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

Suprema Mautt, Oe

RiRED

ae WAR 24 1989

JOSEPH & SPANIOL, JR

IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1988

FEDERAL COMMUNICATIONS COMMISSION and

RICHARD L. THORNBURGH, ATTORNEY GENERAL

OF THE UNITED STATES,

Appellants,

Vv.

SABLE COMMUNICATIONS OF CALIFORNIA, INC.,

Appellee.

On Appeal from the United States District Court

for the Central District of California

BRIEF OF AMICI CURIAE

JANE ROE, JOHN DOE, INC., AND THE

CONSENTING ADULTS

TELEPHONE RIGHTS ASSOCIATION

IN SUPPORT OF APPELLEE

Of Counsel: BRUCE J. ENNIS

(Counsel of Record)

Kit ADELMAN-PIERSON

MARK D. SCHNEIDER

JOHN T. NAKAHATA

JENNER & BLOCK

21 Dupont Circle, N.W.

Washington, D.C. 20036

Telephone: (202) 223-4400

March 25, 1989 Attorneys for Amici

NEIL I. ADELMAN

RICHARD D. EMERY

WILSON - Eres PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

ARGUMENT

I. CONTRARY TO THE GOVERNMENT'S

CLAIM, SECTION 223(b)’S PROHIBITION

OF “INDECENT” SPEECH CRIMINALIZES A

SUBSTANTIAL AMOUNT OF SPEECH THAT

IS CONSTITUTIONALLY PROTECTED FOR

ADULTS AND IS VIRTUALLY INACCESSI-

BLE TO MINORS. BECAUSE THAT PRO-

HIBITION IS PLAINLY OVERBROAD, THIS

COURT SHOULD AFFIRM THE LOWER

COURT'S “INDECENCY” RULING 0.

A. The Government May Not Prohibit and

Criminalize “Indecent” Live, Private, Two-

Way Telephone Conversations Between Con-

senting Adults Paid For In Advance By

gS ce RR EERIE RE Eon oa

1. The Government Could Not Criminalize

“Indecent,” Live, Private Two-Way Tele-

phone Conversations Between Consenting

Adults Even If It Could Demonstrate

That Minors Participate In Similar

a

2. “Indecent,” Live, Private Two-Way Tele-

phone Conversations Between Consenting

Adults Are Constitutionally Protected In

Any Event Because There Is No Evidence

That Any Children Participate In Similar

EE Ee ee

Il.

ii

TABLE OF CONTENTS—Continued

B. Because Section 223(b) Purports To Crimi-

nalize “Indecent” Live, Private, Two-Way

Conversations Paid For By Credit Card, It

Is Substantially Overbroad And Therefore

Unconstitutional On Its Face —

IF THE COURT DETERMINES THAT THE

STATUTE IS NOT SUBSTANTIALLY OVER-

BROAD, IT SHOULD NEVERTHELESS

MAKE CLEAR THE SUBSTANTIAL AND

RELEVANT DIFFERENCES BETWEEN

PRE-RECORDED MESSAGES AND LIVE,

TWO-WAY PRIVATE TELEPHONE CON-

VERSATIONS PAID FOR IN ADVANCE BY

OE

ee ee eee ee ee eee eee

18

S

ili

TABLE OF AUTHORITIES

CASES: Page

Arkansas Writers’ Project, Inc. v. Ragland, 481

EES EEL A 12

Broadrick v. Oklahoma, 413 U.S. 601 (1973) -......... 4,19

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

EEE EL 7-8, 9,11

Butler v. Michigan, 352 U.S. 380 (1957) ................. passim

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

(2nd Cir.), cert. denied, 109 S.Ct. 305 (1988)... 6, 14

Carlin Communications, Inc. Pp. FCC, 749 F.2d 113

ESE TE ET 15

City of Houston v. Hill, 482-U.S. 451 as 18

Community Television of Utah, Inc. v. Wilkinson,

611 F. Supp. 1099 (D. Utah 1985) ............0000000...... x

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

555 F. Supp. 1164 (D. Utah 1982) ......................... 8

Cruz v. Ferre, 755 F.2d 1415 (11th Cir. 1985)... 8

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

Frisby v. Schultz, 108 S.Ct. 2495 (1988) ....000 0. 8,19

Ginsberg v. New York, 390 U.S. 629 (1968) .......... 7

Jones v. Wilkinson, 800 F.2d 989 (10th Cir. 1986) .. 8

Members of City Council of City of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789 (1984)... 8

New York v. Ferber, 458 U.S. 747 (1982) —........... 19

Roe v. Meese, 689 F. Supp. 344 (S.D.N.Y. 1988)... 1, 2, 4,

6, 19, 21

Sable Communications, Inc. v. FCC, 692 F. Supp.

EE passim

Wilkinson v. Jones, 480 U.S. 926 (1987) Sa 8,9,11

OTHER AUTHORITIES:

47 U.S.C. § 223(b) (Supp. IV 1986) ...................... passim

Enforcement of Prohibitions Against the Use of

Common Carriers for the Transmission of Ob-

scene Materials, Report and Order, 49 Fed. Reg.

