The Fourth Circuit Court of Appeals is back in the news for its recent decision upholding President Bush’s authority to imprison American citizens indefinitely without regard for the privilege of the writ of habeas corpus. That decision was written by Judge J. Michael Luttig, a conservative that is usually included on Republican short lists for the Supreme Court. Another Fourth Circuit judge on many of those lists is J. Harvie Wilkinson III, who authored a less noticed though just as disturbing decision of his own last week in a case involving executive power.
The case involved a matter that is perhaps a close second on the government’s radar to terrorism—telemarketing. In fact, the two are related. When Congress passed the PATRIOT Act in 2001, it included provisions that expanded the Federal Trade Commission’s authority to regulate telemarketers. The ostensible connection was that there was an increase in fraud related to charitable solicitation in the days after 9/11, and this necessitated a swift federal response. The PATRIOT Act thus directed the FTC to add “fraudulent charitable solicitations” to a list of “prohibited deceptive practices” created after Congress first decided to regulate telemarketing in 1994.Now here’s the problem: The FTC cannot regulate charitable, non-profit organizations, because the Federal Trade Commission Act of 1914 only extends to individuals and for-profit entities. So the FTC’s can’t regulate a charity’s “in house” telemarketing. But the FTC can regulate a for-profit telemarketer that acts on behalf of a non-profit charity. And that’s what the FTC proceeded to do under the PATRIOT Act.
Two charities that rely on external telemarketers—the National Federation of the Blind and Special Olympics Maryland—filed a lawsuit claiming that the FTC was illegally discriminating against them and violating their First Amendment rights. District Judge J. Frederick Motz—who once compared Microsoft to Tonya Harding during an antitrust lawsuit—rejected these claims and upheld the FTC’s actions.
On appeal, Judge Wilkinson and Judge William Traxler affirmed Motz’s decision. Following Supreme Court precedent, they said the government had a compelling interest in “protecting the sanctity of the family environment” that permitted regulation of telemarketing. (Keep in mind this case deals with the PATRIOT Act, which allows for warrantless and secret government searches, but protection from unsolicited phone calls is somehow crossing the line.) Wilkinson then concluded that it was alright for Congress to discriminate against some speakers by only giving the FTC authority over some telemarketers. He said that if such discrimination were not allowed
then any regulation by any federal agency that applied to only some speakers would be imperiled. Worse still, Congress could not remedy such defects by re-assigning jurisdiction among agencies. For the reassignment would itself necessarily distinguish among speakers or speech that each agency can regulate. This is so because jurisdiction, by its very nature, is underinclusive. The upshot of [the plaintiffs'] position is thus a stark choice for lawmakers — either assign all regulation touching on speech to one federal agency, or do not regulate at all. We do not believe the Constitution hamstrings Congress in such a manner.In any event, effectively instructing Congress to reorder an agency’s jurisdiction would be an unwarranted exercise of judicial authority. Agency jurisdiction often reflects traditional areas of expertise and experience which extend well beyond this or indeed any single problem.
Circuit Judge Allyson Duncan, writing in dissent, said Wilkinson was creating a giant loophole for Congress to create future First Amendment violations:
The implications of this holding are staggering. If a regulation that places different restrictions on speech based upon the identity of the speaker can be upheld simply by relying on the jurisdiction of the agency as the “neutral justification” for the distinction, this court will have created a perverse incentive for all legislative bodies. Congress can restrict speech, even unconstitutionally, so long as it does so by parsing jurisdiction between various agencies. If, for example, Congress were to give a particular agency jurisdiction over one political party — for instance if the Department of Homeland Security were given jurisdiction over the Independent party in America — the majority’s holding would allow a regulation that restricted that party’s ability to raise funds to be upheld simply by referring to the agency’s jurisdiction. Restrictions on speech that go to the heart of the First Amendment, those differentiating solely on the identity of the speaker, would be given little to no scrutiny, as the legislative decision to disperse jurisdiction amongst various executive agencies would justify the disparities. The majority would allow Congress to do indirectly that which it cannot do directly, and that is to regulate speech in an underinclusive manner.
Duncan added that the FTC had presented no evidence to support its principal policy argument that professional telefunders were more likely to engage in fraud then in-house solicitors: “[T]he FTC, when pressed at oral argument, conceded that there existed “no empirical evidence in the administrative record to support this assumption. In fact, the FTC conceded that the only evidentiary support the agency had for solely applying the TSR to telefunders was its intuitive, ‘common-sense’ assumption that telefunders commit fraud more frequently.” (Italics in original.)
Requiring the government to present evidence, of course, would almost certainly constitute a judicial encroachment on the separation of powers, as defined by “strict constructionist” judges like Harvie Wilkinson and Michael Luttig. Then again, when the National Federation of the Blind and Special Olympics Maryland decide to attack America through a coordinated campaign of telemarketing calls during the dinner hour, we may well call upon the White House to respond quickly and forcefully, without regard to due process. Perhaps this can be the next job for deposed FEMA director Michael Brown.
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Speaking of telemarketing and the Patriot Act, the US government had a stroke of pure (evil) genius when they made it so that one applied to get on the “do not call” list by sending them an email with the phone number to be blocked. That instantly allows them to tie the email addresses they pick up during their internet eavesdropping to a phone number. For regular land lines which are listed in the white pages, that means they can look up the home address of any “persons of interest” whose email they intercept in a few milliseconds, without any need for the muss and fuss of making an ISP (or the public library on an Internet Cafe) tell them who is/was using a particular IP or email address.
Sliding a “popular” measure into a piece of repressive legislation makes me think of a bounty hunter who wraps his pellets of wolf poison in a big piece of bacon.
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