September 26, 2003
Court hangs up do-not-call again

Argh! Just when Congress was moving to fix the problems in the original legislation that created the national Do Not Call list, another federal judge has put the kibosh on it by ruling it in violation of the First Amendment rights of telemarketers.

[U.S. District Judge Edward] Nottingham found the do-not-call plan unconstitutional on freedom of speech grounds because it allows charitable organizations to continue to call numbers on the list, while commercial firms were barred.

"There is no doubt that unwanted calls seeking charitable contributions are as invasive to the privacy of someone sitting down to dinner at home as unwanted calls from commercial telemarketers," Nottingham wrote. By exempting charitable solicitations, the FTC "has imposed a content-based limitation on what the consumer may ban from his home ... thereby entangling the government in deciding what speech consumers should hear."

"The First Amendment prohibits the government from enacting laws creating a preference for certain types of speech based on content, without asserting a valid interest, premised on content, to justify its discrimination," the judge said.

Personally, I think that's a crock. Commercial speech, which is what a telemarketing call is, is subject to greater restrictions than non-commercial speech. The multiple state-level do-not-call lists are all still in place. My right as a homeowner to put up a "No Solicitors" sign trumps your right as a solicitor to give me your sales pitch.

I grant that the exception carved out for charities, while well-intentioned, does throw a spanner in the works, a distinction that also gives Writerrific pause. I'd rather see a second do-not-call list for charities than see the telemarketers' list die.

It occurs to me that we could largely avoid this problem if Caller ID were more robust and if telemarketers were forbidden from blocking their outbound number. I don't like ignoring calls that say "unknown caller" because calls from my parents come in that way for some odd reason. Until calls from my folks display properly and/or until telemarketers are forced to display theirs, I'm left to guess when to answer and when to let it roll to voice mail.

(Wasn't forcing telemarketers to display Caller ID info part of the recent FTC rule changes? Did that go through?)

A friend recently asked via email to a mailing list I'm on if anyone knew of an answering machine that could be programmed to respond to calls based on the incoming number. I can't help but think that such a device, which sadly would depend on better Caller ID service, would be a big seller. I know I'd buy one.

(Yes, I know that some of the regional Bells offer a Privacy Manager service that forces unknown callers to announce their names before a call goes through. It's not available to me, I'd rather pay once for a machine than every month for a service, and it suffers from the same annoyances as challenge-response spam filtering.)

I've seen some comments that one response people will have to unfettered phone spam is to give up their landline and go cellular. It's true that telemarketers currently avoid calling cellphones as a rule, partly because there's no good directory for them and partly because many calling plans include charges for incoming calls. Between predictive dialers and an avalanche of new flat-rate calling plans, I don't see either of these as being long-term disincentives to telemarketers. Either we can control who calls us or we can't.

Finally, I agree with Calpundit that the DMA's oft-repeated line about "two million jobs lost" if a national Do Not Call list were implemented is baloney. Whatever may happen with the legal wrangling, does anyone honestly believe that these jobs are not slated for offshoring in the near future anyway? The Direct Marketing Association is shedding crocodile tears.

Posted by Charles Kuffner on September 26, 2003 to Legal matters | TrackBack

Right to market is the same as right to spend unlimited funds to get yourself or someone else elected.

Wealth, and its accumulation, is property law, not constitutional law, and as such falls outside the bounds of rights.

Money is property, property does not trump individual rights.

That fight was lost when Britain allowed non property owners to vote centuries ago.

Posted by: PeteyPuck on September 26, 2003 9:26 AM

I can't buy the First Amendment encroachment. I own my phones and the copper from the junction box to the phone. I pay monthly for phone service. Nobody but me has a right to decide who can use them. The telemarketers are not deprived of any right to speak; they have plenty of available outlets on their own property or on public property.

They're being deprived of permission to speak to people who have ordered them off their property. 'Hey, you telemarketers! Get off my lawn!'

PP: good point on universal sufferage. :)

Posted by: Michael on September 26, 2003 9:48 AM

Charles, you are factually correct to point out that "commercial speech" historically has enjoyed a lesser status than what is conventionally regarded as "political speech."

But, I humbly submit, that such historically practiced categorization and prioritization by the courts has been hugely mistaken. In point of fact, ALL speech is "political speech." Whether it is about Republicans and Democrats, religion, science, art, literature or romance. Or commerce. All speech has a clear and unmistakable political component. The fact that we have political debates about issues of partisan ideology, religion, science, art, literature, sex and commerce, serves as proof of that assertion.

And so, in the narrow sense that preventing one type of speech content while allowing another is a violation of the First Amendment, the court decision is quite proper and correct.

There cannot be any constitutionally permissable restriction on the content of speech. But there can - and are - plenty of restrictions on the "Time, Place, and Manner" by which speech may be expressed.

You may freely and openly express your opinion on, say for example, the Madonna and Britney kiss, but you can't do it with a megaphone at 4AM right outside your neighbor's bedroom window.

The no-call legislation needs to be crafted in a way that premises restriction not on subject matter content, but on legitimate Time, Place and Manner conditions.

Posted by: bz on September 26, 2003 11:23 AM

I see the distinction you're making, BZ, and I agree there's merit to it. Nonetheless, I still feel that a telemarketing call is in a way analogous to the megaphone outside a neighbor's window in that it's an intrusion into my private space. The nuisance factor isn't nearly as great, of course, but the burden is still on me if I want to not listen to what they have to say. I'm not in a public place, and as such I feel I should have more control over who and what comes into my home.

I definitely agree that it's better to strike down an overly broad law than to allow legitimate speech to be restricted. I just disagree with the notion that First Amendment rights are being infringed here. If I'm projecting the world I want to live in rather than the world I do live in, well, that's one reason why people blog. :-)

Posted by: Charles Kuffner on September 26, 2003 12:10 PM