Wednesday, December 07, 2005
Eighth circuit court of appeals upholds North Dakota charitable telemarketing do not call list law that restricted paid contract telemarketers 033848P.pdf 12/07/05 Fraternal Order of Police et al v. Wayne Stenehjem U.S. Court of Appeals Case No. 03-3848 and No. 04-1620 and No. 04-1619 District of North Dakota District of North Dakota Allowing employeee or volunteer solicitors and not allowing outside paid callers was content neutral; Allowing outside agencies to advocate but not solicit funds also content neutral; Do not call regulations met Ward v. Rock Against Racism, 491 U.S. 781 (1989) test as Eighth Circut Court had earlier applied to to phone solicitations regulations, following the Supreme Court case Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 636 (1980) and Nat’l Fed’n of the Blind of Arkansas, Inc. v. Pryor, 258 F.3d 851, 855 n.3 (8th Cir. 2001) The test appropriate for regulation of professional charitable solicitation is derived from Village of Schaumburg 444 U.S. 620, 636 (1980). This is an intermediate level test, according to Nat’l Fed’n of the Blind of Arkansas, Inc. v. Pryor, 258 F.3d 851, 855 n.3 (8th Cir. 2001). Court finds significant interest in protecting home privacy from unwanted solicitation calls. "The overall problem is the intrusion on residential privacy caused by unwanted telephone solicitation. We are satisfied that the Act furthers the state’s interest in preserving residential privacy." ...Because the Act prohibits only calls to unwilling residents in their homes, we hold that the Act is narrowly tailored to serve the government’s substantial interest in protecting residential privacy. Because this narrowly drawn, content neutral statute does not entirely foreclose any means of communication, we are satisfied that the Act is sufficiently tailored to pass constitutional muster. Although the Act restricts charitable solicitation, it leaves open several alternative channels of communication. Accordingly, we conclude that the Act does not substantially limit charitable solicitation. Eighth Circut adds on comment to telemarketers' complaint that the law is overbroad When North Dakota citizens register on the do-not-call list, they choose to exclude telephone solicitation from their homes. The registrants have decided that the Act’s banned phone calls intrude on their residential privacy. Further, unknown charities will be treated the same as the appellees. Dissenting Judge Heany, applies a discrimination analysis to conclude law does not satisfy its own objectives and merely singles out paid callers: First, the Act is overly restrictive...The regulation prevents potentially willing listeners from engaging in discourse about charitable contributions....the Act is underinclusive. A law is underinclusive, and therefore not narrowly tailored, when it discriminates against some speakers but not others without a legitimate neutral justification for doing so. See City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429-30 (1993). It remains unclear, then, why the government has restricted the charitable speech of an unknown percentage of callers that invade residential privacy when so many other groups may intrude upon that privacy, thus diminishing the credibility of the government’s rationale for restricting telefunders’ speech. ...North Dakota has failed to demonstrate that its ban on telefunders’ calls will restore, or even significantly improve, residential privacy. Therefore, (Judge Heaney) would affirm the district court and hold that North Dakota’s direct and substantial limitation on charitable speech cannot be sustained because, although it serves a sufficiently strong, subordinating interest that the state is entitled to protect, it is not narrowly drawn to serve the interest.
Posted by stan_sipple at 10:10 PM