AP reports that Bush will (duh!) sign the revised Do Not Call List legislation. But of course, there's another court involved.... and, no, it's NOT the 9th Circuit.
U.S. District Judge Edward W. Nottingham in Denver blocked the list, handing another victory to telemarketers who argued the national registry will devastate their industry and lead to the loss of thousands of jobs.
Nottingham said the do-not-call list was unconstitutional under the First Amendment because it does not apply equally to all kinds of speech, blocking 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," Nottingham wrote.
What to do? ... Can't just pass another law saying the 1st Amendment doesn't apply.
Or can you? How about a revised FTC authorization allowing the DNC list, where the customer chooses the exemptions from a set. Charities OK? Check. Politicians not OK? No check. This takes the speech selection out of the government hands and puts it into the citizen's hands, removing all 1st Amendment problems.
The current list would be assumed to have all the exemption boxes checked, allowing its immediate use.
Now, is this too big a management problem for the FTC? It needn't be. Set up a few 800-numbers for the choices and use caller ID for the phone number. Call 1-800-555-1000 to block politicians and 1-800-555-1001 to allow them. Etc. A voice menu system would also work, but the above system is nicely brain-dead simple. I guess a web site would also be a good idea, but this is one case where phone entry makes more sense.
One should rarely, and perhaps never, offer a definitive opinion about a court decision without reading it first. This happens all too often. So the following is a gut reaction, not a definitive opinion, and I am carefully labeling it as such.
With that caveat, I don't think that the court's reasoning sounds persuasive. I have worked on First Amendment issues involving similar distinctions, and I suspect the judge is not analyzing the matter correctly.
I'll probably post something on my blog about this once I have had a chance to read and digest the opinion.
Posted by: Patterico at September 26, 2003 02:08 PMLooks like the 10th Circuit may agree with me.
Anyway, I like your solution. Anyone who would sign up to prevent charities from calling them is unlikely to contribute anyway. I don't see the downside.
What the trial court seems to have overlooked is the fact that people *asked* to be put on this list.
Posted by: Patterico at September 26, 2003 10:24 PM