Re: Do Not Call - the constitutional question

[Mae Kuykendall]

Suppose the Do Not Call List were divided, so that phone customers could choose whether to ban 1)  commercials calls only, 2) charitable and political calls only, 3) both, or 4) none?  If that were done, the government would still be running a program that tended to disfavor commercial speech, and which aided people to prefer one type of speech over another based on content.  Would  broadening the element of choice to phone customers to encompass government-constructed categories of all mass-produced and delivered speech based on content nonetheless lessen the First Amendment problem by minimizing the use of governmental power to single out one type of speech for penalty?    On  the other hand, is aiding citizens to bar all unsolicited calls plainly constitutional under governing First Amendment principles?    Mae Kuykendall >>> [EMAIL PROTECTED] 09/27/03 04:18PM >>> Yvette and Michael refer to the substantive, First Amendment question.  In my view, that is a much more serious question than is the statutory authorization question -- and, of course, Congress cannot "cure" the constitutional problem merely by reenactment, although there is a legislative fix -- namely, extending the "Do Not Call" list to virtually all unsolicited organizational calls, whether or not they are commercial in character -- that would probably avoid the constitutional difficulties.  See below.   Yvette is quite right that there is a constitutional right to "refuse unwanted commnications," at least up to a point.  Judge Nottingham actually did a nice job noting this, in his discussion of Rowan, which is the relevant precedent.  The problem with the FTC regulation (and the impending statute) is that, unlike the mail statute upheld in Rowan, it doesn't go far enough:  It covers only unsolicited commerical calls.  (See page 26 of the opinion:  "Were the do-not-call registry to apply without regard to the content of the speech, or to leave autonomy in the hands of the individual, as in Rowan, it might be a different matter.")  The drafters of this reg and statute figured that limiting it to commercial speech would improve the chances that it would be constitutional, because then they could rely upon the permissive Central Hudson test.  The theory was that commercial speech is "lower value" speech, or is entitled to lesser constitutional protection, and thus can be (and should be) singled out for more restrictive treatment than non-commercial speech.   This may have been a mistake, because of Cincinnati v. Discovery Network, in which the Court held that where the state's articulated problem is equally implicated by commercial and noncommercial speech, commercial speech cannot be singled out for restriction on the ground that it is of "lesser" constitutional value.  (I'm simplifying -- there are several ways to read Discovery Network -- but I think it fair to say that's the basic gist of it.)  Here, the state interest is in preventing unwanted intrusive calls to the home.  Obviously, many of those unwanted calls are "non-commercial," and/or are not covered by the reg (e.g., polling calls, political calls, charitable nonprofit solicitations).  The district judge estimated that 40% to 60% of all unwanted calls are not covered by the reg.     What are the reasons that the reg was limited to commercial speech?  Well, the principal reason appears to have been that the FTC believed that non-commercial speech was entitled to "heightened First Amendment protection," and thus could not be made subject to the do-not-call list.  Discovery Network holds that that is not a legitimate basis for distinction.   See page 25 of the district court opinion ("Any attempt to distinguish between commercial and noncommercial speech solely because of commercial speech's lesser protected status under the Constitution 'attach [ es] more importance to the distinction between commercial and noncommercial speech than cases warrant and seriously underestimates the value of commercial speech.' Discovery Network, 507 U.S. at 419, 113 S. Ct. at 1511. A content-based distinction cannot be made on constitutional grounds unrelated to the asserted government interest.").      The court's decision is premised on the assumption that "[t]here is no doubt that unwanted calls seeking charitable contributions are as invasive to the privacy of someone sitting down to dinner at home as unwanted calls from commercial telemarketers" (p.24).  What I expect we'll see on appeal is the FTC argument that, whereas perhaps all unwanted calls are equally intrusive, charitable contribution calls (and polling calls, and political calls, etc.) are not as unwanted as commercial calls.  