Monday, October 19, 2009

Sable Communications v. FCC

In a 1989 decision titled Sable Communications v. Federal Communications Commission (492 US 115), the US Supreme Court invalidated part of a federal law that prohibited "dial-a-porn" telephone messaging services. The law made it a crime to transmit commercial telephone messages that were either "obscene" or "indecent."

The court drew a sharp distinction between speech that meets the legal definition of "obscene" and speech that is "indecent" (sexually charged but not rising to the level of "obscene"). The court held that obscene speech could be restricted, but that merely indecent speech was protected by the First Amendment. This is an important distinction often overlooked by censorship proponents, who often, and quite mistakenly, jump to a conclusion that they can restrict any speech with sexual content.

The court acknowledged a legitimate governmental interest in protecting children from speech that might be obscene with regard to minors, but not obscene for adults. However, the court emphasized here, as it has in other cases, that such restrictions must be very narrow, carefully distinguishing what is and is not restricted, and carefully protecting the rights of adults to receive protected speech (even if that protected speech is indecent). This, too, is a critical point often passed over by the would-be censors. They act as if a "compelling state interest in protecting children" trumps any and every other consideration at law. It doesn't. Courts always couple that "compelling interest" clause with an "and" to a statement requiring that the compelling state interest infringe as little as possible on the Free Speech rights of both adults and minors.

In the words of the court:
Sexual expression which is indecent but not obscene is protected by the First Amendment. . . . The Government may, however, regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest. We have recognized that there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards. . . .

The Government may serve this legitimate interest , but to withstand constitutional scrutiny, "it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Admendment freedoms." . . . It is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends.

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