Sunday, September 28, 2003

Re: Commercial Solicitation, or State Action Redux

It seems we have narrowed (or broadened) the scope to focus on the question: what constitutes government action? It is my position that government action in the constitutional sense reaches a wide range of conduct from doing nothing to active participation in shaping norms and values. It is impossible to separate the government from the choices an individual makes, because the government as an institution shapes the public and deems certain choices acceptable or not. The idea that a man's home is his castle (an idea that plays a central role in this debate) is dependent on the idea of property rights, which must be enforced by the government to survive. If the government enforces an individual's right to choose in some respects and not others, the government is acting as an institution in favoring some choices over others.

Let me offer an example. In 1948, the Supreme Court in Shelley v. Kraemer addressed questions relating to the validity of racial covenants, which are private agreements that essentially place restrictions on the use or transfer of land. Some property owners in a neighborhood brought suit against a black property owner who had received his property in violation of a restrictive covenant that had been placed on the land by its prior owner which forbeyed the land become the property of any person not of the Caucasian race. The neighbors claimed that "judicial enforcement of private agreements does not amount to state action; or, in any event, the participation of the State is so attenuated in character as not to amount to state action ...."

The Supreme Court rejected the neighbor's argument that they should be free to contract, because it recognized that enforcement of contracts requires the coercive power of the government. (The same principle exists in contract law--the government will not enforce a contract that involves illegal conduct.) There is one excerpt in particular that merits consideration here:

The problem of defining the scope of the restrictions which the Federal Constitution imposes upon exertions of power by the States has given rise to many of the most persistent and fundamental issues which this Court has been called upon to consider. That problem was foremost in the minds of the framers of the Constitution, and since that early day, has arisen in a multitude of forms. The task of determining whether the action of a State offends constitutional provisions is one which may not be undertaken lightly. Where, however, it is clear that the action of the State violates the terms of the fundamental charter, it is the obligation of this Court so to declare.

Now, returning to the context specific issues related to telephone solicitation, please do not misunderstand the position I stake out. I do not contend that the government cannot enforce an individual's right to refuse calls from a particular individual or class of individuals. I merely suggest that the government action (or nonaction, for that matter) has a pervasive influence on norms and values, and it does not satisfy me that governmental conduct is not subject to review merely because it affectuates individual choice. How it chooses to structure the regulation can have enormous influence on the choices that are available.

In this instance, the national do-not-call registry, in conjunction with the existing TCPA restrictions, permit an individual to refuse commercial telephone solicitations either on a company-by-company basis or by adding his or her telephone number to the registry. An individual does not have the choice, under either method, of restricting calls from a tax exempt nonprofit organization or calls that do not qualify as a solicitation. By enforcing the choice of individuals in some respects but not others, the government favors certain kinds of speech over others. That this is so can be seen if we change the scenario, and suppose that some individuals did not wish to receive calls placed by minorities. Surely you would agree that if the government had an opt-out list and inflicted a penalty on any minority who placed a call to someone on that list, the government's conduct could be called into question.

The government must always remain aware that its conduct or even inaction has potentially enormous impact, even if the conduct involves institutional structure that simply permits individuals to make their own choices. And where, as here, the government selects certain choices to be enforced and others not, and the distinction involves the content of speech, the government must provide some account for its conduct.

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