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Residential Privacy and Free Speech:
C o m peting I nterests in C haritab le
So licitatio n Reg u latio n
Fraternal Order of Police, North Dakota State Lodge v. Stenehjem
I. INTROD
1
U CTI ON
“For Ch ari t y s h al l c ov e r t h e m u l t i t u de of s i n s .”2
“C h ari t y c re at e s a m u l t i t u de of s i n s .”3
Althoug h these two q uotations represent society’s mix ed feeling s toward
charity, they also represent a distinction people often mak e between a charity’s aims and its means. C haritable org aniz ations have the potential to spread
hope, re-allocate societal resources, and advocate societal values. How they
g o about accomplishing these noble g oals, however, is sometimes the subj ect
of public frustration and annoyance. T his creates a tension between admiring
the charity’s philanthropy and becoming irritated with the means used to
achieve it.
U ndoubtedly, one of the most unwelcome g uests in any household is a
telemark eter. In fact, 9 8 % of 1 .7 8 million respondents to a recent online survey said telemark eting calls made them “ang ry.”4 Because of this, many
states have enacted laws reg ulating charities’ use of telemark eting as a means
to further their messag e.5
While public sentiment seems to support heavy reg ulation of telemark eters, reg ulating charitable solicitation presents interesting and uniq ue problems. C haritable solicitation receives full F irst Amendment protection, so any
state leg islature attempting to reg ulate charitable solicitation must respect
charities’ free speech rig hts.6 In ex amining these laws, courts must also care1. 431 F .3d 591 (8th Cir. 2005) .
2. 1 Peter 4: 8 (K ing J am es) .
3. Oscar Wilde, T h e S o ul o f M a n U n d er S o c i a l i s m , i n THE AN N OT AT ED OS C AR
WI L D E 398 (H . Montg om ery H yde ed., 1982) .
4. S ee h ttp : / / w w w .dianam ey.com (last v isited Sep t. 25, 2006) (f ollow “Telem ark eting Statistics” h yp erlink ) . D iana Mey h as g ained notoriety f or leading a cam p aig n ag ainst telem ark eters, and w as nam ed one of P eop le Mag az ine’s m ost intrig u ing p eop le of 1999.
5. S ee e.g ., C.R.S. § 6-16-103 (2002) ; C.G.S.A. § 21a-190h (1994) ; GA. COD E
AN N . § 43-17-3 to 43-17-7 (2002) ; LA. REV . ST AT . AN N . § 51: 1905 (2003) ; N.H .
REV . ST AT . AN N . § 7: 28-b (2004) .
6. V i l l a g e o f S c h a um b erg v . C i ti z en s f o r a B etter E n v i ro n m en t, 444 U .S. 620,
632 (1980) .
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fully delineate the boundaries between a state’s power to protect its residents’
privacy and the charities’ F irst Amendment rig ht to advance its messag e.
As demonstrated in Frat e rn al O rde r of Pol i c e , Nort h D ak ot a S t at e
L odg e v . S t e n e h j e m , drawing this line between F irst Amendment rig hts and
residential privacy is a difficult task , particularly in lig ht of prior Supreme
C ourt decisions muddying the water. U ltimately, when such weig hty values
collide, lower courts need particulariz ed g uidance to assist with their decisions. T his N ote arg ues that S t e n e h j e m was wrong ly decided, and that its
misg uided analysis reflects the uncertainty in this area of the law.
II. FACTS AND HOLD
I NG
T he N orth D ak ota statute at issue in S t e n e h j e m prohibited certain solicitations of residents reg istered with the state’s “do not call” list.7 T he statute
permitted “in house” solicitations by charitable org aniz ations, but prohibited
calls made by professional soliciting org aniz ations on behalf of charitable
org aniz ations.8 Additionally, to be permitted, the statute req uired that the
caller mak e certain disclosures at the onset of the call, including the caller’s
name, as well as the name, address and phone number of the charitable org aniz ation.9
In S t e n e h j e m , the plaintiffs were charitable org aniz ations who “rel[ied]
on professional charitable solicitors for their fundraising .” 10 T he plaintiffs
7. N.D . CEN T . COD E § 51-28-01 (1999) ; F raternal Order of P olice, N.D . State
Lodg e v . Steneh jem , 431 F .3d 591, 596 (8th Cir. 2005) .
8. S ee i d . at 596. Sp ecif ically, th e act ex clu ded calls m ade b y ch aritab le org aniz ations f rom th e def inition of “telep h one solicitation” in lim ited circu m stances. N.D .
CEN T . COD E § 51-28-01.7.c(1) to (2) (1999) .
9. I d . Th e act also def ined “telep h one solicitation” as not inclu ding calls
m ade to su b scrib ers w ith th e su b scrib er’s w ritten p erm ission or consent, calls m ade
f or th e p u rp ose of condu cting a telep h one p oll, calls m ade b y p olitical org aniz ations,
and calls b y salesp eop le not intending to com p lete a transaction ov er th e p h one b u t at
arrang ed “f ace-to-f ace” m eeting s. I d . at 7.a., 7.d–7.f .; s ee a l s o S ten eh j em , 431 F .3d at
596 n.2. Th e act itself only ap p lied to telep h one “solicitations,” so ch aritab le org aniz ations cou ld h ire an ou tside ag ency to m ak e calls on its b eh alf to sim p ly adv ocate th e
org aniz ation’s m essag e. S ee i d . at 596.
10. I d . Sp ecif ically, th e p laintif f s w ere th e F raternal Order of P olice, North D ak ota State Lodg e and th e V eterans of F oreig n Wars. I d . at 591. F u rth erm ore, th eir
p etition w as su p p orted b y a m i c us c uri a e b rief s f rom sev eral states, inclu ding : I ndiana,
Alask a, Ark ansas, I dah o, I llinois, I ow a, Maine, Maryland, Missou ri, Nev ada, Oh io,
Sou th D ak ota, Tennessee, V erm ont, Wisconsin and Wyom ing . B rief of Am icu s Cu riae f or States of I ndiana et al. in Su p p ort of Ap p ellant Wayne Steneh jem , F raternal
Order of P olice v . Steneh jem , No. 03-03848 (8th Cir. 2003) , 2003 WL 23912560.
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arg ued that the entire statute was unconstitutional because the distinctions it
drew were content-based.11
T he U nited Stated D istrict C ourt for the D istrict of N orth D ak ota stated
that the statute reg ulated two types of speech: commercial and charitable.12 In
addressing the commercial speech reg ulations, the court applied a less rig orous standard of review13 and held that the statute’s reg ulations were constitutional because there was a reasonable fit between the law and the harms the
leg islature soug ht to prevent.14 T he court ex plained that charitable speech, on
the other hand, “‘is fully protected by the F irst Amendment.’”15 T he district
court concluded that, since the g overnment was attempting to preserve residential privacy and prevent fraud, the statute’s distinction between charitable
and commercial solicitors prohibited “more speech than the evil [it was] targ eting ,” which rendered the statute content-based and therefore unconstitutional.16
T he E ig hth C ircuit disag reed for two reasons.17 F irst, the court noted
that the statute’s distinction was not made “because of any disag reement with
the messag e that would be conveyed, for the messag e would be identical reg ardless of who conveyed it.”18 Second, the law was j ustified without reference to the content of the speech because the state has a compelling interest in
“protecting residential privacy.”19
III. LE G A L BA C K G R O U N D
T he seeming ly simple lang uag e that “C ong ress shall mak e no law . . .
abridg ing the freedom of speech” has spawned two centuries of court decisions that strug g le to delineate the ex act parameters of this F irst Amendment
11. S ee S ten eh j em , 431 F .3d at 596. Generally, a f acial ch alleng e to a statu te
seek s “to v indicate not only [ th eir] rig h ts, b u t also th ose of oth ers w h o m ay also b e
adv ersely im p acted b y th e statu te in q u estion.” 16 C.J .S. C o n s ti tuti o n a l L a w § 113
12. F raternal Order of P olice, N.D . State Lodg e v . Steneh jem , 287 F . Su p p . 2d
1023, 1026-28 (D .N.D . 2003) .
