The Supreme Court acknowledged that sexually explicit material is available on the Internet and that such material "extends from the modestly titillating to the hardest core." Although such material is widely available, it found that it is seldom encountered accidentally. A document’s title or a description of the document will usually appear before the document itself and, in many cases, the user will receive detailed information about a site’s content before he or she need take the step to access the document.
The Court distinguished prior cases which recognized special factors justifying regulation of broadcast media (i.e., radio and television). It found that almost all sexually explicit images on the Internet are preceded by warnings as to the content. In comparison with broadcasting, the receipt of information on the Internet requires a series of affirmative steps more deliberate and direct than merely turning a dial. The Internet was found not to be as invasive as radio or television transmissions. Also, another justification for regulation of the broadcast spectrum, the scarcity of frequencies, was not applicable to the Internet.
The regulation of content on the Internet is also made difficult by the fact that an Internet server can be located in a foreign jurisdiction where its operator is not subject to domestic laws. Barring a coordinated multilateral or international approach, prohibitions imposed in one country can be easily circumvented by relocating the content to a server located elsewhere. This approach has already been adopted by online gambling facilities that have simply set up shop in jurisdictions that do not prohibit such activities.
