Congress and the courts have a tough task in adapting the Constitution to innovative communications. The Founders never saw how much free speech, privacy, and copyright protection would be challenged by the technological ease of sending and receiving information.
Lawmakers are having difficulty crafting a law banning e-mail spam. Courts are divided over whether online sharing of commercial music and movies is theft. And last week two different judges aborted a federal do-not-call registry that would ban telemarketers from calling people on the list.
The registry, which has 50 million people signed up, was to take effect Oct. 1. But one judge said the Federal Trade Commission didn't have authority to run it (which Congress has fixed) while the other judge said the registry violated the free-speech right of commercial telemarketers, especially by letting charities and political groups solicit by phone.
The Supreme Court does allow government to bar commercial speech that's fraudulent. For honest commercial speech, however, the court says there must be a strong public interest in order to step on the First Amendment. The no-call registry meets that test by having people ask government to help them protect their right to privacy and prevent unwanted solicitations, much as a "Do Not Trespass" sign posted on private property does.
If government were to bar such commercial intrusion on its own, then the balance would go to free speech. The trick is to give consumers the ability to "opt out" of solicitations.
In the past, the high court has granted more free-speech protection to charities and political groups than to commercial enterprises because of their importance in shaping society.
If this case goes to the Supreme Court, it must stick to that reasoning.