Hey, Teleparasites: Don’t Call Me

When the Oklahoma judge struck down the national Do Not Call List on Tuesday, I didn’t much care. He ruled on narrow grounds of statutory construction, and whether he was right or wrong, the remedies were quick and relatively painless as Congress showed today.

Today’s decision from Denver, however, is another matter entirely. The Denver judge bought the teleparasites’ First Amendment argument – that the Do Not Call List infringes their right to free speech. I disagree. True, the FTC is a government agency, and its regulations therefore constitute “state action.” Thus, if FTC regulations suppress speech in violation of the First Amendment, then they must be struck down. The Do Not Call regulations, however, suppress no speech at all. Not one word. Any speech that is “suppressed” by the Do Not Call List is suppressed because of the private choices of over 50 million (and counting) Americans. It seems to me that Zelman v. Simmons-Harris, decided just two terms ago, teaches that when a putatively objectionable outcome results from private choices, and the government acts merely as facilitator of those choices, there is no First Amendment violation.

There are two distinctions between this case and Zelman . First, Zelman was an Establishment Clause case, and not a free speech case. Though the two clauses exist in the same amendment, they have spawned two different bodies of law. Second, the government here is more than a neutral facilitator. It threatens to fine the teleparasites should they violate the rules (as they are sure to do). I am not troubled by the first distinction. Without state action, no clause of the Amendment – indeed, no provision of the Bill of Rights – can be violated. As I read Zelman (and I may be out on a limb here, but what the heck, it’s a blog), and the cases on which the Court there relies, it holds that not only must there be state action, but also a causal link between the state action and the putative Constitutional violation, in order to find that there be a Constitutional violation. Stated thusly, Zelman’s holding has “crossover” appeal to the teleparasites’ free speech case.

The second distinction is more troubling, because by threatening to fine the teleparasites, the government really does become more than a neutral facilitator. It can be argued, rather convincingly in view of the potentially enormous fines, that it is the government’s fines, and not the people’s choices, that is suppressing the teleparasites’ speech. Here’s an easy fix: delete the fines, and have Congress create a private right of action to sue violators. A few privately filed class actions ought to do the trick of putting teeth in the list without any Constitutional violation.