Legal Beat-Commercial Speech (658 words)
The court viewed the argument as flawed since speech has two components: a speaker and an audience. A restriction on speech tailored to a particular audience (that is, targeted speech) cannot be cured simply by the fact that the speaker can speak to a larger indiscriminate audience. The petitioner's targeted speech to customers was for the purpose of soliciting those customers to buy more or different telecommunications services—and that was the speech being restricted.
The court acknowledged that while the speech was truthful and non-misleading, the government did not satisfy the second criteria of Central Hudson by merely asserting a broad interest in privacy. It must specify the particular notion of privacy and the interest served, which it did not do. The FCC did not explicitly state the privacy harm to customers. And the court narrowed the FCC's argument to the fact that it was thin justification that disclosure of the information as to call destination and other details, could prove embarrassing to some. It was this particular harm that the government sought to cure.
As to the third criteria, the government seemed to present no evidence that there was harm to either privacy or competition.
With regard to the fourth and final criteria, the court held that while the state's interest in privacy and competition is substantial, they do not think the rules regarding customer approval were tailored narrowly enough.
In a 2-1 decision, the court held that to require an opt-in procedure to obtain consent to use telephone customer data violated the First Amendment. The FCC must demonstrate not only that it acted rationally, but that it narrowly tailored its regulations to meet its goal.
Jay Winston is a partner in Winston & Winston, P.C. He is primarily engaged in the practice of direct marketing and Internet law. Contact him at (212) 532-2700, ext. 106, or e-mail: firstname.lastname@example.org. This quarterly column is for general information only and is not intended as a substitute for legal counsel.