That is to say, the FTC might argue that many consumers want to receive unsolicited non-commercial calls, and therefore would be deterred from putting their names on the list if it meant not receiving such calls.  I can envision at least two possible problems with such an argument.  First, I don't know whether there's any empirical evidence to support it:  Is it true that a significant number of households mind commercial calls but do not mind noncommercial calls?  (In my case, for example, we receive more unwanted polling and charitable solicitation calls than we do unwanted commercial calls.)  Second, even if there is some evidence to support this distinction, wouldn't the answer be to have two or more do-not-call lists, one for commercial calls, one for nonprofits, etc.?  That way, the government would maximize consumer choice as to which categories of calls they wish to receive.   Of course, if the law were that no unsolicited calls could be made to anyone whose name is on the list, that would mean the virtual end of the telephone as we know it (or the virtual nonuse of the list), because there aren't many telephone calls that are solicited.  Therefore, the government would, at the very least, need to exempt certain categories of calls that are rarely unwanted, such as calls by individuals unaffiliated with businesses or organizations, and (as in the present rule), calls from entities that have an "established . . . relationship" with the call recipient.   If I had to predict, I'd say that if the case reached the Supreme Court, the Court would affirm the decision of the district court, because this Supreme Court seems to be of the view that no speech is more valuable than advertising, and there's no sign that the Court would want to rethink Discovery Network.  However, the Supreme Court might never consider the case, because it would probably deny cert if the court of appeals reverses.  And I think a 10th Circuit reversal is a very real possibility, because courts of appeals have not been sympathetic to Discovery Network-type arguments in the context of the analgous prohibition on unsolicited commercial faxes in the Telephone Consumer Protection Act.  See Missouri ex rel. Nixon v. American Blast Fax, 323 F.3d 649, 655 (CTA8 2003) (upholding the commercial/noncommercial distinction on the ground that commercial faxes are more "unwanted"); see also Destination Ventures v. FCC, 46 F.3d 54 (CTA9 1995).   Marty Lederman     ----- Original Message ----- From: "Michael Froomkin - U.Miami School of Law" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Saturday, September 27, 2003 1:12 AM Subject: Re: Do Not Call - the effect of congressional funding > I seem to have missed some of the messages on this thread, for which I > apologize.  I've posted a number of items about the do-not-call decisions > on my blog (including the results of a quick trawl through the > congressional record for what was said on the floor yesterday which might > be relevant to any R.A.V.-based challenge to the statute)  at > http://www.discourse.net , and I'd welcome comments there or here. > > On Fri, 26 Sep 2003, Robert Sheridan wrote: > > > Thanks very much, Yvette, > > > > for the perceptive analysis, which took effort.  I still can't download > > the opinion w/o freezing my hard drive.  In the meantime, there seems to > > be an even bigger objection from another USDC, to the effect that by > > prohibiting some sorts of communication and not others (commercial and > > not political, say) the FTC is engaging in FA-prohibited content-based > > regulation. > > > > I appreciate your responding, and all of your challenging posts, in > > fact.  Keep up the good work. > > > > Yours, > > > > Bob Sheridan > > SFLS > > > > -----Original Message----- > > From: Discussion list for con law professors > > [mailto:[EMAIL PROTECTED] On Behalf Of Barksdale, Yvette > > Sent: Friday, September 26, 2003 6:11 PM > > To: [EMAIL PROTECTED] > > Subject: Re: Do Not Call - the effect of congressional funding > > > > > > Hi Robert > > > > In West's Oklahoma District Court opinion he concludes that Congress by > > subsequent legislation (including appropriations riders or funding > > bills) could ratify agency action that was previously without legal > > authority,  but that Congress' intent to so ratify must be clear.  This > > "clearly expressed intent" standard makes sense since otherwise Congress > > could not routinely fund  any agency action without risking unwittingly > > resolving legal disputes over the action's validity.    