court’s first response is to demur, with its example of the drug dealer who sells something else. Ante, at 300. (A package of baking powder, not powder cocaine, would be an *318example.) No one doubts the dealer may validly be convicted of an attempted drug sale even if he did not know it was baking powder he was selling. Yet selling baking powder is no more criminal than selling virtual child pornography.

This response does not suffice, however, because it overlooks a difference between the lawfulness of selling baking powder and the lawful character of virtual child pornography. Powder sales are lawful but not constitutionally privileged. Any justification within the bounds of rationality would suffice for limiting baking powder transactions, just as it would for regulating the discharge of blanks from a pistol. Virtual pornography, however, has been held to fall within the First Amendment speech privilege, and thus is affirmatively protected, not merely allowed as a matter of course. The question stands: why should a proposal that may turn out to cover privileged expression be subject to standard attempt liability?

The Court’s next response deals with the privileged character of the underlying material. It gives another example of attempt that presumably could be made criminal, in the case of the mistaken spy, who passes national security documents thinking they are classified and secret, when in fact they have been declassified and made subject to public inspection. Ante, at 303-304. Publishing unclassified documents is subject to the First Amendment privilege and can claim a value that fake child pornography cannot. The Court assumes that the document publication may be punished as an attempt to violate state-secret restrictions (and I assume so too); then why not attempt proposals based on a mistaken belief that the underlying material is real child pornography? As the Court looks at it, the deterrent value that justifies prosecuting the mistaken spy (like the mistaken drug dealer and the intending killer) would presumably validate prosecuting those who make proposals about fake child pornography. But it would not, for there are significant dif*319ferences between the cases of security documents and pornography without real children.

Where Government documents, blank cartridges, and baking powder are involved, deterrence can be promoted without compromising any other important policy, which is not true of criminalizing mistaken child pornography proposals. There are three dispositive differences. As for the first, if the law can criminalize proposals for transactions in fake as well as true child pornography as if they were like attempts to sell cocaine that turned out to be baking powder, constitutional law will lose something sufficiently important to have made it into multiple holdings of this Court, and that is the line between child pornography that may be suppressed and fake child pornography that falls within First Amendment protection. No one can seriously assume that after today’s decision the Government will go on prosecuting defendants for selling child pornography (requiring a showing that a real child is pictured, under Free Speech Coalition, 535 U. S., at 249-251); it will prosecute for merely proposing a pornography transaction manifesting or inducing the belief that a photo is real child pornography, free of any need to demonstrate that any extant underlying photo does show a real child. If the Act can be enforced, it will function just as it was meant to do, by merging the whole subject of child pornography into the offense of proposing a transaction, dispensing with the real-child element in the underlying subject. And eliminating the need to prove a real child will be a loss of some consequence. This is so not because there will possibly be less pornography available owing to the greater ease of prosecuting, but simply because there must be a line between what the Government may suppress and what it may not, and a segment of that line will be gone. This Court went to great pains to draw it in Ferber and Free Speech Coalition; it was worth drawing and it is worth respecting now in facing the attempt to end-run that line through the provisions of the Act.

*320The second reason for treating child pornography differently follows from the first. If the deluded drug dealer is held liable for an attempt crime there is no risk of eliminating baking powder from trade in lawful commodities. Likewise, if the mistaken spy is convicted of attempting to disclose classified national security documents there will be no worry that lawful speech will be suppressed as a consequence; any unclassified documents in question can be quoted in the newspaper, other unclassified documents will circulate, and analysts of politics and foreign policy will be able to rely on them. But if the Act can effectively eliminate the real-child requirement when a proposal relates to extant material, a class of protected speech will disappear. True, what will be lost is short on merit, but intrinsic value is not the reason for protecting unpopular expression.

Finally, if the Act stands when applied to identifiable, extant pornographic photographs, then in practical terms Ferber and Free Speech Coalition fall. They are left as empty as if the Court overruled them formally, and when a case as well considered and as recently decided as Free Speech Coalition is put aside (after a mere six years) there ought to be a very good reason. Another pair of First Amendment cases come to mind, compare Minersville School Dist. v. Gobitis, 310 U. S. 586 (1940), with West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943). In Barnette, the Court set out the reason for its abrupt turn in overruling Gobitis after three years, 319 U. S., at 635-642, but here nothing is explained. Attempts with baking powder and unclassified documents can be punished without damage to confidence in precedent; suppressing protected pornography cannot be.

These differences should be dispositive. Eliminating the line between protected and unprotected speech, guaranteeing the suppression of a category of expression previously protected, and reducing recent and carefully considered First Amendment precedents to empty shells are heavy prices, not to be paid without a substantial offset, which is *321missing from this case. Hence, my answer that there is no justification for saving the Act’s attempt to get around our holdings. We should hold that a transaction in what turns out to be fake pornography is better understood, not as an incomplete attempt to commit a crime, but as a completed series of intended acts that simply do not add up to a crime, owing to the privileged character of the material the parties were in fact about to deal in.

The upshot is that there ought to be no absolute rule on the relationship between attempt liability and a frustrating mistake. Not all attempts frustrated by mistake should be punishable, and not all mistaken assumptions that expressive material is unprotected should bar liability for attempts to commit a crime. The legitimacy of attempt liability should turn on its consequences for protected expression and the law that protects it. When, as here, a protected category of expression would inevitably be suppressed and its First Amendment safeguard left pointless, the Government has the burden to justify this damage to free speech.

Ill

Untethering the power to suppress proposals about extant pornography from any assessment of the likely effects the proposals might have has an unsettling significance well beyond the subject of child porriography. For the Court is going against the grain of pervasive First Amendment doctrine that tolerates speech restriction not on mere general tendencies of expression, or the private understandings of speakers or listeners, but only after a critical assessment of practical consequences. Thus, one of the milestones of American political liberty is Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam), which is seen as the culmination of a half century’s development that began with Justice Holmes’s dissent in Abrams v. United States, 250 U. S. 616 (1919). In place of the rule that dominated the First World War sedition and espionage cases, allowing suppression of speech for *322its tendency and the intent behind it, see Schenck v. United States, 249 U. S. 47, 52 (1919), Brandenburg insisted that

“the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” 395 U. S., at 447.

See also G. Stone, Perilous Times: Free Speech in Wartime 522 (2004) (“[Ejxactly fifty years after Schenck, the Supreme Court finally and unambiguously embraced the Holmes-Brandeis version of clear and present danger”).

