Four nonprofit organizations that say they depend on telemarketing to raise funds have sued the state of Indiana in federal court in an effort to overturn the state's do-not-call list on First Amendment grounds.
The challenge will be heard in U.S. District Court in Indianapolis before Judge Sarah Barker. No date has been set for a hearing on the organizations' request for a declaratory judgment that the state's DNC list is unconstitutional on its face.
The charities in the challenge, which was filed April 10, are the National Coalition for Prayer, the Kentucky-Indiana Chapter of Paralyzed Veterans of America, the Indiana Troopers Association and the Indiana Association of Chiefs of Police Foundation.
The challenge to Indiana's law focuses on exemptions provided for certain types of calls, including those for newspapers, insurance agents, debt collectors and politicians. Charities are exempt only if they do their calling inhouse, and calls to existing customers and donors are not exempt.
By allowing certain kinds of calls and disallowing others, the Indiana law discriminates against speech based on content, said Errol Copilevitz, the Kansas City, MO, attorney representing the four groups and a previous contributor to DM News.
“You have the government in the position of favoring one speaker over another,” Copilevitz said. “What the First Amendment of the Constitution guarantees is free speech for everyone.”
Indiana's law puts smaller nonprofits at a disadvantage because they often can't afford to develop an inhouse telemarketing staff, Copilevitz said. They lose access to longtime donors and can't make fundraising calls during emergencies.
“The fallout from that is enormous,” Copilevitz said. “These plaintiffs all lost 40 [percent] to 50 percent of their donor base.”
The challenge applies only to nonprofits affected by Indiana's DNC list, though depending on the judge's ruling it could be expanded to commercial telemarketers, Copilevitz said. As a rule, courts have offered less protection to commercial solicitations than to other forms of speech.
The Indiana attorney general's office declined to discuss the details of its legal defense. It said that most telemarketers have found the DNC list law easy to deal with and few have complained.
“We do feel confident that the legislature passed a good law,” said Staci Schneider, spokeswoman for the Indiana attorney general's office. “We will defend that aggressively.”
Previously, the Professional Fire Fighters Union of Indiana, also represented by Copilevitz's firm, challenged the state DNC list in court but later dropped its claim. Another case pending in Indiana state court, in which the Hoover manufacturing company is challenging the DNC law in connection with its appointment-setting campaigns, may affect the federal court's decision to consider the case of the four nonprofits.
About 1 million Indiana residents have registered for the DNC list, according to the state attorney general's office.
