*The HONORABLE LYLE E. STROM, United States District Judge for the

District of Nebraska, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-2324

___________

National Federation of the Blind of *

Arkansas, Inc.; Larry H. Wayland, *

*

Plaintiffs - Appellants, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Mark Pryor, Attorney General of the *

State of Arkansas, *

*

Defendant - Appellee. *

___________

Submitted: February 14, 2001

Filed: July 31, 2001

___________

Before LOKEN and BYE, Circuit Judges, and STROM,* District Judge.

___________

LOKEN, Circuit Judge.

This is a facial challenge to the constitutionality of section 4-99-201 of the

Arkansas Code by the National Federation of the Blind of Arkansas and Larry

Wayland, a blind Arkansas resident. For convenience, we will refer to plaintiffs

collectively as the NFBA. The statute first requires that a person placing a telephone
1The HONORABLE JAMES M. MOODY, United States District Judge for the

Eastern District of Arkansas.

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call to an Arkansas resident to solicit a charitable contribution or to offer any

commercial product or service must identify the caller and the organization on whose

behalf the call is being made, state the purpose of the call, and briefly describe any

product or service being offered. ARK. CODE ANN. § 4-99-201(a)(1). That provision

is not at issue. The challenge is to the following subsection:

(2) If the person receiving the telephone call indicates that he or

she does not want to hear about the charity, goods, or services, the caller

shall not attempt to provide additional information during that

conversation about the charity, goods, or services.

A violation of subsection (a)(2) is a Class A misdemeanor and an unfair and deceptive

act or practice for purposes of the Arkansas Deceptive Trade Practices Act. See ARK.

CODE ANN. §§ 4-99-201(b) & (c)(1); 4-88-101 et seq. 

The NFBA plaintiffs are an Arkansas charity that solicits contributions and a

blind individual who wishes to be solicited without government interference. They

allege that subsection (a)(2) violates their free speech rights under the First Amendment

and their Fourteenth Amendment right to equal protection of the laws by restricting

charitable solicitation activity. The district court1 granted the State’s motion to dismiss,

concluding that the statute is constitutional on its face. The NFBA appeals. We affirm.

The State argues that the NFBA’s First Amendment claims were properly

dismissed because subsection (a)(2) “does not regulate speech,” it merely protects the

privacy rights of individuals in their homes. We disagree. The statute is intended to

protect the privacy rights of unwilling listeners, but it does so by a government

prohibition on further speech. The NFBA correctly notes that the First Amendment
2Subsection (a)(2) regulates both commercial and charitable solicitations. Under

the Supreme Court’s recent commercial speech cases, we suspect the First Amendment

analysis would be the same whether the challenge came from a charitable or a

commercial solicitor. See Lorillard Tobacco Co. v. Reilly, 121 S. Ct. 2404, 2421-22

(2001). But we need not resolve that issue. 

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protects rigorous debate and the exchange of conflicting ideas, which must include a

speaker’s opportunity to persuade a reluctant listener. See Hill v. Colorado, 120 S. Ct.

2480, 2489 (2000) (“The right to free speech, of course, includes the right to attempt

to persuade others to change their views.”). When government cuts off debate by

decreeing that a dialog must end, it is regulating speech. See Riley v. National Fed’n

of the Blind of N.C., 487 U.S. 781, 796-97 (1988) (“compelled silence” is subject to

First Amendment review). Thus, the statute’s prohibition may be valid, but only if it

withstands First Amendment scrutiny. 

A. The Supreme Court has repeatedly held that charity fund-raising involves

speech that is fully protected by the First Amendment. See Riley, 487 U.S. at 787-88;

Village of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 633 (1980). A

government regulation that directly and substantially limits charitable solicitation

activity cannot be sustained unless (i) “it serves a sufficiently strong, subordinating

interest that the [State] is entitled to protect,” and (ii) is narrowly drawn to serve that

interest “without unnecessarily interfering with First Amendment freedoms.” Secretary

of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 960-61 (1984), quoting

Village of Schaumburg, 444 U.S. at 636-37.2

Subsection (a)(2) directly limits the solicitation activity of charities, but only in

a particular place and manner -- telephone calls to unwilling listeners in their homes.