13. I d . at 1026. Th e cou rt ex p lained th at “[ t] h e C onstitu tion ‘ accords a l esser
p rotection to commercial sp eech th an to oth er constitu tional l y g u aranteed ex p ression. ’ ” I d. ( q u oting Cent. H u dson Gas v . P u b . Serv . Com m ’n of New Y ork , 447 U .S.
557, 563 ( 1 9 8 0 ) ) .
14. I d . at 1028. Th e cou rt also noted th at th e p laintif f s did not h av e standing to
ch alleng e th ese p rov isions b ecau se th ey w ere not com m ercial sp eak ers and b ecau se
“th e ov erb readth doctrine does not ap p ly to com m ercial sp eech .” I d . at 1026, 1028.
15. I d . at 1028 (q u oting Nat’l F ed’n of th e B lind of Ark ., I nc. v . P ryor, 258
F .3d 851, 854 (8th Cir. 2001) ) .
16. I d .
17. F raternal Order of P olice, N.D . State Lodg e v . Steneh jem , 431 F .3d 591, 596
(8th Cir. 2005) .
18. I d .
19. I d .
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rig ht.20 C ourts do not protect all types of ex pression eq ually; some types of
speech receive less protection,21 while others receive no F irst Amendment
protection at all.22 In addition, courts do not protect any type of speech absolutely.23 C ompeting interests may req uire the g overnment to restrict ex pression in certain situations.24 However, in determining the appropriate balance
between F irst Amendment rig hts and competing interests, courts often look to
the type of speech involved and the leg itimacy of the competing interest.25
20. U .S. CON S T . am end. I .
21. S ee, e.g ., C ent. H u dson G as &
E l ec. C orp . v . P u b. S erv . C omm’ n of N ew
Y ork , 4 4 7 U . S . 5 5 7 , 5 6 2 -6 3 ( 1 9 8 0 ) ( “ T h e C onstitu tion th eref ore accords a l esser
p rotection to commercial sp eech th an to oth er constitu tional l y g u aranteed ex p ression. ” ) .
22. S ee, e.g ., Ch ap linsk y v . New H am p sh ire, 315 U .S. 568 (1942) (u p h olding
statu te th at p roh ib ited u sing “[ d] erisiv e or annoying w ord[ s] ” in p u bl ic becau se
reg u l ating f ig h ting w ords does not inf ring e on th e sp eak er’ s f reedom of sp eech
w h en th e state’ s interest is p reserv ing p u bl ic p eace) ; see also B randenbu rg v .
O h io, 3 9 5 U . S . 4 4 4 , 4 4 8 -4 9 ( 1 9 6 9 ) ( inv al idating criminal syndical ism act becau se
it p u nish ed “ mere adv ocacy” of v iol ence – w h ich is constitu tional l y p rotected
sp eech – as op p osed to incitement of v iol ence, w h ich is not constitu tional l y p rotected) ; see also M il l er v . C al if ornia, 4 1 3 U . S . 1 5 , 2 3 ( 1 9 7 3 ) ( establ ish ing obscenity test and noting th at “ obscene material is u np rotected by th e F irst A mendment. ” ) .
23. S ee, e.g ., U .S. v . O’B rien, 391 U .S. 367, 376 (1968) (rejecting th e idea th at
“th e f reedom of ex p ression w h ich th e F irst A mendment g u arantees incl u des al l
modes of commu nication of ideas by condu ct. ” ) ; Row an v . U .S. P ost Of f ice D ep t.,
397 U .S. 728, 738 (1970) (stating th at “no one h as a rig h t to p ress ev en ‘ g ood’
ideas on an u nw il l ing recip ient,” and th at p eop l e need not be “ cap tiv es” to obj ectionabl e sp eech ) ; see a l s o F risb y v . Sch u ltz , 487 U .S. 474, 479-80 (1988) (noting
th at th e “standards by w h ich l imitations on sp eech mu st be ev al u ated” dif f er according to th e natu re of th e f oru m – eith er “ th e traditional p u bl ic f oru m, th e p u bl ic f oru m created by g ov ernment desig nation, and th e nonp u bl ic f oru m” ) .
24. S ee s up ra note 25 and accom p anying tex t.
25. S ee, e.g ., C ent. H u dson G as & E lec. C orp ., 4 4 7 U . S . at 5 6 2 -6 4 ( “ T h e
p rotection av ail abl e f or p articu l ar commercial ex p ression tu rns on th e natu re both
of th e ex p ression and of th e g ov ernmental interests serv ed by its reg u l ation. ” ) .
See also O ’ B ri en , 391 U .S. at 382 (1968) (h olding th at “becau se of th e G ov ernment’ s su bstantial interest in assu ring th e continu ing av ail abil ity of issu ed S el ectiv e S erv ice certif icates,” th e p roh ibition on bu rning draf t cards w as constitu tional ev en th ou g h it w as symbol ic ex p ression) . I n addition, cou rts h av e u sed
oth er f actors to determine th e ap p rop riate bal ance betw een f ree ex p ression and
comp eting g ov ernment interests, su ch as w h ere th e ex p ression tak es p l ace, see
Frisb y , 4 8 7 U . S . at 4 7 9 ( “ T o ascertain w h at l imits, if any, may be p l aced on p rotected sp eech , w e h av e of ten f ocu sed on th e ‘ p l ace’ of th at sp eech , considering
th e natu re of th e f oru m th e sp eak er seek s to emp l oy. ” ) ; and th e entity ex p ressing
itsel f , see, e.g., Ru st v . Su lliv an, 500 U .S. 173, 193 (1991) (“T h e G ov ernment can,
w ith ou t v iol ating th e C onstitu tion, sel ectiv el y f u nd a p rog ram to encou rag e cer-
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E ssentially, S t e n e h j e m pitted charitable solicitation, a type of ex pression, ag ainst residential privacy, a compelling state interest.26 T he Supreme
C ourt has addressed both of these issues in previous cases.
A. Residential Privacy
T he Supreme C ourt has repeatedly recog niz ed the validity of a person’s
rig ht to “be left alone,” or rig ht to not have unwelcome messag es thrust upon
her.27 While the parameters of this rig ht vary depending on the situation, the
C ourt has made clear that this rig ht is strong est when the unwilling recipient
is in her home.28
In Row an v . U n i t e d S t at e s Pos t O f f i c e D e p art m e n t , the Supreme C ourt
considered the constitutionality of a postal service law that req uired mail solicitors to stop all future mailing s to a particular household upon the resident’s req uest.29 Althoug h the C ourt recog niz ed the fundamental importance
of the free ex chang e of ideas, it also reasoned that “the rig ht of every person
‘to be let alone’ must be placed in the scales with the rig ht of others to communicate.”30 Balancing those interests, the C ourt recog niz ed that the “plethora of mass mailing s” had become increasing ly frustrating for residents
whose mail consisted mostly of “material [they] did not seek from persons
[they did] not k now.”31 Because the “ancient concept that ‘a man’s home is
his castle’ . . . has lost none of its vitality,” the C ourt held that “the mailer’s
rig ht to communicate [was] circumscribed only by . . . the addressee g iving
notice that he wishes [to receive] no further mailing s from that mailer.”32
After tipping the scales in favor of residential privacy, the C ourt noted that
the statute presented “no constitutional obstacles” because C ong ress was not
reg ulating the mailer’s speech.33 R ather, the law merely permitted “a citiz en
to erect a wall — that no advertiser may penetrate without his acq uiescence.”34
tain activ ities it bel iev es to be in th e p u bl ic interest, w ith ou t at th e same time
f u nding an al ternativ e p rog ram w h ich seek s to deal w ith th e p robl em in anoth er
w ay. ” ) .
