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Defending the Unpopular

FEW may have noticed, but in between the flap over burning the flag and the raging issue of abortion, the United States Supreme Court took a firm stand to protect indecent speech. It may be hard to understand a conservative court - which often intertwines ethical values into its legal axioms - voting unanimously to overthrow a congressional act banning indecent speech over the telephone.

Why did the exalted nine put the dial-a-porn industry back in business? For the same reason they were willing to protect the right of flag burners to do their thing: fierce defense of the First Amendment.

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This court, like its more liberal predecessors, makes a sharp distinction between that which is indecent speech and that which is obscene. It protects the first and bars the latter.

In a succession of rulings over the years, the justices have defined indecent in terms of references to bodily functions. And they have determined that this speech, however offensive, cannot be constitutionally restricted where adults are involved.

Obscenity, on the other hand, is defined as a morbid interest in sex that - when taken as a whole - has no serious literary, artistic, political, or scientific merit.

This standard was the undoing of the 1988 dial-a-porn legislation that lumped the indecent with the obscene, made no distinction between adults and juvenile audiences, and banned a wide range of interstate commercial telephone messages directed to anyone of any age. Congress's rationale was that if the line was not cut, children - as well as adults - would be able to hear sexually explicit messages.

The court didn't see it that way. It felt that Federal Communications Commission requirements for only credit-card access to dial-a-porn messages, scrambled tapes, or special-access codes were enough to keep juveniles from listening in.

Associate Justice Byron White said that ``the government may not reduce the adult population ... to ... only that which is fit for children.

``It is another case of burning up the house to roast the pig,'' he added.

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The court, by a 6-to-3 vote, did uphold the congressional act that banned obscene speech, stressing that the protection of the First Amendment does not extend to obscenity. But several court members objected to this restriction. Associate Justice William Brennan, speaking for his fellow liberal colleagues, Thurgood Marshall and John Paul Stevens, said that ``the exaction of criminal penalties for the distribution of obscene materials to consenting adults is constitutionally intolerable.''

From a legal standpoint, distinguishing between the indecent and obscene seems a wise course. It's an important protection against censorship.

Special-interest groups would like to sanitize society by stamping out the distribution of printed matter and messages that many would consider offensive. A broad range of books, including the Bible and many classics, could fall into this net.

This is dangerous business.

But this court is not soft on pornography. It is particularly protective of children and has taken specific steps to keep that which is obnoxious out of the hands of the young.

Free speech, however, is an underpinning of a free society. The dial-a-porn industry cannot be successfully litigated out of existence. The demand for this kind of titillating message must wane. We can't expect government to set standards society is unwilling to set for itself.

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