Section 223(b) of the Communications Act of 1934,
as
amended, bans indecent as well as obscene interstate
commercial telephone messages, commonly known as "dial-a-porn."
Under its predecessor provision -- which sought to restrict minors'
access to dial-a-porn -- the Federal Communications Commission
(FCC), after lengthy court proceedings, had promulgated regulations
laying out means by which dial-a-porn sponsors could screen out
underaged callers. Sable Communications of California, which offers
sexually oriented prerecorded telephone messages to callers both in
and outside the Los Angeles metropolitan area, brought suit in the
District Court, claiming that § 223(b)'s obscenity and indecency
provisions were unconstitutional, chiefly under the First and
Fourteenth Amendments, and seeking an injunction enjoining the FCC
and the Justice Department from initiating any criminal
investigation or prosecution, civil action, or administrative
proceeding under the statute and a declaratory judgment. The court
denied Sable's request for a preliminary injunction against
enforcement of the ban on obscene telephone messages, rejecting the
argument that the statute was unconstitutional because it created a
national standard of obscenity. However, it issued the injunction
with regard to the indecent speech provision, holding that the
provision was overbroad and unconstitutional because it was not
narrowly drawn to achieve the legitimate state interest of
protecting children from exposure to indecent dial-a-porn
messages.
Held:
1. Section 223(b) does not unconstitutionally prohibit the
interstate transmission of obscene commercial telephone messages.
The protection of the First Amendment does not extend to obscene
speech. In addition, § 223(b) does not contravene the "contemporary
community standards" requirement of
Miller v. California,
413 U. S. 15, since
it no more establishes a "national standard" of obscenity than do
federal statutes prohibiting the mailing of obscene materials or
the broadcasting of
Page 492 U. S. 116
obscene messages. There is no constitutional barrier under
Miller to prohibiting communications that are obscene in
some communities under local standards even though they are not
obscene in others. Sable which has the burden of complying with the
prohibition, is free to tailor its messages, on a selective basis,
to the communities it chooses to serve. Pp.
492 U. S.
124-126.
2. Section 223(b)'s ban on indecent telephone messages violates
the First Amendment, since the statute's denial of adult access to
such messages far exceeds that which is necessary to serve the
compelling interest of preventing minors from being exposed to the
messages.
FCC v. Pacifica Foundation, 438 U.
S. 726, an emphatically narrow ruling giving the FCC
power to regulate an indecent radio broadcast, is readily
distinguishable from this case.
Pacifica, which did not
involve a total ban on broadcasting indecent material, relied on
the "unique" attributes of broadcasting, which can intrude on the
privacy of the home without prior warning of content and which is
uniquely accessible to children. In contrast, the dial-it medium
requires the listener to take affirmative steps to receive the
communications. The Government's argument that nothing less than a
total ban could prevent children from gaining access to the
messages and that this Court should defer to Congress' conclusions
and factual findings to that effect is unpersuasive. There is no
evidence to show that children would have evaded the rules that the
FCC, after prolonged proceedings, had determined would keep the
messages out of their reach. Moreover, deference to Congress'
legislative findings cannot limit judicial inquiry where First
Amendment rights are at stake. Here, the congressional record
contains no legislative findings that would justify a conclusion
that there are no constitutionally acceptable less restrictive
means to achieve the Government's interest in protecting minors.
Pp.
492 U. S.
126-131 .
692 F.
Supp. 1208, affirmed.
WHITE, J., delivered the opinion for a unanimous Court with
respect to Parts I, II, and IV, and the opinion of the Court with
respect to Part III, in which REHNQUIST, C.J., and BLACKMUN,
O'CONNOR, SCALIA, and KENNEDY, JJ., joined. SCALIA, J., filed a
concurring opinion,
post, p.
492 U. S. 131.
BRENNAN, J., filed an opinion concurring in part and dissenting in
part, in which MARSHALL and STEVENS, JJ., joined,
post, p.
492 U. S.
133.
Page 492 U. S. 117
JUSTICE WHITE delivered the opinion of the Court.
The issue before us is the constitutionality of § 223(b) of the
Communications Act of 1934. 47 U.S.C. § 223(b). The statute, as
amended in 1988, imposes an outright ban on indecent as well as
obscene interstate commercial telephone messages. The District
Court upheld the prohibition against obscene interstate telephone
communications for commercial purposes, but enjoined the
enforcement of the statute insofar as it applied to indecent
messages. We affirm the District Court in both respects.
I
In 1983, Sable Communications, Inc., a Los Angeles-based
affiliate of Carlin Communications, Inc., began offering
sexually
Page 492 U. S. 118
oriented prerecorded telephone messages [
Footnote 1] (popularly known as "dial-a-porn") through
the Pacific Bell telephone network. In order to provide the
messages, Sable arranged with Pacific Bell to use special telephone
lines, designed to handle large volumes of calls simultaneously.
