Telemarketing and Freedom of Speech

[blowero]

*Originally posted by TVAA *
quote:

Originally posted by blowero
Not really. As Dewey pointed out, a judge can never simply do as he pleases and ignore precedent (not that they never do, but they’re not supposed to). If a previous decision is poor, it can be overturned, but not simply on a whim; the judge would have to have a good reason.

Why not? If precedent is all there is, there’s no principle formally enshrined in law to guide them. Why should they follow precedent without examining whether that precedent is logically or ethically valid?

Again, you have lost the train of thought. My post was in response to your statement about the “current system”, but now you treat it as if we’re talking about what should be the system. Please stop with the bait-and-switch debating tactics.

A system that doesn’t rely on precedent. When a gap in the law is discovered, effort is made to extend the law instead of glossing over the gap.

You may as well propose that magic fairies should decide the law. You have provided no details on how that would be accomplished. You want a system with perfect laws and perfect judges, but offer no way to obtain such a system. If the system were perfect, it wouldn’t matter whether we used stare decisis.

I strongly disagree that the government should decide what people should be able to screen out. If the government is going to have this list at all, it should allow people to block whoever and whatever they like.

So then since we can’t stop ALL instrusive phone calls, we don’t get to stop ANY. Yeah, that’s real fair.:rolleyes:

Targeting groups merely for the content of their message is not reasonable.

Really? So all messages are equal? Then do I have the right to call you and threaten to kill you? Or lie and tell you your house is on fire? Or call the newspapers and tell them that you are a child molester? If we make those calls illegal, then we have to make all phone calls illegal?

[Dewey_Cheatem_Undhow]

*Originally posted by TVAA *
**A system that doesn’t rely on precedent. When a gap in the law is discovered, effort is made to extend the law instead of glossing over the gap. **

One wonders what will happen to the litigants in such cases, who do, after all, have a pressing conflict that needs resolution right now, and who really don’t have the luxury of waiting around for legislative machinery to fill in a previously-unknown gap in the law.

[Anduril]

I don’t want to get into that “perfect law” debate because I lack information to make good arguments. But as far as the judgement declaring the present DNC list unconstitutional, I don’t think the judge erred. The government just can not choose which calls should be blocked. And what the FTC did is just that, choose for the people.

The FTC has not demonstrated that blocking other calls will present too great a burden so as to render the idea of blocking calls unworkable. Neither have they shown that the other calls are less intrusive to the privacy of the individuals. So it’s more an issue of equal protection of the law than freedom of speech.

It could be argued that telemarketing calls are less protected because it’s commercial speech. But insofar as telemarketing calls are no less intrusive and that the DNC List was created primarily to defend against this intrusion, their being a commercial speech does not remove the government’s obligation to provide equal protection of the law.

[Dewey_Cheatem_Undhow]

Anduril: your analysis ignores how the courts have construed the equal protection clause. This is pretty much exclusively a first amendment issue, not a fourteenth amendment issue.

Were this case to be analyzed under the equal protection clause, the government would almost certainly win. Outside of classifications based on race, alienage and situations involving certain particular rights like voting, travel, etc (each of which receives strict scrutiny analysis) and classifications based on gender and legitimacy (which gets intermediate analysis), equal protection claims are based on rational basis review. That is, the court basically asks if there is any conceivable sane reason for the distinction proffered by the government. This is, as many commentators have noted, a test that is pretty much impossible to fail – almost any proffered rationale will be considered rational.

In this case, the government would say it drew the line as it did both because it simply considered charitable and political speech to be more important than commercial speech, and because it was concerned for how the courts might construe a flat-out ban on telemarketing calls of a noncommercial nature. Even if you disagree that that rationale would stand up under the court’s first amendment jurisprudence, it is certainly sufficient for fourteenth amendment rational basis purposes.

[TVAA]

*Originally posted by blowero *
**Again, you have lost the train of thought. My post was in response to your statement about the “current system”, but now you treat it as if we’re talking about what should be the system. Please stop with the bait-and-switch debating tactics.

** It’s not bait-and-switch: if I’m criticizing the current system, why in the world shouldn’t I talk about how much better a hypothetical system would be?!

