The Center for Individual Freedom does not have a unified position on the Do Not Call List. In fact, internal disagreement is becoming so heated that potential civil war looms, with one brother wearing blue, one sister wearing gray (provided the rest of us stipulate that gray is the new black).

While we consider ourselves First Amendment purists, we recognize the limitations of legal precedent. You cannot yell "fire" in a crowded theater (although yelling "theater" at a crowded fire has not been sufficiently tested). "Fighting words" are proscribed, but given the increasingly inflammatory language of political discourse, perhaps not severely enough.

So-called "time, place and manner" restrictions on speech sneak about local legislative landscapes, dividing and multiplying, often without requisite legal analysis. "Local standards" tests for obscenity have provided gainful employment for pervs who get their jollies specializing in the legal parameters of g-string speech. Participating in virtually any aspect of kiddie porn will get you (constitutionally) sent to jail, with a fair chance you will be (unconstitutionally) whacked while there. Even the civil liberties contortionists at the ACLU maintain relative quiet about that.

Free-speech protections generally reside only in the "public square" and on the property of the speaker. Those protections do not generally extend to either the castle or the doublewide of the speakee.

We are also unabashed free marketers, but every legitimate definition of free markets incorporates the duality of willing seller and willing buyer.

Regardless of the constitutionality of the Do Not Call (not now, not ever, not you or your smelly old brother) List, approximately 50 million U.S. residents with telephones jumped on it like Calaveras frogs. Fifty million is a lot of folks, with more expected, not unnoticed by the politicians who are now trying to stay one amendment ahead of the judges who want to rain on this populist parade.

At the time of the Do Not Call List implementation, some of us viewed it as (nearly) perfect government at work (a rarity to be remarked upon). It responded to a large and clearly enunciated public wish. It met that wish with a "least intrusive" methodology. It did not attempt to ban telemarketing calls, but merely to compile a list of unwilling recipients of those calls, actively provided to the government at some individual effort. Since no telemarketer has ever been nominated for sainthood, enforcement and fines were thrown in for good measure. Although it is too soon to know for sure, the program should impose only minimal cost.

So what’s the problem, you ask. Well, actually, as an attempt to minimize First Amendment challenges and/or for self-serving purposes, charitable and POLITICAL solicitation calls were exempted. As a result, faster than you can say "lawyer," the courts got into the act, finding content discrimination in the exemptions, and the normally quiet halls of the Center have become minefields.

On one side (including this writer) are those who say our telephones are not the public square and telemarketers have no free speech rights to intrude upon those who have declared themselves to be unwilling recipients. Game, set, match.

On the other side are those who are troubled by yet another stricture on so-called "commercial speech," an invention of modern courts that is neither separated nor distinguished from any other speech in the U.S. Constitution.

That is vexatious, the first group agrees, but if you accept that telephones are not the public square, privacy rights pertain, and thus no speech is protected at the receiving end of the line. Under that construct, the case is over before you ever approach the question of content discrimination, i.e., reducing protection for commercial speech.

But...but…says the second group, trying desperately to regroup behind its honorable but seriously flawed position.

Into the pause springs yet a third camp. If content discrimination exists, then it’s an equal protection issue, not a free speech issue, so the public square test is moot…

Which gets us to privacy rights…

Not in the constitution...

What about restraint of trade?

This could clearly go on for a while, so we’ll make a deal with you. We can legally call you anytime we want to, but we won’t if you send us some money now. Thanks.

Next: The Spat over Spam