26. F raternal Order of P olice, N.D . State Lodg e v . Steneh jem , 431 F .3d 591, 598
(8th Cir. 2005) (stating th at th e North D ak ota “no call list” w as “[ s] eek ing to b alance
th e interest of callers ag ainst th e p riv acy rig h ts of su b scrib ers” ) .
27. S ee s up ra note 25 and accom p anying tex t.
28. S ee, e.g ., F risb y v . Sch u ltz , 487 U .S. 474 (1988) .
29. 397 U .S. 728, 729 (1970) . Th e ch alleng ed law w as Title I I I of th e P ostal
Rev enu e and F ederal Salary Act of 1967. I d .
30. I d . at 736.
31. I d .
32. I d . at 737.
33. I d . at 738.
34. I d .
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T he Supreme C ourt has also protected the interest of residential privacy
under the F ourteenth Amendment. In C are y v . B row n , the C ourt addressed an
Illinois statute that prohibited pick eting around residences, but included an
ex ception for labor-pick eting .35 Althoug h the C ourt noted that “the Illinois
statute reg ulates ex pressive conduct that falls within the F irst Amendment’s
preserve,” it analyz ed the statute under the F ourteenth Amendment’s eq ual
protection clause.36
T he C ourt conceded that “[p]reserving the sanctity of the home, the one
retreat to which men and women can repair to escape from the tribulations of
their daily pursuits, is surely an important value.”37 U ltimately, however, the
C ourt invalidated the statute because “even the most leg itimate g oal may not
be advanced in a constitutionally impermissible manner.”38 T he primary
problem with the statute at issue in C are y was that it “ma[de] no attempt to
disting uish among various sorts of nonlabor pick eting on the basis of the
harms they would inflict on the privacy interest.”39 T he C ourt summariz ed
that the “overinclusiveness and under inclusiveness” of the statute undermined Illinois’ claim that it was “maintaining domestic tranq uility.”40
T he Supreme C ourt has used C are y ’s discussion of residential privacy
and g uidelines for appropriate reg ulations to further that interest in several
F irst Amendment cases.
In Fri s b y v . S c h u l t z , the Supreme C ourt reviewed an ordinance that prohibited any person from pick eting before or about the residence or dwelling
of any individual.41 Since the ordinance prohibited pick eting that took place
solely in front of a particular residence, the C ourt noted that, to be valid, the
ordinance must “serve a sig nificant g overnment interest and . . . leave[ ] open
ample alternative channels of communication.”42
Q uoting C are y , the C ourt noted that the “‘State’s interest in protecting
the well-being , tranq uility, and privacy of the home is certainly of the hig hest
order in a free and civiliz ed society.’”43 T he C ourt ex plained that an “important aspect of residential privacy is protection of the unwilling listener,” and
that the usual rule of req uiring listeners “simply to avoid speech they do not
want to hear” is inapplicable when the listener is at home.44 After finding that
the g overnment had a sig nificant interest in preventing residents from being
“captives” in the “sanctuary of the[ir] home[s],” the C ourt held that the ordi35.
36.
p erson w
37.
38.
39.
40.
41.
42.
43.
44.
447 U .S. 455 (1980) .
I d . at 459-60; U .S. CON S T . am end. X I V , § 1 (“No State sh all . . . deny to any
ith in its ju risdiction th e eq u al p rotection of th e law s.” ) .
C a rey , 447 U .S. at 471.
I d . at 464-65.
I d . at 465.
Id .
487 U .S. 474 (1988) .
I d . at 482-83.
I d . at 484 (q u oting Carey v . B row n, 447 U .S. 455, 471 (1980) ) .
Id .
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nance was narrowly tailored.45 U ltimately, the C ourt found that the statute’s
complete ban was narrowly tailored because each activity within the statute’s
scope was an “appropriately targ eted evil.”46
B. Charitable Solicitation
T he Supreme C ourt has addressed F irst Amendment protection of charitable solicitation in a number of cases. T he seminal case discussing charitable
solicitation is V i l l ag e of S c h au m b u rg v . C i t i z e n s f or a B e t t e r E n v i ron m e n t ,
decided in 1 9 8 0 .47
In S c h au m b u rg , the Supreme C ourt considered a facial challeng e to a
C hicag o suburb’s soliciting ordinance.48 Specifically, the ordinance req uired
charitable org aniz ations to obtain a permit before employing “door-to-door
solicitation or the use of public streets and public ways” to solicit.49 T o obtain
a permit, the applying org aniz ation had to show “[satisfactory] proof that at
least seventy-five per cent of the proceeds of such solicitations w[ould] be
used directly for the charitable purpose of the org aniz ation.”50
Schaumburg ’s ordinance was aimed at “protect[ing ] its residents from
fraud and the disruption of privacy,” an admittedly “leg itimate interest.”51
R eg ulating charitable solicitation, however, “must be done with narrow specificity.”52 T he Supreme C ourt ex plained that “charitable appeals for funds . . .
involve a variety of speech interests” and, therefore, are within the protection
of the F irst Amendment.53 “[C ]haritable solicitation,” the C ourt continued,
“does more than inform private economic decisions . . . [and therefore] it has
not been dealt with in our cases as a variety of purely commercial speech.”54
Schaumburg arg ued that its ordinance was narrowly tailored to protect
charitable speech “because any charity is free to propag ate its views from
45. I d . at 484-86.
46. I d . at 485-86. Th e statu te ch alleng ed in F ri s b y only b arred p ick eting th at w as
“narrow ly directed at th e h ou seh old, not th e p u b lic.” I d . at 486. B ecau se th at p ick eting “inh erently and of f ensiv ely intru des on residential p riv acy,” th e Cou rt rejected th e
p laintif f ’s arg u m ent th at th e ordinance v iolated th eir F irst Am endm ent rig h ts. I d .
47. 444 U .S. 620 (1980) .
48. I d . at 622-23.
49. I d . at 623.
50. I d . at 624 (f irst alteration in orig inal) .
51. I d . at 627.
52. I d .
53. I d . at 632.
54. I d . I nteresting ly, alth ou g h th e Cou rt elev ates ch aritab le solicitation ab ov e
com m ercial sp eech and states th at ch aritab le solicitations are w ith in th e p rotections of
th e F irst Am endm ent, it stop s sh ort of declaring strict scru tiny as th e ap p rop riate
standard of rev iew . I d . at 637. I n declaring th e ap p rop riate standard, th e Cou rt declares th e ordinance at issu e “cannot su rv iv e scru tiny u nder th e F irst Am endm ent.” I d .
at 636.
