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American Morning

On Hold

Aired September 29, 2003 - 09:16   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


HEIDI COLLINS, CNN ANCHOR: President Bush will sign a bill today authorizing the national do not call registry, despite a court ruling that's put the list on hold. Last week, two federal judges challenged the do not call list. The second ruling said the program violates telemarketers' free speech. If that decision can withstand appeals, the president's signature won't even matter.
Legal analyst Jeffrey Toobin joining us now with some perspective on this.

OK, so the legal wrangling surrounding the FTC on the do not call list a little bit like the California recall.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Yes, California recall back and forth, it was October, it was March, now it's back to October. Do not call, it was off, it's on, it's off again. We need a score card to keep track. But that's why we're here.

COLLINS: That's why we're here. It's supposed to take effect on Wednesday, October 1st. In your mind, what are the odds of that happening?

TOOBIN: I think at this point it probably will not go into effect then, but my own opinion is it will go into effect ultimately. But at this point, the legal situation is just moving too quickly, and the status quo is that a judge has said it violates the First Amendment, and I don't see that status quo changing before Wednesday.

COLLINS: So break it down a little bit for us. Two major rulings in this case last week. But the second one more important than the first. Why?

TOOBIN: The first one has really been taken care of. The first one said Congress didn't authorize this list. With remarkable unanimity and speed, Congress said, oh yes, we do authorize this, and that's what the president is signing today. That issue is effectively over.

The more important issue is, the judge who said this rule violates the First Amendment, it violates broad -- advertisers' freedom of speech, because it treats commercial speech, that is people advertisers, differently, it prohibits their calls, but it allows charitable calls, it allows political calls, and you can't treat different speakers differently based on the content of their speech, at least that's what the judge said.

COLLINS: Why not? TOOBIN: Because that is a form of censorship. It's banning one kind of speech based on what it says, as opposed to all kinds of speech. It's clear Congress could say, no more telemarketing calls of any kind -- charities, advertisers, anybody. But by making this distinction, the judge said that violates the first amendment.

COLLINS: So it doesn't have anything to do with the fact that one of them actually generates money for a company, and the other generates money for a cause?

TOOBIN: Well, that's what Congress did when -- or that's what the FTC did when it made these rules. It thought that distinction was good enough.

Now let me say, I think the judge was wrong, and I think the 10th Circuit or the Supreme Court is going to overturn this. Because if you think about it, we often do make distinctions in the law based on whether something charitable or commercial. We give tax deductions for charitable contributions as opposed to for financial transactions.

So I think the judges are ultimately going to say, this is more similar to the tax deductions, it's OK, do not call goes into effect. Ultimately, but probably not Wednesday.

COLLINS: We'll wait and see.

TOOBIN: That's my prediction.

COLLINS: Two days from now. CNN legal analyst Jeffrey Toobin. Jeffrey, thanks so much.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com






Aired September 29, 2003 - 09:16   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
HEIDI COLLINS, CNN ANCHOR: President Bush will sign a bill today authorizing the national do not call registry, despite a court ruling that's put the list on hold. Last week, two federal judges challenged the do not call list. The second ruling said the program violates telemarketers' free speech. If that decision can withstand appeals, the president's signature won't even matter.
Legal analyst Jeffrey Toobin joining us now with some perspective on this.

OK, so the legal wrangling surrounding the FTC on the do not call list a little bit like the California recall.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Yes, California recall back and forth, it was October, it was March, now it's back to October. Do not call, it was off, it's on, it's off again. We need a score card to keep track. But that's why we're here.

COLLINS: That's why we're here. It's supposed to take effect on Wednesday, October 1st. In your mind, what are the odds of that happening?

TOOBIN: I think at this point it probably will not go into effect then, but my own opinion is it will go into effect ultimately. But at this point, the legal situation is just moving too quickly, and the status quo is that a judge has said it violates the First Amendment, and I don't see that status quo changing before Wednesday.

COLLINS: So break it down a little bit for us. Two major rulings in this case last week. But the second one more important than the first. Why?

TOOBIN: The first one has really been taken care of. The first one said Congress didn't authorize this list. With remarkable unanimity and speed, Congress said, oh yes, we do authorize this, and that's what the president is signing today. That issue is effectively over.

The more important issue is, the judge who said this rule violates the First Amendment, it violates broad -- advertisers' freedom of speech, because it treats commercial speech, that is people advertisers, differently, it prohibits their calls, but it allows charitable calls, it allows political calls, and you can't treat different speakers differently based on the content of their speech, at least that's what the judge said.

COLLINS: Why not? TOOBIN: Because that is a form of censorship. It's banning one kind of speech based on what it says, as opposed to all kinds of speech. It's clear Congress could say, no more telemarketing calls of any kind -- charities, advertisers, anybody. But by making this distinction, the judge said that violates the first amendment.

COLLINS: So it doesn't have anything to do with the fact that one of them actually generates money for a company, and the other generates money for a cause?

TOOBIN: Well, that's what Congress did when -- or that's what the FTC did when it made these rules. It thought that distinction was good enough.

Now let me say, I think the judge was wrong, and I think the 10th Circuit or the Supreme Court is going to overturn this. Because if you think about it, we often do make distinctions in the law based on whether something charitable or commercial. We give tax deductions for charitable contributions as opposed to for financial transactions.

So I think the judges are ultimately going to say, this is more similar to the tax deductions, it's OK, do not call goes into effect. Ultimately, but probably not Wednesday.

COLLINS: We'll wait and see.

TOOBIN: That's my prediction.

COLLINS: Two days from now. CNN legal analyst Jeffrey Toobin. Jeffrey, thanks so much.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com