Those who called the adult message number were charged a special
fee. The fee was collected by Pacific Bell and divided between the
phone company and the message provider. Callers outside the Los
Angeles metropolitan area could reach the number by means of a
long-distance toll call to the Los Angeles area code.
In 1988, Sable brought suit in District Court seeking
declaratory and injunctive relief against enforcement of the
recently amended § 223(b). The 1988 amendments to the statute
imposed a blanket prohibition on indecent as well as obscene
interstate commercial telephone messages. Sable brought this action
to enjoin the FCC and the Justice Department from initiating any
criminal investigation or prosecution, civil action or
administrative proceeding under the statute. Sable also sought a
declaratory judgment, challenging the indecency and the obscenity
provisions of the amended § 223(b) as unconstitutional, chiefly
under the First and Fourteenth Amendments to the Constitution.
The District Court found that a concrete controversy existed,
and that Sable met the irreparable injury requirement for issuance
of a preliminary injunction under
Elrod v. Burns,
427 U. S. 347,
427 U. S. 373
(1976).
692 F.
Supp. 1208, 1209 (CD Cal.1988). The District Court denied
Sable's request for a preliminary injunction against enforcement of
the statute's ban on obscene telephone messages, rejecting the
argument that the statute was unconstitutional because it created a
national standard of obscenity. The District Court, however,
Page 492 U. S. 119
struck down the "indecent speech" provision of § 223(b), holding
that, in this respect, the statute was overbroad and
unconstitutional, and that this result was consistent with
FCC
v. Pacifica Foundation, 438 U. S. 726
(1978).
"While the government unquestionably has a legitimate interest
in,
e.g., protecting children from exposure to indecent
dial-a-porn messages, § 223(b) is not narrowly drawn to achieve any
such purpose. Its flat-out ban of indecent speech is contrary to
the First Amendment."
692 F. Supp. at 1209. Therefore, the Court issued a preliminary
injunction prohibiting enforcement of § 223(b) with respect to any
communication alleged to be "indecent."
We noted probable jurisdiction on Sable's appeal of the
obscenity ruling (No. 88-515); we also noted probable jurisdiction
on the federal parties' cross-appeal of the preliminary injunction
holding the statute unconstitutional with respect to its ban on
indecent speech (No. 88-525). 488 U.S. 1003 (1989). [
Footnote 2]
II
While dial-a-porn services are a creature of this decade, the
medium, in its brief history, has been the subject of much
litigation and the object of a series of attempts at regulation.
[
Footnote 3]
Page 492 U. S. 120
The first litigation involving dial-a-porn was brought under 82
Stat. 112, 47 U.S.C. § 223, which proscribed knowingly "permitting
a telephone under [one's] control" to be used to make "any comment,
request, suggestion or proposal which is obscene, lewd, lascivious,
filthy, or indecent." However, the FCC concluded in an
administrative action that the existing law did not cover
dial-a-porn.
In re Application for Review of Complaint Filed by
Peter F. Cohalan, FCC File No. E-83-14 (memorandum opinions
and orders adopted May 13, 1983).
In reaction to that FCC determination, Congress made its first
effort explicitly to address "dial-a-porn" when it added a
subsection 223(b) to the 1934 Communications Act. The provision,
which was the predecessor to the amendment at issue in this case,
pertained directly to sexually oriented commercial telephone
messages, and sought to restrict the access of minors to
dial-a-porn. The relevant provision of the Act, Federal
Communications Commission Authorization Act of 1983, Pub. L.
98-214, § 8(b), 97 Stat. 1470, made it a crime to use telephone
facilities to make "obscene or indecent" interstate telephone
communications "for commercial purposes to any person under
eighteen years of age or to any other person without that person's
consent." 47 U.S.C. § 223(b)(1) (A) (1982 ed., Supp. IV). The
statute criminalized commercial transmission of sexually oriented
communications to minors, and required the FCC to promulgate
regulations laying out the means by which dial-a-porn sponsors
could screen out underaged callers. § 223(b)(2). The enactment
provided that it would be a defense to prosecution that the
defendant restricted access to adults only, in accordance with
procedures established by the FCC. The statute did not
criminalize
Page 492 U. S. 121
sexually oriented messages to adults, whether the messages were
obscene or indecent.
