National Coalition of Prayer, Inc. v. Carter

455 F.3d 783, 2006 WL 2088279
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 28, 2006
Docket05-3995
StatusPublished
Cited by4 cases

This text of 455 F.3d 783 (National Coalition of Prayer, Inc. v. Carter) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Coalition of Prayer, Inc. v. Carter, 455 F.3d 783, 2006 WL 2088279 (7th Cir. 2006).

Opinions

FLAUM, Chief Judge.

Plaintiffs are charities that Indiana’s Telephone Privacy Act (“the Act”) precludes from fundraising through professional telemarketers. They claim that the Act violates their First Amendment right to freedom of speech because it is content-based, underbroad, and a prior restraint on speech. The district court granted summary judgment to the State, and Plaintiffs now appeal. For the following reasons, we affirm the decision of the district court.

I. Background

In May 2001, Indiana’s governor signed into law the Indiana Telephone Privacy Act, codified at Indiana Code § 24^4.7. The Act creates a statewide do-not-call list and allows Indiana residential telephone customers to add themselves to this list. Once citizens affirmatively place their telephone numbers on the list, “telephone solicitors” cannot legally call the numbers for a “telephone sales call.” The Act defines a “telephone solicitor” as “an individual, a firm, an organization, a partnership, an association, or a corporation ... doing business in Indiana.” Ind.Code § 24-4.7-2-10. A “telephone sales call” is any call made to “solicit[]” a “sale of consumer goods or services” or a “charitable contribution,” or to “obtain[ ] information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes.” Ind.Code § 24-4.7-2-9.

The Act exempts certain calls from its purview. Most relevant to this case, the Act permits “telephone call[s] made on behalf of a charitable organization that is exempt from federal income taxation under Section 501 of the Internal Revenue Code, but only if ... [t]he telephone call is made by a volunteer or an employee of the charitable organization!, and] the telephone solicitor who makes the telephone call immediately discloses ... [his or her] true first and last name [and t]he name, address, and telephone number of the charitable organization.” Ind.Code § 24-4.7 — 1 — 1(3). The Act also exempts calls soliciting newspaper sales, if the calls are made by an employee of or volunteer for the newspaper company. Ind.Code § 24-4.7-l-l(6). Finally, the Act permits a licensed real estate agent or insurance agent to personally call registered numbers under specified circumstances. Ind. Code § 24-4.7-1-1(4) — (5). The Indiana Attorney General has also recognized an “implicit exclusion” for calls soliciting political contributions.

The State asserts that the Act was prompted by citizen complaints about tel[785]*785emarketers’ increasing intrusions on residential privacy. According to one witness in a state court trial concerning the Act, during a single four-hour shift over the course of a month, her telemarketing company alone could make up to 16,000 telephone calls. Many Indiana residents found the calls to be an invasion of the tranquility and privacy of their homes. The State has produced several affidavits from such residents that support this observation. The legislature believed its initial response to curb unwanted calls- — requiring citizens to tell each individual telemarketing firm to take their names off of the firm’s call list — had proven ineffective. Accordingly, it passed the Act to give homeowners a more effective method of preventing unwanted and intrusive calls. The Act became effective on January 1, 2002, approximately seven months after the governor signed it into law. Later that month, Indiana commissioned a professional survey to study the Act’s efficacy. That survey reflects that calls to numbers registered on the do-not-call list dropped from an average of 12.1 per week to an average of 1.9 per week. Nearly 98% of the residents who had registered their telephone numbers reported receiving “less” or “much less” telemarketing interruption since the Act became law. In June 2003, the survey-ers concluded that the Act had been effective in reducing the volume of unwanted calls to Indiana homes. Indeed, by May 2003, about half of Indiana’s residential lines had been registered on the state’s do-not-call list. By late 2005, another 500,000 numbers had been added.

The Plaintiffs in this case are all tax-exempt charities. They wish to use telemarketers to solicit donations for their charitable causes. They claim that the Act violates their First Amendment rights, because it prohibits them from using telemarketers to call the numbers registered on the do-not-call list. On cross motions for summary judgment, the district court found in favor of the State, and Plaintiffs now appeal.

II. Discussion

A. Standing

The first issue we must address is which portions of the Act Plaintiffs have standing to challenge. Plaintiffs claim that they may challenge the entire Act, even the provisions applicable only to commercial speakers, while the State claims that Plaintiffs may challenge only provisions that could be enforced against them. Plaintiffs’ arguments fall into two main categories: that the provisions aimed at commercial speakers show the “real purpose” of the Act, and that commercial speakers may not be treated more favorably than charitable speakers.

The “real purpose” line of argument is easier to dispose of. Plaintiffs’ argument is essentially that the exemptions in the Act for certain commercial speakers and political fundraising directly injure the Plaintiffs because they show the “true motive behind the Act, i.e. to suppress ‘reviled’ speakers vis a vis more favored speakers.” To support this argument, the Plaintiffs cite the Supreme Court’s decision in City of Cincinnati v. Discovery Network, 507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). In that case, Cincinnati had passed a law regulating only commercial newsracks, which represented 62 of the over 1,500 newsracks on the city’s streets. Discovery Network, 507 U.S. at 418, 113 S.Ct. 1505. The Court held that the exception for non-commercial handbills in the Cincinnati ordinance bore no relationship to the city’s asserted interests in passing the regulation, and was so' broad as to render the legislation ineffective. Id. at 424-28, 113 S.Ct. 1505. Therefore, the Court held, the ordinance was an imper[786]*786missible means of addressing a legitimate public interest. Id. The Plaintiffs claim that this holding reflects that exceptions within an ordinance can show an impermissible “true reason” behind legislation, and any disfavored plaintiff can request that the Act be invalidated on that basis.

Discovery Network does not hold that exceptions to rules can reveal the “real purpose” of an act or that this “real purpose” can directly injure anyone. The case instead stands for the proposition that commercial speech cannot lightly be singled out as “less valuable” than other speech, and that restrictions on commercial speech, like restrictions on “core” First Amendment speech, must directly further a legitimate state interest.

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National Coalition Of Prayer, Inc. v. Steve Carter
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Bluebook (online)
455 F.3d 783, 2006 WL 2088279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-coalition-of-prayer-inc-v-carter-ca7-2006.