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

Justice SCALIA, concurring.

I join the opinion of the Court, but add a few words. It should not be missed that we are making a value judgment with respect to the indecency portion of the statute. The conclusion of the reasoning in Part IV of our opinion is as follows:

"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.      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." Ante, at 130-131.

"We know from this record that the FCC's technological     approach to restricting dial-a-porn messages to adults who      seek them would be inadequate, since some enterprising and      disobedient young people would manage to secure access to      such messages.  Since this is the case, it seems to us that §      223(b) is a narrowly tailored effort to serve the compelling      interest of preventing minors from being exposed to indecent      telephone messages."

I join the Court's opinion because I think it correct that a wholesale prohibition upon adult access to indecent speech cannot be adopted merely because the FCC's alternate proposal could be circumvented by as few children as the evidence suggests. But where a reasonable person draws the line in this balancing process that is, how few children render the risk unacceptable-depends in part upon what mere "indecency" (as opposed to "obscenity") includes. The more narrow the understanding of what is "obscene," and hence the more pornographic what is embraced within the residual category of "indecency," the more reasonable it becomes to insist upon greater assurance of insulation from minors. So while the Court is unanimous on the reasoning of Part IV, I am not sure it is unanimous on the assumptions underlying that reasoning. I do not believe, for example, that any sort of sexual activity portrayed or enacted over the phone lines would fall outside of the obscenity portion of the statute that we uphold, and within the indecency portion that we strike down, so long as it appeals only to "normal, healthy sexual desires" as opposed to "shameful or morbid" ones. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498, 105 S.Ct. 2794, 2798, 86 L.Ed.2d 394 (1985).

In joining Part IV, I do so with the understanding that its examination of the legislative history (ante, at 129-130) is merely meant to establish that no more there than anywhere else can data be found demonstrating the infeasibility of alternative means to provide (given the nature of this material) adequate protection of minors. I do not understand the Court to suggest that such data must have been before Congress in order for the law to be valid. Even though "[n]o Congressman or Senator purported to present a considered judgment" on infeasibility, ante, at 130, the law would be valid if infeasibility was true. Neither due process nor the First Amendment requires legislation to be supported by committee reports, floor debates, or even consideration, but only by a vote.

Finally, I note that while we hold the Constitution prevents Congress from banning indecent speech in this fashion, we do not hold that the Constitution requires public utilities to carry it.