Common Law and Constitution

¶ … National Do-Not-Call Registry and the CAN SPAM Act are both attempts to protect individuals from corporate marketing strategies. The National Do-Not-Call-Registry attempts to limit the ability of corporations to place unsolicited commercial calls to consumers, by allowing consumers to register up to three numbers on a Do-Not-Call list. Charities and political organizations are exempt from the list. The CAN SPAM Act is aimed at preventing spam email. While these laws may seem like a relief to consumers overwhelmed by marketing attempts in what they consider their private spaces, corporations have alleged that these laws are unconstitutional.

The constitutional right at the heart of the debate is the freedom of speech. The corporations allege that these laws abridge their freedom of speech. The First Amendment's guarantee of freedom of speech is one that can be limited in the face of a substantial government interest. This is the case for certain categories of speech, which receive less protection than other categories. Commercial speech has not traditionally received the same level of protection as religious or political speech. In other words, the government can, and has, limited commercial speech when it can show a substantial interest in doing so.

The government maintains that is has a substantial government interest in allowing people to enjoy both peace and privacy in their homes (Reclaim Democracy, 2004). The problem with that argument is that, while the Fourth Amendment has been interpreted to protect individual privacy rights, those protections have been from government invasions. A corporation's use of a telephone number is not a government invasion. There is no constitutional provision indicating that protecting privacy from personal invasions is a government interest, much less a substantial one. Furthermore, a corporation selling a customer's personal information without the customer's consent or knowledge is not considered an invasion of privacy. The issue becomes somewhat murkier when one considers telemarketing to cellular phone lines; the telemarketers can use up valuable minutes paid for by consumers, who have not given the corporations permission to access those minutes, which may seem to violate the takings clause of the Constitution. However, the problem, again, arises because the corporations are not the government. Does the fact that the FTC regulates communications somehow bring these issues under the heading of the government?

At this point in time, it appears that the Supreme Court will continue to side with consumers and protect the government's ability to limit telemarketing calls and to ban SPAM. The decisions that have come before the Court have sided with the consumer. However, a recent, non-related Supreme Court decision broadly construed corporate free speech rights in another area. That decision may be used as an argument against the current marketing restrictions that are in place. The government could attempt to reach the same result by using other methods, but the likelihood that those methods will be successful is slim, given the creative ways that corporations have been developing to defeat the existing Do-Not-Call list, such as using foreign phone services to block the originating phone number.

Question Two

The parties to the lawsuit will be Veronica, Fun Products, Inc., and the Milton Hotel Chain. At trial level, Veronica would be the plaintiff and Fun Products, Inc. And the Milton Hotel Chain would be the defendants. What they would be called at the appeal level depends on the trial court's decision and who appeals the decision. The party who appeals the decision is the appellant and the opposing party is the appellee. Therefore, if Veronica was successful at trial and one of the defendants appealed, then Fun Products, Inc. and/or the Milton Hotel would be appellants and Veronica would be the appellee. However, if the defendants were successful at the trial level and Veronica appealed, she would be the appellant and they would be the appellees.

At the heart of Veronica's lawsuit is the issue of whether hosts are responsible for a guest driving drunk after the host serves alcohol at a party. She is alleging that Fun Products, Inc. And the Milton Hotel have vicarious liability for Larry Lush's behavior. The lawsuit involves tort law and questions whether their behavior met the applicable reasonableness standard. However, this standard will also be informed by state law, as many states have statutes specifically addressing host liability. Veronica is seeking damages. Damages refer to a monetary amount meant to place the plaintiff in the position he or she would have been in but for the defendants' wrongful act. Money for her medical bills, lost wages, property repair costs, and pain and suffering would all fall under this category. Damages are appropriate in a tort-based lawsuit. Veronica is also seeking an injunction to prohibit Fun Products from serving alcohol at further functions. Injunctions are meant to protect specific parties from a specific threatened future harm, not to prohibit a broad range of behavior with only a potential harm against an unnamed group of plaintiffs, and, therefore, injunctive relief may be inappropriate in this scenario.

When looking to decide if Fun Products, Inc. And the Milton Hotel chain are liable for Veronica's injuries, the court will look to the applicable state law about vicarious liability for drunk driving. Because most states address this situation, the state law should inform the court about whether either of the "hosts" has liability for this accident. Furthermore, because Fun Products was Larry Lush's employer and the party was a work function, it may look at the doctrine of respondeat superior to determine if Larry's accident occurred within the course of his employment. Larry faces strict liability for his actions. Drunk driving is against the law in every state as is driving without liability insurance; therefore, his actions were absolutely prohibited and he will face a strict liability standard for his actions. The burden of proof that will apply is the normal burden of proof in a civil case: the preponderance of the evidence.