The FCC initially promulgated regulations that would have
established a defense to message providers operating only between
the hours of 9 p.m. and 8 a.m. Eastern Time (time channeling) and
to providers requiring payment by credit card (screening) before
transmission of the dial-a-porn message. Restrictions on Obscene or
Indecent Telephone Message Services, 47 CFR § 64.201 (1988). In
Carlin Communications, Inc. v. FCC, 749 F.2d 113 (CA2
1984) (
Carlin I), the Court of Appeals for the Second
Circuit set aside the time channeling regulations and remanded to
the FCC to examine other alternatives, concluding that the
operating hours requirement was "both overinclusive and
underinclusive" because it denied "access to adults between certain
hours, but not to youths who can easily pick up a private or public
telephone and call dial-a-porn during the remaining hours."
Id. at 121. The Court of Appeals did not reach the
constitutionality of the underlying legislation.
In 1985, the FCC promulgated new regulations which continued to
permit credit card payment as a defense to prosecution. Instead of
time restrictions, however, the Commission added a defense based on
use of access codes (user identification codes). Thus, it would be
a defense to prosecution under § 223(b) if the defendant, before
transmission of the message, restricted customer access by
requiring either payment by credit card or authorization by access
or identification code. 50 Fed.Reg. 42699, 42705 (1985). The
regulations required each dial-a-porn vendor to develop an
identification code data base and implementation scheme. Callers
would be required to provide an access number for identification
(or a credit card) before receiving the message. The access code
would be received through the mail after the message provider
reviewed the application and concluded, through a written age
ascertainment procedure, that the applicant
Page 492 U. S. 122
was at least 18 years of age. The FCC rejected a proposal for
"exchange blocking" which would block or screen telephone numbers
at the customer's premises or at the telephone company offices. In
Carlin Communications, Inc. v. FCC, 787 F.2d 846 (CA2
1986) (
Carlin II), the Court of Appeals set aside the new
regulations because of the FCC's failure adequately to consider
customer premises blocking. Again, the constitutionality of the
underlying legislation was not addressed.
The FCC then promulgated a third set of regulations, which again
rejected customer premises blocking, but added to the prior
defenses of credit card payment and access code use a third
defense: message scrambling. 52 Fed.Reg. 17760 (1987). Under this
system, providers would scramble the message, which would then be
unintelligible without the use of a descrambler, the sale of which
would be limited to adults. On January 15, 1988, in
Carlin
Communications, Inc. v. FCC, 837 F.2d 546 (
Carlin
III),
cert. denied, 488 U.S. 924 (1988), the Court of
Appeals for the Second Circuit held that the new regulations, which
made access codes, along with credit card payments and scrambled
messages, defenses to prosecution under § 223(b) for dial-a-porn
providers, were supported by the evidence, had been properly
arrived at, and were a "feasible and effective way to serve" the
"compelling state interest" in protecting minors, 837 F.2d at 555;
but the Court directed the FCC to reopen proceedings if a less
restrictive technology became available. The Court of Appeals,
however, this time reaching the constitutionality of the statute,
invalidated § 223(b) insofar as it sought to apply to nonobscene
speech.
Id. at 560, 561.
Thereafter, in April 1988, Congress amended § 223(b) of the
Communications Act to prohibit indecent as well as obscene
interstate commercial telephone communications directed to any
person, regardless of age. The amended statute, which took effect
on July 1, 1988, also eliminated the requirement that the FCC
promulgate regulations for restricting
Page 492 U. S. 123
access to minors, since a total ban was imposed on dial-a-porn,
making it illegal for adults, as well as children, to have access
to the sexually explicit messages, Pub. L. 100297, 102 Stat. 424.
[
Footnote 4] It was this
version of the statute that was in effect when Sable commenced this
action. [
Footnote 5]
Page 492 U. S. 124
III
In the ruling at issue in No. 88-515, the District Court upheld
§ 223(b)'s prohibition of obscene telephone messages as
constitutional. We agree with that judgment. In contrast to the
prohibition on indecent communications, there is no constitutional
barrier to the ban on obscene dial-a-porn recordings. We have
repeatedly held that the protection of the First Amendment does not
extend to obscene speech.
See, e.g., Paris Adult Theatre I v.
Slatorn, 413 U. S. 49,
413 U. S. 69
(1973). The cases before us today do not require us to decide what
is obscene or what is indecent, but rather to determine whether
Congress is empowered to prohibit transmission of obscene
telephonic communications.
In its facial challenge to the statute, Sable argues that the
legislation creates an impermissible national standard of
obscenity, and that it places message senders in a "double bind" by
compelling them to tailor all their messages to the least tolerant
community. [
Footnote 6]
We do not read § 223(b) as contravening the "contemporary
community standards" requirement of
Miller v. California,
413 U. S. 15
(1973). Section 223(b) no more establishes a "national standard" of
obscenity than do federal statutes
Page 492 U. S. 125
prohibiting the mailing of obscene materials, 18 U.S.C. § 1461,
see Hamling v. United States, 418 U. S.
