Sable Communications of California v. FCC - Oral Argument

Argument of Richard G. Taranto

Chief Justice 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?

Mr. 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.

Unknown Speaker: 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?

Mr. Taranto: We don't have any kind of statistical breakdown of--

Unknown Speaker: 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--

Mr. 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--

Unknown Speaker: --Well, is--

Mr. 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.

Unknown Speaker: --May I just be sure of one point?

Are either of these terms defined in the statute?

Mr. Taranto: No, not in the statute itself, but--

Unknown Speaker: How do we know what Congress meant them to mean?

Mr. 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.

And I don't think it--

Unknown Speaker: Is there anything in any of the committee reports that describes this point?

Mr. Taranto: --There are no committee reports for this legislation.

Unknown Speaker: How deeply into the legislative history must we go to find this out?

Memorandum of law prepared by whom?

Mr. Taranto: It was prepared by, I think, Citizens for Decency Through Law, and put into the Congressional Record by the principal sponsors--

Unknown Speaker: And we're presuming that the Congress adopted the views of that particular group?

Mr. Taranto: --Well, I think that is a fair assumption in this case, because all of the sponsors of the legislation repeatedly referred to both the memorandum and to Pacifica and to Miller.

There was, as far as I'm aware, no dispute--

Unknown Speaker: Referred... referred in what kind of context, in the debates on the floor, or in a hearing--

Mr. Taranto: --Yes, in the debates on the floor.

The bills that are... that became this law did not make it through committee.

They were introduced as amendments.

They were introduced on the floor and voted on, on the floor, in the House separately, and then as an amendment to a larger education bill.

Unknown Speaker: --But, it is--

Mr. Taranto: There was no disputing, within Congress, what the definition of indecency was or obscenity.

Unknown Speaker: --Or really no discussion, I suppose, then.

Or just a... sort of an adoption of those.

But we do... it is clear we must look to legislative history to find out what these terms mean.

Mr. Taranto: Well, even without legislative history, it seems to me the fairest assumption, when Congress used the term indecency, is to look to what this Court had... had said, and this Court's case on indecency in Pacifica.

And there, both the Commission in that case and in numerous subsequent administrative proceedings, has adhered to a standard definition of patently offensive sexual speech.

I would like to explain the background of section 223 (b), because that background is important to understanding both the aims of the statute and why the statute is no broader than necessary to achieve those aims.

The telephone pornography industry was born in 1983.

As a result of newly available technology, providers of pre-recorded, sexually-explicit messages, like Sable, could disseminate those messages on special, 976 lines to thousands of callers simultaneously, and to hundreds of thousands of callers a day.

The providers of this so-called dial-a-porn use the telephone companies to do their billing.

The telephone company collects a special charge per minute or per call and pays the provider a share.

The market for sexual telephone messages grew rapidly.

In 1984, 180 million calls were made to dial-a-porn in New York alone.

By 1988 the industry was estimated to gross more than $2 billion a year.

Unknown Speaker: Mr. Taranto, under law, are the telephone companies required to accept these people as customers, or is it a voluntary contractual arrangement?

Mr. Taranto: It is my understanding that each of the telephone companies is, as part of its non-discrimination obligation, required to accept... accept these.

But I can't say with certainty whether that's so in each state.

I know of no state which... in which a telephone company has refused to accept these, and has been upheld in doing so.

From the beginning of this new industry it was clear that children had ready access to dial-a-porn, and that the messages contained a wide range of graphic descriptions of sexual acts, many of those acts involving minors.

In 1983 Congress enacted the first version of section 223(b) to attack the problem.

The statute banned obscene and indecent commercial telephone communications to minors.

It directed the FCC to devise regulations that would try to separate adults from minors in the calling audience.

And it provided that compliance with such regulations would be a defense under the statute.

The FCC then undertook a four-year effort to promulgate regulations that would accommodate Congress' competing goals, to try to prevent access by minors while not unduly restricting adults' access to dial-a-porn.

The Commission first proposed a defense based either on use of a credit card to pay for the call, which was not feasible for pre-recorded telephone messages, or on restriction of the messages to evening and... and night-time hours.

In the challenge brought by Sable's affiliate, Carlin, the Second Circuit invalidated the time-of-day restriction as essentially ineffective, noting how little time it took for a minor to make a call, and the availability of dial-a-porn by long-distance calls to other time zones.

On remand the Commission added a second defense based on the dial-a-porn providers requiring callers to punch in an access code to hear the message.

Based on comments from Carlin and others, Carlin, in fact, stated children intent on acquiring a code will certainly be able to do so.

The Commission recognized the problem that minors might obtain access codes.

And the Commission, therefore, required that access codes be made available only through the mail and cancelled upon notification of improper use.

In the same proceeding, the Commission also rejected various kinds of blocking as technologically infeasible, unduly expensive, over-inclusive in their impact on non-sexual 976 telephone messages, and ineffective in preventing minors' access.

After another court challenge by Sable's affiliate and another remand from that challenge, the Commission promulgated a third set of regulations, adding a third defense based on the providers scrambling of its messages.

Once scrambled, the message could be de-scrambled by a simple $15 to $20, pocketwatch-size device held up to or attached to the earpiece on the phone.

Again, based on comments submitted in the administrative proceeding and reiterated by Sable in its challenge in the Second Circuit, the Commission recognized that minors might be able to obtain de-scramblers, as it previously recognized with respect to access codes.

In the end, though, the Commission came to rest on the three defenses, requiring credit card payment, access codes or scrambling, as the best, available implementation--

Unknown Speaker: And, Mr. Taranto, didn't the FCC conclude that the... a scheme using access codes, scrambling and credit card payment, was a feasible and effective way to serve the states' compelling interest in protecting children from exposure to these calls?

