In an effort to keep the national do-not-call registry afloat Monday, President Bush signed corrective legislation into law and his Federal Communications Commission decided to help enforce the prohibition on sales calls to the 50 million Americans on the list.
But their work is dependent on how successful the government will be in arguing that the popular ban on unwanted sales calls does not violate telemarketers’ free speech protections.
Last week, U.S. District Court Judge Edward Nottingham said the law is unconstitutional because it permits solicitations from charities, political parties or other nonprofit organizations, but bans them for corporations.
Nottingham’s decision puts the list at the crux of a constitutional debate that could wind up before the Supreme Court – a clash between free speech and the right to privacy, and a discussion about where to draw the line between political or artistic speech and commercial speech, which generally enjoys less First Amendment protection.
This constitutional question looms large over the government’s ability to have any agency enforce the restrictions.
“Every time you have one constitutional right facing off against another, you have to use a seesaw balancing test,” said Warren Dennis, a partner in the Prosskauer Rose law firm who has frequently handled cases involving the Federal Trade Commission, which created the do-not-call list. “And it’s not a fixed line. It’s always changing.”
Bush said Monday that Americans were “losing patience” with unwanted phone calls and that his administration was acting to support the people who signed up for the do-not-call list.
“The do-not-call registry is still being challenged in court,” Bush said. “Yet, the conclusions of the American people and the legislative branch and the executive branch is beyond question.”
Among the many supporters of the do-not-call list is Oregon Senator Ron Wyden, who co-sponsored the legislation to save it.
퀌�Millions of Americans want to stop the tidal wave of telemarketing intruding on their lives, and the do-not-call list can accomplish that,퀌� said Wyden. 퀌�I co-sponsored this legislation to give Oregonians a choice 퀌� and a chance to eat dinner in peace.퀌�
To pass constitutional muster, the do-not-call list must clear two important legal tests.
First, the government must show that consumers’ rights to privacy, an explicit constitutional right, outweigh telemarketers’ rights to free speech.
“There shouldn’t be a problem there,” said Jerome Barron, a First Amendment expert and law professor at George Washington University. “The right to privacy is a very important constitutional right, and it would almost always supercede the right to commercial speech.”
In fact, in his ruling invalidating the law, Nottingham acknowledged the importance of personal privacy and the government’s interest in protecting it. But he also found that the do-not-call list failed to clear a second hurdle: proving that the government had a compelling interest to treat purveyors of one message differently from another.
Citing a 1993 Supreme Court decision that invalidated a Cincinnati ordinance that banned news racks with advertisements but permitted those with newspapers, Nottingham said it’s illegal to differentiate between corporate telephone solicitors and ones soliciting for charities. Nottingham called the list a “content-based” limitation on what calls consumers may get. It doesn’t permit people to ban all solicitous calls, just those from corporations.
“The problem with that is that the judge is overvaluing corporate speech rights and undervaluing the personal privacy rights of 50 million Americans,” Barron said. “There’s insufficient weight being given to privacy here.”
Dennis said there are other issues that Nottingham seemed to ignore as well.
Phones, for example, already are tightly regulated by the government. They’re not open-air idea markets like street corners, where government could not so easily enforce restrictions.
“It’s not like the government was prohibiting something on a billboard,” Dennis said. “A phone is a little like my front lawn. And if I put a `post no bills’ sign on my lawn, I’m entitled to say that. Why can’t I say don’t call me?”
The government has appealed Nottingham’s ruling and asked for a delay in his decision, pending an appeal.