Amicus Curiae Brief — Sable Communications of California, Inc. v. Federal Communications Commission

Nos. 88-515, 88-525

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

SABLE COMMUNICATIONS OF CALIFORNIA, INC..

A pp ant,

Vv.

FEDERAL COMMUNICATIONS COMMISSION, ef a/..

A ppe Cts

On Appeal from the United States District Court

for the Central District of California

MOTION FOR LEAVE TO FILE AND BRIEF OF

THE UNITED STATES CATHOLIC CONFERENCE

AS AMICUS CURIAE IN SUPPORT OF THE

FEDERAL COMMUNICATIONS COMMISSION

MARK E. CHOPKO

General Counsel

UNITED STATES CATHOLIC

CONFERENCE

1312 Massachusetts Ave., N.W.

Of Counsel: Washington, D.C. 20005

KATHERINE G. GRINCEWICH (202) 659-6690

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

® cre 60

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

—_—_—_-—- —_——s so —— +

Nos. 88-515, 88-525

SABLE COMMUNICATIONS OF CALIFORNIA, INC.,

. Appellant,

FEDERAL COMMUNICATIONS COMMISSION, et al.,

Appellees.

On Appeal from the United States District Court

for the Central District of California

MOTION FOR LEAVE TO FILE BRIEF OF

THE UNITSD STATES CATHOLIC CONFERENCE

AS AMICUS CURIAE IN SUPPORT OF THE

FEDERAL COMMUNICATIONS COMMISSION

The United States Catholic Conference (“Conference”)

respectfully moves this Court for leave to file the ap-

pended brief as amicus curiae in support of the federal

governmental parties in these consolidated appeals. The

Acting Solicitor General of the United States has given

his consent to the filing of this brief. Sable Communica-

tions of California, Inc. has refused, without explanation,

thus necessitating this motion.

(i)

OOO

ii

All active Catholic Bishops in the United States are

members of the Conference, a non-profit corporation or-

ganized under the laws of the District of Columbia. The

Conference advocates and promotes the pastoral teach-

ings of the Bishops in such diverse areas as education,

family life, health care, social welfare, immigration, civil

rights, communications, and the economy. The Confer-

ence is a frequent participant in Federal Communica-

tions Commission (“FCC”) proceedings in support of the

public’s interest in broadcast regulation. It supported

the legislation under review here.' When permitted by

Court rules and practice, the Conference files briefs as

amicus curiae in litigation of importance to the Catholic

Church and its people throughout the United States.

These appeals involve an issue of first impression for

the Court—whether to extend its holding in FCC v.

Pacifica Foundation, 438 U.S. 726 (1978), upholding

broadeast restrictions on indecent speech to novel tele

phone technology spreading even more insidious inde-

cency.? Although the very idea that the government may

regulate or ban the content of telephone communications

is anathema to some, careful review of the technological

form and intentions of the purveyors of the communica-

tion will reveal marked differences. The choice by Con-

1In their recent statement, “Political Responsibility: Choices for

the Future,” p. 21 (Sept. 1987), the Bishops of the Conference’s

Administrative Board stated: “We support reasonable and constitu-

tionally acceptable regulation to limit the distribution of indecent,

pornographic, or sexually explicit materials through the electronic

media, including the telephone, so that they are not accessible to

minors.”

2 In one of its two holdings, the district court invalidated the ban

on indecent speech and the FCC appealed (No. 88-525). It also

upheld the ban on obscene speech and Sable Communications ap-

pealed (No. 88-515). Although this amicus supports both aims of

the statute, 47 U.S.C. § 223(b), this presentation is limited to the

issue of Congress’ legislative and constitutional authority over

indecent speech.

ili

gress to ban transmission of sexually explicit monologues

by the telephone comes after much debate and respects

a longstanding prudential consensus that children and

adolescents, and their famiiles, deserve specia! protection.

It is the Conference’s belief that the proper resolution

of this case will be assisted through consideration of both

(1) the role of the Congress and the Federal Communica-

tions Commission and (2) the precise technological inno-

vation presented by access to dial-a-porn services, a

particular challenge to the regulatory flexibility inherent

in broadcast authorities. Although the United States is

expected to deal with the detailed legislative process and

other statutory and constitutional issues, the Conference

will offer its own and unique perspective on the above

two issues. Thus, the Conference will not duplicate the

approach of the party it supports but amplify vital con-

stitutional and regulatory matters.

Respectfully submitted,

MARK E. CHOPKO

General Counsel

UNITED STATES CATHOLIC

CONFERENCE

1312 Massachusetts Ave., N.W.

Of Counsel: Washington, D.C. 20005

KATHERINE G. GRINCEWICH (202) 659-6690

February 22, 1989

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ...............-----2c.-:ec-eeceeeeeeeeeenees

INTEREST OF AMICUS. ...............:00---ccccececeeecesenncenoneees

SUMMARY OF ARGUMENT. ..22000...0...20.22-cceccceceeeeeeeees

BITING ecese rece cestensesscrcncievcssnctinnnenscaneinennsmnsemnmnaanenates

I.

Il.

Congress’ Decision to Eliminate Dial-A-Porn

From Telephone Transmission Mechanisms Is

Reasonable and Entitled to Deference ................

A. Congress Reasonably Attempted to Regulate

a Harmful Use of a New Technology .............

B. Restriction of Dial-A-Porn Respects the Im-

maturity of Children and Strengthens Their

I SE snitcieeticwereaiensevccieneneounsttntianssianinitinns

The Congressional Judgment to Ban Dial-

A-Porn, an Exercis® of Traditional Broadcast

Regulatory Authority, Is Consistent with the

Fe visirrccosdcinteneninsninahse densddnsniseneisiininnnys

A. The Exercise of Broadcast Regulation Over

Sexually Explicit Monologues is Constitu-

I wa sinciisnsinninincnicrccspioceviiianenpnannniinnianianiniaiiinnns

B. Congressional Consideration of Constitu-

tional Implications of Regulatory Alterni-

tives Was Reasoned and Entitled to Defer-

(v)

12

13

18

21

ape

vi

TABLE OF AUTHORITIES

Cases: Page

Bolger v. Youngs Drug Products, 463 U.S. 60

CO ccsiisniibiinnnisctiiictiacsiiieatmmbtamnialenccimeaen 13

Bowen v. Kendrick, 108 S.Ct. 2562 (1988) -............ 20

Carlin Communications v. FCC, 749 F.2d 113 (2d

Cir. 1984), cert. denied, 109 S.Ct. 305 (1988)... 6,7

Carlin Communications v. FCC, 787 F.2d 846 (2d

Cir. 1986), cert. denied, 109 S.Ct. 305 (1988)... 6,14

Carlin Communications v. Mountain States Tele-

phone and Telegraph, 827 F.2d 1291 (9th Cir.

