Hanging up on dial-a-porn calls

THE United States Congress may have bought itself a lawsuit when it decided to ring off on dial-a-porn telephone services late last month. Regulation of sexually explicit messages over the phone lines is certainly desirable, particularly if restrictions keep such recordings out of the earshot of children. An outright ban, however, which is now part of a multibillion-dollar education bill signed by President Reagan, raises serious constitutional questions.

Even conservative courts have been very reluctant to completely outlaw ``dirty'' speech, on First Amendment grounds. The rationale is: What you may have a right to keep from your children, government has no right to keep from you.

When President Reagan signed the congressional measure, he acknowledged that legal problems could ensue because ``current Supreme Court jurisdiction is unfriendly'' to such steps to curb pornography.

This might seem strange coming from a chief executive who has personally appointed three justices to the high court and now may well have the ideological balance on that bench that he wants.

But there is a more basic judicial point. It's this: The vast majority of jurists - whether liberal or conservative - are extremely uneasy about censorship.

This is not to say that they like, or condone, smut. They don't. But a society that values the free flow of information must allow its adult citizens access to various kinds of speech - even that which most would consider obnoxious.

The key word here is adult. Congress had ample opportunity to pass a less sweeping dial-a-porn measure, which would have allowed parents to protect children from sexually explicit phone messages and even directly discouraged youth from availing themselves of electronic smut.

Barry Lynn, counsel to the American Civil Liberties Union, explains that devices available to subscribers permit them to block suggestive messages from their home phones (so minors cannot get them). Also, the government may require marketers to publicize the cost of these calls up front to discourage youthful buyers.

Mr. Lynn feels that the new federal statute is so broad, and constitutionally vulnerable, that it will likely be struck down in the courts - leaving the public with virtually no protection against dial-a-porn.

On the other hand, Bradley Keirnes, vice-president of Citizens for Decency through Law, a Phoenix-based public-interest law firm, believes that the recently passed legislation will pass judicial muster. He stresses that ``obscenity has never been protected by the First Amendment.''

What Mr. Keirnes sees as obscenity, however, Lynn sees as indecent communication. And Lynn points out that no federal court has upheld a statute outlawing non-obscene, indecent communication.

Further, the ACLU lawyer adds that even if dial-a-porn were obscene, it might not fall into a legal category subject to regulation.

So far, the US Supreme Court has shied away from the dial-a-porn issue. It recently refused to hear arguments in an Arizona case. This had the effect of letting stand Mountain Bell's ban on sexually explicit dial-up message services.

Two private providers of dial-a-porn services had argued that this phone company had impeded their right of free speech by banning from its network all businesses that ``provide adult entertainment messages with sexually oriented content.''

The businesses held that because Mountain Bell was a heavily regulated public utility that had been pressured by state authorities to clear the lines of dial-a-porn services, the company's action amounted to an action of the state.

A federal trial judge agreed, ruling that the phone company could not refuse to carry the sexually explicit messages. The US Court of Appeals for the Ninth Circuit reversed that ruling, however, saying that Mountain Bell's action did not amount to ``state action.''

Keirnes, of the Arizona public-interest law firm, says the Ninth Circuit Court decision ``clearly gives phone companies the green light to pull the plug on the phone-sex industry.''

But ACLU's Lynn insists that ```state action' was at the heart of this [Arizona] ruling ... [and that] it has no real effect on dial-a-porn.''

Federal courts elsewhere have gone different directions with dial-a-porn restrictions. For example, the Court of Appeals for the 11th Circuit ruled that Southern Bell can deny access to subscribers it believes might tarnish its ``corporate image.'' A federal district court in California, however, said Pacific Bell cannot disconnect dial-a-porn services on the basis of message content.

Meanwhile, the Federal Communications Commission has just fined two northern California companies $600,000 each, accusing them of failing to prevent children from buying their sexually explicit messages. This action resulted from an FCC investigation of complaints alleging that access to pornographic messages resulted in the molestation of a 10-year-old girl as well as the emotional problems of a teen-ager.

A Thursday column