EEE 13-14, 15, 16, 19

Enforcement of Prohibitions Against the Use of

Common Carriers for the Transmission of Ob-

scene Materials, Second Report and Order, 50

nc cccescnneneceres 15, 16

iv

TABLE OF AUTHORITIES—Continued

Page

Enforcement of Prohibitions Against the Use of

Common Carriers for the Transmission of Ob-

scene Materials, Third Report and Order, 2

I ————————— EE 14, 16

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

1786 Before the Subcomm. on Telecommunica-

tions and Finance of the House Comm. on Energy

and Commerce, 100th Cong., Ist Sess. (1987)... 5,9

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-525

FEDERAL COMMUNICATIONS COMMISSION and

RICHARD L. THORNBURGH, ATTORNEY GENERAL

OF THE UNITED STATES,

- Appellants,

SABLE COMMUNICATIONS OF CALIFORNIA, INC.,

Appellee.

On Appeal from the United States District Court

for the Central District of California

BRIEF OF AMICI CURIAE

JANE ROE, JOHN DOE, INC. AND THE

CONSENTING ADULTS

TELEPHONE RIGHTS ASSOCIATION

IN SUPPORT OF APPELLEE

INTEREST OF AMICI!

Amici Jane Roe, John Doe, Inc., and Consenting Adults

Telephone Rights Association (“CATRA’’) are the plain-

tiffs in Roe v. Meese, 689 F. Supp. 344 (S.D.N.Y. 1988),

in which the court granted a preliminary injunction

against enforcement of the same “indecency” prohibition

1 Appellants and Appellee have both consented to the filing of this

amicus brief. Their letters of consent are being lodged with the

Clerk.

2

at issue in this appeal. Amici are all involved in the

business of engaging in or facilitating live, private, two-

way telephone conversations, often of a frankly sexual

nature, with adults who request such conversations and

pay for them in advance by credit card.* Such conversa-

tions range in length from ten to thirty minutes. Typi-

cally, about half the conversation is sexually oriented.*

Amici filed suit in New York at virtually the same

time appellee Sable filed the instant litigation in Cali-

fornia. Although engaged in a different business from

Sable—-live conversations rather than pre-recorded mes-

sages—amici were similarly threatened with prosecution

and civil proceedings under 47 U.S.C. § 223(b), as

amended. Amici obtained preliminary injunctive relief

similar to that obtained by Sable.‘

Although the Government acknowledges that the live

service provided by amici is “unlike” the service provided

by pre-recorded message companies, see Brief for the

Cross-Appellants/Appellee FCC et al., at 6, n.3 (“App.

Br.”), and although the Government has chosen, appar-

ently for tactical reasons, to appeal only the Sable in-

junction and not the injunction obtained by amici in the

2 Jane Roe is a pseudonym for an adult resident of New York.

John Doe, Inc., is a pseudonym for a New York corporation. CATRA

is an association, all of whose members are engaged in the business

described in text. CATRA sued in the district court and appears

here on its own behalf and on behalf of its members.

3 One objective of this business is to develop a personal relation-

ship with the callers so that they will call back and request the other

party to the conversation by name. Consequently, the conversations

typically include non-sexual subject matter, such as the callers’ per-

sonal lives, occupations, interests in sports or politics, ete.

4“We preliminarily enjoin enforcement of 47 U.S.C. § 223(b) as

it pertains to ‘indecent’ speech and permanently enjoin enforcement

of this statute if such enforcement proceeding is based on ‘indecent’

conversations occurring while the preliminary injunction is in effect.

All relief requested relating to ‘obscene’ conversations is denied.”

Roe v. Meese, 689 F. Supp. at 348.

3

New York litigation, the questions presented in the Gov-

ernment’s appeal (and in Sable’s cross-appeal) encom-

pass not only the pre-recorded messages at issue in the

Sable litigation, but also live conversations pre-paid by

credit card. Thus, a ruling by this Court could directly

affect the relief amici have obtained in theif case.

SUMMARY OF ARGUMENT

The Government argues that this Court should reverse

the judgment of the District Court regarding “indecency”

because the pre-recorded messages criminalized by sec-

tion 223(b) are allegedly like the mid-afternoon radio

broadcasts at issue in FCC v. Pacifica Foundation, 438

U.S. 726 (1978). Live, private, two-way telephone con-

versations, however, are wholly unlike radio broadcasts.

Pacifica affirmed the FCC’s time-shifting regulation of

“indecent” speech on the narrow ground that broadcast

speech has traditionally been subject to regulation due to

its unique character. In particular, the FCC had found

that children inevitably would be in the broadcast audi-

ence during the daytime, so the only way to assure that

many children did not hear a particular broadcast would

be to require that the broadcast be presented in the eve-

ning. Few if any of the relevant special features of

broadcasts apply to live, two-way, private telephone con-

versations between consenting adults criminalized by sec-

tion 223(b). No minors, by definition, take part in such

conversations. The First Amendment does not allow Con-

gress to ban indecent but non-obscene constitutionally-

protected conversations between consenting adults on the

ground that a minor might conceivably take part in an-

other conversation of a similar nature. Point I(A) (1).