1987), cert. denied, 108 S.Ct. 1586 (1988)........ 3, 6, 15

Carlin Communications v. FCC, 837 F.2d 546 (2d

ER, TEI ccccusstconsessctnssossetnisistecatensammecintnennnndastastonns 7

Columbia Broadcasting System v. Democratic Na-

tional Committee, 412 U.S. 94 (1978).................. 20

Community Television of Utah, Inc. v. Roy City,

555 F. Supp. 1164 (D. Utah 1982) -.................. .. 16

Cruz v. Ferve, 755 F.2d 1415 (11th Cir. 1985) -....... 16, 17

FCC v. Pacifica Foundation, 438 U.S. 726 (1978) .passim

Ginsberg v. New York, 390 U.S. 629 (1968).......... 3, 9, 10,

11,18

HBO v. Wilkinson, 531 F. Sups. 98 {D. Utah

RETEST ee ENT 16

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495

(1952) ms = AO 12

Katz v. United States, 989 U. Ss. 347 (1967) . stacmiaiaaal 13

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

UIE ccccocotaheilai <ostiiicentiniesiteisiicaalulabitbiaess ti thtelald bitiaeeiotaien 20

Meuer v. Nebraska, 262 U.S. 390 (1923) ................ 11

Miller v. California, 413 U.S. 15 (1978) ................. 10

National Association of Better Broadcasting v.

FCC, 849 F.2d 665 (D.C. Cir. 1988) ..................... 15

National Broadcasting Co. v. United States, 319

ERIE, LPR Ri nero mR 12

New York v. Ferber, 458 U.S. 747 (1982).............. 3, 9, 10

Noble State Bank v. Haskell, 219 U.S. 104

| EE Ta EES Se ERs SB ae Or OY Be Me a ant a me ROR a 11

Otis v. Porker, 187 U.S. 606 (1903) ......................... 20

Pierce v. Society of Sisters, 268 U.S. 510 (1923).. 11

Prince v. Massachusetts, 321 U.S. 158 (1944)........ 9,11

vii

TABLE OF AUTHORITIES—Continued

Page

Rescue Army v. Municipal Court, 320i U.S. 549

SINNED aahincnduatiaiahacdpidigltamkadeadslbemddhpeiamnecniciemnmeiiuedaie 20

Rostker v. Goldberg, 453 U.S. 57 (1981) -............. 4

Sable Communications of California v. FCC, 692

F. Supp. 1208 (C.D. Cal. 1988), prob. juris.

noted, 109 S.Ct. 780 (1989) (Nos. 88-515, 88-

SITE .<cisctiiacincesneecuasnsinasttshaiaihamisiiniaenachiialeeneiahaniananennnsnanenennotees 5

Stanley v. Georgia, 394 U.S. 557 (1969) ................. 13

Thompson v. Oklahoma, 108 S.Ct. 2687 (1988)... 3,9

United States v. Reidel, 402 U.S. 351 (1971)........ 14

Wisconsin v. Yoder, 406 U.S. 205 (1972) ................. 12

Administrative Decisions:

Access Charges (Lifeline Assistance Adoption),

59 Rad. Reg. (P&F) 634 (1985) 000. 14

Enforcement of Prohibitions Against the Use of

Common Carriers for the Transmission of Ob-

scene Materials, Report and Order, 56 Rad. Reg.

2d (P&F) 49, 49 Fed. Reg. 24996 (1984) ........ 6,8

Enforcement of Prohibitions Against the Use of

Common Carriers for the Transmission of Ob-

scene Materials, Second Report and Order, 50

Se S| ee 8

Enforcement of Prohibitions Against the Use of

Common Carriers for the Transmission of Ob-

scene Materials, Third Report and Order, 2 FCC

ten nae RE al EN 6 RE Sin ee 8

Report and Order, Subscription Video, 2 FCC Red

Ri NTs EE a Sates re Rk eye oa TN 15

Constitutional and Statutory Provisions and Materials:

RE IRAE ARE ee Se OTTO 14

133 Cong. Rec. $17048 (daily ed. Dec. 2, 1987)...... 9

134 Cong. Rec:

p. H1690 (daily ed. April 19,1988) 8

p. H1691 (daily ed. April 19, 1988) ........... 8, 17, 18, 19

p. H1699 (daily ed. April 19, 1988)... 7

p. H1702 (daily ed. April 19, 1988) ssecinasania 9

p. H1703 (daily ed. April 19,1988) 9

p. $1377 (daily ed. April 20, 1988) ........... Rcidians 8

p. $4378 (daily ed. April 20, 1988) 2.2.0.0... 19

viii

TABLE OF AUTHORITIES—Continued

Page

FCC News Release, FCC No. 1206 (Jan. 13, 1989) .. 14

Federal Communications Commission Authoriza-

tion Act of 1983, Pub. L. No. 98-214, §8(b),

97 Stat. 1470 (1983) (enacting 47 U.S.C. § 223

| ee ee 4,8, 15

H. Res. 351, 100th Cong., 2d Sess., 134 Cong. Rec.

lO 14

Telephone Decency Act, 47 U.S.C. $223(b) as

amended (Pub. L. No. 100-297), § 6101, 102

Stat. 424 (1988) ............. OCH EO eS Ea? SO em 4,9

Telephone Decency Act of 1987: Hearings on H.R.

