dissenting.
I agree that the State of North Dakota has a legitimate interest in preserving residential privacy. Because I do not believe that its regulation is narrowly tailored to serve that goal, I respectfully dissent.
A “direct and substantial limitation” on charitable speech “cannot be sustained unless it serves a sufficiently strong, subordinating interest that [the government] is entitled to protect,” and is narrowly drawn to serve the interest “without unnecessarily interfering with First Amendment freedoms.” Village of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 636-37, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). Sec’y of State v. Joseph H. Munson Co., Inc., 467 U.S. 947, 960-61, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). But see Nat’l Fed’n of the Blind of Ark., Inc. v. Pryor, 258 F.3d 851, 854-55 (8th Cir.2001) (citing the Supreme Court’s standard of analysis for restrictions on charitable speech but applying a different, more lenient standard).
Consistent with Supreme Court precedent, the first consideration is whether North Dakota’s Act directly and substantially limits charitable solicitation activity. I believe that it does. The law prohibits charities from hiring professional telemarketers to solicit funds for them, and it also provides civil penalties for charities who violate the law. The next inquiry is whether the Act serves a sufficiently strong, subordinating interest that the state is entitled to protect. I agree that protection from the invasion of residential privacy by unwanted solicitations is such an interest. See Frisby v. Schultz, 487 U.S. 474, 484, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988); Carey v. Brown, 447 U.S. 455, 471, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980); Rowan v. U.S. Post Office Dep’t.; 397 U.S. 728, 737, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970).
*601I do not agree, however, that North Dakota’s regulation is narrowly drawn to serve the government’s interest without unnecessarily interfering with First Amendment freedoms. First, the Act is overly restrictive. Telefunders in North Dakota are completely prohibited from soliciting charitable funds from members of the do-not-call list, no matter the time of the day nor the percentage of contributions earmarked for the charity. The state does not have a charity-specific do-not-call list, so North Dakotans who are adverse to commercial solicitation but open to charitable solicitation in their homes do not have the opportunity to hear the telefunders’ messages. The regulation prevents potentially willing listeners from engaging in discourse about charitable contributions.
Furthermore, the Act is underinclusive. A law is underinclusive, and therefore not narrowly tailored, when it. discriminates against some speakers but not others without a legitimate neutral justification for doing so. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429-30, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). “Even where, as here, the government has a compelling interest in regulating a particular type of speech, its distinctions between similarly situated actors must reflect a ‘reasonable fit’ between the restriction and the goal to be achieved by the disparate treatment.” Nat’l Fed’n of the Blind v. FTC, 420 F.3d 331, 351 (4th Cir.2005) (Duncan, J., dissenting) (quoting Discovery Network, 507 U.S. at 417, 113 S.Ct. 1505);3 Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 789-92, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). Telefunders’ and charities’ in-house solicitors’ messages are the same, and both types of speakers intrude into the privacy of the home. It remains unclear, then, why the government has restricted the charitable speech of an unknown percentage of callers that invade residential privacy when so many other groups may intrude upon that privacy, thus diminishing the credibility of the government’s rationale for restricting telefunders’ speech.
The state has provided no statistics to support its assertion that its restriction on telefunders’ charitable solicitations will significantly reduce the number of telephone intrusions into private residences. While I might agree as a matter of common sense that prohibiting calls made by telefuriders will limit the number of intrusions, the state has failed to support that contention in the record.4 See Nat’l Fed’n of the Blind, 420 F.3d at 353 (Duncan, J., dissenting) (“[T]he FTC again presents no evidence that telefunders are more likely to be violators of consumer privacy or engage in abusive telemarketing practices than in-house solicitors. There is no suggestion in the record that consumers are more likely to feel that their privacy is invaded when receiving a call from a tele-funder than a volunteer or in-house em*602ployee of a charitable organization.”); Discovery Network, 507 U.S. at 426, 113 S.Ct. 1505 (holding that a selective ban on commercial newsracks was not justifiable merely because it would “in some small way limit the total number of newsracks”).
North Dakota has failed to demonstrate that its ban on telefunders’ calls will restore, or even significantly improve, residential privacy. Therefore, I would affirm the district court and hold that North Dakota’s direct and substantial limitation on charitable speech cannot be sustained because, although it serves a sufficiently strong, subordinating interest that the state is entitled to protect, it is not narrowly drawn to serve the interest.
. The majority’s holding is based in part on the Fourth Circuit’s analysis in National Federation of the Blind. The Telemarketing Sales Rule, the regulation at issue in that case, was found to be a constitutional restriction on charitable speech. Notably, the TSR permits telefunders to call members of the national do-not-call list between the hours of 8:00 a.m. and 9:00 p.m., but not members of charity-specific do-not-call lists. The TRS is less restrictive than North Dakota's Act and is inap-posite to the analysis before us.
. Several states submitted amicus briefs to buttress North Dakota's claim, but statistics from other states are not relevant to our assessment of the North Dakota regulation. Also, the majority supports its holding that the Act is narrowly drawn by relying on the North Dakota Legislature’s conclusion that telefunders invade residential privacy more regularly than charitable volunteers or employees. Yet nothing in the record provides a basis for the Legislature’s conclusion.