Congress and the president were quick to read the politicaltealeaves when 51 million Americans took a stand againsttelemarketing. With lightning speed, President Bush signed a billauthorizing the Federal Trade Commission to enforce its no-callregistry. Congress had passed that bill in less than 30 hours. "Thedo-not-call registry is still being challenged in court," thepresident said. "Yet the conclusion of the American people and thelegislative branch and the executive branch is beyondquestion."
Maybe so. But constitutional rights cannot be overridden bytemporal majorities-not 51 percent of the people or even 91 percentof the people. And the court has the final word when it comes tothe Constitution. A federal judge in Denver already has held thatno-call prohibitions on telemarketers-with exemptions for callsthat are arguably more intrusive, like those from charities,polling organizations, and (you guessed it) politicians-violate theFirst Amendment. Speech may not be suppressed based on its content,said the judge. Now the Tenth Circuit Court of Appeals will reviewthe lower-court ruling.
Yes, the Supreme Court has declared that commercial speech isnot entitled to the same First Amendment protection asnoncommercial speech. So the Denver decision may well beoverturned. That may strike some consumers as the right outcome,but the Court's distinction between commercial and noncommercialspeech has never been coherent. When someone advertises a politicalbook, promotes a paid political event, or markets merchandise insupport of a political cause, the commercial and politicalimplications are inextricably entwined. It's time for an overhaulof the Supreme Court's commercial-speech doctrine. Our Constitutionprotects Klan speech, flag burning, even "gangsta" rap. Surely theright of companies to provide information about their products isno less worth protecting.
No-call may be a great idea-but only if the arrangements arecontrolled by private contract and not by government regulation. Aphone customer does not own the lines coming into his home, so hemay not restrict their use. Once a call enters his house, thecustomer has a remedy: Hang up. That's not much different thanradio or TV. If you don't want to see a commercial, turn off the TVor switch channels. Your ownership of the television doesn't giveyou the right to prevent advertisers from broadcasting into yourliving room. Similarly, your ownership of a phone doesn't mean youcan suppress usage of incoming lines. If you would rather eatdinner uninterrupted, just turn off the ringer. You can even usecaller ID or record your messages and return them selectively.
The lines coming into a home are either owned by a privatecarrier (like Cox or Comcast or Time Warner) or by a common carrier(like BellSouth, Verizon, Quest or SBC). If the lines are owned bya private carrier, the user's contract will control whether and howcalls are screened. Almost all private carriers have call-blockingtechnology. Naturally, carriers would be liable for breach ofcontract. But if the lines are owned by a common carrier, thengovernment dictates the rules. Indeed, government has placed limitson the ability of common carriers to police their own networks,which must be available to serve all comers. Longer term, thesolution is to get rid of the common carrier model and substituteprivate carriers so the market, rather than government, regulatesaccess.
Proponents of no-call point to the Supreme Court's 1970Rowan v. U.S. Post Office Department decision. The Courtupheld the constitutionality of a scheme whereby each mailrecipient could direct advertisers to exclude the recipient fromunwanted mailings. But the Post Office is different. First, it's amonopoly and, therefore, affords no opportunity for competitiveprivacy models. Second, mailboxes can't be turned off the way thatphone ringers, radios, and televisions can. Without mail blocking,senders can trespass on recipients' property. Third, the PostOffice scheme allows recipients to choose which particular sendersto exclude. Neither Congress nor a government agency categorizessenders in a manner that requires blanket exclusion or blanketaccess.
When government sets the rules, it must not discriminate basedon the content of the calls. That's what the First Amendment means.Free speech is not subject to plebiscite, no matter how manymillions sign up for no-call. Justice William Brennan got it right:"If there is a bedrock principle underlying the First Amendment, itis that government may not prohibit the expression of an ideasimply because society finds the idea itself offensive ordisagreeable."