1786 Before the Subcommittee on Telecommu-

nications and Finance of the House Committee

on Energy and Commerce, 100th Cong., Ist

TIT io. cascoiaascdicaiclaensianabunsiepeammveenestinnedsampntidiniaannnisaciaeiianl passim

Miscellaneous:

B. Cardozo, The Nature of the Judicial Process

GETTIN ccccsccnsesecocsscmisstantsnnsnsnisinensinnninntitemennmnenae 20

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

Nos. 88-515, 88-525

SABLE COMMUNICATIONS OF CALIFORNIA, INC.,

Appellant,

v.

FEDERAL COMMUNICATIONS COMMISSION, ef al.,

Appellees.

On Appeal from the United States District Court

for the Central District of California

BRIEF OF THE

UNITED STATES CATHOLIC CONFERENCE

AS AMICUS CURIAE IN SUPPORT OF THE

FEDERAL COMMUNICATIONS COMMISSION

INTEREST OF AMICUS

All active Catholic Bishops in the United States are

members of the United States Catholic Conference (‘“Con-

ference’), a non-profit corporation organized under the

laws of the District of Columbia. The Conference advo-

cates and promotes the pastoral teachings of the Bishops

in such diverse areas as education, family life, health

care, social welfare, immigration, civil rights, communi-

2

cations, and the economy. The Conference is a frequent

participant in Federal Communications Commission

(“FCC”) proceedings in support of the public’s interest

in broadcast regulation. It supported the legislation

under consideration here. When permitted by Court rules

and practice, the Conference files briefs as amicus curiae

in litigation of importance to the Catholic Church and its

people throughout the United States.

These appeals involve an issue of first impression for

the Court—whether to extend its holding in FCC v. Pa-

cifica Foundation, 438 U.S. 726 (1978), uphoiding broad-

cast restrictions on indecent speech to novel telephone

technology spreading even more insidious indecency. Al-

though the very ide. .nat the government may regulate

or ban the content of telephone communications is anath-

ema to some, careful review of tne technological forms

and intentions of the purveyors of the communication

will reveal marked differences. The choice by Congress

to ban transmission of sexually explicit monologues by

the telephone comes after much debate and respects a

longstanding prudential consensus that children and ado-

lescents, and their families, deserve special protection.

Unless reversed, the district court’s conclusion that such

a statute is impermissible will hamper effective regula-

tion of and expose young Americans to continued inde-

cent speech.

SUMMARY OF ARGUMENT

In the last decade there has been a remarkable growth

in new electronic technology. Americans can send and

receive information in various forms and of varying

content in ways not previously imaginable. We link

computer terminals in our homes to others thousands of

miles away, may receive over a hundred television sta-

tions on a cable or by way of satellite dish, and access

an unprecedented array of “services” by our telephones.

One of the main growth industries in telephone services

3

has been sexually explicit and suggestive, even obscene,

monologues designed to arouse and excite the dialers.

These “services,” known as dial-a-porn, are prerecorded

and “sold” to a caller for a price. Even when unavail-

able through local telephone outlets, they can be accessed,

24 hours a day, 7 days a week by long distance from any

part of the country and constitute a large number of the

telephone calls made in many areas of the country.

The technological innovation of premium services is

such that they can handle many thousands of calls simul-

taneously. Instead of being a one-on-one dialogue com-

munications, these service's resemble small radio or tele-

vision outlets for those who access then.. Carlin Com-

municatiors v. Mountain States Telephone and Telegraph,

827 F.2d 1291 ‘9th Cir. 1987), cert. denied, 108 S.Ct.

1586 (1988). According to Congressional testimony,

callers frequently include adolescents or children.' This

phenomenon has created more than a little concern among

parents, educators, medical professionals, and legislators

and regulators. Many various approaches have been at-

tempted to limit this access without apparent success.”

The Congress and the courts have long understood the

need to protect adolescents, who incompletely grasp the

full consequences of their actions, from access to such

material, both in print and in the media. New York v.

Ferber, 458 U.S. 747 (1982); FCC v. Pacifica Founda-

tion, supra; Ginsberg v. New York, 390 U.S. 629 (1968).

Last Term in Thompson v. Oklahoma, 108 S.Ct. 2687

1 Telephone Decency Act of 1987: Hearings on H.R. 1786 Before

the Subcomm. on Telecommunications and Finance of the House

Comm. on Energy and Commerce, (hereinafter “Telephone De-

cency Hearings”), 100th Cong., Ist Sess. 11 (statement of Rep.

Bliley) ; Id. at 18 (statement of Rep. Coats) ; 134 Cong. Rec. H1690

(daily ed. April 19, 1988) (statement of Rep. Hall).

* The FCC rulemakings attempting to craft effective restrictions

are listed infra at note 16.

4

(1988), involving the imposition of the death penalty on

juveniles, a plurality recited the myriad ways that society

attempts to enforce those protections through law. Some

of these, like restrictions on the right to vote, marry, or

contract, respect the relative immaturity of the adolescent

until such time as he or she is better able to exercise

these choices. Others, like parental notification in abor-

tion or consent for health care, operate to strengthen

the fundamental and constitutionally protected role of

parents in the formation, nurture, and education of their

offspring. Restrictions on access to sexually explicit and

suggestive material reflect both concerns.

In 1983, Congress attempted to mandate a set of con-

trolled access to dial-a-porn that it hoped would stop

receipt of such material by adolescents and children.

Federal Communications Commission Authorization Act

of 1983, Pub. L. No. 98-214, § 8(b), 97 Stat. 1470 (1983)

(enacting 47 U.S.C. § 223(b)). In 1987 and 1988, Con-

gress undertook a comprehensive review of dial-a-porn

purveyors and responded to concerns about access by

children and adolescents. Faced with evidence that regu-

latory attempts were failing, Congress enacted a compre-

hensive ban. Telephone Decency Act, 47 U.S.C. § 223(b)

as amended (Pub. L. No. 100-297, § 6101, 102 Stat. 424

(1988)). Given Congress’ historic role as a broadcast

and telecommunication regulator, the legislative record,

and its active consideration of the legal opinion on both

sides of the issue, its solution was hardly unreasonable

and entitled to deference by the courts. Rostker v. Gold-

berg, 453 U.S. 57 (1981). Because of the marked sim-

ilarities between the novel dial-a-porn services and broad-

cast, Congress infringed no constitutional prohibitions in

seeking to extend protections available to families and

children in the broadcast context to dial-a-porn. FCC v.

