SABLE COMMUNICATIONS OF CALIFORNIA, INC., APPELLANT V. FEDERAL COMMUNICATIONS COMMISSION AND RICHARD L. THORNBURGH, ATTORNEY GENERAL OF THE UNITED STATES No. 88-515 In the Supreme Court of the United States October Term, 1988 On Appeal From The United States District Court For The Central District Of California Motion To Affirm TABLE OF CONTENTS Questions Presented Opinion below Jurisdiction Constitutional and statutory provisions involved Statement Argument Conclusion OPINION BELOW The opinion of the district court (J.S. App. A1-A5) is reported at 692 F. Supp. 1208. JURISDICTION The district court's decision was issued on July 19, 1988 (J.S. App. A1). Appellant filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit on July 27, 1988 (J.S. App. E). The government filed a notice of appeal to this Court from the same decision, but as to different issues, on July 29, 1988 (88-525 J.S. App. 9a-10a). Because of the government's appeal in this Court, appellant's appeal to the court of appeals was dismissed on August 29, 1988 (J.S. App. D). The government filed a jurisdictional statement in this Court in No. 88-525 on September 27, 1988. Appellant filed a jurisdictional statement in this Court on September 26, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1252. /1/ CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The First Amendment to the United States Constitution provides: "Congress shall make no law * * * abridging the freedom of speech * * *." Section 223(b) of the Communications Act of 1934, as amended by Section 7524 of the Child Pornography and Obscenity Enforcement Act of 1988 (enacted as Title VII, Subtitle N of the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690 (Nov. 18, 1988), to be codified at 47 U.S.C. 223(b), provides: (1) Whoever knowingly -- (A) in the District of Columbia or in interstate or foreign communication, by means of telephone, makes (directly or by recording device) any obscene communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or (B) permits any telephone facility under such person's control to be used for an activity prohibited by clause (i); shall be fined in accordance with title 18 of the United States Code, or imprisoned not more than two years, or both. (2) Whoever knowingly -- (A) in the District of Columbia or in interstate or foreign communication, by means of telephone, makes (directly or by recording device) any indecent communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or (B) permits any telephone facility under such person's control to be used for an activity prohibited by clause (i); shall be fined not more than $50,000 or imprisoned not more than six months, or both. Prior to the most recent 1988 amendment, Section 223(b), as amended by Section 6101 of the Augustus F. Hawkins-Robert T. Stafford Elementary and Secondary School Improvement Amendments of 1988, Pub. L. No. 100-297, Section 6101, 102 Stat. 424, provided: (1) Whoever knowingly -- (A) in the District of Columbia or in interstate or foreign communication, by means of telephone makes (directly or by recording device) any obscene or indecent communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or (B) permits any telephone facility under such person's control to be used for any activity prohibited by subparagraph (A), shall be fined not more than $50,000 or imprisoned not more than six months, or both. (2) In addition to the penalties under paragraph (1), whoever, in the District of Columbia or in interstate or foreign communication, intentionally violates paragraph (1)(A) or (1)(B) shall be subject to a fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation. (3)(A) In addition to the penalties under paragraphs (1) and (2), whoever, in the District of Columbia or in interstate or foreign communication, violates paragraph (1)(A) or (1)(B) shall be subject to a civil fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation. (B) A fine under this paragraph may be assessed either -- (i) by a court, pursuant to a civil action by the Commission or any attorney employed by the Commission who is designated by the Commission for such purposes, or (ii) by the Commission after appropriate administrative proceedings. (4) The Attorney General may bring a suit in the appropriate district court of the United States to enjoin any act or practice which violates paragraph (1)(A) or (1)(B). An injunction may be granted in accordance with the Federal Rules of Civil Procedure. QUESTIONS PRESENTED 1. Whether the ban on obscene interstate commercial telephone messages contained in Section 223(b) of the Communications Act of 1934, as amended (to be codified at 47 U.S.C. 223(b)), violates the First Amendment. 