December 1998

Dear Sirs:

In their recent article "Prior Restraint and Regulation of Outbound Telemarketing," C@LL CENTER Solutions™, October 1998, p. 144, Messrs. Copilevitz and Raney do a disservice to your readers by giving an incomplete and biased picture of First Amendment rights in this country. Anyone who bases business conduct on the theories in the Copilevitz and Raney article will likely have need of an attorney and should find one with better arguments than the authors.

The article and its arguments are fatally flawed by not clearly pointing out the substantial difference between commercial speech and non-commercial speech -- an important distinction in this country's jurisprudence. Plain and simple, the U.S. Supreme Court has repeatedly said commercial speech does not enjoy the same protections of non-commercial speech. Mr. Copilevitz himself argued this distinction before the Supreme Court in Riley v National Federation of Blind, 487 US 455, 471 (1988). While prior restraints are indeed "abhorrent" to the First Amendment, the U.S. Supreme Court has also placed the highest level of protection on one's solitude in the home. "The State's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society." Carey v Brown, 447 US 455, 471 (1980).

Requiring a telemarketer who has invited himself into the confines of one's home to stop his solicitation when asked to or to seek permission to make a solicitation is not prior restraint. In Schneider v. State, 308 US 147, 162-163 (1939), for example, the Supreme Court recognized a right to distribute literature only "to one willing to receive it".

The "prior restraint" argument the authors advance, like many other rejected arguments, has its proponents in some ivory towers of academia and law reviews, but it will not find a welcome reception in the vast majority of courtrooms. Indeed, many law review articles still insist that numerous existing court decisions on the TCPA and telemarketing restrictions are wrong.¹  But every Federal appeals court to review these questions has ruled otherwise. These articles make interesting reading and food for thought, but their arguments have ultimately and repeatedly failed in the only place that counts - in court.

Some of this nation's finest and most thought-provoking court decisions have addressed the issue of free speech.²  I encourage individuals who believe their free speech rights are at issue to read some of these cases and decide for themselves.

Robert Biggerstaff
Interim President, The NAMED, Inc.

¹ See e.g., Statutory Interpretation of Federal Jurisdiction of the Private Right of Action Under The TCPA, Fabian D. Gonell, Fordham Law Review, April 1998, [66 FDMLR 1895]; The First Amendment Status of Commercial Speech: Why the FCC Regulations Implementing the Telephone Consumer Protection Act of 1991 Are Unconstitutional, Deborah L. Hamilton, Michigan Law Review, June 1996 [94 MILR 2352].

² Carey v Brown, 447 US 455 (1980); Stanley v. Georgia, 394 US 557 (1969); Rowan v United States Post Office Dept., 397 US 728 (1970); FCC v Pacifica Foundation, 438 US 726 (1978); Payton v New York, 445 US 573 (1980); Gregory v Chicago, 394 US 111 (1969); Virginia Pharmacy Bd. v Virginia Citizens Consumer Council, Inc., 425 US 748 (1976).

William Raney replied:

It is well settled that commercial speech enjoys protection under the First Amendment. While this protection is not as great as that provided "pure" or non-commercial speech, government may not silence commercial speakers with impunity.

Government may regulate commercial speech only to further substantial government interests and may do so in a manner which reaches no further than necessary to accomplish the given objective. Central Hudson Gas, 447 US 557 (1980).

Furthermore, recent court decisions have indicated that prior restraints of commercial speech will be subjected to even higher scrutiny. See New York Magazine v Metropolitan Transportation Authority, 136 F. 3d 123 (2nd Cir. 1998).

It is our argument that these statutes do not further a substantial government objective in a manner which reaches no further than necessary. We believe that the consumer is in the best position to determine when to end a phone call and has the means readily available to do so. Government rules which impose vague restrictions prohibiting callers from responding to consumers create unconstitutional prior restraints upon activity protected by the First Amendment, even if that activity is commercial telemarketing.

William E. Raney
For the Firm