Wednesday night, millions of families across the United States were sitting down for a meal with a side dish of freedom from unwanted calls.

Well, theoretically, anyway. The do-not-call list, designed to protect phone numbers from a relentless assault by telemarketers, is in dispute after two lawsuits.

A few months and fifty million-plus phone numbers after the list opened, Judge Lee West in Oklahoma City ruled the Federal Trade Commission did not have authority to set up the list in the first place.

Washington, in what is probably considered the rarest of rare events — doing something bipartisan, right and fast — set out to rectify the error. President Bush signed the bill Monday, expressing in less than 80 words the FTC’s authority.

But the telemarketers still had more buttons to push. On Sept. 25, Judge Edward Nottingham in Denver barred the FTC from putting the list into effect. (The Boston Globe found an interesting sidelight to this ruling — Nottingham put his own number on the list back in July.)

According to The Associated Press, “Nottingham said the do-not-call list was unconstitutional under the First Amendment because it does not apply equally to all kinds of speech, blocking commercial telemarketing calls but not calls from charities.”

That might sound logical, except that the First Amendment does not apply equally to all kinds of speech. The Supreme Court said so in Ohralik v. Ohio State Bar Association (1978): “[W]e instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values.”

Commercial speech — the solicitations — can be regulated, unlike the noncommercial or nonprofit speech of political calls or surveys.

The court used many examples in Ohralik to show “the State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity.” What Congress has done is deem unwanted and intrusive sales calls harmful to the public, and thus within the scope of regulation.

In Central Hudson Gas and Electric Corp. v. Public Service Commission (1980), the Court outlined the current test for restricting commercial speech. Assuming telemarketers are legal and not misleading in their pitch (the first two requirements), the question is whether the government has an interest and if the rules do just enough to advance that interest. A list that says “Telemarketers whose business has not sold you anything in the past 18 months cannot call” satisfies the latter half.

For the first part, the government does have an interest in protecting people from unwanted intrusions. Restrictions can be placed on regular solicitors. The United States has, in effect, offered the nation a free “no phone soliciting” sign. It’s up to the consumer to decide whether to post it, and the sound of 50 million posts being driven into the ground is a significant notice indeed.

When I subscribe to a newspaper, I know I will get advertisements. I am, in effect, allowing them into my home. I can then promptly proceed to ignore them. Similarly, throwing away a credit card application or two is not hard.

However, phone calls are different. I feel obligated to answer them. This may involve stopping an activity and walking halfway across the house. It is just not as easy to “throw away” a phone call when I have to spend time getting to it and say “I’m not interested” three times. Measuring lost productivity and added stress from an unwanted phone call is much more than that of throwing away junk mail, because the phone is a much greater intrusion.

If I go to a car dealership, I will eventually want a salesman to arrive. Same for any other store where I am there for the purpose of buying something. Saying telemarketers can keep calling is like saying salesmen have the right to harass me in my home — and if I don’t want them, I can’t stop it.

Newspaper subscriptions can be canceled and the TV can be turned off. However, when I buy and use a phone and that phone rings, I should be able to assume the caller is not trying to make me buy something. A solution of “unplugging” this communications device isn’t going to cut it because that infringes on my right to speak freely with others, and their right to do so with me.

Justice Oliver Wendell Holmes said, “The freedom to swing your fist ends where my nose begins.” Similarly, to the telemarketers, their arguments of First Amendment rights could be summed up like this: “Your freedom to use communication lines ends at my phone jack.” In this case, because of the nature of the phone, the burden should not be on the consumers to stop solicitations they never wanted. The burden should be on telemarketers to find other ways to hawk their wares than reaching out to touch someone who doesn’t want to be touched.