SABLE COMMUNICATIONS OF CALIFORNIA, INC. v. FEDERAL COMMUNICATIONS COMMISSION ET AL.
No. 88-515
Supreme Court of the United States
Argued April 19, 1989-Decided June 23, 1989
492 U.S. 115
Richard G. Taranto argued the cause for appellees in No. 88-515 and for appellants in No. 88-525. With him on the briefs were Acting Solicitor General Bryson, Assistant Attorney General Bolton, Deputy Solicitor General Wallace, Barbara L. Herwig, Jacob M. Lewis, and Diane S. Killory.
JUSTICE WHITE delivered the opinion of the Court.
The issue before us is the constitutionality of
I
In 1983, Sable Communications, Inc., a Los Angeles-based affiliate of Carlin Communications, Inc., began offering sexu
In 1988, Sable brought suit in District Court seeking declaratory and injunctive relief against enforcement of the recently amended
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, 373 (1976). 692 F. Supp. 1208, 1209 (CD Cal. 1988). The District Court denied Sable‘s request for a preliminаry 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, how
We noted probable jurisdiction оn 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).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 regula
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 tо 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.”
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,
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
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
Thereafter, in April 1988, Congress amended
In the ruling at issue in No. 88-515, the District Court upheld
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.6
We do not read
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 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 tеlephone 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
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,
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 well-being of minоrs. 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, 639-640 (1968); New York v. Ferber, 458 U. S. 747, 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 620; First National Bank of Boston v. Bellotti, 435 U. S. 765, 786 (1978).” Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 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
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 these cases, most obviously because it did not involve a totаl 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 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 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 748-749. The private commercial telephone communications at issue here are substantially different from the public radio broadcast at issue in Pacifica. In сontrast to public displays, unsolicited mailings and other means of expression which the recipient has no meaningful opportunity to avoid, the dial-it
The Court in Pacifica was careful “to emphasize the narrowness of [its] holding.” Id., at 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 73, quoting Butler v. Michigan, supra, at 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 keeрing 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
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, 843 (1978). The federal parties, however, also urge us to defer to the factual findings by Congress relevant to resolving thе constitutional issue; they rely on Walters v. National Association of Radiation Survivors, 473 U. S. 305, 331, n. 12 (1985), and Rostker v. Goldberg, 453 U. S. 57, 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,7 as well as similar assertions in hearings on
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.10 If this is the case,
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.
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
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 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 alternаte 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, 498 (1985).
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 fоr a commercial purpose is patently unconstitutional. I therefore join Parts I, II, and IV of the Court‘s opinion.
In my view, however,
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 131, also demonstrates that forbidding the transmission of all obscene messages is unduly heavyhanded. Aftеr 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 129-130, no сontrary 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
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.