The constitutional war over Do Not Call.

The constitutional war over Do Not Call.

The constitutional war over Do Not Call.

The law, lawyers, and the court.
Oct. 2 2003 5:56 PM

The Do Not Call Squall

The constitutional smack-down at the heart of Do Not Call.

The debate over the on-again/off-again national Do Not Call list—created this year by the Federal Trade Commission, invalidated last week by Judge Lee West in Oklahoma, reauthorized by Congress a day later, invalidated again by a Denver judge, and launched nonetheless Wednesday by the Federal Communications Commission (without benefit of the actual list itself, which is still in the hands of the FTC)—boils down to the following thought game: Which should be more absolute, the constitutional right to be left alone in your home or the constitutional right to free speech? The 50 million Americans who signed up for the registry are of the impression that the former value is more compelling. Federal District Judge Edward Nottingham (who signed up for the registry, by the way) believes the latter should trump.

It's always great theater when two entrenched constitutional rights clash. These constitutional smack-downs are usually resolved by delicate balancing tests and mad jurisprudential hairsplitting. There have been dozens of cases over the decades pitting personal privacy against unwanted speech, with courts recognizing that allowing either value to be expressed to the fullest would effectively preclude the other altogether. That is, if the right to speak to unwilling listeners is absolute, there can be no privacy. And if the right to privacy is absolute, there would never be a right to speak unless invited. The Do Not Call problem gives us another chance to think about which right we, as a society, value more.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Advertisement

The Supreme Court is not particularly helpful here, having suggested that each right is absolute. Thus, in a 1970 case involving annoying mail, Rowan v. U.S. Post Office the court said that "in the privacy of the home … the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder." While that sounds pretty unequivocal, in Watchtower v. Stratton, a 2002 case invalidating on free-speech grounds an ordinance barring Jehovah's Witnesses from going door to door, the court lovingly quotes a 1939 case in which hounding folks at home is celebrated as one of the cornerstones of American freedom.

So, OK, Supreme Court, which one is it? Freedom to talk, or freedom not to listen?

Well, here is one way not to think about it: The fact that 50 million Americans signed up for the list is not constitutionally compelling. Nor are the tens of irate letters-to-the-editor complaining about how annoying telemarketers are. It might seem intuitively obvious to you that the right to be left alone is more constitutionally urgent than the right to hear crap in which you have no interest. But the First Amendment exists to protect unpopular speech. Fifty million Americans probably would sign up to ban speeches against the war in Iraq or to bar Carrot Top from ever performing again. And that's why the First Amendment is not about the popularity of the speech in question.

Here is another way not to think about it: The fact that the current Do Not Call list distinguishes between charitable and political calls on the one hand and business calls on the other is constitutionally only semi-interesting. While Denver's Judge Edward Nottingham has a problem with distinctions between political and commercial speech, the courts have been drawing that line for years. Judge Nottingham does not like that some speech is more protected than others, and he certainly has some good company on the high court. But the law does differentiate between commercial speech and other speech. Nottingham relies on a 1993 case, City of Cincinnati v. Discovery Network, in which the court refused to distinguish between a ban on commercial handbills and newspapers in city news racks. But the issue in that case was whether getting rid of a "paltry" 3 percent of the racks holding commercial handbills and leaving intact the equally ugly racks holding newspapers would have a substantial effect on the problem of ugly city news racks. Judge Nottingham misreads Discovery Network to say that the state can never distinguish commercial from political speech if it is trying to solve a problem involving both. The Do Not Call list would stop between 40 percent to 60 percent of the annoying calls to most registered homes. That's not an insubstantial solution, and thus Discovery Network is probably not going to decide it.

Advertisement

Here's one other not-terribly-useful way to frame the debate about Do Not Call: It's not about personal choice. Defenders of Do Not Call argue that signing up to have the FTC block your phone is no different than putting up a "no solicitation" sign to ward off the Jehovah's Witnesses and/or Avon Lady—an act that is abundantly constitutional according to the Supreme Court's 1980 case, Village of Schaumburg v. Citizens for a Better Environment. In fact Reps. Billy Tauzin, R-La., and John Dingell, D-Mich., made that mistake in their statement slamming the Nottingham ruling last week: "Putting your name on the Do Not Call list is no different than hanging a 'no solicitation' sign on your front door," they said. But they are wrong. It's simply not enough to say that individuals have privately chosen to sign up for the government registry—that's the sleight-of-hand the court has used to uphold school vouchers. Here you have a state-administered program in which the state has made determinations about what kinds of speech are permissible and what types may be blocked. There can be no question that free speech is implicated. While the state can certainly step in to block speech under some circumstances, censoring speech just because it's annoying is not traditionally a role we have handed the government.

One interesting template for the Do Not Call debate is the 2000 Supreme Court decision in Hill v. Colorado, upholding a Colorado restriction on abortion protesters approaching women seeking access to abortion clinics by creating an imaginary 8-foot "bubble" of privacy around them. The pro-life counselors, as they were calling themselves, had been in the habit of physically blocking these women, handing them literature, sometimes shouting and quoting Scriptures; a practice the women found harassing and humiliating. The court struggled to balance the right not to listen against the right to persuade on abortion—one of the most important political questions of our age—and decided, rather surprisingly, in favor of the bubble of privacy. That decision was something of an outlier, in that it subdued protesters on public streets on the grounds that sometimes free speech is just ... too much. It also highlighted the fact that some things—like getting an abortion—simply cannot be done with strangers shouting in your ears.

It's not clear to me that Hill offered a terribly compelling constitutional argument. It's not really all that different from banning Carrot Top, actually. But it does suggest that the court worries about speech that interferes with one's very ability to be. The question, then, is whether strangers selling you the Discover Card while you're trying to cook dinner is more akin to the abortion counselors interfering with your abortion or to a Girl Scout selling cookies door to door. Perhaps we could invent a new constitutional test to differentiate the two: Call it the would-you-remember-it-tomorrow test. You'd likely be scarred for months by an abortion protester haranguing you en route to one of the most traumatic procedures of your life. You'll forget the Girl Scout seconds after you close the door.

Of course it's annoying to be called at home. But is it really interfering with your most essential right to be? If it's not, shouldn't we protect free speech, by protecting the fundamental right to annoy each other, while exercising our equally fundamental right to say, "No, you moron. And take me off your list."