Telemarketing and Freedom of Speech

Great Debates
221

Because eventually someone has to actually use reason to determine the answer from the stated principle. Lists of scenarios and the appropriate responses are just fine for the Deltas and Omegas, but there has to be an Alpha or Beta somewhere who writes the list in the first place.

The algorithm applies to all possible scenarios. You simply input the conditions of the scenario, apply the standard, and put the result into practice.

If I define the nature of addition, I don’t need to explicitly demonstrate what every possible pairing of two numbers sums to: all you need to do is apply the rules.

222

And you can’t do it.

Regards,
Shodan

223

Oh, well, as long as it’s simple… :rolleyes:

If it’s so goddamned easy, then you won’t mind telling us exactly what the results are under your algorithim.

I’m not asking you to demonstrate the results of every possible fact pattern. I’m asking you to tell us the results for a small handful of fact patterns. Which is a perfectly reasonable request.

I mean, really – let’s say, for the sake of argument, that this standard of yours really is a perfect analog to simple addition. What kind of a person, tasked with explaining simple addition, simply describes the additive property and leaves it at that? Wouldn’t you, as part of further explaining that principle, say “for example, 2+2=4; 3+6=9; 7+8-15”?

I’ve asked you to illustrate your principle by, in effect, giving you pairs of numbers to add. Please elucidate your principle by telling us what the sum is.

224

You are presuming that I am forwarding this principle as an example of the ideal ethical system. It was forwarded only as an example of a simple, unambiguous statement (which you are still incapable of applying!).

Point one commits this error, as well as begging the question as to what “genuine” morality and good judgment should be.

Point two is valid, but it doesn’t apply.

Point three isn’t even logically valid, as you’re presuming that the listed activities should be permitted by the standard and yet are not.

225

While I am somewhat happy that you’ve managed to finally go back and address one of the many points I’ve been hounding you about, I can’t help but notice that you’ve again refused to do what I asked you to do – apply your standard to the listed hypothetical situations. And to think you call my reading comprehension into question. :rolleyes:

But I shouldn’t sneeze at small miracles. My response follows:

You were asked how, in your Vulcan-like utopia, a concept like free speech would be put into law in such a fashion that it could be applied totally unambigously. You gave us your formulation as a better alternative to the first amendment. You were, in fact, advancing that formulation as a better ideal than the current system.

If you want to read concepts with absolute literalism, even the first amendment’s free speech clause is ambiguity-free: no restrictions (by Congress, anyway) on speech, period. Loudspeakers at 3am, libel and slander, perjury, hiring a hit man, incitement to riot – none of these things can be prohibited, because they all abridge the right to speak freely.

It does no good to advance your formulation as nothing but a “simple unambiguous statement” in that sense – you’re proposing an alternative rule of decision. Its effects thus need to be considered. You need to either own up to the negative consequences of reading your rule strictly, or revise your rule to handle exceptions such as those presented in the hypotheticals. **

“Doesn’t apply” how exactly? Are there exceptions to your rule or not? **

Actually, I’m presuming quite the opposite: that the listed activities should not be permitted, and yet your standard, absent any exceptions (and you have not indicated any exist), would permit them. I’d actually like to confirm this, which is why I keep asking you to apply your standard to certain sets of hypothetical facts.

226

I already applied the standards to those situations. I did so at the top of this page.

Yet you still complain. Not simple enough for you?

How quickly you forget – you asked for an example of a ruling principle without ambiguity. I save you such an example, with the caveat that it was as precisely as English would allow. I did not give you a better variety of “Free Speech” – you didn’t ask for it.

You haven’t presented any exceptions. To demonstrate an exception, you would need to show that in a specific case the results I would favor oppose the standard I have set forth. This reasoning contains multiple errors. First: this standard does not necessarily reflect what I would consider appropriate law, merely the use of clarity in law-making. Second: you assume that you know what my values are; this is why you believe you can find a contradiction between my values and the statement. Third: you are so blinded by your assumptions that you cannot even perceive that the answers you expect are not a part of the scenarios you present.

227

No, you didn’t. You gave a non-answer – you basically said “just apply the rule; it’s easy.”

A real, bullshit-free answer would read something like “Yes, because ______” or “No, because __________.” **

The beauty of a message board such as this is that you can go back and see exactly what was asked. For example, on the bottom of page three I made my first request for your governing principle in the expression area. I wrote:

“The first amendment’s free speech protection reads: ‘Congress shall make no law … abridging the freedom of speech.’ How would you change this? How would you craft free speech protections in such a manner as to avoid all ambiguity?”

