Opposition Brief — Fraternal Order of Police, North Dakota State Lodge v. Stenehjem (No. 05-1149)

3

the Act, on its face, violates their rights under the First

Amendment. Apparently believing a law is “content based”

even if it merely requires the identification of speakers to

determine its application, the district court treated the Act as

content based because it prohibits solicitations by charities’

contract telemarketers but not by their employees and

volunteers. Pet. App. 20a. Applying strict scrutiny, the

district court concluded the Act serves a compelling

governmental interest, but found it not “narrowly drawn”

because it does not apply to ail charitable solicitations. Pet.

App. 21a, 22a. Accordingly, the district court found the Act

unconstitutional to the extent its restrictions apply to

charitable speech. Pet. App. 26a. Although no commercial

speakers are plaintiffs in this case, the district court also

reviewed the Act under the commercial speech doctrine and

found it to be entirely valid under that test. Pet. App. 16a-

20a, 26a.

The Eighth Circuit reversed. Observing that professional

charitable solicitation is fully protected speech, the Court of

Appeals, citing Ward v. Rock Against Racism, 491 U.S. 781

(1989), stated “[t}he principal inquiry in determining content

neutrality is whether the government has adopted a regulation

of speech because of disagreement with the message the

speech conveys.” Pet. App. 3a. Further, correcting the

district court, the decision also noted that “[rjegulation of

expressive activity is content neutral if it is justified without

reference to the content of the regulated speech.” Pet. App.

3a. Applying these principles io the statute, the Eighth

Circuit found “it is evident the Act is content neutral.” Pet.

App. 3a. It wrote:

First, North Dakota has not distinguished between

professional and in-house charitable solicitors because

of any disagreement-with the message that would be

4

conveyed, for the message would be identical

tegardless of who conveyed it. Second, the regulation

can be justified without reference to the content of the

regulated speech, for North Dakota’s interest is in

protecting residential privacy.

Pet. App. 3a.

Finding the Act content neutral, the Eighth Circuit applied

the test derived from Village of Schaumburg v. Citizens for a

Better Environment, 444 U.S. 620 (1980), considering: “(a)

whether the State had a sufficient or ‘legitimate’ interest; (b)

whether the interest identified was ‘significantly furthered’ by

a narrowly tailored regulation; and (c) whether the regulation

substantially limited charitable solicitations.” Pet. App. 4a.

Like the district court, the Eighth Circuit held residential

privacy is a "significant" government interest, and “[t}he

rationale underlying the North Dakota regulation falls within

this significant interest.” Pet. App. 4a-5a. It also ruled the

Act is narrowly tailored because “North Dakota’s goal of

ensuring residential privacy would be achieved less effectively

if the legislature exempted professional charitable solicitors

from the Act.” Pet. App. 5a. Furthermore, the Eighth

Circuit ruled, because the Act applies only to personal

residences and contains a content neutral and viewpoint

neutral opt-in provision, it “does not burden more speech than

is necessary to further the State’s interest in residential

privacy.” Pet. App. 7a.

Although he agreed “North Dakota has a legitimate

interest in preserving residential privacy,” ‘and that “the Act

serves a sufficiently strong, subordinating interest that the

State is entitled to protect,” Judge Heaney dissented from the

majority opinion because he did not believe the Act is

narrowly tailored. Pet. App. 10a-11a.

5

REASONS FOR DENYING THE PETITION

Petitioners have failed to identify any grounds warranting

a grant of certiorari in this case. First, this case does not

present the issue asserted by petitioners because the Act in no

way represents an “extension of the national do-not-call

registry.” Pet. (i). Instead, the Act sets forth its own

substantive provisions that do not depend on federal law for

content. Accordingly, the case presents no inconsistency

between the Act and any national no-call programs enforced

by the FCC and the FTC. Furthermore, Petitioners never

before asserted such a quasi-preemption claim in this case,

and the decision below certainly does not purport to address

it. Perforce, there is no conflict between the Eighth Circuit

decision and the decisions from the Fourth and Tenth Circuits

concerning the FCC and FTC programs.

Second, the decision below does not-conflict with any

decisions of this Court. To the contrary, the Eighth Circuit

scrupulously followed and correctly applied this Court’s First

Amendment precedents in upholding the Act, which, after all,

merely gives force to individual consumer preferences not to

be disturbed in the privacy of their own homes.

I. Petitioners mischaracterize the decision below in an

effort to generate a more interesting issue for review

and to manufacture a material conflict with other

__ Circuits.

In a rather obvious attempt to attract more attention to

their cause and to create an intra-circuit conflict where none

exists, in their question presented, Petitioners grossly

misrepresent the underlying issues in this case. In short,

there is no purported “extension of the national do-not-call

registry” at stake, only an independent state substantive no-

6

call law that, in compliance with federal mandates, protects

all North Dakota citizens who have also sought the protection

of federal no-call laws. Furthermore, Petitioners have never

before asserted this issue.

A. The Eighth Circuit did not extend the national do-

not-call registry.

Neither the Act nor the decision below extends any

national do-not-call laws to charitable speech. To understand

why this is so, it is important to understand the basic structure

of the federal and state no-call laws.

Congress has separately authorized the FCC and the FTC

to enforce telemarketing restrictions, and those agencies have

promulgated separate rules todo so. See 15 U.S.C. §§ 6101,

et seq.; 16 C.F.R. §§ 310.1, et seg.; 47 C.F.R. §§ 64.1200,

et seq. These rules have, for present purposes, two

components. The first is substantive. The FCC’s rule

prohibits most commercial sales calls to registered consumers.

See 47 C.F.R. § 64.1200(c)(2). The FCC lacks statutory

jurisdiction, however, over some entities that make

telemarketing calls, including charities and those calling on

their behalf. See, e.g., 47 C.F.R. § 64.1200(f)(9)(iii). Due

to its general jurisdiction over professional telemarketers, the

FTC’s rule covers many entities outside the FCC’s

jurisdiction. See 15 U.S.C. §§ 6102(a), 6106(4); 16 C.F.R.

§§ 310.2(u), (bb), (cc); 68 Fed. Reg. 4580-01, 4585 (Jan. 29,

2003); National Fed’n of the Blind v. Federal Trade

Commission, 420 F.3d 331, 334-36 (4" Cir. 2005), pet. for

cert. filed, 74 U.S.L.W. 3438 (U.S. Jan. 23, 2006) (No. 05-

927) (discussing FTC jurisdiction). For its part, however, the

FTC has decided that telemarketers calling cn behalf of

charities need only to maintain charity-specific no-call lists

7

rather than refrain from calling all registered consumers. 16

C.F.R. §§ 310.4(b)(1)(iii)(A), 310.6(a).

The second component of the FCC and FTC no-call rules

is the registry shared by those agencies. Congress requires

the FCC and FTC enforce their respective rules with respect

to a single national no-call registry, meaning consumers who

register for the protections from one agency automatically

receive the protections of both. 47 U.S.C. § 227(c)(3); 16

C.F.R. §310.4(b)(1)(iii)(3); 18 F.C.C.R. 14014, 14017 June

26, 2003). By doing this, consumers need not register

multiple times with the federal government.

