Judge: Indiana's no-call list doesn't violate free speech

By The Associated Press

07.08.02

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EVANSVILLE, Ind. — A judge has rejected arguments by a telemarketer that Indiana's no-call list is an unconstitutional infringement on free speech.

The ruling is the first by a judge regarding the list, which went into effect Jan. 1. More than 1 million Hoosiers have joined the list in an attempt to avoid unwanted calls from telemarketers.

Evansville-based Kirby vacuum distributor Steve Martin filed suit against the law, also claiming that it provided unfair exemptions to select groups like insurance and real estate agents and newspapers.

Vanderburgh Circuit Court Judge Carl Heldt issued a ruling July 5 in which he disagreed with Martin's contention that his free-speech rights had been violated.

"Although the First Amendment imposes strict limitations on government actions that interfere with the free exchange of ideas, the First Amendment does not stand as an impediment to private decisions to give audience to certain types of speech while avoiding others," the ruling said.

In its lawsuit, filed Jan. 9, Martin's company said it was not selling anything over the phone by making calls to offer a rug-shampooer demonstration.

Heldt said that even in using the phone to set a time for a demonstration, calls made by Martin's company produced enough information to be considered sales calls under the law.

Heldt also declared Martin had no cause to claim that his company's constitutional right to equal protection was violated because the Indiana law exempted calls by insurance agents, real estate agents, charities and newspaper subscription solicitors.

Charitable organization calls are required under the law to be made by a volunteer or a member of the organization and are protected under the law in part because charitable soliciting is not "pure commercial speech," the judge ruled.

State Attorney General Steve Carter, whose office maintains the no-call list, praised the ruling.

"I have said all along that I don't think the Constitution would require that people be defenseless against the annoying ring of the telephone," Carter said.

Attorneys for Martin said they were reviewing Heldt's decision.

"Right now, as far as the appeals issue is concerned, that's being discussed with our client," attorney Doug Walton said.

A federal lawsuit filed against the no-call list in April is awaiting court action.

In that case organizations representing state police, disabled veterans, police chiefs and school prayer advocates argue their First Amendment rights are violated by the law.

The state law, they claim, bars them from speaking for their causes, raising money and contacting past supporters.

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