Brandenburg unmistakably insists that any limit on speech be grounded in a realistic, factual assessment of harm. This is a far cry from the Act before us now, which rests criminal prosecution for proposing transactions in expressive material on nothing more than a speaker’s statement about the material itself, a statement that may disclose no more than his own belief about the subjects represented or his desire to foster belief in another. This should weigh heavily in the overbreadth balance, because “First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.” Free Speech Coalition, 535 U. S., at 253. See also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 579 (1995) (“The very idea that a noncommercial speech restriction be used to produce thoughts and statements acceptable to some groups or, indeed, all people, grates on the First Amendment, for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression. The Speech Clause has no more certain antithesis”).

*323IV

I said that I would not pay the price enacted by the Act without a substantial justification, which I am at a loss to find here. I have to assume that the Court sees some grounding for the Act that I do not, however, and I suppose the holding can only be explained as an uncritical acceptance of a claim made both to Congress and to this Court. In each forum the Government argued that a jury’s appreciation of the mere possibility of simulated or virtual child pornography will prevent convictions for the real thing, by inevitably raising reasonable doubt about whether actual children are shown. The Government voices the fear that skeptical jurors will place traffic in child pornography beyond effective prosecution unless it can find some way to avoid the Ferber limitation, skirt Free Speech Coalition, and allow prosecution whether pornography shows actual children or not.

The claim needs to be taken with a grain of salt. There has never been a time when some such concern could not be raised. Long before the Act was passed, for example, pornographic photos could be taken of models one day into adulthood, and yet there is no indication that prosecution has ever been crippled by the need to prove young-looking models were underage.

Still, if I were convinced there was a real reason for the Government’s fear stemming from computer simulation, I would be willing to reexamine Ferber. Conditions can change, and if today’s technology left no other effective way to stop professional and amateur pornographers from exploiting children there would be a fair claim that some degree of expressive protection had to yield to protect the children.

But the Government does not get a free pass whenever it claims a worthy objective for curtailing speech, and I have further doubts about the need claimed here. Although Congress found that child pornography defendants “almost uni*324versally rais[e]” the defense that the alleged child pornography could be simulated or virtual, §501(10), 117 Stat. 677, neither Congress nor this Court has been given the citation to a single case in which a defendant’s acquittal is reasonably attributable to that defense.3 See Brief for Free Speech Co*325alition et al. as Amici Curiae 21-23; Brief for National Law Center for Children and Families et al. as Amici Curiae 10-13. The Government thus seems to be selling itself short; it appears to be highly successful in convicting child pornographers, the overwhelming majority of whom plead guilty rather than try their luck before a jury with a virtual-child defense.4 And little seems to have changed since the time *326of Free Speech Coalition, when the Court rejected an assertion of the same interest. See 535 U. S., at 254-255 (“[T]he Government says that the possibility of producing images by using computer imaging makes it very difficult for it to prosecute those who produce pornography by using real children. . . . The necessary solution, the argument runs, is to prohibit both kinds of images. The argument, in essence, is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down”); id., at 259 (Thomas, J., concurring in judgment) (“At this time . . . the Government asserts only that defendants raise such defenses, not that they have done so successfully. In fact, the Government points to no case in which a defendant has been acquitted based on a ‘computer-generated images’ defense”).

Without some convincing evidence to the contrary, experience tells us to have faith in the capacity of the jury system, which I would have expected to operate in much the follow*327ing way, if the Act were not on the books. If the Government sought to prosecute proposals about extant images as attempts, it would seek to carry its burden of showing that real children were depicted in the image subject to the proposal simply by introducing the image into evidence; if the figures in the picture looked like real children, the Government would have made its prima facie demonstration on that element.5 The defense might well offer expert testimony to the effect that technology can produce convincing simulations, but if this was the extent of the testimony that came in, the cross-examination would ask whether the witness could say that this particular, seemingly authentic representation was merely simulated. If the witness could say that (or said so on direct), and survived further questioning about the basis for the opinion and its truth, acquittal would have been proper; the defendant would have raised reasonable doubt about whether a child had been victimized (the same standard that would govern if the defendant were on trial for abusing a child personally). But if the defense had no specific evidence that the particular image failed to show actual children, I am skeptical that a jury would have been likely to entertain reasonable doubt that the image showed a real child.

Perhaps I am wrong, but without some demonstration that juries have been rendering exploitation of children unpunishable, there is no excuse for cutting back on the First Amendment and no alternative to finding overbreadth in this Act. I would hold it unconstitutional on the authority of Ferber and Free Speech Coalition.

SIM LAKE, SENIOR UNITED STATES DISTRICT JUDGE

Plaintiff Jane Doe # 4 ("Plaintiff" or "Jane Doe") sued defendants Salesforce.com, Inc. ("Salesforce"); Michael Lacey; James Larkin; John Brunst; Scott Spear; Medalist Holdings, LLC; Leeward Holdings, LLC;1 G6 Hospitality, LLC ("G6"); and NNJP, LLC2 (collectively, "Defendants") in the 157th Judicial District Court of Harris County, Texas (the "State Court"). Salesforce removed the action on May 3, 2019.3 Pending before the court is Jane Doe's Motion to Remand ("Plaintiff's Motion to Remand") (Docket Entry No. 26). For the reasons explained below, Plaintiff's Motion to Remand will be granted.

I. Factual and Procedural Background

Jane Doe claims that Defendants are responsible in varying capacities for the exploitation she experienced as a victim of sex trafficking.4 Jane Doe alleges that she was sexually exploited through ads on a website called "Backpage."5 Traffickers, pimps, and johns use Backpage to communicate *475with one another.6 Jane Doe alleges that the Backpage Defendants collaborated with her sexual traffickers and sought to financially benefit from the trafficking venture by knowingly permitting traffickers to transact business on their website.7 Salesforce licensed customer relationship management ("CRM") software to Backpage.8 Salesforce markets its CRM software as designed to help users find new customers and grow their businesses.9 Jane Doe's claims against Salesforce are based on Salesforce's alleged failure to monitor how Backpage was using its CRM software.10 Salesforce and the Backpage Defendants are diverse from Jane Doe.11

Jane Doe's Petition also asserts claims against the non-diverse Hotel Defendants. Jane Doe alleges that she was sexually assaulted at a Motel 6 owned and operated by the Hotel Defendants.12 Jane Doe alleges that the Hotel Defendants knowingly participated in her trafficking through the operation of their hotel.13 For example, she alleges that the Hotel Defendants failed to properly train their employees, failed to install adequate lighting and security cameras, and knowingly catered to the needs of sex traffickers.14