Mr. Taranto: --Well, I think that... that the Commission was operating throughout that four-year period not... with... a single-minded mandate to prevent minors' access--

Unknown Speaker: But didn't it reach that conclusion that I stated, fairly?

Mr. Taranto: --I'm... I'm not sure exactly what quote you're referring to.

Unknown Speaker: That it was feasible and effective using those things to meet the states' compelling interest in protecting children.

Mr. Taranto: I believe that... that the Commission was stating a conclusion about the effectiveness of reaching an inherently compromised goal, a goal that said, keep children out, but make sure adults can... can continue to gain access to the material.

And I think all of its rulings in the first, second and third reports, in order, need to be read with that goal in mind.

The Commission was not looking for the single, most effective method of keeping children... but preventing unsupervised access by children.

It always had in mind the competing congressional goal of ensuring that adults could... could continue to have access.

So it may well be that the Commission did, at various points, state, at least with respect to credit cards, although there it was talking only about live calls, that that would be an effective way of preventing children's access.

Unknown Speaker: Well, I think that's a concern, if the agency itself concluded that some more restrictive means of controlling this is feasible and effective, I wonder how the total ban survives our constitutional test of least restrictive means.

Mr. Taranto: Again, I think... I think that the Commission was drawing a... a conclusion about effectiveness as to an inherently limited goal.

And indeed, the Commission recognized that each of its three proceedings, based on comments by Carlin and Sable and the telephone companies, that there were significant loopholes in each of the... in each of the... the options.

Credit cards, it--

Unknown Speaker: Well... well, you say inherently limited goal.

It's limited by the compelling interest that the state itself hypothesizes at the outset.

Mr. Taranto: --No, I think it was the... the goal was limited by the dual congressional command in 1983 to keep this... this material available on the phones to adults, but try to keep children from gaining access.

As long as one had the first part of the congressional command in place, it was never the Commission's focus to looks for effective technological alternatives, only to get at the second goal.

Because Congress... it understood Congress to say, don't do anything unduly to restrict adults' access.

And I think it's in that... against that background that, really, all of the Commission's conclusions need to be... need to be understood.

Unknown Speaker: Well, and I suppose it's more than just a congressional concern.

It may be founded, indeed, on a constitutional requirement--

Mr. Taranto: The--

Unknown Speaker: --that adult access be considered.

Mr. Taranto: --Yes, there is... we have not disputed, and Congress, itself, did not differ with the conclusion that non-obscene speech is within the protection of the First Amendment.

And there is no doubt that this ban has an impact on adults' access to--

Unknown Speaker: So we do have to make the inquiry about whether this is narrowly tailored and the least restrictive method?

Mr. Taranto: --Well, we have argued that... that this statute does, in fact, meet that standard under, at least, the plurality opinion in Pacifica, it may well be that some laxer standard may be appropriate.

Now, we have not pressed that... that standard.

Unknown Speaker: Well, but, Pacifica was certainly not a case that can be read to authorize a blanket ban--

Mr. Taranto: No, Pacifica--

Unknown Speaker: --in a criminal context.

Mr. Taranto: --Pacifica does not go that far.

Unknown Speaker: No.

Mr. Taranto: Pacifica noted the limits on its opinion.

Pacifica, however also did not say that... say that it was going this far and no further.

It said that, given the distinctive problems concerning broadcasting, the access of children, the pervasiveness of it, the inability to separate adults from children within the audience, that the particular measure before it was justified.

What we are asking today is... is to support... is... is for this Court to uphold this telephone indecency ban based on the same considerations that led the Court in Pacifica to uphold what was concededly a more limited measure in... in... in that case.

Unknown Speaker: Well, just before... before we leave this and beginning with Justice O'Connor's initial inquiry, can we interpret this record fairly as saying that the administrative agency made a determination that blocking and access codes were reasonably effective to deter use by minors?

Mr. Taranto: I don't... I don't mean to be... to... to evade that.

It depends what one means by reasonably effective.

Again, the Commission, every time it stated a conclusion about effectiveness, had in mind effectiveness concerning a... a dual goal: two pieces of a congressional command that were--

Unknown Speaker: Well, I'm talking about... I'm talking about the one goal of limiting access for minors, as to indecent messages.

Mr. Taranto: --No, I... I don't think that the Commission's conclusions, as a whole, can be taken to establish the proposition that children would all but be kept from... from gaining unsupervised access.

Unknown Speaker: You think they... you think that... that the Commission did, though, decide they had done as well as they could?

Mr. Taranto: Yes.

I think... I think the Commission did... did do that.

Unknown Speaker: And... and ever even if they... even if they thought it was reasonably effective, as Justice Kennedy says, Congress apparently disagreed with them?

Mr. Taranto: Well, Congress... I'm not sure Congress disagreed with the--

Unknown Speaker: I mean they would--

Mr. Taranto: --Commission's conclusions.

If... if you read the Commission's conclusion--

Unknown Speaker: --Yes, exactly.

Mr. Taranto: --that way, then Congress did disagree.

Unknown Speaker: And if they said this... and if they said, well, this is as well as we can do--

Mr. Taranto: That's not good enough.

Unknown Speaker: --Congress said that wasn't good enough.

Mr. Taranto: Yes, I think that... that would be one reading of the record.

Unknown Speaker: Mr. Taranto, let's talk about if... if the child protection portion of it is no good, do you concede that the whole thing is bad, then?

Mr. Taranto: The... the child protection purpose?

Unknown Speaker: Yes, Let's assume that that child protection purpose is... is not served, or could be served in a different fashion.

Mr. Taranto: We... we have not defended, and Congress, I don't think even enacted the statute on any ground except the prevention of unsupervised access--

Unknown Speaker: And that's the only ground on which we can uphold it?

Well, that... that part of the statute.

