MSNBC reports another step in this saga:

The furious last-minute jockeying to stop unsolicited telemarketing continued Thursday, as both the House and Senate quickly passed legislation designed to allow a national Do Not Call Registry to take effect Oct. 1. But for the second time in three days, a federal judge issued an order blocking implementation of the list. The latest court ruling sides with telemarketers’ claims of First Amendment protection.

NOW, THE OCT. 1 Do Not Call Registry launch date is now in serious jeopardy, according to a legal expert.

“This one Congress can’t fix with legislation. It will eventually make its way to the Supreme Court,” said Clayton Friedman, a lawyer who is advising telemarketing firms working at do-not-call list compliance. “And I can’t imagine how they can hear it before Oct. 1.”

Do-not-call supporters have this hope: An appeals could side with the Federal Trade Commission before next Wednesday, when the list is to be implemented. Either way, the case is certainly headed for the Supreme Court, Friedman said.

It sure looks that way. While I gladly defended the previous judge–the FCC didn’t have the authority to do this on its own–this one needs to be horsewhipped. We have several decades of case law on commercial speech; its protections are comparatively minor. The only reasonable argument I could come up with would be equal protection–certain types of unsolicited calls are permissible under this regulation/law–but that’s not going to fly either, given recent court rulings which, for example, allow discrimination against abortion protestors that aren’t applied to other groups.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Paul says:

    Not to mention that while the first amendment guarantees the right to free speech, it does NOT guarantee an audience.

  2. Fredrik Nyman says:

    I’m not convinced that we want to turn this into a first amendmentment issue.

    The issue at hand is not: can the government prevent someone from using a public forum for [commercial] speect.

    Rather, the issue at hand is: can the government mandate that [commercial] speakers respect the expressed wish not to have their privacy disturbed by unsolicited phone calls.

    In the first case, there would be grounds for a first amendment challenge; in the second, I don’t think there is.

    Ever see these “NO SOLICITING” signs at the entrance of stores, apartment buildings, office buildings, and so on? Those mean that if you ignore the sign and go bother the tenants, the property owner can call the police and have you arrested for trespassing. I would argue that that is analogous to the do-not-call list.

    In defense of the verdict today, I think the judge was right in striking down the law on first amendment grounds. The fact that non-profit fundraisers are exempt from having to respect the do-not-call list makes means that the law is not viewpoint-neutral. I don’t think that distinction should pass constitutional muster; if I’ve asked not to be solicited, United Way has no more business hitting me up for money than AT&T has.

  3. Ross Judson says:

    I think James has hit the nail on the head here — we’re talking about _commercial_ speech, not political or regular speech. As such…not much protection…I felt a bit bad that everybody was beating up on the first judge — I read the decision and all the guy said was, the FTC didn’t have the authority to do it. He was basically just telling Congress they needed to pass something that would explicitly authorize it; otherwise, as he saw it, it would fall under the purvue of the FCC.

    It’s time for a law, though – those goddamn predictive dialers drive me absolutely nuts.

  4. Tirebiter says:

    Ah-hem. It was the Federal Trade Commision that established the Do-Not-Call List, not the Federal Communications Commision.

    Politically, the DMA and its partners are sunk. They (the self-proclaimed “teleservices” industry) had plenty of time to self-regulate and reduce the level of consumer frustrations with their practices. Now, it’s time to pay the price for years of overly aggressive sales tactics and intrusive marketing.

    The public has had it “up to here” with telemarketers. Congress has already reflected this and it’s a sure bet the Supreme Court will agree: telemarketers had their chance and they blew it.

  5. Teri Lester says:

    Why isn’t anyone countering “first amendment” rights with property rights? I.e., what gives anyone the right to use my property (my phone equipment) to exercise their free speech rights?

  6. James Joyner says:


    Right. I just assumed it was the FCC, since they regulate telecom. I noted it was FTC this morning but never went back and edited the post.