Congress has also enacted a provision requiring states that

enforce their own registry-based no-call laws to include on

their registries state residents who have registered for federal

protection. 47 U.S.C. § 227(e)(2).. So, for example, North

Dakota must enforce its own no-call law to protect North

Dakota residents who have registered for federal protection,

even if those residents have not separately registered for state

protection with the North Dakota Attorney General. For the

sake of efficiency, North Dakota does not maintain a separate

state registry; it merely enforces its substantive no-call law for

the benefit of North Dakota residents who have registered for

the federal list, as it is required to do by federal law. (In

addition to requiring states to include the federal do-not-call

list in their own registries, Congress stated that the FCC

database “shall . . . be designed to enable States to use the

[database] . . . for purposes of administering or enforcing

state law.” 47 U.S.C. § 227(c)(3)(J)).

Petitioners mischaracterize this legislative framework as

being the equivalent of stretching the substantive federal no-

call laws to cover charities, but this is plainly not the case. It

is true that neither the FCC nor the FTC prohibits

8

telemarketing calls on behalf of charities to ali federally-

registered telephone subscribers.’ But neither do they

prohibit states from enforcing their own substantive laws

prohibiting such calls. Indeed, because Congress has not

authorized the FCC to regulate charitable solicitations, the

FCC lacks jurisdiction to preempt the states in this area. See

National Coalition of Prayer, Ir~ v. Carter, No. 02-0536-C,

2005 WL 2253601, at *15-16(S.D. Ind. Sept. 2, 2005). And

for its part, the FTC has expressly disclaimed any intent to

preempt states when it comes to regulating charitable

solicitations. 68 Fed. Reg. 4580-01, 4638 n.696 (Jan. 29,

2003). So, that leaves North Dakota in the entirely

unremarkable position of enforcing its own law for the benefit

of self-selected North Dakota residents. That self-selection

happens by North Dakota residents cesses on the national

do-not-call registry.

Accordingly, Petitioners’ assertion the decision below

conflicts with decisions from the Tenth and Fourth Circuits

concerning the substantive FCC and FTC no-call regulations

> Petitioners’ assertion the FTC exempted charitable telephone

solicitations for the national no-call registry due to First

Amendment concerns is inaccurate. Pet. 12. To the contrary, the

FTC specifically noted the future possibility of requiring

“telemarketing calls soliciting charitable donations to comply with

the national ‘do-not-call’ registry requirements.” 68 Fed. Reg.

4580-01, 4637.

* For these reasons, Petitioners’ assertion that “[dJeference should

be given to the FTC’s exemption of charitable calls from the

national do-not-call registry” is misguided. Pet. 12. Whether or

not deference is owed to an agency’s assertion of preemptive

authority, agency deference has no bearing on the First Amendment

challenge before the Eighth Circuit.

9

is utterly implausible. Mainstream Mktg. Servs., Inc. v.

F.T.C., 358 F.3d 1228 (10" Cir. 2004), cert. denied, 543

U.S. 812 (2004), upheld the constitutionality of the FCC’s

commercial sales no-call law. Because the FCC no-call law

only applies to commercial speech, the decision applied the

Central Hudson analysis. The Tenth Circuit decision says

nothing about no-call laws that apply to charitable

solicitations. In contrast, because the challenged Act applies

to both commercial and non-commercial speech, the Eighth

Circuit applied the analysis directed by this Court in

Schaumburg. Pet. App. 4a. Hence, the issues addressed, and

tests applied, by the Tenth and Eighth Circuits are materially

different. The Tenth Circuit’s own opinion makes it clear the

court was not holding a no-call law had to apply only to

commercial speech to be constitutional. It wrote: “We

express no opinion as to whether the do-not-call registry

would be constitutional if it applied to political or charitable

callers.” Jd. at 1233 n.2.

Petitioners’ attempt to manufacturer a split with the Fourth

Circuit’s decision in National Fed’n of the Blind is likewise

futile. In National Fed’n of the Blind, the Fourth Circuit, in

an opinion by Judge Wilkinson, upheld the FTC’s

requirements that charities using professional fundraisers

comply with a charity-specific do-not-call list. The decision

did not address either the substantive validity of more general

no-call laws applicable to charitable solicitations or the

preemptive effect of the FTC’s rule. Indeed, not only is the

lower court’s decision consistent with the Fourth Circuit’s

decision in National Fed’n of the Blind, it partially relied

upon it. See Pet. App. 6a. Furthermore, consistent with the

Eighth Circuit’s decision, see Pet. App. 4a, the Fourth Circuit

applied Schaumburg and its progeny because the charity-

specific do-not-call list applies to non-commercial speech, see

420 F.3d at 338. The purported split does not exist.

10

Although the Eighth Circuit partially relied on the

National Fed’n of the Blind decision, that reliance did not

include the Fourth Circuit’s “limited jurisdiction” analysis.

As is evident from a plain reading of its decision, the Eighth

Circuit quoted National Fed’n of the Blind for the Fourth

Circuit’s analysis of balancing the rights of charities to

communicate with potential donors and the potential donors’

right to enjoy residential peace, a legitimate and substantial

concern. Pet. App. 6a. Because the Eighth Circuit did not

adopt or rely on the “limited jurisdiction” rule, Petitioners’

lengthy diatribe on this issue is a red herring, designed to

create an issue for review. Pet. 21-22.

In short, the decision below in no way addresses federal

regulation of charitable solicitations; it does not address or

impact the authority of the FTC and the FCC. Instead it is

limited to the constitutionality of a state do-not-call law that

applies to both commercial and non-commercial calls.

Respondent is aware of only one other decision addressing the

constitutionality of such a law. In that decision, a United

States District Court upheld Indiana’s do-not-call statute. See

Carter, 2005 WL 2253601, at *16. Like North Dakota’s Act,

Indiana’s statute does not apply to telephone calls made by

volunteers or employees of a charitable organization. Ind.

Code 24-4.7-2-7. And, like the Eighth Circuit, the Indiana

federal district court found the exemption constitutional.

Carter, 2005 WL 2253601, at *16. Thus, the Eighth

Circuit’s decision is consistent with the only other decision

directly on point.

B. The issue stated in Petitioners’ Question Presented

: was never raised below.

Regardless of how they characterize the Act vis-a-vis the

national no-call registry, the fact remains Petitioners never

11

raised this issue, which, after all, sounds more in preemption

than in free speech. The Eighth Circuit was not called upon

to interpret the provisions of, or address the constitutionality

of, the national do-not-call registry or to consider whether

those provisions somehow prevent North Dakota from

enforcing its own no-call law. As plainly indicated in the

complaint, and as addressed by both the district court and the

Eighth Circuit, this case is limited to a facial First

Amendment challenge of N.D. Cent. Code ch. 51-28. At no

time did Petitioners allege below that the Act conflicted with,

or impermissibly extended, the national do-not-call registry.

And the lower court in no way addressed application of the

national do-not-call registry and its regulations. Petitioners

may not raise this issue for the first time here. And, even if

they could, the lack of any substantive decision below renders

this case a poor vehicle for addressing the issue. See

Clingman v. Beaver, 544 U.S. 581, 125 S. Ct. 2029, 2041 —

(2005); Cooper Indus., Inc. v. Aviall Servs., Inc. , 543 U.S.

