Dial-a-porn

Overview
The federal law concerning dial-a-porn is section 223(b) of the Communications Act of 1934, as amended. Prior to April 1988, it banned both obscene and indecent dial-a-porn in interstate commerce and foreign communications, but only if it involved persons under eighteen. Although pornography that is indecent but not obscene is protected by the First Amendment, restricting minors’ access to pornography, even to non-obscene pornography, generally presents no constitutional problems, as minors do not have the same rights as adults under the First Amendment.

Therefore, the pre-April 1988 version of section 223(b) apparently was constitutional. In April 1988, however, P.L. 100-297, §6101, amended section 223(b) to ban obscene and indecent dial-a-porn in interstate and foreign communications, whether involving adults or children. In June 1989, the U.S. Supreme Court declared section 223(b) unconstitutional insofar as it applies to indecent messages that are not obscene. The Court noted “that while the Government has a legitimate interest in protecting children from exposure to indecent dial-a-porn messages, §223(b) was not sufficiently narrowly drawn to serve that purpose and thus violated the First Amendment.” “[C]redit card, access code, and scrambling rules. . . [would have] represented a ‘feasible and effective’ way to serve the Government’s compelling interest in protecting children.” The government argued that these methods “would not be effective enough,” but the Court found “no evidence in the record. . . to that effect. . . .” The Court concluded:


 * 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.

The upshot of Sable was that Congress’s 1988 extension to adults of the ban on dial-a-porn that is indecent but not obscene resulted in federal law’s not banning such dial-a-porn at all, even if used by minors. Section 223(b) after the decision banned dial-a-porn only if it was obscene. Therefore, in 1989, Congress enacted P.L. 101-166, known as the “Helms Amendment,” which amended section 223(b) to ban indecent dial-a-porn, if used by persons under 18. Under the 1988 law, section 223(b) applied “in the District of Columbia or in interstate or foreign communications”; under the Helms Amendment, it applies to all calls “within the United States.”

The Helms Amendment also added section 223(c), which prohibits telephone companies, “to the extent technically feasible,” from providing access to any dial-a-porn “from the telephone of any subscriber who has not previously requested [it] in writing. . . .” In order to enable telephone companies to comply with this provision, Federal Communications Commission regulations require dial-a-porn providers to give written notice to the telephone company that they are providing indecent communications.

The Helms Amendment was challenged as unconstitutional, but a federal court of appeals upheld it, and the Supreme Court declined to review the case. The court of appeals found that the word “indecent” as used in the statute was not void for vagueness, that the statute was the least restrictive means to achieve a compelling governmental interest, and that the requirement that the dial-a-porn provider inform the telephone company that its message was indecent did not constitute prior restraint.