87 (1974), or the broadcasting of obscene messages, 18
U.S.C. § 1464. In
United States v. Reidel, 402 U.
S. 351 (1971), we said that Congress could prohibit the
use of the mails for commercial distribution of materials properly
classifiable as obscene, even though those materials were being
distributed to willing adults who stated that they were adults.
Similarly, we hold today that there is no constitutional stricture
against Congress' prohibiting the interstate transmission of
obscene commercial telephone recordings.
We stated in
United States v. 12 200-ft. Reels of Film,
413 U. S. 123
(1973), that the
Miller standards, including the
"contemporary community standards" formulation, apply to federal
legislation. As we have said before, the fact that
"distributors of allegedly obscene materials may be subjected to
varying community standards in the various federal judicial
districts into which they transmit the materials does not render a
federal statute unconstitutional because of the failure of
application of uniform national standards of obscenity."
Hamling v. United States, supra, at
418 U. S.
106.
Furthermore, Sable is free to tailor its messages, on a
selective basis, if it so chooses, to the communities it chooses to
serve. While Sable may be forced to incur some costs in developing
and implementing a system for screening the locale of incoming
calls, there is no constitutional impediment to enacting a law
which may impose such costs on a medium electing to provide these
messages. Whether Sable chooses to hire operators to determine the
source of the calls or engages with the telephone company to
arrange for the screening and blocking of out-of-area calls or
finds another means for providing messages compatible with
community standards is a decision for the message provider to make.
There is no constitutional barrier under
Miller to
prohibiting communications that are obscene in some communities
under local standards, even though they are not obscene in
Page 492 U. S. 126
others. If Sable's audience is comprised of different
communities with different local standards, Sable ultimately bears
the burden of complying with the prohibition on obscene
messages.
IV
In No. 88-525, the District Court concluded that, while the
Government has a legitimate interest in protecting children from
exposure to indecent dial-a-porn messages, § 223(b) was not
sufficiently narrowly drawn to serve that purpose, and thus
violated the First Amendment. We agree.
Sexual expression which is indecent but not obscene is protected
by the First Amendment; and the federal parties do not submit that
the sale of such materials to adults could be criminalized solely
because they are indecent. The Government may, however, regulate
the content of constitutionally protected speech in order to
promote a compelling interest if it chooses the least restrictive
means to further the articulated interest. We have recognized that
there is a compelling interest in protecting the physical and
psychological wellbeing of minors. This interest extends to
shielding minors from the influence of literature that is not
obscene by adult standards.
Ginsberg v. New York,
390 U. S. 629,
390 U. S.
639-640 (1968);
New York v. Ferber,
458 U. S. 747,
458 U. S.
756-757 (1982). The Government may serve this legitimate
interest, but, to withstand constitutional scrutiny,
"it must do so by narrowly drawn regulations designed to serve
those interests without unnecessarily interfering with First
Amendment freedoms.
Hynes v. Mayor of Oradell, 425 U.S. at
425 U. S. 620;
First
National Ban.k of Boston v. Bellotti, 435 U. S.
765,
435 U. S. 786 (1978)."
Schaumburg v. Citizens for a Better Environment,
444 U. S. 620,
444 U. S. 637
(1980). It is not enough to show that the Government's ends are
compelling; the means must be carefully tailored to achieve those
ends.
In
Butler v. Michigan, 352 U.
S. 380 (1957), a unanimous Court reversed a conviction
under a statute which made it an offense to make available to the
general public materials
Page 492 U. S. 127
found to have a potentially harmful influence on minors. The
Court found the law to be insufficiently tailored, since it denied
adults their free speech rights by allowing them to read only what
was acceptable for children. As Justice Frankfurter said in that
case, "Surely this is to burn the house to roast the pig."
Id. at
352 U. S. 383.
In our judgment, this case, like
Butler, presents us with
"legislation not reasonably restricted to the evil with which it is
said to deal."
Ibid.
In attempting to justify the complete ban and criminalization of
the indecent commercial telephone communications with adults as
well as minors, the federal parties rely on
FCC v. Pacifica
Foundation, 438 U. S. 726
(1978), a case in which the Court considered whether the FCC has
the power to regulate a radio broadcast that is indecent but not
obscene. In an emphatically narrow holding, the
Pacifica
Court concluded that special treatment of indecent broadcasting was
justified.
Pacifica is readily distinguishable from this case,
most obviously because it did not involve a total ban on
broadcasting indecent material. The FCC rule was not
"'intended to place an absolute prohibition on the broadcast of
this type of language, but rather sought to channel it to times of
day when children most likely would not be exposed to it.'"