157, 168-69 (2004).

il. The decision below does not conflict with any decision

of this Court.

For decades it has been well-settled law that charitable

solicitations are within the protections of the First

Amendment. See Schaumburg, 444 U.S. 620 and cases cited

therein. The Eighth Circuit properly applied that law, finding

“professional charitable solicitation is fully protected speech.”

Pet. App. 2a. Equally well established is the principle that

the government may regulate the time, place, or manner of

expressive activity, even charitable speech, so long as the

restrictions are content neutral, narrowly tailored to serve a

significant governmental interest, and leave open ample

alternatives for communications. See, e.g., Ward, 491 U.S.

at 791; Riley v. National Fed’n of the Blind of N.C., Inc. , 487

12

U.S. 7 | 802 (1988); Heffron v. International Soc’y for

Krishna Vonsciousness, Inc., 452 U.S. 640, 648-49 (1981).

The lower decision represents a straight-forward application

of this black letter law.

A. The Eighth Circuit did not subject the Act to

“lesser scrutiny,” but instead properly deemed the

Act to be content neutral.

The Eighth Circuit, consistent with this Court’s

jurisprudence, recognized charitable speech is afforded higher

protection than commercial speech. It specifically held

“professional charitable solicitation is fully protected speech.”

Pet. App. 2a. Contrary to Petitioners’ assertion, the lower

court did not subject the Act to “lesser scrutiny.” What

Petitioners actually challenge is the Eighth Circuit’s

application of the well-established time, place, and manner

doctrine. But a mere alleged misapplication of law does not

ordinarily warrant review by this Court. Furthermore, the

Eighth Circuit did not misapply this Court’s jurisprudence.

To the contrary, it scrupulously adhered to it.

The decision below did not deviate from this Court’s cases

in determining the Act to be content neutral. As stated in

Ward, 491 U.S. at 791, “{tjhe principal inquiry in

determining content neutrality is whether the government has

adopted a regulation of speech because of disagreement with

the message the speech conveys.” Pet. App. 3a. Quoting

Ward, 491 U.S. at 791, the Eighth Circuit explained that “‘[a]

regulation that serves purposes unrelated to the content of

expression is deemed neutral, even if it has an incidental

effect on some speakers or messages but not others.’” Pet.

App. 3a. See also Turner Broad. Sys., Inc. v. Federal

Communications Comm’n, 512 U.S. 622, 643 (1994) (“Laws

that confer benefits or impose burdens on speech without

13

reference to the ideas or views expressed are in most

instances content neutral.”).

Petitioners’ assertion the Act is not content neutral is

primarily based on the Act’s exception permitting charities to

use volunteers or employees, but not contract telemarketers,

to make calls to residents who have registered their residential

telephone numbers. But this exception makes no distinction

based on the content of solicitations. It also applies

irrespective of viewpoint or mission, and is justified for

reasons unrelated to the content of the speech. The Eighth

Circuit’s analysis on this issue is fully consistent with this

Court’s First Amendment precedent.

The distinction between charitable solicitations by

employees and volunteers versus professional telemarketers

is not content based. It is based upon sheer volume. A

charity using professional telemarketers is typically able to

dial substantially more residential telephone numbers than if

the charity used its own volunteers and employees. Because

professional telemarketers typically earn a percentage of each

donation, they also have a direct financial incentive to dial as

many residential telephone numbers as possible; charities’

volunteers and employees typically do not have these same

incentives. Thus, this distinction is justified by the volume of

invasive calls, which is directly related to the purpose of the

Act, not content. See Carter, 2005 WL 2253601, at *13

(discussing Indiana’s legislative finding that professional

telemarketers “are likely to resort to more aggressive tactics,

make calls when residents least desire them, draw on their

expertise in Overcoming residents’ attempts to terminate the

calls, and make as many solicitation calls as possible in a

given time-frame”). The exception applies equally,

irrespective of message or viewpoint of the caller.

14

This exception also represents a balance drawn by the

Legislature between the interests of charities and the privacy

interests of residential telephone subscribers. Though the Act

could lawfully have banned all calls by charities to registered

subscribers, the Legislature instead sought only to

significantly curb such calls by limiting, but not completely

eliminating, charities’ intrusions into homes that prefer

privacy. Such action is appropriate because it significantly

furthers residential privacy. See United States v. Edge Broad.

Co., 509 U.S. 418, 434 (1993) (“Nor do we require that the

Government make progress on every front before it can make

progress on any front.”); see also National Fed’n of the

Blind, 420 F.3d at 349; Moser v. F.C.C., 46 F.3d 970, 974-

75 (9" Cir. 1995) (“Congress may reduce the volume of

intrusive telemarketing calls without completely eliminating

the calls.”). By permitting calls from charities’ volunteers

and employees only, the Legislature knew registered

telephone subscribers would significantly reduce the chances

of being inundated with calls. See Carter, 2005 WL

2253601, at *8.

Far from being “baffling,” Pet. 16, the Eighth Circuit’s

determination the Act is content neutral is based upon and in

accordance with this Court’s precedent. It is also consistent

with the only other decision directly on point. See Carter,

2005 WL 2253601, at *16.

B. The Eighth Circuit’s time, place, and manner

analysis falls squarely within this Court’s

precedents.

—_—_

A content neutral regulation may regulate the time, place,

or manner of expressive activity if the restrictions are

narrowly tailored to serve a significant governmental interest

and leave open ample alternatives for communications.

15

Ward, 491 U.S. at 791. The decision below properly applied

this well-established First Amendment principle.

Il. The Act serves a significant governmental

interest.

The Act’s chief aim is to protect residential privacy from

being disturbed by unwanted telemarketing cails, including

those made by professional telemarketers on behalf of

charities. Residential privacy is a significant, indeed

compelling, governmental interest, as this Court~has

frequently concluded. See Frisby v. Schultz, 487 U.S. 474,

484 (1988); Carey v. Brown, 447 U.S. 455, 471 (1980) (“The

State’s interest in protecting the well-being, tranquility, and

privacy of the home is certainly of the highest order in a free

and civilized society.”); F.C.C. v. Pacifica Found., 438 U.S.

726, 748 (1978) (“[I]n the privacy of the home .. . the

individual’s right to be left alone plainly outweighs the First

Amendment rights of an intruder.”). The listener’s interest

in avoiding unwanted speech is at its greatest where the

speech threatens residential privacy. See Hill v. Colorado,

530 U.S. 703, 717 (2000) (stating “[t]he right to avoid

unwelcome speech has special force in the privacy of the

home”); Frisby, 487 U.S. at 484-85 (acknowledging the

“unique nature of the home” and that, “[a}lthough in many

locations, we expect individuals simply to avoid speech they

do not want to hear, the home is different”; “individuals are

not required to v-cicome unwanted speech into their own

homes and that the government may protect this freedom”);

“There simply is no right to force speech into the home of an

unwilling listener.”); Rowan v. United States Post Office

Dep't, 397 U.S. 728, 738 (1970) (“categorically reject[ing}

the argument that a vendor has a right under the Constitution

or otherwise to send unwanted material into the home of

another”); National Fed'n of the Blind of Ark, Inc. v. Pryor,

16

258 F.3d 851, 855 (8" Cir. 2001) (stating “Rowan confirii:s

that the State has a legitimate governmental interest in

adopting reasonable restrictions to protect its citizens from

unwanted telephone calls to their homes”).

