Congress and the president were quick to read the political tea leaves when 51 million Americans took a stand against telemarketing. With lightning speed, President Bush signed a bill authorizing the Federal Trade Commission to enforce its no‐call registry. Congress had passed that bill in less than 30 hours. “The do‐not‐call registry is still being challenged in court,” the president said. “Yet the conclusion of the American people and the legislative branch and the executive branch is beyond question.”
Maybe so. But constitutional rights cannot be overridden by temporal majorities — not 51 percent of the people or even 91 percent of the people. And the court has the final word when it comes to the Constitution. A federal judge in Denver already has held that no‐call prohibitions on telemarketers — with exemptions for calls that are arguably more intrusive, like those from charities, polling organizations, and (you guessed it) politicians — violate the First Amendment. Speech may not be suppressed based on its content, said the judge. Now the Tenth Circuit Court of Appeals will review the lower court ruling.
Yes, the Supreme Court has declared that commercial speech is not entitled to the same First Amendment protection as non‐commercial speech. So the Denver decision may well be overturned. That may strike some consumers as the right outcome, but the Court’s distinction between commercial and non‐commercial speech has never been coherent. When someone advertises a political book, promotes a paid political event, or markets merchandise in support of a political cause, the commercial and political implications are inextricably entwined. It’s time for an overhaul of the Supreme Court’s commercial speech doctrine. Our Constitution protects Klan speech, flag burning, even “gangsta” rap. Surely the right of companies to provide information about their products is no less worth protecting.
No‐call may be a great idea — but only if the arrangements are controlled by private contract and not by government regulation. A phone customer does not own the lines coming into his home, so he may not restrict their use. Once a call enters his house, the customer has a remedy: Hang up. That’s not much different than radio or TV. If you don’t want to see a commercial, turn off the TV or switch channels. Your ownership of the television doesn’t give you the right to prevent advertisers from broadcasting into your living room. Similarly, your ownership of a phone doesn’t mean you can suppress usage of incoming lines. If you would rather eat dinner uninterrupted, just turn off the ringer. You can even use caller ID or record your messages and return them selectively.
The lines coming into a home are either owned by a private carrier (like Cox or Comcast or Time Warner) or by a common carrier (like BellSouth, Verizon, Quest or SBC). If the lines are owned by a private carrier, the user’s contract will control whether and how calls are screened. Almost all private carriers have call‐blocking technology. Naturally, carriers would be liable for breach of contract. But if the lines are owned by a common carrier, then government dictates the rules. Indeed, government has placed limits on the ability of common carriers to police their own networks, which must be available to serve all comers. Longer term, the solution is to get rid of the common carrier model and substitute private carriers so the market, rather than government, regulates access.
Proponents of no‐call point to the Supreme Court’s 1970 Rowan v. U.S. Post Office Department decision. The Court upheld the constitutionality of a scheme whereby each mail recipient could direct advertisers to exclude the recipient from unwanted mailings. But the Post Office is different. First, it’s a monopoly and, therefore, affords no opportunity for competitive privacy models. Second, mailboxes can’t be turned off the way that phone ringers, radios, and televisions can. Without mail blocking, senders can trespass on recipients’ property. Third, the Post Office scheme allows recipients to choose which particular senders to exclude. Neither Congress nor a government agency categorizes senders in a manner that requires blanket exclusion or blanket access.
When government sets the rules, it must not discriminate based on the content of the calls. That’s what the First Amendment means. Free speech is not subject to plebiscite, no matter how many millions sign up for no‐call. Justice William Brennan got it right: “If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”