On the next page, after you had ducked the question a bit, I asked:

“I’m eager to see your skilled, loophole-free draftsmanship. I look forward to seeing your proposed language for protecting free speech.”

Ane later still:

“You claimed that you could replace the Constitution with an ambiguity-free governing document. I challenged you to come up with one small part of such a document, namely one that protected free speech. Now you’re balking.”

To which you finally gave us your little miracle of draftsmanship.

You had claimed that the constitution in general, and the first amendment in particular were insufficient as a governing law because they were too ambiguous. I think given that context, and given my questions above, it’s pretty clear you were suggesting you could do a better job of crafting a governing rule than the framers. If a rule is ambiguity-free but is still a shitty rule, it’s hardly worthy as a replacement to the status quo. I thus think expecting a “better variety” of rule is exactly what any reasonable reader would expect you were being asked to provide.

**

So do you favor a rule that protects someone who commits libel? Who hires a hitman? Who incites a riot?

If you disfavor these results, and your rule causes them to happen, why have you advanced your rule?

If your rule does not cause those results, why won’t you explain why? **

Translation: “I now see that my formulation takes us down some pretty nasty roads, so I will now backpeddle and disavow that I actually thought it appropriate as a constitutional replacement.” **

Translation: “Dewey failed to take into account that I’m one sick fucker who actually thinks rioting, libel, and disclosure of sensitive intelligence material should be constitutionally protected.” **

Translation: “I don’t want to answer reasonable questions in a straightforward manner, so I’ll just call Dewey stupid instead.”

228

That is one court’s definition Dewey. How does the legislation itself define Telemarketing? It is the “legislation” that is at issue here and not some Colorado court’s definition. It is the legislation that must pass the Central Hudson test and not the court’s opinion. Why are you focusing on the court’s definition of telemarketing?

I will refer to the rules promulgated by the FTC which were at issue in the case and did not cover all forms of unsolicited calls, which is one of my points.

This FTC regulation would not include calls by charities, by political parties, or any other entity that is not selling goods or services.

More language to buttress my original point:

Other exemptions that are permitted to call but may still be selling goods and services are according to the opinion itself, banks, insurance companies, and common carriers.

More importantly, which I have noted before, a huge exemption is, as the court noted, are those organizations seeking charitable contributions.

In this case the FTC even made an admission which bolsters my case. The FTC admitted that “privacy was equally invaded” by commercial and non-commercial charitable calls, a point I made earlier regarding my analysis of one of the Cental Hudson factors.

Now for the piece of the case you find compelling. The forty to sixty percent to which you reference is only in regards to those calls selling goods or services. Hence, this is in regards to only one slice of the pie. The entire pie is unwanted phone calls. Among this pie are pieces known as calls selling goods and services and call not selling goods and services. According to this case some of the pieces of the pie are not even covered by the rules promulgated by the FTC. The only piece covered by the FTC is the piece regarding calls selling goods and services and then not even this entire piece is covered. Somewhere between forty to sixty percent of this particular “piece” of the pie is covered.

Why is this relevant? Because the court said legislation that is ineffective or remote in relation to advancing the state interest is unconstitutional. In this instance we have the FTC admitting the state interest of protecting privacy is still implicated even with the rules they have promulgated because any entity not selling services or goods may continue to call. The state interest of privacy may further be implicated by the commercial exemptions made for banks and insurance companies and common caririers.
Additionally, among the entire pie of unwanted phone calls only one piece is covered by the legislation leaving all other pieces not touched by the legislation. This sounds to me like ineffective and remote legislation that does not really advance the state interest of protecting privacy in the home because of all of the exceptions made. Since the state interest can still be implicated and done so on a considerable level, the FTC rules are too ineffective and remote.

229

Unfortunately I could not access the PDF Colorado case but I wanted to have it known that there is court commentary stating that it is not known for sure if the “statistics” were even correct.

I believe, if memory serves me right, they said this in regards to the Sixty to Forty percent Dewey is so profoundly in love with. In other words, the FTC did not provide any evidence in the record that in “fact” Sixty to Forty percent of calls for goods and services would be affected. So it is not even certain this is the exact or proximate percentage range.

230

Does this reasoning strike anyone else as slightly asinine? It sounds to me like the equivalent of saying "If we can’t solve all our privacy concerns in one fell swoop, then we aren’t allowed to solve any of them.:confused:

231

** And I’ve told you that I’m not interested in preserving the concept you refer to as “free speech”. The concept itself contains contradictions – what difference does it make what language it is expressed in? Translating the rule without changing it eliminates none of its problems: the conceptualization itself must change.

