National Coalition of Prayer, Inc. v. Carter

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3995
NATIONAL COALITION OF PRAYER, INC.,
THE KENTUCKY-INDIANA CHAPTER OF PARALYZED
VETERANS OF AMERICA, INDIANA TROOPERS
ASSOCIATION, INC., and INDIANA ASSOCIATION OF
CHIEFS OF POLICE FOUNDATION,
Plaintiffs-Appellants,
v.
STEVE CARTER, in his official capacity as
Attorney General of the State of Indiana,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP02-C-0536-B/S—Sarah Evans Barker, Judge.
____________
ARGUED MAY 3, 2006—DECIDED JULY 28, 2006
____________
Before FLAUM, Chief Judge, and EVANS and WILLIAMS,
Circuit Judges.
FLAUM, Chief Judge. Plaintiffs are charities that Indi-
ana’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, under-
broad, and a prior restraint on speech. The district court
2 No. 05-3995
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 “so-
licit[]” 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 § 24-4.7-1-1(6).
Finally, the Act permits a licensed real estate agent or
No. 05-3995 3
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 contribu-
tions.
The State asserts that the Act was prompted by citizen
complaints about telemarketers’ 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 com-
pany 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 re-
sponse 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 surveyers concluded that the Act had been
effective in reducing the volume of unwanted calls to
Indiana homes. Indeed, by May 2003, about half of Indi-
ana’s residential lines had been registered on the state’s do-
not-call list. By late 2005, another 500,000 numbers had
been added.
4 No. 05-3995
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(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. The Court held that the exception
for non-commercial handbills in the Cincinnati ordinance
bore no relationship to the city’s asserted interests in
No. 05-3995 5
passing the regulation, and was so broad as to render the
legislation ineffective. Id. at 424-28. Therefore, the Court
held, the ordinance was an impermissible means of address-
ing 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. In this case, the Act’s restrictions
do bear a direct relationship to the state’s interest in
preventing unwanted phone calls. The State’s research, the
validity of which Plaintiffs do not contest, shows that
professional telemarketing firms’ calls apparently consti-
tuted the vast majority of unwanted phone calls that
consumers were receiving. The Act has caused registered
households to receive on average about 84% fewer un-
wanted calls, which amounts to approximately ten fewer
unwanted calls per week. This is in stark contrast to the
ordinance in Discovery Network, which regulated less than
five percent of the newsracks that Cincinnati claimed were
cluttering up its streets. Id. at 418. Discovery Network does
not create the new form of standing that the Plaintiffs
advocate, and is factually distinguishable in any event.
Plaintiffs also claim that they must have standing to
assert commercial speakers’ interests, because such speak-
ers can have standing to assert non-commercial speakers’
rights in certain First Amendment challenges. See, e.g.,
Broadrick v. Oklahoma, 413 U.S. 601, 611 (1973). The
Plaintiffs claim that this case is the converse—a non-
6 No. 05-3995
commercial speaker challenging on behalf of a commercial
speaker. The Plaintiffs therefore ask us to extend the
this First Amendment standing analysis to the situation
before us.
Plaintiffs’ argument does not reflect the logical converse
of the holdings in the cases they cite, but more importantly,
the argument ignores the policy reasons behind the Court’s
First Amendment standing doctrine. Commercial speakers
have ample incentive to challenge the Act as it applies to
them, unlike some speakers who might instead be “muted
and [leave their] perceived grievances . . . to fester.”
Broadrick, 413 U.S. at 612. We therefore believe that they
are the appropriate people to challenge such restrictions.1
Plaintiffs also argue that by refusing to grant them
standing in this case, we are necessarily treating commer-
cial speakers more favorably than non-commercial speak-
ers, which they believe is directly contrary to Supreme
Court precedent. We are not persuaded by this argument.
The reason that commercial speakers are allowed to assert
standing for non-commercial speakers is because we
presume that speech accorded greater protection will create
a stronger case against regulation. See, e.g., Broadrick, 413
U.S. at 612 (“In some cases, it has been the judgment of this
Court that the possible harm to society in permitting some
unprotected speech to go unpunished is outweighed by the
possibility that protected speech of others may be muted .
. .”). Charities, whose commercial speech enjoys enhanced
First Amendment protection, see Village of Schaumburg v.
Citizens for a Better Environment, 444 U.S. 620 (1980),
already possess a stronger First Amendment claim than
1
At least one group of commercial speakers has already unsuc-
cessfully challenged the National Do Not Call List. See Main-
stream Mktg. Servs., Inc. v. Fed. Trade Comm’n, 358 F.3d 1228(10th Cir. 2004).
No. 05-3995 7
commercial speakers. By being allowed to bring the Plain-
tiffs’ claim, commercial speakers would be treated the same
as the Plaintiffs and no better.
Since the Plaintiffs’ arguments that they have standing
to assert commercial speakers’ interests fail, we, like the
district court, will address only those arguments that apply
to Plaintiffs’ own speech.
B. Merits of the First Amendment Claim
The parties disagree about which method of First Amend-
ment analysis is most appropriate in this case. The Plain-
tiffs argue that the Act is a content-based regulation that
should be subjected to strict scrutiny. See United States v.
Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000) (citing
Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126
(1989)) (setting out strict scrutiny standard for content-
based speech restrictions). The State advances a less
traditional method of analysis based on the Supreme
Court’s decisions in Rowan v. United States Postal Service,
397 U.S. 728 (1970), and Hill v. Colorado, 530 U.S. 703(2000). Under the State’s theory, because of the “opt in”
nature of the Act, we need only determine that the State’s
interest in maintaining residential privacy for Indiana
citizens outweighs the speaker’s right to communicate his
or her message into private homes.
The State’s argument is primarily based on Rowan. In
that case, the Supreme Court reviewed a law that allowed
customers of the U.S. Postal Service to prohibit delivery
of sales literature for items “which the addressee in his sole
discretion believes to be erotically arousing or sexually
provocative.” The Court upheld the statute, citing the need
for a person to be safe from any unwanted message—even
a “valid message”—in his or her own home. Because the
homeowner had to take an affirmative act to prohibit
mailings, the Court wrote:
8 No. 05-3995
[I]t seems to us that a mailer’s right to communicate
must stop at the mailbox of the unreceptive address-
ee. . . . To hold less would tend to license a form of
trespass and would make hardly more sense than to say
that a radio or television viewer may not twist the dial
to cut off an offensive or boring communication and
thus bar its entering his home. Nothing in the Constitu-
tion compels us to listen to or view any unwanted
communication, whatever its merit[.]
