- The Washington Times - Monday, September 29, 2003

A federal district court last Thursday outraged tens of millions of telephone subscribers who are infuriated daily by if not hourly by commercial telemarketing bumptiousness.

In Mainstream Marketing Services, Inc. vs. Federal Trade Commission (Sept. 25, 2003), Judge Edward W. Nottingham of the U.S. District Court for the District of Colorado held freedom of speech was offended by a Federal Trade Commission do-not-call national registry listing the names and numbers of persons who have voiced a desire to escape the vexations of commercial telemarketers, coupled with a complementary telemarketing prohibition on calling the listees as of Oct. 1, 2003. The vice, according to Judge Nottingham, was the national registry’s failure to provide householders with an opportunity to exclude themselves from charitable telemarketing.

The Mainstream Marketing decision, however, is destined for mercury-footed reversal by the U.S. 10th Circuit Court of Appeals. The Constitution does not require unwilling citizens in the privacy of their homes to unbutton their ears to commercial sales pitches; and, a government preference for charitable over commercial speech is easily defendable.

In 1994, Congress enacted the Telemarketing Act empowering the FTC to promulgate rules banning deceptive or abusive telemarketing practices. In December 2002, the FTC issued a rule forbidding commercial but not charitable telemarketers from “initiating any outbound telephone call to a person when … that person’s telephone number is on the ‘do-not-call’ registry, maintained by the commission, of persons who do not want to receive outbound telephone calls to induce the purchase of goods or services.”



While charitable telemarketers were exempted from the national registry prohibition, consumers retained the right to muzzle their solicitations case-by-case by instructing particular charitable entities to desist from calling.

Twofold reasons justify the FTC’s distinction between commercial and charitable telemarketing: Consumers customarily are more outraged when a commercial vendor as opposed to a Good Samaritan disturbs the serenity of the home because charitable callings ordinarily command greater respect and indulgence. And charities may be more financially dependent on telemarketing than are commercial enterprises. Moreover, the lion’s share of telemarketing calls that provoke anguish and curses are commercial.

Judge Nottingham first erred in concluding that the FTC’s rule implicated the government in restricting freedom of speech by telemarketers. As the U.S. Supreme Court explained in Rowan vs. United States Post Office Department (1970), free speech does not include a right to communicate with unwilling communicants in the home.

There, the high court sustained a statute enabling an addressee to refuse mail from any sender by notifying the local postmaster, who then would direct the sender to remove the addressee’s name and address from its mailing list under penalty of law.

Writing for the court, Chief Justice Warren Burger emphatically denied that vendors are weaponized by the First Amendment to destroy the tranquility of a home where the right to be left alone is at its zenith.

The FTC’s do-not-call national registry enables households to block through a wholesale method of notification what the Rowan precedent declared could be done to mail senders by retail notifications to the post office. It differs only in its confinement to commercial speech, leaving charitable solicitations open to blocking through more arduous entity-by-entity notifications.

Judge Nottingham insisted the lighter burden on consumers for thwarting commercial in contrast to charitable telemarketing under the FTC’s rule violated the First Amendment. He maintained that both categories of telemarketers equally upset household privacy; and, that the rule’s distinction between the two pivoting on privacy concerns arbitrarily preferred non-commercial to commercial speech.

The District Judge thus concluded: “The First Amendment prohibits the government from creating a preference for certain types of speech based on content, without asserting a valid interest, premised on content, to justify its discrimination. Because the do-not-call registry distinguishes between the indistinct, it is unconstitutional under the First Amendment.”

But Judge Nottingham overlooked the fact that commercial telemarketers as a group are less favored by consumers than are their charitable counterparts; and that the FTC could rationally incorporate that preference in its do-not-call registry. Moreover, in cases where consumers find charitable telemarketers equally obnoxious, they can effectuate a blocking by specific notice to the unwanted charities.

In addition, the FTC might reasonably conclude that charitable organizations would risk crippling or bankruptcy by wholesale telemarketing exclusions, whereas commercial vendors could more easily survive such a spanner in their consumer solicitations. Thus, the agency’s balance between enterprise and privacy rationally tipped in one way when charities were weighed and in the opposite direction when commercial telemarketers were placed in the scales.

Freedom of speech should be jealously guarded. It is the lifeblood of democracy and culture. But it is not a constitutional juggernaut that invariably defeats all other coveted values.

Bruce Fein is a founding partner of Fein & Fein.

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