States fear no-call disconnect: Court decision could jeopardize listings

DENVER — The federal court battle over the government's "do not call" registry raises the possibility that similar laws in at least 25 states will eventually be thrown out.

If higher courts back a federal judge's ruling declaring the registry program an unconstitutional threat to free speech, consumers will have no refuge from telemarketers under state law, legal experts said Friday.

"Almost all the state lists will be in jeopardy eventually if this is upheld by the higher courts," said Rutt Bridges, chief executive of the Bighorn Center for Public Policy, which helped write Colorado's law in 2001.

Lawsuits are already pending against at least two state programs, including Colorado's, and many states' do-not-call registries have provisions similar to the federal program.

U.S. District Judge Edward Nottingham of Denver ruled Thursday that the federal registry, which the Federal Trade Commission was to begin enforcing next week, violates telemarketers' free speech rights.

The program unconstitutionally exempts unsolicited calls from groups such as nonprofit organizations or politicians, Nottingham ruled. The FTC said it will fight the decision.

If the ruling stands, attorneys for telemarketing groups will almost certainly use it to knock down state programs, said New York attorney Floyd Abrams, a First Amendment expert.

"States are bound by the First Amendment just as much as the federal government is," he said. "State favoritism for charitable and political speech over commercial speech in this fashion very likely violates the First Amendment."

Rex Wilmouth of the Colorado Public Interest Group said his group's national body thinks the registries will be upheld.

"The U.S. Supreme Court has upheld political speech at a far greater protection under the First Amendment than commercial speech," he said.

Attorneys general in Indiana and Colorado, where federal lawsuits are pending against state registries, said Nottingham's ruling has no immediate effect on the state programs.

Indiana's law has survived two lawsuits already. However, Attorney General Steve Carter said the ruling from Denver could be cited in the pending case.

"The telephone privacy laws are no different than an electronic no-solicitation sign," he said. "Just as you aren't forced to let somebody walk into your home and make a commercial pitch, you can't be forced to let somebody use your phone to make that sales pitch."

Colorado Attorney General Ken Salazar said he will continue to defend the state program. "This is a case about residential privacy, not about the First Amendment," he said.

Attorney Robert Corn-Revere, who represents telemarketing groups in Denver lawsuits against the state and federal programs, said principles of Nottingham's ruling can be applied in other cases.

"Each law is going to be somewhat different and we'll have to take a look at the specifics," he said. "Right now, the situation is so fluid it's premature to make any kind of prediction."

Congress overwhelmingly approved a measure Thursday to clarify the FTC's authority to operate the federal registry. The law, which President Bush said he plans to sign Monday, was drafted after a federal judge in Oklahoma said the FTC lacked that power.

Even after Bush signs the legislation, the FTC must win in court for the list to move forward. The national registry is intended to block an estimated 80 percent of telemarketing calls.

Even after Bush signs the legislation, the FTC must win in court for the list to move forward.

What we are witnessing here is the diminution of the checks and balances that is at the core of our government.

That the Executive branch, after signing legislation from the Congress, should have to wait for the approval of the unelected Judiciary is an abuse of power that the Founding Fathers hadn't anticipated.

The unelected Judiciary, in its arrogance, has set itself above the other two elected branches of government and declared itself the final minister of American law. The will of the people be damned.

Notice that the unelected Judiciary itself is free from oversight by the other two elected branches of government. For years the unelected Judiciary has played with American society with impunity, because the Congress has refused to limit the Court's authority.

This telemarketing case shows the result of what happens when one unelected branch of government is allowed free rein over the Constitution to the exclusion of the other elected branches.

It's time the Judiciary was put in its place. Judicial Review is not an instrument for subversion of the people's will. Congress, not the unelected Judiciary, is the voice of the people, and no one in Congress mandated the unelected Judiciary to be the final word on what is law. The Judiciary appointed itself that distinction.

If the uneleced Judiciary claims Judicial Review as its reasoning for its usurpation of power, then it is reasonable to have Legislative review of the unelected Judiciary as well. There's no logical reason for the unelected Judiciary being given a free pass on "active" oversight especially since the unelected Federal Judiciary is under the Constitutional thumb of Congress. That's what the Judiciary Committees in Congress are set up for.

Looks like the constitution needs to be ammended to state that evil businesses don't have free speach. Send them all to hell, who needs jobs anyway? Except of course non profit businesses (charities) and politicians who should be able to speak all the time.

The constitutional guaranteeds of freedom sure get in the way!

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