Pacifica, supra, at
438 U. S. 733,
quoting
Pacifica Foundation, 59 F.C.C.2d 892 (1976). The
issue of a total ban was not before the Court. 438 U.S. at
438 U. S. 750,
n. 28.
The
Pacifica opinion also relied on the "unique"
attributes of broadcasting, noting that broadcasting is "uniquely
pervasive," can intrude on the privacy of the home without prior
warning as to program content, and is "uniquely accessible to
children, even those too young to read."
Id. at
438 U. S.
748-749. The private commercial telephone communications
at issue here are substantially different from the public radio
broadcast at issue in
Pacifica. In contrast to public
displays, unsolicited mailings, and other means of expression which
the recipient has no meaningful opportunity to avoid, the
dial-it
Page 492 U. S. 128
medium requires the listener to take affirmative steps to
receive the communication. There is no "captive audience" problem
here; callers will generally not be unwilling listeners. The
context of dial-in services, where a caller seeks and is willing to
pay for the communication, is manifestly different from a situation
in which a listener does not want the received message. Placing a
telephone call is not the same as turning on a radio and being
taken by surprise by an indecent message. Unlike an unexpected
outburst on a radio broadcast, the message received by one who
places a call to a dial-a-porn service is not so invasive or
surprising that it prevents an unwilling listener from avoiding
exposure to it.
The Court in
Pacifica was careful "to emphasize the
narrowness of [its] holding."
Id. at
438 U. S. 750.
As we did in
Bolger v. Youngs Drug Products Corp.,
463 U. S. 60
(1983), we distinguish
Pacifica from the cases before us
and reiterate that "the government may not
reduce the adult
population . . . to . . . only what is fit for children.'" 463 U.S.
at 463 U. S. 73,
quoting Butler v. Michigan, supra, at 352 U. S.
383.
The federal parties nevertheless argue that the total ban on
indecent commercial telephone communications is justified because
nothing less could prevent children from gaining access to such
messages. We find the argument quite unpersuasive. The FCC, after
lengthy proceedings, determined that its credit card, access code,
and scrambling rules were a satisfactory solution to the problem of
keeping indecent dial-a-porn messages out of the reach of minors.
The Court of Appeals, after careful consideration, agreed that
these rules represented a "feasible and effective" way to serve the
Government's compelling interest in protecting children. 837 F.2d
at 555.
The federal parties now insist that the rules would not be
effective enough -- that enterprising youngsters could and would
evade the rules and gain access to communications from which they
should be shielded. There is no evidence in the record before us to
that effect, nor could there be, since
Page 492 U. S. 129
the FCC's implementation of § 223(b) prior to its 1988 amendment
has never been tested over time. In this respect, the federal
parties assert that, in amending § 223(b) in 1988, Congress
expressed its view that there was not a sufficiently effective way
to protect minors short of the total ban that it enacted. The
federal parties claim that we must give deference to that
judgment.
To the extent that the federal parties suggest that we should
defer to Congress' conclusion about an issue of constitutional law,
our answer is that, while we do not ignore it, it is our task, in
the end, to decide whether Congress has violated the Constitution.
This is particularly true where the Legislature has concluded that
its product does not violate the First Amendment. "Deference to a
legislative finding cannot limit judicial inquiry when First
Amendment rights are at stake."
Landmark Communications, Inc.
v. Virginia, 435 U. S. 829,
435 U. S. 843
(1978). The federal parties, however, also urge us to defer to the
factual findings by Congress relevant to resolving the
constitutional issue; they rely on
Walters v. National
Association of Radiation Survivors, 473 U.
S. 305,
473 U. S. 331,
n. 12 (1985), and
Rostker v. Goldberg, 453 U. S.
57,
453 U. S. 72-73
(1981). Beyond the fact that whatever deference is due legislative
findings would not foreclose our independent judgment of the facts
bearing on an issue of constitutional law, our answer is that the
congressional record contains no legislative findings that would
justify us in concluding that there is no constitutionally
acceptable less restrictive means, short of a total ban, to achieve
the Government's interest in protecting minors.
There is no doubt Congress enacted a total ban on both obscene
and indecent telephone communications. But aside from conclusory
statements during the debates by proponents of the bill, [
Footnote 7] as well as similar
assertions in hearings on
Page 492 U. S. 130
a substantially identical bill the year before, H. R. 1786,
[
Footnote 8] that under the FCC
regulations minors could still have access to dial-a-porn messages,
the congressional record presented to us contains no evidence as to
how effective or ineffective the FCC's most recent regulations were
or might prove to be. It may well be that there is no fail-safe
method of guaranteeing that never will a minor be able to access
the dial-a-porn system. The bill that was enacted, however, was
introduced on the floor; nor was there a committee report on the
bill from which the language of the enacted bill was taken. No
Congressman or Senator purported to present a considered judgment
with respect to how often or to what extent minors could or would
circumvent the rules and have access to dial-a-porn messages. On
the other hand, in the hearings on H.R. 1786, the Committee heard
testimony from the FCC and other witnesses that the FCC rules would
be effective, and should be tried out in practice. [
Footnote 9] Furthermore, at the conclusion of
the hearing, the Chairman of the Subcommittee suggested
consultation looking toward
"drafting a piece of legislation that will pass constitutional
muster, while at the same time providing for the practical relief
which families and groups are looking for."
