Memo - the Free Speech Slope Gets Even Slipperier (January 30, 2006)


SUBJECT: Memo - the Free Speech Slope Gets Even Slipperier (January 30, 2006)
DATE: January 30, 2006

Sometimes we view reference to the proverbial "slippery slope" as trite and unlikely. However, I think it is time for all FSC members and friends to begin thinking seriously about the continuing and growing threat to free speech in America, especially as it relates to direct mail.

It seems that whenever a group of people begin to feel irritated or "put upon" by some form of unsolicited communication, someone comes up with a legal "remedy" to the problem. It is no longer sufficient to tell the recipients of unwanted communications, whether by mail or phone, to get over it or simply throw the unwanted mail in the trash. No, now they want legislators to protect them from even receiving such communications.


We are all familiar with the current issue being appealed to the U.S. Supreme Court, wherein a nonprofit organization was fined $554,196 because it used "forbidden words" on the envelope of its mailings. This regulatory situation came about for two reasons: 1) because the Congress accepted the complaints by a government agency that the use of those words on envelopes MIGHT confuse a recipient into thinking the letter was from that agency, and 2) because elected officials resent the flood of constituent mail they receive from people who exercise their right of free speech after being encouraged to do so by direct mailers.

There was never an allegation that the nonprofit committed fraud and there was never any testimony of actual confusion by mail recipients. It was sufficient for the majority of Congress and for the government agency that there was a "possibility" that someone might get confused if those "forbidden words" were used on the mailing envelopes. Thus, Congress saw fit to impose a "small" curtailment of free speech by forbidding the use of several legitimate words and phrases in direct mail.

The Free Speech Defense and Education Fund (FSDEF) intends to file an amicus brief in support of the petition for writ of certiorari to the US Supreme Court filed by United Seniors Association.


We now see a growing trend among states to limit mail to anyone who feels inconvenienced by receipt of unsolicited commercial mail.

When the federal and state do-not-call laws were implemented to curtail telemarketing, it was largely based on the fact that telemarketers were seriously imposing on the time and facilities of the call recipients, frequently disrupting their family activities. Thus, it was decided that people could sign up on a do-not-call list, and telemarketers would be obliged to honor that list.

With unsolicited direct mail, however, there is no major imposition on the recipient's time, facilities or schedule. Recipients can quickly decide if they want to open and read something or throw it away, and they do so at their leisure. They may view the volume of direct mail as a nuisance, but it is a small price to pay for maintaining the right of free speech for companies and nonprofits which choose to communicate through the mail.

Missouri is the latest state to see legislation introduced providing that the state will establish and maintain a "do-not-mail" list, requiring commercial mailers to make sure that unsolicited mail does not go to those recipients. Illinois and New York have previously considered similar legislation. [So far, nonprofit, government and political mailings have been exempted.]

Similar bills have been introduced in other states in the past but have never passed. However, there seems to be growing support for such bills. Let's face it, elected officials feel they can curry great favor with their constituents by reducing a "nuisance" in their lives, even if it tramples on Constitutional rights. After all, how many votes could they lose from disgruntled direct mailers in their district, compared to the positive response they would get from certain happy voters? It's a no-lose political decision.


It is critical that we all take this matter seriously. Small, incremental curtailments of free speech will soon add up to a major curtailment of free speech, and we'll all wonder how it happened. If Congress and government agencies expand the list of "forbidden words," each one is a new and serious curtailment of free speech. If states can pass laws limiting who you can mail to, the entire direct mail industry and commercial advertisers will be seriously impacted and free speech will have suffered another serious blow.


1. You can make a financial contribution to FSDEF to cover the legal and printing costs of our amicus brief. It will cost about $12,500. We must do everything possible to overturn this "forbidden words" decision.

2. Communicate with everyone you can in Illinois, New York and Missouri to encourage them to lobby their elected officials to defeat do-not-mail legislation.