Jane Doe alleges that Salesforce, the Backpage Defendants, and the Hotel Defendants were part of a single human trafficking venture under Texas law.15 Jane Doe filed this action in the State Court on February 27, 2018.16 Plaintiff amended her Original Petition to add claims against Salesforce on April 3, 2019.17 Salesforce timely removed the action to this court on May 3, 2019, arguing that the court has diversity jurisdiction over this action because the Hotel Defendants were fraudulently misjoined by Plaintiff.18 Plaintiff moved to remand the action on June 2, 2019.19 Salesforce and G6 filed responses on June 24, 2019.20 Plaintiff replied on July 1, 2019.21

*476II. Removal Standard

"A party may remove an action from state court to federal court if the action is one over which the federal court possesses subject matter jurisdiction." Manguno v. Prudential Property and Casualty Insurance Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing 28 U.S. C. § 1441 (a) ). "The party seeking to assert federal jurisdiction, in this case [Salesforce], has the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists." New Orleans & Gulf Coast Railway Co. v. Barrois, 533 F. 3d 321, 327 (5th Cir. 2008). Ambiguities or doubts are to be construed against removal and in favor of remand. Manguno, 276 F.3d at 723.

III. Fraudulent Misjoinder Analysis

Fraudulent misjoinder is a concept developed by the Eleventh Circuit in Tapscott v. MS Dealer Service Corporation, 77 F.3d 1353, 1360 (11th Cir. 1996), abrogated in part on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000). Fraudulent misjoinder is to be applied only in limited circumstances when failure to abide by applicable joinder requirements is "just as fraudulent as the joinder of a resident defendant against whom a plaintiff has no possible cause of action." See Texas Instruments Inc. v. Citigroup Global Markets, Inc., 266 F.R.D. 143, 147 (N.D. Tex. 2010) (citing Tapscott, 77 F.3d at 1360 ). "The Fifth Circuit has not directly applied the fraudulent-misjoinder theory, but it has cited Tapscott with approval and has acknowledged that fraudulent misjoinder of either defendants or plaintiffs is not permissible to circumvent diversity jurisdiction." Centaurus Unity LP v. Lexington Insurance Company, 766 F. Supp. 2d 780, 789 (S.D. Tex. 2011) (citing In re Benjamin Moore & Co., 318 F.3d 626, 630-31 (5th Cir. 2002) ).

Tapscott's fraudulent-misjoinder analysis is two-fold: (1) has one defendant been misjoined with another defendant in violation of the applicable joinder rules;22 and (2) if so, is the misjoinder sufficiently egregious to rise to the level of fraudulent misjoinder.23 Id. Texas Rule of Civil Procedure 40(a) states that claims against multiple defendants may be joined in one action if (1) "there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences"; and (2) at least one "question of law or fact common to all of [the defendants] will arise in the action." Tex R. Civ. P. 40(a).

Salesforce argues that the court has diversity jurisdiction over this action because the non-diverse Hotel Defendants *477were fraudulently misjoined. Jane Doe argues that the Hotel Defendants are properly joined because (1) her claims against all Defendants arise from injuries she sustained as a result of her victimization by a single sex trafficking venture and (2) common questions of law and fact will arise in resolving her claims against Defendants.

The court concludes that Jane Doe's joinder of the Hotel Defendants did not violate Texas's joinder rules. Jane Doe's claims against the Hotel Defendants, Salesforce, and the Backpage Defendants arise from the same transaction or series of transactions -- an alleged sex trafficking venture24 in which traffickers were permitted to use Backpage, which utilized Salesforce's CRM technology, to solicit johns to abuse Jane Doe in hotels owned and operated by the Hotel Defendants. Jane Doe alleges that Defendants are each responsible in different ways for the sexual exploitation she faced as a victim of that venture. Jane Doe pled the same or similar legal claims against Salesforce, the Hotel Defendants, and the Backpage Defendants;25 and it is likely that at least one of those claims will raise common questions of law and fact. Specifically, Jane Doe claims that Defendants' actions "taken separately and/or together," violated Texas Civil Practice and Remedies Code § 98.002, which allows a victim of sex trafficking to hold defendants who "engage[d] in the trafficking" or "intentionally or knowingly benefit[ted] from participating in a venture that traffic[ed]" the victim liable for damages. See Tex. Civ. Prac. & Rem. Code § 98.002. Jane Doe's § 98.002 claims against the Hotel Defendants, the Backpage Defendants, and Salesforce are likely to raise such common questions of fact as whether a single trafficking venture involving all of Defendants existed, the extent of each defendant's knowledge of the venture's existence and awareness of the other defendants' participation in it, and what damages Jane Doe sustained.

Alternatively, even if Texas joinder requirements were not satisfied, Salesforce has failed to persuade the court that Plaintiff's joinder of the Hotel Defendants is so egregious as to be fraudulent. A survey of fraudulent misjoinder cases conducted by the Northern District of Texas recognized three situations in which a misjoinder is potentially so egregious as to be considered "fraudulent:"

(1) two or more lawsuits with little or no party overlap have been combined in the same action (i.e., there are multiple plaintiffs and defendants, but each plaintiff or discrete set of plaintiffs is suing only one defendant or a discrete set of defendants); (2) numerous plaintiffs have sued a common defendant and assert claims that have no shared factual element other than the presence of the common defendant; and (3) a single plaintiff or group of plaintiffs has joined multiple defendants in the same action and is asserting claims against each defendant *478that are both factually and legally unrelated.

See Texas Instruments, 266 F.R.D. at 149. Only the third situation is potentially applicable here. But Jane Doe is not suing unrelated defendants over unrelated events. While the involvement of each defendant in the venture alleged by Jane Doe was different, Defendants are all in some way connected to her sex trafficking. Plaintiffs' joinder of the Hotel Defendants to her claims against Salesforce and the Backpage Defendants therefore does not rise to the level of egregiousness required for a finding of fraudulent misjoinder. The court therefore finds that Jane Doe did not fraudulently misjoin the Hotel Defendants.

IV. Conclusion and Order

For the reasons explained above, the court concludes that Salesforce has failed to carry its burden of proving that the court has subject matter jurisdiction over this action. Accordingly, Jane Doe's Motion to Remand (Docket Entry No. 26) is GRANTED . This action is REMANDED to the 157th Judicial District Court of Harris County, Texas. The Clerk will provide a copy of this Memorandum Opinion and Order of Remand to the District Clerk of Harris County, Texas.