Pacifica Foundation, 438 U.S. at 748-50.

In invalidating the ban on indecent (but not obscene)

speech, the district court did not adequately weigh the

5

Congressional record, the role of the Congress, or the

technological facts. Sab.» Communications of California

v. FCC, 692 F. Supp. 1208, 1209 (C.D.Cal. 1988), prob.

juris. noted, 109 §.Ct. 780 (1989) (Nos. 88-515, 88-525) .°

It did not explore the precise nature of dial-a-porn and

compare or contrast it to other forms of broadcast. 692

F. Supp. at 1209. It rather expressed its disapproval

solely because Congress enacted a ban that pronibited

access to all sexually explicit monologues by way of the

telephone in order to protect adolescents and children. It

likewise did not believe itself empowered to apply FCC

v. Pacifica Foundation to this case. In so doing, the dis-

trict court avoided any studied consideration of the other

competing, constitutionally significant interests. Uniess

reversed, its judgment reopens the door to access and

consequent harm to this country’s youth.

ARGUMENT

I, CONGRESS’ DECISION TO ELIMINATE DIAL-

A-PORN FROM TELEPHONE TRANSMISSION

MECHANISMS IS REASONABLE AND ENTITLED

TO DEFERENCE.

A. Congress Reasonably Attempted to Regulate a

Harmful Use of a New Technology.

In the last deeade, consumers have been able to receive

more from their telephone company than traditional

telephone connections to other persons with telephones

for one-on-one conversations. Consumers are able to use

their telephone to call numbers, usually offered on an

exchange with a 976-prefix, which trigger recorded mes-

3 In one of its two holdings, the district court invalidated the ban

on indecent speech and the FCC appealed (No. 88-525). It aiso

upheld the ban on obscene speech and Sable Communications ap-

pealed (No. 88-515). Although this amicus supports both aims of

the statute, 47 U.S.C. § 223(b), this presentation is limited to the

issue of Congress’ legislative and constitutional authority over

indecent speech.

6

Sages on topics such as sports, weather, and health. There

is no conversation; the receiver listens to the message

monologue. One type of recorded message “service”

offers recordings of persons, usually women, graphically

describing sexual intercourse and other explicitly sexual

activity, a “service” commonly known as dial-a-porn. No

mere titillation, these recordings feature throaty-voiced

women describing sexual activity with groups and ani-

mals, violence directed towards them (such as rape),

and similar actions. See FCC Jurisdictional Statement, p.

5. As with other recorded message services, the same

976 number may play its recording to over 50,000 callers

per hour,‘ and to over 7,900 persons at the same time.’

The supplier of the dial-a-porn message subscribes to the

telephone company’s dial-it network, and specifies the

price to be paid per call. The telephone company bills

each caller, keeps a portion for itself, and the dial-a-porn

provider receives the remainder.* The greater the number

of calls, the more the purveyor earns.

Measured by the number of calls, dial-a-porn has been

a great financial success. From its beginnings as one

number on the New York Telephone Company dial-it

network offered by Carlin Communications, dial-a-porn

numbers offered by many companies have spread to five

of the seven major telephone companies.’ Dial-a-porn

vendors have made as much as $10,000 per day.* The

*Carlin Communications v. FCC, 749 F.2d 113, 114 (2d Cir.

1984) (Carlin 1), cert. denied, 109 S.Ct. 305 (1988).

*Carlin Communications v. FCC, 787 F.2d 846, 850 (2d Cir.

1986) (Carlin I), cert. denied, 109 S.Ct. 305 (1988).

* Enforcement of Prohibitions Against the Use of Common Car-

riers for the Transmission of Obscene Materials, Report and Order,

56 Rad. Reg. 2d (P&F) 49, 50 n.6 (1984); Carlin Communications

v. Mountain State Telephone & Telegraph, 827 F.2d 1291, 1293

(9th Cir. 1987).

7 Telephone Decency Hearings at 11 (statement of Rep. Bliley).

8 56 Rad. Reg. 2d, supra, at 50 n.6.

7

popularity of dial-a-porn numbers at times exceeded the”

popularity of any other dial-it message service.’ Dial-a-

porn calls constitute almost a quarter of the calls made

to Bell Atlantic’s 976 numbers, almost thirty percent of

Pacific Telesis’ 976 numbers, and fifteen percent of

NYNEX’s 976 numbers.””

As the popularity of dial-a-porn grew, so has aware-

ness of the alarming trend of attractiveness and availa-

bility of dial-a-porn to children and adolescents. Dial-a-

porn businesses have aggressively marketed their numbers

to the widest possible public, using indiscriminate meth-

ods. They leaflet neighborhoods, place fliers on wind-

shields, advertise in magazines, and place advertising

cards in magazine racks."' This marketing strategy has

paid off for dial-a-porn vendors by securing a huge

immature market, which avidly calls dial-a-porn numbers.

While the nature of the mechanism precludes identifica-

tion of the caller as adult or child, Congress has deter-

mined from testimony delivered a‘ hearings,"? and infor-

mation supplied by angry constituents that large num-

bers of children call these salacious messages. Congress

determined that exposure to these sexually explicit mes-

* Carlin Communications v. FCC, 837 F.2d 546, 550 (2d Cir.

1988) (Carlin 111) ; Carlin I, supra at 114-15.

1°This information was provided to Representative Bliley by

telephone companies, during the consideration of the amendment

under review here. It was provided to this amicus by his office.

1134 Cong. Rec. H1699 (daily ed. April 19, 1988) (statement of

Rep. Coats) ; Telephone Decency Hearings at 100 (1987 ) (testimony

of Dar Vander Ark, President, Michigan Decency Action Council,

inc.).