Hearings at 235. The bill never emerged from Committee.
For all we know from this record, the FCC's technological
approach to restricting dial-a-porn messages to adults who seek
them would be extremely effective, and only a few of the most
enterprising and disobedient young people would manage to secure
access to such messages. [
Footnote 10] If this is the case,
Page 492 U. S. 131
it seems to us that § 223(b) is not a narrowly tailored effort
to serve the compelling interest of preventing minors from being
exposed to indecent telephone messages. Under our precedents, §
223(b), in its present form, has the invalid effect of limiting the
content of adult telephone conversations to that which is suitable
for children to hear. It is another case of "burn[ing] up the house
to roast the pig."
Butler v. Michigan, 352 U.S. at
352 U. S.
383.
Because the statute's denial of adult access to telephone
messages which are indecent but not obscene far exceeds that which
is necessary to limit the access of minors to such messages, we
hold that the ban does not survive constitutional scrutiny.
Accordingly, we affirm the judgment of the District Court in
Nos. 88-515 and 88-525.
It is so ordered.
* Together with No. 88-525,
Federal Communications
Commission et al. v. Sable Communications of California, Inc.,
also on appeal from the same court.
[
Footnote 1]
A typical prerecorded message lasts anywhere from 30 seconds to
two minutes, and may be called by up to 50,000 people hourly
through a single telephone number. Comment, Telephones, Sex and the
First Amendment, 33 UCLA L.Rev. 1221, 1223 (1986).
[
Footnote 2]
Sable appealed the District Court ruling to the Court of Appeals
for the Ninth Circuit, concurrently filing an emergency motion for
an injunction pending appeal. The District Court entered an order
temporarily enjoining the FCC from enforcing the statute during the
pendency of the appeal. After the federal parties filed their
notice of appeal to this Court from the District Court's grant of
the preliminary injunction as to "indecent" communication, the
Court of Appeals for the Ninth Circuit entered an order directing
Sable either to file a motion for voluntary dismissal or to show
cause why the appeal should not be dismissed for lack of
jurisdiction. Sable filed an
ex parte application to this
Court for an injunction pending appeal, as well as a return on the
Court of Appeals' order to show cause. The Court of Appeals entered
an order dismissing the appeal, since the filing of a direct appeal
by the FCC had the effect of transferring Sable's appeal to this
Court.
[
Footnote 3]
Dial-a-porn is big business. The dial-a-porn service in New York
City alone received six to seven million calls a month for the
6-month period ending in April, 1985.
Carlin Communications,
Inc. v. FCC, 787 F.2d 846, 848 (CA2 1986).
[
Footnote 4]
"(b)(1) Whoever knowingly -- "
"(A) in the District of Columbia or in interstate .or foreign
communication, by means of telephone, makes (directly or by
recording device) any obscene or indecent communication for
commercial purposes to any person, regardless of whether the maker
of such communication placed the call; or"
"(B) permits any telephone facility under such person's control
to be used for an activity prohibited by subparagraph (A),"
"shall be fined not more than $50,000 or imprisoned not more
than six months, or both."
[
Footnote 5]
After Sable and the federal parties filed their jurisdictional
statements with this Court, but before we noted probable
jurisdiction, § 223(b) was again revised by Congress in § 7524 of
the Child Protection and Obscenity Enforcement Act of 1988, § 7524,
102 Stat. 4502, which was enacted as Title VII, Subtitle N, of the
Anti-Drug Abuse Act of 1988, Pub. L. 100690 (to be codified at 47
U.S.C. § 223(b)). This most recent legislation, signed into law on
November 18, 1988, places the prohibition against obscene
commercial telephone messages in a subsection separate from that
containing the prohibition against indecent messages. In addition,
under the new law, the prohibition against obscene or indecent
telephone messages is enforceable only through criminal penalties,
and no longer through administrative proceedings by the FCC.