In the context of telemarketing regulations, lower state

and federal courts have, like the decision below, consistently

deemed residential privacy to be a sufficientiy strong

subordinating justification to support content neutral speech

restrictions. See, e.g., National Fed’n of the Blind, 420 F.3d

at 339-40; Bland v. Fessler, 88 F.3d 729, 734 (9" Cir. 1996)

(stating the government’s “significant interest in protecting

residential privacy is well established”); Mainstream Mkig.,

358 F.3d at 1238-39 (finding protecting residential privacy to

be a substantial governmental interest); Van Bergen v.

Minnesota, 59 F.3d 1541, 1554 (8" Cir. 1995) (holding

“[rjesidential privacy is a significant government interest.”);

Carter, 2005 WL 2253601, at *9 (holding the Indiana

Telephone Privacy Act, which is designed to protect the

residential privacy of individual telephone subscribers,

“clearly passes the threshold test as advancing a significant

governmental interest”); State by Humphrey v. Casino Mktg.

Group, Inc., 491 N.W.2d 882, 888 (Minn. 1992) (finding

state has a substantial interest in protecting privacy in the

home).

Furthermore, that residential privacy is “significantly

furthered” by the Act is beyond cavil. If the subscriber takes

the appropriate affirmative action, the Act eliminates many

intrusive, offensive, and unwanted telephone solicitations.

Petitioners assert that no data in the record shows the Act

actually reduces the number of intrusive telephone calls into

private residences. Petitioners’ argument, which was not

made to the Eighth Circuit, ignores that the North Dakota

Legislature could properly rely on factual findings of other

17

entities, such as the courts,” federal agencies, and other

states,° as well as common sense.

By way of example, in 1991 Congress concluded

“telemarketing calls to homes constituted an unwarranted

intrusion upon privacy.” Moser, 46 F.3d at 972. After

receiving approximately 64,000 comments and holding a

> See Pryor, 258 F.3d at 856 (“Our own experience suggests that

most households in today’s society are plagued by a flood of

unwanted telephone solicitations.”); Van Bergen, 59 F.3d at 1555

(“The sheer quantity of telemarketing calls further supports the

government’s interest in regulation protecting privacy.

Telemarketing calls . . . are flourishing, and becoming a recurring

nuisance by virtue of their quantity.”); id. at 1554 (the disruption

caused by such calls is “evident to anyone who has received such

unsolicited calls when busy with other activities.”); Humphrey, 491

N.W.2d at 888 (explaining “the residential telephone is uniquely

intrusive” and “for the elderly or disabled, the note of urgency

sounded by the ring of the telephone signals a journey which may

subject the subscriber to the risk of injury”); Szefczek v.

Hillsborough Beacon, 668 A.2d 1099, 1107 (N.J. Super. Ct. Law

Div. 1995) (stating consumers are frustrated because there appears

to be no way to prevent these calls).

® See Carter, 2005 WL 2253601, at *8, 13 (refers to legislative

findings “that the inundation of calls by professional telemarketers,

irrespective of any specific message, is intrusive and unwelcome in

terms of residential privacy interests,” and that professional

telemarketers “are likely to resort to more aggressive tactics, make

calls when residents least desire them, draw on their expertise in

overcoming residents’ attempts to terminate the calls, and make as

many solicitation calls as possible in a given time-frame”); id. at

*12 (stating “the undisputed evidence demonstrates that the

{Indiana} Act’s general prohibitions have already dramatically

reduced the burden placed on residents from the inundation of

unwanted telemarketing calls.”).

18

three-day public forum, the FTC concluded that “consumers

are disturbed by unwanted calls regardless of whether the

caller is seeking to make a sale or to ask for a charitable

contribution.” 68 Fed. Reg. 4580-01, 4637. See also

Telephone Consumer Protection Act of 1991, Pub. L. No.

102-243, § 2, 105 Stat. 2394§§ (finding “[m]any customers

are outraged over the proliferation of intrusive, nuisance calls

to their homes from telemarketers”); id. (finding

telemarketing to~be “a risk to public safety” when “an

emergency or medical assistance telephone line is seized.”).

More recently, during the FTC’s hearings leading up to

the Proposed Rule, consumer commentators unanimously

testified that they dislike the intrusiveness and inconvenience

of telemarketing and that they wanted to be free of these calls.

Telemarketing Sales Rule, Proposed Rule, 67 Fed. Reg.

4492-01, 4518 (Jan. 30, 2002) (to be codified at 16 C.F.R.

pt. 310). The FIC also received studies showing that

consumers rate telemarketing calls at the top of the scale of

consumer nuisances. /d. at 4518 nn.246-47 (citing a study

submitted by the National Consumer League showing 49% of

respondents give telemarketing the highest rank of everyday

experiences that bother them and a 1999 poll conducted by the

State of Kentucky showing 80% of respondents found

telemarketing calls to be annoying and intrusive).

2. The Act is narrowly tailored.

This Court has held the location to which a regulation

applies is a significant factor to be considered not only in

determining the strength of the government interest, but also

in determining whether the regulation is reasonable and

narrowly tailored. See Hill, 530 U.S. at 724, 728. The

element of private choice is also a significant factor in this

determination. The seminal case on this point is Rowan,

19

where this Court upheld an opt-in do-not-mail list system.

Under the challenged statute, the Postmaster could issue an

order directing the sender of offensive mail to refrain from

further mailings upon request from the addressee. 397 U.S.

at 730. As explained by the Court, “the mailer’s right to

communicate is circumscribed only by an affirmative act of

the addressee giving notice that he wishes no further mailings

from that mailer.” /d. at 737. The statute’s element of

private choice, coupled with the government’s interest in

protecting residential privacy, proved dispositive.

“Congress,” the Court explained, “has erected a wall--or

more accurately permits a citizen to erect a wall--that no

advertiser may penetrate without his acquiescence.” /d. at

738. See also National Fed’n of the Blind, 420 F.3d at 342

(stating “[i]f consumers are constitutionally permitted to opt

out of receiving mail which can be discarded or ignored, then

surely they are permitted to opt out of receiving phone calls

that are more likely to disturb their peace”); Mainstream

Mktg., 358 F.3d at 1242 (stating “[t}he Supreme Court has

repeatedly held that speech restrictions based on private

choice (i.e.,--an opt-in feature) are less restrictive than laws

that prohibit such speech directly.”); Bland, 88 F.3d at 733

(upholding prohibition of automatic-dialing and announcing

devices except with householder consent, explaining the

statute made “no decisions for the called parties who remain

free to decide for themselves whether or not to listen to

prerecorded messages”); Carter, 2005 WL 2253601, at *10.

Based upon this precedent, the Eighth Circuit properly

found the Act, which applies to residential subscribers only

and permits individual subscribers to decide whether to

prohibit calls, is narrowly tailored. Due to the opt-in nature

of the Act, the Act eliminates only those phone calls that

citizens themselves expressly do not want to receive.