2 Telephone Decency Hearings at 18 (statement of Rep. Coats) ;

Id. at 14, 15 (statement of Rep. Bliley); 134 Cong. Rec. H1699

(daily ed. April 19, 1988) (statement of Rep. Hall) and H1691

(daily ed. April 19, 1988) (statement of Rep. Bliley).

‘8 Telephone Decency Hearings at 11 (statement of Rep. Bliley).

sages was harmful to the physical, mental, and moral

well-being of children."

Children’s access to dial-a-porn has continued unabated

since 1983, when efforts began both in Congress and

at the FCC * to restrict minors’ access to dial-a-porn. In

spite of these time-consuming and well-intentioned efforts,

by 1987 when Congress again held hearings to study

dial-a-porn, it found that child access remained a disturb-

ing reality." The reach of dial-a-porn was so troubling

that at the end of the 1987 hearings, Congress launched

a further study of technological methods of limiting ac-

cess to dial-a-porn to adults. None were found that would

preclude access by children.'* The only viable solution in

Congress’ view was to amend section 223 to eliminate dial-

a-porn from the telephone network.” Its amendment of

section 223 passed by an overwhelming majority in both

14134 Cong. Rec. $4377 (daily ed. April 20, 1988) (statement of

Sen. Hatch); Telephone Decency Hearings at 15 (statement of

Rep. Nielson).

Pub. L. No. 98-214, § 8(b), 97 Stat. 1470 (1983) (enacting 47

U.S.C. § 223(b)).

16 Enforcement of Prohibitions Against the Use of Common

Carriers for the Transmission of Obscene Materials, Third Report

and Order, 2 FCC Red 2714 (1987); Enforcement of Prohibitions

Against the Use of Common Carriers for the Transmission of

Obscene Materials, Second Report and Order, 50 Fed. Reg. 42699

(1985); Enforcement of Prohibitions Against the Use of Common

Carriers for the Transmission of Obscene Materials, Report and

Order, 49 Fed. Reg. 24996 (1984).

17 Telephone Decency Hearings at 28 (statement of Rep. Rinaldo) ;

id. at 12, 13 (statement of Rep. Bliley); /d. at 131 (testimony of

William Swindell, President, Citizens for Decency Through Law).

18 134 Cong. Rec. H1691 (daily ed. April 19, 1988) (statement of

Rep. Bliley).

19 134 Cong. Rec. H1691 (daily ed. April 19, 1988) (statement of

Rep. Bliley) ; H1690 (daily ed. April 19, 1988) (statement of Rep.

Hall) ; S4377 (daily ed. April 29, 1988) (statement of Sen. Hatch).

9

houses of Congress. The Senate passed the amendment

by a vote of 28-0. 133 Cong. Rec. $17048 (daily ed. Dec.

2, 1987). The House passed the amendment by 380-32.

134 Cong. Rec. H1702-H1703 (daily ed. April 19, 1988).

Pub. L. No. 100-297, § 6101, 102 Stat. 424 (1988).

B. Restriction of Dial-A-Porn Respects the Immaturity

of Children and Strengthens Their Parents’ Roles.

This Court always has taken special care to recognize

and support legislative choices that safeguard the mental,

physical and moral well-being of children. In a line of

cases the Court has upheld, against constitutional chal-

lenge, restrictions placed on juveniles to protect their

welfare from harm at the hands of adults. New York v.

Ferber, 458 U.S. 747 (1982) (child pornography) ; FCC

v. Pacifica Foundation, 438 U.S. 726 (1978) — broadcast

indecency) ; Ginsberg v. New York, 390 U.S. 629 (1968)

(adult magazines); Privce v. Massachusetts, 321 U.S.

158 (1944) (labor). Only last Term, the Court ex-

pounded upon the necessity for society to accommodate

a basic distinction between adults and children. Thomp-

son v. Oklahoma, 108 S.Ct. 2687 (1988) (plurality).

This Court rested its holding in Thompson, in large part,

on the belief that legislators should expressly reconsider

the capacity of juveniles to understand their crimes and

be punished by death as would adults. The plurality rec-

ognized that minors have only a reduced capacity to

appreciate the consequences of their actions and to weigh

the relative values of immediate gratification and ap-

proval against long-term harm.

Congress’ judgment that minors should be protected

from the effects of salacious material available to them

by dialing the dial-it number is consistent with the

Court’s judgment as to minor’s responsibility in Thomp-

son. See id. at 2698-2699. Even in that case, where the

end result of the minor’s actions was a sadistic murder,

the plurality acknowledged that a minor’s moral and

10

intellectual development is incomplete and rudimentary.

It is appropriate that society recognizes these inherent

limitations by attaching a lesser level of culpability to a

minor’s actions so that a sixteen-year-old cannot be re-

quired legally to weigh and balance the harm which may

come to him or her as a result of committing a serious

crime. Id. at 2692-2693 and n.23. If the legislature

cannot place that burden on even older minors who

commit violent crimes, surely it is reasonable for Con-

gress to judge that adolescents and the very young, who

necessarily understand the workings of a telephone, can-

not be left to weigh for themselves whether to risk psy-

chological harm by dialing a dial-a-porn number.

Although laws have operated in the sensitive area of

constitutionally protected rights, this Court has upheld

legislation “aimed at protecting the physical and emo-

tional well-being of youth.” New York v. Ferber, 468

U.S. at 757. In Ferber, New York state made its legis-

lative determination that even non-obscene (as defined

by Miller v. California, 413 U.S. 15 (1973)) porno-

graphic materials using children as subjects is harmful

to the physiological, emotional and mental health of

children. The Court held that the determination “easily

passes muster under the First Amendment.” New York

v. Ferber, 458 U.S. at 758. Even when the ability of

adults to sell erotic, non-obscene print material is affected,

this Court has approved legislation prohibiting such sales

to minors. Ginsberg v. New York, supra. The legislative

judgment that exposure to non-obscene, but pornographic

materials “{impairs] the ethical and moral development

of our youth and is a clear and present danger to the peo-

ple of the state” was held to be a rational and sustainable

means of “safeguarding such minors from harm.” Id. at

641.

