SRI Int L Matsushita Electric Corp. of America

CASE EXCERPTS

SRI Int’l Matsushita Electric Corp. of America 775 F.2d 1107 (FED. Cir. 1985) Markey, C.J. Despite the clear directive of the Seventh Amendment--that "the right to jury trial shall be preserved " --one federal appellate court and three federal district courts have remanded or struck jury demands in "complex" civil cases, relying on a judge-created "complexity exception". Proponents of a "complexity exception" say legally or factually complex matters, e.g., those appearing in some antitrust, securities, or patent cases, are "too complex" for juries to comprehend, and those cases should therefore be tried by a single judge. A second line of argument for a "complexity exception" is that trying a complex case before an "incompetent" jury denies the due process protection of the Fifth and Fourteenth Amendments. Proponents of that view argue that a jury "incapable" of understanding the evidence, or the legal rules to be applied, provides no "constitutional" safeguard against an "erroneous" result. The argument confuses the route with the destination, for "due process" is just that, a process. It is an important and constitutionally required process. It is not a result. One commentator, apparently recognizing that not all judges are inevitably more competent than all juries, has suggested that the "complexity exception" should encompass judges. Empirical support is simply lacking for the assumption that the process provided in a properly conducted jury trial is necessarily less "due" than that provided in a bench trial. However some may view what they see as a "better system", and however one may weigh its effect on the due process clauses of the Fifth and Fourteenth Amendments, judges are nowhere authorized to exercise their personal predilection by revising or repealing the Seventh Amendment. The arguments supporting denial of a jury demand in complex civil cases are clearly submissible to the Congress or to the States in support of a proposal under Article V of the Constitution; they are not appropriately submissible to judges sworn to uphold that Constitution. To permit a judicial interpretation of a constitutional provision that destroys another constitutional provision is to place at risk the entire Constitution. The call for injection of "expertise" into our jurisprudence can be as alluring, and as fatal, as the sirens' song. Exhibiting no desire to convert our jurisprudence into "juriscience", Congress has repeatedly rejected calls for "specialized" courts limited to decision making solely on technological considerations and has cautiously limited reliance on "expertise" to its employment by administrative agencies. The Ninth Circuit, in which sits the district court in this case, has repeatedly rejected calls for a "complexity exception", stating that "we do not believe any case is so overwhelmingly complex that it is beyond the abilities of a jury." The Seventh and Fifth Circuits have reserved judgment on the constitutionality of a complexity exception and have declined to apply it. No circuit has affirmed an actual jury denial on the ground of complexity. We discern no authority and no compelling need to apply in patent infringement suits for damages a "complexity" exception denying litigants their constitutional right under the Seventh Amendment. There is no peculiar cachet which removes "technical" subject matter from the competency of a jury when competent counsel have carefully marshalled and presented the evidence of that subject matter and a competent judge has supplied carefully prepared instructions. In the case at bar, the district court indicated that this court had distinguished between fact issues "appropriate" for a jury and those "appropriate" for a judge. There is, however, no such distinction in the Seventh Amendment. Fact issues are no less such because they are "complex" or "ultimate". The district court, in announcing its decision to deny a jury trial and employ a bench trial, said "these questions" could be resolved in that way "more economically and expeditiously." But whether judicial economy and expedition might be served is irrelevant. The Seventh Amendment contains no "economy" exception.

