It is a harrowing time for defenders of the First Amendment and the Commerce Clause. This week, assaults on both provisions of our nation’s founding document were under way, at both the state and federal levels. In California, Governor Davis signed into law a bill that prevents companies from sending people emails they have not asked to receive. Also, this was the week that the federal do-notcall registry was supposed to slap a straight-jacket on telemarketers — though a federal court temporarily put a halt to that. Both measures, in similar ways, thumb their nose at the Constitution for the purpose of scoring political points.

The California spam law took aim at that popular enemy, spammers. These, of course, are the people who let us know everyday that we need to refinance our homes, re-grow our hair, and increase our memory — along with other things. The problem is that to go after spammers, California must try to enforce its law over state lines. The law makes it illegal to send most commercial e-mail messages to anyone in the state who has not explicitly requested them. This means that e-mailers in New York or Maine or Montana could fall afoul of the law and be subject to its penalties, including fines of $1,000 for each message.

The problem, however, is that there is no way to know if bobsmith@anything.com is a California resident, living in Texas, or orbiting the Earth aboard the International Space Station. These are just the types of problems the framers of the Constitution wanted to curtail when they created a national market. Merchants and other businessmen are not supposed to have to navigate a sea of state regulations when selling goods across state lines.

The federal do-not-call registry at least is being pursued at the correct level of government, but a federal district court judge from Oklahoma, Lee West, determined Wednesday that Congress never authorized the Federal Trade Commission to set it up. The FTC, part of the executive branch, was rushing to interpret Congress’ will broadly with the blessing of the Bush administration. President Bush and Co. apparently think that this Dick Morris-type mini-initiative is just the type of thing to keep the voters’ minds off of Iraq and the economy. The Congress, however, must explicitly approve such a thing, as it is Congress that was granted the power “To regulate Commerce… among the several States.”

Even with explicit Congressional authorization — which Congress was rushing to provide yesterday, and by an overwhelming margin — the do-not-call list strikes us as raising constitutional issues under the First Amendment. It’s on First Amendment grounds that another federal court, this one in Colorado, took exception to the idea of the do-not-call list last night. That amendment requires that Congress “make no law…abridging the freedom of speech.” The writers of the do-not-call list know they’re on dangerous ground, as the law exempts entities such as political parties and organizations, pollsters, survey firms, and charitable organizations.

But carving out these exemptions only highlights the fact that commercial speech is being treated differently than other speech. In a recent case that the Supreme Court declined to hear, Nike was being sued by a consumer advocate in California for making allegedly false claims about its labor practices. There, the New York Times could run a column bashing Nike — which they did, penned by Bob Herbert — with the protections gained under New York Times v. Sullivan; at the same time, Nike couldn’t defend itself publicly without being held to the strict controls of false advertising and consumer protection law.

It would be better to keep all speech on a level. Both the spam and telemarketing problems can be solved in the market. Commercially available spam filters exist for e-mail, and they are relatively effective. Caller ID is also widely available, and worth the few dollars a month to many people. No one has to open all his e-mail or get up for every phone call that comes during dinner. The cost of simply ignoring the offending solicitations is pretty low. At least it’s lower than trampling on the Constitution in a stampede to placate voters.