James J. Kilpatrick

The telephone rings. You are eating dinner, or taking a nap, or making love, or watching Tiger Woods putt on the 18th green. You absolutely, positively, emphatically do not want to be disturbed. And the phone will not stop ringing.


"I'm calling," says a friendly voice, "on behalf of Shorebirds of America. Your contribution ..."

Or, in another scenario, the phone rings.

"Hullo? ... Hullo? ... Hullo!"

This time you have been subjected to what is known in the telemarketing business as an "abandoned call." If a telemarketer does not begin his pitch within two seconds after you pick up the receiver, the system triggers a disconnect. Imagination goes to work: Was the caller a burglar, checking household occupancy? A spiteful neighbor? Your daughter's clandestine hunk?

In a relevant case now pending in the Supreme Court on a petition for appeal, opposing constitutional rights meet in headlong collision. There is the First Amendment right of a charitable organization to engage in free speech -- including unwanted, irksome, irritating speech. There is also a citizen's Fourth Amendment right -- a right as old as Magna Carta -- to be free from state-sanctioned violation of his home.

The pending appeal has been filed by the National Federation for the Blind, in tandem with Special Olympics Maryland. In the eleemosynary ocean, the two nonprofits are very small fry. Thus they rely upon hired professionals, as distinguished from staff and volunteers, to raise their operating funds. As such, they fall under the jurisdiction of the Federal Trade Commission. Remarkably, the FTC has no jurisdiction over the nonprofit whales, e.g., the Red Cross. A panel of the U.S. Court of Appeals for the 4th Circuit last October refused to enjoin the commission from enforcing its TSR (Telemarketing Sales Rule) against the little guys.

On the surface, the dichotomy seems both unfair and unconstitutional. Why pick on one supplicant and not another? The purpose of the rule presumably is to deter fraud in fund raising. It seems unlikely that paid fund-raisers are more inclined to flimflam than unpaid fund-raisers. Where's the evidence? Counsel for the petitioners plausibly argue that in this respect there is no legitimate distinction between little fish and big fish. In the universe of telemarketing, all fish are equally intrusive, and all such botherations are equally bothersome.

James J. Kilpatrick

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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