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

1989-06-23

Headline: Ban on obscene commercial dial-a-porn calls upheld, but nationwide ban on indecent commercial telephone messages struck down, restoring adults' access and limiting Congress's power to criminalize indecent speech.

Holding:

Real World Impact:

Companies can be prosecuted for obscene phone messages but not for indecent ones.
Providers may use access codes, credit-card screening, and scrambling to limit minor access.
Congress cannot impose a total criminal ban on indecent adult speech over the phone.

Topics: obscenity law, indecency and free speech, telephone adult services, children's protection, FCC regulation

Summary

Background

In 1983 a private company that ran paid prerecorded adult telephone services (often called "dial-a-porn") began offering sexually explicit messages by long-distance calls. In 1988 Congress amended a federal law to ban both "obscene" and "indecent" interstate commercial telephone messages and removed FCC rules that had allowed access controls. The company sued the FCC and the Justice Department, arguing the law violated the First Amendment, and a lower court upheld the ban on obscene messages but blocked enforcement of the indecent ban.

Reasoning

The Supreme Court considered two questions: whether Congress may criminally ban obscene telephone messages and whether it could ban indecent but not obscene messages to adults. The Court held that banning obscene interstate commercial calls is constitutional because obscenity is not protected speech, so that ban was upheld. But the Court found the total prohibition on indecent commercial messages unconstitutional because it swept too broadly and was not narrowly tailored to protect children, especially given available methods like access codes, credit-card screening, and scrambling.

Real world impact

As a result, companies that transmit sexually explicit material by phone face criminal liability for obscene recordings but not for indecent ones; they can offer indecent material to consenting adults if they use less restrictive safeguards. The decision leaves in place FCC and court-developed technical solutions as viable options and limits Congress's ability to impose a blanket criminal ban on indecent adult speech. The ruling is not a temporary order; it is a final constitutional judgment on these provisions.

Dissents or concurrances

Justice Scalia agreed with the result but emphasized value judgments about indecency; Justice Brennan (joined by two colleagues) would have struck down the obscenity ban too, arguing criminal penalties for distribution to consenting adults are unconstitutional.