Telemarketing and Freedom of Speech

So over here we’re discussing the hit the National Do Not Call list took yesterday and what it all means.

And I mention that the ATA will probably have a ready made ‘Freedom of Speech’ suit ready when the current ruling is yanked (as I believe it will be).

But I don’t really have the constitutional knowledge to argue the case one way or the other. So I thought I’d bring it here.

Is there a constitutional right for telemarketers to make their calls? What are the issues here?

Disclaimer: while I’m against telemarketing in general I have run such a department (business to business) in the past and I’m a current member in the Direct Marketing Association of Washington, the local chapter of DMA.

How 'bout it?

IANAL, but I don’t believe that someone has a constitutional right to exercise Free Speech on another person’s property. The call enters your home, and it would seem you are not infringing on someone’s right if you block them “at the door”.

Having said that, I still think that there is no good answer to getting rid of these calls. If the “do not call list” goes into effect, many companies will just take their opertations offshore. The answer is blocking technology. My phone company offers a pretty cheap solution ($5/month) to block “Private” and “Out of Area” phone calls. I suspect that cost can be brought down quite a bit, too.

There is also the matter of Commercial speech vs Private speech. I don’t believe Commercial has the same constitutional protections.

I might agree if the government was denying telemarketers the ability to make any calls at all. However, all they’re saying is that if a person has specifically requested exclusion from calling lists, that the request be honored.

This is already in place today, if you ask to be put on a company’s do not call list, they must do so. To ignore that request would be considered harrassment. The government is setting things up so that people need only make that request once, rather than over and over again to different telemarketing companies.

True. But some of the worst telemarketing calls come from politicians during elections. Can those calls be legislated against, in terms of a Do Not Call list? I still say your right to free speech ends at my doorstep. The gov’t routinely regulates political speech in terms of time and place a protest can be held. I don’t see a difference here.

I’m no legal expert, but do zoning laws regarding the size and placement of advertising infringe on free speech? If they don’t, I don’t see why restricting advertisers from intruding into people’s homes, especially through a list into which members of the public voluntarily request inclusion, would be any different.

Freedom of speech is the right for two consenting parties to exchange information. It is not the right for one party to unilaterally decide to impart imformation. If one party has declared themselves to be not interested in receiving informtion, the other party has no right to impart it.

Door-to-door bans have been struck down as unconstitutional; how are phone calls different?

This is not a ban on calling. It’s offering people the ability to opt out of being called. Very diferent.

True; door-to-door people are supposed to offer “no solicitation” notices.

offer? HONOR.

And all night long, I was…:slight_smile:

Solicitations of charity, and political support are specifically expempted from the Do Not Call list restriction.

Look for a whole lot of commercially associated “charities” to pop up in the next few years.

But you can still tell those guys not to call.


Well, it’s already happened. A Denver judge has ruled a First Amendment violation. I’ll bump the link from the BBQ Pit thread:

I believe the reasoning is that allowing charities and political organizations to call, but not allowing telemarketers to call is denying equal protection to telemarketers. It’s kind of ironic, since the FTC apparently exempted those 2 groups in hopes of avoiding a First Amendment challenge. The strategy apparently backfired on them.

I’m having a hard time with the logic here. I agree with John Mace in that I would have thought the telemarketers’ right to free speech ends where MY property line begins. As I said in the other thread, I have a right to say what I want, but I don’t think I’m allowed to yell it over a bullhorn pointed at my neighbor’s window. So how can one argue that the First Amendment right is applied unfairly if it doesn’t even exist in this situation?

I think it would be comparable to having different zoning laws for different groups, such as saying that non-profit groups can put up really big billboards, but commercial groups can only have small ones, and is therefore unequal treatment. That seems to be the judge’s reasoning, anyway.

The solution would seem to be that you have several different “opt-out” lists, one for commercial calls, one for charitable calls, and one for political calls. This would seem to relieve the First Amendment issue by making it the consumer’s choice, rather than a government distiction between “speakers”.

This might have the effect of making telephone polling more difficult, because it would be impossible to assure a representative sample (you probably cannot assume that people opt out of receiving polling calls independantly of their political outlook). However, you could still conduct polls through In-person surveys and mailings, but these would be both more expensive and take longer than telephone surveys.

The overall outcome might be to reduce the politician’s dependance on overnight polling, which, I think, would be beneficial. However, this is probably just wishful thinking on my part…

The judge in the most recent case seems to be arguing as follows:

This makes no sense to me. How is specifically asking not to be called (by entering your number into a do-not-call list) not a “logical, coherent privacy-based reason”?

We have laws preventing use of loud-speakers even in political rallies, because it disturbs people. How is allowing people to opt out of being bothered during dinner any different?

This is like arguing that laws against graffiti interfere with artistic expression. My time and my telephone do not belong to telemarketers, for them to use at their whim. They belong to me, and I have made it specifically clear that I don’t wish to hear their speech. How does it interfere with their right to speak if I decline to listen?

IANAL. But this seems to depart rather far from common sense.

Damn, this irritates me. How can a judge be so stupid? And how is this national do-not-call list any different from the list they are supposed to put me on when I tell them “Don’t call me again”?


[Fixed coding. – MEB]


The judge is saying that the do not call list would be OK if the gov’t included ALL types of calls on the list. By only allowing consumers to block certain types of calls (based on the calls contents), the gov’t has given certain types of speach preference over other types of speach. If the consumer selects only certain types of calls, that’s OK, but the gov’t can’t make that selection for us.

I think there is some merit to that line of reasoning. And I still say the real answer for the consumer is to use call blocking technology. If you think you can legislate away annoying phone calls, you don’t know how persistent these guys can really be when they have to.

Time to post the Denver judge’s home phone number. After all, he’s such a big fan of “freedom of speech”, thus, the entire nation should exercise their “freedom of speech” on him until his head implodes. It’s what he wants us all to do, after all.

I get that Denver judge’s idea. Solution is simple, make the do not call list affect ALL types of calls. Sorry charities and politicians, your calls really aren’t less annoying than the marketers, go away.