I think Marty's made good arguments in support of the Denver judge but let me make the other side's arguments just to see where it takes us. First, this is an even stronger case than Rowan because this involves a greater privacy intrusion, namely calls into the home rather than mail. Certainly the lawyer soliciting cases say it makes a difference regarding how "personal" the soliciting is. Second, I think Discovery Network could be distinguished on several grounds. First, it involves a government restriction on speech. Here you have individuals given discretion and choosing to restrict (I have visions of Zelman here -- individual choice less troubling than government). It's akin to government giving people the power to put up no soliciting signs regarding a potentially invasive technology Second, the law here restricts much more of the problem speech than in Discovery Network (40 to 60% apparently). Third, Discovery Network is predominantly about safety and aesthetics -- you can't distinguish commercial speech and non-commercial based on those justifications. This is about privacy in the home with captive audience concerns so the state interest in stopping at least some of the problem is stronger. Moreover there may be some basis for saying the Court sees charitable speech a bit more generously than classic for profit commercial speech though I realize this is tricky. In Martin v. Struthers, the Court spoke of circular distribution door to door as promoting the "poorly financed causes of little people." This could provide support for highlighting the value of charitable speech. Obviously this is a pre-commercial speech doctrine case but I think the Court clearly has room to distinguish Discovery Network if it wants to. It's an interesting issue to say the least. Other thoughts?
Mark Kende