Even if, arguendo, it were constitutional to criminalize

private, two-way “indecent” conversations between con-

senting adults on the ground that minors might partici-

pate in different conversations of a similar nature, no such

law would be constitutional absent a showing that minors

4

did in fact participate in such live indecent conversa-

tions. Indeed, it is concededly central to the Government’s

argument that the indecent speech criminalized by sec-

tion 223(b) is “readly accessible to children.” App. Br.

at 19. See, e.g., id. at 27-28, 31, and 33. But on three

separate occasions the FCC has ruled that minors have

“virtually no access” to live telephone services such as

those represented by amici that require pre-payment by

credit card. Indeed, there is no evidence in the adminis-

trative, congressional, or judicial record (including the

records in the instant case and Roe v. Meese, supra)

that any minor has ever gained access to a live credit

ecard service covered by the Act. For that and several

other reasons, Pacifica is inapposite and § 223(b) is un-

constitutional as applied to live, credit card services paid

for in advance by credit card. Point I( A) (2).

Accordingly, even if a total ban of indecent pre-recorded

messages would be constitutional, § 223(b)’s manifest

and substantial overbreadth renders it void on its face.

E.q., Broadrick v. Oklahoma, 413 U.S. 601 (1973). The

Court should therefore affirm the “indecency” ruling

rendered below. Point I(B).

If the Court nevertheless rejects amici’s overbreadth

argument, it should in any event recognize the substan-

tial differences between live, private, two-way “indecent”

telephone conversations, and pre-recorded telephone mes-

sages that can be heard by many people at the same

time, and should explicitly reserve judgment on the con-

stitutionality of the Act as it applies to live conversations

prepaid by credit card. Point II.

5

ARGUMENT

I. CONTRARY TO THE GOVERNMENT’S CLAIM,

SECTION 223(b)’S PROHIBITION OF “INDECENT”

SPEECH CRIMINALIZES A SUBSTANTIAL

AMOUNT OF SPEECH THAT IS CONSTITUTION-

ALLY PROTECTED FOR ADULTS AND IS VIR-

TUALLY INACCESSIBLE TO MINORS. BECAUSE

THAT PROHIBITION IS PLAINLY OVERBROAD,

THIS COURT SHOULD AFFIRM THE LOWER

COURT'S “INDECENCY” RULING.

Amici believe that section 223(b) is unconstitutional

in all of its applications, because the First Amendment

prohibits the Government from criminalizing speech that

is constitutionally protected for adults on the basis of a

legislative “fact-finding” that such a complete prohibition

is needed to “preclud[e] access by minors altogether.”

App. Br. at 33. We live in a society where children

mingle freely with adults and have access to most of the

avenues of communication used by adults. Regardless of

the mode of communication at issue, therefore, the only

way to ensure that access is denied to children “alto-

gether” is to deny it to adults “altogether.” If protected

adult speech could be banned in order to preclude access

by minors, then the adult population could be reduced “to

reading only what is fit for children.” Butler v. Michi-

gan, 352 U.S. 380, 383 (1957). It has been clear since

Butler, however, that protected speech may not be so

proscribed. Indeed, in the present context, until Congress

amended the statute in 1988, the FCC had, in its own

words, “consistently regarded a total ban on the dissemi-

nation of indecent, but not obscene, material to be be-

yond the bounds permitted by Pacifica.”* The Depart-

5 Testimony of the General Counsel of the FCC, Telephone De-

cency Act of 1987: Hearing on H.R. 1786 Before the Subcomm. on

Telecommunications and Finance of the House Comm. on Energy

and Commerce, 100th Cong., Ist Sess. 246, 250 (1987).

6

ment of Justice has taken a similar position,® as has

every court to have considered the question.’

Even if section 223(b) were not unconstitutional in

all of its applications, however, it still is facially invalid.

As amici demonstrate below, the provision is plainly un-

constitutional as applied to live, private, two-way tele-

phone conversations of the type provided by amici. In

what follows amici demonstrate: (A)(1) the Government

could not criminalize “indecent” private two-way conver-

sations between adults even if it could demonstrate that

minors might conceivably participate in different indecent

conversations; (A) (2) in any event, there is no evidence

that minors actually take part in such conversations, and

considerable evidence to the contrary, and there can

therefore be no rationale for extending the doctrine of

Pacifica to validate criminalization of such conversation;

and ‘(B) as such the provision is substantially overbroad

and so facially invalid.

A. The Government May Not Prohibit and Criminalize

“Indecent” Live, Private, Two-Way Telephone Con-

versations Between Consenting Adults Paid For In

Advance By Credit Card.

1. The Government Could Not Criminalize “inde-

cent,” Live, Private Two-Way Telephone Conver-

sations Between Consenting Adults Even If It

Could Demonstrate That Minors Participate In

Similar Conversations.

Assuming that “indecency” is defined equivalently to

“obscene as to minors,” Congress may criminalize “in-

* Statement of the United States Attorney for the District of

Utah, representing the Department of Justice. Hearings, supra

n.5, at 258.

T See Carlin Communications, Inc. v. FCC, 837 F.2d 546, 560 (2nd

Cir.), cert. denied, 109 S.Ct. 305 (1988); Roe v. Meese, 689 F. Supp.

844, 346-47 (S.D.N.Y. 1988); Sable Communications, Inc. v. FCC,

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

7

decent” speech between a minor and an adult, even though

that same speech between two adults would be constitu-

tionally protected. Ginsberg v. New York, 390 U.S. 629

(1968). And, as the Court made clear in its narrow

holding in Pacifica, the FCC may impose limited time

shifting regulations to minimize the number of minors

who might gain access to broadcasts containing indecent

language, even though the time shifting would force

adults who wish to hear these broadcasts to hear them at

a later time. Nothing in these cases, or in any other

case, however, lends any support to the proposition that

the Government may criminalize private indecent speech

to which no minor has access as a way to ensure that no

minor could ever take part in a completely different con-

versation.