Ford Motor Co. V. Stubblefield

319 S.E.2d 470 (Ga. Ct. App. 1984) Sognier, J. This wrongful death action arising out of an automobile collision was brought by William O. Stubblefield, individually and as administrator of the estate of his minor child, and by Linda P. Standley, individually and as natural mother of the deceased minor child. Suit was filed originally against multiple defendants, but during trial plaintiff-appellees voluntarily dismissed their complaint against all defendants except appellant Ford Motor Company. The sole theory of liability against Ford was its alleged negligence in the design of the automobile in which 15-year-old Terri Stubblefield was a passenger when she was fatally injured. William O. Stubblefield prayed for recovery in his individual capacity for medical, hospital and funeral expenses, and in his capacity as administrator sought damages for personal injury, pain and suffering and an award of punitive damages and expenses of litigation. Linda P. Standley sought damages for the wrongful death of her daughter. The death resulted from injuries sustained in a collision occurring July 10, 1977, when the 1975 Ford Mustang II in which Terri Stubblefield was riding was struck from behind while stopped in traffic by another car traveling at an estimated speed of 56 to 65 m.p.h. A "ball of fire" engulfed the rear of the Mustang II at impact and Terri, who was sitting in the back seat, was severely burned. The question presented to the jury was whether Ford, through the negligent design and placement of its fuel system in the 1975 Mustang II, exposed the occupants of this automobile to unreasonable risk of injury and, insofar as punitive damages were concerned, whether Ford's management acted with that entire want of care which would give rise to conscious indifference to the consequences in marketing the automobile. The jury found in favor of appellees on all counts. Ford appeals the judgment entered on the verdict, enumerating as error the failure of the trial court to direct a verdict in its favor on the issues of negligence and causation, liability for punitive damages, and expenses of litigation including attorney fees; and in refusing to grant a motion for judgment notwithstanding the verdict, or in the alternative a new trial, on these issues. Appellees presented copious documentary exhibits, internal memoranda and confidential corporate reports reflecting the course of Ford's research and development of the Mustang II, which were explained and interpreted to the jury by two expert witnesses. The negligence issue in this case turned on an evaluation of mass production engineering design and policy objectives. Ford urges that the award of $8 million as punitive damages to William O. Stubblefield as administrator of the estate of Terri J. Stubblefield was so shockingly excessive and so resulted from the bias and prejudice of the jury that the trial court abused its discretion by denying Ford's motion for a new trial on this ground. Ford argues that no appellate court in any jurisdiction has ever approved an award of this magnitude in any personal injury suit arising out of a manufacturer's negligence. The evidence here was sufficient to authorize the jury to find that the sum of $8 million was an amount necessary to deter Ford from repeating its conduct; that is, its conscious decisions to defer implementation of safety devices in order to protect its profits. One internal memo estimated that "the total financial effect of the Fuel System Integrity program [would] reduce Company profits over the 1973-1976 cycle by $(109) million," and recommended that Ford "defer adoption of the [safety measures] on all affected cars until 1976 to realize a design cost savings of $20.9 million compared to 1974." "Unless a jury verdict is palpably unreasonable or excessive, or the product of bias, it will not be disturbed on appeal”. "In discussing when a verdict may be found so excessive as to infer undue bias or prejudice, courts have said such a verdict must `carry its death warrant upon its face,' be `monstrous indeed,' `must shock,' or `appear exorbitant.'” It is also true in considering excessiveness that an appellate court “. . . does not have the broad discretionary powers invested in trial courts to set aside verdicts, and where the trial court before whom the witnesses appeared had the opportunity of personally observing the witnesses . . . has approved the verdict, this court is without power to interfere unless it is clear from the record that 3 the verdict of the jury was prejudiced or biased or was procured by corrupt means.” The excessiveness of the verdict was raised below on motion for new trial and overruled by the judge who had presided over the judge who had presided over the trial. Considering all of the circumstances in this case, we do not find the trial court erred in declining to find the verdict excessive."

Gruter v. Bollinger

539 U.S. 306 (2003)

O’Connor, J.

This case requires us to decide whether the use of race as a factor in student admissions by the University of Michigan Law School (Law School) is unlawful.