Yes, the system is this, but how do we justify allowing the current system to remain as it is? What reason was there for the establishment of that system in the first place?

**You may as well propose that magic fairies should decide the law. You have provided no details on how that would be accomplished. You want a system with perfect laws and perfect judges, but offer no way to obtain such a system. If the system were perfect, it wouldn’t matter whether we used stare decisis.

** I’m not suggesting that the system should magically become “perfect”, but it has a clear and definite fault in that it relies heavily on precedent without a mechanism to evaluate precedent effectively. Your counter-argumentation is insulting and unreasonable.

**So then since we can’t stop ALL instrusive phone calls, we don’t get to stop ANY. Yeah, that’s real fair.:rolleyes:

** That’s not even the point. There’s no reason we couldn’t stop a particular class of intrusive phone calls, but the government has decided people to are not to be given that option. How does the government justify this decision? Why is it appropriate to burden only certain classes of speech? What justifies the inequal imposition of that burden?

**Really? So all messages are equal? Then do I have the right to call you and threaten to kill you? Or lie and tell you your house is on fire? Or call the newspapers and tell them that you are a child molester? If we make those calls illegal, then we have to make all phone calls illegal? **

No, because there are good and reasonable reasons for those calls to be illegal, or at least actionable.

You can call the newspapers and tell them whatever you like. What they publish is what’s evaluated by the standards of libel and slander. If you don’t know what you’re talking about, be silent.

Again: not all communication is equal, but that doesn’t mean that we can arbitrary impose any restriction on the less-protected forms of speech. To curtail any form of speech, we must demonstrate that we have a compelling reason to do so AND that we have the power to do so in the first place.

The second issue is not the question. The first is.

[Anduril]

Okay, you’re right. I’m reading up now on the the decisions you cited. From just a cursory reading of the decision, however, I would have to say that the judge pretty much laid out the basis for his decision. He pretty much covered all the arguments, including those that you so effectively presented. Whether or not it will survive challenge, I will not presume to comment on. But I think, the main point is, the decision was not made out of caprice or whim.

In any case, it’s readily remediable. A new rule that would give consumers the options to “block” other types of calls will pass muster with this judge, in my opinion. The only reason why this became a first amendment issue was because the FTC effectively chose which type of call it would block instead of leaving the choice to consumers.

[TVAA]

Precisely. Anduril perceives the problem almost immediately. Why can’t you, Dewey?

You don’t have to agree that the argument is valid, but you could at least make some noises indicating you understand it.

[Dewey_Cheatem_Undhow]

*Originally posted by Anduril *
**Okay, you’re right. I’m reading up now on the the decisions you cited. From just a cursory reading of the decision, however, I would have to say that the judge pretty much laid out the basis for his decision. He pretty much covered all the arguments, including those that you so effectively presented. Whether or not it will survive challenge, I will not presume to comment on. But I think, the main point is, the decision was not made out of caprice or whim. **

I don’t recall accusing the judge of capriciousness or of acting on a whim. His opinion is defensible. I think the opinion is wrong and that the facts are distinguishable from the precedents he relies on, but his opinion is not insane, either.

It’s perfectly possible to think the judge came to the wrong conclusion without also considering him an idiot. **

In any case, it’s readily remediable. A new rule that would give consumers the options to “block” other types of calls will pass muster with this judge, in my opinion. The only reason why this became a first amendment issue was because the FTC effectively chose which type of call it would block instead of leaving the choice to consumers. **

A blanket ban would trigger first amendment issues of its own, given the higher level of scrutiny applied to restrictions on noncommercial speech. The DNCL might survive such a challenge, but then again it might not. I think it is folly to suggest that a first amendment challenge could be wholly avoided by making the ban all-inclusive.

[Dewey_Cheatem_Undhow]

*Originally posted by TVAA *
**Precisely. Anduril perceives the problem almost immediately. Why can’t you, Dewey?

You don’t have to agree that the argument is valid, but you could at least make some noises indicating you understand it. **

Kindly go back to page three, read my analysis of the judge’s arguments, and come back here and tell me I don’t understand the legal issues at play here.

