Tuesday, February 17, 2004

10th Circuit Holds that Do-Not-Call Registry is Constitutional

A while back, Joe and I discussed a ruling from the District Court of Colorado that found the National Do-Not-Call Registry unconstitutional. The 10th Circuit Court of Appeals allowed the registry to go forward, and has now issued its full opinion.

In brief, the 10th Circuit found that the regulation survives First Amendment scrutiny because it promotes a substantial interest (privacy and preventing fraud) in a way that is reasonably tailored to the goal. The court found that there was a legitimate basis in distinguishing commercial and noncommercial speech because commercial speech presents a bigger nuisance than non-commercial calls. And while the court recognized that non-commercial calls may also be a nuisance, "the First Amendment does not require that the government regulate all aspects of a problem before it can make progress on any front." (P. 22).

The 10th Circuit seemed motivated in part by the fact that the registry restricts "only calls that are targeted at unwilling recipients," and "speech restrictions based on private choice (i.e., an opt-in feature) are less restrictive than laws that prohibit speech directly." (P. 30). The court cited Rowan favorably, a case that Joe relied on in his arguments, and noted that "Congress has erected a well (or more accurately permits a citizen to erect a wall) that no advertiser may penetrate without his acquiescence. ... The asserted right of a mailer, we repeat, stops at the outer boundary of every person's domain." (P. 31). The court observed that "like the do-not-mail regulation approved in Rowan, the national do-not-call registry does not itself prohibit any speech. Instead, it merely permits a citizen to erect a wall ... that no advertiser may penetrate without his acquiescence." (P. 33).

While I entirely agree with the result, I think that by bringing in Rowan the 10th Circuit's holding obscures the point I was trying to make earlier (although the Court did not rely on Rowan to reach its result). While a citizen has a right to determine whose messages it allows into his or her domain, if the government provides selective restrictions it must explain why it chose to select some speech for restriction but not others. In this case, the registry does not simply empower citizens to erect a wall to prevent all calls from coming into his or her home as the opinion suggests. Rather, Congress permitted citizens to erect a wall that is impenetrable only to some (commercial speakers) but does not prevent others (non-commercial speakers) from breaching the wall--and that feature is what raises First Amendment concerns. That is content restriction, plain and simple.

I certainly agree with the 10th Circuit that people are kings of their own domain, but when government decides to empower citizens to be left alone in some ways but not others, there must be a strong reason for the distinction. In this case, the court found that the FTC and FCC amply explained how commercial speech is more harmful than non-commercial speech in this context, and recognized that a 40-60% reduction in overall unwanted calls demonstrates a substantial relationship between the stated goals and the government action. That's all that is necessary to survive First Amendment review under these circumstances.

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