However, if > > Congress clearly intends to ratify agency action  then it has the power > > to do so. > > > > The "do not call" list appropriation merely authorized the agency to > > "use funds" and "collect fees" for  the "do not call" list, but, West > > concluded,  did not otherwise  express an intent to give the agency > > legal authority to create the list. > > > > A further complicating factor was also that  previous statutes had 1) > > specifically authorized the FCC to create a "do not call list" but 2) > > authorized the FTC to merely regulate "Deceptive ...and other abusive... > > telemarketing acts and practices."   an authority arguably much narrower > > than the across the board "Do not call" list which the FTC enacted. The > > Court thus was even more reluctant to conclude that a simple line item > > appropriation was sufficient to confer statutory authority which > > existing statutes had arguably specifically withheld from one agency and > > given to another. > > > > Of course now, Congress has clearly expressed its intent to ratify (by > > enough votes to override a presidential veto - right?) so this issue has > > gone away. > > > > There's still the Utah court's first amendment issue which West (D C > > Oklahoma) also relied upon that as further supporting a narrow > > construction of the agency's authority. That I don't understand - isn't > > there clearly a right to refuse unwanted communications. In other words > > - you may not be able to shut the person up, but you can turn a deaf ear > > - can't you. > > > > yb > > > > yb > > > ---------- > > > From:         Robert Sheridan[SMTP:[EMAIL PROTECTED] > > > Reply To:     Discussion list for con law professors > > > Sent:         Thursday, September 25, 2003 9:20 AM > > > To:   [EMAIL PROTECTED] > > > Subject:           Do Not Call > > > > > > According to the news report by Bob Egelko of the San Francisco > > > Chronicle on Sept. 25, the reason the district court (Lee West, J., > > > Oklahoma City) overturned the FTC's popular "do not call" (50 million > > > phone numbers listed so far) list which bans  telemarketers from > > > annoying you by calling in the middle of whatever you thought you were > > > > > doing, is that although the FTC adopted regulations enabling the > > > service, and Congress later funded the cost of it, neither Congress > > > nor its funding legislation expressly granted legal authority to > > > create such a list. > > > > > > Congress had authorized a different agency, the FCC, to establish such > > > > > a list, but the FCC decided not to create a list and instead ordered > > > telemarketers to keep their own lists of people who said 'don't call.' > > > > > The FTC appears to have taken up the slack left by the failure of the > > > FCC to exercise its power.  The dormant regulatory power, one might > > > call it. > > > > > > Query:  If a federal agency, without express enabling legislation from > > > > > Congress, adopts a practice that falls within an area in which > > > Congress has the power to regulate (instrumentalities of interstate > > > commerce, phone lines), and Congress appears to afterwards validate > > > the practice, impliedly, by funding it, is that a sufficient grant of > > > legal authority to validate the practice? > > > > > > Another way of putting it might be to ask whether ratification by > > > Congress is sufficient to validate the assumption of a practice. > > > > > > Didn't Marshall, C.J., do exactly that in Gibbons v. Ogden when he > > > looked back to the longstanding practice of sovereigns everywhere to > > > regulate navigation as a subset of commerce?  He ratified an existing > > > practice, clothing it with constitutional legality, after the fact?> > > > > > > Does acquiescence in a government practice, followed by apparent > > > ratification via funding by Congress, suffice to recognize the > > > implicit grant of a power? > > > > > > Or must all government powers always be created by express grant only? > > > > > > Just thought I'd ask since I've been unable to download the opinion > > > and don't know whether such a question was addressed. > > > > > > Thanks. > > > > > > R. Sheridan > > > SFLS > > > > > > Incidentally, last academic year I asked for colorful or memorable > > > Conlaw metaphors which drew a number of good replies as well as a > > > caveat against overusing such devices.  Here's a quote from Cardozo on > > > > > point, from Berkey v. Third Avenue Railway, 244 NY 84,94, (1926), > > > quoted by Andrew L. Kaufman in "Cardozo" p. 449: > > > > > > "Metaphors in law are to be narrowly watched, for starting as devices > > > to liberate thought, they end often by enslaving it." > > > > > > > > > > -- > http://www.icannwatch.org   Personal Blog: http://www.discourse.net > A. Michael Froomkin   |    Professor of Law    |   [EMAIL PROTECTED] > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA > +1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm >                          -->It's hot here.<--