*447Chief Justice Roberts

delivered the opinion of the Court.

A jury held members of the Westboro Baptist Church liable for millions of dollars in damages for picketing near a soldier’s funeral service. The picket signs reflected the church’s view that the United States is overly tolerant of sin and that God kills American soldiers as punishment. The question presented is whether the First Amendment shields the church members from tort liability for their speech in this case.

*448I

A

Fred Phelps founded the Westboro Baptist Church in Topeka, Kansas, in 1955. The church’s congregation believes that God hates and punishes the United States for its tolerance of homosexuality, particularly in America’s military. The church frequently communicates its views by picketing, often at military funerals. In the more than 20 years that the members of Westboro Baptist have publicized their message, they have picketed nearly 600 funerals. Brief for Rutherford Institute as Amicus Curiae 7, n. 14.

Marine Lance Corporal Matthew Snyder was killed in Iraq in the line of duty. Lance Corporal Snyder’s father selected the Catholic church in the Snyders’ hometown of Westminster, Maryland, as the site for his son’s funeral. Local newspapers provided notice of the time and location of the service.

Phelps became aware of Matthew Snyder’s funeral and decided to travel to Maryland with six other Westboro Baptist parishioners (two of his daughters and four of his grandchildren) to picket. On the day of the memorial service, the Westboro congregation members picketed on public land adjacent to public streets near the Maryland State House, the United States Naval Academy, and Matthew Snyder’s funeral. The Westboro picketers carried signs that were largely the same at all three locations. They stated, for instance: “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.”

The church had notified the authorities in advance of its intent to picket at the time of the funeral, and the picketers complied with police instructions in staging their demonstration. The picketing took place within a 10- by 25-foot plot of public land adjacent to a public street, behind a temporary *449fence. App. to Brief for Appellants in No. 08-1026 (CA4), pp. 2282-2285 (hereinafter App.). That plot was approximately 1,000 feet from the church where the funeral was held. Several buildings separated the picket site from the church. Id., at 3758. The. Westboro picketers displayed their signs for about 30 minutes before the funeral began and sang hymns and recited Bible verses. None of the picketers entered church property or went to the cemetery. They did not yell or use profanity, and there was no violence associated with the picketing. Id., at 2168, 2371, 2286, 2293.

The funeral procession passed within 200 to 300 feet of the picket site. Although Snyder testified that he could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event. Id., at 2084-2086.1

B

Snyder filed suit against Phelps, Phelps’s daughters, and the Westboro Baptist Church (collectively Westboro or the *450church) in the United States District Court for the District of Maryland under that court’s diversity jurisdiction. Snyder alleged five state tort law claims: defamation, publicity given to private life, intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. West-boro moved for summary judgment contending, in part, that the church’s speech was insulated from liability by the First Amendment. See 533 F. Supp. 2d 567, 570 (2008).

The District Court awarded Westboro summary judgment on Snyder’s claims for defamation and publicity given to private life, concluding that Snyder could not prove the necessary elements of those torts. Id., at 572-573. A trial was held on the remaining claims. At trial, Snyder described the severity of his emotional injuries. He testified that he is unable to separate the thought of his dead son from his thoughts of Westboro’s picketing, and that he often becomes tearful, angry, and physically ill when he thinks about it. Id., at 588-589. Expert witnesses testified that Snyder’s emotional anguish had resulted in severe depression and had exacerbated pre-existing health conditions.

A jury found for Snyder on the intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy claims, and held Westboro liable for $2.9 million in compensatory damages and $8 million in punitive damages. Westboro filed several post-trial motions, including a motion contending that the jury verdict was grossly excessive and a motion seeking judgment as a matter of law on all claims on First Amendment grounds. The District Court remitted the punitive damages award to $2.1 million, but left the jury verdict otherwise intact. Id., at 597.

In the Court of Appeals, Westboro’s primary argument was that the church was entitled to judgment as a matter of law because the First Amendment fully protected West-boro’s speech. The Court of Appeals agreed. 580 F. 3d 206, 221 (CA4 2009). The court reviewed the picket signs and concluded that Westboro’s statements were entitled to First *451Amendment protection because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric. Id., at 222-224.2

We granted certiorari. 559 U. S. 990 (2010).

II

To succeed on a claim for intentional infliction of emotional distress in Maryland, a plaintiff must demonstrate that the defendant intentionally or recklessly engaged in extreme and outrageous conduct that caused the plaintiff to suffer severe emotional distress. See Harris v. Jones, 281 Md. 560, 565-566, 380 A. 2d 611, 614 (1977). The Free Speech Clause of the First Amendment — “Congress shall make no law . . . abridging the freedom of speech” — can serve as a defense in state tort suits, including suits for intentional infliction of emotional distress. See, e. g., Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 50-51 (1988).3

Whether the First Amendment prohibits holding West-boro liable for its speech in this ease turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. “[SJpeech on ‘matters of public concern’... is ‘at the heart of the First Amendment’s *452protection.’” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 758-759 (1985) (opinion of Powell, J.) (quoting First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 776 (1978)). The First Amendment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). That is because “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U. S. 64, 74-75 (1964). Accordingly, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Connick v. Myers, 461 U. S. 138, 145 (1983) (internal quotation marks omitted).

“ ‘[N]ot all speech is of equal First Amendment importance,’ ” however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous. Hustler, supra, at 56 (quoting Dun & Bradstreet, supra, at 758); see Connick, supra, at 145-147. That is because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest: “[T]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas”; and the “threat of liability” does not pose the risk of “a reaction of self-censorship” on matters of public import. Dun & Bradstreet, supra, at 760 (internal quotation marks omitted).

We noted a short time ago, in considering whether public employee speech addressed a matter of public concern, that “the boundaries of the public concern test are not well defined.” San Diego v. Roe, 543 U. S. 77, 83 (2004) (per curiam). Although that remains true today, we have articulated some guiding principles, principles that accord broad protection to speech to ensure that courts themselves do not become inadvertent censors.

*453Speech deals with matters of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community,” Connick, supra, at 146, or when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public,” San Diego, supra, at 83-84. See Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 492-494 (1975); Time, Inc. v. Hill, 385 U. S. 374, 387-388 (1967). The arguably “inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.” Rankin v. McPherson, 483 U. S. 378, 387 (1987).

