One Last (?) Thought About the Do-Not-Call Decision

As noted by a poster, and others, I should really have noted the extent to which the Judge Nottingham's decision relies not just on the R.A.V. decision, but also on the more closely apposite Cincinnati v. Discovery Network decision. That case struck down an attempt by the city to ban newsracks with commercial handbills, but not those with newspapers (which included both commercial and political speech), on the grounds it would help beautify the city. The case is distinguishable: the Court found the rule didn't materially aid the city's objective, since the handbill racks were only about 3% of the city's total. In the do-no-call case we're looking at about 50%, so as Judge Nottingham observed if the issue were only “numerical underinclusiveness” then the do-no-call rule survives. But, the Judge held,

In Discovery Network, the Supreme Court recognized content discrimination as the primary flaw in the city's regulation of news racks. The city's regulation failed under the First Amendment because the regulation distinguished between commercial and noncommercial speech, despite the fact that there was no evidence that the commercial use of news racks was more harmful to city beautification than other uses of news racks. When a regulatory regime is pierced by content-based exemptions and inconsistencies in the government's explanation as to how the regime advances a substantial interest, it must fail under the First Amendment. Simply stated, the government's practice cannot be at odds with the asserted government interest. The regulation cannot distinguish among the indistinct, permitting a variety of speech that entails the same harm as the speech which the government has attempted to limit. Here, plaintiffs argue that the registry does not materially advance the FTC's interest because the FTC has made a content-based distinction between commercial and charitable solicitations for reasons unrelated to its interest in privacy.

… Realizing that its interest in privacy does not justify the distinction between commercial and noncommercial speech, the FI'C attempts to justify the distinction by advancing several other arguments. First, the FTC argues that nonprofit corporations and political fund-raisers are less likely than for-profit entities to engage in abusive practices because the consumer is both a potential donor and a potential voter or volunteer for the charity or political party. Distinguishing between commercial and noncommercial speech may be proper when it bears a relationship to preventing commercial harms, such as fraud. (citations omitted)

It isn't true, as one Representative said yesterday, that “50 million Americans can't be wrong.” They can be, and that's one of the reasons for the Bill of Rights. But 50 million Americans, a determined Congress, and unsympathetic plaintiffs are likely to motivate a reviewing court to see if there are any good excuses to uphold the statute. This is why I think the legislative record in Congress may matter. And, if you squint at it just right, it might provide what is needed.