Respondents Brief — Bellotti v. Planned Parenthood League of Massachusetts, Inc.

Otfice-Supreme Court, U.S,

Jy FILED

A AUC 21 1984

CLERK

IN THE

Supreme Court of the United States

Ocroser Term, 1984

FRANCIS X. SELLOTTI,

As He Is ATTORNEY GENERAL FOR THE

COMMONWEALTH OF MASSACHUSETTS,

PETITIONER,

v.

PLANNED PARENTHOOD LEAGUE

OF MASSACHUSETTS, INC.,

RESPONDENT.

On Petition for a Writ of Certiorari to the Supreme Judicial

Court of the Commonwealth of Massachusetts

RESPONDENT'S BRIEF

IN OPPOSITION TO CERTIORARI

Perer B. Evus*

Davi J. Se1pp

Fo.iey, Hoac & ELiotr

One Post Office Square

Boston, Massachusetts 02109

(617) 482-1390

Geracp L. NEUMAN

3400 Chestnut Street

Philadelphia, Pennsylvania 19104

Counsel for Respondent

* Counsel of Record

Blanchard Press, Inc., Boston, Mass. — Law Printers (617) 426-6690

(,>

QUESTION PRESENTED

1. Did the Massachusetts Supreme Judicial

Court correctly determine that a Massachusetts

statute prohibiting charitable solicitation by

paid telephone operators, while permitting all

commercial solicitation over the telephone and

charitable solicitation by volunteer telephone

operators, wasS not narrowly drawn to advance

the asserted state interest in protecting

residential privacy and was therefore facially

unconstitutional under the First Amendment?

TABLE OF CONTENTS

QUESTION. PRESENTED... ...4: ba Gis kl ae eee 1

STATEMENT OF THE CASE... « «4 - oe ke 2

REASONS FOR DENYING THE WRIT. ...... 6

Ze THE DECISION OF THE MASSACHUSETTS

SUPREME JUDICIAL COURT WAS COMPELLED

BY PRIOR DECISIONS OF THIS COURT

APPLYING FIRST AMENDMENT PROTECTIONS

TO CHARITABLE SOLICITATION ACTIVITIES

AND DOES NOT CONFLICT WITH ANY

REPORTED DECEWGUNs 528 ace bolle «a 8

II. THE DECISION BELOW PRESENTS NO

NOVEL ISSUES OF LAW. . ...i sss BP

COMCISTION. 0s 3 be ae eee

of.

TABLE OF AUTHORITIES

CASES Page

Bolger v. Youngs Drug Products Corp.,

tee. 8s - 68.7: 2079 (L965). a 23

Carey v. Brown, 447 U.S. 455

| (1980). oS ur analy 4 21

Colautti v. Franklin, 439 U.S. 379

(1979) Sere ct rae ee ee 16

Consolidated Edison Co. v. Public

Service Commission, 447 U.S. 530

(1980) . eet ee

24

Dandridge v. Williams, 397 U.S. 471

(1970) a ee kee KO 16

Gormley v. Director, Connecticut State

Department of Adult Probation, 449 U.S.

1023 (1980) Ph eee ee gf 22

Greer v. Spock, 424 U.S. 828 (1976) 19

Heffron v. International Society for

Krishna Consciousness, Inc.,

452 U.S. 640 (1981) 12

Huntley v. Public Utilities Commission,

69 Cal. 2d 67, 442 P.2d 685, 69 Cal.

ae, ee Seeeee 5 ss bt © & 4. 22

Jamison v. Texas, 318 U.S. 413

(1943) igae, gE igh ae eae 11

-iii-

Lehman v. Shaker Heights, 418 U.S. 298

SE) a aoe i a ee ee as ee 19

Martin v. City of Struthers, 319 U.S.

oT PS ca args eg eg rg eg weg 3%

Members of the City-Council of Los

Angeles v. Taxpayers for Vincent,

eee G. Ct. Z2iae (ive4S) . «. « » » Fy, bende,

19,20

Optimist Club of North Raleigh v.

Riley, 563 F.Supp. 847

cee Sees Seis oy pee

People v. Klick, 66 Ill. 2d 269,

See scm GOP GRUP ED wee 0. 8 22

Perry Education Association v.