Mr. Taranto: --The indecency part of the statute, that's correct.

Not the obscenity.

The obscenity part is different.

But as to the indecency, we have not suggested that that statute can be upheld on--

Unknown Speaker: Does the text of the statute say that that's the only basis for... for the indecency portion?

Mr. Taranto: --No, the text of the statute doesn't... doesn't contain a statement of purpose--

Unknown Speaker: Indeed, what... what affects me is what you say about whether phone companies have to carry this stuff.

We're talking here about pornography that is just short of obscenity.

And in the ordinary world, responsible individuals can exercise judgment about whether they want to lower the tone of society by making that material available to adults or to children: the local grocery store, even the local broadcaster, because they are not common carriers.

But here you're talking about a government that imposes an obligation to carry this stuff nationwide, and there is no individual that can exercise the judgment to say this is not the kind of thing that ought to be generally available in the community--

Mr. Taranto: --Well--

Unknown Speaker: --Instead of just downing one sector by zoning, or something of that sort.

Don't you think that makes it quite different from... from some other areas of... of whether pornography can generally be available?

Mr. Taranto: --The... the measure be fore this Court doesn't impose that obligation.

I understood your question to... to be whether this particular measure could be justified, whatever other statutes are... are on the books, by--

Unknown Speaker: This measure applies only to common carriers, doesn't it?

Mr. Taranto: --Well, this... this measure applies to the message providers themselves.

This... this statute doesn't speak directly to the... the common carriers.

Unknown Speaker: Yes, but the message provider is providing the message on common carrier facilities--

Mr. Taranto: That's right.

Unknown Speaker: --who must carry it.

So that there is nobody who has any say as to whether that goes into every community in the country; indeed, into every home in the country.

Mr. Taranto: Well, if... if there is a concern--

Unknown Speaker: If they have a public service obligation, the common carriers.

Mr. Taranto: --Perhaps another statute could relieve common carriers of that obligation.

This statute simply prohibits the message providers from disseminating this... this information.

And... and we have not defended that statute on the ground that adults... that it... that it's justified as a means of somehow protecting adults.

Because adults do, after all, have the presumed capacity to decide whether they want to pick up the phone and call.

What's different about children is that Congress can quite legitimately say, even a voluntary call by a minor is not... is not something that... that we want to turn a blind eye to.

Unknown Speaker: Adults have the capacity to turn off a television set, too, but most broadcasters and most sponsors, who have the power to make the judgment about whether they're going to carry pornography just short of... just short of obscenity won't do it.

So there is somebody other than the man who's making money on it, who can control it.

And you're telling me this is a situation where, as far as you know, there isn't anybody under current law.

Mr. Taranto: That... that is true, as far as I know under... under current law.

That, I think, is a problem that, if I'm wrong about... if I'm right about what... what current law is, could be... might well be addressable in... in another statute.

Unknown Speaker: May I ask to follow up on Justice O'Connor's inquiry earlier about the... the Commission's conclusion about what could... would reasonably prevent access by minors?

I think when you... in your phrasing of the point, you said that there was no way that you could reliably prevent access by minors.

You used a little different word.

What... what... how many... how many minors are we concerned about, if just a handful get access, is that enough to defend the statute, or do you have to have a substantial segment?

And when is a minor a minor, at what age?

Mr. Taranto: Well, it would certainly be harder case if... if the facts presented were a choice between a ban that made sure no minors got access, and a handful.

I think we would then... we then... we would then have questions like those that arise... that arose in time, place and manner cases, like Community for Creative Non-Violence, where the question was, just how far can the Park Service go in... in, you know, in keeping a park... preserving a park for specified uses.

This record, I think, quite amply justifies the conclusion that we don't have a choice between a near-perfect and a perfect measure.

The ability to gain credit card number, to gain an access code, to gain a... a de-scrambler--

Unknown Speaker: And see, those abilities are probably for the older minors.

The very young minors probably... it would probably work quite well as to... and I guess as they get closer to majority, they're also more able to figure out ways to get access to this stuff.

So--

Mr. Taranto: --I think that... that is certainly true, that... that the older minors get, the more resourceful they can get, the more freedom they have, the more time they have unsupervised from their parents.

But--

Unknown Speaker: --What, for purposes of this... this... what... what do we mean by minor in your... well, what, did Congress identify the age that they ware talking about?

Mr. Taranto: --No, because--

Unknown Speaker: Was it under 21, or under 14, or what?

Mr. Taranto: --Well, in... in the 1983 statute, Congress old use the term minor, and I assume used in... in the normal sense of 18 or under.

In the current statute there is no reference to minors.

The question is, we're talking about minors because of the congressional concern.

That concern surely is of diminished force as... as we are talking about 17... 17-year-olds.

But children from 5, 6, 8, 10--

Unknown Speaker: But those children--

Mr. Taranto: --have access to telephones and know how to use--

Unknown Speaker: --Have access to telephones, but they probably couldn't master these... you know, they couldn't evade the restrictions as easily, I wouldn't think.

Mr. Taranto: --Well, not... not as easily.

But I think that... that children of age 1O or 11, as indeed the anecdotal evidence submitted to Congress and the Commission show, have shown a very strong interest in calling up these dial-a-porn services and getting a three or four-digit access code, or getting a credit card number, or picking up a small de-scrambler that just needs to be held up to the earpiece of a telephone, is, we think, not a... a very difficult measure for... for children.

And, indeed, Sable and its affiliates have, throughout the administrative proceedings, urged the proposition that these measures are, in fact, ineffective, that children would be able to... to circumvent... easily circumvent all of these measures.

So we think that... that it was well within Congress' usual range of fact-finding discretion to determine that the loopholes left by various technological alternatives were very substantial loopholes, and that we weren't just talking about a handful of minors, monthly or annually, who would be able to gain access, but a very significant number.