The Law School ranks among the Nation's top law schools. It receives more than 3,500 applications each year for a class of around 350 students. Seeking to "admit a group of students who individually and collectively are among the most capable," the Law School looks for individuals with "substantial promise for success in law school" and "a strong likelihood of succeeding in the practice of law and contributing in diverse ways to the well-being of others." More broadly, the Law School seeks "a mix of students with varying backgrounds and experiences who will respect and learn from each other." In 1992, the dean of the Law School charged a faculty committee with crafting a written admissions policy to implement these goals. The hallmark of that policy is its focus on academic ability coupled with a flexible assessment of applicants' talents, experiences, and potential "to contribute to the learning of those around them." The policy requires admissions officials to evaluate each applicant based on all the information available in the file, including a personal statement, letters of recommendation, and an essay describing the ways in which the applicant will contribute to the life and diversity of the Law School. In reviewing an applicant's file, admissions officials must consider the applicant's undergraduate grade point average (GPA) and Law School Admission Test (LSAT) score because they are important (if imperfect) predictors of academic success in law school. The policy makes clear, however, that even the highest possible score does not guarantee admission to the Law School. Nor does a low score automatically disqualify an applicant. Rather, the policy requires admissions officials to look beyond grades and test scores to other criteria that are important to the Law School's educational objectives. So-called" 'soft' variables" such as "the enthusiasm of recommenders, the quality of the undergraduate institution, the quality of the applicant's essay, and the areas and difficulty of undergraduate course selection" are all brought to bear in assessing an "applicant's likely contributions to the intellectual and social life of the institution. The policy does not restrict the types of diversity contributions eligible for "substantial weight" in the admissions process, but instead recognizes "many possible bases for diversity admissions." The policy does, however, reaffirm the Law School's longstanding commitment to "one particular type of diversity," that is, "racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers. Petitioner Barbara Grutter is a white Michigan resident who applied to the Law School in 1996 with a 3.8 GPA and 161 LSAT score. The Law School initially placed petitioner on a waiting list, but subsequently rejected her application. In December 1997, petitioner filed suit in the United States District Court for the Eastern District of Michigan against the Law School. Petitioner alleged that respondents discriminated against her on the basis of race in violation of the Fourteenth Amendment.Petitioner requested compensatory and punitive damages, an order requiring the Law School to offer her admission, and an injunction prohibiting the Law School from continuing to discriminate on the basis of race. The District Court concluded that the Law School's use of race as a factor in admissions decisions was unlawful. Applying strict scrutiny, the District Court determined that the Law School's asserted interest in assembling a diverse student body was not compelling because "the attainment of a racially diverse class . . . was not recognized as such by Bakke and it is not a remedy for past discrimination." The District Court went on to hold that even if diversity were compelling, the Law School had not narrowly tailored its use of race to further that interest. The District Court granted petitioner's request for declaratory relief and enjoined the Law School from using race as a factor in its admissions decisions. Sitting en banc, the Court of Appeals reversed the District Court's judgment . The Court of Appeals first held that Justice Powell's opinion in Bakke was binding precedent establishing diversity as a compelling state interest. The Equal Protection Clause provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." We have held that all racial classifications imposed by government "must be analyzed by a reviewing court under strict scrutiny." This means that such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests. With these principles in mind, we turn to the question whether the Law School's use of race is justified by a compelling state interest. Before this Court, as they have throughout this litigation, respondents assert only one justification for their use of race in the admissions process: obtaining "the educational benefits that flow from a diverse student body." In other words, the Law School asks us to recognize, in the context of higher education, a compelling state interest in student body diversity. As the District Court emphasized, the Law School's admissions policy promotes "cross-racial understanding," helps to break down racial stereotypes, and "enables [students] to better understand persons of different races." These benefits are "important and laudable," because "classroom discussion is livelier, more spirited, and simply more enlightening and interesting" when the students have "the greatest possible variety of backgrounds.” These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. Moreover, universities, and in particular, law schools, represent the training ground for a large number of our Nation's leaders. n order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. Even in the limited circumstance when drawing racial distinctions is permissible to further a compelling state interest, government is still "constrained in how it may pursue that end: the means chosen to accomplish the government's asserted purpose must be specifically and narrowly framed to accomplish that purpose." To be narrowly tailored, a race-conscious admissions program cannot use a quota system-it cannot "insulate each category of applicants with certain desired qualifications from competition with all other applicants. Instead, a university may consider race or ethnicity only as a “‘plus’ in a particular applicant's file," without "insulating the individual from comparison with all other candidates for the available seats." In other words, an admissions program must be "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight." We find that the Law School's admissions program bears the hallmarks of a narrowly tailored plan. We are mindful, however, that "[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race." Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. In summary, the Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. 5