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door to door in the V illag e without a permit as long as it refrains from soliciting money.”55 T he C ourt summarily rej ected this arg ument because it
“fail[ed] to perceive any substantial relationship between the 7 5 -percent req uirement and the protection of public safety or of residential privacy.”56
F urther, the C ourt arg ued that there was “no indication” that org aniz ations not
meeting the req uirement would be “any more lik ely to employ solicitors who
would be a threat to public safety” than those meeting the req uirement.57 In
fact, the C ourt noted that the opposite may be true, as “org aniz ations employing paid solicitors carefully screened in advance may be even less of a threat
to public safety than solicitation by org aniz ations using volunteers.”58 While
the C ourt conceded that the ordinance would reduce the total number of solicitors, it found that this g oal could be also be accomplished by “any prohibition on solicitation,” and that “[t]he ordinance is not directed to the uniq ue
privacy interests of persons residing in their homes . . . .”59 As such, the C ourt
concluded that the ordinance was “unconstitutionally overbroad.”60
R elying heavily on S c h au m b u rg , the C ourt has more specifically addressed reg ulations of professionals who solicit funds on behalf of charities in
subseq uent cases. In S e c re t ary of S t at e of M ary l an d v . J os e p h H . M u n s on
C o., a professional fundraiser challeng ed a M aryland statute restricting
ag reements between charities and professional solicitors.61 Specifically, the
statute prohibited charities from paying more than 2 5 % of the total solicited
funds as compensation for professional solicitors.62 Althoug h the statute allowed ex emptions in limited circumstances, each contract between a professional solicitor and a charity had to be filed with the Secretary of State
“within ten days after it [was] entered into and prior to any solicitations.”63
T he issue for the Supreme C ourt was “whether the distinctions between
the Schaumburg ordinance and the M aryland statute [were] sufficient to render the statute constitutionally acceptable.”64 After discussing the leg itimate
interest of the Schaumburg ordinance, the C ourt noted that the M aryland statute was flawed because there was no “connection between the percentag e
55. I d . at 628.
56. I d . at 638.
57. I d .
58. I d . at 638 n.13.
59. I d . at 638.
60. I d . at 639.
61. 467 U .S. 947, 950 (1984) .
62. I d . Th is lim itation did “not ap p ly to com p ensation or ex p enses p aid b y a
ch aritab le org aniz ation to a p rof essional f u nd-raiser cou nsel f or condu cting f easib ility
stu dies f or th e p u rp ose of determ ining w h eth er or not th e ch aritab le org aniz ation
sh ou ld u ndertak e a f u nd-raising activ ity.” I d .
63. I d . at 950-52 (noting th at th e Secretary of State can p erm it a ch arity to p ay
m ore th an th e statu tory lim itation “w h ere th e 25% lim itation w ou ld ef f ectiv ely p rev ent th e ch aritab le org aniz ation f rom raising contrib u tions” ) .
64. I d . at 959.
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limitation and the protection of public safety or residential privacy.”65 M aryland pointed out that the main difference between its statute and Schaumburg ’s ordinance was the inclusion of an administrative waiver, which arg uably prevented the M aryland statute from being too rig id.66 T he C ourt disag reed with M aryland and concluded that, “reg ardless of the waiver provision, S c h au m b u rg req uires that the percentag e limitation in the M aryland
statute be rej ected.”67
F our years after M u n s on , the C ourt decided Ri l e y v . Nat i on al Fe de rat i on
of t h e B l i n d of Nort h C arol i n a, which addressed a N orth C arolina law reg ulating charitable solicitation by professionals in a more g eneral manner.68 T he
statute prohibited professional solicitors from collecting an “unreasonable” or
“ex cessive” fee, as defined by a three-tiered schedule using percentag es to
mark each tier.69 T he statute also req uired professional solicitors to obtain an
approved license and to disclose their name, the name of their employer, and
the averag e percent of solicitations actually turned over to charities by their
employer within the previous year before soliciting any funds.70
N orth C arolina disting uished its percentag e-based portion of the statute
from those at issue in S c h au m b u rg and M u n s on in two ways.71 F irst, in addition to the motives articulated in the prior two cases, its statute was desig ned
to ensure “that the max imum amount of funds reach the charity.”72 Second,
its statute was more flex ible than those at issue in the prior cases, thus mak ing
it more narrowly tailored.73 T he C ourt rej ected the first contention for two
reasons. P rimarily, it noted that N orth C arolina’s additional motivation was
“little more than a variation of the arg ument rej ected in S c h au m b u rg and
M u n s on that this provision is simply an economic reg ulation with no F irst
Amendment implication.”74 T he C ourt concluded that, even if it were to assume that this motivation was valid, the fact that many charities would “rej ect
the State’s overarching measure” illustrated that the statute was not narrowly
65. I d . at 962 n.10.
66. I d . at 962-68.
67. I d . at 968.
68. 487 U .S. 781 (1988) (Th e North Carolina law “def ines th e p rim a f acie reasonab le f ee.” ) .
69. I d . at 784-85. A f ee “u p to 20% of th e g ross receip ts collected is deem ed
reasonab le.” I d . A f ee “b etw een 20% and 35% . . . [ is deem ed] u nreasonab le u p on a
sh ow ing th at th e solicitation at issu e did not inv olv e th e dissem ination of inf orm ation,
discu ssion, or adv ocacy relating to p u b lic issu es as directed b y th e [ ch aritab le org aniz ation] w h ich is to b enef it f rom th e solicitation.” I d . at 785 (second alteration in
orig inal) . F inally, “a f ee ex ceeding 35% is p resu m ed u nreasonab le, b u t th e f u ndraiser
m ay reb u t th e p resu m p tion b y sh ow ing th at th e am ou nt of th e f ee w as necessary.” I d .
70. I d . at 786.
71. I d . at 789-90.
72. I d . at 789.
73. I d . at 790.
74. I d .
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tailored.75 As for the second distinction, the C ourt noted this j ustification fails
because of M u n s on ’s determination that “there is no nex us between the percentag e of funds retained . . . and the lik elihood that the solicitation is fraudulent.”76
T urning its attention to the mandatory disclosure provisions, the C ourt
found them to be content-based reg ulation of speech because “[m]andating
speech that a speak er would not otherwise mak e necessarily alters the content
of the speech.”77 As such, the C ourt subj ected the statute to “ex acting F irst
Amendment scrutiny.”78 T he State responded by stressing the importance of
its interest in donor information and transparency in the donation process to
clear up misconceptions.79 T he C ourt concluded, however, that this was “not
as weig hty as the State asserts, and that the means chosen to accomplish it are
unduly burdensome and not narrowly tailored.”80
T he final step of Ri l e y ’s analysis addressed the licensing req uirement.81
Here, the C ourt emphasiz ed that the professional solicitors were not less entitled to F irst Amendment protection “merely because compensation is received.”82 T he C ourt concluded that, even if the State’s interest in “reg ulating
those who solicit money” was sufficient, the statute was unconstitutional because it did not specify when a license would be provided.83 According ly, the
C ourt found that all three provisions were unconstitutional.84
R ecently, the Supreme C ourt clarified its position in these prior three
cases when it rej ected an attempt to use a percentag e cap on fees paid to professional solicitors. In 2 0 0 3 , the C ourt decided I l l i n i os , ex . rel. M adi g an v .
T e l e m ark e t i n g A s s oc i at e s , I n c .,85 where a professional solicitor retained 8 5 %
of all donations collected on behalf of V ietnam veterans, but told residents
that she only retained 1 0 % .86 T he C ourt tempered its prior holding s by stating
that they did “not rule out, as supportive of a fraud claim ag ainst fundraisers,
any and all reliance on the percentag e of charitable donations” retained.87
While charitable solicitation is protected within the F irst Amendment, the
C ourt noted, fraud is not.88 T herefore, the C ourt disting uished M adi g an from
its prior trilog y of cases because M adi g an ’s emphasis was on the misleading
75.