Perry Local Educators’ Association,

2 Se: S| 6 lr ae) oT

20

Radford v. webb 446 F. Kia 608

(W.D.N.C. 978) ee aay Va ae 22

Rowan v. United States Post Office

Department, 39/ U.S. /28 (1970)... 24

Secretary of State of Maryland v.

Joseph H. Munson Co., 104 S. Ct.

2839 (1984) Sa a eS es Fer, ee!

State v. Blair, 287 Or. 519, P. 2d

oc Me a er ee tae aa ait 22

State v. Dronso, 90 Wis. 2d 149

wow.2e 710 (CE. App. 1978) .... 22

-iv-

United States Postal Service v.

Council of Greenburgh Civic

Associations, 453, 114 (1981)

Village of Schaumburg v.

Citizens for a Better

Environment, 444 U.S. 620

(1980) ; 3 eS

Walker v. Dillard, 523 F.2d 3

(sem Cis. E973) : ;

STATUTES

Mass. G.L. c. 68, §18

Mass. G.L. c. 68, §28

N.C.G.S. §14-401.12

MISCELLANEOUS

In re Unsolicited Telephone Calls,

77 F.c.C. 1023 (1980)

19

6,8,7, 28;

Le Py S|

22

No. 84 206

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1984

FRANCIS X. BELLOTTI, as he

is ATTORNEY GENERAL FOR THE

COMMONWEALTH OF MASSACHUSETTS,

Petitioner,

Vv.

PLANNED PARENTHOOD LEAGUE

OF MASSACHUSETTS, INC.,

Respondent.

On Petition For A Writ Of Certiorari

To The Supreme Judicial Court

Of The Commonwealth of Massachusetts

RESPONDENT'S BRIEF IN OPPOSITION

The respondent Planned Parenthood

League of Massachusetts, Inc., respect-

fully requests that this Court deny the

petition for writ of certiorari, seeking

review of the Massachusetts Supreme

Judicial Court's opinion in this case.

That opinion is reported at 391 Mass.

709, 464 N.E.2d 55 (_984).

STATEMENT OF THE CASE

Planned Parenthood League of Mass-

achusetts, Inc. ("PPLM"’) is a charitable

organization whose activities include

education and lobbying with respect to

family planning issues. In years prior

to 1982, PPLM had conducted campaigns to

recruit participants in its legislative

alert network and to solicit contri-

butions by means of direct mail and by

using volunteers to make telephone calls.

PPLM was not satisfied with the results

of those efforts and therefore decided,

in early 1982, to conduct a recruitment

and solicitation campaign by telephone

uSing operators hired for the purpose.

The campaign was not directed to the

public at large; rather, calls were to be

made to a selected group of approximately

5,100 persons who were current or former

associate members of PPLM, or had pre-

viously indicated their interest in or

support for PPLM's activities. PPLM

planned a telephone campaign for 1983

solely for the solicitation of contri-

butions, again using operators hired for

that purpose. 391 Mass. at 710-11, 464

N.E.2d at 58; see also Appendix B to

Petition for Writ of Certiorari at 2-3

(reproducing the Superior Court's

decision).

On August 24, 1982, PPLM filed a

complaint in the Massachusetts Superior

Court, seeking a declaratory judgment

that a Massachusetts statute, G.L. c. 68,

§28 ("Section 28"), prohibiting charit-

able solicitation by paid telephone

operators,* was facially unconstitutional

in violation of PPLM's rights to freedom

of speech and association and equal

protection under the First 2nd Fourteenth

Amendments to the United States Consti-

tution, and that the statute was uncon-

stitutionally vague and overbroad. The

parties stipulated to the facts of the

case and stipulated that telephone

solicitation is a more effective means of

providing information and obtaining

*Massachusetts G.L. c. 68, §28 provides:

No charitable organization shall

conduct or make any solicitation of

contributions by means of paid

telephone operators whose principal

duties are the conducting of such

telephone solicitation.

