FOP Loses Challenge To Charitable Solicitations Law

The North Dakota Legislature enacted a partial ban on telephone solicitations. Under the law, if residents register with the state’s “do-not-call” list, telephone solicitors may not call asking for contributions.

The North Dakota law exempts telephone solicitations made by charitable organizations if “the telephone call is made by a volunteer or employee of the charitable organization” and the caller makes specified disclosures.

The Fraternal Order of Police (FOP), joined by dozens of other groups, filed a constitutional challenge to the law. When a trial court invalidated the law, the State appealed to the federal Eighth Circuit Court of Appeals.

The Appeals Court overturned the trial court’s ruling, and upheld the constitutionality of the law. The core question before the Court was whether the ban on solicitation was “content-neutral.” As the Court viewed it, “the principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech because of disagreement with the message the speech conveys.”

The Court found the North Dakota law passed this test. The Court noted that “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. Second, the regulation can be justified without reference to the content of the regulated speech, for North Dakota’s interest is in protecting residential privacy. Residential privacy is a significant government interest, particularly when telemarketing calls are flourishing, and becoming a recurring nuisance by virtue of their quantity.”

The FOP argued that the State’s justification for the law – the privacy of homeowners – could not be justified “because a ringing phone disrupts residential privacy whether the caller is a volunteer or a professional.” Although the Court acknowledged that “exceptions from an otherwise legitimate regulation of speech may undermine the government’s reasons for the regulation,” it nonetheless concluded “North Dakota’s do-not-call statute does not give one side of a debate an advantage over the other, but rather it reduces the total number of unwelcome telephone calls to private residences. In the case before us, the overall problem is the intrusion on residential privacy caused by unwanted telephone solicitation. We are satisfied that the law furthers the state’s interest in preserving residential privacy.”

Fraternal Order of Police, North Dakota State Lodge v. Stenehjem, 431 F.3d 591 (N.D. 2005).

This article appears in the March 2006 issue