Byron White

“ Sexual expression which is indecent but not obscene is protected by the irst Amendment; and the federal parties do not submit that the sale of such materials to adults could be criminalized solely because they are indecent. 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. ”

“ For all we know from this record, the FCC's technological approach to restricting dial-a-porn messages to adults who seek them would be extremely effective, and only a few of the most enterprising and disobedient young people would manage to secure access to such messages. [10] If this is the case, it seems to us that § 223 (b) is not a narrowly tailored effort to serve the compelling interest of preventing minors from being exposed to indecent telephone messages. ”

“ Thereafter, in April 1988, Congress amended § 223 (b) of the Communications Act to prohibit indecent as well as obscene interstate commercial telephone communications directed to any person regardless of age. The amended statute, which took effect on July 1, 1988, also eliminated the requirement that the FCC promulgate regulations for restricting access to minors since a total ban was imposed on dial-a-porn, making it illegal for adults, as well as children, to have access to the sexually explicit messages, Pub.L. 100-297, 102 Stat. ”

“ The private commercial telephone communications at issue here are substantially different from the public radio broadcast at issue in Pacifica. In contrast to public displays, unsolicited mailings and other means of expression which the recipient has no meaningful opportunity to avoid, the dial-it medium requires the listener to take affirmative steps to receive the communic tion. There is no "captive audience" problem here; callers will generally not be unwilling listeners. ”

“ Restrictions on Obscene or Indecent Telephone Message Services, 47 CFR § 64.201 (1988) . In Carlin Communications, Inc. v. FCC, 749 F.2d 113 (1984) (Carlin I) , the Court of Appeals for the Second Circuit set aside the time channeling regulations and remanded to the FCC to examine other alternatives, concluding that the operating hours requirement was "both overinclusive and underinclusive" because it denied "access to adults between certain hours, but not to youths who can easily pick up a private or public telephone and call dial-a-porn during the remaining hours." ”

“ Pacifica, supra, at 733, 98 S.Ct., at 3032, quoting Pacifica Foundation, 59 F.C.C.2d 892 (1976) . The issue of a total ban was not before the Court. 438 U.S., at 750, n. 28, 98 S.Ct., at 3040, n. 28.
The Pacifica opinion also relied on the "unique" attributes of broadcasting, noting that broadcasting is "uniquely pervasive," can intrude on the privacy of the home without prior warning as to program content, and is "uniquely accessible to children, even those too young to read." ”

“ Section 223 (b) no more establishes a "national standard" of obscenity than do federal statutes prohibiting the mailing of obscene materials, 18 U.S.C. § 1461, see Hamling v. United States, 418 U.S. 87, 94 S.Ct. ”