This Court has consistently rejected the proposition

that Government can prohibit speech protected as to

adults in order to insure that no minor will ever gain

access to it. In Butler v. Michigan, 352 U.S. 380 (1957),

the Court squarely rejected the State’s assertion that it

could “quarantin[e] the general reading public against

books not too rugged for grown men and women in order

to shield juvenile innocence.” Jd. at 383. The Court ex-

plained that this legislative approach was “not reason-

ably restricted to the evil with which it is said to deal.

The incidence of this enactment is to reduce the adult

population of Michigan to reading only what is fit for

children.” Jd. Similarly, in Bolger v. Youngs Drug

Products Corp., 463 U.S. 60 (1983), the Court struck

down a statute that prohibited unsolicited mailing of con-

traceptive advertisements to adults and minors alike de-

spite the Government’s claim that without such an abso-

lute ban some minors could gain access to those ads. The

Court explained that “a restriction of this scope is more

extensive than the Constitution permits. ... The level of

discourse reaching a mailbox simply cannot be limited to

8

that which would be suitable for a sandbox.” Jd. at 73-

74 (citation omitted).

Recently, in Wilkinson v. Jones, 480 U.S. 926 (1987),

the Court reviewed the Tenth Circuit’s holding that a

statute banning “indecent” cable television programming

violated the First Amendment. Before the lower courts

and on appeal to this Court, the State argued that out-

right prohibition of “indecent material” on cable tele-

vision was necessary to protect children. Both the Dis-

trict Court and Court of Appeals rejected the State’s

contention and found that the statute unconstitutionally

impaired the First Amendment rights of adults. Com-

munity Television of Utah, Inc. v. Wilkinson, 611 F.

Supp. 1099 (D. Utah 1985) ; Jones v. Wilkinson, 800 F.2d

989 (10th Cir. 1986). This Court summarily affirmed

the lower court’s decision striking down the statute.

Wilkinson v. Jones, 480 U.S. 926 (1987).°

Just last term, the Court confirmed that statutes af-

fecting speech must be narrowly tailored, and explained

that a statute is narrowly tailored only “if it targets

and eliminates no more than the exact source of the ‘evil’

it seeks to remedy.” Frisby v. Shultz, 108 S.Ct. 2495,

2502 (1988) (citing Members of City Council of City of

Los Angeles v. Taxpayers for Vincent, 466 U.S. 789,

808-810 (1984)). The Frisby Court also confirmed that

a “complete ban” on speech can be justified “only if each

activity within the proscription’s scope is an appropriately

targeted evil.” Jd. (emphasis added).

Section 223(b) cannot survive scrutiny under Frisby,

Wilkinson, Bolger and Butler. Here, Appellants do not

8 Accord Cruz v. Ferre, 755 F.2d 1415 (11th Cir. 1985) (affirming

lower court’s decision to enjoin enforcement of ordinance prohibit-

ing cable distribution of any “obscene or indecent material”) ; Com-

munity Television of Utah, Inc. v. Roy City, 555 F. Supp. 1164

(D. Utah 1982) (holding statutory prohibition of “indecent” cable

programming unconstitutional ).

even argue that adult access to “indecent” speech is an

evil that Congress could separately target and proscribe.

Yet section 223(b) was deliberately amended to crim-

inalize such adult access. Unlike the cablecasts in Wiil-

kinson, the mass mailings in Bolger, and the books in

Butler, there is no reason to believe any minor has gained

access to a private telephone conversation accessed by an

adult. The statute bars such adult conversations not to

avoid exposure by children to the particular adult con-

versation deemed indecent, but as a purely prophylactic

measure—to assure that no minor could ever participate

in an entirely different telephone conversation. Accord-

ingly, section 223(b) > complete ban on “indecent” tele-

phone speech is even less tailored to the evil at which it

is directed than the laws struck down in the cases cited

above. It plainly violates the First Amendment because

it is not narrowly tailored to proscribe the only evil—

access by minors—Appellants contend Congress could con-

stitutionally proseribe.

The FCC’s suggestion—rejected in Congressional test-

imony by its General Counsel in 1987 °—that Pacifica

sanctions such infringement of all adults’ First Amend-

ment rights should be dismissed out of hand. In Pacifica,

the Court approved a regulation that restricted the time

for broadcast of certain “indecent” programming because

that minimized minors’ access to the programming with-

out preventing adults’ access. But in so ruling the Court

explicitly “emphasize|d] the narrowness of our holding.”

438 U.S. at 750. The Court later reemphasized this point

in Bolger, stating that the government’s interest in reg-

ulating broadcasting does “not readily translate into a

justification for regulating other means of communica-

tion.” 463 U.S. at 74. In spite of these warnings, Ap-

pellants ignore or paper over the substantial differenees

between Pacifica and the issues presently before the

* See n.5, supra.