2. Whether Section 223(b)'s ban on obscene interstate commercial telephone messages is severable from the statute's ban on indecent interstate commercial telephone messages. STATEMENT Appellant challenges the district court's refusal to grant a preliminary injunction against enforcement of the prohibition against obscene interstate commercial telephone messages contained in Section 223(b) of the Communications Act of 1934, 47 U.S.C. (Supp. III) 223(b), as amended by Section 6101 of the Augustus F. Hawkins-Robert T. Stafford Elementary and Secondary School Improvement Amendments of 1988, Pub. L. No. 100-297, Section 6101, 102 Stat. 424. After appellant filed its jurisdictional statement, Section 223(b) was revised by Section 7524 of the Child Pornography and Obscenity Enforcement Act of 1988, which was enacted as Title VII, Subtitle N of the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690 (Nov. 18, 1988), which will likewise be codified at 47 U.S.C. 223(b). 1. Section 223(b) is the result of recent congressional efforts to protect children against so-called "dial-a-porn" -- that is, sexually explicit or suggestive messages, typically prerecorded, that are provided for a fee over the telephone. See 134 Cong. Rec. S4377 (daily ed. Apr. 20, 1988). Providers of dial-a-porn messages arrange with a telephone company to use special telephone lines, typically with the prefix "976," that are designed to handle large volumes of calls simultaneously. See Carlin Communications, Inc. v. FCC, 787 F.2d 846, 850-851 (2d Cir. 1986) (Carlin II). The local telephone company charges callers the applicable phone tariffs, retains a portion of those charges, and remits the remainder to the dial-a-porn company. See Enforcement of Prohibitions Against the Use of Common Carriers for the Transmission of Obscene Materials, Third Report and Order, 2 F.C.C. Rcd 2714, 2715 (1987) (Third Report). /2/ Recorded dial-a-porn messages, which can be and often are changed at least once a day, contain a wide range of explicit descriptions of sexual acts. The record in this case, for example, shows that callers to the service provided by appellant's affiliate could hear recorded messages describing a woman having sex with a dog, a female "sex therapist" teaching her "special methods" to a young girl, and "master-slave" sex with whips and chains. See Gov't Memo. in Opp. to Appl. for Inj. Pending Appeal, Exh. A. Providers of dial-a-porn aggressively market their services, and they have been extremely successful. See Carlin Communications Inc. v. FCC, 749 F.2d 113, 114 (2d Cir. 1984) (Carlin I) ("800,000 calls per day were made to dial-a-porn in May, 1983; 180,000,000 calls in the year ending February, 1984"). Because of the aggressive marketing, which includes leaving fliers on cars and distributing them throughout neighborhoods, young children are easily able to obtain the telephone numbers and they make a substantial number of all dial-a-porn calls. See 134 Cong. Rec. H1699 (daily ed. Apr. 19, 1988) (statement of Rep. Coats). 2. a. Congress first regulated dial-a-porn in 1983, by adding a subsection (b) to Section 223 of the Communications Act of 1934, 47 U.S.C. (Supp. III) 223(b). Federal Communications Commission Authorization Act of 1983, Pub. L. No. 98-214, Section 8(b), 97 Stat. 1470. That provision made it a crime to make "obscene or indecent" interstate telephone communications "for commercial purposes to any person under eighteen years of age or to any other person without that person's consent" (47 U.S.C. (Supp. III) 223(b)(1)). The statute provided, however, that a dial-a-porn company had a defense against prosecution if it restricted access to adults in accordance with "procedures that the (Federal Communications) Commission shall prescribe by regulation" (47 U.S.C. (Supp. III) 223(b)(2)). The statute provided for criminal and civil penalties, including fines of up to $50,000 and up to six months imprisonment for each violation (47 U.S.C. (Supp. III) 223(b)(1), (3) and (4)). It authorized the Federal Communications Commission (FCC or Commission) to initiate judicial or administrative proceedings to assess civil fines and the Attorney General to bring suit to enjoin violations of the law (47 U.S.C. (Supp. III) 223(b)(4) and (5)). b. As we explain in greater detail in our jurisdictional statement in No. 88-525 (at 6-10), during the next four years the FCC sought to define the safe-harbor defense to prosecution as authorized by the statute. The Commission recognized that "absolute impossibility of access to (dial-a-porn) services by minors is not feasible" (Third Report, 2 F.C.C. Rcd at 2724 n.14) and