--- Date: Wed, 18 Feb 2004 10:45:27 -0500 From: "Paul Levy" <plevy@private> To: <declan@private> 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 _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
This archive was generated by hypermail 2b30 : Wed Feb 18 2004 - 22:27:58 PST