10

Court, and request a dramatic expansion of that narrow

holding. But the distinctions between the time-channeling

regulation reviewed in Pacifica and a criminal prohibi-

tion of “indecent” speech by live telephone services are

clear and substantial :

(1) Pacifica’s approval of the FCC’s time-channeling

regulation was based explicitly and narrowly on the fact

that broadcast speech has traditionally been subject to

substantial regulation because of its unique characteris-

tics. See 438 U.S. at 758-759 (Powell, J., concurring).

Crucially, the FCC determined that the program at issue

in Pacifica “w{as} broadcast at a time when children

were undoubtedly in the audience.” 56 F.C.C. 2nd, at 99,

cited at 438 U.S. at 730. Because a broadcaster during

the daytime “cannot reach willing adults without also

reaching children,” id. at 758-759 ( Powell, J., concurring) ,

the Court was willing to fashion a narrow exception to

the principle established in Butler v. Michigan, 352 US.

380 (1957), that the legislature may not limit speech

which adults are constitutionally entitled to hear in order

to protect children.

These concerns unique to broadcast media are in no

way present in private live two-way telephone conversa-

tions. A principle feature of private conversations be-

tween two adults is that the rest of the world, adults and

minors alike, is excluded."” In such conversation; it is

not the case that the proscribed conversation may not be

% Although the Appellants argue that the “similarity” of

telephone services to broadcasting is “underscored” because pre-

recorded messages can be provided to thousands of callers ‘‘simul-

taneously,” App. Br. at 28, that claim is not true in the case of

live telephone services paid for by credit card. Even with pre-

recorded services, the better analogy is to cable television, not broad-

casting, because the messages are confined to cable transmission,

not sent through the air. As noted, cable television may not be

subjected to “indecency” regulation. And even as compared to cable

television, of course, it is far less likely a child will overhear a tele-

phone message or conversation than a television message.

11

held with an adult without children participating in the

same conversation. The possibility that a different inde-

cent conversation between an adult and a child could

theoretically take place does not alter the protected na-

ture of the adults’ conversation. Nothing in Pacifica

lends support to the blunderbuss constitutional rule pro-

posed by Appellants, which would justify a ban on speech

between two consenting adults on the ground that such

a ban is the only way to insure “that some enterprising

minors will never hear” an entirely different but also

“indecent” message. App. Br. at 35. The FCC’s test

would, of course, overturn Butler, Bolger and Wilkinson,

and go still further: on the theory that similar speech

could be heard by children, or that the age of the partici-

pants could be (but was not) mistaken, it would justify

criminalization of any indecent speech (or speech ob-

scene only as to minors) even if the speaker_could prove

no minor in fact gained access.

(2) Section 223(b) imposes criminal penalties, in-

cluding substantial fines and imprisonment. The regula-

tion upheld in Pacifica involved only administrative ac-

tion, and the Court expressly noted that it was not de-

ciding whether the same speech could be subjected to

criminal sanctions. 438 U.S. at 750.

(3) Section 223(b) imposes an outright ban on speech

covered by the statute. The regulation in Pacifica was a

mere time-channeling provision. Indeed, the FCC had

emphasized that its regulation was “never intended to

place an absolute prohibition on the broadcast” of the

speech there at issue. 438 U.S. at 532-33. See also id.

at 750; id. at 760 (Powell, J., concurring).

(4) The FCC’s argument that this case is similar to

Pacifica because “adults remain free to purchase record-

ings containing the identical messages at book or record

stores,” App. Br. at 34, is completely invalid in the con-

text of live services. These interactive, personalized con-

versations, often with a specific individual requested by

12

the caller, cannot be purchased at a record or book store.

In any event, the availability of similar speech in a dif-

ferent medium was not and should not be the

of Pacifica. The Court’s point there was that the same

theaters or cable television subject to “indecency”

tion. See Arkansas Writers’ Project, Inc. v. Ragland, 481

U.S. 221, 232-233 (1987).

(5) Contrary to the Government’s contention, it can-

not reasonably be argued that this case is like

because the speech at issue is an “intruder” that invades

the “‘privacy of the home’” and interferes with “

individual’s right to be left alone.’” Br.

(quoting Pacifica, 438 U.S. at 748). In Pacifica,

Court expressed concern that because “the broadcast

audience is constantly tuning in and out” individuals

might be confronted with “unexpected program content.”

438 U.S. at 748. Obviously, live telephone services paid

for in advance by credit card do not impinge upon the

individual’s “right to be left alone” in that or any other

sense—calls are initiated by the caller, not the telephone

service, and the conversations are individualized, not part

of a stream of other programming.

blanket prohibition.

13

(7) Finally, the substantial control parents exercise

over access by their children to credit cards, see Enforce-

ment of Prohibitions Against the Use of Common Car-

riers for the Transmission of Obscene Materials, Report

and Order, 49 Fed. Reg. 24998, 25001 (1984) (“First

Report and Order’); cf. Bolger, 463 U.S. at 73 (pa-

rental control over incoming mail), contrasts sharply

with the difficulty of parental control over minor’s access

to radio in the early afternoon, Pacifica, 438 U.S. at 732

(quoting the FCC).

In short, the mere possibility that minors could par-

ticipate in live “indecent” telephone conversations can-

not possibly justify a statute that criminalizes such con-

stitutionally protected telephone conversations between

consenting adults. Nothing in Pacifica, or in any other

case, supports the application of section 223(b) to pro-

viders of live, private, two-way “indecent” telephone con-

versations with adults.

