Friday, September 26, 2003

Rights and Reason: Do Not Call Battle Rages On

Only eight House members voted against yesterday's congressional decision to grant the FTC explicit authority to implement the national Do Not Call registry. A number of reactionary bloggers posted the phone numbers of the eight members—along with the Oklahoma judge that issued the ruling prompting the congressional action—demanding the people harass said members for failing to adhere to mob rule. National Review Online's Jonathan Adler was a rare voice of reason in the rush to demonize the dissenters:
Rather than harass those who voted against creating a federal "do not call" list, I'm inclined to recognize these members of Congress as profiles in courage for recognizing that this sort of thing is simply not a proper responsibility of the federal government. There are voluntary, albeit imperfect, private do not call list, as well as numerous services and technologies that can block unsolicited calls. It is rare for a member of Congress to stand up and say a popular initiative is beyond the scope of federal power. On such rare occasions, we should applaud those who stand on such principle.
Shortly after Congress essentially mooted the Oklahoma judge's ruling, another U.S. district judge sitting in Denver ruled the Do Not Call registry unconstitutional under the First Amendment. I have not yet reviewed the full text of the judge's opinion, but the gist of it as I understand it is that becaue the FTC requires commercial telemarketers, but not charitable or political telemarketers, to adhere to the registry, the FTC is unconstitutionally favoring one category of speech over another. Because the "governmental interest" here is supposed to be protecting privacy, there is no basis for distinguishing commercial and noncommercial speech. An unsolicited caller taking a poll violates the listener's privacy just as much as a caller selling consumer products.

This point appears lost on Congress and the FTC's somewhat hysterical backers. Equally lost is the fact that Congress previously gave the FCC explicit authority to create the Do Not Call registry, and that when they properly decided not to exercise that authority, the FTC simply did it on its own without authorization. I guess this is what you'd call "competing governments" theory in practice.

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