I think the fact of a "private intermediary" does
not eliminate or otherwise affect the content-discrimination question.
This same confusion arose in Denver Area. In that case,
some may recall, Congress gave cable operators the right (which previously had
been denied them) to prohibit nudity and other sexually oriented speech by
stations braodcasting over the cable network. Because the restriction
itself would be imposed only if "chosen" by independent, private
"intermediaries" (namely, the cable operators), the litigation and decision in
the D.C. Circuit were all about whether the cable operators' decisions would
constitute state action. In the Supreme Court, however, the state action
question vanished, because the SG conceded, and the Court unanimously
agreed, that the congressional enactment was (of course) itself state
action, and was a content-based shift of speech rights from one set of private
parties (stations) to another (cable operators). The Court's decision
therefore turned on whether Congress could permissibly single out speech on the
basis of certain content, and on that basis give "private intermediaries" a new
speech right against other private parties.
As an analogy, imagine in Zelman itself
that the vouchers could be used only at Catholic schools, or only at schools
that filter their compuiters (cf. ALA), or only at schools that do not
teach theology (cf. Davey v. Locke). Such restrictions might or
might not be constitutional; but one could not (fruitfully) argue that the
constitutional problems disappear by virtue of private intermediary
choice.
Accordingly, in the do-not-call case, if consumers
could "pick from a menu of different kinds of calls that they would like to
ban," I think the constitutional problem would be far less serious -- indeed,
the case would look a lot like Rowan itself.
----- Original Message -----
From: "Parry, John" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Monday, September 29, 2003 12:51
PM
Subject: Re: Do Not Call - the constitutional
question
> and the other establishment clause cases that turn on the private
> intermediary who has a role in implementing government policy.
>
> If those cases are on point or at least relevant (I incline toward
> relevance but not on-pointness), is it still crucial that the do not
> call list is limited to commercial speech?
>
> If so, then if people could pick from a menu of different kinds of calls
> that they would like to ban, would the program no longer raise speech
> concerns?
>
>
> John T. Parry
> Associate Professor of Law
> University of Pittsburgh School of Law
> 3900 Forbes Avenue
> Pittsburgh, PA 15260
> 412-648-7006
>
>
> -----Original Message-----
> From: Discussion list for con law professors
> [mailto:[EMAIL PROTECTED] On Behalf Of Robin Charlow
> Sent: Monday, September 29, 2003 12:44 PM
> To: [EMAIL PROTECTED]
> Subject: Re: Do Not Call - the constitutional question
>
> [EMAIL PROTECTED] 09/29/03 11:57AM wrote:
> I wonder if others are concerned, as I am, about the government
> serving as the agent of individuals' preferences and prejudices about
> speech they like and dislike. . . . I understand that the government
> does serve as the agent of individual rights and interests -- e.g. the
> right to property (trespass), to quietude (noise ordinances, et al) . .
> . . But it is
> nevertheless a troubling posture for government to be in, especially if
> government's purpose would be to facilitate people's "right" not to hear
> . . . .
>
> Might the government in this case be protecting individuals against
> something that is akin to trespass? That is, is an unwelcome telephone
> call significantly different from the caller walking into your vestibule
> to convey his/her speech message? I realize there are differences (eg,
> a physical intrusion may raise concerns about physical safety), but if
> the argument is that, because it is speech, it is inappropriate for the
> government to protect you against it even in the privacy of your home,
> it's not clear why trespass-like considerations shouldn't count on the
> side of government regulation.