Unknown Speaker: Is that number just based on anecdotal evidence, or are there any studies in the record to tell us--

Mr. Taranto: There are no... there are no studies.

The... one reason, I suspect, is that the most obvious means of gaining statistical information would be a survey, and, in part, because of embarrassment and other factors, that might be very unreliable information.

There have, over the years, been hundreds and hundreds of complaints made, informal and formal, to the Commission, to state agencies, to members of Congress--

Unknown Speaker: --But those, I suppose, include complaints by adults who wouldn't want the material disseminated to adults either?

Mr. Taranto: --No, I'm referring to--

Unknown Speaker: Just children?

Mr. Taranto: --adults complaining about their children's access.

Unknown Speaker: I see.

Mr. Taranto: Let me say one... one quick word about the obscenity portion of the case.

Unknown Speaker: Including an amicus here, whose... whose daughter was raped by a... by a 12-year-old after he--

Mr. Taranto: Yes.

Unknown Speaker: --had talked on the phone for two-and-a-half hours to one of these.

Mr. Taranto: Yes.

There are some extremely lurid consequences of... of this... of this telephone pornography.

Let me just say one word about the obscenity challenge.

We think it is a sufficient answer that this is a facial challenge, and that Sable's objection to the obscenity portion is not that obscenity is protected, but that speech that is not obscene in Los Angeles might be disseminated in some other community where it is obscene.

It is a sufficient answer, I think, to that challenge, just to note that the... the statute is clearly capable of constitutional application... or prosecution in Los Angeles, even under Sable's view of... of the statute, and that no other party is differently situated.

And so under Taxpayers For Vincent and other cases, there is no third party overbreadth claim here.

Any challenge that Sable has regarding its... the obscenity portion should and must be raised only, in an as-applied challenge.

I would like to reserve the balance of my time.

Unknown Speaker: Very well, Mr. Taranto.

Mr. Tribe.

Argument of Laurence H. Tribe

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

Let me begin with the question that you, Mr. Chief Justice, asked Mr. Taranto, and with Justice Scalla's follow-up concern, because, until now, this case has been litigated in terms of the interest of children.

But I do understand the question, mightn't Congress have had... or mightn't this Court in hindsight attribute to Congress, another legitimate purpose, protecting common carriers from the distasteful obligation of carrying messages that, in some cases, as Justice Scalia suggests, are just short of obscene, although in other cases, as with many of the portions of the Carlin tape, are probably far short of obscene.

That interest is an important one, I think, to examine, even if Congress didn't have it in mind, though I wouldn't concede that it would be appropriate to hold the law on that basis.

The fact is that most courts have not treated telephone companies in this context as common carriers.

Pacific Bell has debated whether it will carry these messages; for the time being, it does.

Mountain State said no.

And the Ninth Circuit, in an opinion by Judge Sneed, in Carlin Communication against Mountain State, said that when you have these messages that can reach lots of people at once, the phone company doesn't have to be treated as a common carrier.

It declined to construe state law as requiring that pornographic messages, even lawful ones, be carried.

Southern Bell similarly refused, and the Fifth Circuit said that it didn't have to carry them.

And both Circuits said there was no state action.

So the premise that Mr. Taranto has, that perhaps Congress might be upheld on another ground, I think just can't be sustained.

So we do have to focus on children--

Unknown Speaker: Have there been decisions in other Circuits that came out differently from either the Fifth or the Ninth Circuit, Mr. Tribe?

Mr. Tribe: --Mr. Chief Justice, I don't think so.

So far, every Circuit has said these are not common carriers with this general obligation.

Unknown Speaker: So--

--Does your client take a position that the telephone companies are common carriers that must be required--

Mr. Tribe: I think--

Unknown Speaker: --to carry these messages?

Mr. Tribe: --an affiliate of Sable has argued for that position in other cases, but the client I represent here does not take any position on that matter in this case.

I really don't have a view.

I do think that there is a powerful--

Unknown Speaker: You have no view on whether the telephone companies can refuse to carry these messages?

Mr. Tribe: --Oh, I'm inclined to think that they can refuse, unless there is some governmental pressure upon them, in which case it's tantamount to a governmental ban.

Indeed, Judge Sneed did take the position that when they refuse under threat of prosecution, then the First Amendment comes into play.

And that, of course, is the focus of our case today--

Unknown Speaker: Well, but, are we talking the long-lines companies or just the local companies?

Mr. Tribe: --We're talking about the Baby Bells and the other local companies.

As to the long-line companies, of course, if the locals refuse to carry, there'd be nothing to connect.

Unknown Speaker: Sure--

Mr. Tribe: But I suspect a similar proposition would be advanced with respect to the long-line companies.

Unknown Speaker: --But I... we can say that it's not settled, either from the standpoint of the policy of your client, or by a definitive decision of this Court that the carrier is not going to be told that it's required to carry the messages?

Mr. Tribe: Not absolutely and authoritatively settled, Justice Kennedy, but I think implausible to sustain this law on that ground, first, because it's likely they wouldn't be so required.

Second, because that wasn't one of Congress' reasons.

Third, because even if there is some such requirement, that requirement is purely a product of state law.

And for this Court to uphold a law that outright bans and criminalizes concededly protected speech in order to hypothetically protect some possible potential common carriers from a state law obligation, seems something of a stretch.

The real issue here, I think, is children.

And whenever a category--

Unknown Speaker: But... but... but before we leave that--

Mr. Tribe: --Yes.

Unknown Speaker: --Would it be constitutional for Congress to pass a statute saying that common carriers can refuse to carry any commercial message they choose?

Mr. Tribe: That's an intriguing question, Justice Kennedy.

