Sable Communications of California, Inc. v. Federal Communications Commn.
(1989)
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Rule of Law:
While obscene speech may be categorically banned, a law that completely bans indecent but not obscene speech for adults is an unconstitutional violation of the First Amendment if there are less restrictive means available to achieve the government's compelling interest in protecting minors.
Facts:
- Sable Communications, Inc. began offering sexually oriented prerecorded telephone messages, known as 'dial-a-porn,' to the public.
- Callers were charged a fee for the messages, which was collected by the telephone company and shared with Sable.
- The service was accessible via local calls in the Los Angeles area and through long-distance toll calls from outside the area.
- In 1988, Congress amended the Communications Act of 1934, creating § 223(b).
- The 1988 amendment imposed a blanket prohibition on all obscene and indecent interstate commercial telephone messages, banning them for adults and minors alike.
- This total ban replaced previous regulations that had focused on restricting access for minors through methods like credit card payments, access codes, or message scrambling.
Procedural Posture:
- Sable Communications, Inc. sued the Federal Communications Commission (FCC) and the Justice Department in the U.S. District Court for the Central District of California.
- Sable sought a declaratory judgment that the 1988 amendment to § 223(b) was unconstitutional and an injunction against its enforcement.
- The District Court upheld the statute's ban on obscene messages and denied Sable's request for an injunction on that provision.
- The District Court found the statute's ban on indecent messages to be unconstitutional and issued a preliminary injunction prohibiting its enforcement.
- Sable appealed the District Court's ruling on the obscenity ban directly to the U.S. Supreme Court.
- The federal parties cross-appealed the District Court's ruling on the indecency ban directly to the U.S. Supreme Court.
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Issue:
Does § 223(b) of the Communications Act, which imposes a total ban on indecent interstate commercial telephone messages, violate the First Amendment because it is not narrowly tailored to serve the government's compelling interest in protecting minors?
Opinions:
Majority - Justice White
Yes. A statute that denies adult access to telephone messages which are indecent but not obscene far exceeds what is necessary to limit the access of minors to such messages and is therefore unconstitutional. The government has a compelling interest in protecting minors, but to withstand constitutional scrutiny, a regulation must use the least restrictive means to achieve that interest. A total ban on indecent speech fails this test because it 'burn[s] the house to roast the pig' by reducing the adult population to only hearing what is fit for children. The Court distinguished this case from FCC v. Pacifica Foundation, noting that dial-a-porn requires an affirmative act by the listener and does not create a 'captive audience' problem like broadcast media. The record contained no congressional findings that less restrictive means, such as credit card verification or access codes, were ineffective. Separately, the Court affirmed the statute's ban on obscene telephone messages, holding that obscenity is not protected by the First Amendment and that the statute did not create an impermissible 'national standard' of obscenity.
Concurring - Justice Scalia
Justice Scalia joined the majority opinion but wrote separately to emphasize that the Court's decision on the indecency ban was a value judgment. He noted that determining how much risk of minor access is acceptable depends on how one defines 'indecency.' He also clarified that the Court's review of the legislative history was not to suggest Congress must have supporting data for a law to be valid, but merely to show that no data demonstrated the infeasibility of less restrictive alternatives. Finally, he noted that while the Constitution prevents Congress from banning this speech, it does not require public utilities to carry it.
Concurring-in-part-and-dissenting-in-part - Justice Brennan
Justice Brennan agreed with the majority's decision to strike down the ban on indecent communications. However, he dissented from the portion of the opinion upholding the ban on obscene communications. He argued that the concept of 'obscenity' is too vague to be the basis for criminal penalties and that the government's interest in protecting children does not justify a complete criminal ban for consenting adults. In his view, the same logic that makes the indecency ban unconstitutional—the existence of less restrictive alternatives like access codes—should also apply to the obscenity ban, rendering it unconstitutionally overbroad.
Analysis:
This case solidifies the constitutional distinction between obscenity and indecency, affirming that the former has no First Amendment protection while the latter receives significant protection for adult audiences. It sets a high bar for regulations aiming to protect minors from indecent speech, requiring the government to prove that a total ban is the only feasible option and that less restrictive measures are ineffective. The decision limits the reach of the 'pervasiveness' doctrine from FCC v. Pacifica, creating a clearer standard for media that requires affirmative user participation (like telephone or the internet) as opposed to broadcast media. This ruling became a foundational precedent for analyzing the constitutionality of subsequent internet speech regulations.
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