that "(n)o method guarantees that some enterprising minors will never hear the messages" (Enforcement of Prohibitions Against the Use of Common Carriers for the Transmission of Obscene Materials, Second Report and Order, 50 Fed. Reg. 42699, 42706 n.54 (1985)). After two sets of regulations were remanded by the Second Circuit (see Carlin I, supra; Carlin II, supra), the FCC adopted regulations that required dial-a-porn companies to use one of three methods to prevent access by children -- a scrambling device, access codes, or prepayment by credit cards. /3/ The Second Circuit upheld those regulations as they applied to obscene telephone communications, finding that they were a "feasible and effective way to serve" the "compelling state interest" in "protect(ing) minors from obscene speech" (Carlin Communications, Inc. v. FCC, 837 F.2d 546, 555 (2d Cir. 1988) (Carlin III), cert. denied, No. 88-37 (Oct. 31, 1988)). The court held, however, that the statute's regulation of "indecent" messages that are not obscene would violate the First Amendment (837 F.2d at 560). c. While the FCC's third and final set of regulations were being reviewed by the Second Circuit, Congress revisited the dial-a-porn problem in light of the Commission's experience in attempting to implement Section 223(b). Congress examined both the factual and legal issues. See Telephone Decency Act of 1987: Hearing on H.R. 1786 Before the Subcomm. on Telecommunications and Finance of the House Comm. on Energy and Commerce, 100th Cong., 1st Sess. (1987). Members of Congress who took the lead in examining dial-a-porn noted that its graphic sexual messages were having "devastating impacts on young children." 134 Cong. Rec. H1713 (daily ed. Apr. 19, 1988) (statement of Rep. Coats). See 134 Cong. Rec. H1699 (daily ed. Apr. 19, 1988) (statement of Rep. Coats) ("Experts have testified that such messages can cause drastic changes in behavior in some of those young people"); 134 Cong. Rec. S4377 (Apr. 20, 1988) (statement of Sen. Hatch) (dial-a-porn is a "problem which considerable evidence has shown is detrimental to (the) physical, intellectual and moral well-being" of children). They also concluded that there was no way to eliminate (as opposed to merely limit) the access of children to dial-a-porn short of an outright ban. In the words of Representative Bliley, who sponsored the original enactment of Section 223(b), it had become "clear that there was not a technological solution that would adequately and effectively protect our children from the effects of this material. We looked for effective alternatives to a ban -- there were none." 134 Cong. Rec. H1691 (daily ed. Apr. 19, 1988). See 134 Cong. Rec. H1699 (daily ed. Apr. 19, 1988) (statement of Rep. Coats) ("it is not technologically possible to keep this information out of the hands of young people"); id. at H1690 (statement of Rep. Hall) ("the current regulations adopted by the FCC are not effective in stopping the spread of dial-a-porn to minors"); 134 Cong. Rec. S4377 (daily ed. Apr. 20, 1988) (statement of Sen. Hatch) ("if a so-called technological solution to the access of our children to dail-a-porn had been available, I, of course would have supported it"). /4/ As a result, Congress voted to broaden Section 223(b)'s express reach beyond telephone calls involving minors and to eliminate the provision that permitted a defense to prosecution based on FCC regulations. Augustus F. Hawkins-Robert T. Stafford Elementary and Secondary School Improvement Amendments of 1988, Pub. L. No. 100-297, Section 6101, 102 Stat. 424. /5/ As amended by the Hawkins-Stafford Act, Section 223(b) prohibited the making of "any obscene or indecent communication * * * by means of telephone * * * for commercial purposes * * * in the District of Columbia or in interstate or foreign communication." The subsections providing for criminal and civil penalties and for injunctive relief were not changed. 3. Appellant, a California-based dial-a-porn company affiliated with Carlin Communications, Inc., began offering "frankly sexual" telephone messages in 1983 through the Pacific Bell telephone network (J.S. 4-5). Before the Hawkins-Stafford Act amendments to Section 223(b) took effect on July 1, 1988, appellant brought this suit in the United States District Court for the Central District of California, seeking declaratory and injunctive relief chiefly on the ground that the statute's restrictions on obscene and indecent speech violate the First Amendment (J.S. App. F1-F7). On appellant's motion for a preliminary injunction, the district court agreed only with respect to indecent speech. The court upheld Section 223(b)'s