I suppose, if there were something of a monopoly, and the impact of that law was to prevent certain persons from getting protected messages somewhere, it would be a little like Marsh v. Alabama, in which this Court held that a private company cannot, in effect, be authorized by state law to block access of a whole group of people to a protected message.

But that would be a difficult issue for another day, I think.

Unknown Speaker: And... and If... If that statute is... is not constitutional, then we are right back to this question, because the next question could be, would a statute be permissible allowing the option to the company to refuse indecent calls.

Mr. Tribe: In any event, that would surely be a less restrictive alternative for Congress.

But if Congress were to say that a company may refuse to carry certain kinds of messages, and in that way were to try to relieve them of the burden, the adverse impact on protected speech by message providers would be considerably less.

Because it would depend on a later adjudication of whether that law was valid.

With respect to children, I think the important and quite universally recognized point, and we certainly have to concede it, is that when a category of speech is protected for adults but might harm children, there are not may ways that government can absolutely rule out any possible child access.

There are three broad approaches government can take.

It can try to channel or zone the speech into times and places where parents can supervise exposure.

This Court authorized, for example, banning the sale of adult magazines, even not quite obscene ones, to minors in Ginsberg, in Pacifica.

Although it certainly didn't authorize outright criminalization, it said that one could take a radio station's careless daytime broadcast of dirty words into account in the licensing context.

One could rely, as this Court said, one had to, in Bolger, on parents to intercept potentially indecent condom ads at the mailbox.

That's one approach.

Now, a second approach is to screen.

That is, one can require that the speech, which is unsuitable for children, be coded or scrambled, or otherwise made accessible only to people who have some special information or device.

And then one can make it illegal for minors to obtain that device.

You could require lockboxes on cable t.v., and, of course, there is the FCC's 1987 approach.

Now, these two approaches aren't perfect.

Children are not chained to their parents.

Parents may be busy or distracted.

Kids can go next door.

All locks and codes can be broken by someone enterprising enough.

And so it's tempting sometimes to take the next steps and to ban the speech outright by criminal law so that not even willing adults can get it, which is the approach of this... of this statute.

Unknown Speaker: Well, unless you want to say this approach is... is like the first approach, it... it... it says you can do it, but not in this place.

That is, not on these common carrier lines.

Mr. Tribe: Not on the telephone.

Unknown Speaker: You can do it by cassettes, you can do it by other modes, just not by telephone.

Mr. Tribe: I understand.

Unknown Speaker: Why is that different, in kind, from the first approach?

Mr. Tribe: I think the search for that kind of limiting principle is important.

Because, I think, as your question recognizes, otherwise the government could use a flat ban to reduce the messages reachable by phone to those that are fit for children.

The same rationale, namely, some kid will get through, could be used to eliminate the sale of indecent, but not obscene, books, magazines, films, videos, HBOs, and the like.

Indeed, much of what is here described as just short of obscene is not distinguishable from a lot of what's in R-rated movies, and lots of racy novels.

So it is important to ask whether there is something distinctive about dialing a phone that would justify this content-based law, which is certainly not narrowly tailored.

I mean, after all, most of what it outlaws is an adult deliberately dialing a call, not being harassed by anyone.

And so, let me... let me turn to that.

Unknown Speaker: How about the fact that it's in my home, for one thing?

I can keep my kids out of the movie, but I can't keep them out of my home.

And the phone is right there whenever they want to use it.

Mr. Tribe: The phone is right in your home, as is the mailbox.

And if you don't want the kids, if you don't want the kids, as I certainly wouldn't want them, to dial these companies from my phone, I wouldn't buy a de-scrambler.

And the FCC takes that into account when it says we do want to empower parents in their homes to disarm the telephone, make it not a... a vehicle for getting this kind of indecent speech.

But this is not a medium... call it common carrier or anything else... that is somehow directed or dedicated to minors as in a... like a public school PA system or an educational channel.

And--

Unknown Speaker: Mr. Tribe, what is a blocking device?

Mr. Tribe: --Well, there are three versions of it.

There is a central access blocking technique, which uses the computers within the phone system, and which is now becoming feasible just about every place.

There is a device that can be attached to the phone, in which the default position is the message can get through, but then if you block, the message can't.

And there is a de-scrambler, which is what the FCC in 1987 advocated as the thing making it feasible--

Unknown Speaker: Well, the FCC never relied on the use of blocking devices?

Mr. Tribe: --No.

No, it did not.

It relied instead--

Unknown Speaker: Has the technology changed since then, so that is now feasible?

Mr. Tribe: --It seems to have advanced, although the record in this case doesn't tell us.

The FCC did say last April in Carlin III that the combination of access codes, required prepayment by credit card and scrambled messages, so that the default position is that the indecent message can't get through unless the parent wants it to get through, that that combination was, as you indicated, Justice O'Connor, a reasonable, feasible and effective way.

But--

Unknown Speaker: Did... does Sable agree with that position?

Mr. Tribe: --That it's reasonably feasible and effective, absolutely.

Unknown Speaker: And does it agree that that it's a legitimate regulation?

Mr. Tribe: The decision in Carlin III raised one question about that, that I think I ought, in candor, to focus on.

And that is, the Second Circut in Carlin III suggested that it is legitimate unless and until even less restrictive alternatives become available.

And they were talking primarily about a beep tone approach, under which the default position would be that the message could get through unless the parent installed, for $5 or so, and that is now feasible I understand, a beep tone device in the phone so that it wouldn't get through.

But it seems to me that the combination don't want to be... I don't think one should get distracted with the technological wizardry of all this.

The fundamental proposition is that there is nothing distinctive about phones.

If anything, it cuts the other way.

It's much easier to police the phone, either in your own house or in a neighbor's house, than it is to police a kid looking in somebody else's closet for old copies of Playboy or old centerfold, or turning on the HBO.

