New York Times: Do-Not-Call Listing Remains Up in Air After Day of Twists:

“The second ruling, issued today by Judge Edward W. Nottingham of Federal District Court in Denver, threw a more effective obstacle in the way of the list on the ground that it discriminates against for-profit businesses; the registry program still allows political and charitable solicitation calls to be made. Judge Nottingham ruled that by exempting the nonprofit solicitors from the registry, the F.T.C. ‘has imposed a content-based limitation on what the consumer may ban from his home.’

He added that ‘the mechanism purportedly created by the F.T.C. to effectuate consumer choice instead influences consumer choice, thereby entangling the government in deciding what speech consumers may hear.’ The burden on commercial speech was significant enough, the judge ruled, ‘to amount to a government restriction implicating the First Amendment.’

Because the ruling came on broad constitutional grounds the program’s future will probably not be settled in Congress, but in the courts.”