Our opinion in Dun & Bradstreet, on the other hand, provides an example of speech of only private concern. In that case we held, as a general matter, that information about a particular individual’s credit report “concerns no public issue.” 472 U. S., at 762. The content of the report, we explained, “was speech solely in the individual interest of the speaker and its specific business audience.” Ibid. That was confirmed by the fact that the particular report was sent to only five subscribers to the reporting service, who were bound not to disseminate it further. Ibid. To cite another example, we concluded in San Diego v. Roe that, in the context of a government employer regulating the speech of its employees, videos of an employee engaging in sexually explicit acts did not address a public concern; the videos “did nothing to inform the public about any aspect of the [employing agency’s] functioning or operation.” 543 U. S., at 84.

Deciding whether speech is of public or private concern requires us to examine the “ 'content, form, and context’ ” of that speech, '"as revealed by the whole record.’” Dun & Bradstreet, supra, at 761 (quoting Connick, supra, at 147-148). As in other First Amendment cases, the court is obligated “to 'make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’” Bose Corp. v. Consumers Union of United States, *454Inc., 466 U. S. 485, 499 (1984) (quoting New York Times, supra, at 284-286). In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.

The “content” of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of “purely private concern.” Dun & Bradstreet, supra, at 759. The placards read “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for lEDs,” “Fag Troops,” “Semper Fi Fags,” “God Hates Fags,” “Maryland Taliban,” “Fags Doom Nations,” “Not Blessed Just Cursed,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “You’re Going to Hell,” and “God Hates You.” App. 3781-3787. While these messages may fall short of refined social or political commentary, the issues they highlight — the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy — are matters of public import. The signs certainly convey Westboro’s position on those issues, in a manner designed, unlike the private speech in Dun & Bradstreet, to reach as broad a public audience as possible. And even if a few of the signs — such as “You’re Going to Hell” and “God Hates You” — were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues.

Apart from the content of Westboro’s signs, Snyder contends that the “context” of the speech — its connection with his son’s funeral — makes the speech a matter of private rather than public concern. The fact that Westboro spoke in connection with a funeral, however, cannot by itself transform the nature of Westboro’s speech. Westboro’s signs, displayed on public land next to a public street, reflect the fact that the church finds much to condemn in modern *455society. Its speech is “fairly characterized as constituting speech on a matter of public concern,” Connick, 461 U. S., at 146, and the funeral setting does not alter that conclusion.

Snyder argues that the church members in fact mounted a personal attack on Snyder and his family, and then attempted to “immunize their conduct by claiming that they were actually protesting the United States’ tolerance of homosexuality or the supposed evils of the Catholic Church.” Reply Brief for Petitioner 10. We are not concerned in this case that Westboro’s speech on public matters was in any way contrived to insulate speech on a private matter from liability. Westboro had been actively engaged in speaking on the subjects addressed in its picketing long before it became aware of Matthew Snyder, and there can be no serious claim that Westboro’s picketing did not represent its “honestly believed” views on public issues. Garrison, 379 U. S., at 73. There was no pre-existing relationship or conflict between Westboro and Snyder that might suggest Westboro’s speech on public matters was intended to mask an attack on Snyder over a private matter. Contrast Connick, 461 U. S., at 153 (finding public employee speech a matter of private concern when it was “no coincidence that [the speech] followed upon the heels of [a] transfer notice” affecting the employee).

Snyder goes on to argue that Westboro’s speech should be afforded less than full First Amendment protection “not only because of the words” but also because the church members exploited the funeral “as a platform to bring their message to a broader audience.” Brief for Petitioner 44, 40. There is no doubt that Westboro chose to stage its picketing at the Naval Academy, the Maryland State House, and Matthew Snyder’s funeral to increase publicity for its views and because of the relation between those sites and its views — in the case of the military funeral, because Westboro believes that God is killing American soldiers as punishment for the Nation’s sinful policies.

*456Westboro’s choice to convey its views in conjunction with Matthew Snyder’s funeral made the expression of those views particularly hurtful to many, especially to Matthew’s father. The record makes clear that the applicable legal term — “emotional distress” — fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief. But Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street. Such space occupies a “special position in terms of First Amendment protection.” United States v. Grace, 461 U. S. 171, 180 (1983), “[W]e have repeatedly referred to public streets as the archetype of a traditional public forum,” noting that “ '[t]ime out of mind’ public streets and sidewalks have been used for public assembly and debate.” Frisby v. Schultz, 487 U. S. 474, 480 (1988).4

That said, “[ejven protected speech is not equally permissible in all places and at all times.” Id., at 479 (quoting Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 799 (1985)). Westboro’s choice of where and when to conduct its picketing is not beyond the Government’s regulatory reach — it is “subject to reasonable time, place, or manner restrictions” that are consistent with the standards announced in this Court’s precedents. Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984). Maryland now has a law imposing restrictions on funeral picketing, Md. Crim. Law Code Ann. § 10-205 (Lexis Supp. 2010), as do 43 other States and the Federal Government. See Brief for American Legion as Amicus Curiae 18-19, n. 2 *457(listing statutes). To the extent these laws are content neutral, they raise very different questions from the tort verdict at issue in this case. Maryland’s law, however, was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional.5

We have identified a few limited situations where the location of targeted picketing can be regulated under provisions that the Court has determined to be content neutral. In Frisby, for example, we upheld a ban on such picketing “before or about” a particular residence, 487 U. S., at 477. In Madsen v. Women’s Health Center, Inc., we approved an injunction requiring a buffer zone between protesters and an abortion clinic entrance. 512 U. S. 753, 768 (1994). The facts here are obviously quite different, both with respect to the activity being regulated and the means of restricting those activities.

Simply put, the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence.

The record confirms that any distress occasioned by West-boro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself. A group of parishioners standing at the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability. It was what Westboro said that exposed it to tort damages.

*458Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government-may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection ... is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).

The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.” “Out-rageousness,” however, is a highly malleable standard with “an inherent subjeetiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler, 485 U. S., at 55 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of . . . Vehement, caustic, and sometimes unpleas-an[t]’” expression. Bose Corp., 466 U. S., at 510 (quoting New York Times, 376 U. S., at 270). Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U. S. 312, 322 (1988) (some internal quotation marks omitted). What Westboro said, in the whole context of how and where it chose to say it, is entitled to “special protection” under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.