2. “Indecent,” Live, Telephone Conversations Be-

tween Consenting Adults Are Constitutionally

Protected In Any Event Because There Is No

Evidence That Any Children Participate In Simi-

lar Conversations.

Even if Congress could criminalize live telephone con-

versations between consenting adults because it was de-

termined that minors would gain access to different but

similar speech—and it cannot—still, Congress may not

so legislate here; there is absolutely no evidence that

minors in fact participate in such live two-way conver-

sations pre-paid by credit card. The FCC’s effort to

condemn all “dial-a-porn” on the ground that it is “read-

ily accessible to minors,” App. Br. at 31, ignores the crit-

ical differences between live services paid for by credit

ecard and pre-recorded services, and fails to heed the

government’s own warning that “careful analysis of the

particular medium at issue is necessary before the rea-

soning of Pacifica is extended outside the broadcasting

medium.” App. Br. at 27, n. 17.

14

When Congress originally passed section 223(b) in

1988, it directed the FCC to issue regulations providing

defenses to prosecution when a telephone message service

had taken steps that effectively prevented minors from

having access to that service. In promulgating those reg-

ulations, the FCC consistently has recognized the impor-

tant differences between live telephone services paid for

by credit card holders, and pre-recorded messages ser-

vices (which cannot practicably impose a credit card

requirement) ."*

Contrary to the Government’s suggestion, gaining ac-

cess to live services is certainly not “as easy as turning

on a radio or television set.” App. Br. at 28. In fact, the

regulatory and congressional record makes clear that

minors have virtually no access to live, two-way services

accessed only by use of a credit card.

11 In 1983 in those regulations the FCC determined that live

services could comply with section 223(b) by requiring payment by

credit card before permitting access to their services. Even before

that decision, most live services imposed such a requirement. In

the case of pre-recorded message services, however, the FCC has

determined that such a requirement “would be impractical, as those

services allow multiple calls to access a message simultaneously.”

First Report and Order at 24998.

More recently, however, the FCC has determined that new tech-

nology could serve a similar screening function for pre-recorded

services, see Enforcement of Prohibitions Against the Use of Com-

mon Carriers for the Transmission of Obscene Materials, Third Re-

port and Order, 2 F.C.C. Red. 2714, 2721-22 (1987), and the Second

Circuit agreed. Carlin Communications, Inc. v. FCC, 837 F.2d 546

(1988). If this Court were otherwise to agree with appellants’

present submission that ease of access to pre-recorded services would

render the statute constitutional as applied to such services (a rul-

ing that would depart substantially from this Court’s prior deci-

sions), and for some reason were to reject amici’s overbreadth

argument, then this Court in deference to the FCC should affirm

the preliminary injunction in the instant case and remand for fact-

finding on the efficacy of the new technology approved by the FCC

in its Third Report and Order.

15

The FCC reached this conclusion on three separate oc-

casions after careful investigation and “based upon [its]

four-year effort to promote maximally effective, valid

regulations.” App. Br. at 32. In its First Report and

Order, the FCC concluded that:

imposition of a credit card restriction upon [live]

“dial-a-porn” providers will effectively ensure that

minors are denied access to such services. The age

requirement for obtaining a credit card combined

with the fact that minors who are issued credit cards

are usually subject to parental supervision as to use

of the card, should effectively prevent access by un-

derage callers.

First Report and Order at 25001 (emphasis added.) '

In October 1985, after receiving numerous comments

from interested persons and after “careful consideration

of the record,” the FCC again determined that requiring

payment by credit card effectively restricts minors’ access

to live services. Enforcement of Prohibitions Against the

Use of Common Carriers for the Transmission of Obscene

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

42701, 42706 (1985) (“Second Report and Order’). The

FCC explained:

The FCC’s decision on this point was upheld by the United

States Court of Appeals for the Second Circuit in Carlin Communi-

cations, Inc. v. FCC, 749 F.2d 113, 118-19 (2d Cir. 1984). In addi-

tion to requiring payment by credit card, live services take other

Steps to prevent access by minors. For example, it is common prac-

tice for live services to ask a caller if he has a telephone listed in

his own name, and then verify that fact through directory service

before authorizing service for the caller. If the caller does not have

a listing in his own name, no service will be provided. Independent

of such screening techniques, the cost of access to live services—

which is approximately $35-$50, as opposed to a few dollars for

services that provide pre-recorded messages—is likely to dissuade

minors from using live services, particularly since this cost will

later appear on a credit card bill sent to the home. Finally we doubt

that many children’s “natural curiosity about sex and adult be-

havior,” App. Br. at 29, would lead them to initiate live sexually-

explicit conversation with a stranger.

16

In our [First] Report and Order we concluded that

requiring prepayment by credit card effectively re-

stricts minors’ access to live “dial-a-porn” transmis-

sions .... [N]ot finding any reason to reach a con-

trary conclusion in the augmented record, we find

that this credit card provision is a suitable adjunct

to the regulation we adopt today regarding recorded

messages.

Id. at 42706. In its Third Report and Order, the FCC

reached the same conclusion for the third time, finding

that requiring pre-payment by credit card would ensure

that minors would have “virtually no access” to live

services. Enforcement of Prohibitions Against the Use of

Common Carriers for the Transmission of Obscene Ma-

terials, Third Report and Order, 2 F.C.C. Red. 2714, 2724

n.14 (1987).