76.
77.
78.
79.
80.
81.
82.
83.
84.
85.
86.
87.
88.
I d . at 791-92.
I d . at 793.
I d . at 795.
I d . at 798.
Id .
Id .
I d . at 801.
Id .
I d . at 802.
I d . at 803.
538 U .S. 600 (2003) .
I d . at 607-08.
I d . at 606.
I d . at 611-12.
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messag es that solicitors conveyed, and not “percentag e limitations on solicitors’ fees p e r s e .”89 F or the C ourt, this distinction prevented the statute in
M adi g an from “chill[ing ] protected speech.”90
However, the S c h au m b u rg trilog y does not represent the g amut of Supreme C ourt cases discussing solicitation. In U .S . v . K ok i n da,91 the C ourt
faced the reg ulation of a variety of solicitation and speech interests.92 Specifically, the U .S. P ostal Service reg ulation prohibited “[s]oliciting alms and
contributions” on postal service property.93 In discussing the issue, the C ourt
noted that two different levels of scrutiny apply to g overnment actions.94 A
hig her level of scrutiny applies when the g overnment acts in its official lawmak ing capacity; a lower level applies when the g overnment is acting as a
proprietor, manag ing its internal operations.95 Since the reg ulation at issue
dealt with the g overnment’s postal service operations, the lower level of scrutiny applied. Because of this lower scrutiny, the C ourt upheld the reg ulation
for two reasons.96
F irst, the C ourt noted that the area where solicitation was prohibited was
not a public thoroug hfare, but a private means of access from the park ing lot
to the post office.97 Second, the post office reg ulation was g rounded in history
and ex perience and solicitation along the means of access to the post office
could potentially slow the mail.98 Specifically, the C ourt pointed out that “solicitation is inherently disruptive of the P ostal Service’s business” because “it
has the potentiality for evok ing hig hly personal and subj ective reactions.”99
Because of these emotions and potential for conflicts that could impede the
89. I d . at 619.
90. I d .
91. 497 U .S. 720 (1990) . I t is im p ortant to note th at K o k i n d a did not p rodu ce a
m ajority op inion, b u t a p lu rality, a concu rrence, and a dissent. I d .
92. I d . at 723 (“[ V ] ol u nteers f or th e N ational D emocratic P ol icy C ommittee .
. . set u p a tabl e on th e sidew al k near th e entrance of th e B ow ie, M aryl and, P ost
O f f ice to sol icit contribu tions, sel l book s and su bscrip tions to th e org aniz ation’ s
new sp ap er, and distribu te l iteratu re addressing a v ariety of p ol itical issu es. ” ) .
93. I d . at 722-23 (alteration in orig inal) .
94. I d . at 725.
95. I d . (“I t is a l ong -settl ed p rincip l e th at g ov ernmental actions are su bj ect to
a l ow er l ev el of F irst A mendment scru tiny w h en ‘ th e g ov ernmental f u nction op erating . . . [ is] not th e p ow er to reg u l ate or l icense, as l aw mak er, . . . bu t, rath er,
as p rop rietor, to manag e [ its] internal op eration[ s] . . . . ’ ” ( al terations and omissions in orig inal ) ) .
96. S ee i d . at 725-26 (“T h e G ov ernment, ev en w h en acting in its p rop rietary
cap acity, does not enj oy absol u te f reedom f rom F irst A mendment constraints, as
does a p riv ate bu siness, bu t its action is v al id in th ese circu mstances u nl ess it is
u nreasonabl e, or, as w as said in Lehman, ‘ arbitrary, cap riciou s, or inv idiou s. ’ ” ) .
97. I d . at 727.
98. I d . at 731-32.
99. I d . at 732-33.
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means of access to the post office, the C ourt held that the reg ulation was reasonable.10 0
C. E ig hth Circu it P reced ent
Admittedly, the previously discussed Supreme C ourt cases overlap and
are not restricted to discussing either “residential privacy” or “charitable
speech.” S t e n e h j e m provided another ex ample of these competing interests,
althoug h it was not the first time the E ig hth C ircuit addressed a conflict between residential privacy and charitable speech. F or ex ample, in Nat i on al
Fe de rat i on of t h e B l i n d of A rk an s as , I n c . v . Pry or,10 1 decided before M adi g an , the E ig hth C ircuit addressed charitable solicitation over the phone and
its intrusion on residential privacy.10 2
In Pry or, an Ark ansas statute req uired all charitable solicitors to “identify the caller and the org aniz ation on whose behalf the call [was] being
made, state the purpose of the call, and briefly describe any product or service
being offered.”10 3 After this introduction, if the resident indicated she no
long er wanted to hear about the charity, the caller was prohibited from offering additional information.10 4 T he C ourt cited the S c h au m b u rg trilog y10 5 for
the proposition that, since charitable solicitation is fully favored speech, g overnment reg ulations must serve a “sufficiently strong ” interest and be “narrowly drawn” to prevent “unnecessar[y] interfer[ence] with F irst Amendment
freedoms.”10 6 T he C ourt noted that this standard was similar to time, place,
and manner restrictions.10 7
In applying these principles, the E ig hth C ircuit relied on Row an in asserting that Ark ansas had a leg itimate interest in “protect[ing ] its citiz ens
from unwanted telephone calls.”10 8 As for the narrowly tailored means, the
C ourt rej ected the contention that other means, such as unlisted telephone
numbers and caller-ID s defeated the statute.10 9 Because the statute’s “only
impact [was] to end solicitation calls to unwilling residents who otherwise
would not hang up,” the C ourt concluded that the statute passed constitutional
muster.110
100.
101.
102.
103.
104.
105.
106.
107.
108.
109.
110.
I d . at 732-34.
258 F .3d 851 (2001) .
Id .
I d . at 854.
Id .
S ee s up ra notes 47-90 and accom p anying tex t.
Pry o r, 258 F .3d at 854-55.
I d . at 855.
Id .
I d . at 856.
Id .
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With this ex tensive back g round of both Supreme C ourt precedent and
E ig hth C ircuit interpretation of it, the C ourt addressed the facts of the
S t e n e h j e m case.
IV . INSTANT DE
CI SI ON
A . Maj ority O p inion111
Applying a de n ov o standard of review, the E ig hth C ircuit determined
that “[t]he principal inq uiry in determining content neutrality is whether the
g overnment has adopted a reg ulation of speech because of disag reement with
the messag e the speech conveys.”112 As such, incidental burdens on particular
speak ers or messag es are acceptable as long as the reg ulation “serves purposes unrelated to the content of ex pression” and can be “j ustified without
reference to the content of the reg ulated speech.”113
After applying these principles to the N orth D ak ota statute at issue, the
maj ority found the law content neutral for two reasons.114 F irst, the maj ority
stated that the law’s distinction “between professional and in-house charitable
solicitors [was not done] because of any disag reement with the messag e that
would be conveyed, for the messag e would be identical reg ardless of who
conveyed it.”115 Second, the maj ority reasoned, “the reg ulation can be j ustified without reference to the content of the reg ulated speech,” because the
state’s interest “is in protecting residential privacy.”116
T he maj ority ack nowledg ed that “the Act appears to mak e a subj ect
matter distinction,” but stated that the fact that a law disting uishes between
speech activities in a manner lik ely to produce the conseq uences it seek s to
prevent is not, itself, a reason to strik e the law for “failure to maintain ‘content neutrality.’”117 T he court reasoned that the act’s restrictions were “not
limited to the ring ing of the phone,” but to how invasive a phone call may
be.118 U ltimately, because solicitation “may reasonably be viewed as more
invasive than advocacy,” the act was content neutral.119
After asserting its conclusions, the maj ority applied the Pry or test,
which is essentially an E ig hth C ircuit re-formulation of the Supreme C ourt’s
111. J u dg e Wollm an w rote th e m ajority op inion, in w h ich J u dg e H olm es joined.
Steneh jem v . F raternal Order of P olice, N.D . State Lodg e, 431 F .3d 591, 595-96 (8th
Cir. 2005) . J u dg e H olm es is a D istrict J u dg e f or th e E astern D istrict of Ark ansas w h o
w as sitting b y desig nation f or th is case. I d . at 595 n.1.
