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Weekly UpdatesOn the other hand, for at least 400 years, a man's home has been recognized as his castle and fortress, (49) and as such, privacy within the home has been enhanced by the common law and the Constitution. (50) The Supreme Court has worked to shape a right to privacy emphasizing the importance of privacy within the home. (51) The Court has referred to the home as "a personal sanctuary that enjoys a unique status in our constitutional jurisprudence." (52) The Court has held that the ability to avoid intrusions is a special benefit that all citizens enjoy within their walls. (53) Individuals, therefore, are not required to allow unwanted speech into their homes, and further, the government may protect this freedom. (54) The Court has also added that "[t]he unwilling listener's interest in avoiding unwanted communication ... is an aspect of the broader 'right to be let alone.'" (55) However, it is important that we do not use this right to be left alone within our homes as an excuse to ban constitutionally protected commercial speech.
After the enactment of the national do-not-call registry, several telemarketing companies sought to have the Act overturned on constitutional grounds. In one ensuing case, the Tenth Circuit held that the registry did not violate the First Amendment. (56) The court explained that "four key aspects of the do-not-call registry convince us that it is consistent with First Amendment requirements." (57) First, it restricts only core commercial speech. Second, it targets speech that invades the privacy of the home. Third, it is an opt-in [opt-out] (58) program, offering the choice of whether or not to restrict calls to the consumers. Fourth, it materially furthers the government's asserted interest. The Supreme Court subsequently denied certiorari. (59)
After deciding that the speech in question was commercial speech, the court in Mainstream Marketing used the four-part analysis set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission to determine whether the registration passed constitutional scrutiny. (60) For a commercial speech regulation to pass constitutional muster, it must (1) concern lawful activity, and not be misleading; (2) possess a governmental interest that is "substantial"; (3) directly advance the state's interest; and (4) not be more extensive than necessary to serve the asserted interest. (61)
Before deciding the constitutionality of a specific commercial speech regulation, it is necessary to determine whether or not the commercial speech at issue falls within the First Amendment's protection. The government may ban, without constitutional objection, any commercial speech that is (1) more likely to deceive the public than to inform it, or (2) related to illegal activity. (62) Consider two extreme examples illustrating commercial speech that would not fall within the protection of the First Amendment. A person proposing to sell illegal drugs to another is not considered lawful activity. This "commercial speech" does not receive any First Amendment protection, and the Central Hudson analysis would cease immediately. Similarly, a Web site posing as a charity soliciting donations to help hurricane victims, when it is actually a college student trying to supplement his beer fund, would be considered misleading. This misleading expression would also fail to receive any First Amendment protection, and likewise any further Central Hudson analysis would be unnecessary.
In the second prong, the inquiry is whether the asserted governmental interest is substantial. In Central Hudson, the Commission offered two state interests, both of which were deemed substantial by the Court. (63) The first was the state's interest in conserving energy, and the second was the state's concern that utility rates be fair and efficient. (64) While the Supreme Court's definition of a "substantial interest" could require a law review article of its own, suffice it to say that the definition is an arbitrary decision that should take into account the totality of the circumstances, and will not likely be at issue. In fact, there have been two cases decided by the Supreme Court using the Central Hudson test since 2000. Both cases skipped over the issue of whether the state's interest was substantial and were decided only on the third and fourth prongs, presumably in an effort to avoid articulating the standards to meet the "substantial interest" requirement. (65) In an almost humorous attempt at avoidance, Justice O'Connor's opinion in Thompson v. Western States Medical Center explains the government's position that its asserted interest was substantial before changing terminology and referring to the government interest as "important." (66) She continues to find that the regulations, even assuming the asserted interest was substantial and the regulations directly advanced that interest, did not pass the fourth prong of the Central Hudson analysis. (67) This leaves one to speculate that a "substantial" interest lies somewhere in between an "important" interest and a "compelling" interest; (68) and further, that the Court would rather overturn a regulation for some other reason than to take on the task of explaining why the asserted interest was not "substantial."
The third and fourth prongs, which are only considered if the first two inquiries "yield positive answers," focus on the relationship between the state's interests and the regulation. (69) The third prong requires the regulation to directly advance the asserted governmental interest. (70) For example, if the state's asserted interest is in conserving energy, a ban on any advertising that promotes the use of electricity would directly advance the state's interest of energy conservation. (71) The fourth prong requires that the regulation be no more extensive than necessary to serve that interest. (72) Using the example above, a complete ban might include suppression of information about electric services or devices that would cause no net increase in total energy use. While the regulation directly advances the state's asserted interest, it may be more extensive than necessary by regulating information that need not be regulated. (73) The burden of proof lies on the regulating body to show that a more limited restriction would not adequately serve the asserted interest. (74)
In Mainstream Marketing, the government asserted that its interests in protecting the privacy of individuals in their homes, and protecting consumers against the risk of fraudulent and abusive solicitations were both substantial, and the court agreed. (75) The court paid particular attention to the importance of privacy in the context of the home, reiterating the sentiment that "individuals are not required to welcome unwanted speech into their own homes." (76) Moreover, in concluding that the interest in preventing fraudulent and abusive sales practices was also substantial, the court explained that "[t]he First Amendment ... does not prohibit the State from insuring that the stream of commercial information flows cleanly as well as freely." (77)
The court succinctly summarized its position on the last two prongs of the Central Hudson test in two sentences:
Fortunately, more substance is given to these conclusions in the following two sections of the opinion, giving us material to use when looking toward the future.
The telemarketers argued that the do-not-call list was underinclusive because it applied only to commercial calls, and did not apply to charitable and political callers, thus seriously undermining its effectiveness. (79) The court, however, explained that as long as the regulation materially advanced the asserted state interest, underinclusiveness by itself would not render the regulation unconstitutional. (80) The court went on to explain that commercial calls are the "most to blame" for the problem asserted by the government. (81) The number of complaints regarding unwanted commercial calls is far greater than those regarding political or charitable organizations. (82) Furthermore, commercial callers bear more blame for deceptive and abusive practices. This is seemingly due to the incentive to engage in such practices when a purely commercial transaction is at stake. (83)
An average consumer who is not registered on the do-not-call list can expect to receive 137 unsolicited calls per year. (84) At the time Mainstream Marketing was decided, more than fifty million telephone numbers were registered, precluding more than 6.5 billion phone calls annually. (85) Regardless of whether or not the list was underinclusive, the court found that it materially advanced the government's goals--"reducing intrusions upon consumer privacy and the risk of fraud or abuse"--by restricting calls that cause these problems. (86)
The registry was held to be "narrowly tailored because it does not overregulate protected speech; rather, it restricts only calls that are targeted at unwilling recipients." (87) The court focuses on three main points in coming to this conclusion. First, opt-out (88) restrictions are less restrictive than laws that directly prohibit speech because the restrictions are based on an individual's private choice. (89) Second, the registry only restricts one avenue through which solicitors can communicate with consumers who have registered for the list. (90) Third, the telemarketers' proposed alternatives could not serve the state's asserted interest with equal effectiveness. (91)
The court cites a plethora of Supreme Court cases holding that opt-out restrictions are less restrictive than laws that prohibit speech directly, including cases that have rejected direct prohibitions of speech on the grounds that opt-in regulations would have been a less restrictive alternative. (92) Thus, the do-not-call registry does not itself prohibit any speech, but rather it blocks "unwanted intrusions" into the homes of consumers who have signed up for the list. (93) To clarify, the registry "permits a citizen to erect a wall ... that no advertiser may penetrate without his acquiescence." (94)
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