Rowan, 397 U.S. at 736-37. The Rowan Court went on to
state, “In effect, Congress has erected a wall—or more
accurately permits a citizen to erect a wall—that no
advertiser may penetrate without his acquiescence. . . .
[T]he citizen cannot be put to the burden of determining
on repeated occasions whether the offending mailer has
altered its material so as to make it acceptable.” Id. at 738.
Most tellingly, the Court directly held, “We therefore
categorically reject the argument that a vendor has a
right under the Constitution or otherwise to send unwanted
material into the home of another. . . . [N]o one has a right
to press even ‘good’ ideas on an unwilling recipient.” Id. The
State argues that the do-not-call list similarly insulates
people in their own homes from unwanted messages, and
similarly requires residents to take affirmative steps before
doing so.
Certain trial courts have found Rowan inapplicable to do-
not-call lists, however. For example, when the district court
of Colorado heard an early challenge to the national do-not-
call list in Mainstream Marketing, Inc. v. Federal Trade
Commission, 283 F. Supp. 2d 1151 (D. Colo. 2003), rev’d,
358 F.3d 1228 (10th Cir. 2004), it found that, unlike the
statute in Rowan, the national do-not-call registry ex-
empted certain callers, such as charities, from the list. This
exemption, the district court believed, removed discretion
from the consumer in a manner that the statute in Rowan
did not and consequently increased the government’s
No. 05-3995 9
discretion to decide which speech was prohibited. Id.(analyzing the claim as a content-based restriction of
commercial speech under Central Hudson Gas & Electric
Corp. v. Public Service Commission of New York, 447 U.S.
557 (1980)). A district court in North Dakota did not apply
Rowan to North Dakota’s do-not-call list based on similar
reasoning. Fraternal Order of Police v. Stenehjem, 287 F.
Supp. 2d 1023 (D.N.D. 2003) (evaluating the case under the
charitable speech standard articulated in Village of
Schaumburg v. Citizens for a Better Environment, 444 U.S.
620 (1980)), rev’d, 431 F.3d 591 (8th Cir. 2005). Neither the
Eighth Circuit nor the Tenth Circuit directly addressed a
Rowan argument similar to the one the State presses here.
Instead, they reversed by employing more standard First
Amendment analysis.
We find the State’s Rowan analogy persuasive, and choose
to adopt it here. We agree with the aforementioned district
courts that the Supreme Court’s reservations about a prior
version of the act at issue in Rowan could be relevant to our
analysis here. The act that the Rowan court upheld allowed
a postal customer to block all future mailings from a sender
after determining that any single mailing from the sender
was “erotically arousing or sexually provocative.” A prior
version of that act would have allowed the Postmaster
General to review all future mailings from the sender to
determine if they fell within a proscribed class of “pander-
ing advertisements,” and override a consumer’s wishes not
to receive mailings that the Postmaster determined did not
fall into that category. Rowan, 397 U.S. at 732-33. The
Court distinguished the prior version from the final version,
emphasizing that the final version allowed “the addressee
complete and unfettered discretion in electing whether or
not he desired to receive further material from a particular
sender.” Id.The Court wrote that although the act was acceptable
in its final form, its first form would have been more
10 No. 05-3995
problematic. Forcing the Postmaster to decide which of a
sender’s mailings were “similar” to the ones that had
prompted the addressee’s objection and to continue deliver-
ing all other mailings was “open to at least two criticisms.”
Id. at 735. The first is that it would potentially expose the
addressee to future unwanted mail; the second was that it
would “interpose the Postmaster General between the
sender and the addressee and, at the least, create the
appearance if not the substance of govern-
mental censorship.” Id.The Rowan Court’s discussion of legislative history of
the act at issue in that case lends a degree of support to the
district courts’ view that Rowan is inapplicable whenever a
resident does not have the complete discretion to block any
form of unwanted communication through a given medium.
We believe that this was not the Supreme Court’s intent,
however. Most persuasively, in footnote 4, during the
discussion of the potential problems with the old version of
the act, the Rowan Court wrote,
Subsection (d) [of the version of the act that was later
upheld] vests the Postmaster General with the duty
to determine whether the sender has violated the order.
This determination was intended to be primarily a
ministerial one involving an adjudication of whether
the initial material was an advertisement and whether
the sender mailed materials to the addressee more than
30 days after the receipt of the prohibitory order. An
interpretation which requires the Postmaster General
to determine whether the subsequent material was
pandering and/or similar would tend to place him
“astride the flow of mail.”
Id. at 735 n.4 (citing Lamont v. Postmaster General, 381
U.S. 301, 306 (1965)).
We conclude that the Act places the Attorney General
of Indiana in a “ministerial” role more analogous to that of
No. 05-3995 11
the Postmaster General in the final legislation in Rowan
than that act’s objectionable predecessor. The telephone
calls that the Attorney General must allow to be placed to
numbers on the do-not-call list are very well defined. For
example, it involves little discretion to decide if the call was
placed on behalf of a tax-exempt charity, or if the person
who placed the call was a volunteer or employee of that
charity. We therefore disagree with the view that Rowan is
inapplicable merely because the Act imposes well-defined
restrictions on precisely what protections from unwanted
communication a residential phone customer may receive by
opting in to the do-not-call list.2
We respectfully disagree with our concurring colleague
that Rowan analysis has been displaced by subsequent
Supreme Court authority creating frameworks for evaluat-
ing commercial and charitable speech. The Supreme Court
has never disavowed Rowan. While the Court has subse-
quently cited the case primarily as authority for the state’s
great interest in protecting residential privacy, we believe
that this is because subsequent cases have not presented
the appropriate venue for Rowan analysis, namely an opt-in
statute that applies only to private residences in a manner
that effectively protects residential privacy. Most notably,
in Village of Schaumburg v. Citizens for a Better Environ-
ment, 444 U.S. 620 (1980), the case that our concurring
2
Although the concurrence criticizes this reasoning, we believe
that concerns regarding the scope of exceptions to the statute
are actually concerns about whether the statute is underbroad,
and should be evaluated accordingly. As we discuss infra, we
do not find the Act to be underbroad. Our reading of Rowan’s
footnote four convinces us that the Court wished to avoid placing
unbridled discretion in a government official: the Postmaster
General. The Attorney General of Indiana does not have similar
unbridled and potentially censorial discretion when enforcing
the Act, which is why we view his role as “ministerial.”
