Originally published on July 15, 2002
A state court in Evansville, Indiana upheld the 2001 Indiana Telephone Privacy Act. On July 5, 2002, Vanderburgh Circuit Judge Carl Heldt ruled against Steve Martin & Associates on its constitutional free speech and equal protection challenges to the law and also in its claim that the do-not-call law had been wrongly applied to its business activity. The company was prosecuted for making calls to set up at-home demonstrations of the rug shampooer it distributes. Judge Heldt held that the First Amendment did not prevent individuals from making their own decisions "to give audience to certain types of speech while avoiding others."
The court ruled that the law had not violated the plaintiff's right to equal protection by granting exemptions to non-profits that do their calling in-house, insurance and real estate agencies and newspapers. The court wrote that charitable organization calls are exempted in part because charitable soliciting is not "pure commercial speech" and because "charities play a role in society that justifies some level of special governmental treatment." Insurance and real estate calls were exempted in part because those two businesses already are regulated by the state and their agents are licensed. Those regulations tend to limit the number and types of calls made. The judge found newspapers are allowed to make calls under the law, in part, because "the product they are selling is, historically, a principle vehicle for protected First Amendment speech."
A separate challenge to the Indiana law, filed in U.S. District Court in Indianapolis on April 10, 2002 by four non-profit organizations that use outsourced telemarketing providers and thus do not qualify for the exemption, remains pending. That challenge also raises the equal protection issue.
Why This Matters: Do-not-call...