Justices Reject Total Ban on ‘Dial-a-Porn’ Messages

The Supreme Court on Friday refused to let Congress totally outlaw the billion-dollar “dial-a-porn” industry, rejecting arguments that such a ban is needed to protect the nation’s children from merely “indecent” messages.

The justices unanimously said Congress was not justified when it passed a law last year banning all sexually explicit telephone dial-up message services.

Congress may outlaw obscene telephone messages only, not indecent ones, the court said. The dial-a-porn industry therefore must be allowed to survive, it said.

The ban violates free-speech rights when applied to “indecent” messages, the court ruled.

The 1988 law made it a crime to use a telephone to make any “obscene or indecent” communication for commercial purposes. But its total ban was never imposed because U.S. District Judge A. Wallace Tashima in Los Angeles ruled that it could be applied only to obscene--not merely indecent--phone messages.

The judge said that outlawing messages that are not obscene, even though they may be inappropriate for minors, violates the free-speech protections of the Constitution’s First Amendment.

Friday, the nation’s highest court said the law could be applied to obscene messages, but not to indecent ones.

“Sexual expression which is indecent but not obscene is protected by the First Amendment,” Justice Byron R. White wrote for the court.

In an argument session before the justices last April, the George Bush Administration urged that the total ban be reinstated.

Justice Department lawyer Richard Taranto said then that the ban is needed to “protect children from hearing patently offensive speech.”

But Laurance Tribe, a Harvard law professor representing a dial-a-porn company, said technological safeguards blocking children’s access to the racy messages make a total ban unnecessary and unconstitutional.

In Friday’s decision, White said: “It may well be that there is no fail-safe method of guaranteeing that never will a minor be able to access the dial-a-porn system.”

‘Extremely Effective’

But he said technological restrictions on the industry might prove “extremely effective, and only a few of the most enterprising and disobedient young people will manage to secure access to such messages.”

The court’s three most liberal justices in freedom-of-expression cases--William J. Brennan, Thurgood Marshall and John Paul Stevens--voted to strike down the law as it applies to obscene material as well.

“I have long been convinced that the exaction of criminal penalties for the distribution of obscene materials to consenting adults is constitutionally intolerable,” Brennan wrote in an opinion joined by Marshall and Stevens.

In other action, the court:

* Ruled that states are not required by the Constitution to provide free lawyers for Death Row inmates who had lost an initial round of appeals.

By a 5-4 vote, the court ruled in favor of Virginia officials who argued that requiring states to pay for attorneys in second-round appeals could lead to interminable delays in carrying out executions.

* Ruled that the Justice Department has a legal obligation to supply a weekly tax magazine with copies of all federal trial court opinions and orders in tax cases.

The justices, by an 8-1 vote, said the federal Freedom of Information Act imposes such a duty on the Justice Department’s tax division.

Charges Shared

Dial-a-porn companies make their services available to callers through 976 exchanges and AT&T;’s 900 long-distance lines.

The telephone company typically charges callers according to per-call rates, retaining a portion of the charges and giving the remainder to the dial-a-porn company.

The same exchanges also are used for other, non-controversial types of messages such as sports scores, time checks and weather reports.

Begun in 1983, the dial-a-porn industry matured quickly. According to court records, in 1984 about 180 million calls were placed by customers in New York alone.

The industry’s income last year topped $2 billion.

Access Codes, Scramblers

Congress in 1983 directed the Federal Communications Commission to figure out ways in which children could be prevented from calling dial-a-porn services. A company’s failure to adhere to those methods was to be a crime.

The commission considered various means of restricting access to sexually explicit messages and eventually settled on access codes, scramblers and requiring credit-card payment.

But an impatient Congress in 1988 enacted the outright ban.

Writing for the court, White said, “Because the statute’s denial of adult access to telephone messages which are indecent but not obscene far exceeds that which is necessary to limit the access of minors to such messages, we hold that the ban does not survive constitutional scrutiny.”

Legal Term

Obscenity is a legal term that does not apply to all sexually explicit material.

The Supreme Court since 1973 had defined obscenity as a work that appeals to a morbid interest in sex, is patently offensive and when taken as a whole lacks serious literary, artistic, political or scientific value.

Sexually explicit material, often called pornography, may or may not be legally obscene.

In 1978, the court drew a distinction between obscene and indecent expression when it allowed federal regulators to restrict the broadcast of indecent language.

Definition of Indecent

Upholding the government’s power to punish use of “dirty words” carried on television or radio at times when children might be listening, the court adopted the FCC’s definition of indecent--”patently offensive references to excretory and sexual organs or activities.”

After Tashima’s decision last July, the Ronald Reagan Administration appealed directly to the Supreme Court, challenging that part of the ruling that protects indecent material.

Sable Communications of California Inc., a major purveyor of dial-a-porn services in that state, filed a counter-appeal challenging the part of Tashima’s ruling that allows the ban on materials judged to be obscene.

The cases are Sable Communications v. FCC, 88-515 and FCC vs. Sable Communications, 88-525.