Dial Information Services v. Thornburgh, 938 F. 2d 1535 - Court of Appeals, 2nd Circuit 1991

Defendant-appellant Richard L. Thornburgh, Attorney General of the United States, appeals from a preliminary injunction order entered in the United States District Court for the Southern District of New York (Patterson, Jr., J.) enjoining enforcement of a statute that prohibits providers of indecent telephone communications for commercial purposes from making their services available to persons under 18 years of age. The statute in question, the 1989 amendment to the Communications Act of 1934, 47 U.S.C. §§ 223(b) and (c), known as the Helms Amendment after its principal sponsor, establishes a safe harbor defense for providers that comply with telephone company presubscription procedures or engage in independent billing and collection. Plaintiffs-appellees characterize their business activities as the dissemination, receipt and exchange of information by telephone and refer to 1537*1537 themselves as electronic publishers and information providers. They are in fact purveyors of pornography and, as is to be expected, their challenge to the statute in this case is grounded in the first amendment. The district court held as a matter of law that the term indecent in the statute is void for vagueness. The district court also held, in light of telephone company technical capabilities, that the presubscription method is not the least restrictive means for furthering the interest of the government in protecting minors from the harmful influences of pornography. Finally, the district court determined that the requirement for a system of presubscription or independent billing establishes an unconstitutional prior restraint on speech. On the basis of its void for vagueness holding, the district court issued a nationwide preliminary injunction against enforcement of the statute to the extent that it proscribes indecent communications for commercial purposes. We reverse