Supreme Court Lets ‘Do-Not-Call List’ Stand

Buried at the end of a very long WaPo Supreme Court roundup:

The Supreme Court let stand a lower-court ruling that telemarketers’ rights to free speech are not violated by the government’s nationwide do-not-call list. Without comment, the justices rejected an appeal by commercial telemarketers against the lower-court ruling, which upheld as constitutional the popular program in which consumers can put their names on a list if they do not want to be called by telemarketers. “We hold that the do-not-call registry is a valid commercial speech regulation because it directly advances the government’s important interests in safeguarding personal privacy and reducing the danger of telemarketing abuse without burdening an excessive amount of speech,” the appeals court said. The Denver-based appeals court overturned a decision by a federal judge who ruled the list unfairly discriminated against commercial speech.

The do-not-call list stemmed from regulations adopted by the Federal Trade Commission and the Federal Communications Commission. The program went into effect a year ago and subjects telemarketers to fines of up to $11,000 for calling a number on the list. The American Teleservices Association, Mainstream Marketing Services Inc. and TMG Marketing Inc. asked the Supreme Court to hear the case. The telemarketers argued that the list violated their commercial free-speech rights, that it unfairly did not apply to political and charitable solicitations, and that less restrictive regulations already allow consumers to block unwanted calls.

While I tend to oppose federal regulation of relatively trivial matters, this seems perfectly reasonable to me. A massive collective action problem prevents individual consumers from dissuading annoying telemarketing calls on their own, so governmental action was the only recourse. The states were acting on their own creating a hornets nest of confusing regulations in an industry that has, since its inception, been regulated at the federal level. And the restriction on “speech” here is so negligible as to be non-existent. There are many ways for firms to communicate with potential consumers without creating this level of intrusion into people’s private sphere.

Via Kevin Drum, who observes the Do-Not-Call List “may be the most successful government program of all time.” While he’s being somewhat tongue-in-cheek, he’s probably right from a sheer cost-benefit analysis. For a tiny amount of money, incredibly quick relief for a major problem was achieved with little in the way of unintended negative consequences.

FILED UNDER: Law and the Courts, Science & Technology
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.