Sable Communications of California, Inc v. Federal Communications Commission Federal Communications Commission v. Sable Communications of California, Inc

• Court: U.S. Supreme Court
• Writing for the Court: 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
• Citation: Sable Communications of California, Inc v. Federal Communications Commission Federal Communications Commission v. Sable Communications of California, Inc, 492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989)
• Decision Date: 23 June 1989
• Docket Number: 88-525,Nos. 88-515,s. 88-515
• Parties: SABLE COMMUNICATIONS OF CALIFORNIA, INC., Appellant v. FEDERAL COMMUNICATIONS COMMISSION et al. FEDERAL COMMUNICATIONS COMMISSION, et al., Appellants v. SABLE COMMUNICATIONS OF CALIFORNIA, INC

492 U.S. 115

109 S.Ct. 2829

106 L.Ed.2d 93

SABLE COMMUNICATIONS OF CALIFORNIA, INC., Appellant

v FEDERAL COMMUNICATIONS COMMISSION et al.

FEDERAL COMMUNICATIONS COMMISSION, et al., Appellants

v. SABLE COMMUNICATIONS OF CALIFORNIA, INC.

Nos. 88-515, 88-525.

Argued April 19, 1989.

Decided June 23, 1989.

Syllabus

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, 93 S.Ct. 2607, 37 L.Ed.2d 419, since it no more establishes a "national standard" of obscenity than do federal statutes prohibiting the mailing of obscene materials or the broadcasting of 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. 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, 98 S.Ct. 3026, 57 L.Ed.2d 1073, an emphatically narrow ruling giving the FCC power to regulate an indecent radio broadcast, is readily distinguishable from these cases. 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. 126-131.

692 F.Supp. 1208 (C.D.Cal.1988), 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. 131. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined, post, p. 133.

Richard G. Taranto for the F.C.C., et al.

Laurence H. Tribe, Cambridge, Mass., for Sable Communications of California, Inc.

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) (1982 ed., Supp. V). 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 sexu- ally oriented prerecorded telephone messages 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 Federal Communications Commission (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, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976). 692 F.Supp. 1208, 1209 (C.D.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, how- ever, 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, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (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, 109 S.Ct. 780, 102 L.Ed.2d 772 (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- tion.³ 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...