The Federal No-Call List: Freedom of Speech?
December 29, 2003
A federal judge in Denver ruled recently that the federal no-call list is unconstitutional because it limits free speech. Specifically, the September 25th ruling by Judge Edward Nottingham held the no-call list unconstitutional because of the distinction it makes between for-profit and not-for-profit enterprises. A few days earlier, a federal judge in Oklahoma found that the Federal Trade Commission lacked authority to implement the list, reserving such authority to the Federal Communications Commission which regulates most aspects of telephone communications.
In one of those strange twists that can only occur in a tripartite form of government such as ours, at substantially the same moment that Judge Nottingham was rendering his ruling, the House had voted 412 to 8, and the Senate 95 to 0 to approve a bill making clear that the FTC was empowered to enforce the no-call list.
Nearly 51 million people have already signed up for the list which was slated to be implemented beginning October 1st. I, for one, had welcomed its arrival, preferring my peace and quiet both quiet and peaceful.
What judge Nottingham decided was that in allowing charitable organizations to solicit, and barring for-profit organizations from the same privilege, the government had overstepped its authority. The way the no-call list was devised “…entangl[ed] the government in deciding what [kind of] speech consumers should hear…” Nottingham wrote.
We all know by now (Kobe-watchers, are you listening?) that the right to freedom of speech is guaranteed under the First Amendment to the U.S. Constitution. That Amendment holds, in relevant part, that “Congress shall make no law…abridging the freedom of speech…” Note here that I’ve excised the relevant section of the Amendment, but the entire First Amendment amounts to only 46 words (and, of those, 20 of them are prepositions, articles or conjunctions, leaving a scant 26 “substantive” words). A small