[TVAA]

Virtually all of your posts in this thread – including page three – suggest that you either don’t fully grasp the legal issues at play here, or you’re intentionally ignoring them in order to strengthen your position.

The government is not banning any speech by instituting the DNC list any more than it is banning speech by permitting people to opt out of receiving mailings. It is giving people to opportunity to opt out of receiving phone calls.

If it offered a blanket DNC, people themselves could choose whether to sign up for it. That doesn’t prevent other people from receiving it; ergo, it doesn’t violate the First Amendment, since the restrictions are being applied by the people and not the government.

However, the DNC proposal that the judge found unconstitutional involved the government deciding that people would not be given the ability to opt out of certain calls: some categories (defined by the content of the speech) would not be affected by the list. The government did not demonstrate why it should be allowed to offer the list for only certain content-based categories; the result was that the government was deciding what people should be able to receive or not receive, which IS against the general interpretation of the First Amendment.

You haven’t offered any reasoning as to why the government’s proposal was actually correct and the judge’s ruling was wrong. You’ve just stated over and over again that it was.

When asked to present such reasoning, you reply with comments that have nothing to do with the legal issues. That’s why I don’t think you really know what’s going on here.

[Anduril]

A blanket ban would trigger first amendment issues of its own, given the higher level of scrutiny applied to restrictions on noncommercial speech. The DNCL might survive such a challenge, but then again it might not. I think it is folly to suggest that a first amendment challenge could be wholly avoided by making the ban all-inclusive.

I disagree. If the Rowan case can be cited as precedence and applied to telephone calls, it seems that people have the right to ban calls of any nature placed to their homes. Apparently, the only reason why the first amendment was even implicated in the “DNC list” case is that choice was denied the consumers by the limited nature of the list.

[Dewey_Cheatem_Undhow]

*Originally posted by Anduril *
**I disagree. If the Rowan case can be cited as precedence and applied to telephone calls, it seems that people have the right to ban calls of any nature placed to their homes. Apparently, the only reason why the first amendment was even implicated in the “DNC list” case is that choice was denied the consumers by the limited nature of the list. **

Oh, I absolutely agree that a blanket ban would, at the end of the day, withstand first amendment scrutiny. But such things are not necessarily foregone conclusions; a rational lawmaker could decide he’s got a better shot at wrangling with the likes of Universal Network than he does at wrangling with the ins and outs of Rowan and its progeny. Congress and the FTC have to pick their poison on this one – they’re going to get sued no matter what they do.

[Dewey_Cheatem_Undhow]

*Originally posted by TVAA *
**You haven’t offered any reasoning as to why the government’s proposal was actually correct and the judge’s ruling was wrong. You’ve just stated over and over again that it was. **

The government’s proposal is “correct” insofar as the courts are concerned if it comports with the Constitution as interpreted by the Supreme Court. That’s called representative democracy in action – Congress can pass whatever laws it wants, even foolish or irrational laws, so long as such laws remain within the strictures of the Constitution.

I’ve presented my reasoning as to why the DNCL falls within the interpretations of the first amendment issued by the Supreme Court. See page three of this thread.

Ergo, I’ve presented my reasoning as to why the proposal is “correct” from the court’s point of view.

If you want to make broader policy arguments that the proposed structure of the DNC list is unfair or irrational, fine. Write your congressman. But those questions aren’t questions the courts are empowered to answer. **

When asked to present such reasoning, you reply with comments that have nothing to do with the legal issues. That’s why I don’t think you really know what’s going on here.**

I’d really love to hear you quote me making a comment that has “nothing to do with the legal issues” when asked to reply to anything other than your harebrained neo-Vulcan objective utopia.

[TVAA]

*Originally posted by Dewey Cheatem Undhow *
**I’ve presented my reasoning as to why the DNCL falls within the interpretations of the first amendment issued by the Supreme Court. See page three of this thread.

Ergo, I’ve presented my reasoning as to why the proposal is “correct” from the court’s point of view.

** But you’ve ignored the reality that the government does have a highly effective way of dealing with the problem: allowing the DNC list to be global instead of content-based.

You’ve repeatedly ignored this point whenever it’s brought up, which suggests you’re simply lying by omission in order to make your side of the argument look good.