At least some parent is going to have a monthly bill from Sable or Carlin... actually, from the phone company, indicating use of a service by Sable or Carlin.

So there is a policing mechanism.

Justice Scalia--

Unknown Speaker: Well, I'm still not sure of the answer.

Does... does Sable agree that some, or all of these devices in combination, are legitimate?

Mr. Tribe: --Yes.

Certainly, as a less restrictive alternative than a flat ban.

It agrees that they are legitimate unless and until a less restrictive alternative, still, becomes available.

But certainly, their availability makes this flat ban illegitimate.

Let me return to Justice Scalla's question about the terrible... the rape of that 12-year-old.

Some of the stuff, which is either obscene or not obscene, in any medium, night be associated with terrible, terrible tragedy.

That isn't, I think, denied.

The question really is can one, as a result, in dealing with non-obscene material which the government admits is protected for adults, wipe it out from the whole medium on the theory that it's somehow distinctive.

The fact is, if you can do it to the telephone, you can do it to pictures of nudity or violence that are not suitable for minors, that might give them terrible ideas, but that are protected for adults.

They can be every bit as tempting and corrupting for children, both in print and on film.

There are other suggestions the government makes for somehow trying to limit the precedent that think it realizes could be terribly dangerous.

They suggest repeatedly in their brief that what's distinctive about the phone in your home, to which you referred, Justice Scalla, is that it is somehow immune to control for age at the point of sale.

That is, unlike the neighborhood magazine store or the neighborhood movie theater, where there is somebody in the window and where, unless you're pretty close to 18, you can't very well pass for 18, though you can sneak in, the government says that there's no live vendor at the telephone, and therefore no check at the point of sale.

And therefore, it's distinctive.

And we could, therefore, justify a sort of limited ruling saying that on the telephone you can reduce adults to what is suitable for minors.

I think that that's quite a canard.

I mean, the fact is that the FCC's safeguards, the combination of requiring a credit card or an access code, or scrambling the message, would interpose live vendors.

When you go to get the credit card or the access code or the de-scrambler.

The picture of the world that is painted by the government in its brief is that these children are so enterprising they can steal their parents' credit cards, they can sneak into someplace and buy this de-scrambling device, but somehow, despite that, they're not going to manage to see the same thing on adult... in adult magazines or somewhere else.

The fact is you have to buy an adult magazine even to get the telephone number of one of these companies.

So the idea that the absence of a live vendor is decisive, I think, is fallacious.

It's especially fallacious since the government's own argument shows that the harm comes not from the purchase, but from the peek.

The harm is exposure.

It doesn't matters who bought it, if the child goes across the street and looks at the centerfold at the age of five or six, or reads some dirty jokes, that can be disruptive of development in exactly the same way.

The issue, therefore, has nothing to do with the vendor, it has to do with the parent.

And are we going to have government, basically, displace parents, because parents are not... are not perfect?

Unknown Speaker: But what about the impact on the child?

The printed word is... is less... less likely to be attractive and harmful; pictures, more so; the live human voice, it would seem to me, more so still.

And I'm sure, right around the corner with fiber optics is... is these services with video on telephone lines.

Mr. Tribe: But, Justice Scalia--

Unknown Speaker: Is there no distinction that can be based upon the degree of harm that... that even letting a few children slip under... under the wire can cause?

Mr. Tribe: --There are two points, Justice Scalia.

The first is that no system will prevent some slippage under the wire unless we take the draconian step of completely blanking out protected speech.

Unknown Speaker: I agree with that.

I think--

Mr. Tribe: The second proposition, however, is that this is not a live voice.

The government makes a special point of saying that live, two-way conversations have nothing to do with this case.

This is a recorded voice; it's an answering machine.

Unknown Speaker: --Well--

Mr. Tribe: And certainly a tape or a record or a video--

Unknown Speaker: --I'll take that.

That... that's still better than the printed word, I would think--

Mr. Tribe: --Well--

Unknown Speaker: --as... as far as its impact upon the juvenile is concerned.

Mr. Tribe: --But does it matter whether it comes into your ear through the telephone or through the air in front of you when you put it on a record player or a tape recording?

Are we now going to say, as it would follow from that question, I think, that if a record or a tape contains suggestive or salacious language, or is somehow erotic, though not obscene, it certainly would be disruptive for a five-year-old or a 10-year-old to hear, that we can't sell It?

Because if you sell it down the street, some 15-year-old may buy it, and the five-year-old may borrow it.

It seems to me that that is an illimitable position, profoundly dangerous to the First Amendment.

I understand the temptation of it because the stuff may not seem terribly edifying.

Unknown Speaker: I take It then, it wouldn't make any difference to your argument If the... If the... if the Commission had found that there is just no technologically feasible way of keeping this away from children at all?

Mr. Tribe: Justice White, I think it would depend, and in this I agree with Mr. Taranto, on what was meant by no feasible way.

That is, take skywriting, They use an example--

Unknown Speaker: Well, I... I know, but my question--

Mr. Tribe: --Yeah.

Unknown Speaker: --let's just suppose that the Commission had found that... that there is just no way of really keeping this away from... it just won't be just a few, but practically any child that wants to can get to this.

Mr. Tribe: Yes--

Unknown Speaker: I would think your argument would still be the same.

Mr. Tribe: --Well, I think the compelling interest in protecting children leads, as Justice O'Connor says, to a requirement of narrow tailoring.

And that leads to an Inquiry of whether there really is a less restrictive alternative.

And In the rare case where there is just no way--

Unknown Speaker: well, so... so if there weren't... if there weren't a less restrictive alternative, you would think the law would be all right?

Mr. Tribe: --It might well be all right if large numbers of children could, in any event, get a hold of it I was about to give the example of skywriting.

There are some things that, just by the nature of it, when they're up there, everybody can equally see them.