112. I d . at 596 (citing Ward v . Rock Ag ainst Racism , 491 U .S. 781, 791 (1989) ) .
113. I d .
114. I d .
115. I d .
116. I d .
117. I d . at 596-97.
118. I d . at 597.
119. I d .
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S c h au m b u rg test.120 T his test, the court notes, has been interpreted as “intermediate scrutiny review” and is very similar to time, place and manner restrictions.121 T he test involves three steps: “( a) whether the State had a sufficient or ‘leg itimate’ interest; ( b) whether the interest identified was ‘sig nificantly furthered’ by a narrowly tailored reg ulation; and ( c) whether the reg ulation substantially limited charitable solicitations.”122 T he court then applied
these three inq uiries to the N orth D ak ota statute at issue.
C iting prior E ig hth C ircuit and Supreme C ourt precedent, the maj ority
stated it was clear that “residential privacy is a ‘sig nificant’ g overnment interest, particularly when telemark eting calls ‘are flourishing , and becoming a
recurring nuisance by virtue of their q uantity.’”123 T herefore, the court held
that the statute was motivated by a sig nificant interest.124
Addressing the second step of the analysis constituted the bulk of the
maj ority’s opinion. T he maj ority noted that the narrow tailoring req uirement
was satisfied as long as the Act promoted a “‘substantial interest that would
be achieved less effectively absent the reg ulation and the means chosen [do]
not burden substantially more speech than is necessary.’”125 As long as the
act did not foreclose all means of communication, the court continued, “it
may satisfy the tailoring req uirement even thoug h it is not the least restrictive
or least intrusive means of serving the statutory g oal.”126 N orth D ak ota arg ued that its distinction between professional and in-house charitable solicitors was “based upon the sheer volume of calls,” because professional solicitors are able to reach many more residents than if the soliciting were done by
the charity itself.127
T he maj ority also addressed the appellee’s arg ument that the Act was
underinclusive “because a ring ing phone disrupts residential privacy whether
the caller is a volunteer or a professional.”128 T he maj ority conceded that
ex ceptions to an otherwise leg itimate speech reg ulation can “undermine the
g overnment’s reasons for the reg ulation.”129 In this case, however, the court
found that the ex ceptions fit with the underlying motives for the enactment.
Specifically, the court noted that the Act did not g ive “one side of a debate”
an advantag e over another, but that it did address the overall problem it was
120. S ee S ten eh j em , 431 F .3d at 597 c i ti n g Nat’l F ed’n of th e B lind of Ark ., I nc.
v . P ryor, 258 F .3d 851 (8th Cir. 2001) ; V ill. of Sch au m b u rg v . Citiz ens f or a B etter
E nv ’t, 444 U .S. 620 (1980) .
121. I d .
122. I d . (q u oting Ward v . Rock Ag ainst Racism , 491 U .S. 781, 855-56 (1989) ) .
123. I d . (q u oting V an B erg en v . Minnesota, 59 F .3d 1541, 1555 (8th Cir. 1995) ) .
124. I d .
125. I d . (q u oting K rantz v . City of F ort Sm ith , 160 F .3d 1214, 1219 (8th Cir.
1998) ) .
126. I d . at 597-98.
127. I d . at 598.
128. I d .
129. I d .
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aimed at — reducing “the total number of unwelcome telephone calls to private residences.”130
T he court also called attention to the “opt-in” status of the no-call list.131
Althoug h this status was “not dispositive,” the court noted that it “limit[ed]
the deg ree of g overnment interference with F irst Amendment interests.”132 In
completing its second level of analysis, the court concluded that, because the
g overnment had not burdened the speech more than necessary, the act was
narrowly tailored.133
In its final level of analysis, the court asserted that the act did not substantially limit charitable solicitations.134 Because the act left open other possibilities of solicitation such as mak ing “in-house” calls, mailing campaig ns,
or in person soliciting , the act left open alternate channels and was, therefore,
not a substantial limit to charitable solicitations.135
After concluding that the act met all three of Pry or’s req uirements, the
court dismissed the appellee’s arg ument that the act was overbroad.136 T he
appellees arg ued that the act was unconstitutionally overbroad because it
made no attempt to disting uish between calls that infring ed on residential
privacy and “innocuous speech.”137 T he court disag reed, noting that the act
only applied to residents who reg ister with the no-call list, and therefore,
“[t]he reg istrants have decided that the Act’s banned phone calls intrude on
their residential privacy.”138 According ly, the court reversed the district court
and remanded “with direction to dismiss the complaint.”139
B. D is s enting O p inion140
T he dissent’s position was straig ht-forward: residential privacy is a leg itimate interest, but the Act was unconstitutional because it was not narrowly tailored.141 T he dissent arg ued that the act substantially limited charitable solicitation and could therefore only be upheld if it served a “sufficiently
strong ” g overnment interest and was “narrowly drawn” to serve that interest.142 Althoug h the dissent “ag ree[d] that protection from the invasion of
130.
131.
132.
133.
134.
135.
136.
137.
138.
139.
140.
141.
142.
Id
Id
Id
Id
Id
Id
Id
Id
Id
Id
.
. at 598-99.
. at 599.
.
.
.
.
.
. at 600.
.
J u dg e H eaney au th ored th e dissenting op inion.
S ten eh j em , 431 F .3d at 600-01 (H eaney, J ., dissenting ) .
I d . at 600.
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residential privacy by unwanted solicitations is such an interest,” it did not
ag ree that the reg ulation was narrowly drawn for two reasons.143
F irst, the dissent contended that the act was “overly restrictive” because
its broad provisions prohibit professional soliciting “no matter the time of day
nor the percentag e of contributions earmark ed for the charity.”144 T he restrictive nature of the Act, the dissent arg ued, prevented residents “who are adverse to commercial solicitation but open to charitable solicitation” from
communicating with professional charitable solicitors.145
Second, the dissent arg ued the act was “underinclusive.”146 T he dissent
ex plained that a law is underinclusive when it “discriminates ag ainst some
speak ers but not others without a leg itimate neutral j ustification for doing
so.”147 N oting that both professional and “in-house” solicitors intrude on residential privacy, the dissent noted that “[i]t remains unclear . . . why the g overnment has restricted the charitable speech . . . when so many other g roups
may intrude upon that privacy.”148 T his undermined the g overnment’s rationale for the act, in the dissent’s view, because the g overnment offered no statistical evidence on how the act would “sig nificantly reduce the number of
telephone intrusions into private residences,” or that it would “even sig nificantly improve[ ] residential privacy.”149 T he dissent concluded that, without
this showing , the act failed the narrowly tailored req uirement, therefore rendering it unconstitutional.
