Re: Do Not Call - the constitutional question

[Thai, Joseph T]

In rereading Discovery Network, I was struck by how characteristically fact-specific and non-categorical Justice Stevens' opinion for the Court seems to be.  See, e.g.,  Discovery Network, 507 U.S. at 428 ("As should be clear from the above discussion, we do not reach the question whether, given certain facts and under certain circumstances, a community might be able to justify differential treatment of commercial and noncommercial newsracks").   True, the opinion does frown upon the commercial/noncommercial distinction in that case, as well as the justification given for that distinction (commercial speech's "low value").  However, the opinion could be read to peg that criticism to the fact that the state interest (clean and safe sidewalks) was so little advanced by the ban on commercial newsracks (a "paltry" 3 or 4% of newsracks would have been eliminated) that an independent justification for the content distinction was necessary.   In other words, while the opinion clearly requires justification for a commercial/noncommercial distinction (apart from commercial speech's lesser-protected status) when the distinction would not advance the state's interest to any material degree, the opinion could be read to leave open the possibility that a commercial/noncommercial distinction could be viable without independent justification where (as in the do-not-call list case) the asserted state interest would be materially advanced (40-60%) by a regulation solely targeting commercial speech.    Professor Joseph T. Thai University of Oklahoma College of Law [EMAIL PROTECTED] -----Original Message----- From: Marty Lederman [mailto:[EMAIL PROTECTED] Sent: Sunday, September 28, 2003 11:02 AM To: [EMAIL PROTECTED] Subject: Do Not Call - the constitutional question   No -- that's the point of Discovery Network:  that commercial speech cannot be "more highly regulated" than other forms of _expression_ simply on the ground that it's commercial.  Commercial speech that is (i) false; (ii) misleading; or (iii) proposing an unlawful transaction can be more highly regulated than its noncommercial analogue; but outside those categories, the state needs a good reason for the commercial/noncommercial distinction, other than the assertion that commercial speech is "lower value," or more constitutionally amenable to regulation.   In my prior post, I should have mentioned one further justification that we can expect to see from the FTC on appeal -- namely, that it makes sense to impose the regulation specially on profitmaking, as opposed to nonprofit, entities, because they can pass on the costs to consumers, and thus more easily bear the brunt of the regulatory burdens.  This justification would, however, more readily support a profit/nonprofit regulatory distinction, which is not quite the same as commercial/noncommercial.   ----- Original Message ----- From: Mairi Morrison To: [EMAIL PROTECTED] Sent: Saturday, September 27, 2003 9:26 PM Subject: Re: Do Not Call - the constitutional question   i thought it was a given that commercial speech could be more highly regulated than other forms of _expression_. at the same time, I personally would find unsolicited charitble or political messages just as intrusive as commercial (or close) if I didn't make it a habit to screen all calls which I think is a very good method of making this all a non-issue.