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Lawyer Says Law Against Phone Porn Probably Unconstitutional

October 1, 1987

WASHINGTON (AP) _ A civil liberties lawyer says proposed legislation banning ″dial-a-porn″ telephone messages would probably be found unconstitutional and that electronic blocking devices offer a better way to screen out young callers.

″We want to enhance the ability of parents to keep out of their homes material they find inappropriate,″ said Barry W. Lynn, legislative counsel for the American Civil Liberties Union.

But banning all sexually explicit message services ″raises grave First Amendment problems regarding censorship and personal privacy,″ he told the House Energy and Commerce telecommunications subcommittee on Wednesday.

The most effective way to control use of the services by children would be to allow parents to have calls to such numbers blocked, which some companies are already doing, he said.

Witnesses and several members of the panel, however, said that nothing short of outlawing such messages will keep them away from the ears of children.

″You can no more restrict a child’s access to a phone than you can to a radio,″ said Rep. Thomas J. Bliley Jr., R-Va., a subcommittee member who has introduced legislation to ban dial-a-porn services.

″You can’t have blocking devices on every phone a child has access to,″ he said.

Bliley agreed that his bill touches on a sensitive area of constitutional law, but he said ″there comes a time when, in a strained effort to reach a perfect balance of interests, we mistakenly emphasize one group’s rights over that of another.″

William D. Swindell, president of Citizens for Decency Through Law Inc., said ″dial-a-porn″ services can harm children. In one case, he said, the non-profit legal and educational group is representing the parents of a 12- year-old boy who sodomized a 4-year-old girl after listening to 75 sexually explicit calls in one day.

″This child literally learned the facts of life during the course of these 75 calls in one day,″ Swindell said.

Dial-a-porn services usually are reached by dialing telephone numbers that begin with 900 or 976. Charges for the calls vary.

The same 900 and 976 exchanges are used for other types of messages, such as sports hot lines that give the latest scores, stock market reports and time checks.

Robert Helgesen of NYNEX Corp., the Bell company serving New York and New England, said the company makes about $10 million a year before taxes on dial- a-porn services but finds them ″repugnant.″

″We are unalterably opposed to it and we applaud the congressional interest in seeking a constitutional way to end it,″ Helgesen said.

The company would stop carrying dial-a-porn services as long as it could be held legally blameless, he said. NYNEX lawyers are reviewing a recent federal appeals court decision in San Francisco that upheld Mountain Bell’s ban on all ″adult entertainment″ services.

Helgesen said ratepayers collectively should not have to bear the costs for phone companies to provide blocking mechanisms to subscribers who wish to prevent calls to such services from their phones.

Swindell, meanwhile, said the subscribers should not have to pay extra to block the calls.

The FCC currently requires dial-a-porn message services to require callers to use credit cards or pre-assigned access codes or to scramble their messages, requiring callers to have a decoder.

FCC General Counsel Diane Killory said the time and expense the agency has spent developing the regulations, some of which are still under review by the federal appeals court here, have hampered enforcement efforts.

However, she said the FCC has referred the names of five adult messaging services to the Justice Department for possible prosecution. She did not identify them.

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