V . COMME
NT
As previously discussed, there is no lack of Supreme C ourt decisions
discussing charitable solicitation150 or residential privacy.151 In fact, the Supreme C ourt and E ig hth C ircuit have addressed cases that pit these interests
ag ainst each other.152 T his precedent has failed to produce a consistent g uiding framework , however, and has led to increasing uncertainty and erroneous
decisions.
T his comment arg ues that S t e n e h j e m was wrong ly decided for three reasons and that further clarification in this area of the law is needed to resolve
the uncertainty hig hlig hted by the E ig hth C ircuit’s decision. F irst, the reg ulation at issue in S t e n e h j e m is arg uably content-based, which should warrant
143. I
144. I
145. I
146. I
147. I
148. I
149. I
150. S
151. S
152. S
and accom
d . at 600-01.
d . at 601.
d .
d .
d .
d .
d . at 601-02.
ee s up ra Section I I I .B .
ee s up ra Section I I I .A.
ee s up ra notes 47-60 and accom p anying tex t; s ee a l s o s up ra notes 101-110
p anying tex t.
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strict scrutiny review. Althoug h the E ig hth C ircuit summarily dismissed this
contention, an ex amination of the issue reveals that this q uestion is closer
than the court assumes. Second, even if the reg ulation is not content-based,
the court reviewed the reg ulation under the wrong deg ree of scrutiny. T his
mishap was not intentional, however, because courts have strug g led with
determining the appropriate standard of review since S c h au m b u rg . T hird, the
court compounded this problem by declaring to apply an intermediate standard of review, but instead g iving leg islative deference to N orth D ak ota that
amounts to rational basis review. Because of this deferential review, the court
essentially affirmed the State’s arbitrary reg ulatory distinctions between professional solicitors and charitable volunteers without any statistics or studies
to support its determination.153
After analyz ing these flaws, this section arg ues that states are not helpless in shielding their citiz ens from unwanted telemark eting . O ther tools discussed in Row an 154 and the S t e n e h j e m dissent strik e a reasonable balance
between protecting residential privacy while honoring charities’ free speech
rig hts.
A . Content-bas ed
F irst, it is arg uable that the N orth D ak ota reg ulation is content-based.
Specifically, while the act allows charities to use an “outside ag ency” to call
residents and to advocate the charity’s messag e, it prevents that ag ency from
req uesting donations.155 T his restriction undermines the state’s j ustification
for the reg ulation, because these “outside ag encies” can mak e the same
amount of calls, as long as they do not ask for money. T his provision also
hig hlig hts an interesting paradox . U nder the statute, it is perfectly acceptable
for an ag ency to call residents who are reg istered with a “do not call” list and
say, “I am calling on behalf of the American C ancer Society, and I would lik e
to encourag e you to refrain from smok ing .” However, if the caller g oes one
step further and ask s, “Would you lik e to help our cause with a donation? ,”
the ag ency has j ust violated the N orth D ak ota statute.
As previously discussed, S c h au m b u rg describes charitable solicitation as
encompassing a variety of speech interests.156 T herefore, it appears that the
statute reg ulates the very content of the charities’ speech, because it prevents
them from ex ercising one of their speech interests, without providing an adeq uate j ustification for disting uishing between solicitation and mere advocacy.
In K ok i n da,157 for ex ample, the postal service distinction was based on the
153.
154.
155.
595 (8th
156.
157.
S ee s up ra notes 147-49.
S ee s up ra notes 32-34.
S ee F raternal Order of P olice, N.D . State Lodg e v . Steneh jem , 431 F .3d 591,
Cir. 2005) .
S ee s up ra notes 52-56 and accom p anying tex t.
S ee s up ra notes 91-100 and accom p anying tex t.
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emotions and potential for conflicts that would block customers’ means of
access.158 O n the other hand, in S t e n e h j e m , N orth D ak ota arg ued that the statute was j ustified, because it reduced the “sheer volume” of calls made on
charities’ behalf, which is much different than j ustifying the statute, because
ask ing for money is more intrusive than simply advocating a messag e.
T he Supreme C ourt has been receptive to an analog ous arg ument. In Ri l e y , the Supreme C ourt noted that the disclosure provisions compelled statements that otherwise mig ht not be made.159 Because this compulsion altered
the charity’s messag e, the C ourt found the reg ulation to be content-based.160
O f course, there are differences between the Ri l e y statute and the S t e n e h j e m
statute. Ri l e y directly altered the charity’s messag e, whereas S t e n e h j e m ’s
alteration is indirect. As previously mentioned, it is unclear how the Supreme
C ourt will resolve this content-based q uestion, althoug h a clear statement on
these issues is necessary to g ive leg islatures and courts more g uidance in
crafting and interpreting statutes.
B. Stand ard of R ev iew
T he problem of determining the appropriate standard of review for
charitable solicitation reg ulations beg an in S c h au m b u rg . T here, the C ourt
noted that charitable solicitation was not simply “a variety of purely commercial speech,” because it involved several speech interests, such as promulg ating the charity’s views, disseminating information, and advocating for a
charitable cause.161 Because of these factors, the C ourt characteriz ed charitable solicitation as being protected by the F irst Amendment.162 Such a conclusion necessarily elevates charitable solicitation above various forms of disfavored speech, 163 entitling it to more protection from g overnment reg ulation.
C uriously, however, the C ourt did not declare a standard of review.164 Instead, they hedg ed their lang uag e by declaring that the ordinance at issue
could not “survive scrutiny under the F irst Amendment.”165
T his hedg e has only spawned more confusion in determining the appropriate standard of review. In Ri l e y , the C ourt stated that, because the disclosure reg ulation at issue burdened protected speech, it would apply an “ex act-
158. S ee s up ra notes 102-05 and accom p anying tex t. Also, as p rev iou sly m entioned, K o k i n d a does not rep resent controlling leg al reasoning b ecau se th ere w as no
m ajority op inion. S ee s up ra note 96.
159. Riley v . Nat’l F ed’n of th e B lind of N.C., I nc., 487 U .S. 781, 798 (1988) .
160. I d .
161. V ill. of Sch au m b u rg v . Citiz ens f or a B etter E nv ’t, 444 U .S. 620, 632 (1980) .
162. I d . at 633.
163. S ee s up ra tex t accom p anying notes 21-22.
164. S ee s up ra note 54.
165. S c h a um b urg , 444 U .S. at 636.
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ing F irst Amendment scrutiny.”166 Pry or, an E ig hth C ircuit case, echoed the
Supreme C ourt’s strug g le by noting that charitable solicitation is “fully protected” by the F irst Amendment, and noting that the reg ulation at issue could
only be upheld “if it withstands F irst Amendment scrutiny.”167
S t e n e h j e m claimed to mak e sense of this mess by look ing back to
S c h au m b u rg , which claimed to have outlined the appropriate test.168 T he
S t e n e h j e m court then resolved any prior uncertainty by stating that althoug h
“the Supreme C ourt has not specified whether the S c h au m b u rg test is an intermediate scrutiny review of a content-neutral reg ulation, we have interpreted it as such.”169 Interesting ly, the court cited to Pry or, where the court
had simply mirrored the ambig uous lang uag e of S c h au m b u rg .170
T he E ig hth C ircuit compounded this confusion by failing to apply intermediate scrutiny. In considering whether the N orth D ak ota statute was
narrowly tailored, the court determined that the g oal of preserving residential
privacy “would be achieved less effectively” if charities were allowed to use
professional solicitors.171 N orth D ak ota arg ued that its distinction was based
upon the sheer volume of calls because a “charity using paid professional
telemark eters” would typically be “able to dial substantially more residential
telephone numbers than if the charity used its own volunteers and employees.”172 While this may be true, it is mere speculation. As the dissent pointed
out, N orth D ak ota “provided no statistics to support its assertion.”173 E vidently, the maj ority was not concerned with this lack of statistical support,
thoug h, because it upheld the distinction and refused to “second-g uess the
N orth D ak ota Leg islature’s j udg ment.”174 U ltimately, despite failing to mention its standard of review, the court applied a rational basis standard of review.