prohibition of obscene telephone messages as constitutional (J.S. App. A4-A5). The court first observed that "obscene speech is unprotected by the First Amendment" (J.S. App. A4). It then rejected appellant's argument that Section 223(b) created a national, rather than a community, standard of obscenity in contravention of this Court's ruling in Miller v. California, 413 U.S. 15 (1973). Relying on the Second Circuit's determination with respect to the 1983 version of the statute, the court found that Section 223(b) "(did) not create an impermissible national obscenity standard any more than do the federal laws prohibiting the mailing of obscene materials, or the broadcasting of obscene messages" (J.S. App. A4 (quoting Carlin III, 837 F.2d at 561)). While the district court did not directly address appellant's argument that the statute was unconstitutionally vague, it implicitly read the statute to incorporate the definition of obscenity as set forth in Miller (J.S. App. A4). On the other hand, the court determined that Section 223(b)'s ban of indecent speech was unconstitutional, and it therefore issued a preliminary injunction against enforcement of that ban (J.S. App. A3). The court recognized that "the government unquestionably has a legitimate interest in, e.g., protecting children from exposure to indecent dial-a-porn messages" (ibid.). It concluded, however, that "Section 223(b) is not narrowly drawn to achieve any such purpose" (ibid.). On July 27, 1988, appellant filed a notice of appeal to the court of appeals from the adverse ruling regarding obscene speech and sought an injunction pending appeal (J.S. App. E). The appeal was dismissed, and automatically transferred to this Court, when the government, on July 29, filed an appeal to this Court from the district court's ruling that Section 223(b)'s ban on indecent messages was unconstitutional, FCC v. Sable Communications of California, Inc., No. 88-525. See J.S. App. C. Appellant applied to the Circuit Justice for an injunction pending appeal to this Court. Sable Communications of California, Inc. v. FCC, No. A-143. The application was denied by Justice O'Connor on August 30, 1988. 4. On November 18, 1988, the President signed the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, reprinted in 134 Cong. Rec. H11110-H11217 (daily ed. Oct. 21, 1988). Section 7524 of the Act substituted a revised Section 223(b) for the Hawkins-Stafford Act version that was before the district court. The new statute provides increased penalties for obscene messages: prison terms of up to two years and fines "in accordance with Title 18" (that is, up to $250,000 for individuals and up to $500,000 for organizations, see Criminal Fine Improvements Act of 1987, Pub. L. No. 100-185, Section 6, 101 Stat. 1281, to be codified at 18 U.S.C. 3571(b)(3) and (c)(3)). It also places the prohibition against obscene commercial telephone messages in a subsection ((b)(1)) separate from that containing the prohibition against indecent messages ((b)(2)). See 134 Cong. Rec. H11205 (daily ed. Oct. 21, 1988). In addition, the new law omits both former Section 223(b)(3), which specifically authorized the FCC to enforce Section 223(b) through administrative proceedings, and former Section 223(b)(4), which specifically granted the Attorney General the power to seek injunctive relief against dial-a-porn activities. /6/ Section 223(b) itself now prohibits obscene and indecent dial-a-porn only through criminal penalties, although other provisions of the Communications Act provide for administrative and injunctive relief (see, e.g., 47 U.S.C. (& Supp. III) 401, 503(b)). ARGUMENT Unlike the issues raised by the government's appeal in No. 88-525, which concern the scope of the government's power to regulate speech that is indecent but not obscene, appellant's challenge to Section 223(b)'s ban on certain obscene speech presents no issue warranting plenary consideration by this Court. The recent amendments to the statute underscore the correctness of the district court's determination that, insofar as Section 223(b) prohibits obscene, commercial interstate telephone messages, it does not violate the First Amendment. That ruling should be summarily affirmed. /7/ 1. This Court has repeatedly held that obscene speech is not protected by the First Amendment. See, e.g., Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 497 (1985); Miller v. California, 413 U.S. 15, 23 (1973). As the Court observed in Roth v. United States, 354 U.S. 476, 484 (1957), punishment of the commercial distribution of such speech has "never been thought to raise any Constitutional problem" even as to consenting