The Court sustained that legislative judgment even

though it expressed doubt that the legislature’s finding

of harm “expresses an accepted scientific fact.” Jd. at

11

641. It was enough that a legislature reasonably could

determine that “minors’ reading and seeing sex material”

is “harmful.” Jd. Legislators need not postpone action

until they amass scientifically certain data on which

to base legislation.” Congress could not, and need not,

have done so in the case of dial-a-porn. It was sufficient

that the Congress received and considered evidence of

harm to children caused by listening to dial-a-porn.”" Cf.

Ginsberg, 390 U.S. at 641. Given the nature of the sex-

ually explicit service and the consequent harm to children,

the failure of alternative measures to stop the harm, and

the role of the Congress in protecting children, Congress

acted reasonably in enacting a dial-a-porn ban.

Of equal importance in understanding the Congres-

sional action is a desire to protect the fundamental in-

terest of parents in inculcating the values of their chil-

dren. Telephone Decency Hearings at 1 (statement of

Rep. Markey). This Court has found the “natural duty

of the parent” to educate his or her children to be part

of the fourteenth amendment liberty interest in marriage,

establishing a home, and raising children. Meyer v.

Nebraska, 262 U.S. 390, 399, 400 (1923). Parental

nurture and direction of children is not just a “right”

but a “high duty.” Pierce v. Society of Sisters, 268 U.S.

510, 535 (1925); see Prince v. Massachusetts, 321 U.S.

at 166. In Ginsberg v. New York, 390 U.S. at 689, this

Court stated that it:

has consistently recognized that the parents’ claim

to authority in their own household is basic in the

structure of our society. [quotation from Prince v.

Massachusetts omitted]. The legislature could prop-

erly conclude that parents . . . who have this primary

responsibility for children’s well-being are entitled

20 Noble State Bank v. Haskell, 219 U.S. 104, 110 (1911).

21 Certainly the record in this case supports a finding that harm

follows from exposure to explicit material. FCC Jurisdictional

Statement at 21, n.14.

12

to the support of laws designed to aid discharge of

that responsibility.

The “primary role of the parents in the upbringing of

their children is now established beyond debate as an

enduring American tradition.” Wisconsin v. Yoder, 406

U.S. 205, 232 (1972). The legislation under review here

precisely and reasonably supports that tradition.

Il. THE CONGRESSIONAL JUDGMENT TO BAN

DIAL-A-PORN, AN EXERCISE OF TRADITIONAL

BROADCAST REGULATORY AUTHORITY, IS CON-

SISTENT WITH THE FIRST AMENDMENT.

The Court has long recognized that each medium of

expression presents special first amendment problems.

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502-503

(1952). The dial-it transmission mechanism of pornog-

raphy presents such a special problem. For purposes of

first amendment analysis, the critical factor is the sim-

ilarity to regulated broadcasting (radio and television)

exhibited by the technology that distinguishes it from

forms of communication that may not be subject to these

same restrictions. It is still, however, a case of first im-

pression and one that implicates the extent to which Con-

gress can expand or contract its traditional role to coin-

cide with technological innovations. Certainly it (and the

FCC) must possess the flexibility to account for these

changes. National Broadcasting Co. v. United States,

319 U.S. 190, 219 (1943). When also considered in light

of the record of harm to children caused by exposure to

these messages (note 21, supra), a limited extension of

the reasoning of FCC v. Pacifica Foundation to dial-a-

porn transmitted over dial-it services is entirely appro-

priate and constitutional.

In FCC v. Pacifica Foundation, the FCC prohibited

broadcast indecency at times when children were reason-

ably likely to be in the audience. The Court determined

that the attributes of intrusiveness, pervasiveness, and

13

unique accessibility to children made over-the-air radio

and television broadcasting a transmission medium where

offensive expression could appropriately be restricted “at

its source.” 438 U.S. at 748-49. The Court defined in-

decency as patently offensive words dealing with sex

and excretion, and determined that such utterances,

while not absolutely out .de the scope of first amendment

protection, are protected only in certain contexts. Jd. at

745-748. Considering the compelling governmental in-

terest in protecting children from such language and in

protecting parents’ claim to authority in their house-

hold (id. at 748-50), the Court affirmed that the broad-

cast of indecency when children are reasonably likely

to be exposed to it, may be substantially regulated with-

out fear of constitutional infringement. The Court noted

approvingly that unregulated sources, bookstores and

movie theaters, may be obliged to screen children and

adolescents from prospective buyers and audiences and

therefore avoid restricting indecent material at its source.

Id. at 749. The Court stated, however, that its holding

was narrow and reflected the special nature of broadcast

media and the prospective audience. Jd. at 750. See

Bolger v. Youngs Drug Products, 463 U.S. 60 (1983).

A. The Exercise of Broadcast Regulation Over Sex-

ually Explicit Monologues is Constitutional.

The Pacifica holding is not on all fours with the in-

stant case. The telephone technology is normally sub-

ject to commercial but not content regulation. Indeed

the expectation of privacy in such conversations is great

and subject to violation at the instance of the govern-

ment only in the most narrow and compelling circum-

stances. E.g., Katz v. United States, 389 U.S. 347 (1967)

(requiring search warrant for telephone conversation in-

terception). Similarly, the possession of even obscene

material in one’s home, which can be banned in the mails

and subject to other restrictions, is given constitutional

protection. Compare Stanley v. Georgia, 394 U.S. 557

14

(1969) with United States v. Reidel, 402 U.S. 351

(1971). An approach to content-based restrictions on one’s

telephone, under this Court’s jurisprudence, must be care-

ful and tailored to achieve compelling interests. If the

instant case were solely about a ban on privately ini-

tiated and received adult conversation, on a one-to-one

basis, like ordinary dialogue communications, it would

present a difficult situation, absent some illegality. That

is not this case, which involves widely disseminated, sex-

ually explicit monologues, available to children.

In several important respects, telephone dial-a-porn

offered on a dial-it network resembles the broadcasting of

indecency by radio or television. Like broadcasting, the

telephone service is available by purchase of a receiver.