12 No. 05-3995
colleague would have us apply here, the Court evaluated an
ordinance that would forbid certain charities from soliciting
door-to-door or on public streets. The Court specifically
noted that the statute was “not directed to the unique
privacy interests of persons residing in their homes because
it applies not only to door-to-door solicitation, but also to
solicitation on public streets and public ways.” Vill. of
Schaumburg, 444 U.S. at 638-39 (internal quotation marks
omitted).
We agree that the Supreme Court has found that statutes
are not narrowly tailored when they prohibit speech to all
residences where it is feasible to allow only those house-
holds who do not wish to receive the speech to opt in to
privacy protection. See, e.g., Playboy Entm’t Group, Inc., 529
U.S. at 814-15 (noting that blocking certain channels to all
cable subscribers is unnecessarily restrictive, as the
subscribers who did not wish to receive these channels
could opt out of receiving them). However, we find no
evidence that the Court has determined that Rowan’s
authority only extends to narrow tailoring analysis. It is
indeed rare that a legislature enacts an opt-in statute that
effectively yet narrowly protects residential privacy. While
concluding that Rowan remains binding precedent, we
recognize that it is correctly applied only in limited circum-
stances.
Once we have decided to apply the Rowan analysis, it
would seem the case is resolved, since the Supreme Court
has already made clear that citizens in their own homes
have a stronger interest in being free from unwanted
communication than a speaker has in speaking in a manner
that invades residential privacy.3 However, the Plaintiffs
3
We acknowledge that an act that severely impinged on core
First Amendment values, such as an opt-in list that allowed
(continued...)
No. 05-3995 13
strenuously argue that the Act is underbroad and therefore
prohibited under Discovery Network. We agree that if the
Act was so underbroad as to fail to materially advance the
State’s interest in residential privacy, Plaintiffs might
prevail even under Rowan.4 As discussed briefly in refer-
ence to standing, however, we believe that Indiana has
shown that the Act’s exceptions bear a legitimate relation-
ship to the important government purpose of protecting
residential privacy.
Aside from the results of the State’s survey discussed
previously, we also conclude that the Act’s legitimacy
3
(...continued)
homeowners to block calls from only one side of a political debate,
might not survive a Rowan balancing test. That is not the case
before us, however, and thus we need not address when precisely
Rowan’s balancing of the interests begins to tilt in favor of
speakers. We are satisfied that all the communications prohibited
in this case are similar to those that were outweighed by citizens’
interests in residential privacy in Rowan.
4
This was the case in Pearson v. Edgar, 153 F.3d 397 (7th Cir.
1998). In that case, the statute in question forbade real estate
agents from “solicit[ing] an owner of residential property to sell or
list such residential property at any time after such person or
corporation has notice that such owner does not desire to sell such
residential property.” Pearson, 153 F.3d 399. Notably, this statute
does not limit its ban to times when the homeowner is inside the
home that he or she owns. Perhaps that is why the district court
in that case found that the state had produced “no evidence . . .
that real estate solicitation harms or threatens to harm residen-
tial privacy.” Id. at 404. We noted in that case that the Rowan test
was not applicable to such an underbroad statute, even though the
statute was of an opt in nature. Id. at 404 (“Here the state, not the
homeowner, has made the distinction between real estate
solicitations and other solicitations without a logical privacy-based
reason.” (emphasis added)). Therefore, we cannot agree with our
concurring colleague that Pearson rejected the Rowan framework
with respect to an opt-in statute that is not underbroad and is
confined to communications aimed solely at a residence.
14 No. 05-3995
is bolstered by the Supreme Court’s holding in Hill v.
Colorado, 530 U.S. 703 (2000). In that case, the Court
upheld a Colorado statute that criminalized knowingly
approaching within eight feet of another person, without
that person’s consent, “for the purpose of passing a leaflet
or handbill to, displaying a sign to, or engaging in oral
protest, education, or counseling with such other
person . . .” within designated areas surrounding health
care clinics. Hill, 530 U.S. at 706. The law was intended
to protect women seeking to have an abortion from un-
wanted encounters with abortion protestors. The Court
upheld the law, stating, “[T]he statute’s restriction seeks to
protect those who enter a health care facility from the
harassment . . . that can accompany an unwelcome ap-
proach. . . . The statutory phrases, ‘oral protest, education,
and counseling,’ distinguish speech activities likely to have
those consequences from those that are most unlikely to
have those consequences.” Id. at 724.
The Indiana legislature passed the Act in order to
preserve residential privacy, which was being invaded by
the sheer volume of calls inundating homes on a daily basis.
This inundation could quite reasonably have been deter-
mined to occur when commercial motivation joins forces
with a professional telemarketer possessing the technology
and capacity to call thousands of people in a relatively short
period of time. Allowing charities to place calls with only
employees or volunteers, who will likely not place the large
volume of calls that a professional telemarketer can place,
would seem merely to reflect the legislature’s judgment of
the limited intrusion the exception poses to residential
privacy. It would seem anomalous to strike down a law
because the legislature fostered as much speech as possible
while still effectively protecting a state interest.
Furthermore, we are mindful that if an ordinance is to
regulate any speech, it must be able to withstand a First
Amendment challenge. To that end, it is not surprising that
No. 05-3995 15
the Indiana Attorney General has fashioned an “implicit
exception” for political speech, even if that speech comes
from professional telemarketers. Political speech has long
been considered the touchstone of First Amendment
protection in Supreme Court jurisprudence, and courts are
prone to strike down legislation that attempts to regulate it.
