Editorial for Monday — September 29, 2003

• A bad call

A bad call

Sales people do not have a constitutional right to summon you from dinner to hear their pitch for aluminum siding, credit cards or anything else they may be hawking.

To say otherwise is a misreading of established law. So, peaceful citizens next week can blame U.S. District Judge Edward W. Nottingham in Denver for the continuing cacophony of telemarketing calls rousting us from our easy chairs and children’s bedsides.

The judge on Thursday stopped enforcement of the federal “do-not-call” list. More than 51 million Americans had freely placed their names on the new list. As of next Wednesday, telemarketers selling most products were to be forbidden from calling anyone on the list. Political callers, pollsters and charities were excepted, as they should be.

Then up spoke the judge. He ruled that the law violates the First Amendment right to free speech. He said, correctly, that Congress can’t discriminate against a particular kind of speech based on its content. The telemarketing law discriminates, he said, because it blocks commercial telemarketing calls, but not calls from charities. “The FTC has chosen to entangle itself too much in the consumer’s decision by manipulating consumer choice,” Judge Nottingham wrote.

But the judge got carried away. It doesn’t make sense to insist that the government treat the United Way the same as someone selling driveway resurfacings.

The courts have long distinguished between commercial speech and other forms of free expression, making it easier to regulate commercial than political speech. Prohibitions on false advertising and fraudulent sales tactics have all passed legal muster. The do-not-call law doesn’t prohibit aluminum siding salesmen from hawking their products. It just limits the method. They’re free to send junk mail, put a blurb on the radio or (what a pleasant thought!) buy a newspaper ad.

The courts allow much broader freedom for political and personal speech, which is essential to human liberty and democracy. That’s why a law prohibiting political campaign calls would clearly violate the Constitution.

Actually, it’s the judge who has decided to “entangle” himself in consumer choice. Millions of consumers have chosen freedom from telemarketing harassment. They deserve relief.

Congress certainly thinks so. On Wednesday, another federal judge tossed out the do-not-call list on a legal technicality. On Thursday, both houses of Congress voted overwhelmingly to plug the legal loophole.

Who says Congress is a deliberative body? It will move like a stampede if members sense a herd of 51 million angry voters on their heels.

St. Louis Post-Dispatch


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