“[T]he government may impose reasonable restrictions on the time, place, or manner

of protected speech, provided the restrictions are justified without reference to the

content of the regulated speech, that they are narrowly tailored to serve a significant
3The NFBA argues that subsection (a)(2) is “content-based,” and therefore must

withstand strict First Amendment scrutiny, because it regulates only speech that solicits

charitable contributions or commercial sales. This argument was rejected in Heffron

v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981):

a rule is content neutral, the Supreme Court held, if it “applies evenhandedly to all who

wish to distribute and sell written materials or to solicit funds.” Subsection (a)(2)

makes no distinction between charitable and commercial solicitors based on the content

of their solicitations. “A regulation that serves purposes unrelated to the content of

expression is deemed neutral, even if it has an incidental effect on some speakers or

messages but not others.” Ward, 491 U.S. at 791. 

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governmental interest, and that they leave open ample alternative channels for

communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989) (quotation omitted). The Munson/Village of Schaumburg standard and the timeplace-and-manner standard are obviously very similar. Our task is to apply these First

Amendment standards to this facial challenge to subsection (a)(2).3 

1. The State has a well-recognized interest in protecting a citizen’s ability to cut

off unwanted communications entering the home. See Hill, 120 S. Ct. at 2490; Carey

v. Brown, 447 U.S. 455, 471 (1980); Rowan v. United States Post Office Dep’t, 397

U.S. 728, 736-37 (1970). While unwilling listeners in a public forum may have to

avoid offensive speech “by averting their eyes” or plugging their ears, Cohen v.

California, 403 U.S. 15, 21 (1971), the government may intercede with narrow,

carefully targeted limits on speech when it intrudes into the privacy of the home. See

Frisby v. Schultz, 487 U.S. 474, 484-85 (1988).

In Rowan, the Court upheld a federal statute that required the Postmaster

General, at the request of a householder, to order advertisers to delete that address from

their mailing lists. A unanimous Supreme Court “categorically reject[ed] the argument

that a vendor has a right under the Constitution or otherwise to send unwanted material

into the home of another.” 397 U.S. at 738. Thus, Rowan confirms that the State has
4At oral argument, counsel for the State suggested that subsection (a)(2) applies

both to the telephone conversation in progress and to any immediate call-back. That

interpretation is not obvious from the plain language of the statute, and it would appear

to significantly expand the scope of the statute’s restriction on protected speech

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a legitimate governmental interest in adopting reasonable restrictions to protect its

citizens from unwanted telephone calls to their homes. 

2. The NFBA argues that subsection (a)(2) is not narrowly tailored to meet this

legitimate government interest because residents have other ways to protect themselves

from unwanted calls, such as using unlisted phone numbers, screening calls with

answering machines or caller-identification devices, or by simply hanging up. This

contention is mis-focused. One First Amendment issue is whether the legitimate

government interest identified in Rowan is significantly furthered by a statute that only

protects those unwilling listeners who lack the resolve to hang up when offensive

callers intrude into the privacy of their homes. The marginal benefit of this prohibition

may be minimal, but the prohibition is certainly narrow, merely requiring the offending

caller to end the call. Our own experience suggests that most households in today’s

society are plagued by a flood of unwanted telephone solicitations. We are unwilling --

particularly when considering a facial challenge to the statute -- to second-guess the

Arkansas Legislature’s judgment that many citizens have difficulty dealing with these

intrusions and reasonably need the State’s help in the form of a statute that imposes on

the caller a duty to act in the manner that common courtesy should dictate. 

3. Turning to the impact of the statute on free speech, we conclude that

subsection (a)(2) does not substantially limit charitable solicitations. Its only impact

is to end solicitation calls to unwilling residents who otherwise would not hang up. The

statute leaves open ample alternative channels of communication; it does not foreclose

other forms of solicitation aimed at those unwilling residents, nor does it bar additional

solicitation calls to their homes.4 Subsection (a)(2) is not a prior restraint on free
activity. We express no view on the constitutionality of that interpretation.