And you still haven’t justified your attempt to get a group of people to harass a judge via phone in order to show him the error of his ways.

**I’d really love to hear you quote me making a comment that has “nothing to do with the legal issues” when asked to reply to anything other than your harebrained neo-Vulcan objective utopia. **

Watch yourself, Sparky. You are treading quite close to violating the rules of this forum.

[Dewey_Cheatem_Undhow]

*Originally posted by TVAA *
**But you’ve ignored the reality that the government does have a highly effective way of dealing with the problem: allowing the DNC list to be global instead of content-based.

You’ve repeatedly ignored this point whenever it’s brought up, which suggests you’re simply lying by omission in order to make your side of the argument look good. **

I haven’t ignored this point. Indeed, I’ve repeatedy expressed my view that, as a policy matter, I think an opt-out list for all types of telemarketing calls would be a better overall solution.

But the question before us is not “has the government elected to pursue the optimal solution to this problem?” Rather, the question before us is “has the government taken a course that is permissible under the first amendment as interpreted by the Supreme Court?”

For the reasons I’ve stated earlier, I think the government has taken such a course. I think the facts at bar are sufficiently distinguishable from Universal Network as to render the government’s solution constitutionally permissible under Central Hudson.

It bears repeating: the government does not have to move on all fronts in order to move on one front. So long as it does not run afoul of constitutional precedent, the government can enact measures that stop short of completely addressing a particular problem. **

And you still haven’t justified your attempt to get a group of people to harass a judge via phone in order to show him the error of his ways. **

Au contraire. If you want to go back the several pages it’s been since we chatted about that little issue, you’ll see that I did justify my encouragment of my fellow citizens to share their views with the judge. In a free and democratic society such as ours, the communication of the public with those who serve them is a civic virtue, and ought to be encouraged. That holds for all government officials, including judges.

If the government does something you don’t like, you should bitch loudly to the part of the government responsible for whatever action you find objectionable. The country might just be better off if more people were willing to voice their opinions on a regular basis. **

Watch yourself, Sparky. You are treading quite close to violating the rules of this forum. **

Actually, I’m not. Calling your little plan to reinvent the world “harebrained” is an attack on your very silly ideas, not on you personally.

This stands in contrast to the two instances where I pointed out your lack of decorum: once on page 3, where you suggested that “[p]eople who didn’t even hate lawyers before are probably converted as soon as they meet [me],” and once again on page 6, when you gratuitously ended your post with the statement that I sicken you. And I only made mention of forum rules on first statement; on the second, I simply suggested that you take things to the Pit if you didn’t want to focus on the debate at hand. That invitation remains open, BTW.

Oh, and your reply, incidentally, is nonresponsive to my request that you quote me making a comment that has “nothing to do with the legal issues” in reply to anything other than your utopian scheme.

[Anduril]

I’m quite bothered by the attitude that says that it’s okay to flood the judge with calls because you disliked the way he interpreted the law. There was nothing personal in the way the judge made the decision. He merely applied what he thinks are the relevant legal principles. If there are disagreements, I think that’s what appeals are for. “Bitching loudly”, in my opinion, is out of place.

It’s less than candid to suggest that your invitation to call the judge en masse was for the purpose of the free flow of ideas. Any one who reads your invitation will not interpret it as such.

[Dewey_Cheatem_Undhow]

*Originally posted by Anduril *
**I’m quite bothered by the attitude that says that it’s okay to flood the judge with calls because you disliked the way he interpreted the law. There was nothing personal in the way the judge made the decision. He merely applied what he thinks are the relevant legal principles. If there are disagreements, I think that’s what appeals are for. “Bitching loudly”, in my opinion, is out of place. **

On any given day, particularly days that are anniversaries of landmark decisions, you can go to the steps of the Supreme Court and watch the gathered masses bitching loudly about the decisions handed down by that institution. This, in spite of the fact that the high court was, in each case, only “applying what [they thought were] relevant legal principles.”