Throughout the FCC’s three investigations there was

no evidence, or even claim, that any minors have gained

access to live, credit card services. In its Second Report

and Order, the FCC stated that “no party submitting

comments in this proceeding claims that the credit card

restriction is ineffective to meet the mandate of Con-

gress.” Second Report and Order, 50 Fed. Reg. at 42706,

n.56 (emphasis added) .**

Similarly, throughout the congressiong] hearings and

debates on section 223(b) as enacted, and on proposed

13 Indeed, the FCC believed that its statutory mandate permitted

it to approve measures designed to screen out minors only if those

measures would be “highly effective” and would ensure that minors

would have “virtually no access” to adult telephone services: “As we

interpret this statute, a high degree of effectiveness is contem-

plated so that if access is restricted to adults, as stated by the stat-

ute, minors will have virtually no access to adult message services.”

Third Report and Order, 2 F.C.C. Red. at 2724 n.14 (emphasis

added).

14 Nothing in the Third Report and Order, which reaffirmed the

credit card requirement, suggests that any such evidence or claim

was submitted during that investigation.

17

amendments, there was no evidence of even one minor

gaining access to live, credit card services. To the con-

trary, the legislative activity surrounding section 223(b)

overwhelmingly focused on concerns about minors’ access

to pre-recorded message services and every example of

minors’ access cited by the FCC or others involved a pre-

recorded message.

Perhaps most telling of all, in this litigation and in

the New York litigation filed by amici (which focuses

specifically on live services), the Government has failed

to offer even a single complaint that a minor gained ac-

cess to a live, credit card service. Accordingly, in the

context of live services, there is no basis whatsoever for

the Government’s contention that indecent speech is

“readily accessibie” by minors.

Appellants must therefore claim that access by minors,

though “virtually” impossible, is not “totally” or “ab-

solutely” impossible. App. Br. at 35. But the fact that

it is not “totally” impossible for minors to gain access to

constitutionally protected “indecent” speech cannot jus-

tify a wholesale prohibition of that speech, even if such

a prohibition were otherwise justified. If Government

could constitutionally prohibit “indecent” speech unless

it were absolutely certain that no minor could ever gain

15 Appellants’ argument appears to be that even if a credit card

requirement would be an “effective” way to prevent access by

minors, as the FCC has repeatedly found, that requirement would

not “totally” or “absolutely” preclude access by minors. In Appel-

lants’ view, total effectiveness is a “valid” legislative goal that justi-

fies abridgment of adults’ rights to have access to non-obscene

speech: “And, given the nature of the telephone system, the lesser

measures proposed by the FCC in its rulemaking proceedings, effec-

tive as they were, could not achieve the valid end of precluding

access by minors altogether.” App. Br. at 33 (emphasis added).

See id. at 35 (stressing FCC statement that no requirement can

guarantee “absolute impossibility of access,” but ignoring preced-

ing sentence making clear FCC believed credit card requirement

guaranteed “virtually no access’).

18

access to that speech, it could prohibit all “indecent”

speech—or other speech deemed potentially harmful to

minors—in all media. To preserve adult access to speech

that is protected for adults, the First Amendment re-

quires that we accept some risk that minors may occa-

sionally gain access to it. We permit adults to watch

“R” rated movies while recognizing that minors may oc-

casionally sneak in to see those movies; we permit adults

to rent videotapes for home viewing that are “indecent”

or even obscene as to minors while recognizing that some

adults may permit minors to view those movies, or that

minors may gain access without permission; and we per-

mit adults to purchase books and magazines with sex-

ually explicit or otherwise “indecent” content even

though some minors will inevitably gain access to those

books and magazines. And all of those media are more

accessible to minors than a private, two-way conversa-

tion for which a credit card is requived. In sum, even if

a complete ban on pre-recorded messages were necessary

to prevent minors’ access to them—a contention amici

dispute—it is incontrovertible that the statute’s outright

ban on live, credit card services is not necessary, because

minors have virtually no access to them.

B. Because Section 223(b) fwrports To Criminalize

“Indecent” Live, Two-Way Conversations Paid For

By Credit Card, It Is Substantially Overbroad And

Therefore Unconstitutional On Its Face.

For the foregoing reasons, even if the First Amend-

ment permitted criminalization of pre-recorded messages

that are not obscene (a proposition which is strongly at

odds with this Court’s decisions discussed above), the

statute is facially unconstitutional. It is well established

that statutes that “make unlawful a substantial amount

of constitutionally protected conduct may be held facially

invalid even if they also have legitimate application,” and

that “[c]riminal statutes must be scrutinized with par-

ticular care.” City of Houston v. Hill, 482 U.S. 451, 457

19

(1987). See, e.g., Broadrick v. Oklahoma, 413 U.S. 601,

613 (1973). Cf. Frisby v. Schultz, 108 S.Ct. at 2504

(White, J., concurring).

