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"The Judge Made a Bad Call"--A Commentary by Prof. Akhil Amar


(This essay originally appeared in the October 1, 2003, edition of the Los Angeles Times.)

The Judge Made a Bad Call
Telemarketer registry does not violate the 1st Amendment.
By Akhil Reed Amar, Southmayd Professor of Law

Last week, when U.S. District Judge Edward W. Nottingham ruled that the government could not shield citizens from unwanted commercial telephone calls, he admitted that millions of Americans had made their preferences clear by adding their names to the "do-not-call" registry, and he also admitted that marketers had no general right to impose upon a captive audience.

But the problem, said the Denver judge, is that the government rules creating the registry were "content-based," meaning they made a distinction based on the topic of the calls. The rules allow charities and political organizations to call phone numbers on the registry, but these numbers are off-limits to commercial telemarketers. That content-based discrimination, the judge said, violates the 1st Amendment.

Really?

True, the Supreme Court has sometimes spoken as if the Constitution features a near-absolute ban on content-based distinctions. But there is also a vast amount of case law, everyday practice and constitutional logic on the other side -- more than enough to justify a reversal of Nottingham's ruling. American law is, and always has been, rife with content-based distinctions. And rightly so.

Consider this: A nonprofit organization dedicated to science or education qualifies as a charity and receives benefits in the tax code. A nonprofit that teaches terrorism, however, does not. This is a content-based rule.

Accreditation laws requiring all elementary schools -- public and private -- to teach the three Rs favor those subjects over all other content. Government may post billboards urging citizens to give to charity or to vote, even though these billboards are plainly content-laden.

The very phrase "freedom of speech" came into Anglo-American law via "freedom of speech and debate" in legislative assemblies. But legislatures have always featured content-based restrictions. Today's topic in the House of Representatives may be deemed to be Iraq; legislators orating on other topics will be out of order.

And some kinds of expression may never be in order on the legislative floor, which is reserved for political speech as opposed to commercial solicitations. This proves that government can favor political discourse, contrary to Judge Nottingham.

Indeed, the 1st Amendment itself favors those who assemble to "petition the government for the redress of grievances" over those who meet for any other purpose. This too is content-based discrimination. Interestingly, Nottingham noted that the Supreme Court had consistently ruled that political discourse deserved more protection than commercial advertising. If judges may properly say that political speech is of higher value than commercial speech, why can't Congress and federal regulators do the same?

The real nub of the 1st Amendment is that government should not discriminate on the basis of political viewpoint. A legislative moderator who muzzles one side of a debate while unleashing the other violates the essence of free speech. Though the government may run ads urging Americans to vote, it may not run ads urging us to "Vote Republican." The government itself gives nonprofits tax breaks or urges you to donate to nonprofits, but it couldn't do it only for nonprofits associated with the Democratic Party.

Nothing in the do-not-call registry favors liberals or conservatives, Republicans or Democrats, incumbents or challengers. Nor does the registry come between willing speakers and listeners. It shields only known unwilling listeners whom speakers have no general right to hector. On this point, the registry differs decisively from the main case relied on by Nottingham, which concerned a Cincinnati ordinance that the Supreme Court invalidated in 1993. That ordinance regulated newsstands in a manner that abridged the ability of commercial advertisers to reach a willing audience.

Though the registry gives political speakers of all stripes a right to call where commercial speakers may not, this should be a permissible nod to the special importance of political speech in a democracy.

So the new registry does take sides in a way. It privileges political discourse. So does the 1st Amendment.


Akhil Reed Amar teaches constitutional law at Yale and is the, author of "The Bill of Rights: Creation and Reconstruction" (Yale, University Press, 2000).