See, e.g., Buckley v. Am. Constitutional Law Found., Inc.,
525 U.S. 182, 192 (1999) (“But the First Amendment
requires us to be vigilant . . . to guard against undue
hindrances to political conversations and the exchange of
ideas.”); Roth v. United States, 354 U.S. 476, 484 (1957)
(The First Amendment “was fashioned to assure unfettered
interchange of ideas for the bringing about of political and
social changes desired by the people.”) For example, in
Meyer v. Grant, 486 U.S. 414 (1988), the Supreme Court
struck down a law that prohibited Colorado citizens from
paying individuals to circulate petitions for ballot initia-
tives. The Court believed that the law “limit[ed] the number
of voices who will convey appellees’ message and therefore
. . . limits the size of the audience that they can reach.” Id.
at 422-23.
The other exceptions in the Act similarly exclude speech
from the Act’s purview that is less likely to cause inva-
sions of privacy and more likely to create a valid First
Amendment claim. Charitable speech is afforded heightened
First Amendment protection, as both parties in this case
acknowledge. See Vill. of Schaumburg v. Citizens for a
Better Env’t, 444 U.S. 620 (1980). Newspapers have tradi-
tionally been a major forum for political speech and are at
the heart of the historical justification for freedom of the
press, and courts view with skepticism any law that could
have a significantly damaging impact on the Fourth Estate.
See Minneapolis Star & Tribune Co. v. Minnesota Comm’r
of Revenue, 460 U.S. 575 (1983) (invalidating tax on ink
that imposed a significant burden on newspapers as a
violation of First Amendment freedom of the press). The
16 No. 05-3995
appellants themselves claim that the newspaper exception
was added to the Act in response to the revelation that the
Indianapolis Star received between 30 and 70 percent of its
subscriptions and renewals from telemarketing. Real estate
and insurance agents are also permitted to personally
convey their commercial messages to customers under
limited circumstances, because, as individuals directly
communicating their own ideas, those professionals would
have a stronger case for arguing prior restraint of speech.
Since their calls must by nature be made by one individual,
their intrusions are much less likely to significantly burden
residents’ privacy than the voluminous calls a
telemarketing firm could make.
Because the Act sharply curtails telemarketing—the
speech that was most injurious to residential privacy—
while excluding speech that historically enjoys greater First
Amendment protection, we are satisfied that the Act is not
underbroad. Therefore, applying Rowan, we believe that the
state’s interest in protecting residents’ right not to endure
unwanted speech in their own homes outweighs any First
Amendment interests the Plaintiffs possess.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment for the State of Indiana and its
denial of the Plaintiffs’ motion for summary judgment.
No. 05-3995 17
WILLIAMS, Circuit Judge, concurring. I agree that the
Indiana Act survives constitutional scrutiny. I write
separately because I respectfully disagree with the major-
ity’s application of Rowan v. United States Post Office Dep’t,
397 U.S. 728 (1970). Specifically, I disagree with the major-
ity’s conclusion that Rowan compels the application of a
stand-alone test that requires nothing more than a balanc-
ing of the parties’ interests. Because I believe that Rowan
must be read in the context of subsequent Supreme Court
authority, which established that a regulation affecting
charitable speech must be narrowly tailored to advance a
substantial governmental interest, I disagree with the
majority’s reliance on a test that circumvents this firmly-
established narrow-tailoring requirement. See, e.g., Vill. of
Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 637
(1980) (establishing the applicable First Amendment test
for regulations affecting charitable speech). Neither Rowan
nor subsequent case law compels such a departure from
bedrock constitutional principles pertaining to charitable
speech. Accordingly, I would apply the traditional First
Amendment test in this case, under which, as described
below, the Indiana Act survives in any event.
As the majority recognizes, charitable speech is entitled
to heightened constitutional protections. Beginning in
1980—ten years after the Rowan decision—the Supreme
Court issued a trilogy of cases that clarified the heightened
First Amendment protections applicable to charitable
speech. See Vill. of Schaumburg, 444 U.S. at 636-38; Sec’y
of State of Md. v. Joseph H. Munson Co., Inc. (“Munson”),
467 U.S. 947, 960-61 (1984); Riley v. Nat’l Fed’n of the Blind
of N.C., Inc., 487 U.S. 781, 787-92 (1988). In these cases,
the Supreme Court unambiguously held that charitable
speech, including charitable solicitations, is not commercial
speech and is therefore not subject to the lower (but none-
theless substantial) First Amendment protections provided
for commercial speech. See, e.g., Vill. of Schaumburg, 444
18 No. 05-3995
U.S. at 632-33. Instead, charitable solicitations are fully
protected because they are “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
without solicitation the flow of such information and
advocacy would likely cease.” Id. at 632; see also Gresham
v. Peterson, 225 F.3d 899, 904 (7th Cir. 2000) (noting that
the Supreme Court has “placed charitable solicitations by
organizations in a category of speech close to the heart of
the First Amendment, and distinguished it from ‘purely
commercial speech’ ” which “has been placed lower in the
First Amendment food chain, somewhere between political
speech and pornography”); Nat’l Fed. of the Blind of Arkan-
sas, Inc. v. Pryor, 258 F.3d 851, 854 (8th Cir. 2001) (“The
Supreme Court has repeatedly held that charity fund-
raising involves speech that is fully protected by the First
Amendment.”). Thus, a government may not regulate
charitable speech unless the regulation (1) serves a “suffi-
ciently strong” government interest and (2) is “narrowly
drawn” to “serve those interests without unnecessarily
interfering with First Amendment freedoms.” Vill. of
Schaumburg, 444 U.S. at 636-37; see also Gresham, 225
F.3d at 905; Nat’l Fed. of the Blind v. F.T.C., 420 F.3d 331,
338 (4th Cir. 2005). Following the Village of Schaumburg
decision, this court has uniformly applied the narrow-
tailoring requirement to regulations affecting charitable
speech.1
1
See, e.g., Wis. Action Coal. v. City of Kenosha, 767 F.2d 1248,
1251-59 (7th Cir. 1985) (noting that the Supreme Court “has
also repeatedly stated that a regulation must be narrowly drawn”
and applying a narrow-tailoring analysis); City of Watseka v. Ill.
Pub. Action Council, 796 F.2d 1547, 1552-57 (7th Cir. 1986)
(noting that the Supreme Court routinely requires that a time,
place, and manner regulation be “narrowly tailored” and applying
(continued...)