The term “charitable organization” is

broadly defined in G.L. c. 68, §18 to

include all individuals and groups

holding themselves out as charitable,

educational, humane, or patriotic

organizations, whether or not they

receive any tax exemption.

contributions than direct mail solici-

tation. The Massachusetts Superior

Court, Fine, J., declared Section 28 to

be unconstitutional on its face as a

violation of freedom of speech, and

enjoined its enforcement. The court

found it unnecessary to reach PPLM's

other constitutional claims. See

Appendix B.

The Massachusetts Supreme Judicial

Court granted direct appellate review

and, on April 23, 1984, affirmed the

judgment of the Superior Court. 391

Mass. 709, 464 N.E.2d 55. In a unanimous

decision by Liacos, J., the Supreme

Judicial Court held Section 28 to be

facially invalid under the First Amend-

ment. 391 Mass. at 710, 464 N.E.2d at

58. The Supreme Judicial Court thus also

found it unnecessary to consider other

constitutional infirmities of the

statute. 391 Mass. at 717 n.13, 464

N.E.2d at 62 n.13.

REASONS FOR DENYING THE WRIT

The decision of the Massachusetts

Supreme Judicial Court holding the Mass-

achusetts statute in question uncon-

stitutional on its face is compelled by

the reasoning adopted by this Court in

Martin v. City of Struthers, 319 U.S. 141

(1943), and Village of Schaumburg v.

Citizens for a Better Environment, 444

U.S. 620 (1980), and most recently

reaffirmed in Secretary of State of

Maryland v. Joseph H. Munson Co., 104

S.Ct. 2839 (1984).

Moreover, the decision below pre-

sents no novel issues of law. The

“public forum-private forum" distinction

referred to by the Attorney General has

no relevance whatsoever to the present

case. The authorities cited by the

Attorney General, Perry Education

Association v. Perry Local Educators'

Association, 103 S. Ct. 948 (1983) and

Members of the City Council of Los

Angeles v. Taxpayers for Vincent, 104 S.

Ct. 2118 (1984), concern the government's

regulation of access to its own property

when such property is not a "public

forum.” In contrast, the statute at

issue here represents the government's

selective regulation, based on content,

of charitable organizations’ right to

engage in protected speech through

telephones owned or controlled by private

individuals. Such communication is

flatly banned, regardless of whether the

individuals wish to permit or deny access

to their telephones. This is censorship

of the most blatant sort.

Se THE DECISION OF THE MASSACHU-

SETTS SUPREME JUDICIAL COURT

WAS COMPELLED BY PRIOR DECISIONS

OF THIS COURT APPLYING FIRST

AMENDMENT PROTECTIONS TO CHAR-

ITABLE SOLICITATION ACTIVITIES

AND DOES NOT CONFLICT WITH ANY

REPORTED DECISION.

The decision of the Massachusetts

Supreme Judicial Court holding the

Massachusetts statute in question, G.L.

c. 68, §28, unconstitutional on its face,

is merely an application of principles

applied by this Court in such cases as

Martin v. City of Struthers, 319 U.S. 141

(1943), and Village of Schaumburg v.

Citizens for a Better Environment, 444

U.S. 620 (1980), and most recently

re-affirmed in Secretary of State of

Maryland v. Joseph H. Munson Co., 104 S.

Ct. 2839 (1984). Section 28 prohibits

charitable organizations from conducting

any solicitation of contributions by

means of paid telephone operators whose

principal duties are such telephone

solicitation. No other form of

charitable solicitation is forbidden.

The ban applies to all charitable

organizations and to no other individuals

or organizations. Its facial invalidity

on First Amendment grounds was

established in the court below through a

straightforward application of this

Court's decisions.

First, as the Supreme Judicial Court

noted, 391 Mass. at 712, 464 N.E.2d at

59, this Court has established that

charitable solicitation, like solicita-

tion to support advocacy of political and

other social views, constitutes protected

speech under the First Amendment.

Village of Schaumburg, 444 U.S. at 632-33

(charitable solicitation "on the street

and door to door"); Joseph H. Munson Co.,

104 s. Ct. at 2849 & n.8 (charitable

solicitation by many means, extending to

telephone requests). Such solicitation

is entitled to no less protection when it

is carried out by paid employees.