adults. See Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973). Accordingly, insofar as Section 223(b) prohibits interstate commercial telephone messages that are obscene, it stifles no speech that is protected by the First Amendment. Appellant seeks to avoid this clear result by arguing that Section 223(b)'s ban on commercial obscene speech over interstate telephone lines is invalid for two reasons. First, appellant contends (J.S. 11-14) that the statute illegally creates a national standard of obscene speech in contravention of Miller v. California, supra. Second, appellant contends (J.S. 14-16) that the statute's use of the term "obscene" is unconstitutionally vague in that it insufficiently constrains the FCC's enforcement authority. Neither argument has merit. a. Nothing in Section 223(b) is inconsistent with Miller v. California, supra. Although the statute does not define the term "obscenity," the legislative history conclusively establishes that Congress intended the term to be interpreted to incorporate the Miller standards. See, e.g. 134 Cong. Rec. E1111 (daily ed. Apr. 19, 1988) (statement of Rep. Dannemeyer); 129 Cong. Rec. E5966 (daily ed. Dec. 14, 1983) (statement of Rep. Kastenmeier); id. at H10560 (daily ed. Nov. 18, 1983) (statement of Rep. Bliley). The most recent amendments make no change in that respect. 134 Cong. Rec. S13427 (daily ed. Sept. 28, 1988) (remarks of Sen. Biden). And, under Miller, the test for obscenity is whether the material (1) "taken as a whole, appeal to the prurient interest" of "the average person, applying contemporary community standards," (2) describes specific sexual conduct "in a patently offensive way" to such a person, and (3) as a whole "lacks serious literary, artistic, political or scientific value." Miller, 413 U.S. at 24. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501 (1985); see also Pope v. Illinois, 481 U.S. 497 (1987). Hence, Section 223(b), far from rejecting community standards, embraces such standards exactly as Miller does. That the statute regulates obscenity at the federal level is in no way inconsistent with Miller. Indeed, the validity of federal obscenity laws is well settled. This Court has specifically held that Congress may enact federal laws prohibiting the mailing of obscene materials (Hamling v. United States, 418 U.S. 87 (1974)), the broadcasting of obscene messages (FCC v. Pacifica Found, 438 U.S. 726 (1978)), the movement of obscene items in interstate commerce (United States v. Orito, 413 U.S. 139 (1973)), and the importation of obscene films (United States v. 12 200-ft Reels of Film, 413 U.S. 123 (1973)). Appellant's facial challenge to Section 223(b) on the ground that it does not comply with Miller is therefore meritless, for the statute plainly incorporates the principles established in Miller. And to the extent that Miller demands the application of local community standards, /8/ there is ample opportunity for appellant to insist on such application in an as-applied challenge if and when an action is brought (as none has yet been) to enforce the statute against appellant. Thus, a criminal prosecution under Section 223(b) would be brought in a particular federal district court and, if the defendant wishes, tried to a local jury. In such a case, Miller provides that a federal juror would "draw on knowledge of the community or vicinage from which he comes in deciding what conclusion 'the average person, applying contemporary community standards' would reach in a given case." Hamling v. United States, 418 U.S. at 105; accord Smith v. United States, 431 U.S. 291, 302 (1977). Moreover, if the Commission were to bring an administrative forfeiture action for a penalty under 47 U.S.C. 503(b)(1)(B) based on a willful or repeated violation of Section 223(b), enforcement of the penalty would take place through a de novo trial in a district court in a particular local community (47 U.S.C. 504(a)). /9/ In sum, since Section 223(b) incorporates Miller's requirements and the procedures for enforcing Section 223(b) plainly allow for the invocation of local community standards to determine obscenity, /10/ the argument that obscenity under Section 223(b) must be judged under local community standards should await an as-applied challenge (see Carlin III, 837 F.2d at 561). Appellant nevertheless complains that, because of the "unique nature of the interstate telephone network," access to its messages may be obtained by persons all over the United States and, therefore, it will "necessarily be compelled" to offer messages that will not be considered obscene by the average person in whatever community is "least tolerant of sexually oriented