Like broadcast licensees, telephone service providers are

licensed to use the public airwaves to provide service. In

fact, telephone service has “established a uniquely per-

vasive presence in the lives of all Americans,” (cf. FCC

v. Pacifica Foundation, 438 U.S. at 748), to an even

greater extent than broadcasting. Telephones are avail-

able in 93.6 percent of all American households. FCC

News Release, FCC No. 1206 (Jan. 13, 1989). Tele-

phones are considered a necessity for Americans by Con-

gress and its expert telecommunications agency, the FCC.

See 47 U.S.C. $1. Subsidies are available to persons

who cannot afford telephones to enable them to acquire a

telephone. Access Charges (Lifeline Assistance Adop-

tion), 59 Rad. Reg. 2d (P&F) 634, 638 (1985); see H.

Res. 351, 100th Cong., 2d Sess., 134 Cong. Rec. H9671

(1988. Telephones, then, are pervasive to a greater

degree than are televisions or radios. Indeed, their pres-

ence in households is actively encouraged by the govern-

ment, in contrast to radio and television.

Another significant broadcast-type feature of dial-a-

porn is that it is truly a broad-based transmission—over

7,900 people may listen simuitaneously to one message.

Carlin II, 787 F.2d at 850. Indeed mass access is how

15

revenue is apparently generated. The more people who

may access this “service,” the greater the return to the

purveyor. Like broadcast outlets, dial-it services are

widely and aggressively advertised. The marked similar-

ity to broadcasting was noted by the Ninth Circuit. “Un-

der these circumstances the telephone is serving as a

medium by which Carlin broadcasts its messages. The

phone company resembles less a common carrier than it

does a small radio station.” Carlin Communications v.

Mountain State Telephone and Telegraph Company, 827

F.2d at 1294.

Finally, measured by the FCC definition of broadcast-

ing, dial-a-porn could and should be classified as broad-

casting. The FCC defines as broadcasting: technologies

that transmit signals that the sender intends to be re-

ceived by the general public, and that is receivable with-

out special equipment (aside from the receiver) or estab-

lishment of a subscription arrangement (as is necessary

for access to cable television), or both. Report and Order

Subscription Video, 2 FCC Red. 1001 (1987), aff'd, Na-

tional Association of Better Proadcasting v. FCC, 849

F.2d 665 (D.C. Cir. 1988). Plainly the sender intends

that the public access its monologues, as discussed above.

No prior subscription arrangement is required, only a

telephone. Thus it is within the FCC definition of broad-

casting.

Some argue that the application of broadcasting rules

is inapposite because dial-a-porn could be “managed.”

Sable Communications Motion to Dismiss or Affirm In

Part, at 6. Under the previous version of section 223,

transmission of dial-a-porn was permitted if a blocking

technology was employed to attempt to prevent access to

persons under 18. 47 U.S.C. § 223(b), Pub. L. No. 98-

214, §8(b) (1983). The blocking mechanism feature

arguably was similar to the lockbox mechanism available

for cable decoders, that allows parents to lock out access

by their children from unsupervised viewing. In this

16

way some would argue that dial-a-porn could not be

deemed “unicuely accessible to children,” and not subject

to the rationale of FCC v. Pacifica Foundation. Thus, it

is argued that dial-a-porn is like “cable television,” which

some courts have distinguished from the broadcast out-

lets for purposes of regulation.” This Court has not

addressed the issue and its merits need not be here. To

the extent this Court chooses to examine the matter,

further analysis of the analogy yields that it is inappo-

site to the instant case: dial-a-porn is distinguishable

and subject to regulation.

The availability of cable technology does not automat-

ically bring indecent material into the home. Cable does

not intrude on the home; it must be invited. Cable sig-

nals are not available merely by purchasing a television.

A subscription agreement must be made between the cable

operator and subscriber before signals may be received,

and the agreement must be renewed by monthly payments

to the cable operator. Community Television of Utah,

Inc. v. Roy City, 555 F. Supp. 1164, 1167-69 (D. Utah

1982). Further, channels which offer “adult-oriented”

material may only be obtained by payment of an addi-

tional fee and the making of an additional contract by

an adult. “Parents decide whether to select supplementary

*2 Lower courts have distinguished the transmitting mechanism

of cable television from broadcasting for the purpose of determin-

ing if indecency constitutionally may be prohibited, and have held

that, in that contert, indecent speech is entitled to greater first

amendment protection. Cruz v. Ferre, 755 F.2d 1415 (11th Cir.

1985); Community Television of Utah, Inc. v. Roy City, 555 F.

Supp. 1164 (D. Utah 1982); HBO v. Wilkinson, 531 F. Supp. 987

(D. Utah 1982). The two characteristics of broadcasting relevant

to granting indecency lesser first amendment protection when

broadcast—pervasiveness and unique accessibility to children—were

not found in the cable medium. Cruz v. Ferre, 755 F.2d at 1420-21:

Community Television of Utah, Inc. v. Roy City, 555 F. Supp. at

1167-59. This amicus takes no position on the merits of these con-

clusions which are, in any event, not material to the disposition of

the instant case.

17

programming services such as HBO.” Cruz v. Ferre, 755

F.2d 1415, 1420 (11th Cir. 1985). Lockboxes are avail-

able free of charge to a cable subscriber. Jd. at 1421.

That the burden is on the subscriber to install a lock-

box to block certain easily identifiable channels is not

unreascnable, given that the subscriber himself “invited”

those channels into his home in the first place.

On the other hand, while cable and particular selec-

tions must be chosen before a home is given access and

the choice is subject to monthly renewal, dial-a-porn is

available to a home entirely without any affirmative

action on the part of the telephone customer. Unlike

cable, a telephone customer cannot choose from a menu

of programming selections; one simply acquires a mech-

anism (the telephone) capable of receiving all available

messages. Congress, accordingly, found that the “cus-

tomer requested blocking of telephone . . . approach was

deficient [because] ‘i]t placed the onus for preventing

access to dial-a-porn on the telephone subscriber.” 134

Cong. Rec. H1691 (daily ed. April 19, 1988) (statement

of Rep. Bliley).

