The Supreme Court Friday upheld another form of free speech that many find distasteful, ruling unanimously that the government may not ban for-pay telephone calls simply because they are sexually oriented.
The justices struck down as unconstitutional part of a law passed by Congress last year that made it a crime for anyone to sell "indecent" messages over the telephone.
Thanks to recent technological advances, the court said, parents can ensure that their children do not get access to the so-called "dial-a-porn" telephone services, which began operating in 1983. As a result, the government is left with no compelling reason for banning such calls for adults, the court concluded.
However, on a 6-3 vote, the court also said that the government can ban the messages that are so offensive as to be judged "obscene." For more than 30 years, the Supreme Court has adhered to the view that obscenity is not covered by the First Amendment.
The ruling allows the once-booming dial-a-porn industry to stay in business but it leaves open the threat that a jury may conclude that the messages are so "patently offensive," sexually explicit and without redeeming value that they must be banned.
Still, the dial-a-porn industry may face an even bigger challenge. As its novelty has faded, many of the phone services have been losing callers and money, according to a lawyer who represents the major dial-a-porn companies.
"This was a passing fad," New York attorney Norman Beier said Friday. "These companies have all suffered a very significant decline in their business. It's only about 10% of what it was a few years ago."
Second in a Week
For the high court, Friday's ruling marked the second time this week that a law passed by Congress was struck down as a violation of the First Amendment. The justices, on a 5-4 vote Wednesday, threw out the 1967 federal law, as well as all state laws, that made it a crime to burn an American flag as an act of political protest.
The latest ruling also casts doubt on another election year law passed by Congress banning all "indecent" broadcasts on television and radio. The Supreme Court in 1978 said that the government could protect children by banning such broadcasts during the day and in the early evening hours. But it also said that such broadcasts--which may have a sexually explicit scene or foul language in the midst of serious drama--could be shown in later hours when children would not be watching.
Last year, however, spurred by Sen. Jesse Helms (R-N.C.), Congress enacted a 24-hour ban on indecent broadcasts, even though members questioned whether such a blanket ban was constitutional. That law, now on hold, is being reviewed by the U.S. appeals court in Washington.
"This ruling should help us. They have said again that indecent speech is protected by the First Amendment," said Timothy Dyk, a Washington lawyer representing the broadcasters who are challenging the Helms amendment.
The Telephone Decency Act, which also was sponsored by Helms last year, was designed to wipe out the dial-a-porn industry, which took off with the introduction of "976" services. Simply by dialing this code, callers for a fee could gain access to a variety of recordings, including those with sexual themes. It was an instant hit with adolescents.
By May, 1983, industry officials said, 800,000 calls per day were being made to various "dial-a-porn" services. In California, more than 200 dial-a-porn services were in business, some of which offered live conversations.
Outraged parents, facing huge phone bills, complained to the Federal Communications Commission, which over five years and through several court tests devised rules to ensure that children could not reach the message services without permission. By requiring callers to use a credit card or a special access code, or by permitting local phone companies to block out certain "976" numbers, FCC officials believed that they had found a way to solve the dial-a-porn problem.
But the Helms amendment intervened, prompting the Supreme Court test. The law made it a crime, punishable by fines of as much as $50,000, to use an interstate phone line for "any obscene or indecent communication for commercial purposes."
Last July, as the law was to go into effect, U.S. District Judge A. Wallace Tashima in Los Angeles blocked it as partly unconstitutional. Since obscenity is not protected by the First Amendment, that part of the ban was upheld, but Tashima struck down the ban on "indecent" messages.
The Ronald Reagan Administration appealed to the Supreme Court, but the justices Friday affirmed Tashima's ruling in the case (FCC vs. Sable Communications, 88-525).
Even though Congress can ban such broadcasts during the day, that does not mean it can ban 976 phone calls, the court said. "Placing a telephone call is not the same as turning on a radio and being taken by surprise by an indecent message," Justice Byron R. White said. He was referring to the 1978 ruling against comedian George Carlin, whose "seven dirty words" monologue was broadcast over Pacifica radio stations in California.
Both Congress and the Reagan Administration said that the ban on all dial-a-porn was needed because "enterprising minors" could find a way to get access to it. But White said that there was no evidence to support this assertion.
The three most liberal justices--William J. Brennan Jr., Thurgood Marshall and Harry A. Blackmun--dissented in part, saying that the government should not be permitted to make it a crime for "consenting adults" to buy obscene matter. Brennan, who has struggled with the obscenity question for more than 30 years, said that the court cannot define obscenity with any precision.
In other action, the court:
--Ruled that employers may provide lesser benefits for older workers without violating the federal law banning age discrimination (Public Employees Retirement System of Ohio vs. Betts, 88-389). On a 7-2 vote, the court said that the Age Discrimination in Employment Act generally exempts pension and benefit plans.
An employee can win an age discrimination suit against a pension or benefit program only by showing that the company or a government agency had "an intent to discriminate" against older workers, the court said. It did not say how an employee could prove that claim.
The ruling frees from liability an Ohio public employees retirement system that forbids employees over age 60 from getting disability benefits. These older workers can receive only retirement pay. An appeals court in Cincinnati, ruling for a disabled 61-year-old woman, had said that the Ohio plan discriminated based on age.
--Ruled that states are immune from being sued for damages by bankrupt businesses and persons. On a 5-4 vote, the court said that the Constitution blocks such suits against states (Hoffman vs. Connecticut, 88-412).