Marcus Wilbers


Although these two quotations represent society's mixed feelings toward charity, they also represent a distinction people often make between a charity's aims and its means. Charitable organizations have the potential to spread hope, re-allocate societal resources, and advocate societal values. How they go about accomplishing these noble goals, however, is sometimes the subject of public frustration and annoyance. This creates a tension between admiring the charity's philanthropy and becoming irritated with the means used to achieve it. Undoubtedly, one of the most unwelcome guests in any household is a telemarketer. In fact, 98% of 1.78 million respondents to a recent online survey said telemarketing calls made them "angry." Because of this, many states have enacted laws regulating charities' use of telemarketing as a means to further their message. While public sentiment seems to support heavy regulation of telemarketers, regulating charitable solicitation presents interesting and unique problems. Charitable solicitation receives full First Amendment protection, so any state legislature attempting to regulate charitable solicitation must respect charities' free speech rights. In examining these laws, courts must also care fully delineate the boundaries between a state's power to protect its residents' privacy and the charties' First Amendment right to advance its message. As demonstrated in Fraternal Order of Policy, North Dakota State Lodge v. Stenehjem, drawing this line between First Amendment rights and residential privacy is a difficult task, particularly in light of prior Supreme Court decisions muddying the water. Ultimately, when such weighty values collide, lower courts need particularized guidance to assist with their decisions. This Note argues that Stenehjem was wrongly decided, and that its misguided analysis reflects the uncertainty in this area of the law.

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