Sable Communications of California v. FCC

FCC v. Sable Communications of California
Supreme Court of the United States
Argued April 19, 1989 Decided June 23, 1989
Full case name	Federal Communications Commission, Petitioner v. Sable Communications of California, Respondent
Docket no.	88-515
Holding
Since the First Amendment does not protect obscene speech, the ban was legitimate. However, sexual expression that is simply indecent is protected. Therefore, banning adult access to indecent messages "far exceeds that which is necessary" to shield minors from dial-a-porn services.
Court membership
Chief Justice William Rehnquist Associate Justices William J. Brennan Jr. · Byron White Thurgood Marshall · Harry Blackmun John P. Stevens · Sandra Day O'Connor Antonin Scalia · Anthony Kennedy
Case opinions
Majority	White, joined by Rehnquist, O'Connor, Kennedy, and Blackmun
Concurrence	Scalia
Dissent	Brennan, joined by Stevens, and Marshall

Sable Communications of California v. FCC was a court case deciding what defines indecent material and whether it is protected under the First Amendment. The US Supreme Court invalidated part of a federal law that prohibited "dial-a-porn" telephone messaging services. The law made it a crime to transmit commercial telephone messages that were either "obscene" or "indecent." It reaffirmed that accessing indecent sites on the Internet requires interaction by a third party, and therefore the government cannot censor the Internet.

Background

In 1988, Congress amended the Communications Act of 1934 to ban indecent and obscene interstate commercial phone messages. Sable Communications had been in the dial-a-porn business since 1983. The Court said that if the government wants to protect children in this regard, it must do so by technological means, rather than by a total ban on the transmission of these messages. Although some children might be able to defeat these devices, a banning these services would have the impermissible effect of "limiting the content of adult telephone conversations to that which is suitable for children to hear."

Ruling

A judge in District Court upheld the ban on obscene messages, but ordered the Act's enforcement against indecent ones. The Court upheld the District Court's ruling. Since the First Amendment does not protect obscene speech, as the Court found in Paris Adult Theatre I v. Slaton (1973), the ban on obscene speech was legitimate. However, sexual expression that is simply indecent is protected. Therefore, banning adult access to indecent messages "far exceeds that which is necessary" to shield minors from dial-a-porn services.

Words from the Court

Sexual expression which is indecent but not obscene is protected by the First Amendment. . . . 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 minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards. . . .

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." . . . It is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends.

Significance

The court drew a sharp distinction between speech that meets the legal definition of "obscene" and speech that is "indecent" (sexually charged but not rising to the level of "obscene"). The court held that obscene speech could be restricted, but that merely indecent speech was protected by the First Amendment. This is an important distinction often overlooked by censorship proponents, who often, and quite mistakenly, jump to a conclusion that they can restrict any speech with sexual content.

The court acknowledged a legitimate governmental interest in protecting children from speech that might be obscene with regard to minors, but not obscene for adults. However, the court emphasized here, as it has in other cases, that such restrictions must be very narrow, carefully distinguishing what is and is not restricted, and carefully protecting the rights of adults to receive protected speech (even if that protected speech is indecent). This, too, is a critical point often passed over by the would-be censors. They act as if a "compelling state interest in protecting children" trumps any and every other consideration at law. It doesn't. Courts always couple that "compelling interest" clause with an "and" to a statement requiring that the compelling state interest infringe as little as possible on the Free Speech rights of both adults and minors.

See also

• Phone Sex