Document ID: A:\SABLE.TXT SABLE COMMUNICATIONS OF CALIFORNIA, INC. v. FEDERAL COMMUNICATIONS COMMISSION ET AL. Nos. 88-515, 88-525 SUPREME COURT OF THE UNITED STATES 492 U.S. 115; 109 S. Ct. 2829; 1989 U.S. LEXIS 3135; 106 L. Ed. 2d 93; 57 U.S.L.W. 4920; 66 Rad. Reg. 2d (P & F) 969; 16 Media L. Rep. 1961 April 19, 1989, Argued June 23, 1989, Decided * * Together with No. 88-525, Federal Communications Commission et al. v. Sable Communications of California, Inc., also on appeal from the same court. PRIOR HISTORY: APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CA DISPOSITION: 692 F.Supp. 1208, affirmed. SYLLABUS: [***1] Section 223(b) of the Communications Act of 1934, as amended, bans in rs' access to dial-a-porn -- the Federal Communications Commission (FCC), after lengthy co which offers sexually oriented prerecorded telephone messages to callers both in and outsi under the First and Fourteenth Amendments, and seeking an injunction enjoining the FCC and gment. The court denied Sable's request for a preliminary injunction against enforcement However, it issued the injunction with regard to the indecent speech provision, holding t to indecent dial-a-porn messages. Held: 1. Section 223(b) does not unconstitutionally prohibit the interstate transmission of o mporary community standards" requirement of Miller v. California, 413 U.S. 15, since it no There is no constitutional barrier under Miller to prohibiting communications that are obs tailor its messages, [***3] on a selective basis, to the communities it chooses to ser 2. Section 223(b)'s ban on indecent telephone messages violates the First Amendment sin to the messages. FCC v. Pacifica Foundation, 438 U.S. 726, an emphatically narrow ruling g indecent material, relied on the "unique" attributes of broadcasting, which can intrude ake affirmative steps to receive the communications. The Government's argument that nothi that effect is unpersuasive. There is no evidence to show that children would have evade tive findings cannot limit judicial inquiry where First Amendment rights are at stake. He achieve the Government's interest in protecting minors. Pp. 126-131. COUNSEL: Richard G. Taranto argued the cause for appellees in No. 88-515 and for appellant , Jacob M. Lewis, and Diane S. Killory. Laurence H. Tribe argued the cause for appellant in No. 88-515 and for appellee in No. + Briefs of amici curiae were filed for Minority Members of the Committee on Energy and , C. Edwin Baker, Susan M. Liss, Jan G. Levine, Howard Monderer, Lois J. Schiffer, Karen C Family Association, Inc., by Peggy M. Coleman; for the Association of Interactive Informat l M. Waggoner, Stuart R. Dunwoody, and Harold E. Akselrad; for the Pacifica Foundation by by Mark E. Chopko; for John W. Olivo, Jr., by Robert T. Perry; and for Jane Roe et al. by JUDGES: White, J., delivered the opinion for a unanimous Court with respect to Parts I, II led a concurring opinion, post, p. 131. Brennan, J., filed an opinion concurring in part OPINIONBY: WHITE OPINION: [*117] [**2832] JUSTICE WHITE delivered the opinion of theCourt. The issue before us is the constitutionality of @ 223(b) of the Communications Act of 1 s. The District Court upheld the prohibition against obscene interstate telephone communi cts. I In 1983, Sable Communications, Inc., a Los Angeles-based affiliate of Carlin Communicat rk. In order to provide the messages, Sable arranged with Pacific Bell to use special tel by Pacific Bell and divided between the phone company and the message provider. Callers - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 A typical prerecorded message lasts anywhere from 30 seconds to two minutes and may - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***6] In 1988, Sable brought suit in District Court seeking declaratory and injunctive relief mmercial telephone messages. Sable brought this action to enjoin the FCC and the Justice udgment, challenging the indecency and the obscenity provisions of the amended @ 223(b) as The District Court found that a concrete controversy existed and that Sable met the irr ict Court denied Sable's request for a preliminary injunction against enforcement of the s strict [***7] Court, however, [*119] struck down the "indecent speech" provision o ion, 438 U.S. 726 (1978). "While the government unquestionably has a legitimate interest i nt speech is contrary to the First Amendment." 692 F.Supp., at 1209. Therefore, the Court We noted probable jurisdiction on Sable's appeal of the obscenity ruling (No. 88-515); on indecent speech (No. 88-525). 