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Court Clears Way for Congress to Protect Children from Dial-a-Porn

January 27, 1992

WASHINGTON (AP) _ The Supreme Court today cleared the way for enforcement of Congress’ latest attempt to protect children from ″dial-a-porn″ telephone messages.

The justices, without comment, let stand a 1989 federal law requiring telephone companies to block access to sex-message services unless a customer asks in writing to receive them.

Enforcement of the law has been postponed while the legal challenge acted on today was pending. The rejected challenge said the law violated free-speech rights.

In other action today, the court:

- Agreed to resolve a dispute it was told is critical to the safe disposal of the nation’s hazardous wastes.

The justices said they will decide whether Alabama officials unlawfully are slowing the shipments of out-of-state hazardous waste to a commercial disposal site near Emelle, Ala.

- Ruled that a union seeking to organize a store’s workers may be banned from handing out leaflets in a shopping mall parking lot owned by the store.

The 6-3 ruling in a Connecticut case said the National Labor Relations Act confers rights in such cases only on employees, not on unions or their organizers.

- Ruled that federal approval not needed for two changes in Alabama voting procedures that sparked disputes over the rights of black voters in two counties.

The court, by a 6-3 vote, said Justice Department ″preclearance″ was not required for an Etowah County resolution, adopted in 1987, that allocated among the county’s six commissioners spending authority over bridge and road construction and repair.

The court also said Justice Department approval was not needed for a 1979 Alabama law that transferred from Russell County’s elected commissioners to its appointed county engineer the supervision of roads, bridges and ferries.

- Said it will settle a recurring trademark dispute, agreeing to hear an appeal by a Mexican fast-food restaurant chain found to have copied a competitor’s motif.

The court said it will consider throwing out a Texas court’s nearly $3 million award to Taco Cabana International against its competiitor, Two Pesos Inc.

The high court in 1989 refused to wipe out the $2 billion-a-year dial-a- porn industry when it struck down a ban on all sexually oriented dial-up message services.

The court’s 1989 decision acknowledged that Congress has a legitimate interest in preventing children from being exposed to ″indecent″ messages. But the justices unanimously said the blanket ban ″has the invalid effect of limiting the content of adult telephone conversations to that which is suitable for children to hear.″

Congress went back to the drawing board and, under the prodding of Sen. Jesse Helms, R-N.C., quickly passed a new law - one the dial-a-porn industry says places an unconstitutional ″prior restraint″ on speech that could drive it out of business.

The law requires phone companies, if technologically feasible, to block access to such services unless written requests are received asking for access.

Currently, parents can keep sex-oriented messages away from children by asking phone companies to block access to the services. Comparatively few parents have taken that step.

In New York City, only 4 percent of the 4.6 million households have requested phone company blocking.

Dial-a-porn companies make their services available through 976 exchanges. A telephone company typically charges callers according to per-call rates, retaining a portion of the charges and giving the remainder to the dial-a-porn company.

The same exchanges are used for other, non-controversial types of messages such as sports scores, stock quotes and weather reports.

After the 1989 law was enacted, dial-a-porn companies challenged it in federal court.

U.S. District Judge Robert Paterson in New York City ruled that the law is unconstitutional because it is not the ″least restrictive means″ of keeping indecent messages from children while allowing access for adults. He said ″voluntary blocking″ by individual customer requests to phone companies is ″adequately protective of children.″

The 2nd U.S. Circuit Court of Appeals last July reversed Paterson and said the law is valid.

″Voluntary blocking would not even come close to eliminating as much of the access of children to dial-a-porn billed by the telephone company as would the presubscription requirement″ enacted by Congress, the appeals court said.

Four dial-a-porn companies then sought Supreme Court review. They said the law ″has broadly and unnecessarily curtailed - if not destroyed - adult access to lawful, protected speech.″

Past rulings make clear that material deemed to be merely indecent, and not obscene, is entitled to constitutional protection under the First Amendment.

Obscenity is a legal term that does not apply to all sexually explicit, or pornographic, material.

Bush administration lawyers urged the justices to reject the appeal acted on today.

They said requiring phone customers to specifically request access to dial- a-porn services is the same as requiring an adult to request ″a copy of an adult magazine kept under the counter in a plain brown wrapper at the convenience store.″

The law’s requirement ″does not absolutely prohibit the distribution of any particular indecent message (and) entails no prior restraint on speech,″ government lawyers argued.

The case is Daily Information Services vs. Barr, 91-697.

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