DIAL-A-PORN

With the development of new telephone technologies, the transmission of sexually explicit messages over the phone lines has become a multimillion dollar business. Telephone pornography raises special difficulties because many children call telephone sex lines unbeknown to parents. Some companies engaged in telephone pornography actually solicit business from minors, distributing advertisements for their services on school playgrounds. In one highly publicized case in California, a twelve-year-old boy who had been exposed to a pornographic phone message sexually assaulted a four-year-old girl.

In response to concerns about the effects of telephone pornography on children, Congress in 1983 banned all "obscene or indecent" commercial phone messages transmitted to persons under the age of eighteen. Pursuant to provisions of the law, the Federal Communications Commission (FCC) developed procedures by which telephone pornography companies could restrict their services to adults, including message scrambling, mandatory payment by credit card, and special access codes for users. Use of these procedures provided a defense against prosecution under the law. In 1988, however, an appellate court held the FCC regulations unconstitutional; and a few months later, Congress decided that its previous law was not sufficient to remedy the problem and subsequently banned "obscene or indecent" telephone messages directed to all persons, regardless of age.

In Sable Communications of California, Inc. v. FCC (1989), the Supreme Court upheld Congress's ban on "obscene" phone messages by a vote of 6–3, but it unanimously struck down the prohibition against "indecent" messages. Writing for the majority, Justice byron r. white noted that the Court had already decided that obscenity is not protected by the first amendment; hence the ban on obscene phone messages was clearly constitutional under the Court's previous decisions. The indecency restriction was a different matter. Applying the compelling state interest test the Court regularly uses in free speech cases, White argued that the government undoubtedly has a compelling interest in eliminating indecent messages directed at children. However, the wholesale ban on indecent phone messages was not narrowly tailored to further that interest. According to White, nothing indicated that the regulations promulgated under the previous law would not have protected children sufficiently. White hinted, but did not decide, that those previous regulations were constitutional.

Concurring, Justice antonin scalia pointed out that while the Court forbade the government from prohibiting all indecent phone messages, it did not hold that public utilities have an obligation to carry such messages. In other words, regardless of the provisions of federal law, a utility could make a business decision not to carry sexually explicit message services.

Justice william j. brennan agreed with the Court's invalidation of the ban on indecent phone messages, but he objected to its approval of the obscenity provisions, noting: "I have long been convinced that the exaction of criminal penalties for the distribution of obscene materials to consenting adults is constitutionally intolerable."

John G. West, Jr.
(1992)