Re: Commercial Solicitation, or State Action Redux

The Tenth Circuit Court of Appeals granted a stay of the District Court's order preventing the national do-not-call registry from taking effect. The ruling may be found here.

Good result, but the ruling was weak, in my opinion. The court focused on the fact that the restriction offers a choice to homeowners (see Joe's comments on this point earlier). I will let the arguments I raised on this topic stand and not rehash those same points, other than to emphasize that just because the government has not banned commercial solicitation altogether doesn't eliminate the First Amendment problem. Second, the court claimed that any distinction made between commercial and noncommercial speech "must bear a relationship to the legitimate interests the government seeks to achieve." (p.10) This makes no sense. There is undoubtedly different standards for commercial and noncommercial speech, and it is entirely plausible to imagine a scenario where both pose similar harms, but the value society places on noncommercial speech does not justify regulating all speech--only the commercial variety. Instead of recognizing this point, the court went to great length to argue that commercial calls are much more annoying and therefore the distinction is justifiable on this basis.

While this is only a preliminary ruling, it is highly likely that the final opinion will mirror the points they raised in today's order. I hope the Supreme Court picks it up and clarifies this mess.