Any “reasonable” reader following the debate would have understood that.

** What makes you think I view any of those outcomes as “nasty roads”? I told you before – if you think you’ve found a contradiction because the principle leads to conclusions that you can’t imagine any reasonable person would accept, the problem is with your lack of imagination.

You haven’t asked any reasonable questions, or even intelligent ones, in quite some time.

232

For the very obvious reason that you raised the court’s use of the term “telemarketing” in raising the question of what exactly the 40-60% figure applied to. Since the court uses the term “telemarketing” to apply to all telephone solicitations, including charitable and political solicitations, the 40-60% is clearly the projected reduction in the number for all telephone solicitations, not the projected reduction in the number of commercial telephone solicitations. **

Again, this is plainly false. The court defines telemarketing as all telephone solicitations, not just commercial telephone solicitations. The 40-60% reduction estimate applies to the whole pie, not just the commercial slice of that pie.

Seriously, you need to read the opinion. Otherwise, you’re just making yourself look foolish. It is available at Findlaw (in the “News” Section under “Featured Docs”) and is linked earlier in this thread. **

Again, I have to ask: would you consider a program that reduced teen pregnancy by 40-60% to be “ineffective”? How about crime, or poverty? Since when is 40-60% “ineffective”?

233

The opinion arose out of a motion for summary judgment by the plaintiffs. As you should know – this is first-year Civil Procedure kind of stuff – a motion for summary judgment is a pretrial motion; there is no “factual record” because there has not yet been a trial. As you should also know (again, basic first-year law student stuff here), a motion for summary judgment is decided by construing the facts in the light most favorable to the non-moving party, in this case the FTC. That means taking the FTC’s assertions at face value when deciding the motion.

If the plaintiffs wished to contest the factual assertion of a 40-60% reduction, they would need to allow the case to move forward to trial so there can be a final determination of facts by the court. They did not, and so both the trial court opinion and any subsequent appeals will be decided based on the assumption that the 40-60% estimate is true.

Are you sure you’re a law student?

234

Any reasonable reader would have understood that you were asked to come up with a replacement for the general topic area covered by the first amendment’s free speech clause. Even you apparently understood this, as you latched on the related concept of “communication” rather than, say, fly fishing. **

So I should have assumed from the outset that you were a sick fucker who thinks things like divulging sensitive intelligence information or conspiracy to commit murder are worthy of protection as fundamental rights?

235

That’s exactly right, and that’s exactly the problem with the court’s opinion (and, to be fair, the Discovery Network decision upon which it is based). The government shouldn’t have to move on all fronts in order to move on any front.

The opinion also creates a neat Catch-22: a blanket ban on all telemarketing might well run afoul of the higher level of protection afforded noncommercial speech. No matter what the government does to address the problem, it runs into constitutional difficulties.

236

** No, that was merely one possible example.

How can you be made to understand that the example is not necessarily a standard I would choose to impose? There are only so many ways this concept can be reworded – you ignore each of them.

And again you miss the point. “No solicitation” signs also prevent people from communicating, but this isn’t a problem: people may freely choose not to listen to someone who wishes to speak. Because the people choose to put up the sign – and whether to put up a sign that only forbids certain types of solicitation – this is not a constitutional problem at all: it’s an exercise of the people’s right NOT to communicate.

But the DNC list is more limited than that. It’s as if the government said “You may put up a sign forbidding commercial solicitation, but not political or cause-bearing solicitors.” They could give people the option to opt out completely. They could give people to option to opt out of whatever forms of solicitation they wished. But instead, they decided that the people can restrict certain types but not others, and they did so without demonstrating a compelling reason to infringe on the people’s freedom of speech (and not-speech).

237

You were asked how you would handle the same general area as the first amendment’s free speech clause. Implicit in that request is the notion that you approve of the change you are proposing.

But let’s be clear about this: Do you, or do you not, think your “right to communicate” language is a worthwhile change in the law? It’s a simple yes or no question. Please do tell us so we can proceed accordingly. **

So, under your proposed formulation, the mere presence of individuals who do not wish to communicate are sufficient to prevent another from speaking? So would this, say, gag someone from giving a political speech in a public park if a few park patrons wish to enjoy the scenery in peace and quiet? **

You are conflating two things: the first amendment concept of free speech, and your own conception of a right to communicate. I’m not sure which standard you’re advocating here, so I’ll address both.

