these services competitively in 1982. These new technological advances have created new problems for government. From a constitutional viewpoint, the first amendment protects indecent dial-a-porn messages. The government may regulate protected speech only if it asserts a compelling interest. The government's interest to protect children must be balanced against the invasion of free speech interests--an issue that so far has generated controversy. Protected free speech may only be regulated if this balance is struck in favor of the government and if the least restrictive means available are used. In contrast to regulating indecent speech, no constitutional problems arise when regulating obscene dial-a-porn recordings because obscenity has no first amendment protection. The problem is deciding what constitutes obscenity.
The growth of dial-a-porn services which use automatic telephone answering equipment to offer sexually-oriented entertainment to all callers has incited public concern over children's access to these services. Generally, the FCC and the courts do not consider live conversations from these dial-a-porn services a problem because children probably cannot obtain the credit card number needed to gain access to live call. It is the taped dial-a-porn messages which have prompted public outcry.
In response, Congress in 1983 passed an amendment to the Communications Act of 1934, restricting telephone transmission of obscene or indecent messages to persons under 18 years of age, and requires the FCC to promulgate regulations by which dial-a-porn sponsors could screen out underage callers. The Second Circuit of the U.S. Court of Appeals has held that the screening regulations subsequently created by the FCC were unconstitutional content-based regulations of speech. It is the opinion of some that certain content-based regulations of speech may be permissible when a communication mode's potential audience ...