Individual subscribers, not the government, decide whether

20

and which calls are unwanted and disrupt residential privacy.

The Act implements each subscriber’s decision, and leaves

room for the subscriber to modify what calls are banned so

only unwanted calls are eliminated. If registered subscribers

wish to receive any calls defined as a “telephone solicitation, ”

they can give their consent or permission for a caller to make

the telephone solicitation. See N.D. Cent. Code § 51-28-

01(7)(a), Pet. App. 28a. Thus, the Act is the embodiment of

counsel given in Martin v. City of Struthers, 319 U.S. 141

(1943), where this Court indicated that a statute that makes it

an offense to “ring the bell of a householder who has

appropriately indicated that he is unwilling to be disturbed”

is acceptable because the statute “leaves the decision . .

where it belongs--with the homeowner.” /d. at 148. The Act

permits telephone subscribers to “appropriately indicate” they

are “unwilling to be disturbed.” Subscribers have the right to

do so. Rowan, 397 U.S. at 737 (“The Court has traditionally

respected the right of a householder to bar, by order or

notice, solicitors, hawkers, and peddlers from his property.”).

3. The Act leaves open ample alternatives for

- communication.

The Eighth Circuit’s conclusion the Act leaves open ample

alternative channels of communication is also in accord with

this Court’s precedent. The lower court noted the Act only

“prohibits calls to the homes of residents who have chosen not

to receive calls from professional charitable solicitors.” Pet.

App. 8a. Unless consumers take the affirmative act of

registering their residential telephone number, charities

remain free to use the telephone to contact North Dakota

consumers. And even if that affirmative action is taken,

employees or volunteers of charities may still solicit funds.

Pet. App. 8a. Further, charities and non-charities are free to

communicate their message to residents in person (door-to-

21

door, on the street corner, from booths, efc.), by mail,

through newspapers, magazines, leaflets, the yellow pages,

billboards, posters and signs, and over the radio, television

and Internet. Pet. App. 8a.

Petitioners’ assertion that Riley, 487 U.S. 781, Secretary

of State of Md. v. Joseph H. Munson, Co., 467 U.S. 947

(1984), and Schaumburg, 444 U.S. 620, demand a different

outcome are misplaced. As explained by the Fourth Circuit,

those “cases are, quite frankly, horses of a different color.”

National Fed’n of the Blind, 420 F.3d at 343. Judge

Wilkinson’s explanation as to why that trilogy of cases does

not dictate a different result is equally persuasive in this case.

Id. at 343-45. “Those three cases, as the Supreme Court has

subsequently explained, considered ‘prophylactic statutes

designed to combat fraud by imposing prior restraints on

solicitation when fundraising fees exceeded a specified

reasonable level.’” /d. at 343 (quoting Jllinois, ex rel

Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 612

(2003)). The Act, on the other hand, places no limitation on

the amount of a telemarketer’s fee, and is designed to protect

residential privacy through content neutral place and manner

restrictions.

The lower court’s analysis is consistent with, and

appropriately applies, the time, place, and manner precedent

of this Court.

C. Petitioners’ other arguments are not properly

before the Court.

In an attempt to justify their demand for this Court’s

attention, Petitioners go beyond the scope of the arguments

they made below, as well as the decision of the Eighth

Circuit. Those arguments are not properly before the Court.

: 22

See Clingman, 125 S. Ct. at 2041-42; Cooper Indus., 543

U.S. at 168-69.

1. The Act does not impermissibly mandate

speech.

Although touched upon at page 17 of the Petition, the

Eighth Circuit did not address, and Petitioners did not raise to

the Eighth Circuit, whether the Act impermissibly mandates

speech. Because this issue was not raised below or addressed

by the Eighth Circuit, review is not warranted.’

In any event, Riley does not support Petitioners’ position.

N.D. Cent. Code 51-28-01(7)(c)(2), Pet. App. 28a, requires

the caller disclose the caller’s first and last name and the

name, address, and telephone number of the organization. In

Riley, however, the plaintiff did not challenge, and the Court

did not address, a requirement that the caller disclose his or

her name and the name of the organization. 487 U.S. at 786.

Also, under the Riley analysis, compelling disclosure of

the caller’s name and the name, address, and telephone

number of the organization is constitutional. Such a

disclosure would not “substantially burden” any protected

speech. /d. at 798. In fact, accurately identifying the

organization for which the call is being made can do nothing

but help further the organization’s mission. But even if the

required disclosure did minimally burden speech, such burden

is remote or incidental and does not raise First Amendment

concerns. /d. at 799 n.11 (stating “nothing in this opinion

should be taken to suggest that the State may not require a

c

” Although this issue was raised at the district court, the district

court also did not address it.

23

fundraiser to disclose unambiguously his or her professional

status”); see also Indiana Voluntary Firemen’s Ass’n v.

Pearson, 700 F. Supp. 421, 442 (S.D. Ind. 1988).

Thus, even if the Eighth Circuit did address this issue,

which it did not, a holding in favor of Respondent would not

be inconsistent with Riley.

2. Maintenance of the registry is not properly

before the Court.

The decision below also did not address Petitioners’

assertion the Act lacks appropriate mechanisms to ensure

telephone numbers on the list are accurate, or a procedure to

remove telephone numbers from the list. Pet. 8. Equally

fatal to review is the fact this concern challenges the

implementation of the Act, which is not an appropriate

argument in a facial challenge. See Frisby, 487 U.S. at 488;

Carter; 2005 WL 2253601, at *10 n.13.

Moreover, the Act does take steps to ensure old numbers

are removed from the lists. N.D. Cent. Code § 51-28-

09(1)(b), Pet. App. 32a, provides that “notice given by a

subscriber . . . is effective for five years unless revoked by

the subscriber.” Thus, a subscriber can remove the

subscriber’s number from the list, and a subscriber must

periodically renew the subscriber’s request to remain on the

do-not-call list. Furthermore, the Attorney General has

authority to “adopt rules governing the establishment,

distribution, and operation of the do-not-call list.” N.D.

Cent. Code § 51-28-09(1), Pet. App. 3la. If, as the statute

is implemented, concerns exist regarding individuals without

authority placing numbers on the list or numbers not being

24

renewed on the list, the Attorney General can adopt rules

addressing those issues.*

There is no reason, in the context of a facial challenge, to

assume the Attorney General will allow invalid phone

numbers to accumulate on the list. And even if a few

unauthorized numbers are on the list, that would not provide

a basis for invalidating the entire law. It would not represent

the sort of “substantial overbreadth” necessary for facial

invalidation. See New York State Club Ass'n v. City of New

York, 487 U.S. 1, 11 (1988) (explaining that a “facial

challenge will not succeed unless the statute is ‘substantially’

overbroad”) (citation omitted); New York v. Ferber, 458 U.S.

747, 771 (1982) (“The premise that a law should not be

invalidated for overbreadth unless it reaches a substantial

number of impermissible applications is hardly novel.”); see

also Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)

(stating “the overbreadth of a statute must not only be real,

but substantial as well”).