adult entertainment" (J.S. 12-13). But if appellant violates Section 223(b) by making an obscene telephone message available to a particular community, there is nothing in the First Amendment or in Miller that precludes a prosecution of appellant in that community for its crime. /11/ If appellant does not wish to expose itself to nationwide prosecution, it should not distribute potentially obscene materials on a nationwide basis. At bottom, therefore, appellant's claim is that it should have a constitutional right to disseminate its messages to communities that would consider them obscene so long as its messages would not be considered obscene in some other community in the United States. Far from compelled by Miller, appellant's claim is plainly inconsistent with that decision. As the Court stated, "(i)t is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City." 413 U.S. at 32. Similarly, the First Amendment does not require that every community in the United States must endure appellant's "frankly sexual" messages simply because they are also made available to persons in Los Angeles. /12/ b. Appellant is also incorrect in challenging Section 223(b)'s obscenity prohibition as unconstitutionally vague in light of the FCC's power to bring administrative enforcement proceedings "to levy substantial sanctions" (J.S. 15). To begin with, under the recent amendments to Section 223(b), the Commission no longer has power to impose the "substantial" penalties that Section 223(b)(3) authorized at the time appellant filed its jurisdictional statement. Although the FCC remains able to penalize dial-a-porn providers under its general authority to impose forfeiture penalties for "willfull() and repeated()" violations of the Communications Act (47 U.S.C. 503(b)(1)(B)), that general forfeiture authority extends only to the imposition of a $2,000 penalty for each violation, with a maximum limit of $5,000 against any violator (47 U.S.C. 503(b)(2), 502(b)(2)(B)) -- which is a far smaller penalty than is available in a criminal prosecution under Section 223(b). Accordingly, it is speculative whether an administrative proceeding would be brought against appellant (none has been brought) and, if so, whether appellant would choose to contest the imposition of any penalty. In these circumstances, any argument based on the alleged insufficiency of statutory guidance for administrative enforcement should await an as-applied challenge, and appellant's facial challenge on that ground should be rejected. See Brockett v. Spokane Arcades, Inc., 472 U.S. at 501 (citation omitted) (Court should not "'anticipate a question of constitutional law in advance of the necessity of deciding it'"). /13/ In any event, appellant is wrong on the merits. Section 223(b) provides sufficiently definite standards for the FCC to use in determining whether a provider's messages are obscene: By employing the term "obscene," Congress clearly "la(id) down by legislative act an intelligible principle to which the (Executive) * * * is directed to conform." J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928). At least since Miller, the word "obscene" has had a sufficiently clear legal meaning, and there can therefore be no doubt that the term is not unconstitutionally vague. Miller, 413 U.S. at 27; Hamling v. United States, 418 U.S. at 118 (the term is "sufficiently definite in legal meaning to give a defendant notice of the charge against him"). As we explained above, Congress incorporated the Miller standards in Section 223(b). Contrary to appellant's contention (J.S. 14-16), the FCC's recent enforcement of Section 223(b) does not suggest that the statute is too vague to ensure that it will be enforced administratively only in conformity with the Miller standards. Earlier this year, as appellant notes, the FCC initiated proceedings to impose administrative fines against two dial-a-porn companies (which are unaffiliated with appellant) for violating the 1983 version of Section 223(b); and in doing so, it did not apply the obscenity standards of any particular community. But all that the Commission decided was that it would not apply such a local standard at the first step in the administrative action, when the Commission had not conducted a hearing (J.S. App. J32-J33). /14/ Moreover, the messages in question were "patently offensive and * * * (went) well beyond what an average adult person in any community would consider to be portrayals of sexual conduct worthy of protection" (id. at J35 (emphasis added)). Finally, as we have explained, any penalty that resulted from the administrative proceeding would have to be enforced in a local district court, which, under 47 U.S.C. 504(a), would provide a de novo trial applying Miller standards. Hence, no administrative penalty could actually be imposed without compliance with the Miller standards for determining obscenity. 