- Are telemarketing calls speech protected by the First Amendment?

 

- Does the federal no-call registry violate the First Amendment?

 

 

Federal District Judge in Colorado

 

Applied the Central Hudson Test:

 

-      Truthful advertising and advertising for legal products and services is protected.

 

-      Is there sufficient government involvement in the no-call registry to constitute state action?

o    By exempting charitable organizations from the registry, the FTC influenced consumersπ choices.

ß      By not allowing consumers to ban calls from all telemarketers the FTC has become entangled in the decision of what the consumer should hear.

ß      FTC has imposed a content-based restriction on speech.

 

 

 

 

-      Substantial interest:

o    Protecting privacy at home

ß      FTC agreed: telemarketing calls from charities are an invasion of privacy.

ß      Government practice cannot be at odds with interest: Allowing speech with same harm as the restricted speech.

∑      Content-based distinction

 

o    Curbing deceptive and abusive telemarketing practices

ß      No evidence that such practices are committed more by commercial telemarketers than charities

ß      Repeat business is important to commercial, so less likely to deceive and abuse

ß      Charities not necessarily above reproach in fundraising.

ß      Content-based restriction does not advance governmentπs interest.

 

-      Solution: Add charities to the no-call registry

o    Were the registry to apply without regard to content

(by leaving autonomy of decision in hands of individual),

≥it might be a different matter.≤

 

 

FTC v. Mainstream Marketing (10^th Cir., Feb. 17, 2004)

 

Do-not-call registry is a valid commercial speech regulation

 

 ≥List restricts only core commercial speech, i.e., commercial sales calls.≤

 

SUBSTANTIAL GOVπT INTEREST:

         Combating the danger of abusive telemarketing and preventing the invasion of consumer personal privacy.

         ≥Targets speech that invades the privacy of the home, a personal sanctuary that enjoys a unique status in our constitutional jurisprudence.

 

DIRECTLY ADVANCES GOVπT INTEREST:

         Registry materially furthers the government's interests by blocking a significant number of the calls that cause these problems.

 

REASONABLE FIT:

≥Registry is an opt-in program that puts the choice of whether to restrict commercial calls entirely in the hands of consumers.≤

≥Narrowly tailored because its opt-in character ensures that it does not inhibit any speech directed at the home of a willing listener.≤

 

 

≥As a general rule, the First Amendment does not require that the government regulate all aspects of a problem before it can make progress on any front.

 

Agreed that commercial calls were more intrusive and posed a greater danger of consumer abuse than those for charitable and political fundraising.

 

A less restrictive company-specific do-not-call list did not solve the problems caused by commercial telemarketing, but it had no comparable evidence with respect to charitable and political fundraising.

 

≥The national do-not-call registry offers consumers a tool with which they can protect their homes against intrusions that Congress has determined to be particularly invasive. Just as a consumer can avoid door-to-door peddlers by placing a åNo Solicitationπ sign in his or her front yard, the do-not-call registry lets consumers avoid unwanted sales pitches that invade the home via telephone, if they choose to do so. We are convinced that the First Amendment does not prevent the government from giving consumers this option.≤