Do Not Call decision and commercial v. non-commercial speech [fs]

[Declan McCullagh <declan () well com>]

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Date: Wed, 18 Feb 2004 10:45:27 -0500
From: "Paul Levy" <plevy () citizen org>
To: <declan () baltwash com>
Subject: Do Not Call decision and commercial v. non-commercial speech

One very important part of yesterday's decision in the Mainstream
Marketing case is that the court makes clear that its ruling applies
only to commercial solicitation.  The press stories have all noted
footnote 2, where the court expressly did not address the
constitutionality of restricting non-commercial solicitations.  But in
mentioning the court's discussion of the findings about the differences
between the predicted impact of non-commercial and commercial calls, the
media reports I have seen so far have ignored one of the most important
parts of that discussion.  In its introductory section, the court
includes these facts in a list of items that, although helpful to the
decision, are not dispositive.  (Page 9 of the PDF version of the
opinion)  Further in the decision, the court rejects the argument that
the regulation is unconstitutional because it does not regulate
non-commercial calls, in part, because underinclusiveness is not fatal
to a restriction on commercial speech, so long as the regulation
substantially furthers its objectives.  In other words, the fact that
not all intrusions are limited doesn't mean the government can limit
commercial intrusions.  Pages 22-24.  Thus, the fact that the court goes
on to talk about the evidence of distinctions between the impact of
commercial and non-commercial solicitations, pages 26-29, does not mean
that the decision would have to come out the other way in the absence of
those findings.

Here is a link to the decision itself:
http://www.ck10.uscourts.gov/index.cfm)

Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation/litigation.html
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