Sable Communications of California Inc. v. Federal Communications Commission/Concurrence Brennan

Justice BRENNAN, with whom Justice MARSHALL and Justice STEVENS join, concurring in part and dissenting in part.

I agree that a statute imposing criminal penalties for making, or for allowing others to use a telephone under one's control to make, any indecent telephonic communication for a commercial purpose is patently unconstitutional. I therefore join Parts I, II, and IV of the Court's opinion.

In my view, however, 47 U.S.C. § 223(b)(1)(A)'s parallel criminal prohibition with regard to obscene commercial communications likewise violates the First Amendment. I have long been convinced that the exaction of criminal penalties for the distribution of obscene materials to consenting adults is constitutionally intolerable. In my judgment, "the concept of 'obscenity' cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials, to prevent substantial erosion of protected speech as a byproduct of the attempt to suppress unprotected speech, and to avoid very costly institutional harms." Paris Adult Theatre I v. Slaton, 413 U.S. 49, 103, 93 S.Ct. 2628, 2657, 37 L.Ed.2d 446 (1973) (BRENNAN, J., dissenting). To be sure, the Government has a strong interest in protecting children against exposure to pornographic material that might be harmful to them. New York v. Ferber, 458 U.S. 747, 775-777, 102 S.Ct. 3348, 3364-3365, 73 L.Ed.2d 1113 (1982) (BRENNAN, J., concurring in judgment); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). But a complete criminal ban on obscene telephonic messages for profit is "unconstitutionally overbroad, and therefore invalid on its face," as a means for achieving this end. Miller v. California, 413 U.S. 15, 47, 93 S.Ct. 2607, 2627, 37 L.Ed.2d 419 (1973) (BRENNAN, J., dissenting).

The very evidence the Court adduces to show that denying adults access to all indecent commercial messages "far exceeds that which is necessary to limit the access of minors to such messages," ante, at 131, also demonstrates that forbidding the transmission of all obscene messages is unduly heavyhanded. After painstaking scrutiny, both the FCC and the Second Circuit found that "a scheme involving access codes, scrambling, and credit card payment is a feasible and effective way to serve this compelling state interest" in safeguarding children. Carlin Communications, Inc. v. FCC, 837 F.2d 546, 555, cert. denied, 488 U.S. 924, 109 S.Ct. 305, 102 L.Ed.2d 324 (1988). And during the 1987 hearings on H.R. 1786, a United States attorney speaking on behalf of the Justice Department described the FCC's proposed regulations as "very effective," because they would "dramatically reduc[e] the number of calls from minors in the United States, almost eliminating them." Telephone Decency Act of 1987: Hearings on H.R. 1786 before the Subcommittee on Telecommunications and Finance of the House Committee on Energy and Commerce, 100th Cong., 1st Sess., 231 (1987). In addition, as the Court notes, ante, at 129-130, no contrary evidence was before Congress when it voted to impose a total prohibition on obscene telephonic messages for profit. Hence, the federal parties cannot plausibly claim that their legitimate interest in protecting children warrants this Draconian restriction on the First Amendment rights of adults who seek to hear the messages that Sable and others provide.

Section 223(b)(1)(A) unambiguously proscribes all obscene commercial messages, and thus admits of no construction that would render it constitutionally permissible. Because this criminal statute curtails freedom of speech far more radically than the Government's interest in preventing harm to minors could possibly license on the record before us, I would reverse the District Court's decision in No. 88-515 and strike down the statute on its face. Accordingly, I dissent from Part III of the Court's opinion.