If you’re addressing the constitutional concept of free speech, then I think the DNC is permissible for the reasons I outlined on page three: the courts are interpreters of the constitution’s text; the free speech clause has been construed by the courts as providing lesser protections to commercial speech, and thus the list is permissible. There’s more to it than that, of course (and I address the topic in full on page three), but that’s the gist of it.

If, on the other hand, you’re addressing your concept of a right to communicate, I fail to see where, in the raw text of your proposal, even taking into account your assertion that a corrollary right of non-communication is included, there is anything that prevents the government from allowing consumers to opt out of one type of communication and not to opt out of another. There’s nothing in your proposed language that suggests such distinctions can’t be made, as long as the option to communicate or not communicate is ultimately left with each individual citizen.

238

Dewey I am so glad you are here to enlighten us with your vaunted expertise. What I can’t figure out is how a practicing attorney has so much time to devote to a message board? I have several plausible explanations but will not post them here as they are probably embarassing to you and unnecessary ad hominem’s, a method of argumentation you have mastered.

First of all the lack of any evidence provided by the FTC is relevant to the case. Why? Because the plaintiff’s raised an Arbitrary and Capricious claim in their complaint under the Administrative and Procedures Act. This is of course first year stuff you should have covered in Administrative law. The FTC, constituting as an agency, normally has to present findings to support a change in its rules, especially when it is formal rule-making which is what the FTC has done in promulgating this new rule. There is more than one issue here and more than one way to defeat this Do Not Call registry legislation. However, I would argue this lack of evidence in the administrative record is relevant to whether the legislation would be ineffective or remote to advance the state’s claim.

Now this was an instance of notice and comment rule-making, or formal rule-making, more first year stuff you should have covered in law school. As a result, the FTC is obligated to compile a record substantiating their revision of the rule. However, the FTC is really unsure if their estimate is even a truthful or accurate one and failed to include it in their record, something which could hurt them on appeal.

Now of course the FTC faults the telemarketing industry for the FTC’s failure to estimate the percentage reduction in calls and this language can be found in the opinion. So the FTC is not exactly sure of its own number and they have nothing or very little in the administrative record to support their estimate and place this fault on the telemarketing industry according to the opinion. It could be possible the reduction is only 30%, 20%, 15%, or 35% or some other number. It is quite possible on appeal a court is going to want to know and have the agency present a more concrete percentage range otherwise how can the FTC or Congress legitimately claim they are reducing telemarketing calls at all or to such levels as they claim or to such levels as to protect the privacy interest? I contend they really can’t make such a claim and for this very reason alone it is too remote and ineffective. The FTC’s inability and failure to really substantiate their percent reduction in telemarketing calls in the administrative record amounts to nothing more than speculation on behalf of the FTC and Congress and more conjecture than concreteness and if this is not the essence of remoteness then I do not know what would be. At this point all the FTC is doing is guessing, perhaps making an educated one, but it is still a guess as to the percent reduction in telemarketing calls. This, consequently, can’t be said to pass the language of the Court regarding the Central Hudson test that legislation cannot be “remote” or “ineffective” especially since the agency really does not have a solid idea of the percent reduction of calls.

239

Again Dewey the agency is not even sure where the reduction falls. If it falls on the 40%, then 60% of telemarketing calls are being made and implicating the state interest of protecting privacy and would you call this “effective”?

The FTC just provide a band or range of 40-60% and somewhere along this line the FTC rule will fall but they are not entirely sure where. If it falls on the 40% and allows the other 60% then this is effective? Perhaps, as I noted before, their inability to exactly specify or estimate within a smaller band of the number of telemarketing calls to be reduced is reason enough to say it is at this point too remote. The FTC simply is not sure how much, within the percent band they have estimated, will be reduced. Perhaps their inability to say makes it too remote especially since it is possible that only 40% of telemarketing calls will be reduced by the FTC rule and the implementation of it by Congress. Since this is a real possibility can it still be considered not too remote or ineffective?

240

BTW, Dewey, disregard the percents I used in the post dated as of the time of 6:01 p.m. I got a little carried away there but they should be numbers between the 40-60% band. Such as 49%, 51%, 42%, 47%, 46%, or 55%. But the reasoning, the agency’s inability to provide a more proximate estimate, is perhaps relevant to the issue of remoteness and effetiveness as well as the AOPA claim of arbitrary and capricious agency action.