Planned Parenthood of S.E. Pennsylvania v. Casey 505 U.S. 833 (1992) O’Connor, Kennedy, and Souter JJ. Liberty finds no refuge in a jurisprudence of doubt. Yet, 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roev. Wade. At issue in these cases are five provisions of the Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989. 18 Pa. Cons. Stat. §§ 3203-3220 (1990). The Act requires that a woman seeking an abortion give her informed consent prior to the abortion procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed. For a minor to obtain an abortion, the Act requires the informed consent of one of her parents, but provides for a judicial bypass option if the minor does not wish to or cannot obtain a parent's consent. Another provision of the Act requires that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband of her intended abortion. The Act exempts compliance with these three requirements in the event of a "medical emergency," which is defined in § 3203 of the Act. In addition to the above provisions regulating the performance of abortions, the Act imposes certain reporting requirements on facilities that provide abortion services. Before any of these provisions took effect, the petitioners, who are five abortion clinics and one physician representing himself as well as a class of physicians who provide abortion services, brought this suit seeking declaratory and injunctive relief. Each provision was challenged as unconstitutional on its face. It must be stated at the outset and with clarity that Roe `s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each. Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest. Some guiding principles should emerge. What is at stake is the woman's right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose. Unless it has that effect on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal. Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden. Even when jurists reason from shared premises, some disagreement is inevitable. That is to be expected in the application of any legal standard which must accommodate life's complexity. We do not expect it to be otherwise with respect to the undue burden standard. We give this summary: (a) To protect the central right recognized by Roe v. Wade while at the same time accommodating the State's profound interest in potential life, we will employ the undue burden analysis as explained in this opinion. An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. (b) We reject the rigid trimester framework of Roe v. Wade. To promote the State's profound interest in potential life, throughout pregnancy the State may take measures to ensure that the woman's choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the right. (c) As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right. (d) Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding. Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability. (e) We also reaffirm Roe’s holding that "subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Scalia J., concurring in the judgment in part and dissenting in part My views on this matter are unchanged from those I set forth in my separate opinions in [previous cases]. The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting. As the Court acknowledges, "where reasonable people disagree the government can adopt one position or the other." The Court is correct in adding the qualification that this "assumes a state of affairs in which the choice does not intrude upon a protected liberty,"— but the crucial part of that qualification is the penultimate word. A State's choice between two positions on which reasonable people can disagree is constitutional even when (as is often the case) it intrudes upon a "liberty" in the absolute sense. Laws against bigamy, for example—with which entire societies of reasonable people disagree—intrude upon men and women's liberty to marry and live with one another. But bigamy happens not to be a liberty specially "protected" by the Constitution. That is, quite simply, the issue in these cases: not whether the power of a woman to abort her unborn child is a "liberty" in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the "concept of existence, of meaning, of the universe, and of the mystery of human life." Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected —because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.

Ashcroft v. American Civil Liberties Union 542 U.S. 656 (2004) Kennedy, J. This case presents a challenge to a statute enacted by Congress to protect minors from exposure to sexually explicit materials on the Internet, the Child Online Protection Act (COPA). We must decide whether the Court of Appeals was correct to affirm a ruling by the District Court that enforcement of COPA should be enjoined because the statute likely violates the First Amendment. In enacting COPA, Congress gave consideration to our earlier decisions on this subject, in particular the decision in Reno v. American Civil Liberties Union. For that reason, “the Judiciary must proceed with caution and . . . with care before invalidating the Act.” The imperative of according respect to the 7