3. The Act does not favor commercial speech.

Also not properly before the Court is Petitioners’ assertion

the Act treats some commercial speech more favorably than

charitable speech. Pet. 24. The lower court did not address

this issue. Furthermore, Petitioners’ assertion N.D. Cent.

Code N.D.C.C. § 51-28-01(7)(b), the established business

relationship exception, treats commercial speech more

favorably than charitable speech is an “as applied” challenge,

not appropriate in this facial challenge. Respondent has not

* Indiana has promulgated regulations providing comprehensive

procedures to compile and to maintain an accurate telephone-

privacy list. See Ind. Admin. Code tit. 11, r. 2-2, et seq.

25

applied the established business relationship as interpreted by

Petitioners.” If an actual case or controversy does ever arise

regarding application of the established business relationship

exception, North Dakota courts will resolve that case or

controversy.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

State of North Dakota

WAYNE STENEHJEM

Attorney General

DOUGLAS A. BAHR

Counsel of Record -

Solicitor General

OFFICE OF THE ATTORNEY GENERAL

500 North 9" Street

Bismarck, ND 58501-4509

Telephone (701) 328-3640

Facsimile (701) 328-4300

April 10, 2006

* Based upon North Dakota statutory law, Respondent interprets

N.D. Cent. Code § 51-28-01(7)(b) to apply to charities and

commercial entities alike. See N.D. Cent. Code § 51-15-01(3), (5).

oo Supreme Court, U.S. '

ay FILED |

MAY 8 - 2006 |

No. 05-1149 OFFICE OF THE CLERK |

IN THE

Supreme Court of the Anited States

FRATERNAL ORDER OF POLICE, NORTH DAKOTA

STATE LODGE; VETERANS OF FOREIGN WARS,

DEPARTMENT OF NORTH DAKOTA,

Petitioners,

¥;

WAYNE STENEHJEM, In his official capacity as

Attorney General of the State of North Dakota,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

REPLY BRIEF

RONALD J. KOHUT ERROL COPILEVITZ

K OHUT & KOHUT LLP Counsel of Record

3554 Round Burn Blvd., WILLIAM RANEY

Suite 204 COPILEVITZ & CANTER, LLC

Santa Rosa, CA 95403 423 W. 8th Street

(707) 573-3100 Suite 400

Kansas City, Missouri 64105

(816) 472-9000

May 8, 2006 Attorneys for Petitioners

WILSON-EPES PRINTING CO.,INC. — (202)789-0096 -— WASHINGTON, D. C.20001

TABLE OF CONTENTS

Page

MRE APE PAE) LESCIORE EMEC vycesncovvnscsscicendcvsturoesevsescseses il

aca La vasaseataveciivesevescssvaersateasioasescens l

A. The Court Should Consider this Petition

Concurrently with the Petition for a Writ of

Certiorar: Regarding National Federation of

i ec sis kctieaich dhicdndenakcsronidsaabenevivesecets I

B. Petitioners Contend the Act is Unconstitu-

IE EF ROMIIRIION asc cis incase fotoccsvsnvessoicces vocese 2

1. The Act is Content-Based; Not Content

DI Goode. hss scesk dan cacavunedujacnssicebansaieanecnis +

2. The Act is Not “Narrowly Tailored” ........... 6

3. The Regulation of the Speech of Charities

Using Professional Fundraisers Cannot be

Justified by Privacy Intrusions Caused by

Commercial Telemarketing ....................0.. 8

C. Respondent Fails to Address the Act’s Vio-

lation of Equal Protection .......................cceeseeeees 9

I esis e cin ncsukcavasunynistacyaiepeeiv saves 10

(1)

il

TABLE OF AUTHORITIES

SUPREME COURT CASES Page

Cantwell v. State of Connecticut, 310 U.S. 296

CFI iscss ceshncctacsianevisickvesndobedslededivvctiacosioeiclians :

City of Cincinnati v. Discovery Network, Inc.,

SE Re aks A ae a atncienctibiachishtinajasvassuctioies 4

Rowan v. United States Post Office, 397 U.S. 728

NAIM a ie bss cise vind seatinckibsnbditentan Sceonh Dacca 4-7

United States v. Playboy Entertainment Group,

Bie: SPI ALS. BGS IY akccacesetiichocccentha tickers 4

OTHER CASES

Bland v. Fessler, 88 F.3d 729 (9th Cir. 1996)....... coe

Fraternal Order of Police v. Stenehjem, 431 F.3d

DPE CI i ie Eo okctrcsens Iie ecsetesdacteenatiets 8

Mainstream Marketing Services, Inc. v. FTC, 358

F.3d 1228 (10th Cir. 2004), cert denied 543

BF EE GREE sisecsecexcccdiccgpuvncavecctapasiacsbeonanteies 3,8

National Federation of the Blind v. Federal

Trade Commission, 420 F.3d 331 (2005).......... passim

National Federation of the Blind v. Pryor, 258

Re i Ei: 9 RRR RR eon onda tia 9

State by Humphrey v. Casino Mktg. Group, Inc.,

492 N.W.2d 882 (Minn. 1992) ............ eee 9

Szefczek v. Hillsborough Beacon, 668 A.2d 1099

(N.J.Super.Ct. Law. Div. 1995) .<c.. :...6.... ci ccsiecee 9

Van Bergen v. Minnesota, 59 F.3d 1541 (8th Cir.

SFPD Pa sesssdscistoovnesatsisnuisel satan tintin cisieaeieut 9

CONSTITUTIONAL PROVISIONS

U.S. Constitution, First Amendment ..................... 4

U.S. Constitution, Fourteenth Amendment ........... 9-10

STATUTES

North Dakota Cent. Code Chapter 51-28-01 ef

DOME casscccdasosevacsseresdnicunmcannincls percemsiaamvecaiee l

Pursuant to Supreme Court Rule 15, Petitioners Fraternal

Order of Police, North Dakota State Lodge; Veterans of

Foreign Wars, Department of North Dakota (‘‘Petitioners’’)

respectfully submit this Reply Brief in Support of the Petition

for a Writ of Certiorari (the “Petition”) and (A) request that

the Court consider the Petition concurrently with the “Petition

for a Writ of Certiorari” filed in the matter entitled National

Federation of the Blind v. Federal Trade Commission, 420

F.3d 331 (2005), Case No. 05-927; and (B) address matters

newly raised in the “Brief in Opposition” (the “Opposition”’)

filed on behalf of Wayne Stenehjem, in his official capa-

city as Attorney General of the State of North Dakota

(“Respondent”).

ARGUMENT

A. The Court Should Consider this Petition Concur-

rently with the Petition for a Writ of Certiorari

Regarding National Federation of the Blind.

This case and National Federation of the Blind present

similar questions regarding the constitutionality of charitable

speech restrictions that apply to charities using professional

fundraisers, but do not apply to charities using staff or volun-

teer fundraisers. Petitioners request that the Petitions be

considered together, and that review be granted in both cases.

In this case, the Eighth Circuit has upheld North Dakota

Cent. Code Chapter 51-28-01 et seq. (the “Act’) extending

the national do-not-call registry (the “National Registry”) to

charities using professional fundraisers in North Dakota.’

