Statement of Commissioner Orson Swindle Concurring in Part and Dissenting in Part in T.E.M.M. Marketing, Inc

Date:
Matter Number:

982 3513

X990002

By: 
Orson Swindle, Former Commissioner

Statement of Commissioner Orson Swindle
Concurring in Part and Dissenting in Part in

T.E.M.M. Marketing, Inc., File No. X990002

In this case, the defendants represented that they were affiliated with local, community-based civic programs and that they distributed civic publications. The defendants also represented to small businesses that if the small businesses purchased advertising space in one of these publications, the proceeds would be donated to local charities. In fact, the defendants were not affiliated with any local, community-based civic program, they did not distribute civic publications, and the proceeds from the sale of advertising were not donated to charity. Given the egregious nature of this scam, I generally think that the tough relief contained in consent order, including the broad ban in Part I.A. and consumer redress, is necessary and appropriate.

I dissent, however, from the broad ban included in Part I.B.(1) This ban would permanently prohibit the defendants from "engaging or participating * * * in asking for or collecting donations to any publication, program, or organization." It thus would prohibit the defendants from soliciting or collecting donations while in the business of charitable fundraising, such as telefunding. It also would prohibit the defendants from soliciting or collecting donations as volunteers for any charitable program or organization, such as collecting canned goods on behalf of their local church for distribution to the poor.

This ban is overbroad. Banning soliciting or collecting donations as a volunteer for a charitable organization is not reasonably related to preventing violations identical or similar to those alleged in the complaint. The defendants may have committed bad deeds in the past, but that is no reason to prohibit them from good deeds in the future. Even with bad actors, we should not foreclose the prospect of redemption.

Moreover, soliciting for charities, including making representations as part of the business of soliciting donations on behalf of charities, is fully-protected speech under the First Amendment to the United States Constitution. Riley v. Nat'l Fed'n of the Blind, 487 U.S. 781, 796 (1988). Although the defendants may have waived their right to engage in fully-protected speech by entering into the consent agreement, the public interest would have been better served if the Commission had sought to impose less restrictive alternatives (such as a prohibition on deception while soliciting or collecting donations), rather than seeking a perpetual prior restraint on the exercise of non-misleading, fully-protected speech.

I dissent from Part I.B.

Endnote:

1. The majority states that I am opposed to relief that goes beyond "merely preventing a defendant from engaging in the same deceptive practices in the future." The dichotomy that the majority creates between either the draconian ban in Part I.B. or mere core relief presents a convenient strawman, but it is a misstatement of my views. The permanent ban on all charitable collection and solicitation contained in Part I.B. is not acceptable fencing-in relief because it does not bear a reasonable relation to the unlawful practices found. However, this, of course, does not mean that I would not have supported other alternatives that are more than mere core relief but less than the draconian ban in Part I.B.