And you can't filter out some people.

But it is simply fallacious to suggest, as the government does, that we're dealing here with anything remotely of that sort.

That is, all of the evidence about the hundreds of calls that came in, came from a period when there were no FCC safeguards in place.

The primary quotation they rely on in their brief is from Brent Ward, U.S. Attorney In Utah.

And he said that there were hundreds of calls from parents of minors who complained to Carlin's New York City telephone service.

But those calls occurred without any safeguards at all.

And if you ask what Brent Ward, their primary witness on this subject, testified before Congress, he said this, and we quote him at page 9 of our brief, "The access code requirement", I'm quoting,

"The access code requirement and the screening option would dramatically reduce the number of calls from minors, almost eliminating them. "

"It would be a very effective way to do it. "

That's his language.

Now, the government says, but that's only because they have a compromised goal.

The compromise, as Justice O'Connor suggests, is with the Constitution, with the First Amendment.

They say, if you really have an unalloyed goal, then you can say that there is no less restrictive alternative.

But the alloy that they would remove is the alloy of the First Amendment.

That is, quite clearly, if you give any weight at all to the importance of not preventing adults from a medium ultimately indistinguishable from others, from having access to material that is protected as to them, then this is an overly broad law.

Unknown Speaker: So how do you decipher what Congress did.

Mr. Tribe: Oh, I think in an election year, in 1988, it's not too hard, Justice White, if you ask me that question to decipher what Congress did almost--

Unknown Speaker: I didn't say it was hard, I just wanted to hear what you had to say about it.

[Laughter]

Mr. Tribe: --I think this was... I think this was a politically popular measure to favor, politically devastating to oppose, even though--

Unknown Speaker: Well, that's fine.

But what do you think they... what do you think they had in... what do you think they tried to do, to make it absolutely... to achieve the impossible goal of... of ensuring that no child ever--

Mr. Tribe: --I think that what they--

Unknown Speaker: --They didn't care whether it was one child or 1,000 who could... is that it?

Mr. Tribe: --They had no... they were frustrated, Justice White, because there was this long colloquy between the relevant administrative agency, the FCC, and the Second Circuit, lasting for about five years, going back and forth.

And it was in early April of 1988 that the Second Circuit finally came down in Carlin III and said, you've... you've done it you've solved it.

Within days... within days Congress voted this flat ban.

The hearings were held months before Carlin III came down.

So Congress probably thought, if you ask me to speculate, that the Second Circuit was forever going to frustrate the FCC and that it was just going to cut through all of the red tape, and since it didn't value this stuff much anyway, and since it thought, perhaps, that it knew what it was outlawing, although, with I'm not sure exactly what it was outlawing, because these terms are not self-defining--

Unknown Speaker: Well, did the... did the--

Mr. Tribe: --they just said, let's go.

Unknown Speaker: --Did they... did they seek the views of the Communications Commission with respect to this particular piece of legislation?

And what did they--

Mr. Tribe: Oh, yes, They were told by Diane Killory--

Unknown Speaker: --What did they say?

Did they... they recommend that it be passed?

Mr. Tribe: --They recommended that it was probably unconstitutional.

Unknown Speaker: Well... well, they said--

Mr. Tribe: And that Congress not go at far.

President Reagan, when he signed it, said I'm not so sure that it will pass muster, but I'm going to sign it.

I do think, If you ask what they had--

Unknown Speaker: --What... what was their view of the... when they presented their views, they said it might be unconstitutional, but what about how... how... how... how safe was... did they say that... that there is a... there is a... a reasonably effective way of doing this?

Mr. Tribe: --Oh, yes.

They concluded in their third report in 1987 that there's a reasonably effective way of doing it.

And that report was before Congress when it had this law.

And the colloquy wasn't over whether that would be reasonably effective--

Unknown Speaker: And... and did they testify before the committee... the committee... the--

Mr. Tribe: --I believe Diane Killory did, but I'm sure Mr. Taranto will have that information.

Unknown Speaker: --And did they explain what they thought reasonably effective was?

Mr. Tribe: Well, the... they, I believe, agreed with Brent Ward, that it would almost eliminate calls from minors.

And these are calls, I do want to get back to the suggestion, Justice Scalia, that this is just a teensy-weensy bit short of completely unprotected.

I don't think there's anything in the record that... that shows that.

After all, the... the government says, in page 5 of its brief, that this criminalizes calls even when the... when the message is only suggestive, not sexually explicit, even when there's no prurient appeal at all.

And in oral argument, they say that represents, they think, a fair volume.

Even when... and they... to answer Justice Stevens, they go to the Pacifica case to say, well, what does indecent mean?

Of course, Pacifica dealt with, the Carlin, "seven dirty words" monologue.

That wasn't erotic in the slightest.

It was, perhaps, in terrible taste.

It was more funny than erotic.

It might have been gross.

But, it had nothing to do with heavy breathing.

It had nothing to do with anything porno... pornographic in the usual sense.

The government concedes that this ban applies even if there maybe serious value.

Indeed, as one of the amicus briefs suggest, one of the commissioners of the FCC wondered why Ulysses, sort of, ever made it, because he doubted that it had serious value.

This law is about as broad as one can imagine.

Unknown Speaker: Mr. Tribe, If you prevail in your... or Sable prevails, and the Indecency portion of the statute Is struck down, do... is... does the FCC still have authority to proceed the way it was proceeding up through 1987?

Mr. Tribe: I believe, Mr. Chief Justice, that the prior law would have to be re-enacted to give it that authority, though they might--

Unknown Speaker: Did Congress--

Mr. Tribe: --find some more general statute.

Unknown Speaker: --Did Congress repeal the prior law when it enacted the 1988 statute?

Mr. Tribe: I believe it replaced the prior law with the 1988 statute.

