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Phone ringing? Blame Congress, not the courts
Inside the First Amendment

By Ken Paulson
Executive director, First Amendment Center

The next time someone calls your home trying to sell aluminum siding, you’ll know who to blame.

Everyone from politicians to Web sites to The New York Times has pointed fingers at a federal judge over the past week, saying his ruling on the do-not-call list prevents you from having a peaceful dinner.

Yet if you read the decision by U.S. District Judge Edward Nottingham, you won’t find a kind word for telemarketers or even a suggestion that it’s a good thing for advertisers to call your home. Instead, you’ll find a thoughtfully written analysis acknowledging that many telemarketers pose a significant problem by invading our privacy at home, but pointing out that Congress has done a poor – and probably unconstitutional – job of addressing the problem.

That’s what judges do. It’s not their job to decide whether a ban on telemarketing is a good idea. It’s their job to decide whether government is playing by the rules.

Under the First Amendment, government generally cannot limit speech on the basis of its content. In other words, a city council can’t permit lawn signs for Democratic candidates and not Republican candidates. Government can’t permit demonstrations supporting our military efforts in Iraq while banning protests against the war.

The “do-not-call list” case is stickier because advertising has some, but not full, protection under the First Amendment. This means government can regulate advertising in instances where it could not regulate other types of speech.

Recognizing this, Judge Nottingham applied a long-established legal test that boils down to this: Does the law affect free speech? What was Congress trying to accomplish with this law? Does the ban on advertising calls – but not calls for charitable or political donations – address that goal in a way that makes sense?

There’s no debate on the purpose of the law. It was intended to prevent unwanted phone calls from invading the privacy of Americans’ homes. Judge Nottingham concluded that the law would be only partially effective because just 40% to 60% of unwanted calls are from commercial interests. He concluded that Congress can’t decide that the content of some phone calls is acceptable but that of others is not, if its regulatory scheme doesn’t actually accomplish what it set out to do.

Was the judge’s reasoning sound? Here’s a test: If the phone rings as you’re about to slide a spoonful of mashed potatoes into your mouth, you’re likely to be angry at the disruption. If you then pick up the phone and discover it is somebody asking for money for charity or to support a political candidate and you’re still ticked off, you’re firmly in the judge’s camp. He essentially ruled that Congress can’t mess with speech unless the law actually accomplishes what it set out to do – prevent unwanted telephone calls into the home.

Will the judge’s decision stand? It’s hard to tell. Many First Amendment scholars view this as a close call, acknowledging there’s a sound legal foundation to the ruling, while recognizing the societal benefits of keeping the registry in place.

Courts have recognized increasing protection for commercial speech because information about pricing and products can have a clear societal benefit. As noted in a pivotal 1976 case striking down a ban on the advertising of prescription drugs, information about what we pay for things can be critically important to consumers.

The rage against Judge Nottingham is misplaced. Congress drafted this law and can fix it if it has the political will to do so.

In 1970, the Supreme Court said very clearly that government can assist consumers with the problem of unwanted mail. “Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit. … The ancient concept that ‘a man’s home is his castle,’ into which ‘not even the king may enter,’ has lost none of its vitality,” wrote Chief Justice Warren Burger. In rendering its decision, the Court upheld a regulation that gave the homeowner the final say in deciding what can or cannot be mailed to his home.

In combating unwanted telemarketing, Congress could establish a system that allows every American to block all unwanted calls or to decide what kind of phone calls to block. In fact, a new registry that would offer consumers a menu of options would probably be both constitutional and effective. This could offer residents, for example, the option of banning advertising and political calls, but accepting calls from charities. Any combination would be acceptable as long as the person receiving the calls is making the decision.

Under the invalidated law, Congress picked just one kind of unwanted call to be blocked, a form of content discrimination. In contrast, a system providing consumers with several blocking options would leave the decision-making in the hands of the public and not the government.

Of course, there’s a risk for Congress in this, particularly if 50 million people decide to block all fund-raising calls from political parties.

A call-blocking registry that gives Americans real choice would be a win-win. We could eat our dinners in peace and leave the First Amendment intact.


Do-not-call list on again after FCC steps in

Federal judge warns FTC that it could face more legal action for using another agency to 'skirt the order' not to operate national registry. 09.30.03

10th Circuit backs federal do-not-call list
Panel rejects telemarketers' claims that registry violates free speech, is unfair because it doesn't apply to charitable or political solicitations. 02.17.04

Court lets consumers curb unwanted calls
By Ken Paulson Although 10th Circuit deals setback to telemarketers, there are some encouraging words in the ruling. 02.17.04


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