"Do Not Call" - the constitutional answer?

Marty Lederman marty.lederman at comcast.net
Tue Feb 17 15:11:10 PST 2004

The Tenth Circuit today, reaching the merits, held that the regs do not violate the First Amendment, and are otherwise lawful and authorized:  http://www.ca10.uscourts.gov/opinions/03-1429.pdf.  (Thanks to Howard Bashman for the link.)  The court's attempts to distinguish Discovery Network appear on pages 27-39 and 38-39 -- I find those distinctions a bit underwhelming, but not at all surprising.

  ----- Original Message ----- 
  From: Marty Lederman 
  To: CONLAWPROF at listserv.ucla.edu 
  Sent: Tuesday, October 07, 2003 6:47 PM
  Subject: Do Not Call - the constitutional answer?

  The 10th Circuit has stayed the district court's injunction.  http://www.ck10.uscourts.gov/circuit/031429.pdf.  In finding a likelihood of FTC success on the merits, the court noted the following differences between unsolicited commercial and noncommercial calls:

  -- That a congressional committee had found that noncommercial calls are less "intrusive" because they are "more expected" and because there is a smaller volume of such calls (pp. 15-16; see also p. 22 ("the preponderant source of the problem of invasion of privacy and abusive calls - are commercial calls"));

  -- That the FTC had found that noncommerical callers have less "incentive" to engage in the types of behaviors "that telemarketers are hated for," because a significant purpose of such calls "is to 'sell' a cause, not simply to receive a donation," and therefore "it would be self-defeating for a non-commercial caller to engage in abusive telemarketing practices that invade personal privacy because such conduct could alienate the recipient against the cause the caller was attempting to promote."  (pp. 19-20);

  -- Most significantly, that whereas the FTC had evidence that company-specific do-not-call lists -- previously in effect for commercial callers -- were insufficient to stop abuses (because telemarketers do not adequately implement or abide by such lists), there was no such evidence that company-specific do-not-call lists would be inadequate for noncommercial callers -- because such callers have not until now been subject to such lists.  (p.22; see also p. 19 n.7 ("[T]he FTC did not have comparable experience regarding whether a company-specific do-not-call list would be ineffective as to charitable callers because up to that point in time charitable callers had not been subjected to a company-specific do-not-call list. However, the fact that the FTC did not yet have a record as to the need to include charitable callers on a national do-not-call list does not mean that it could not at least address the problem as to which it did have an adequate record - that the more limited company-specific do-not-call list was ineffective to prevent invasions of privacy and abusive practices among commercial solicitors. United States v. Edge Broad. Co., 509 U.S. at 434 (noting the government is not required 'to make progress on every front before it can make progress on any front')").  

  Any thoughts on these alleged distinctions?

    ----- Original Message ----- 
    From: Marty Lederman 
    To: CONLAWPROF at listserv.ucla.edu 
    Sent: Sunday, September 28, 2003 12:01 PM
    Subject: Do Not Call - the constitutional question

    No -- that's the point of Discovery Network:  that commercial speech cannot be "more highly regulated" than other forms of expression simply on the ground that it's commercial.  Commercial speech that is (i) false; (ii) misleading; or (iii) proposing an unlawful transaction can be more highly regulated than its noncommercial analogue; but outside those categories, the state needs a good reason for the commercial/noncommercial distinction, other than the assertion that commercial speech is "lower value," or more constitutionally amenable to regulation.

    In my prior post, I should have mentioned one further justification that we can expect to see from the FTC on appeal -- namely, that it makes sense to impose the regulation specially on profitmaking, as opposed to nonprofit, entities, because they can pass on the costs to consumers, and thus more easily bear the brunt of the regulatory burdens.  This justification would, however, more readily support a profit/nonprofit regulatory distinction, which is not quite the same as commercial/noncommercial.  
      ----- Original Message ----- 
      From: Mairi Morrison 
      To: CONLAWPROF at listserv.ucla.edu 
      Sent: Saturday, September 27, 2003 9:26 PM
      Subject: Re: Do Not Call - the constitutional question

      i thought it was a given that commercial speech could be more highly regulated than other forms of expression.

      at the same time, I personally would find unsolicited charitble or political messages just as intrusive as commercial (or close) if I didn't make it a habit to screen all calls which I think is a very good method of making this all a non-issue.

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