It is indisputable that live services engage in a very

substantial amount of the speech criminalized by section

223(b)’s “indecency” prohibition. As explained above,

throughout the FCC’s “four year effort to promote maxi-

mally effective, valid regulations,” App. Br. at 32, the

FCC consistently recognized the substantia] volume of

calls handled by live services, and established the credit

card defense for live services recognizing it was unavail-

able to pre-recorded services. See n.1l, supra; see, e.y.,

First Report and Order at 24998. As amended, section

223(b) ignores these differences and explicitly criminal-

izes “direct{]” as well as recorded communications. 47

U.S.C. § 223(b) (1).

The statute is capable of application in a very sub-

stantial number of cases where its application would be

unconstitutional—all live credit card conversations. The

chill created by the overbroad application of the Act to

live services is not at all speculative. Amici, plaintiffs

in Roe v. Meese, 689 F. Supp. 344 (S.D.N.Y. 1988), won

a preliminary injunction enjoining application of the

statute to them precisely because it impermissibly chilled

their constitutionally-protected live services. Appellants’

passing suggestion that the overbreadth of the statute is

not substantial, App. Br. at 24, n.15, thus simply ignores

the real and substantial chill of protected live, two-way

conversations between adults that already has been judi-

cially recognized. See New York v. Ferber, 458 U.S. 747,

772, n.27 (1982) (rationale of the “substantial over-

breadth” principle “must be that only substantially over-

broad laws set up the kind and degree of chill that is

judicially cognizable”) (citation omitted).

Appellants also argue, however, that two-way com-

munication will not be chilled by the statute—and over-

20

breadth analysis should not be applie :—because, “two

way services are readily icentifiable as distinct from

prerecorded messages.” App. Br. at 24 n.15. The sug-

gesiion that providers of live conversations are net de-

terred by a statute that expressly criminalizes their

speech is remarkable indeed. To the contrary, the Act is

far more susceptible to overbreadth challenge than many

other statutes that have been found overbroad precisely

because it does unambiguously punish a significant vol-

ume of clearly protected speech. It in no way diminishes

the chilling effect that providers of live services know

they are not providing prerecorded messages; the crucial

point is that they also know that provision of live, two-

way, in@ecent messages is unlawful.“ Enforcement of

the Act would result in a substantial chilling effect, de

terring amici and other businesses from engaging in

plainly constitutionally protected activity. It is to pre-

vent just such a chilling effect that substantial over-

breadth doctrine was created.

ll. IF THE COURT DETERMINES THAT THE STAT-

UTE IS NOT SUBSTANTIALLY OVERBROAD, IT

SHOULD NEVERTHELESS MAKE CLEAR THE

SUBSTANTIAL AND RELEVANT DIFFERENCES

BETWEEN PRE-RECORDED MESSAGES AND

LIVE, TWO-WAY PRIVATE TELEPHONE CON-

VERSATIONS PAID FOR IN ADVANCE BY

CREDIT CARD

For the reasons set forth above and in appellee’s brief,

this Court should affirm the judgment of the district

court as to “indecency” either because in all of its appli-

cations the statute is unconstitutional, or because, as ar-

1%* The “chilling effect” of a law that clearly makes protected con-

duct unlawful is far greater than that of a law that chills by creat-

ing uncertainty whether protected conduct is criminalized. The

purpose of overbreadth doctrine is to prevent the chilling of such

protected speech—-where it is substantial—even when the parties

engaged in protected speech are nt before the Court.

21

gued above, the statute is substantially overbroad insofar

as it applies to constitutionally protected private live tele-

phone conversations between adults. If, however, the

Court were to agree with the Government’s submission,

it should nevertheless make clear that its decision does

not address the constitutionality of the statute as ap-

plied to amici and others who provide live, two-way credit

card telephone conversations.

Amici have obtained a preliminary injunction enjoin-

ing application of section 223(b) against them. See Roe

v. Meese, 689 F. Supp. 344 (S.D.N.Y. 1988). The United

States has chosen not to appeal that préliminary injunc-

tion. Before this Court, the United States has taken the

position that the constitutionality of live, credit card

services “is not at issue in the present case, as Sable’s

complaint here alleges only that Sable sells prerecorded

messages.” App. Br. at 6, n. 3. Amici have demonstrated

above that the constitutionality of live, credit card serv-

ices is at issue, since by proscribing such speech section

223(b) is substantially overbroad. Assuming, arguendo,

that the Court does not adopt amici’s substantial over-

breadth argument, amici agree that the Court need not

address the constitutionality of section 223(b) as it ap-

plies to live, credit card providers in order to resolve the

present case. However, because both Roe v. Meese and

the present case involve interpretation of the identical

statute, and in light of the ongoing litigation in Roe; if

this Court were somehow to rule that section 223(b) can

constitutionally prohibit indecent pre-recorded messages,

it should make clear that it is not ruling that the statute

is constitutional as applied to live credit card providers

such as amici.

CONCLUSION

For the foregoing reasons, the judgment of the Dis-

trict Court enjoining enforcement of section 223(b) in-

sofar as it applies to indecent speech should be affirmed.

Respectfully submitted,

Of Counsel: Bruce J. ENNIS

Net I. ADELMAN (Counsel of Record)

RICHARD D. EMERY KIT ADELMAN-PIERSON

MARK D. SCHNEIDER

JOHN T. NAKAHATA

JENNER & BLOCK

21 Dupont Circle, N.W.

Washington, D.C. 20036

Telephone: (202) 223-4400

March 25, 1989 Attorneys for Amici