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speech, as the NFBA argues, because it does not prohibit charitable organizations from

calling Arkansas residents. It only imposes a restraint -- requiring the caller to end a

conversation -- after the homeowner has expressed an unwillingness to listen. See

Alexander v. United States, 509 U.S. 544, 550 (1993) (a prior restraint is government

action forbidding communication before the communication is to occur). 

B. The NFBA next argues that subsection (a)(2) is overbroad because charitable

solicitors “will refrain from contacting Arkansas residents entirely rather than risk

criminal prosecution.” For a statute to be vulnerable on overbreadth grounds, “there

must be a realistic danger that the statute itself will significantly compromise

recognized First Amendment protections of parties not before the Court.” City Council

v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984). The NFBA’s contention that

other solicitors will misread the statute as prohibiting them “from contacting Arkansas

residents” is rank speculation. There is simply no evidence in the record that

subsection (a)(2) “reaches a substantial number of impermissible applications.” New

York v. Ferber, 458 U.S. 747, 771 (1982).

In a related challenge to the statute’s facial validity, the NFBA argues that the

term “indicates” renders subsection (a)(2) impermissibly vague, leaving telephone

solicitors to guess, at the risk of criminal prosecution, when a resident’s response

requires the solicitor to end the call. We disagree for three reasons. First, the statute

uses a word well-suited to its task. The common meaning of “indicates” is “to . . .

show or make known with a fair degree of certainty . . . reveal in a fairly clear way .

. . .” WEBSTER’STHIRD NEWINTERNATIONALDICTIONARY 1150. Thus, from a textual

standpoint, this situation is much like that in Grayned v. City of Rockford, 408 U.S.

104, 110 (1972), where the Court rejected a vagueness challenge:
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Condemned to the use of words, we can never expect mathematical

certainty from our language. The words of the . . . ordinance are marked

by flexibility and reasonable breadth, rather than meticulous specificity,

but we think it is clear what the ordinance as a whole prohibits.

(Quotation and citation omitted.) Second, while the NFBA offers up examples of

ambiguous responses -- “equivocal words, a sigh, hesitation, or even by a tone of

voice” -- the Attorney General of Arkansas interprets the as-yet unenforced statute as

requiring an “affirmative and clear indication” that the resident wishes the call to end.

This is a reasonable interpretation of subsection (a)(2), and it provides relevant

assurance that the statute will not be subject to arbitrary and discriminatory

enforcement. See Grayned, 408 U.S. at 108-110. Third, although we have been

describing subsection (a)(2) as though it requires the caller to end the call, the

prohibition is in fact more narrow: “the caller shall not attempt to provide additional

information during that conversation about the charity, goods, or services.” Therefore,

if the caller considers a response ambiguous, the caller may follow up by asking

whether the resident wants to hear about the charity, goods, or services without risking

a violation until the response has been clarified. 

C. Finally, the NFBA argues that subsection (a)(2) violates the Equal Protection

Clause of the Fourteenth Amendment because it unreasonably discriminates between

small charities that must combine their advocacy and solicitation calls, and large

charities that can make separate calls and thereby exercise their advocacy free speech

rights unencumbered by this statute’s prohibition. We disagree. Because charity

solicitors do not have an absolute First Amendment right to press their telephone

messages on unwilling households, the statute may draw rational distinctions among

speakers who are not similarly situated. See Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 54-55 (1983). Here, Arkansas has determined that its

residents need greater protection from unwanted telephone calls from charitable and

commercial solicitors, than from those who call for other reasons, such as to advocate
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on behalf of the blind. In this context, advocacy callers and those soliciting

contributions are not similarly situated, and the State’s decision to distinguish between

them has not been shown to be irrational. Thus, subsection (a)(2) does not, on its face,

violate the Equal Protection Clause.

The judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.