They said the rationale used by a three-judge panel for the U.S. Court of Appeals in the Feb. 17 decision could give new legal backing to curbs on unsolicited commercial e-mail, faxes and even TV ads if consumers could opt out.
"This is a stepping away and a weakening that puts a cloud over controversial speech of all sorts," said Dan Jaffe, exec VP of the Association of National Advertisers.
John Kamp, a Washington advertising lawyer, said the decision could make it harder to challenge attempts to block ads, including through the use of devices such as digital video recorders, some of which allow viewers to bypass TV ads. "It could eliminate challenges to TiVo and pop-up blockers, but it all depends what the Supreme Court does with it," Mr. Kamp said. "It advances the idea that marketers will have to do more permission-based marketing."
All the attorneys cautioned that the impact depends on whether the case is heard by the Supreme Court. Even then, the court's ruling might only cover a narrow range of marketing activities.
The court's ruling came in response to suits filed by the Direct Marketing Association and the American Teleservices Association challenging the list created by the Federal Trade Commission and the Federal Communications Commission.
The marketing groups argued that by allowing some calls but not others, the list violated free speech rights. They also claimed the registry is poorly drafted, that the government could have taken less-drastic measures and that the ban will seriously damage their businesses.
The FTC, FCC and a number of states argued that because consumers chose to opt out of calls, the registry doesn't represent a ban at all. The court agreed with that view.
Laurence H. Tribe, a Harvard professor who has argued a number of First Amendment cases before the Supreme Court, said he wasn't surprised the court found the registry wasn't an ad ban, but said the Supreme Court might have other issues with it. He said the requirement that marketers pay to obtain it could draw scrutiny on whether it taxes them to speak.
The DMA and American Teleservices Association declined to say last week whether they would appeal the decision.