2. In the alternative, appellant asserts (J.S. 16-17) that, even if Section 223(b)'s ban on obscene commercial interstate telephone messages is otherwise constitutional, that ban is not severable from the statute's prohibition on indecent commercial interstate telephone messages, which appellant argues and the district court held is unconstitutional. The district court correctly rejected that contention (J.S. App. A4-A5). Even if the indecent-speech ban is invalid (which we have disputed in our jurisdictional statement in No. 88-525), the obscenity ban can stand on its own, and there is no reason whatever to assume that Congress intended to ban obscene telephone messages only if it could also ban indecent messages. "Whether an unconstitutional provision is severable from the remainder of the statute in which it appears is largely a question of legislative intent." Regan v. Time, Inc., 468 U.S. 641, 653 (1984) (plurality opinion); accord id. at 692 (opinion of Powell, J.). Thus, "'"(u)nless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as law."'" Alaska Airlines, Inc. v. Brock, No. 85-920 (Mar. 25, 1987), slip op. 5 (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976), quoting Champlin Refining Co. v. Corporation Comm'n, 286 U.S. 210, 234 (1932)). If the constitutionally unobjectionable portion of a statute can function independently in the manner contemplated by Congress, then "the unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted." Alaska Airlines, Inc., slip op. 6-7 (footnote omitted). Appellant does not dispute that Section 223(b)'s ban on obscene, commercial interstate telephone messages can stand independently of the ban on indecent messages, and severability clearly is consistent with the will of Congress. See Carlin III, 837 F.2d at 561. In enacting Section 223(b) in 1983, and in amending it in the Hawkins-Stafford Act in 1988, Congress banned "obscene or indecent" communications; the use of the disjunctive implies that each term was understood to be capable of standing by itself. Moreover, in view of Congress's recognition of the "devastating impacts" that dial-a-porn, whether obscene or indecent, was having on young children (134 Cong. Rec. H1713 (daily ed. Apr. 19, 1988 (statement of Rep. Coats); see page (8), supra), and the expressed intent to "ban dial-a-porn in whatever possible way" (134 Cong. Rec. H1699 (daily ed. Apr. 19, 1988) (statement of Rep. Coats)), it is plain that Congress, in both the 1983 enactment and the Hawkins-Stafford Act, would have intended the ban on obscene dial-a-porn to remain even if the ban on indecent dial-a-porn were invalidated. In the recent revision of the statute, Congress made that intent even clearer on the face of the statute: Congress increased the penalties for obscene messages and placed the prohibition against obscene messages in a separate subsection from that containing the prohibition against indecent messages. See pages 2-3, supra. Manifestly, therefore, Section 223(b)'s ban on obscene dial-a-porn message is severable from the ban on indecent messages. CONCLUSION The judgment of the district court should be affirmed. Respectfully submitted. CHARLES FRIED Solicitor General JOHN R. BOLTON Assistant Attorney General BARBARA L. HERWIG JACOB M. LEWIS Attorneys NOVEMBER 1988 /1/ Section 1252 was repealed by the Act of June 27, 1988, Pub. L. No. 100-352, Section 1, 102 Stat. 662, but the repeal did not take effect until September 25, 1988 (Section 7, 102 Stat. 664). The repeal does not affect this case, because it does "not apply to cases pending in the Supreme Court on the effective date * * * or affect the right to review or the manner of reviewing the judgment or decree of a court which was entered before such effective date" (ibid.). /2/ Other dial-a-porn companies, unlike the appellant in this case, provide live, "two-way" sex conversations with persons who call a specified number and provide a credit card number for payment. See 2 F.C.C. Rcd at 2715. This form of dial-a-porn service is not at issue in the present case but is at issue in Roe v. Meese, 689 F. Supp. 344 (S.D.N.Y. 1988) (granting preliminary injunction against Section 223(b)'s prohibition of indecent speech, but refusing preliminary injunction against section's prohibition of obscene speech). /3/ The Commission also required that, in order to obtain a defense to prosecution, companies providing message services over AT&T's 900 exchange would have to request AT&T to subject their service to "billing notification" -- i.e., to provide an itemization on telephone bills that a particular call was made to an adult message service. 