Sable Communications of California v. Federal Communications Commission

PETITIONER: Sable Communications of California
RESPONDENT: Federal Communications Commission
LOCATION: Sable Communications of California

DOCKET NO.: 88-515
DECIDED BY: Rehnquist Court (1988-1990)

CITATION: 492 US 115 (1989)
ARGUED: Apr 19, 1989
DECIDED: Jun 23, 1989

Laurence H. Tribe - Argued the cause for appellant in No. 88-515 and for appellee in No. 88-525
Richard G. Taranto - Argued the cause for appellees in No. 88-515 and for appellants in No. 88-525

Facts of the case

In 1988, Congress amended the Communications Act of 1934 to ban indecent and obscene interstate commercial phone messages. Sable Communications had been in the dial-a-porn business since 1983. A judge in District Court upheld the ban on obscene messages, but enjoined the Act's enforcement against indecent ones.


Did the amended Communications Act violate the First and Fourteenth Amendments?

Media for Sable Communications of California v. Federal Communications Commission

Audio Transcription for Oral Argument - April 19, 1989 in Sable Communications of California v. Federal Communications Commission

William H. Rehnquist:

We'll hear argument first this morning in No. 88-515, Sable Communications of California v. FCC; and 88-525, Federal Communications Commission v. Sable.

Mr. Taranto?

Richard G. Taranto:

Mr. Chief Justice, and may it please the Court:

These cases in involve facial challenges to the constitutionality of Congress' 1988 legislation aimed at commercial telephone pornography.

Section 223(b) of the Communications Act of 1934, as it was amended in 1988, prohibits any person from making any obscene or indecent interstate telephone communication for commercial purposes.

Sable challenged both the obscenity and indecency prohibitions on their face.

The district court, on a motion for preliminary injunction, held the obscenity prohibition valid and the indecency prohibition invalid.

Our position is that both challenges should have been rejected.

As to obscenity, which is not protected by the First Amendment, the short answer to Sable's objections, concerning how the statute is to be applied, is that they are insufficient to support a facial challenge, because the statute plainly is capable of constitutional application.

As to indecency, the statute is justified by a distinctive combination of factors similar to those relied on in the broadcasting context in Pacifica: the accessibility of the telephone medium to children, the compelling governmental interest in preventing children, especially younger children, from hearing patently offensive sexual speech, especially in the privacy of the home, the reasonable congressional judgment that no lesser measure would reliably prevent children's access, and the availability of alternative sources of such speech for adults who wish to obtain it.

Antonin Scalia:

Mr. Taranto, do we no which is which here, I mean, of... of the calls that are really the money-making part of this operation?

Is it your view that they come within the obscenity provision?

Richard G. Taranto:

We don't have any kind of statistical breakdown of--

Antonin Scalia:

Well, how... how would one judge?

I mean, let's say the... the calls that consist of a woman describing sexual activity, would you consider that to be obscene, or just a good, healthy interest in sex--

Richard G. Taranto:

--Well, it... it would depend on exactly what was said.

The indecency definition is essentially one part of the three-part Miller definition for obscenity.

The material need not have prurient appeal in the specific sense that's required for obscenity.

And it may well have some literary, artistic, scientific, or political value--

Antonin Scalia:

--Well, is--

Richard G. Taranto:

--although this kind of pornographic material, I think, probably hadn't... certainly does not meet the last of those criteria.

But the prurient appeal definition that this Court elaborated in Brockett against Spokane, we think, narrows the range of even sexually explicit material that is covered by obscenity.

So it is entirely possible that there is a fair volume of indecent material that would not rise to the level of obscenity because the prurient appeal definition of Brock... of Brock might not be met.

But the short answer to your question about the factual record is that we simply don't know of the millions and the tens of millions of calls made each year, what percentage of those would be obscene, what percentage would be indecent, and what percentage would be neither obscene nor indecent.

John Paul Stevens:

--May I just be sure of one point?

Are either of these terms defined in the statute?

Richard G. Taranto:

No, not in the statute itself, but--

John Paul Stevens:

How do we know what Congress meant them to mean?

Richard G. Taranto:

--Well, we think that the legislative history makes it quite clear that Congress was looking at both Miller and at Pacifica when it was using those terms.

There are Various memoranda of law in the Congressional Record.