' While this challenge is a “facial challenge.” it is important to consider

that the Act effectively bans telephone solicitations by charities that are

unable to afford in-house fundraisers. Charities that cannot afford their

own fundraising staff certainly cannot afford to purchase the equipment or

pay the fees necessary to maintain the National Registry. Even now, the

FTC is seeking to increase the fees for the National Registry. See www.

2

The Act does not apply the National Registry to charities

using staff or volunteer fundraisers.

The National Registry is maintained by the Federal Trade

Commission (the “FTC’’) and the Federal Communications

Commission (the “FCC”). The FTC and FCC do not impose

the National Registry on any charitable calls, including calls

made by professional fundraisers. The FTC imposes other

burdens selectively on charities using professional fund-

raisers, however, including an entity specific. do-not-call

provision (requiring the charities to maintain a record of all

persons called who request not to be called again), calling

time restrictions, a requirement that telefunders transmit

caller-ID information and promptly identify the call as a

solicitation, and a prohibition on abandoned calls. These

restrictions were upheld by the Fourth Circuit in National

Federation of the Blind.

Both this decision and the decision in National Federation

of the Blind impose expensive—prohibitively expensive—

burdens on the speech of charities that already are so poor

that they cannot afford to hire their own fundraising staff, and

are forced to turn to professional fundraisers. On their face,

these burdens are unconstitutional under the First and

Fourteenth Amendments.

B. Petitioners Contend the Act is Unconstitutional;

Not Preempted.

ee

In the Opposition, Respondent concedes that: “. . . neither

the FCC nor the FTC prohibits telemarketing calls on behalf

of charities to all federally-registered telephone subscribers”

and ‘North Dakota does not maintain a separate state registry;

it merely enforces its substantive no-call law for the benefit of

North Dakota residents who have registered for the federal

ftc.gov’/os'/2006'04/P034305TSRFeesNPRandRequestforPublicComment

FRNotice.pdf.

3

list. . . .” (Opposition, p.-7-8.) These concessions prove

Petitioners’ point—that North Dakota 1s selectively extending

the National Registry to charitable speech by charities em-

ploying professional fundraisers.

Respondent seeks to deflect this challenge by mischarac-

terizing Petitioners’ argument as a preemption argument, and

arguing that the substantive regulations of the FTC and FCC

cannot preempt North Dakota’s ability to regulate telephone

solicitations. (Opposition, p. 5-7.) However, Petitioners are

not arguing preemption or seeking to preclude North Dakota

from regulating telephone solicitations. Instead, Petitioners

contend that North Dakota is attempting to do what the FTC,

FCC, and Tenth and Fourth Circuits have suggested cannot be

done within the bounds of the United States Constitution.

As noted in the Petition, the FTC and FCC exempt

charitable calls from the National Registry in recognition of

the potential constitutional violations that would result from

its application. The Tenth and Fourth Circuit Courts of

Appeal have sanctioned this exemption. See Mainstream

Marketing Services, Inc. v. FTC, 358 F.3d 1228 (10th Cir.

2004) cert. denied, 543 U.S. 812 (2004) (upholding the

application of the national do-not-call restrictions to commer-

cial speech only, and noting the exemption of charitable

calls); and National Federation of the Blind, 420 F.3d 331

(upholding the application of company-specific call restric-

tions to charitable solicitation by professional fundraisers).

Thus, Petitioners do not argue that the Act is preempted, but

that it is unconstitutional, and cite in support the agencies that

are charged with applying the National Registry and the

Courts of Appeal that have reviewed their decisions.

In the Opposition, Respondent attempts to refute Peti-

tioner’s constitutional argument by claiming that the exten-

sion is content-neutral, narrowly tailored and justified by

the privacy invasions caused by commercial telemarketing.

Respondent’s arguments lack merit.

4

1. The Act is Content-Based; Not Content Neutral.

In the Opposition,- Respondent argues that the Act is

content-neutral because it targets calls by charities employing

professional fundraisers based on the Legislature’s judgment

that these charities are able to generate a greater “sheer

volume” of calls than charities using staff and volunteer

fundraisers. Opposition, p. 13.

The First Amendment is intended to protect and promote

speech. See U.S. Constitution, First Amendment (“Congress

shall make no law . . . abridging the freedom of speech. . . .”’)

Under the First Amendment, “more speech” is not an evil to

be remedied; it is a constitutional value to be protected. The

Act is not an attempt to regulate speech to serve a legitimate

governmental interest; it is simply an attempt to lessen the

“sheer volume” of speech by banning it.

Further, Respondent’s argument that charities using pro-

fessional fundraisers generate more calls is speculative and

without any evidentiary support. If charities using pro-

fessional fundraisers were so successful, they would quickly

generate the funds necessary to hire fundraising staff in order

to avoid the high fees charged by professional fundraisers.

Like the FTC’s assertion in National Federation of the Blind

that professional fundraisers are more likely to engage in

“more abusive and coercive telemarketing” than staff or a

volunteer, Respondent’s argument fails for want of factual

support. See City of Cincinnati v. Discovery Network, Inc.,

507 U.S. 410, 414 (1993) (holding that it is the government’s

burden to establish a reasonable fit between its legitimate

interests and regulation of speech); and United States v.

Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000)

(holding that “anecdotal evidence” failed to satisfy the gov-

ernment’s burden in regulating speech).

Speech regulation is content-based if it requires the gov-

ernment to review the content of speech in order to apply the

regulation. In Rowan v. United States Post Office, 397 U.S.

5

728 (1970), for example, the Court upheld a statute allowing a

resident to instruct the Post Master General to stop unwanted

mailings. The Court construed the statute as vesting discretion

over the characterization of the subject mailings with the

resident, instead of the Postmaster General, in order “to avoid

possible constitutional questions that might arise from vesting

the power to make any discretionary evaluation of the material

in a government official.” /d. at 744. The Court noted that the

statute could not vest power in a government official to

determine “whether the materials were ‘similar’ or ‘possessing

touting or pandering characteristics” because that would

engage the government in “an evaluation suspiciously like

censorship.” /d. at 735.

The Act is content-based because it requires the govern-

ment to review of the content of a charitable solicitation in

order to determine whether the Act has been violated—

contrary to Rowan. “The Act defines ‘telephone solicitation’

as ‘any voice communication over a telephone line for the

purpose of encouraging charitable contributions. ...’” Op-

position, p. 1. This definition requires the government to

review the content of a solicitation to determine whether it is

made to “encourage charitable contributions,” as opposed to

being made to “educate” the recipient of the call about the

charity’s activities.

The content-based nature of the Act is exacerbated because

it grants the government discretion to determine that a call

violates the Act even if it does not explicitly encourage

solicitation. Calls violate the Act if they are made “for the

purpose” of encouraging charitable contributions, even if they

do not expressly request a donation. There are no guidelines

or limitations on how the government is to determine the

charity’s subjective intent in making the call, however.

Therefore, the Act is unconstitutional for the additional rea-

son that it confers discretionary authority in the government.