No. 05-3995 19
Rather than apply this standard narrow-tailoring require-
ment, the majority instead relies on the Rowan decision,
which it reads as requiring only a balancing of interests
between the parties. As an initial matter, the statute at
issue in Rowan directly addressed commercial speech, not
charitable speech. See Rowan, 397 U.S. at 729 (statute’s
prohibitions applied to “pandering advertisements”). This
distinction has constitutional significance: the First Amend-
ment provides greater protections to charitable speech than
commercial speech, including heightened constitutional
scrutiny.2 See Gresham, 225 F.3d at 904. Setting aside this
difference, even within the limited context of commercial
speech, the Rowan balancing-of-interests test is not the
governing law. Indeed, the Supreme Court did not clearly
recognize the First Amendment protections applicable to
commercial speech until 1975—five years after Rowan was
decided. See Bolger v. Youngs Drug Products Corp., 463 U.S.
60, 64-65 (1983) (noting that “[b]eginning with Bigelow v.
Virginia, 421 U.S. 809 (1975), this Court extended the
1
(...continued)
a four-part test that required consideration of whether the
regulation was “narrowly tailored to serve the government
objective”); Nat’l People’s Action v. Vill. of Wilmette, 914 F.2d
1008, 1012-13 (7th Cir. 1990) (noting that the Supreme Court
has reaffirmed “emphatically” that a regulation geared toward
protected speech must be narrowly tailored and applying such an
analysis); Gresham v. Peterson, 225 F.3d 899, 905-06 (7th Cir.
2000) (noting that regulations must be “narrowly tailored to serve
a significant government interest” and applying such a test).
2
This is not intended to suggest that Rowan’s teachings pertain-
ing to the substantial government interest in protecting residen-
tial privacy are not relevant when considering First Amendment
challenges to charitable speech restrictions. As discussed infra,
these principles continue to be applied routinely in cases involving
both commercial and charitable speech, but Rowan’s balancing-of-
interests test does not appear to have survived the test of time.
20 No. 05-3995
protection of the First Amendment to commercial speech”).
Then, five years later in 1980, the Court issued the seminal
Central Hudson decision, which established the current
governing test for First Amendment challenges to commer-
cial speech. See Central Hudson Gas & Elec. Corp. v. Pub.
Serv. Comm’n of N.Y., 447 U.S. 557 (1980). Like the charita-
ble speech test, the Central Hudson test for commercial
speech requires courts to consider whether a regulation
affecting commercial speech is narrowly tailored.3 See
Central Hudson, 447 U.S. at 565. Thus, whatever Rowan
has to say regarding the test applicable to First Amendment
challenges involving commercial speech must be filtered
through subsequent Supreme Court authority. In other
words, to the extent that Rowan articulated a simple
balancing-of-interests test, such a test is no longer the
controlling law even in the commercial speech arena, much
less in the more-highly protected charitable speech context.
See id.This is not to say that the principles addressed in Rowan
regarding the compelling government interest in residential
privacy are no longer good law. To the contrary, the sub-
stantial right of residents to find sanctuary in their homes,
free from unwanted speech, is just as—if not more—vital
3
The Central Hudson test also requires consideration of whether
(1) the speech concerns lawful activity and is not misleading;
(2) the asserted governmental interest is substantial; and (3)
the regulation directly advances the governmental interest.
Central Hudson, 447 U.S. at 566. Although the Central Hudson
test is quite similar to the Village of Schaumburg test for charita-
ble speech, regulations affecting charitable speech receive
heightened scrutiny and, unlike commercial regulations, are
presumptively invalid if they are not content neutral. See Vill. of
Schaumburg, 444 U.S. at 636-37; Gresham, 225 F.3d at 904;
Fraternal Order of Police, N.D. State Lodge v. Stenehjem, 431 F.3d
591 (8th Cir. 2005) (discussing and analyzing content-neutrality
of regulation affecting charitable speech).
No. 05-3995 21
today, where intrusions via the mail, the telephone and,
now, email and the internet are ubiquitous. The Supreme
Court has repeatedly cited Rowan for support in highlight-
ing the sanctity of residential privacy, particularly where
the homeowner is a “captive audience” to unwanted speech.4
But Rowan has not been cited by the Supreme Court for the
proposition that regulations that affect commercial—much
less charitable—speech should be examined via a simple
balancing test. Instead, the Supreme Court has limited its
application of Rowan within the context of traditional First
Amendment tests, either to establish the significance of
residential privacy interests and/or to address the narrow-
tailoring or least-restrictive-means requirements. See id.Nor has this court previously held that Rowan created
a separate balancing-of-interests test under any type of
First Amendment analysis. Rather, consistent with Su-
preme Court jurisprudence, we have limited our application
of Rowan to the framework of whether the regulation was
narrowly tailored (or, relatedly, whether the government
had a sufficiently strong interest in protecting residential
privacy).5
4
See, e.g., Vill. of Schaumburg, 444 U.S. at 639 (noting the
interest in residential privacy and citing Rowan within a narrow-
tailoring analysis); Consol. Edison Co. of N.Y., Inc. v. Pub. Serv.
Comm’n of N.Y.., 447 U.S. 530, 542 n.11 (1980) (same); Carey v.
Brown, 447 U.S. 455, 471 (1980) (citing Rowan to establish the
substantial interest in residential privacy); Bolger v. Youngs Drug
Products Corp., 463 U.S. 60, 72, 77-78 (1983) (same); Frisby v.
Schultz, 487 U.S. 474, 482-85 (1988) (same); United States
v. Playboy Entertainment Group, Inc., 529 U.S. 803, 814-15 (2000)
(citing Rowan within a least-restrictive-means analysis); Hill v.
Colorado, 530 U.S. 703, 717-18, 720 (2000) (citing Rowan within
the context of a narrow-tailoring analysis).
5
See, e.g., Collin v. Smith, 578 F.2d 1197, 1202 n.8 (7th Cir.
(continued...)
22 No. 05-3995
Thus, why the majority turns to Rowan for this new-found
test is unclear. Although the majority notes that the
Indiana Act requires the homeowner to make an initial
affirmative act (i.e., signing up for the do-not-call list), this
court is not without guidance from our prior cases, as
well as cases from other circuits, all of which have consid-
ered such opt-in features or other analogous provisions to be
pertinent to whether a regulation is narrowly tailored—not
as a means to avoid a narrow-tailoring analysis entirely.