Village of Schaumburg, 444 U.S. at 631,

636-37. As the court below properly

noted, even neutral regulation of solici-

tation

must be undertaken with due regard

for the reality that solicitation is

characteristically intertwined with

informative and perhaps persuasive

speech seeking support for

particular causes or for particular

views on economic, political, or

social issues, and for the reality

that with solicitation the flow of

such information and advocacy would

likely cease.

(quoting Village of Schaumburg, 444 U.S.

at 632). PPLM's activities partake

especially of this communicative charac-

ter. 391 Mass. at 713; 464 N.E.2d at 59.

Accordingly, the state is prohibited from

"unreasonably obstructing or delaying”

the collection of contributions on behalf

of social causes. Village of Schaumburg,

444 U.S. at 630; Jamison v. Texas, 318

U.S. 413, 417 (1943).

To assess the constitutionality of

state action restricting charitable

solicitations, the Massachusetts Supreme

Judicial Court, 391 Mass. at 714-15, 464

N.E.2d at 60, followed this Court's

decisions requiring that the statute

under scrutiny be either a reasonable

time, place, or manner regulation or a

restriction narrowly drawn to further a

substantial governmental interest without

unnecessarily impairing First Amendment

rights. Consolidated Edison Co. v.

Public Service Commission, 447 U.S. 53

535-36, 540-41 (1980); Village of Schaum-

burg, 444 U.S. at 637; Joseph H. Munson

Co., 104 S. Ct. at 2849-50.

kin

The court below correctly determined

that Section 28 is not a reasonable time,

place, or manner regulation. Because it

acts only to prohibit paid solicitation

by charities, and not by other organiza-

tions, Section 28 cannot be said to apply

to all speech irrespective of content.

391 Mass. at 714; 464 N.E.2d at 60. See

Heffron v. International Society for

Krishna Consciousness, Inc., 452 U.S.

640, 648-49 (1981); Consolidated Edison

Co., 447 U.S. at 537-38.

The decision below also properly

concluded that Section 28 is not pre-

cisely drawn to serve the state interest

asserted by the Attorney General, the

protection of homeowners’ privacy. As

the court below found, Section 28 doe

"virtually nothing" to protect homeow -rs

from unwanted telephonic intrusions. 391

ee EN

Mass. at 715-16, 464 N.E.2d at 61. The

Statute leaves households prey to the

"annoying" ring of the telephone from all

commercial and other noncharitable

solicitations, from solicitations of

charitable contributions by volunteers or

by employees whose "principal duties" are

not solicitation, and from unlimited

interruptions by full-time paid operators

for charities so long as they do not

mention contributions. At the same time,

the statute is too broad: as demon-

strated by the facts of this case,

Section 28 purports to forbid telephone

solicitation campaigns limited strictls

to persons with past or present affilia

tions with the charity or who have

demonstrated interest in and support icr

its activities. It also prohibits calls

by paid solicitors to business telephones,

including those of other charitable

22.

Se

organizations. As both the Supreme

Judicial Court and the Superior Court

found, therefore, the classifications

drawn by the statute bear no perceptible

relationship to privacy goals. 391 Mass.

at 715-16, 464 N.E.2d at 61; see also

2 ct et

Appendix B at 9.

Finally, both courts below found

that even if Section 28 furthered the

state's interest in residential privacy

in some way, "there are certainly less

intrusive and more practicable ways of

serving this objective," 391 Mass. at 716

n.ll1, 464 N.E.2d at 61 n.11; see also

Appendix B at 8, including proposals in

state and legislatures in Congress to

enable individuals to request that the

telephone company indicate in its direc-

tory their unwillingness to receive

solicitation calls, and to require

solicitors to pay for lists of resi-

dential telephone subscribers unwilling

to receive such solicitations. Id.

