Editorial: Free speech not an issue for call list

Friday, Sept. 26, 2003 | 4:21 a.m.

WEEKEND EDITION: Sept. 28, 2003

More than 50 million people have signed the national Do Not Call list to protect themselves and their families from intrusive telemarketers. In June the legislation creating the list was overwhelmingly approved by Congress and President Bush signed it into law. Last week Congress fended off an attack by a federal judge, who ruled that Congress had not explicitly given the Federal Trade Commission authority to oversee the list. Congress immediately, and again overwhelmingly, approved a bill giving the authority to the FTC and President Bush vowed to sign that bill before the list takes effect Oct. 1.

But this wouldn't be America if people, even nettlesome telemarketers, could be silenced that easily. Just hours after Congress dispensed with the FTC issue, a federal judge in Denver ruled the list unconstitutional. The judge, Edward W. Nottingham, ruled that the law creating the list is flawed under the First Amendment because it discriminates against one form of speech. The list blocks only cold sales calls, which are those from businesses that residents have not dealt with before. It allows calls from businesses that have previously traded with the resident and it allows calls from pollsters, politicians and nonprofit groups. The list does not apply equally to all speech, the judge ruled.

This is a vexing ruling for us because we are strong supporters of free speech and do not want to see any weakening of this vital freedom. Yet we also support the Do Not Call list.

So how do we reconcile this dilemma? First, we draw a distinction between commercial speech and other forms of speech. Commercial speech is subject to reasonable restrictions, such as the prohibition of tobacco ads on TV. Additionally, the First Amendment does not extend as unequivocally onto private property as it does onto public property. The interior of one's home is not a public forum. Homeowners, therefore, should have the right to regulate speech within their homes. And they should be able to turn to the government for help in this when it comes to telephones, which are a government-regulated utility.

We also can see the logic in regarding this as strictly a privacy issue -- and not a speech issue at all. People who leave advertisements on your door knob are tolerated. But we wouldn't tolerate someone, without an invitation, walking through our front door to make their pitch. An electronic invasion of privacy is no different and people have a right to protect themselves from it.