Under Indiana’s Telephone Solicitation of Consumers statute telemarketers are prohibited from calling all households who opt to place their numbers on the statewide do-not-call list. This prohibition exempts charities, as long as they refrain from using professional telemarketing companies, and rely solely on volunteers or in-house employees. For many charities, particularly ones supporting unpopular causes, telemarketing represents the most successful manner in which they can inform people of their goals and raise money. Charitable solicitation has long been recognized as a protected form of free speech, and any restriction on that right protected by constitutional scrutiny. However, in ruling on the constitutionality of the Indiana statute the Seventh Circuit relied on a mere balancing test rather than the more traditional level of scrutiny. This Comment argues that, by improperly reading Supreme Court precedent, the Seventh Circuit applied the wrong test. While the Seventh Circuit may still have stumbled upon the correct ruling, the rationale behind it failed to give the level of constitutional review which a restriction on the freedom of speech deserves.
Nicholas A. Wendland,
The Seventh Circuit Hangs Up on Charitable Rights,
Seventh Circuit Rev.
Available at: http://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol2/iss1/11