For instance, in Pearson v. Edgar, 153 F.3d 397 (7th Cir.
1998), we addressed a First Amendment challenge to an
Illinois statute that allowed homeowners to notify real
estate agents that they did not wish to be solicited, and,
upon such notification, prohibited door-to-door solicitation.
Id. at 399. The fact that the statute in Pearson required a
predicate affirmative act from the homeowner (i.e., notifying
the realtor) did not lead us to apply a Rowan balancing test.
Instead, we applied the standard Central Hudson narrow-
tailoring analysis. Id. at 402-03. And the court was well
aware of Rowan, discussing it at length, but, tellingly,
solely within the context of whether the regulation was
narrowly tailored to advance the state’s substantial inter-
est. Id. at 404-05; see also South-Suburban Housing Center,
935 F.2d at 894 (discussing the Rowan opt-in feature within
a narrow-tailoring analysis). The court also noted that our
5
(...continued)
1978) (citing to Rowan for the proposition that the ordinances
at issue were not “appropriately narrow ordinances”); Curtis v.
Thompson, 840 F.2d 1291, 1301-02 (7th Cir. 1988) (applying
Rowan to a narrow-tailoring analysis pertaining to a commercial
speech ordinance); South-Suburban Housing Ctr. v. Greater South
Suburban Bd. of Realtors, 935 F.2d 868, 892-94 (7th Cir. 1991)
(same); Pearson v. Edgar, 153 F.3d 397, 403-05 (7th Cir. 1998)
(same).
No. 05-3995 23
reliance on Rowan in two prior cases6 had been “weakened
by Discovery Network’s emphasis on reasonable fit,” which,
again, appropriately placed Rowan squarely within the
analytic framework of narrow tailoring. Id. at 404.7
In examining the constitutionality of the federal do-not-
call list, the Tenth Circuit similarly devoted extensive
attention to the opt-in feature in the Rowan statute, but did
so solely within the context of considering whether the
federal do-not-call list was narrowly tailored. See Main-
stream Mktg Services, Inc. v. F.T.C. (Mainstream Mktg. II),
358 F.3d 1228, 1243-44 (10th Cir. 2004). Specifically, the
Tenth Circuit held that the opt-in feature in the federal do-
not-call list was a compelling factor in establishing that the
statute was narrowly tailored. Id. Similarly, in a precursor
case to Mainstream Marketing II, the Tenth Circuit cited
our decision in Pearson, noting that “[o]ther courts have
relied on Rowan’s analysis in finding that similar mecha-
nisms of private choice in solicitation restrictions weigh in
favor of finding a ‘reasonable fit[,]’ ” and held that “Rowan
6
Pearson was decided after the Supreme Court vacated our
prior decision and remanded the case for reconsideration in light
of the then-recently decided City of Cincinnati v. Discovery
Network, Inc., 507 U.S. 410 (1993). See Pearson, 153 F.3d at 400(discussing the procedural history).
7
See also Vill. of Schaumburg, 444 U.S. at 639 (citing Rowan for
the proposition that “[o]ther provisions of the ordinance, which are
not challenged here, such as the provision permitting homeowners
to bar solicitors from their property by posting signs reading “No
Solicitors or Peddlers Invited,” § 22-24, suggest the availability of
less intrusive and more effective measures to protect privacy”);
Playboy Entertainment Group, Inc., 529 U.S. at 814-15 (citing
Rowan and noting that affirmative acts by homeowners, such as
individualized household blocking of unwanted cable television
channels, are relevant to whether a statute is the least restrictive
means of enforcing a government interest in residential privacy).
24 No. 05-3995
demonstrates that the element of private choice in an opt-in
feature is relevant for purposes of analyzing ‘reasonable fit’
”.
F.T.C. v. Mainstream Mktg Serv’s., Inc. (Mainstream Mktg
I), 345 F.3d 850, 856 (10th Cir. 2003) (citing Anderson v.
Treadwell, 294 F.3d 453, 462-63 (2d. Cir. 2002) and
Pearson, 153 F.3d at 404). Thus, the authority in both this
circuit and other circuits indicates that the Indiana Act’s
opt-in feature does not allow it to circumvent full First
Amendment scrutiny when it regulates—even if indi-
rectly—protected speech.
In any event, the Indiana Act is distinguishable from the
Rowan statute. The majority claims that the Indiana Act
places the Attorney General in solely a “ministerial” role
akin to the role of the Postmaster General in Rowan,
purportedly because the Attorney General is given sole
discretion only “to decide if the call was placed on behalf
of a tax-exempt charity, or if the person who placed the call
was a volunteer or employee of that charity.” Op. at 11. But
this considers only the state’s involvement in enforcing the
statute: it ignores the state’s active involvement in crafting
numerous exceptions to the statute. Unlike in Rowan, the
state here has carved out particular categories of calls that
a homeowner cannot block. These state-created carve-outs
include not only charitable calls made by volunteers and
employees, but also certain calls by newspaper organiza-
tions, real estate agents, and insurance agents. Thus, the
homeowner here does not have the plenary power to restrict
all intrusions as the homeowner could in Rowan. Instead,
Indiana has actively immersed itself in regulating the forms
of telemarketing speech that homeowners are allowed to
block: a homeowner has unfettered discretion to block calls
from professional telemarketers, but lacks such discretion
when it comes to, for example, calls initiated by employees
or volunteers of charities. In my view, this is something
more than the mere “ministerial” duty addressed in Rowan,
where the government did nothing more than enforce a
No. 05-3995 25
homeowner’s “complete and unfettered discretion” to
prevent all intrusions.8 Rowan, 397 U.S. at 734; cf. Pearson,
153 F.3d at 404 (distinguishing Rowan on the basis that the
statute there provided unqualified delegation of authority
to the homeowner and disapproving of an Illinois statute in
which the government crafted the initial distinction be-
tween real estate solicitations and other types of solicita-
tions).
Setting aside these distinctions, the majority’s opinion
is also inconsistent with a series of decisions by other
circuits—all of whom uniformly applied the narrow-tailor-
ing requirement to analogous do-not-call regulations. See
Mainstream Mktg I, 345 F.3d at 856; Mainstream Mktg II,
358 F.3d at 1242-44; Nat’l Fed’n of the Blind, 420 F.3d at
334; Fraternal Order of Police, N.D. State Lodge v.