488 U.S. 1003 (1989). n2 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Sable appealed the District Court ruling to the Court of Appeals for the Ninth Circu tatute during the pendency of the appeal. After the federal parties filed their notice of d an order directing Sable either to file a motion for voluntary dismissal or to show caus return on the Court of Appeals' order to show cause. The Court of Appeals entered an orde - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***8] II While dial-a-porn services are a creature of this decade, the medium, in its brief hist ht under 82 Stat. 112, 47 U. S. C. @ 223, which proscribed knowingly "permitting a telepho concluded in an administrative action that the existing law did not cover dial-a-porn. I - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 Dial-a-porn is big business. The dial-a-porn service in New York City alone receive - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In reaction to that FCC determination, Congress made its first effort explicitly to add n this case, pertained directly to sexually oriented commercial telephone messages and sou @ 8(b), 97 Stat. 1470, made it a crime to use telephone facilities to make "obscene or in 47 U. S. C. @ 223(b)(1)(A) (1982 ed., Supp. IV). The statute criminalized commercial tra n out underaged callers. @ 223(b)(2). The enactment provided that it would be a defense t sexually oriented messages to adults, whether the messages were obscene or indecent. [**2834] The FCC initially promulgated regulations that would have established a defe it card (screening) before transmission of the dial-a-porn message. Restrictions on Obsce or the Second Circuit set aside the time channeling regulations and remanded to the FCC to certain hours, but not to youths who can easily pick up a private or public telephone and In 1985, the FCC promulgated new regulations which continued to permit credit card paym us, it would be a defense to prosecution under @ 223(b) if the defendant, [***11] befo . 42699, 42705 (1985). The regulations required each dial-a-porn vendor to develop an iden e message. The access code would be received through the mail after the message provider proposal for "exchange blocking" which would block or screen telephone numbers at the cust new regulations because of the FCC's failure adequately to consider customer premises bloc The FCC then promulgated a third set of regulations, which again rejected customer prem Under this system, providers would scramble the message, which would then be unintelligib III), cert. denied, 488 U.S. 924 (1988), the Court of Appeals for the Second Circuit held viders, were supported by the evidence, had been properly arrived at, and were a "feasible restrictive technology became available. The Court of Appeals, however, this time reachin Thereafter, in April 1988, Congress amended @ 223(b) of the Communications [***13] Ac ffect on July 1, 1988, also eliminated the requirement that the FCC promulgate regulations cess to the sexually explicit messages, Pub. L. 100-297, 102 Stat. 424. n4 It was this ver - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 "(b)(1) Whoever knowingly -- "(A) in the District of Columbia or in interstate or foreign communication, by means of uch communication placed the call; or "(B) permits any telephone facility under such person's control to be used for an activ "shall be fined not more than $ 50,000 or imprisoned not more than six months, or both." n5 After Sable and the federal parties filed their jurisdictional statements with this 524, 102 Stat. 4502, which was enacted as Title VII, Subtitle N, of the Anti-Drug Abuse Ac ainst obscene commercial telephone messages in a subsection separate from that containing h 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 Chi "(b)(1) Whoever knowingly -- "(A) in the District of Columbia or in interstate or foreign communication, by means of ation placed the call; or "(B) permits any telephone facility under such person's control to be used for an activ "shall be fined in accordance with title 18 of the United States Code, or imprisoned not m "(2) Whoever knowingly -- "(A) in the District of Columbia or in interstate or foreign communication, by means of cation placed the call; or "(B) permits any telephone facility under such person's control to be used for an activ "shall be fined not more than $ 50,000 or imprisoned not more than six months, or both." 1 Since the substantive prohibitions under this amendment remain the same, this case is n - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***14] [*124] III In the ruling at issue in No. 88-515, the District Court upheld @ 223(b)'s prohibition