Disfavored Advertising: Telemarketing, Junk Faxes and the Commercial Speech Doctrine

Abstract

When the Supreme Court of the United States declined to hear a First Amendment challenge by telemarketers to the national do-not-call registry, it again passed up an opportunity to clarify the constitutional standing of commercial speech. Instead, it let stand an appellate decision upholding the registry in the face of a challenge that it unconstitutionally privileged noncommercial over commercial telemarketing. Although there are four harmonized circuit court decisions on the question, an analysis of the cases—including three overturned district court decisions—highlights some problematic commercial speech precedents and a Central Hudson test that is still very malleable. First Amendment protection for disfavored-product advertising may be more settled, but these cases demonstrate that the Court is still a long way from clarifying the doctrine beyond that.