*459For all these reasons, the jury verdict imposing tort liability on Westboro for intentional infliction of emotional distress must be set aside.

m

The jury also found Westboro liable for the state law torts of intrusion upon seclusion and civil conspiracy. The Court of Appeals did not examine these torts independently of the intentional infliction of emotional distress tort. Instead, the Court of Appeals reversed the District Court wholesale, holding that the judgment wrongly “attache[d] tort liability to constitutionally protected speech.” 580 F. 3d, at 226.

Snyder argues that even assuming Westboro’s speech is entitled to First Amendment protection generally, the church is not immunized from liability for intrusion upon seclusion because Snyder was a member of a captive audience at his son’s funeral. Brief for Petitioner 45-46. We do not agree. In most circumstances, “the Constitution does not permit the government to decide which types of-otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather, . . . the burden normally falls upon the viewer to avoid further bombardment of [his] sensibilities simply by averting [his] eyes.” Erznoznik v. Jacksonville, 422 U. S. 205, 210-211 (1975) (internal quotation marks omitted). As a result, “[t]he ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is . . . dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.” Cohen v. California, 403 U. S. 15, 21 (1971).

As a general matter, we have applied the captive audience doctrine only sparingly to protect unwilling listeners from protected speech. For example, we have upheld a statute allowing a homeowner to restrict the delivery of offensive mail to his home, see Rowan v. Post Office Dept., 397 U. S. 728, 736-738 (1970), and an ordinance prohibiting picketing *460“before or about” any individual’s residence, Frisby, 487 U. S., at 477, 484-485.

Here, Westboro stayed well away from the memorial service. Snyder could see no more than the tops of the signs when driving to the funeral. And there is no indication that the picketing in any way interfered with the funeral service itself. We decline to expand the captive audience doctrine to the circumstances presented here.

Because we find that the First Amendment bars Snyder from recovery for intentional infliction of emotional distress or intrusion upon seclusion — the alleged unlawful activity Westboro conspired to accomplish — we must likewise hold that Snyder cannot recover for civil conspiracy based on those torts.

IV

Our holding today is narrow. We are required in First Amendment cases to carefully review the record, and the reach of our opinion here is limited by the particular facts before us. As we have noted, “the sensitivity and significance of the interests presented in clashes between First Amendment and [state law] rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.” Florida Star v. B. J. F., 491 U. S. 524, 533 (1989).

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here— *461inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

The judgment of the United States Court of Appeals for the Fourth Circuit is affirmed.

It is so ordered.

Justice Breyer,

concurring.

I agree with the Court and join its opinion. That opinion restricts its analysis here to the matter raised in the petition for certiorari, namely, Westboro’s picketing activity. The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings. The Court holds that the First Amendment protects the picketing that occurred here, primarily because the picketing addressed matters of “public concern.”

While I agree with the Court's conclusion that the picketing addressed matters of public concern, I do not believe that our First Amendment analysis can stop at that point. A State can sometimes regulate picketing, even picketing on matters of public concern. See Frisby v. Schultz, 487 U. S. 474 (1988). Moreover, suppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A's use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected. See Chaplinsky v. New Hampshire, 315 U. S. 568 (1942) (“fighting words”).

The dissent recognizes that the means used here consist of speech. But it points out that the speech, like an assault, seriously harmed a private individual. Indeed, the state *462tort of “intentional infliction of emotional distress” forbids only conduct that produces distress “so severe that no reasonable man could be expected to endure it,” and which itself is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Post, at 464 (opinion of Alito, J.) (quoting Harris v. Jones, 281 Md. 560, 567, 571, 380 A. 2d 611, 614, 616 (1977); internal quotation marks omitted). The dissent requires us to ask whether our holding unreasonably limits liability for intentional infliction of emotional distress — to the point where A (in order to draw attention to his views on a public matter) might launch a verbal assault upon B, a private person, publicly revealing the most intimate details of B’s private life, while knowing that the revelation will cause B severe emotional harm. Does our decision leave the State powerless to protect the individual against invasions of, e. g., personal privacy, even in the most horrendous of sueh circumstances?

As I understand the Court’s opinion, it does not hold or imply that the State is always powerless to provide private individuals with necessary protection. Rather, the Court has reviewed the underlying facts in detail, as will sometimes prove necessary where First Amendment values and state-protected (say, privacy-related) interests seriously conflict. Cf. Florida Star v. B. J. F., 491 U. S. 524, 533 (1989); Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 499 (1984). That review makes clear that West-boro’s means of communicating its views consisted of picketing in a place where picketing was lawful and in compliance with all police directions. The picketing could not be seen or heard from the funeral ceremony itself. And Snyder testified that he saw no more than the tops of the picketers’ signs as he drove to the funeral. To uphold the application of state law in these circumstances would punish Westboro for seeking to communicate its views on matters of public *463concern without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm. Consequently, the First Amendment protects Westboro. As I read the Court’s opinion, it holds no more.

Justice Alito,

dissenting.

Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.

Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived Mm of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury.1 The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.

I

Respondents and other members of their church have strong opinions on certain moral, religious, and political issues, and the First Amendment ensures that they have almost limitless opportunities to express their views. They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions; they may speak to individuals and groups in public forums and in any private venue that *464wishes to accommodate them; they may picket peacefully in countless locations; they may appear on television and speak on the radio; they may post messages on the Internet and send out e-mails. And they may express their views in terms that are “uninhibited,” “vehement,” and “caustic.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964).

It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate. To protect against such injury, “most if not all jurisdictions” permit recovery in tort for the intentional infliction of emotional distress (or IIED). Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 53 (1988).

This is a very narrow tort with requirements that “are rigorous, and difficult to satisfy.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 12, p. 61 (5th ed. 1984). To recover, a plaintiff must show that the conduct at issue caused harm that was truly severe. See Figueiredo-Torres v. Nickel, 321 Md. 642, 653, 584 A. 2d 69, 75 (1991) (“[RJecovery will be meted out sparingly, its balm reserved for those wounds that are truly severe and incapable of healing themselves” (internal quotation marks omitted)); Harris v. Jones, 281 Md. 560, 571, 380 A. 2d 611, 616 (1977) (the distress must be “ ‘so severe that no reasonable man could be expected to endure it’ ” (quoting Restatement (Second) of Torts § 46, Comment j (1963-1964))).

A plaintiff must also establish that the defendant’s conduct was “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Harris, supra, at 567, 380 A. 2d, at 614 (quoting Restatement (Second) of Torts § 46, Comment d).