Section 223(b) of the Communications Act of 1934, as amended by
Section 7524 of the Child Protection and Obscenity Enforcement Act
of 1988, states in pertinent part:
"(b)(1) Whoever knowingly -- "
"(A) in the District of Columbia or in interstate or foreign
communication, by means of telephone, makes (directly or by
recording device) any obscene communication for commercial purposes
to any person, regardless of whether the maker of such
communication placed the call; or"
"(B) permits any telephone facility under such person's control
to be used for an activity prohibited by clause (i),"
"shall be fined in accordance with title 18 of the United States
Code, or imprisoned not more than two years, or both."
"(2) Whoever knowingly -- "
"(A) in the District of Columbia or in interstate or foreign
communication, by means of telephone, makes (directly or by
recording device) any indecent communication for commercial
purposes to any person, regardless of whether the maker of such
communication placed the call; or"
"(B) permits any telephone facility under such person's control
to be used for an activity prohibited by clause (i),"
"shall be fined not more than $50,000 or imprisoned not more
than six months, or both."
102 Stat. 4502.
Since the substantive prohibitions under this amendment remain
the same, this case is not moot.
[
Footnote 6]
In its jurisdictional statement, Sable also argued that the
prohibition on obscene calls is not severable from the ban on
indecent messages. This last claim was not renewed in Sable's brief
on the merits, presumably as a result of the subsequent
modification of the statute in which Congress specifically placed
the ban on obscene commercial telephone messages in a subsection
separate from the prohibition against indecent messages. Thus, the
severability question is no longer before us.
[
Footnote 7]
See e.g., 134 Cong.Rec. 7331 (1988) (statement of Rep.
Bliley);
id. at 7336 (statement of Rep. Coats);
id. at 7330 (statement of Rep. Hall);
id. at 7599
(statement of Sen. Hatch).
[
Footnote 8]
Telephone Decency Act of 1987: Hearing on H. R. 1786 before the
Subcommittee on Telecommunications and Finance of the House
Committee on Energy and Commerce, 100th Cong., 1st Sess., 2, 15
(1987) (Rep. Bliley) (Hearings);
id. at 18 (Rep. Coats);
id. at 20 (Rep. Tauke).
These hearings were held while
Carlin III was pending
before the Court of Appeals for the Second Circuit.
[
Footnote 9]
See, e.g., Hearings, at 129, 130, 132-133, 195-196,
198-200, 230-231.
[
Footnote 10]
In the Hearings on H. R. 1786,
id. at 231-232, the
following colloquy occurred between Congressman Nielson and Mr.
Ward, a United States attorney interested in § 223(b)
prosecutions:
"Mr. NIELSON. Let me ask the question I asked the previous
panel. Do any of the current alternatives by the FCC -- that is the
access codes, the credit cards, or the scrambling -- do any of
those provide a foolproof way of limiting dial-a-porn access to
adults only? Either of you."
"Mr. WARD. I think that -- it's not foolproof, but I think the
access code requirement and the screening option both provide the
means of dramatically reducing the number of calls from minors in
the United States, almost eliminating them. So I think that it
would be a very effective way to do it."
"Mr. NIELSON. But not foolproof?"
"Mr. WARD. Not absolutely foolproof."
JUSTICE SCALIA, concurring.
I join the opinion of the Court, but add a few words. It should
not be missed that we are making a value judgment with respect to
the indecency portion of the statute. The conclusion of the
reasoning in Part IV of our opinion is as follows:
"For all we know from this record, the FCC's technological
approach to restricting dial-a-porn messages to adults who seek
them would be extremely effective, and only a few of the most
enterprising and disobedient
Page 492 U. S. 132
young people would manage to secure access to such messages. If
this is the case, it seems to us that § 223(b) is not a narrowly
tailored effort to serve the compelling interest of preventing
minors from being exposed to indecent telephone messages."
Ante at
492 U. S.
130-131.
We could as well have said:
"We know from this record that the FCC's technological approach
to restricting dial-a-porn messages to adults who seek them would
be inadequate, since some enterprising and disobedient young people
would manage to secure access to such messages. Since this is the
case, it seems to us that § 223(b) is a narrowly tailored effort to
serve the compelling interest of preventing minors from being
exposed to indecent telephone messages."
I join the Court's opinion because I think it correct that a
wholesale prohibition upon adult access to indecent speech cannot
be adopted merely because the FCC's alternate proposal could be
circumvented by as few children as the evidence suggests. But where
a reasonable person draws the line in this balancing process --
that is, how few children render the risk unacceptable -- depends
in part upon what mere "indecency" (as opposed to "obscenity")
includes. The more narrow the understanding of what is "obscene,"
and hence the more pornographic what is embraced within the
residual category of "indecency," the more reasonable it becomes to
insist upon greater assurance of insulation from minors. So, while
the Court is unanimous on the reasoning of Part IV, I am not sure
it is unanimous on the assumptions underlying that reasoning. I do
not believe, for example, that any sort of sexual activity
portrayed or enacted over the phone lines would fall outside of the
obscenity portion of the statute that we uphold, and within the
indecency portion that we strike down, so long as it appeals only
to "normal, healthy sexual desires" as opposed to "shameful or
morbid" ones.