barrier to the ban on obscene dial-a-porn recordings. We have repeatedly held that the p do not require us to decide what is obscene or what is indecent but rather to determine wh In its facial challenge to the statute, Sable argues that the legislation creates an im nt community. n6 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 In its jurisdictional statement, Sable also argued that the prohibition on obscene c dification of the statute in which Congress specifically placed the ban on obscene commerc - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***15] We do not read @ 223(b) as contravening the "contemporary community standards" requirem prohibiting the mailing of obscene materials, 18 U. S. C. @ 1461, see Hamling v. United prohibit the use of the mails for commercial distribution of materials properly classifia stitutional stricture against Congress' prohibiting the interstate transmission of obscene We stated in United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973), that the M allegedly obscene materials may be subjected to varying community standards in the [***1 on of uniform national standards of obscenity." Hamling v. United States, supra, at 106. Furthermore, Sable is free to tailor its messages, on a selective basis, if it so choos ng calls, there is no constitutional impediment to enacting a law which may impose such co ny to arrange for the screening and blocking of out-of-area calls or finds another means iting communications that are obscene in some communities under local standards even thoug rden [***17] of complying with the prohibition on obscene messages. IV In No. 88-525, the District Court concluded that while the Government has a legitimate the First Amendment. We agree. Sexual expression which is indecent but not obscene is protected by the First Amendment r, regulate the content of constitutionally protected speech in order to promote a compell physical and psychological well-being of minors. This interest extends to shielding mino 6-757 (1982). The Government may serve this legitimate interest, but to withstand constitu eedoms. Hynes v. Mayor of [**2837] Oradell, 425 U.S., at 620; First National Bank of t'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 und t found the law to be insufficiently tailored since it denied adults their free speech rig d., at 383. In our judgment, this case, like Butler, presents us with "legislation not rea In attempting to justify the complete ban and criminalization of the indecent [***19] Court considered whether the FCC has the power to regulate a radio broadcast that is inde Pacifica is readily distinguishable from this case, most obviously because it did not i t rather sought to channel it to times of day when children most likely would not be expos 28. The Pacifica opinion also relied on the "unique" attributes of broadcasting, noting tha even those too young to read." Id., at [***20] 748-749. The private commercial telephone and other means of expression which the recipient has no meaningful opportunity to avoid, l generally not be unwilling listeners. The context of dial-in services, where a caller s ne call is not the same as turning on a radio and being taken by surprise by an indecent m 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., overnment may not 'reduce the adult population . . . to . . . only what is fit for childre [**2838] The federal parties nevertheless argue that the total ban on indecent commer . The FCC, after lengthy proceedings, determined that its credit card, access code, and s consideration, agreed that these rules represented a "feasible and effective" way to serv The federal parties now insist that the rules would not be effective enough -- that ent us to that effect, nor could there be since [*129] the FCC's implementation of @ 223( expressed its view that there was not a sufficiently effective way to protect minors short To the extent that the federal parties suggest that we should defer to Congress' conclu tution. This is particularly true where the Legislature has concluded that its product do ons, Inc. v. Virginia, 435 U.S. 829, 843 (1978). The fedearl parties, however, also urge u 73 U.S. 305, 331, n. 12 (1985), and Rostker v. Goldberg, 453 U.S. 57, 72-73 (1981). Beyond onal law, our answer is that the congressional record contains no legislative findings tha rotecting minors. There is no doubt Congress enacted a total ban on both obscene and indecent telephone c antially identical bill the year before, H. R. 1786, n8 that under the FCC regulations min recent regulations were or might prove to be. It may well be that there is no fail-safe m ere a committee report on the bill from which the [***24] [**2839] language of the umvent the rules and have access to dial-a-porn messages. On the other hand, in the heari ermore, at the conclusion of the hearing, the Chairman of the Subcommittee suggested consu s and groups are looking for." Hearings, at 235. The bill never emerged from Committee. