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Commercial Speech Digest |
JUDICIAL BEAT |
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City's 'No Gun' Rule Violates Show Operator's Rights
Northern Indiana Gun & Outdoor Shows, Inc. sued city officials,
contending that the policy violated its First Amendment and equal
protection rights. Among its claims, the group argued that the ban on
firearms and ammunition curtailed its ability to convey information about
lawful products.
The jury agreed that the policy violated the gun show operator's
commercial speech rights and awarded the plaintiff $300,000 in damages.
The city defendants filed a posttrial motion, asking the federal judge
to overturn the jury verdict. The city defendants contended that the
court should have granted the defendants' judgment after the plaintiff's
proof at trial. They argued that the regulation was lawful under the
four-part Central Hudson test.
The parties did not dispute that the speech was truthful and
nonmisleading. Thus, they argued over the application of the remaining
Central Hudson factors.
The government contended that the policy served its substantial interest
in providing a reasonably safe convention center. However, the jury
concluded that the defendants violated the commercial speech rights of
the gun show operator.
The federal judge ruled in an Aug. 21 opin-ion that the issue of a
commercial speech violation was a fact question for the jury.
“The issues of the substantial governmental interest and the
restrictive extent of the 'no weapons on the premises' policy were close
questions and questions on which the court heard conflicting testimony
from the witnesses at trial,” the judge wrote.
Several city police officers had testified that the gun shows posed no
safety issue and that they had seen no safety violations, no violations
of gun laws, and “no cause for public concern,” the judge
pointed out.
“A reasonable juror could have concluded that the defendants had no
substantial safety interest,” the judge concluded.
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Northern Indiana Gun & Outdoor Shows, Inc. v. Hedman, 111 F.
Supp.2d 1020 (N.D. Ind. 2000).
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980). |
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That measure would require telemarketers to notify consumers of their right to be placed on a “do-not-call list” maintained by the Direct Marketing Association or the consumer's state. The measure, as originally introduced, would also prohibit telemarketers from contacting individuals between 5 p.m. and 7 p.m. Current federal regulations (C.F.R. 310.4(c)) provide that it is “an abusive telemarketing act” for a telemarketer to call a person's residence “at any time other than between 8 a.m. and 9 p.m.” In June, the House Telecommunications Subcommittee held hearings on both the Know Your Caller Act and the Telemarketing Victims Protection Act. Some of those who testified questioned the breadth of the 5-7 p.m. restriction on telemarketing calls, while others supported the provision. For example, Eileen Harrington, assistant director of marketing practices for the Federal Trade Commission, said the increased limitation on such calls “would benefit consumers who do not want to be called by telemarketers during the dinner hour.” A member of the American Teleservices Association pointed out that the regulatory scheme would not apply to nonprofit groups and political campaigns. He said that allowing these calls but disallowing commercial telemarketing calls "will serve to frustrate the purpose of this legislation” and will “simply leave the field to the exempted groups.” Perhaps due to these concerns, Salmon introduced another version of the Telemarketing Victims Protection Act on Sept. 25, 2000. The bill, H.R. 5283, does not include the 5-7 p.m. ban on telemarketing calls. The new bill still would amend the Telemarketing and Consumer Fraud and Abuse Prevention Act by instructing the Federal Trade Commission to require telemarketers “to notify consumers who are called that they have the right to be placed on either the telemarketer's do-not-call list or the appropriate State do-not-call list.” The bill has been referred to the House Commerce Committee. The latest push for telemarketing legislation appears to be another instance of privacy concerns trumping free-speech interests. Telemarketers already enjoy less protection than their print, broadcast, and Internet counterparts. While the most egregious commercialspeech violation -- the dinner-hour ban -- appears to have gone by the wayside, the trend toward greater regulation of telemarketers seems destined to continue. |
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