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Court lets consumers curb unwanted calls
Inside the First Amendment

By Ken Paulson
First Amendment Center executive director

In a major setback for telemarketers, the 10th U.S. Circuit Court of Appeals has upheld the government’s “do not call” regulations.

In deciding that salespeople can be barred from calling homes that don’t want to hear from them, the federal appeals court concluded that the First Amendment is not violated when Congress targets certain unwanted calls and not others.

Its reasoning: Congress can address the challenge of unsolicited phone calls without fixing the entire problem.

At issue was a registry implemented in October, which contained the names and numbers of more than 55 million Americans who don’t want businesses to call them at home. These consumer preferences are enforceable by law.

That popular program was temporarily derailed last September when U.S. District Judge Edward Nottingham struck down the do-not-call list as an unconstitutional infringement on the First Amendment.

Although Nottingham took plenty of heat for his ruling, it had a firm legal foundation. Under the First Amendment, government generally cannot limit speech on the basis of its content. The Do Not Call Registry barred one kind of unwanted call – those selling products – but left other calls with other messages unregulated.

In analyzing the do-not-call system, Nottingham said there was little point in banning calls from businesses if the government failed to address unsolicited calls from charities and political parties. In the judge’s view, Congress could regulate unwanted phone calls, but had to play by the rules of the First Amendment.

The 10th Circuit decision overturned Nottingham’s ruling and rebutted his reasoning. The appeals court concluded:

  • The government’s purpose in passing the telemarketing law was to prevent the invasion of privacy and minimize telephone fraud. The appellate court asserted that the vast majority of intrusive phone calls come from salespeople and that most fraud cases stem from commercial, not charitable or political transactions.
  • Unwanted phone calls invade the privacy of the home, “a personal sanctuary that enjoys a unique status in our constitutional jurisprudence.”
  • Advertisers have reasonable alternatives to phone calls, including mail delivery of their messages.
  • The Do Not Call Registry puts the decision of whether or not to restrict calls in the hands of consumers and not the government.

The last of these factors may have been the most influential. The First Amendment prevents government from directly suppressing speech, even intrusive phone calls. The registry puts the power in the hands of the public.

“Just as a consumer can avoid door-to-door peddlers by placing a 'No Solicitation' sign in his or her front yard, the do-not-call registry lets consumers avoid unwanted sales pitches that invade the home via telephone,” Circuit Judge David M. Ebel wrote for the court.

In the end, the appellate court had to decide whether Congress’ plan to curb intrusive and fraudulent calls was defensible as a narrow restriction directly addressing a specific problem. In other words, they concluded that the registry works.

That’s a conclusion the three judges probably reached through an exploration of the regulations and legal precedent, but it’s also possible that their home phones have rung less frequently since October.

For those concerned about any government intrusion into free speech – commercial or otherwise – there’s some encouraging language from the appellate court.

The court says that there would be no justification for more direct government regulation of telemarketing because this system of allowing consumers to opt in is an effective alternative. That means that other areas in which there are calls for greater government intervention – including the Internet and cable television – are best addressed in both practical and constitutional terms through a system in which consumers make the choices. Filters, software and channel blockers – all tools available to consumers – will always be a better solution than direct government regulation of content.

This case will likely be appealed to the Supreme Court, but in the meantime, Americans can enjoy the sounds of silence.


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

Telemarketers split over whether to keep fighting do-not-call list
Direct Marketing Association decides not to appeal 10th Circuit ruling, but American Teleservices Association plans to ask for high court review. 03.04.04

Phone ringing? Blame Congress, not the courts
By Ken Paulson Judge's ruling on do-not-call list reflects concern that banning some types of calls but not others goes against First Amendment free-speech guarantees. 10.05.03


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