Congress, however, does not permit us to depart from well-established First Amendment principles. Instead, we must hold the Government to its constitutional burden of proof. Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people. To guard against that threat the Constitution demands that content-based restrictions on speech be presumed invalid and that the Government bear the burden of showing their constitutionality. This is true even when Congress twice has attempted to find a constitutional means to restrict, and punish, the speech in question. COPA is the second attempt by Congress to make the Internet safe for minors by criminalizing certain Internet speech. The first attempt was the Communications Decency Act of 1996. The Court held the CDA unconstitutional because it was not narrowly tailored to serve a compelling governmental interest and because less restrictive alternatives were available. In response to the Court’s decision in Reno, Congress passed COPA. COPA imposes criminal penalties of a $50,000 fine and six months in prison for the knowing posting, for “commercial purposes,” of World Wide Web content that is “harmful to minors.” Material that is "harmful to minors" is defined as: any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that– (A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest; (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors. “Minors” are defined as “any person under 17 years of age.” §231(e)(7). A person acts for “commercial purposes only if such person is engaged in the business of making such communications.” “Engaged in the business,” in turn,

means that the person who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person’s trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person’s sole or principal business or source of income). While the statute labels all speech that falls within these definitions as criminal speech, it also provides an affirmative defense to those who employ specified means to prevent minors from gaining access to the prohibited materials on their Web site. A person may escape conviction under the statute by demonstrating that he

has restricted access by minors to material that is harmful to minors– (A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number; (B) by accepting a digital certificate that verifies age, or (C) by any other reasonable measures that are feasible under available technology. Respondents, Internet content providers and others concerned with protecting the freedom of speech, filed suit in the United States District Court for the Eastern District of Pennsylvania. They sought a preliminary injunction against enforcement of the statute.

The primary alternative considered by the District Court was blocking and filtering software. Blocking and filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children’s access to materials harmful to them. The District Court, in granting the preliminary injunction, did so primarily because the plaintiffs had proposed that filters are a less restrictive alternative to COPA and the Government had not shown it would be likely to disprove the plaintiffs’ contention at trial.

Filters are less restrictive than COPA. They impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Under a filtering regime, adults without children may gain access to speech they have a right to see without having to identify themselves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Above all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. All of these things are true, moreover, regardless of how broadly or narrowly the definitions in COPA are construed.

Filters also may well be more effective than COPA. First, a filter can prevent minors from seeing all pornography, not just pornography posted to the Web from America. The District Court noted in its factfindings that one witness estimated that 40% of harmful-to-minors content comes from overseas. COPA does not prevent minors from having access to those foreign harmful materials. That alone makes it possible that filtering software might be more effective in serving Congress’ goals. Finally, filters also may be more effective because they can be applied to all forms of Internet communication, including e- mail, not just communications available via the World Wide Web.

On this record, the Government has not shown that the less restrictive alternatives proposed by respondents should be disregarded. Those alternatives, indeed, may be more effective than the provisions of COPA. The District Court did not abuse its discretion when it entered the preliminary injunction.

Breyer, J., dissenting

The Act does not censor the material it covers. Rather, it requires providers of the “harmful to minors” material to restrict minors’ access to it by verifying age. They can do so by inserting screens that verify age using a credit card, adult personal identification number, or other similar technology. In this way, the Act requires creation of an internet screen that minors, but not adults, will find difficult to bypass.

I recognize that the screening requirement imposes some burden on adults who seek access to the regulated material, as well as on its providers. In addition to the monetary cost, and despite strict requirements that identifying information be kept confidential, the identification requirements inherent in age-screening may lead some users to fear embarrassment. Both monetary costs and potential embarrassment can deter potential viewers and, in that sense, the statute’s requirements may restrict access to a site. But this Court has held that in the context of congressional efforts to protect children, restrictions of this kind do not automatically violate the Constitution. And the Court has approved their use.

In sum, the Act at most imposes a modest additional burden on adult access to legally obscene material, perhaps imposing a similar burden on access to some protected borderline obscene material as well. 9