2 F.C.C. Rcd at 2722. /4/ In addition, Rep. Bliley and other Members complained that, in their view, Section 223(b) as passed in 1983 had effectively legalized obscene and indecent telephone messages that, prior to 1983, had been unlawful under Section 223(a), 47 U.S.C. 223(a), which states, in pertinent part, that whoever "by means of (interstate) telephone(,) * * * makes any comment * * * which is obscene, lewd, lascivious, filthy, or indecent" thereby commits a crime. Those Members disagreed with the FCC's view that Section 223(a) applies only to calls placed by the person making the proscribed remarks. Hence, Rep. Bliley explained: "(i)t was not until 1983 that obscene and indecent communications over the telephone became legal," and the purpose of the new amendments was to "restore, not change," the pre-1983 state of the law. 134 Cong. Rec. H1691, H1806 (daily ed. Apr. 19, 1988). Accord, 134 Cong. Rec. E1111 (statement of Rep. Dannemeyer) (daily ed. Apr. 19, 1988). Rep. Bliley further stated that if Section 223(b) were not amended to eliminate the safe-harbor provision and to ban dial-a-porn entirely, Congress would have effectively voted "to maintain the only place in the entire United States Code where commercial obscenity is given legal protection." 134 Cong. Rec. H1709 (daily ed. Apr. 19, 1988). /5/ The votes in favor of the dial-a-porn prohibition were overwhelming. The Senate passed the measure 98-0 (133 Cong. Rec. S16800 (daily ed. Dec. 1, 1987)) as an amendment to the larger education bill, H.R. 5, 100th Cong., 1st Sess. Section 7003 (1987). See 133 Cong. Rec. S17048 (daily ed. Dec. 2, 1987). The House approved H.R. 4401, 100th Cong., 2d Sess. (1988), which was identical to the Senate amendment to H.R. 5, by a vote of 380-22. 134 Cong. Rec. H1702-H1703 (daily ed. Apr. 19, 1988). The House then agreed to the conference report on H.R. 5 as amended to contain the same provision (id. at H1836), and the Senate agreed to the conference report as amended the next day (134 Cong. Rec. S4386 (daily ed. Apr. 20, 1988)). /6/ Nothing in the legislative history reveals the reason for the omission of former subsections (3) and (4) or even whether the omission was deliberate or inadvertent. /7/ The new enactment leaves the basic prohibitions of Section 223(b) in place. Accordingly, it does not render moot either the present case or the government's jurisdictional statement in No. 88-525. Nor, for the same reason, does the new enactment call for a remand of either case to the district court for reconsideration. /8/ Rep. Bliley (129 Cong. Rec. H10560 (daily ed. Nov. 18, 1983)) and the FCC (J.S. App. J33) have stated that, at least in the administrative stage of enforcement proceedings, Miller itself does not conclusively resolve whether the community standards that are to be applied in determining obscenity must, in all circumstances, be the standards of local communities, or whether, in some circumstances involving communication technologies that are inherently national in reach, they may be standards of the national community as a whole. /9/ The recent amendments to Section 223(b) eliminated the provisions giving the FCC and Attorney General direct civil enforcement authority. See pages 2-3, supra. /10/ The FCC's opinion reprinted at J.S. App. J1-J45 notes that a court could apply local community standards at the judicial-enforcement stage (id. at J33-J34). /11/ Appellant alleges that "it does not seek to reach" what it calls "less tolerant" communities (J.S. 14). But appellant's intent in this regard is irrelevant, and it does not dispute that it makes its messages available to such communities by using the national telephone network. /12/ In any event, to the extent that appellant has specific venue objections to a future enforcement action, they are appropriately raised at that time, not in a facial challenge to the statute. See Carlin III, 837 F.2d at 561. /13/ Of course, if appellant were to face a forfeiture proceeding in the future -- or if the statute were amended to restore the FCC's administrative authority to enforce the statute directly and the FCC were to exercise that authority against appellant -- appellant could challenge the FCC's interpretation of the term "obscene" in that proceeding as inconsistent with the statute or the First Amendment. /14/ The Commission explained that its "ability to apply a standard based on a community outside of Washington, D.C." was limited in that circumstance (J.S. App. J33).