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 See e. g., 134 Cong. Rec. 7331 (1988) (statement of Rep. Bliley); id., at 7336 (stat n8 Telephone Decency Act of 1987: Hearing on H. R. 1786 before the Subcommittee on Tele , at 20 (Rep. Tauke). These hearings were held while Carlin III was pending before the Court of Appeals for t n9 See, e. g., Hearings, at 129, 130, 132-133, 195-196, 198-200, 230-231. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - "For all we know from this record, the FCC's technological approach to restricting dial cess to such messages. n10 If this is the case, [*131] it seems to us that @ 223(b) is n ), in its present form, has the invalid effect of limiting the content of adult telephone - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n10 In the Hearings on H. R. 1786, id., at 231-232, the following colloquy occurred bet "Mr. NIELSON. Let me ask the question I asked the previous panel. Do any of the curren to adults only? Either of you. "Mr. WARD. I think that -- it's not foolproof, but I think the access code requirement that it would be a very effective way to do it. "Mr. NIELSON. But not foolproof? "Mr. WARD. Not absolutely foolproof." - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***26] Because the statute's denial of adult access to telephone messages which are indecent b Accordingly, we affirm the judgment of the District Court in Nos. 88-515 and 88-525. It is so ordered. CONCURBY: SCALIA; BRENNAN (In Part) CONCUR: JUSTICE SCALIA, concurring. I join the opinion of the Court, but add a few words. It should not be missed that we " For all we know from this record, the FCC's technological approach to restricting dia secure access to such messages. If this is the case, it seems to us that @ 223(b) is not We could as well have said: "We know from this record that the FCC's [***27] technological approach to restrict ages. Since this is the case, it [**2840] seems to us that @ 223(b) is a narrowly tai I join the Court's opinion because I think it correct that a wholesale prohibition upon ad here a reasonable person draws the line in this balancing process -- that is, how few chil bscene," and hence the more pornographic what is embraced within the residual category of I am not sure it is unanimous on the assumptions [***28] underlying that reasoning. I hat we uphold, and within the indecency portion that we strike down, so long as it appeals [*133] In joining Part IV, I do so with the understanding that its examination of the native means to provide (given the nature of this material) adequate protection of minors. rported to present a considered judgment" on infeasibility, ante, at 130, the law would be ideration, but only by a [***29] vote. Finally, I note that while we hold the Constitution prevents Congress from banning inde DISSENTBY: BRENNAN (In Part) DISSENT: JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE STEVENS join, concurring I agree that a statute imposing criminal penalties for making, or for allowing others t 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 re tion of obscene materials to consenting adults is constitutionally intolerable. In my jud ented materials, to prevent substantial erosion of protected speech as a byproduct of the (BRENNAN, J., dissenting). To be sure, the Government has a strong interest in protecting ment); Ginsberg v. New York, 390 U.S. 629 (1968). But a [**2841] complete criminal ban o ia, 413 U.S. 15, 47 (1973) (BRENNAN, J., dissenting). The very evidence the Court adduces to show that denying adults access to all indecent ssion of all obscene messages is unduly heavyhanded. After painstaking scrutiny, both the [***31] state interest" in safeguarding children. Carlin Communications, Inc. v. FCC, ent described the FCC's proposed regulations as "very effective," because they would "dram bcommittee on Telecommunications and Finance of the House Committee on Energy and Commerce ohibition on obscene telephonic messages for profit. Hence, the federal parties cannot pl hear the messages that Sable and others provide. Section 223(b)(1)(A) unambiguously proscribes all obscene commercial messages, and thus than the Government's interest in preventing harm to minors could possibly license on the Court's opinion.