The Massachusetts Supreme Judicial

Court's decision holding Section 28

facially unconstitutional under the First

Amendment, is thus a correct, straight -

forward, and unexceptional application of

well-established and oft-reiterated

principles of this Court. The decision

below does not stand in conflict with any

reported decision, state or federal. The

only other reported decision considering

the constitutionality of such a statute

is that of the federal district court in

Optimist Club of North Raleigh v. Riley,

563 F. Supp. 847 (E.D.N.C. 1982). The

court in Optimist Club enjoined enforce-

ment of N.C.G.S. §14-401.12, which made

it unlawful for "professional

solicitors,” i.e., persons paid for their

24»

services, to solicit charitable contribu-

tions by telephone. The court concluded,

as did the Supreme Judicial Court in the

present case, that the statute failed to

advance a compelling state interest in

the least intrusive manner. 563 F. Supp

at 849.

The application of well-settled

First Amendment principles in the

decision below thus presents no conflicts

of authority and no difficulties meriting

review in this Court.”

*In any event, the judgment rendered

below is supported by independent con-

stitutional grounds not reached by the

Massachusetts Supreme Judicial Court but

open to this Court's determination. See

Colautti v. Franklin, 439 U.S. 379, 397

n.16 (1979); Dandridge v. Williams, 397

U.S. 471, 475 n.6 (1970). As PPLM argued

in the proceedings below, the statute is

facially invalid as a violation of equal

protection and freedom of association,

and is unconstitutionally overbroad and

vague.

i.

II. THE DECISION BELOW PRESENTS NO

NOVEL ISSUES OF LAW.

The Attorney General asserts that

the decision of the Massachusetts Supreme

Judicial Court raises two "questions of

first impression": first, whether the

telephone is a "public forum" or a

J

“private forum," and second, if it is a

"private forum," whether regulation of

access to the telephone should escape

strict scrutiny under the First Amend-

ment. It is readily apparent that the

decision below presents neither issue for

consideration by this Court.

The "public forum-private forum"

distinction upon which the Attorney

General's argument hinges has nothing to

do with this case. The doctrine

underlying it has been most recently

described by this Court in Members of the

City Council of Los Angeles v. Taxpayers

~ 19.

for Vincent, 104 S. Ct. 2118, 2134

(1984):

Public property which is not by

tradition or designation a forum for

public communication may be reserved

by the state "for its intended

purposes, communicative or other-

wise, as long as the regulation on

speech is reasonable and not an

effort to suppress expression merely

because public officials oppose the

speaker's view." Perry Education

Association v. Perry Local Educa-

tors’ Association, 103 S. Ct. 948,

955 (1983). [Emphasis added. ]

Taxpayers for Vincent and Perry Education

Association both affirm a governmental

entity's power to limit speech activities

on its own property, when that property

is not a “public forum,” to those

activities compatible with the "intended

purposes” of the property. These

decisions, and every prior decision of

this Court applying the principle,

concern property within the ownership

or control of the unit of government

asserting its power to restrict access.

~ti.

See, e.g., Taxpayers for Vincent, 104 s.

Ct. at 2122 (utility poles); Perry

Education Association, 103 S. Ct. at 951

(school district's interschool mail-

boxes); United States Postal Service v.

Council of Greenburgh Civic Associations,

453 U.S. 114, 128-29 (1981) (authorized

depositories of U.S. mail); Greer v.

Spock, 424 U.S. 828, 830 (1976) (federal

military reservation); Lehman v. Shaker

Heights, 418 U.S. 298, 299 (1976) (city's

rapid transit cars). This Court's

precedents thus establish that the

“public forum-private forum" dichotomy

is merely a characterization of differing

types of government property. See Perry

Education Association, 103 S. Ct. at

957-58 n.9 (distinguishing Consolidated

Edison Co., 447 U.S. at 530, because it

did not concern access to government

property). Section 28 is not a statute

-19-

involving use of government property,

and therefore the line of cases

culminating in Perry and Taxpayers

is irrelevant here.

The second "novel issue" the Attor-

ney General attempts to inject into this

case is his assertion that protection of

residential privacy is so compelling an

interest that restrictions on the placing

of calls to telephones of private citizens

should be subject not to strict scrutiny

but to some minimum rationality test.

