Friday, September 26, 2003

Re: Commercial Solicitation

I think the weakness of the Colorado ruling lies in its determination on whether the DNC list is a "government restriction" on speech (pages 16-18). It compares this case with Rowan v US Post Office where the Supreme Court ruled that since the government was simply facilitating an action that the addressee could take on their own (refusing to accept the mailing) the government was not itself restricting the speech contained in the mailing. Quoting the Colorado ruling's interpretation of that case: "The court categorically rejected the argument that a vendor has the right to send unwanted material into the home of another and found that the statute did not operate as a government restriction on speech."

The ruling finds that this is not the case with the DNC list. They argue that with the Rowan case the citizen has complete autonomy to select which mailings are blocked, whereas with the DNC list the government is making the distinction as to what is blocked (most commercial speech) and what is not (charitable speech, political speech, and specific types of commercial speech). By implication, if the DNC list had been all-inclusive then it would have passed this measure and not been considered a government restriction on speech.

This strikes me as an odd interpretation. I might understand if there was a substantial difficulty in determining the boundary between commercial and non-commercial speech. This would leave considerable regulatory power in the hands of the government to decide who could and could not make calls, and would create the sort of entanglement that the ruling worries about. However, that does not seem to be the case here. The distinctions appear to be clearly drawn out and interpretation should be trivial. The court recognized that in a number of cases distinctions have been drawn between commercial and non-commercial speech (p.14). These rulings should lay out solid ground for interpreting which is which. Certainly nothing discussed in the ruling touches on this issue or demonstrates reason to be concerned. They apparently are satisfied to note that the regulation does not regard all types of speech in the exact same manner, and that this by itself denotes government interference with speech.

I do not believe that this element of the decision will hold up. The Supreme Court's statement on Rowan appears to be directly applicable here. Vendors do not have the right to force their speech into someone's home. If it is fine for the government to help a citizen restrict vendors from commercial speech on a case by case basis, it seems it should also be fine for the government to assist citizens in the same manner while grouping multiple vendors under the protection, as long as the decision as to which vendors are included is clearly laid out for the citizen and interpretation of such is trivial. If the court had considered this issue and found that the interpretation of which calls to block left room for government discrimination against free speech that would be one thing. But the fact that they did not even consider the matter leads me to believe this is a definite angle for attacking the decision. If this element of determining that the government is itself regulating speech fails, then the rest of the First Amendment arguments collapse.

I believe there is a second line of attack in regards to the court's ruling that the FTC does not adequately advance its purpose of safeguarding privacy because it still allows charitable solicitations (and other protected calls) to go through (p. 21-24). The ruling references Cincinnati v Discovery Network, Inc in stating that it even if your cause for restricting speech is good enough to pass muster, if you are only making a partial improvement, then that is not good enough reason to restrict speech, particularly if any content discrimination is involved in that partial improvement. Here the ruling recognizes that the DNC list is far more effective than the actions taken with Cincinnati, but feels that because they use content discrimination in doing so, it should not be allowed.

While I'm not versed on the arguments made in Cincinnati, I believe that the point mentioned in this ruling (p. 14), from Florida Bar v Went For It, Inc ought to apply here: "Commercial speech also receives lesser protection, because to require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the First Amendment's guarantee with respect to the latter kind of speech." If we are considering the DNC list to be a restriction of speech (which must be the case in order for this element of the decision to be relevant), then this is clearly a situation whereby making no discrimination between commercial and noncommercial speech will lead to restrictions in noncommercial speech, as this will be required for the DNC list to move forward. I think a strong argument can be made that content discrimination in this situation does more to further the First Amendment protection of noncommercial speech than to hinder the First Amendment protection of commercial speech. While it may not be kosher to bring politics into the court, it should be recognized that there is a powerful political will behind the DNC list (as demonstrated by the quick action of our legislators) and that most likely a ruling disallowing content discrimination in the list will not result in the end of the DNC list, but in a reformulated list that covers commercial and noncommercial content alike. Given this scenario it seems that the First Amendment will be best satisfied by a DNC list that allows noncommercial calls.

ps. Just had a wisdom tooth pulled and am home from work today leaving me even more disposed to sitting around reading useless crap than usual. :)

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