Sable challenged the congressional act that criminally prohibits obscene or indecent telephone messages.
Sexual expression that is indecent but not obscene is protected by the First Amendment. The Government may regulate the content of constitutionally protected speech to promote a compelling interest if it chooses the least restrictive means to further the alleged interest.
By amending the Communications Act of 1934, Congress sought to control “sexually-oriented pre-recorded telephone messages” (“dial-a-porn” services), criminally prohibiting telephone messages that were either obscene or indecent.
Does the congressional act that criminally prohibits obscene or indecent telephone messages violate the First Amendment?
Yes and No. The prohibition against obscene telephone communications is constitutional because the Government has a compelling interest in protecting the physical and psychological well-being of minors under the First Amendment. However, the prohibition against indecent telephone communications is not constitutional because the statute’s denial of access to indecent telephone messages far exceeds what is necessary to limit the access of minors.
Justice Scalia and Brennan
Scalia: A total prohibition upon adult access to indecent speech cannot be adopted merely because the Government’s alternate proposal could be circumvented by few children. However, where a reasonable person draws the line in this balancing process – how few children make the risk unacceptable – depends upon what mere indecency, as opposed to obscenity, includes.
Brennan: Forbidding the transmission of all obscene messages is unduly heavyhanded. Because the statute abridges freedom of speech far more than the Government’s interest in preventing harm to minors, the statute must be stricken down.
The Government relies on FCC v. Pacifica to justify the complete ban on the indecent commercial telephone communications. However, that case is distinguishable from this case because the private commercial telephone communications at issue are substantially different from the public radio broadcast in Pacifica. In contrast to public displays, unsolicited mailings and other means of expression that the recipient has no meaningful opportunity to avoid, the dial-it medium requires the listener to take affirmative steps to receive the communication. Unlike an unexpected outburst on a radio broadcast, the message received by a person who places a call to a dial-a-porn service is not so invasive that it prevents an unwilling listener from avoiding exposure to it. Because the statute’s denial of adult access to telephone messages that are indecent but not obscene goes beyond what is necessary to limit the access of minors to such messages, the ban is unconstitutional.