The proposition urged by the

Attorney General is not only without

support in, but is directly contrary to

this Court's previous decisions in First

Amendment cases. Where residential

privacy was asserted by the state to

justify restrictions on protected speech,

this Court has consistently applied a

rule of strict scrutiny to such

-20-

restrictions.* See, e.p., Village of

Schaumburg, 444 U.S. at 638; Carey v.

Brown, 447 U.S. 455, 462 (1980); Martin

v. City of Struthers, 319 U.S. at 146-48.

While this Court has not had occasion to

review the constitutionality of any

Statute directed specifically at speech

by means of telephone, the lower courts

have uniformly agreed that speech over

telephone wires merits the same protec-

tion as speech by other means. See,

e.g., Walker v. Dillard, 523 F.2d a 4

(4th Cir.), cert. denied, 423 U.S. 906

(1975); Optimist Club of North Raleigh,

* A principal concern of the

Attorney General appears to be the

"potential for Orwellian use" of automatic

diallers and other electronic devices.

Neither the facts of this case nor the

Statute at issue involve such devices.

Of course, reasonable time, place, or

manner restrictions could be enacted in

response to any such abuses.

28.

563 F. Supp. at 849; Radford v. Webb, 446

F. Supp. 608, 610-11 (W.D.N.C. 1978),

aff'd, 596 F.2d 1205 (4th Cir. 1979);

Huntley v. Public Utilities Commision, 69

Cal. 2d 67, 442 P.2d 685, 69 Cal. Rptr.

605 (1968); People v. Klick, 66 I11l. 2d

269, 362 N.E.2d 329 (1977); State v.

Blair, 287 Or. 519, 601 P.2d 766 (1979);

State v. Dronso, 90 Wis. 2d 149, 279

N.W.2d 710 (Ct. App. 1979). Cf. Gormley

v. Director, Connecticut State Department

of Adult Probation, 449 U.S. 1023,

1023-24 (1980) (White, J., dissenting

from denial of certiorari). See also In

re Unsolicited Telephone Calls, 77 F.C.C.

1023, 1033-37 (1980).

Moreover, the statute at issue in

the decision below does not present to

this Court the question asserted by the

Attorney General. As the Supreme

Judicial Court and the Superior Court

-22-

both found, Section 28 "does virtually

nothing to promote the State's alleged

substantial interest in residential

privacy." 391 Mass. at 715, 464 N.E.2d

at 61. The distinctions made in the

statute certainly "have nothing to do

with privacy.'' Appendix B at 9. The

essential vice of Section 28 is that by

conclusively presuming that charitable

appeals from paid telephone operators are

always unwelcome, the statute deprives

homeowners of the freedom to choose, and

of the right to receive calls they may

welcome, thereby invading the private

decision-making sphere of each indivi-

dual. In analogous contexts, this Court

has repeatedly observed that the First

Amendment forbids governments to label

subject matters as "offensive" or "intru-

-23-

sive"* and to deprive homeowners of

the opportunity to receive communications

on those subjects at home. See, @€.-8-;

Bolger v. Youngs Drug Products Corp., 103

S. Ct. 2875, 2883 (1983); Consolidated

Edison Co., 447 U.S. at 542 n.11; Martin

v. City of Struthers, 319 U.S. 141

(1943). The proper approach, as upheld

by this Court in Rowan v. United States

Post Office Department, 397 U.S. 728,

737-38 (1970), is to reconcile these

conflicting interests by establishing 4a

means by which individual homeowners may

determine for themselves which

communications they will welcome and

which they will exclude.

* Different rules may apply in

cases of actual obscenity.

-24-

This Court's prior rulings provide

clear guidance when interests such as

those asserted here are at stake. The

decision below correctly applied the

precedents of this Court, and no useful

purpose would be served by a grant of

certiorari under these circumstances.

CONCLUSION

For the foregoing reasons, the

petition does not present any question

warranting this Court's review, and the

Writ of Certiorari should be denied.

Respectfully submitted,

PETER B. ELLIS

DAVID J. SEIPP

FOLEY, HOAG & ELIOT

One Post Office Square

Boston, Massachusetts 02109

(617) 482-1390

GERALD L. NEUMAN

3400 Chestnut Street

Philadelphia, Pennsylvania 19104

Counsel for Respondent

«2%.