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

Factual Background[]

The United States appealed from a preliminary injunction order entered in the trial court prohibiting enforcement of 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 before the court was the interpretation of the term “indecent.” material and if it was protected under the First Amendment. “Indecency” in the dial-a-porn context was 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 does not protect obscene material, but protects indecent material. While indecent material is protected, the U.S. Supreme Court has said in previous 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, which was providing a dial-a-porn service through telephones, could not be censored by the FCC for using of indecent materials, since the telephone requires interaction on the part of the caller. Therefore, if the system operator provide a means by which 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 held 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. §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 held 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 was remanded for entry of judgment denying the motion for a preliminary injunction.