Stenehjem, 431 F.3d 591, 596 (8th Cir. 2005). In addition,
although all of these cases cite to Rowan, none apply the
balancing-of-interests test that the majority imports from
Rowan.
8
The majority cites to footnote 4 in the Rowan decision as
support for the proposition that the Supreme Court did not intend
to limit Rowan solely to situations where a homeowner has
complete discretion to block intrusions on residential privacy. Op.
at 10. My reading of this footnote, however, offers no clues as to
the “intent” that the majority ascribes to the Supreme Court.
Instead, the footnote merely highlights the central distinguishing
element of the Rowan statute: the government had no role in
filtering the types of mail the homeowner could prevent from
entering the home. The footnote goes on to highlight that had the
government been involved in any form of filtering, the statute
would not have been upheld. This is precisely the hurdle that the
Indiana Act stumbles on. There is otherwise nothing in the
footnote suggesting that the Court intended to expand Rowan
beyond the operative facts of the statute at issue. If anything, the
footnote emphasizes the limited focus of the Rowan opinion.
26 No. 05-3995
For instance, the Fourth Circuit addressed a First
Amendment challenge to the Federal Trade Commission’s
regulation imposing restrictions on telemarketing prac-
tices used for charitable fundraising. Nat’l Fed’n of the
Blind, 420 F.3d at 334. Like the Indiana Act here, the FTC
regulation prohibited calls from professional telemarketers,
but not calls by in-house charity staff or volunteers. Id.Relying on the Village of Schaumburg, Munson, and Riley
Supreme Court cases, the Fourth Circuit set forth the
governing test under the First Amendment as follows: “A
regulation will be sustained if (1) it ‘serves a sufficiently
strong, subordinating interest that the [government] is
entitled to protect’ and (2) it is ‘narrowly drawn . . . to serve
the interest without unnecessarily interfering with First
Amendment freedoms.’ ” Id. at 338 (citing Munson, 467 U.S.
at 960-61 (quoting Schaumburg, 444 U.S. at 636-37)).
Significantly, the Fourth Circuit’s disposition relied heavily
on Rowan—but not for the proposition that Rowan altered
the governing constitutional test specified in Village of
Schaumburg and its progeny. Instead, the Fourth Circuit
relied on Rowan in holding that there was a substantial
government interest in residential privacy and, more
importantly, that the regulation was narrowly drawn
because of its opt-in (or, in the Fourth Circuit’s term, “opt-
out”) nature:
The parallels between the law at issue in Rowan
and the do-not-call list in this case are unmistak-
able. If 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. In this way, a do-not-call list is
more narrowly tailored to protecting privacy than
was the law in Rowan.
Id. at 342 (emphasis added).
No. 05-3995 27
Similarly, the Tenth Circuit applied the traditional
narrowly tailored requirement in assessing a First Amend-
ment challenge to the FTC regulations applicable to
commercial speech. Mainstream Mktg. II, 358 F.3d at 1242-
44. Like the Fourth Circuit, the Tenth Circuit placed
significant reliance on Rowan and the opt-in nature of the
statute there, but, again, confined its application of Rowan
to the traditional framework of whether the regulation was
narrowly tailored (i.e., a “reasonable fit” in light of the
government’s substantial government interest):
Like the do-not-mail regulation approved in Rowan,
the national do-not-call registry does not itself
prohibit any speech. Instead, it merely “permits a
citizen to erect a wall . . . that no advertiser may
penetrate without his acquiescence.” See Rowan,
397 U.S. at 738, 90 S. Ct. 1484. Almost by defini-
tion, the do-not-call regulations only block calls that
would constitute unwanted intrusions into the
privacy of consumers who have signed up for the
list. Moreover, it allows consumers who feel suscep-
tible to telephone fraud or abuse to ensure that
most commercial callers will not have an opportu-
nity to victimize them. Under the circumstances we
address in this case, we conclude that the do-not-
call registry’s opt-in feature renders it a narrowly
tailored commercial speech regulation.
Id. at 1243. (emphasis added); see also Mainstream Mktg. I,
345 F.3d at 856 (limiting Rowan to the context of a narrow-
tailoring analysis).
Finally, the Eighth Circuit also examined the constitu-
tionality of a state statute that, like the Indiana Act,
prohibited charitable solicitation calls by professional
telemarketers, but permitted calls made by employees or
volunteers. Fraternal Order of Police, 431 F.3d at 596. In
harmony with the Fourth and Tenth Circuits, the Eighth
Circuit similarly relied on Rowan, but, once again, solely to
establish whether the statute was narrowly tailored. Id. at
28 No. 05-3995
598-99; see also Pryor, 258 F.3d at 855-56 (relying on Rowan
to determine that the Deceptive Trade Practice Act’s
limitations on charitable speech were narrowly tailored).
In distinguishing the Eighth and Tenth circuit cases, the
majority states that “[n]either the Eighth Circuit nor the
Tenth Circuit directly addressed a Rowan argument similar
to the one the State presses here. Instead, they reversed by
employing more standard First Amendment analysis.” Op.
at 9. True—but these circuits, along with the Fourth
Circuit, were unmistakably aware of Rowan, and in fact
relied extensively upon it to conduct the standard narrow-
tailoring analysis. Furthermore, the Attorney General of
Indiana filed an amicus brief (along with various other
states) in the Eighth Circuit’s Fraternal Order of Police case
in support of a North Dakota statute pertaining to charita-
ble speech solicitations, which the Attorney General
conceded was “similar” to the Indiana Act. Brief for State of
Indiana et al. as Amici Curiae Supporting Appellant at 2,
13, Fraternal Order of Police, N.D. State Lodge v.