T his level of cursory review would affirm virtually any reasonable distinction the g overnment claimed to reduce the total number of solicitations.
F or instance, the 7 5 % limitation on door-to-door solicitation in S c h au m b u rg
would surely reduce the total number of solicitors. F urthermore, org aniz ations spending less than 7 5 % of their soliciting proceeds on their org aniz ation’s messag e will have more money to pay employees to solicit around the
neig hborhood, thus k nock ing on more doors and intruding more onto residen166. Riley v . Nat’l F ed’n of th e B lind of N.C., I nc., 487 U .S. 781, 798 (1988)
(ap p lying th is m easu re of scru tiny b ecau se th e disclosu re p rov isions am ou nted to
com p elled sp eech ) .
167. Nat’l F ed’n of th e B lind of Ark . v . P ryor, 258 F .3d 851, 854 (8th Cir. 2001) .
168. F raternal Order of P olice, N.D . State Lodg e v . Steneh jem , 431 F .3d 591, 597
(8th Cir. 2005) .
169. I d .
170. I d .; s ee s up ra notes 54, 106-107 and accom p anying tex t.
171. S ten eh j em , 431 F .3d at 598.
172. I d .
173. I d . at 601 (H eaney, J ., dissenting ) .
174. I d . at 598 (m ajority op inion) .
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tial privacy. U nder S t e n e h j e m ’s standard of review, this arg ument would prevail because of the court’s reluctance to “second-g uess” the g overnment.
Instead, applying any level of heig htened F irst Amendment scrutiny
would req uire the court to ex amine the relationship between the reg ulation
and the state’s interest. In S t e n e h j e m , the q uestion should have been whether
professional solicitors’ calls were particularly intrusive to residential privacy
to j ustify reg ulating them but not volunteer solicitors. In fact, S c h au m b u rg
even recog niz ed the possibility that the opposite is true. In its opinion, the
court noted that “solicitation by org aniz ations employing paid solicitors carefully screened in advance may be even less of a threat to public safety than
solicitation by org aniz ations using volunteers.”175 Althoug h the reg ulation
will lik ely reduce the total number of phone calls to N orth D ak ota residents,
nearly any reg ulation of charitable solicitation would do that if courts accept
the “sheer volume” j ustification.176 F or ex ample, the total number of calls
could also be reduced by only ex empting charities that advocate healthrelated issues, such as the American C ancer Society or the R ed C ross but
restricting all other charities, such as the Salvation Army. U pholding this
distinction would be ridiculous, however, because both types of charities
intrude onto residential privacy to some deg ree and accepting the “sheer volume” arg ument g ives the leg islature too much latitude to mak e arbitrary distinctions.
C. P rotecting R es id ential P riv acy
Strik ing the appropriate balance between F irst Amendment freedom to
solicit and residential privacy may be a daunting task , but states are not without the power to protect their citiz ens, and citiz ens are not without a remedy
ag ainst unwanted callers. As previously discussed, the Supreme C ourt has
upheld sender-specific prohibitions on unwanted mailing s in Row an v . U n i t e d
S t at e s Pos t O f f i c e D e p art m e n t .177 A possible formulation of a Row an -lik e “no
call list” would allow residents to contact a state ag ency to report that they
have been receiving unwanted charitable calls on behalf of a specific charity.
F or ex ample, M issouri residents could contact the P ublic Service C ommission,178 who would then ex amine the residents’ complaint to determine its
merits and issue an order prohibiting the charity from contacting that number
ag ain.179 States can use different criteria for determining what warrants an
175. V ill. of Sch au m b u rg v . Citiz ens f or a B etter E nv ’t, 444 U .S. 620, 638 n.13
(1980) .
176. S ten eh j em , 431 F .3d at 598.
177. S ee s up ra notes 29-34 and accom p anying tex t.
178. Th e Missou ri P u b lic Serv ice Com m ission cu rrently reg u lates telep h one u tilities, MO. COD E REG S . AN N . tit. 4, § 240-30.010 to -30.060 (2003) ; telecom m u nications serv ice, i d . § 240-32.010 to -32.200 (2004) ; and serv ice and b illing p ractices f or
telecom m u nications com p anies, i d . § 240-33.010 to -33.160 (2005) .
179. S ee, e.g ., Row an v . U .S. P ost Of f ice D ep t., 397 U .S. 728, 730 (1970)
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administrative order, such as the freq uency of the calls, and an appropriate
enforcement mechanism, such as increasing fines for the violating charity.
Adopting a similar approach to handle unwanted charitable solicitation
calls would circumvent the appellee’s arg uments ag ainst the statute in
S t e n e h j e m , while still preserving residential privacy. T he Row an -lik e reg ulation would not be underinclusive, because it would targ et al l charitable calls
that intrude on residential privacy, as determined by the residents themselves.
T he reg ulatory scheme would also not be overinclusive, because it would
targ et on l y those charitable calls intruding on residential privacy and would
not “burden more speech than is necessary to further the State’s interest in
residential privacy.”180 It is also important to note that under a Row an -lik e
scheme, the residents themselves declare what disrupts their residential privacy, as opposed to a leg islature trying to determine and effectively reg ulate
the most intrusive probes into residential privacy.
V I. CONCLU
SI ON
Althoug h strik ing an appropriate balance between protecting residential
privacy and F irst Amendment rig hts is a difficult task , it seems that the
E ig hth C ircuit reached the wrong conclusion. If its reasoning were accepted,
particularly the “sheer volume” arg ument, the scales would be tipped too far
in favor of residential privacy. T his would imping e charities’ F irst Amendment rig hts because of g eneral public frustration with telemark eting . A better
approach would adopt the Supreme C ourt’s reasoning in Row an and implement a caller-specific do not call list. Such an approach would strik e a fairer
balance between residential privacy and F irst Amendment rig hts, because it
would reg ulate charities that actually intrude on residential privacy, while
allowing non-intrusive charities to fully ex ercise their F irst Amendment
rig hts. Without further clarification, however, state laws reg ulating charitable
solicitation will continue to be reviewed by courts mired in confusion about
how to appropriately balance residential privacy and F irst Amendment freedoms.
MARCUS WI L
B E RS
(S u bsection ( b) mandates th e P ostmaster G eneral , u p on receip t of a notice f rom
th e addressee sp ecif ying th at h e h as receiv ed adv ertisements f ou nd by h im to be
w ith in th e statu tory categ ory, to issu e on th e addressee’ s req u est an order directing th e sender and h is ag ents or assig ns to ref rain f rom f u rth er mail ing s to th e
named addressee. A dditional l y, su bsection ( c) req u ires th e P ostmaster G eneral to
order th e af f ected sender to del ete th e name of th e desig nated addressee f rom al l
mail ing l ists ow ned or control l ed by th e sender and p roh ibits th e sal e, rental ,
ex ch ang e, or oth er transactions inv ol v ing mail ing l ists bearing th e name of th e
desig nated addressee. ) .
180. S ten eh j em , 431 F .3d at 598.