Dial Information Services v. Thornburgh

Citation
Dial Information Services Corp. v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991) (full-text).

Factual Background
Defendant-appellant Richard L. Thornburgh, Attorney General of the US, appeals from a preliminary injunction order entered in the US District Court for the Southern District of New York that enforces a statute forbidding providers of indecent telephone communications for commercial purposes from making their services available to persons under 18 years of age.

The main issue in this case is deciding what is “indecent” material and if it is protected under the First Amendment. “Indecency” here in the dial-a-porn context is defined as “the description or depiction of sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the telephone medium.”

The First Amendment forbids obscene material, but protects indecent material. While indecent material is protected, the Supreme Court has said in previous court cases regarding the Federal Communications Commission (FCC) that even indecent materials can be censored if the broadcast medium is highly accessible. A highly accessible medium would be, for example, television.

However, in Sable Communications v. FCC, the Supreme Court ruled that Sable Communications, which was providing a dial-a-porn service through telephones, cannot be censored by the FCC on the use of indecent materials, holding that telephones require interaction in part of the caller. Therefore, if the system operations provide a system where they can check the age of the caller, they cannot be censored by the FCC.

Appellate Court Proceedings
After reviewing the Helms Amendment, the court finds that the telephone company does not act under governmental compulsion either when it undertakes or refuses to undertake dial-a-porn billing. The Helms Amendment is the most recent manifestation of 47 U.S.C. Section 223(b)(2)(A) of the Communications Act, and prohibits making by telephone “any indecent communication for commercial purposes which is available to any person under 18 years of age or to any other person without that person’s consent, regardless of whether the maker of such communications places the call.”

The court further establishes that there is no restraint of any kind on adults who seek access to dial-a-porn. The telephone company has no right to review the content of dial-a-porn messages.

The matter is remanded for entry of judgment denying the motion for a preliminary injunction.