Federal appeals panel upholds state's telemarketing curbs

By The Associated Press

08.04.01

Printer-friendly page

LITTLE ROCK, Ark. — A federal appeals court panel ruled July 31 that Arkansas can continue to ban persistent telemarketers, upholding a law that directs solicitors to end their pitches when their targets say they're not interested.

Members of the three-judge panel said they, too, are bothered by telemarketers and let the 2-year-old law stand.

The National Federation of the Blind in Arkansas and Larry Wayland, a blind member of the group, challenged the 1999 law, saying it violated their constitutional right to free speech. The state said the law only protected the privacy rights of individuals in their homes.

The 8th U.S. Circuit Court of Appeals in St. Louis disagreed with both sides, but said the state could prosecute solicitors if they didn't accept that "No" means "No."

"When government cuts off debate by decreeing that a dialogue must end, it is regulating speech," the panel wrote. "The statute's prohibition may be valid, but only if it withstands First Amendment scrutiny."

While the U.S. Supreme Court has held that charity fund-raising involves speech fully protected by the First Amendment, limits can be placed if they are narrowly drawn and serve a strong interest, the 8th Circuit panel said.

The appeals panel said the law was valid because it did not impose a prior restraint and benefited people who "lack the resolve" to hang up in a caller's face.

"Our own experience suggests that most households in today's society are plagued by a flood of unwanted telephone solicitations," the panel wrote. "We are unwilling ... to second-guess the Arkansas Legislature's judgment that many citizens have difficulty dealing with these intrusions."

The law says that if the people called indicate that they don't want to hear about the charity, goods or services offered, "the caller shall not attempt to provide additional information during that conversation about the charity, goods or services."

Violating the law is a misdemeanor and an unfair trade practice.

The appeals panel also rejected the blind group's claim that residents have other ways to protect themselves from unwanted calls, such as unlisted telephone numbers, answering machines or Caller I.D.

The law's "only impact is to end solicitation calls to unwilling residents who otherwise would not hang up," the court wrote. "It does not foreclose other forms of solicitation aimed at those unwilling residents. … It only imposes a restraint — requiring a caller to end a conversation — after the homeowner has expressed an unwillingness to listen."

Related

N.J. lawmaker targets telemarketers
Assemblywoman proposes legislation requiring companies to abide by mandatory 'do-not-call' list or face $2,000 fine for each unauthorized call.  01.10.01

Groups sue Indiana over 'no-call' list
Four nonprofits claim law creating list of phone numbers that are off-limits to telemarketers violates free speech, association.  04.13.02

Telemarketers battle static from federal regulators
By Douglas Lee Congress again takes aim at unpopular industry that is already overburdened.  06.27.00

Telemarketers scramble to comply with states' no-call lists
Texas, Colorado laws go into effect this week despite claims such measures violate free speech.  07.03.02

Judge: Indiana's no-call list doesn't violate free speech
The 'First Amendment does not stand as an impediment to private decisions to give audience to certain types of speech while avoiding others,' state court says.  07.08.02