Brockett v. Spokane Arcades, Inc.,
472 U. S. 491,
472 U. S. 498
(1985).
Page 492 U. S. 133
In joining Part IV, I do so with the understanding that its
examination of the legislative history (
ante at
492 U. S.
129-130) is merely meant to establish that, no more
there than anywhere else, can data be found demonstrating the
infeasibility of alternative means to provide (given the nature of
this material) adequate protection of minors. I do not understand
the Court to suggest that such data must have been before Congress
in order for the law to be valid. Even though "[n]o Congressman or
Senator purported to present a considered judgment" on
infeasibility,
ante at
492 U. S. 130,
the law would be valid if infeasibility was true. Neither due
process nor the First Amendment requires legislation to be
supported by committee reports, floor debates, or even
consideration, but only by a vote.
Finally, I note that, while we hold the Constitution prevents
Congress from banning indecent speech in this fashion, we do not
hold that the Constitution requires public utilities to carry
it.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE STEVENS
join, concurring in part and dissenting in part.
I agree that a statute imposing criminal penalties for making,
or for allowing others to use a telephone under one's control to
make, any indecent telephonic communication for a commercial
purpose is patently unconstitutional. I therefore join Parts I, II,
and IV of the Court's opinion.
In my view, however, 47 U.S.C. § 223(b)(1)(A)'s parallel
criminal prohibition with regard to obscene commercial
communications likewise violates the First Amendment. I have long
been convinced that the exaction of criminal penalties for the
distribution of obscene materials to consenting adults is
constitutionally intolerable. In my judgment,
"the concept of 'obscenity' cannot be defined with sufficient
specificity and clarity to provide fair notice to persons who
create and distribute sexually oriented materials, to prevent
substantial erosion of protected speech as a byproduct of the
attempt
Page 492 U. S. 134
to suppress unprotected speech, and to avoid very costly
institutional harms."
Paris Adult Theatre I v. Slaton, 413 U. S.
49,
413 U. S. 103
(1973) (BRENNAN, J., dissenting). To be sure, the Government has a
strong interest in protecting children against exposure to
pornographic material that might be harmful to them.
New York
v. Ferber, 458 U. S. 747,
458 U. S.
775-777 (1982) (BRENNAN, J., concurring in judgment);
Ginsberg v. New York, 390 U. S. 629
(1968). But a complete criminal ban on obscene telephonic messages
for profit is "unconstitutionally overbroad, and therefore invalid
on its face," as a means for achieving this end.
Miller v.
California, 413 U. S. 15,
413 U. S. 47
(1973) (BRENNAN, J., dissenting).
The very evidence the Court adduces to show that denying adults
access to all indecent commercial messages "far exceeds that which
is necessary to limit the access of minors to such messages,"
ante at
492 U. S. 131,
also demonstrates that forbidding the transmission of all obscene
messages is unduly heavyhanded. After painstaking scrutiny, both
the FCC and the Second Circuit found that
"a scheme involving access codes, scrambling, and credit card
payment is a feasible and effective way to serve this compelling
state interest"
in safeguarding children.
Carlin Communications, Inc. v.
FCC, 837 F.2d 546, 555,
cert. denied, 488 U.S. 924
(1988). And during the 1987 Hearings on H. R. 1786, a United States
attorney, speaking on behalf of the Justice Department, described
the FCC's proposed regulations as "very effective," because they
would "dramatically reduc[e] the number of calls from minors in the
United States, almost eliminating them." Telephone Decency Act of
1987: Hearings on H. R. 1786 before the Subcommittee on
Telecommunications and Finance of the House Committee on Energy and
Commerce, 100th Cong., 1st Sess., 231 (1987). In addition, as the
Court notes,
ante at
492 U. S.
129-130, no contrary evidence was before Congress when
it voted to impose a total prohibition on obscene telephonic
messages for profit. Hence, the federal parties cannot plausibly
claim that their legitimate interest
Page 492 U. S. 135
in protecting children warrants this Draconian restriction on
the First Amendment rights of adults who seek to hear the messages
that Sable and others provide.
Section 223(b)(1)(A) unambiguously proscribes all obscene
commercial messages, and thus admits of no construction that would
render it constitutionally permissible. Because this criminal
statute curtails freedom of speech far more radically than the
Government's interest in preventing harm to minors could possibly
license on the record before us, I would reverse the District
Court's decision in No. 88-515 and strike down the statute on its
face. Accordingly, I dissent from Part III of the Court's
opinion.