I think that’s a good thing. Don’t you? **

It’s less than candid to suggest that your invitation to call the judge en masse was for the purpose of the free flow of ideas. Any one who reads your invitation will not interpret it as such. **

Define “free flow of ideas.” I’ll grant I wasn’t suggesting a debate between the judge and his callers – I was instead suggesting that people make their views known to those who ostensibly serve their interests. I merely suggested that people make their displeasure known in a manner that had a nice irony quotient. As per above, I think it’s a good thing when people voice their displeasure at agents of the government.

[Anduril]

Fair enough.

[blowero]

*Originally posted by TVAA *
It’s not bait-and-switch: if I’m criticizing the current system, why in the world shouldn’t I talk about how much better a hypothetical system would be?!

Yes, it IS bait-and-switch. You asked THIS question:

quote:

Originally posted by TVAA
Ah, but the current system is a mixture of both, isn’t it?

---

I answered your question, THEN you attacked my answer as if it were propounding the current system, rather than answering YOUR question. Just don’t debate in such a careless manner, and we’ll be fine.

I’m not suggesting that the system should magically become “perfect”,

I submit that if you insist that judges always make correct rulings in the first place, and that all ambiguities in the law are always immediately cleared up, without providing any mechanism by which these two things might be done, that it is tantamount to magic.

but it has a clear and definite fault in that it relies heavily on precedent without a mechanism to evaluate precedent effectively.

There already IS a mechanism to evaluate precedent; it’s called judicial review. A bad decision can be overturned within the current system. But what YOU are suggesting is that we should completely scrap stare decisis, leaving the unambiguity of legislation as the only means of maintaining consistency. Yet you provide no means of accomplishing this. There would be no judicial review, because every judge would essentially be on his own. But somehow these judges would always come up with the right decision, by some heretofore unexplained process? Give me a break.

Your counter-argumentation is insulting and unreasonable.

Oh please - get over yourself. Pot? I’d like you to meet Kettle.

quote:

So then since we can’t stop ALL instrusive phone calls, we don’t get to stop ANY. Yeah, that’s real fair.

That’s not even the point.

Of course it’s the point. It is very much the point.

There’s no reason we couldn’t stop a particular class of intrusive phone calls,

What do you mean there’s no reason? I’ve lost count of how many times Dewey and I have told you why it is more problematic to regulate non-commercial speech, yet you pretend the argument doesn’t exist.

but the government has decided people to are not to be given that option.

A judge has decided that people are not to be given ANY option. Personally, I’d rather have the salesmen stop calling me now, and worry about the non-profit folks later, than get NOTHING AT ALL, which is the option left by the Denver judge.

How does the government justify this decision? Why is it appropriate to burden only certain classes of speech? What justifies the inequal imposition of that burden?

You continue to insist that all speech is equivalent in the eyes of the law, and I keep proving you wrong. You admit that different speech is subject to different standards RIGHT HERE:

No, because there are good and reasonable reasons for those calls to be illegal, or at least actionable.

Yes, some speech can be made illegal because…wait for it…

DIFFERENT TYPES OF SPEECH ARE SUBJECT TO DIFFERENT LEGAL STANDARDS.

You can call the newspapers and tell them whatever you like. What they publish is what’s evaluated by the standards of libel and slander. If you don’t know what you’re talking about, be silent.

Perhaps you should heed your own advice, since you obviously don’t know what you’re talking about. No you CAN’T tell the newspapers whatever you like; not if it’s slanderous. Saying that the newspaper shouldn’t have published it does not get you off the hook.

Again: not all communication is equal, but that doesn’t mean that we can arbitrary impose any restriction on the less-protected forms of speech.

It’s not arbitrary.

To curtail any form of speech, we must demonstrate that we have a compelling reason to do so AND that we have the power to do so in the first place.

True, and I think this has been done in this case.

[blowero]

*Originally posted by TVAA *
But you’ve ignored the reality that the government does have a highly effective way of dealing with the problem: allowing the DNC list to be global instead of content-based.

I’m just gonna step in here because this is so obviously false. Dewey and I have explained (virtually ad-infinitum now), why that is in fact NOT a “highly effective way of dealing with the problem”.

You’ve repeatedly ignored this point whenever it’s brought up, which suggests you’re simply lying by omission in order to make your side of the argument look good.

The point has been addressed over and over and over. You, TVAA, are the one who keeps ignoring the point.