Stenehjem, 431 F.3d 591 (8th Cir. 2005) (Nos. 03-3848, 04-
1619, 04-1620), 2003 WL 23912560. As it now argues here,
the Attorney General of Indiana argued before the Eighth
Circuit that Rowan provided a mere balancing-of-interests
test in these circumstances. Id. at 25-32. The Eighth Circuit
did not accept this invitation to apply such a test and
instead applied the traditional Village of Schaumburg First
Amendment test, which required consideration of whether
the statute was narrowly tailored. Fraternal Order of Police,
431 F.3d at 597-99.
Similarly, several states filed an amicus brief in the
Tenth Circuit’s Mainstream Marketing II case, supporting
the federal do-not-call regulations applicable to commercial
solicitors. See Brief for State of California, et al. as Amici
Curiae Supporting Appellants in Case No. 03-1429 and
Supporting Appellees in Case No. 03-9571 at 1-3, Main-
stream Mktg. Services, Inc. v. F.T.C., 358 F.3d 1228 (2004)
No. 05-3995 29
(Nos. 03-1429, 03-6258, 03-9571, 03-9594), 2003 WL
24033594. Like the Attorney General of Indiana here, the
states argued that Rowan created a balancing test, but the
Tenth Circuit did not apply such a test in its decision. See
id. at 4-10; cf. Mainstream Mktg II, 358 F.3d at 1242-44.
Instead, the Tenth Circuit applied the traditional Central
Hudson test, which required an examination of whether the
statute was narrowly tailored. Id. Thus, at a minimum,
these circuits did not interpret Rowan as requiring nothing
more than a balancing of interests. More likely, they
appropriately disregarded the states’ request for a trun-
cated balancing-of-interests test and instead applied Rowan
solely within the constraints created by sub-
sequent Supreme Court authority.
I would apply a similar First Amendment analysis here to
conclude that the charitable exception in the Indiana Act is
content neutral and narrowly drawn to advance the sub-
stantial right of residents to be undisturbed by unwanted
phone calls in the privacy of their homes. See, e.g., Frater-
nal Order of Police, 431 F.3d at 596-99 (holding that an
analogous North Dakota statute was content neutral under
Hill v. Colorado, 530 U.S. 703 (2000) and was narrowly
tailored); Nat’l Fed’n of the Blind, 420 F.3d at 342-44(holding than the FTC’s “do not call” regulations pertaining
to charitable speech were narrowly drawn to serve the
government’s interests); Mainstream Mktg. I, 345 F.3d at
855-56 (upholding FTC’s do-not-call regulations pertaining
to commercial speech because they were narrowly drawn to
serve a substantial governmental interest). Although the
question of whether the Indiana Act is a content neutral
regulation is a close one, it is nonetheless a “regulation that
serves purposes unrelated to the content of expression . . .
even if it has an incidental effect on certain speakers or
messages but not others.” Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989). That is, the record reflects that
the exemptions that Indiana has made for in-house employ-
30 No. 05-3995
ees or volunteers of charities are not based upon disdain for
the content of the message conveyed, but rather are based
on the form or manner in which the message is delivered.9
Specifically, there was compelling evidence in the record
that professional telemarketers have the capacity to
generate a significantly greater number of telephone calls
than in-house employees or volunteers, and thus, irrespec-
tive of the content of the message, have greater capacity to
cause disruptions to residential privacy. Indeed, as the
Eighth Circuit noted in analyzing a North Dakota statute
with very similar provisions to the Indiana Act, “North
Dakota has not distinguished between professional and in-
house charitable solicitors because of any disagreement
with the message that would be conveyed, for the message
would be identical regardless of who conveyed it.” Fraternal
Order of Police, 431 F.3d at 596. In addition, “a regulation
that distinguishes between speech activities likely to
produce the consequences that it seeks to prevent and
speech activities unlikely to have those consequences
‘cannot be struck down for failure to maintain content
neutrality.’ ” Id. at 596-97 (citing Hill v. Colorado, 530 U.S.
703, 724 (2000)).
9
The district court in this case analyzed the statute as a time,
place or manner regulation. The First Amendment test for such
a regulation is essentially identical to the Village of Schaumburg
test, except for the added requirement that there be ample
opportunities for alternative means of communication. See
Fraternal Order of Police, 431 F.3d at 597 (noting that the
Schaumburg test is “very similar” to time, place, or manner
regulation). As the district court correctly concluded, there can be
no doubt that the Indiana Act allows for sufficient alternate
means of communication. For instance, the charities are not
precluded from using their own employees or volunteers to
solicit funds, nor are they prevented from using direct mailings,
newsprint advertisements, or the internet to solicit funds. Thus,
the Indiana Act would also pass constitutional scrutiny if ana-
lyzed as a time, place, or manner regulation.
No. 05-3995 31
There can be no doubt that Indiana has a substantial
interest in protecting residential privacy. Rowan and its
progeny firmly establish residential privacy as a compelling
interest. Furthermore, the Indiana Act is also narrowly
tailored to advance this interest. Consistent with the
holdings in this and other circuits, the opt-in feature is
strong evidence of the narrow tailoring of the Indiana Act’s
restrictions on charitable speech. See, e.g., Pearson, 153
F.3d at 399, 403; South-Suburban Housing Center, 935 F.2d
at 894; Nat’l Fed’n of the Blind, 420 F.3d at 342; Fraternal
Order of Police, 431 F.3d 598-99; Mainstream Mktg II, 358
F.3d at 1242-44. Rather than simply issue blanket prohibi-
tions against all charitable speech provided by professional
telemarketers, the statute allows homeowners to decide
individually whether they find these types of calls intrusive.
In addition, as noted above, the exemptions in the statute
are sensible carve-outs based upon the likelihood of intru-
siveness of particular forms of telephone calls, rather than
an attempt to regulate content. In this sense, Indiana is
seeking to target as directly as possible those telemarketing
calls that are most likely to disrupt residential privacy.
Accordingly, the Indiana Act survives constitutional
scrutiny under the standard First Amendment test applica-
ble to charitable speech.
I emphasize the importance of applying full constitutional
scrutiny in this case because First Amendment protections,
of course, reside at the core of our democratic process and
are crucial to the free exchange of ideas. In the present
case, applying lowered constitutional scrutiny may initially
appear less troubling because the form of the speech here
(i.e., solicitation calls placed by telemarketers) is plainly
disfavored by many. But providing such a potentially broad
circumvention from full First Amendment scrutiny may
prove to be an unfortunate choice when less-disfavored
forms of speech are at issue in the future. For the reasons
stated above, I believe the proper analysis requires consid-
32 No. 05-3995
eration of whether the Indiana Act is a content neutral
regulation narrowly tailored to advance a substantial
government interest, in accordance with the traditional
First Amendment test.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-28-06