Although the elements of the IIED tort are difficult to meet, respondents long ago abandoned any effort to show *465that those tough standards were not satisfied here. On appeal, they chose not to contest the sufficiency of the evidence. See 580 F. 3d 206, 216 (CA4 2009). They did not dispute that Mr. Snyder suffered “'wounds that are truly severe and incapable of healing themselves.’ ” Figueiredo-Torres, supra, at 653, 584 A. 2d, at 75. Nor did they dispute that their speech was “'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” Harris, supra, at 567, 380 A. 2d, at 614. Instead, they maintained that the First Amendment gave them a license to engage in such conduct. They are wrong.

II

It is well established that a claim for the intentional infliction of emotional distress can be satisfied by speech. Indeed, what has been described as “[t]he leading case” recognizing this tort involved speech. Prosser and Keeton, supra, §12, at 60 (citing Wilkinson v. Downton, [1897] 2 Q. B. 57); see also Restatement (Second) of Torts § 46, Illustration 1. And although this Court has not decided the question, I think it is clear that the First Amendment does not entirely preclude liability for the intentional infliction of emotional distress by means of speech.

This Court has recognized that words may “by their very utterance inflict injury” and that the First Amendment does not shield utterances that form “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942); see also Cantwell v. Connecticut, 310 U. S. 296, 310 (1940) (“[P]ersonal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution”). When grave injury is intentionally inflicted by *466means of an attack like the one at issue here, the First Amendment should not interfere with recovery.

Ill

In this case, respondents brutally attacked Matthew Snyder, and this attack, which was almost certain to inflict injury, was central to respondents’ well-practiced strategy for attracting public attention.

On the morning of Matthew Snyder’s funeral, respondents could have chosen to stage their protest at countless locations. They could have picketed the United States Capitol, the White House, the Supreme Court, the Pentagon, or any of the more than 5,600 military recruiting stations in this country. They could have returned to the Maryland State House or the United States Naval Academy, where they had been the day before. They could have selected any public road where pedestrians are allowed. (There are more than 4,000,000 miles of public roads in the United States.2) They could have staged their protest in a public park. (There are more than 20,000 public parks in this country.3) They could have chosen any Catholic church where no funeral was taking place. (There are nearly 19,000 Catholic churches in the United States.4) But of course, a small group picketing at any of these locations would have probably gone unnoticed.

The Westboro Baptist Church, however, has devised a strategy that remedies this problem. As the Court notes, church members have protested at nearly 600 military funerals. Ante, at 448. They have also picketed the funerals of *467police officers,5 firefighters,6 and the victims of natural disasters,7 accidents,8 and shocking crimes.9 And in advance of these protests, they issue press releases to ensure that their protests will attract public attention.10

This strategy works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief. The more outrageous the funeral protest, the more publicity the Westboro Baptist Church is able to obtain. Thus, when the church recently announced its intention to picket the funeral of a 9-year-old girl killed in the shooting spree in Tucson — proclaiming that she was “better off dead”11 — their announcement was national news,12 and the church was able to obtain *468free air time on the radio in exchange for canceling its protest.13 Similarly, in 2006, the church got air time on a talk radio show in exchange for canceling its threatened protest at the funeral of five Amish girls killed by a crazed gunman.14

In this case, respondents implemented the Westboro Baptist Church’s publicity-seeking strategy. Their press release stated that they were going “to picket the funeral of Lance Cpl. Matthew A. Snyder” because “God Almighty killed Lance Cpl. Snyder. He died in shame, not honor — for a fag nation cursed by God .... Now in Hell — sine die.” Supp. App. in No. 08-1026 (CA4), p. 158a. This announcement guaranteed that Matthew’s funeral would be transformed into a raucous media event and began the wounding process. It is well known that anticipation may heighten the effect of a painful event.

On the day of the funeral, respondents, true to their word, displayed placards that conveyed the message promised in their press release. Signs stating “God Hates You” and “Thank God for Dead Soldiers” reiterated the message that God had caused Matthew’s death in retribution for his sins. App. to Brief for Appellants in No. 08-1026 (CA4), pp. 3787, 3788. Others, stating “You’re Going to Hell” and “Not Blessed Just Cursed,” conveyed the message that Matthew was “in Hell — sine die.” Id., at 3783.

Even if those who attended the funeral were not alerted in advance about respondents’ intentions, the meaning of these signs would not have been missed. Since respondents chose to stage their protest at Matthew Snyder’s funeral and not *469at any of the other countless available venues, a reasonable person would have assumed that there was a connection between the messages on the placards and the deceased. Moreover, since a church funeral is an event that naturally brings to mind thoughts about the afterlife, some of respondents’ signs — e.g., “God Hates You,” “Not Blessed Just Cursed,” and “You’re Going to Hell” — would have likely been interpreted as referring to God’s judgment of the deceased.

Other signs would most naturally have been understood as suggesting — falsely—that Matthew was gay. Homosexuality was the theme of many of the signs. There were signs reading “God Hates Fags,” “Semper Fi Fags,” “Fags Doom Nations,” and “Fag Troops.” Id., at 3781-3787. Another placard depicted two men engaging in anal intercourse. A reasonable bystander seeing those signs would have likely concluded that they were meant to suggest that the deceased was a homosexual.

After the funeral, the Westboro picketers reaffirmed the meaning of their protest. They posted an online account entitled “The Burden of Marine Lance Cpl. Matthew A. Snyder. The Visit of Westboro Baptist Church to Help the Inhabitants of Maryland Connect the Dots!” Id., at 3788.15 Belying any suggestion that they had simply made general comments about homosexuality, the Catholic Church, and the *470United States military, the “epic” addressed the Snyder family directly:

“God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew. He was an arrow in your quiver! In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD — PERIOD! You did JUST THE OPPOSITE — you raised him for the devil.

“Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery. They taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity. Every dime they gave the Roman Catholic monster they condemned their own souls. They also, in supporting satanie Catholicism, taught Matthew to be an idolater.

“Then after all that they sent him to fight for the United States of Sodom, a filthy country that is in lock step with his evil, wicked, and sinful manner of life, putting him in the cross hairs of a God that is so mad He has smoke coming from his nostrils and fire from his mouth! How dumb was that?” Id., at 3791.

In light of this evidence, it is abundantly clear that respondents, going far beyond commentary on matters of public concern, specifically attacked Matthew Snyder because (1) he was a Catholic and (2) he was a member of the United States military. Both Matthew and petitioner were private figures,16 and this attack was not speech on a matter of public concern. While commentary on the Catholic Church or the United States military constitutes speech on matters of public concern, speech regarding Matthew Snyder's purely private conduct does not.