But I'm sure that the prior law, which was a little bit like the law of New York in Ginsberg, it outlawed targeting minors, and it created a safe harbor If the FCC's regulations were complied with.

I have no doubt that they would re-enact that in a minute.

Unknown Speaker: Can I come back to your... your point about, you know, now much really important stuff is covered by this?

In the Second Circuit case, Carlin won.

The court... the court observed that, rather Incredibly, 800,000 calls per day were made to dial-a-porn, your client's service, colloquial... colloquially called dial-a-porn, in May, in the one, month of May 1983.

Mr. Tribe: Uh-huh.

It was quite a fad at first.

Unknown Speaker: And 180 million Calls in the year ending February 1984.

Mr. Tribe: Right.

Unknown Speaker: Now I don't think they called up to listen to the Carlin dialogue.

I really don't, I don't think that's where the money is.

I don't think anybody thinks that's where the money is.

Mr. Tribe: Actually, actually, the numbers dropped off dramatically.

And many people think that Jokes are the next thing, and that people got bored with those kinds of calls.

But the key points really, is that if it is protected, as the government concedes, judging what its value might be, is a treacherous enterprise under the First Amendment.

One-man's trash may be another's solace.

These poor--

Unknown Speaker: I never believed that at all.

Mr. Tribe: --You never believed that?

Unknown Speaker: I never believed it for a minute.

[Laughter]

Mr. Tribe: The lonely, bored person, afraid of getting AIDS.

I mean, the fact is, Justice Scalia, I, at first, didn't take this as seriously as perhaps I... I should, but last year, the National Academy of Science's Institute of Medicine reported that stifling graphic sexual materials may now take a toll in human lives in the current period.

The government addresses that.

And they said, well, we don't know if it's true.

If it's protected by the First amendment, the default position, when in doubt should be, don't suppress.

Let me, in the very brief time I have left.

Unknown Speaker: Are, you going to argue the--

Mr. Tribe: Obscenity.

Unknown Speaker: --obscenity case?

Mr. Tribe: I was about to try to do that.

Unknown Speaker: About to try to.

All right.

Mr. Tribe: Right.

[Laughter]

Of course, the Miller case, the separate, entirely separable obscenity provision draws on Miller, which involved a mass mailing thrust on unwilling people.

And some members of the Court would really, I think, be understandably reluctant to uphold an obscenity law where the interests of unconsenting adults are children are otherwise taken care of.

But the key point about the obscenity provision is that even if you would otherwise regard the government's power of criminalization as broad enough to encompass obscene transmission to a consenting adult the government has conceded that this law, because of the discretion of the phone companies they can Invite... invite eavesdroppers from Salt Lake City on calls meant only to Los Angeles.

This law puts pressure on the companies to leave on the cutting room floor protected material... protected in the community where it is targeted, in order to avoid prosecution.

And their whole answer is, hey, you don't need to challenge it now; wait till you're prosecuted.

The law Is capable of valid application.

That's a completely non-responsive argument.

Unknown Speaker: The Big Chill?

Mr. Tribe: It's the very Big Chill.

[Laughter]

And It's not just an overbreadth challenges, this is... this operates like a prior restraint; it really does.

That is, what's left on the cutting room floor... because otherwise, someone will involuntarily ship it to Salt Lake City... will never expose you to prosecution.

And they have never responded to that.

Unknown Speaker: Is it correct Mr.... Is it correct, Mr. Tribe, that your client has been able to reach agreements now with Pacific Bell to offer purely local service in the Los Angeles area?

Mr. Tribe: Ah, would that it were quite as true as the government suggests at page 22 of its reply brief.

What is correct Is that proposed tariffs are in place with the California PUC.

It's completely up to Pacific Bell whether to live with them.

And their current proposal says, we might do it, but we will not allow you to collect any revenue for these local calls.

Well, that's not exactly a settlement.

That is, they might allow carrying local calls, purely local, which they would exclude from eavesdropping from across the country, but not transmit any of the revenue generated thereby to Sable.

Unknown Speaker: Well, I guess your client could also hire people to answer the phone calls and screen them out from--

Mr. Tribe: It could use a completely live method altogether--

Unknown Speaker: --Yes.

Mr. Tribe: --but I suppose you could say of records that people sell, they could also use live singers.

But this is a separate, distinctive channel of communication.

And the government's position, that they can shrink it to what is fit for children, knows no limiting principle whatever.

And whatever one might think of the great or small value of this stuff, it seems to me that the First Amendment is in the balance and that it ought to prevail.

Thank you.

Unknown Speaker: Thank you, Mr. Tribe.

Mr. Taranto, do you have rebuttal?

Rebuttal of Richard G. Taranto

Mr. Taranto: Just a couple of brief points that I think focus on the heart of... of our dispute.

First of all, it cannot be consistent with what this Court held in Ginsberg and reiterated in Pacifica, that the point of sale is simply irrelevant to the inquiry.

If congressional and state legislative-concern ended with the proposition that minors can through a variety of means, pick up copies of Playboy Magazine in their friends' houses, or what have you then the whole proposition and ruling of Ginsberg would be defeated.

The point of... the significance of the point of sale is that it represents, in most cases, a very reliable opportunity to make sure that minors are screened from the audience.

What is distinctive about the telephone mediums as was distinctive about the broadcasting mediums is that that is simply not possible.

One... one additional point, and that is, we think it is, at the very least, Important in focusing, then, on whether Congress did adopt the less restrictive alternative, in addition to giving deference to Congress' and the Commission's judgement about precisely what kind of access children would have, to ensure that... that we don't... that the Court does not strike down a ban on the strength o a less restrictive alternative that the Second Circuit found unconstitutional in Carlin III, and that Sable, itself, would continue to challenge as unconstitutional.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Taranto.

The case is submitted.