For the foregoing reasons, in this novel case dealing

with regulation of a new technology, this Court should

decide that dial-it services are closer to regulated broad-

cast outlets than they are to traditionally unregulated

common carriers or other media. The technological fea-

tures of dial-it services intend to reach a mass audience,

available every moment of every day. Telephones are

pervasive, the services offered are intrusive and unin-

vited, and every child learns at an early age to use a

telephone, if only to be able to dial his or her home or

an emergency number. These factors taken together in-

dicate that the Court’s holding in FCC v. Pacifica Foun-

dation applies here. For the reasons offered in Pacifica,

the extension of regulatory authority to the dial-it tech-

nology to ban dial-a-porn is constitutional.

18

B. Congressional Consideration of Constitutional Im-

plications of Regulatory Alternatives Was Rea-

soned and Entitled to Deference.

Telephone services do not distinguish the age of the

caller, but only record that a call was made. Thus to be

available to adults, dial-a-porn must necessarily be avail-

able to children. Cf. Pacifica, 438 U.S. at 758-59 (Pow-

ell, J., concurring in part). Congress in fact determined

that no blocking mechanism, including a customer prem-

ises “lock-box,” was technologically or constitutionally

feasible in the dial-a-porn context:

Mr. Speaker, I supported the initial effort to provide

conferees with the latitude necessary to arrive at a

content-neutral, technological solution. After 4

months of negotiations between the various staffs

and groups concerned with this issue, it became clear

that there was not a technological solution that

would adequately and effectively protect our children

from the effects of this material.

134 Cong. Rec. H1691 (daily ed. April 19, 1988) (state-

ment of Rep. Bliley).

The ineffectiveness of the proffered technical “fix” is

very important when the Court weighs the aggressive

marketing of the services ** and the harm that could occur

to children.** After-the-fact action by parents cannot

undo the harm or limit its implications for the future.

As the Court recognized in FCC v. Pacifica Foundation,

turning off the message after it is heard is too late—

23 Leafletting and other means of marketing are readily available

to adolescents. Because they are not mature or responsible enough

te consider the implications, adolescents have exhibited a certain

ingenuity in seeking access to dial-a-porn “services.” Cf. Ginsberg

v. New York, 390 U.S. at 649-50 (Stewart, J., concurring). First

amendment protections presuppose the capacity to choose responsi-

bly. Jd. Because the service is available anywhere, anytime, the

ability of a parent to monitor choices and access is difficult.

24 See, e.g., note 21, supra.

19

a factor that weighed heavily in the Court’s treatment

of that case. 438 U.S. at 748-49.°° Given the longstand-

ing legislative role in reviewing and enacting measures

designed both to protect children and enhance the pa-

rental role in formation and education, the statutory

ban was not only warranted but the only choice available

to preclude the adverse consequences of dial-a-porn to

children.

Congress’ judgment that the risk of serious harm to

children from access to dial-a-porn was so great that the

dial-it mechanism should not carry these salacious mes-

Sages was made after deliberately weighing the consti-

tutionality of the measure. In its 1987 hearings, it heard

discussions of the applicability of Pacifica and other

relevant decisions to its proposed action. Telephone De-

cency Hearings at 29-30, 86-89, 114, 131, 216-17, 229.

The texts of some cases were even included in the

record. Id, at 135-185. The principal sponsor, Repre-

sentative Bliley, specifically announced that the measure

was the result of deliberations that “take into considera-

tion Supreme Court decisions with regard to obscene and

indecent speech.” 134 Cong. Rec. H1691 (daily ed. April

19, 1988). Legal memoranda supporting and questioning

the measure’s constitutionality were included in the rec-

ord. 134 Cong. Rec. $4378 (daily ed. April 20, 1988)

(supporting) ; Telephone Decency Hearings at 70 (sup-

porting) ; id. at 32 (questioning).

Where Congress specifically considers the constitution-

ality of a legislative measure, finds it constitutional, and

enacts it, that finding is entitled to great weight. Bowen

*° Justice Stevens’ majority opinion quite brusquely dismisses the

point: “To say that one may avoid further offense by turning off

the radio when he hears indecent language is like saying that the

remedy for an assault is to run away after the first blow. One

may hang up on an indecent phone call, but that option does not

give the caller a constitutional immunity or avoid a harm that has

already taken place.” FCC v. Pacifica Foundation, 438 U.S. at 748-

49 (footnote omitted).

20

v. Kendrick, 108 S.Ct. 2562, 2578-79 (1988); Rostker v.

Goldberg, 453 U.S. at 64. This deference has its roots in

constitutional separation of powers. Cf. Rescue Army v.

Municipal Court, 331 U.S. 549, 571 (1947). It is the task

of the legislative branch to examine the evidence, recon-

cile differences, evaluate alternatives, and propose solu-

tions. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316,

420-21, 423 (1819). It is not the province of the judi-

ciary to frustrate the legislative will because the law

“may seem to the judges who pass upon it excessive, un-

suited to its ostensible end, or based on conceptions of

morality with which they disagree.” Otis v. Parker, 187

U.S. 606, 608 (1903); B. Cardozo, The Nature of the Ju-

dicial Process 141 (1921). In the instant case, that kind

of legislative judgment is subrogated by the district

court. This Court should adhere to the views expressed

in Columbia Broadcasting System v. Democratic National

Committee, “that when we face a complex problem with

many hard questions and few easy answers we do well to

pay careful attention to how the other branches of Gov-

ernment have addressed the same problem.” 412 U.S.

94, 103 (1973). In a close case—and this is one—in

which the application of law is to a novel technology and

in which the consequences of a wrong choice may be dev-

astating to children and to the protected interests of

their parents, no judgment of unconstitutionality should

be possible.

21

CONCLUSION

For the foregoing reasons, the judgment of the district

court invalidating the statutory ban on access to inde-

cent speech through dial-a-porn telephone service should

be reversed.

Respectfully submitted,

MARK E. CHopKo

General Counsel

UNITED STATES CATHOLIC

CONFERENCE

1312 Massachusetts Ave., N.W.

Of Counsel:

Washington, D.C. 20005

KATHERINE G. GRINCEWICH (202) 659-6690

February 22, 1989