*471Justice Breyer provides an apt analogy to a case in which the First Amendment would permit recovery in tort for a verbal attack:

“[S]uppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected.” Ante, at 461 (concurring opinion).

This captures what respondents did in this case. Indeed, this is the strategy that they have routinely employed — and that they will now continue to employ — inflicting severe and lasting emotional injury on an ever growing list of innocent victims.

IV

The Court concludes that respondents’ speech was protected by the First Amendment for essentially three reasons, but none is sound.

First — and most important — the Court finds that “the overall thrust and dominant theme of [their] demonstration spoke to” broad public issues. Ante, at 454. As I have attempted to show, this portrayal is quite inaccurate; respondents’ attack on Matthew was of central importance. But in any event, I fail to see why actionable speech should be immunized simply because it is interspersed with speech that is protected. The First Amendment allows recovery for defamatory statements that are interspersed with nondefama-tory statements on matters of public concern, and there is no good reason why respondents’ attack on Matthew Snyder and his family should be treated differently.

Second, the Court suggests that respondents’ personal attack on Matthew Snyder is entitled to First Amendment protection because it was not motivated by a private grudge,

*472see ante, at 455, but I see no basis for the strange distinction that the Court appears to draw. Respondents’ motivation— "to increase publicity for its views,” ibid. — did not transform their statements attacking the character of a private figure into statements that made a contribution to debate on matters of public concern. Nor did their publicity-seeking motivation soften the sting of their attack. And as far as culpability is concerned, one might well think that wounding statements uttered in the heat of a private feud are less, not more, blameworthy than similar statements made as part of a cold and calculated strategy to slash a stranger as a means of attracting public attention.

Third, the Court finds it significant that respondents’ protest occurred on a public street, but this fact alone should not be enough to preclude IIED liability. To be sure, statements made on a public street may be less likely to satisfy the elements of the IIED tort than statements made on private property, but there is no reason why a public street in close proximity to the scene of a funeral should be regarded as a free-fire zone in which otherwise actionable verbal attacks are shielded from liability. If the First Amendment permits the States to protect their residents from the harm inflicted by such attacks — and the Court does not hold otherwise — then the location of the tort should not be dispositive. A physical assault may occur without trespassing; it is no defense that the perpetrator had "the right to be where [he was].” See ante, at 457. And the same should be true with respect to unprotected speech. Neither classic “fighting words” nor defamatory statements are immunized when they occur in a public place, and there is no good reason to treat a verbal assault based on the conduct or character of a private figure like Matthew Snyder any differently.

One final comment about the opinion of the Court is in order. The Court suggests that the wounds inflicted by vicious verbal assaults at funerals will be prevented or at least mitigated in the future by new laws that restrict picketing *473within a specified distance of a funeral. See ante, at 456-457. It is apparent, however, that the enactment of these laws is no substitute for the protection provided by the established IIED tort; according to the Court, the verbal attacks that severely wounded petitioner in this case complied with the new Maryland law regulating funeral picketing. See ante, at 457, n. 5. And there is absolutely nothing to suggest that Congress and the state legislatures, in enacting these laws, intended them to displace the protection provided by the well-established IIED tort.

The real significance of these new laws is not that they obviate the need for IIED protection. Rather, their enactment dramatically illustrates the fundamental point that funerals are unique events at which special protection against emotional assaults is in order. At funerals, the emotional well-being of bereaved relatives is particularly vulnerable. See National Archives and Records Admin. v. Favish, 541 U. S. 157, 168 (2004). Exploitation of a funeral for the purpose of attracting public attention “intrud[es] upon their ... grief,” ibid., and may permanently stain their memories of the final moments before a loved one is laid to rest. Allowing family members to have a few hours of peace without harassment does not undermine public debate. I would therefore hold that, in this setting, the First Amendment permits a private figure to recover for the intentional infliction of emotional distress caused by speech on a matter of private concern.

V

In reversing the District Court judgment in favor of petitioner, the Court of Appeals relied on several grounds not discussed in the opinion of this Court or in the separate opinion supporting affirmance. I now turn briefly to those issues.

First, the Court of Appeals held that the District Court erred by allowing the jury to decide whether respondents’ speech was “'directed specifically at the Snyder family.’” *474580 F. 3d, at 221. It is not clear whether the Court of Appeals thought that this was a question for the trial judge alone or a question on which the judge had to make a preliminary ruling before sending it to the jury. In either event, however, the submission of this question to the jury was not reversible error because, as explained above, it is clear that respondents’ statements targeted the Snyders.

Second, the Court of Appeals held that the trial judge went astray in allowing the jury to decide whether respondents’ speech was so “'offensive and shocking as to not be entitled to First Amendment protection.’” Ibid. This instruction also did respondents no harm. Because their speech did not relate to a matter of public concern, it was not protected from liability by the First Amendment, and the only question for the jury was whether the elements of the IIED tort were met.

Third, the Court of Appeals appears to have concluded that the First Amendment does not permit an IIED plaintiff to recover for speech that cannot reasonably be interpreted as stating actual facts about an individual. See id., at 222. In reaching this conclusion, the Court of Appeals relied on two of our cases — Milkovich v. Lorain Journal Co., 497 U. S. 1 (1990), and Hustler, 485 U. S. 46 — but neither supports the broad proposition that the Court of Appeals adopted.

Milkovich was a defamation case, and falsity is an element of defamation. Nothing in Milkovich even hints that the First Amendment requires that this defamation element be engrafted onto the IIED tort.

Hustler did involve an IIED claim, but the plaintiff there was a public figure, and the Court did not suggest that its holding would also apply in a case involving a private figure. Nor did the Court suggest that its holding applied across the board to all types of IIED claims. Instead, the holding was limited to “publications such as the one here at issue,” namely, a caricature in a magazine. 485 U. S., at 56. Unless a caricature of a public figure can reasonably be interpreted *475as stating facts that may be proved to be wrong, the caricature does not have the same potential to wound as a personal verbal assault on a vulnerable private figure.

Because I cannot agree either with the holding of this Court or the other grounds oh which the Court of Appeals relied, I would reverse the decision below and remand for further proceedings.17

VI

Respondents’ outrageous conduct caused petitioner great injury, and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered.

In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner. I therefore respectfully dissent.