Dial-a-Porn

Dial-a-Porn services provide prerecorded, sexually explicit messages via telephone. In 1983, following concerns that young people were being harmed by exposure to offensive and damaging messages that were easily accessible, Congress amended the Communications Act of 1934. Section 223(b) prohibited obscene or indecent telephone communications to any person under eighteen years of age or to any other person without that person’s consent.

Critics of the legislation claimed that it was unconstitutional content based regulation of free speech. After the Second Circuit ruled that indecency is not a separate category of speech, Congress amended section 223(b) to prohibit all indecent and obscene commercial telephone communications directed to any person, regardless of age.

In Sable Communications v. FCC, 492 U.S. 115 (1989), the Supreme Court upheld Congress’s total ban on obscene transmissions. Since obscenity is not protected by the First Amendment, Congress may regulate the dissemination of obscene materials, so long as it has a legitimate governmental interest in such regulation. It struck down, however, the total ban on indecent communications, which may be regulated only when a compelling governmental interest exists, and then only by the least restrictive means available. Although the Court held that the welfare of minors is a compelling governmental interest, a total ban on indecent communication was not the least restrictive means to further that interest.

In response, Congress enacted the Helms amendment, prohibiting any indecent commercial telephone communication available to minors, but allowing a waiver for adults agreeing to abide by a ‘‘presubscription’’ procedure. The Second Circuit has since upheld the amendment.

DEBORAH ZALESNE

References and Further Reading

• Burrington, William W., and Thaddeus J. Burns, ‘‘Hung Up on the Pay-Per-Call Industry? Current Federal Legislative and Regulatory Developments,’’ Seton Hall Legis. Journal 17 (1993): 359, 365.

Cases and Statutes Cited

• Carlin Communications v. FCC, 837 F.2d 546, 560 (2d Cir. 1988)
• Dial Information Services Corp. v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991), cert. denied, 112 S.Ct. 966 (1992)
• Sable Communications v. FCC, 492 U.S. 115 (1989)
• Communications Act of 1934, 47 U.S.C. } 223(b) (1983)
• Communications Act of 1934, 47 U.S.C. } 223(b) (1990)(Helms amendment)