See Cantwell \. State of Connecticut, 310 U.S. 296, 307

(1940) (holding that “to condition the solicitation of aid for

6

the perpetuation of religious views or systems upon a license,

the grant of which rests in the exercise of a determination by

State authority as to what is a religious cause, is to lay a

forbidden burden upon the exercise of liberty protected by the

Constitution.”).

Based upon the foregoing, and contrary to Respondent’s

arguments in Opposition, the Act is content-based.

2. The Act is Not “Narrowly Tailored.”

In the Opposition, Respondent argues that the courts below

properly found that the Act is “narrowly tailored” and there-

fore constitutional, in that:

“The lower court noted the Act only ‘prohibits calls to

the homes of residents who have chosen not to receive

calls from professional charitable solicitors.” (Oppo-

sition, p. 20, emphasis added.)

“. . . the Eighth Circuit properly found the Act, which

applies to residential subscribers only and permits indi-

vidual subscribers to decide whether to prohibit calls, is

narrowly tailored. Due to the opt-in nature of the Act,

the Act eliminates only those phone calls that citizens

themselves expressly do not want to receive. Individual

subscribers, not the government, decide whether and

which calls are unwanted and disrupt residential privacy.

The Act implements each subscriber’s decision, and

leaves room for the subscriber to modify what calls

are banned so only unwanted calls are eliminated.” (/d.,

pp. 19-20, emphasis added.)

In support of this argument, Respondent cites to Rowan,

397 U.S. 728, and argues that the Act permits the resident to

decide whether to stop charitable solicitations by signing up

on the National Registry.” However, in Rowan, the residents

u e . . * . °

~ Rowan ts inapplicable to this case, because it (a) involved purely

commercial speech: whereas this case involves charitable speech; (b) up-

held an “opt-in” that enabled a resident to prohibit an identified com-

7

knew what they were signing up for. North Dakota residents

signing up for the National Registry do not knowingly

“choose” or “decide on” its application to charities at all,

much less its limited application to solicitations by charities

using professional fundraisers. The FTC and FCC do not

apply the National Registry to any charitable calls. Indi-

viduals signing up for the National Registry are expressly told

that the National Registry does not apply to charitable

speech. Consequently, North Dakota residents signing up

for the National Registry cannot be said to have “chosen” or

“decided” not to receive calls from charities using profes-

sional fundraisers. In fact, the Act prevents residents who

welcome charitable calls from receiving charitable calls from

poorer charities using professional fundraisers, if they have

signed up with the National Registry to avoid commercial

telemarketers. It is the State—not the individual resident—

that has decided to stop charitable calls through the National

Registry.

In support of its narrowly tailored argument, Respondent

also cites to National Federation of the Blind (upholding the

mercial mailer from continuing to send mail solicitations to him, sim-

ilar to the FTC’s company-specific do-not-call prohibition: whereas this

case involves a blanket prohibition on any calls by professional fund-

raisers; and (c) the statute in Rowen had been amended to ensure that the

government did not participate in any content review; whereas the Act

requires content review by the government to determine whether the solic-

itation 1s made “for the purpose of encouraging” charitable contributions.

* In fact, the FTC's current web-site (www.donotcall.gov) expressly

represents «hat the national do-not-call registry does not apply to

charitable calls. It states, in part: “30. Are calls from political organi-

zations or calls soliciting for charities covered? .. . Charities are not

covered by the requirements of the national registry. However, if a third-

party telemarketer is calling on behalf of a charity, a consumer may ask

not to receive any more calls from. or on behalf of, that specific charity. If

a third-party telemarketer calls again on behalf of that charity. the

telemarketer may be subject to a fine of up to $11,000." (Emphasis added.)

8

FTC’s company-specific do-not-call list on the ground that

the company-specific approach is “narrowly tailored” com-

pared to the National Registry); Mainstream Marketing

(upholding the application of the National Registry to core

commercial speech), and Bland v. Fessler, 88 F.3d 729 (9th

Cir. 1996) (upnolding a prohibition on the use of automatic-

dialing and announcing devices). These authorities simi-

larly fail to support Respondent’s “opt-in” argument because,

again, there is no evidence that North Dakota residents

knowingly “opt-in” to the application of the National Registry

to charitable solicitation by charities using professional

fundraisers.

3. The Regulation of the Speech of Charities Using

Professional Fundraisers Cannot be Justified by

Privacy Intrusions Caused by Commercial Tele-

marketing.

Respondent’s agrument boils down to one simple proposi-

tion: Any ban on any type of telephone solicitation is good,

hence constitutional, because it furthers the government’s

interest in protecting the privacy of the home. The Eight

Circuit adopted this “big picture” definition of the problem,

stating: “In the case before us, the overall problem is the

intrusion on residential privacy caused by unwanted telephone

solicitation.” See Fraternal Order of Police v. Stenehjem, 431

F.3d 591, 598 (8th Cir. 2005); Pet. Appx., p. 6a, emphasis

added. The Eight Circuit relied upon the North Dakota Legis-

lature’s “judgment” that less speech is better, stating: “In this

facial challenge, we are reluctant to second-guess the North

Dakota Legislature’s judgment that professional charitable

solicitors intrude more regularly on residents’ privacy than

volunteers or employees and that the Act is a necessary means

of enabling its citizens to halt these intrusions.” J/d., 431 F.3d

at 598; Pet Appx., p. 5a, emphasis added.

In the Opposition, Respondent claims that the North

Dakota Legislature’s “judgment” that the National Registry

9

should be selectively applied to charities using professional

fundraisers was based on “factual findings of other entities”

regarding privacy intrusions caused by commercial telemar-

keting. See Opposition, p. 17, n. 5, citing National Federa-

tion of the Blind v. Pryor, 258 F.3d 851, 856 (2001) (referring

broadly to “unwanted telephone solicitations” of all types,

including commercial solicitations); Van Bergen v. Minne-

sota, 59 F.3d 1541 (8th Cir. 1995) (referring to the use of

automatic telephone dialing-announcing devices for all types

of calls, including commercial and political calls); State by

Humphrey v. Casino Mktg. Group, Inc., 492 N.W.2d 882, 888

(Minn. 1992) (referring to commercial solicitations by auto-

matic dialing—announcing devices); and Szefczek v. Hills-

horough Beacon, 668 A.2d 1099 (N.J.Super.Ct. Law. Div.

1995) (referring to commercial speech).

While it is not clear whether the North Dakota Legislature

actually considered these authorities as justifying the exten-

sion of the National Registry to charitable speech, if it did,

there is even more reason to find the Act unconstitutional. If

it relied on these authorities, the North Dakota Legislature

lacked evidence that (a) charities using professional fund-

raisers made any invasive calls to North Dakota residents;

(b) there was a “sheer volume” of such calls; and (c) residents

considered such calls to be more intrusive than calls by chari-

ties using fundraising staff or volunteers. Under the First and

Fourteenth Amendments, a selective ban on the speech of

charities cannot be justified by privacy intrusions caused by

commercial telemarketing. :

C. Respondent Fails to Address the Act’s Violation of

Equal Protection.

The Fourteenth Amendment provides: “No State shall

make or enforce any law which shall . . . deny to any person

within its jurisdiction the equal protection of the laws.”

The Act violates the equal protection clause of the Four-

teenth Amendment by discriminating among similarly situ-