** And the answer is ‘no’, as the government has chosen to regulate speech without being able to produce a compelling reason to do so.
** But in the process of doing so, it has unreasonably restrained a form of speech. I’m not opposing the altered list because it’s an imperfect solution to the problem, I’m opposing it because it prevents people from choosing not to receive certain speech based on its content.
And again you ignore this point…
** As Anduil has pointed out, this defense of your incitement to harassment is less than impressive.
** And the nature of your arguments induces hatred of lawyers in people who didn’t previously feel that way.
How about the statement that I’ve repeatedly quoted in this thread about your suggesting that a group of people spam the judge with unwanted calls in a manner intended to harass and inconvenience him?
** Among other concerns, you’ve repeatedly claimed that the FCC would be sued for restricting the freedom of speech of political and charitable groups. The essential flaw in this argument is that the government wouldn’t be regulating the speech: the people would be refusing to listen to it.
The government would probably win a lawsuit protesting such a course of action. More importantly, it wouldn’t trample on any freedoms. The current course of action guarantees that freedoms will be trampled on, but since it gives the majority of people what they want, will be unlikely to be removed.
I will say it again: a global DNC list doesn’t restrict anyone’s freedom of speech, nor do more specific lists. The current list, which gives people the ability to opt out only from certain types of content, imposes on the people’s ability to decide for themselves what kinds of speech are worth receiving. Since the government set the rule that only commercial speech may be so blocked, they have in effect decided what people must be exposed to.
I keep bringing this objection up because NO ONE HAS RESPONDED TO IT. You and Dewey continue to bring up the “we must accept imperfect solutions”, which no one is arguing against, and ignoring the question of rights.
Correct. The Rowan case pretty much lays out that people have a right to “block” unwanted communication. There is no ambiguity here. The main crux of the “DNC List” case is whether giving people the power to limit only certain types of calls is enough to implicate the First Amendment. According to the judge, it is. And upon reading his decision, I agree.
Blowero: Have you read the judge’s decision? If you have, you will notice that he has taken into considerion most if not all of your arguments. If there’s anyone to blame here, it should be the FTC for failing to make rules that do not violate the constitution or at the least for failing to defend their rules against legal challenge. It’s their job to make rules that tow the Constitutional line. The judge’s job is merely to evaluate whether those rules do.
Actually, the answer is in some dispute, which is why there is an appeal pending.
But more to the point, you (again) confuse the legal standards for commercial and noncommercial speech. A “compelling interest” must only be shown for restrictions on noncommercial speech. Commercial speech can be restricted upon the showing, among other things, a “substantial interest” – a much lower threshhold.
And, indeed, everyone, even the Colorado judge, recognizes that the government has met that test: privacy within the home is sufficient to meet the substantial interest test.
The only remaining hurdle is the oddball Discovery Network case, which basically says you can’t have a law that discriminates solely against commercial speech that is ineffective in achieving its goals. But Discovery Network says more than that; it also stands for the proposition that such distinctions do not survive constitutional scrutiny when less restrictive alternatives are available. Since such less restrictive alternatives are not available to the FTC (the only alternatives are more restrictive), reliance on Discovery Network is inappropriate.
To sum up – I think the court makes two errors in its reading of Discovery Network:
I think the court gives short shrift to the difference in efficacy of the FTC rule and the newsrack rule in Discovery Network. The proffered 40-60% reduction in telemarketing calls is much more significant than the 3% reduction in newsracks in Discovery Network. The court weakly cites to two noncommercial speech cases to bolster its argument that the numbers don’t matter, which I think is an apples-to-oranges type mistake. I think the numbers do matter. I think if the numbers had been reversed in Discovery Network – if 97% of the newsracks were commercial in nature – then that regulation would have survived constitutional scrutiny.
There is no less restrictive alternative available here. Unlike the Discovery Network newsrack rule – where a simple limit on the number of newsracks per street corner would have sufficed – the FTC is faced with only one additional option: restricting all telemarketing. The court is forcing the government to use a broadsword instead of a scalpel in the current case, which is not the direction Discovery Network seeks to take us. **
I’m not ignoring anything. The efficiacy point is intertwined with what you’re saying. Commercial speech would be no less restrained under a blanket ban than it is under the current rule. Given that, and given the fact that commercial speech has been accorded a lesser standard of review for a very long time, this type of restraint is not unreasonable – it is a permissible partial solution. **
Oddly, I read Anduril as, if not agreeing with me, at least recognizing that I have a reasonable point. I’m sure he’ll correct me if I’m wrong. **
Promoting the exercise of constitutionally protected rights, especially when they involve the civic virtue of complaining peaceably to government officials, do not violate the rules of this forum.
Heh. So by not having a DNC list at all, the government is also deciding what people must be exposed to – namely, all forms of telemarketing. So a blanket DNC list must be constitutionally mandated. Yee-hah!
Only in your bizarro-world outlook could the DNC list be seen as an “imposition” on ability to decide for oneself what kinds of speech are worth receiving. If anything, the DNC list enhances the ability of people to make those decisions relative to the status quo ante – I used to not be able to decide if I wanted to hear this type of speech at all. Being able to prevent some of this speech is far better than not being able to prevent it at all.
You should re-read Rowan, as well as the statute it inteprets (recodified here).
The postal statute interpreted in Rowan only deals with advertisements that offers items for sale – in short, commercial speech. While it is true that the recipient has sole discretion to decide whether or not the content of the advertisement is offensive, it is not in the recipient’s sole discretion to decide if the mailing offers something for sale.
Indeed, the court points out that mass mailers have access to a hearing where, among other things, they can contest the blocking of their materials on grounds that the materials were not advertisements. As the court put it in describing the administrative enforcement process:
In short, the regulation in Rowan is not unlike the FTC do not call list. It allows individuals to block commercial mailings – and only commercial mailings – from their maiilbox.
** Not at all. By your logic, lack of government involvement is equivalent to complete governmental involvement.
But now the government has become involved by offering the list – it must justify its actions in allowing certain forms of content to be blocked but not others.
At least this new observation – that Rowan affects commercial speech specifically – has some merit. You should have made it before.
And by your logic, a rule that gives me partial control over what enters my house, whereas I had no such control before, is an “imposition” on my ability to decide what kinds of speech are worth receiving. **
Actually, the government need only conform its rules to constitutional precedents, which, for reasons I noted again above (and which you studiously avoided in your reply), I think they have done so. **
I first linked to Rowan back on page three. Why do you need me to read the cases for you?
** You always had control over what entered your house. The problem was that you couldn’t pick and choose.
Now the government is becoming involved. It could have allowed everyone to decide for themselves what types of calls they wanted to be able to receive, or it could have allowed people to block all unsolicited calls.
But the government is only permitting people to block certain calls, not because they bother the people, but because the government has made a judgment about their content.
Why should you read the cases for me? Why don’t you read them yourself – in all the discussion of those cases, you’d never once pointed out that they apply to commercial mailings only, even though that would have been excellent support for your claims.
We both screwed up on that one – it’s just that I’m the only one willing to admit it.
Oh, and Dewey: if you’re going to complain that I’ve insulted you and thus violated the rules of this forum, you should re-read your posts on the third page again. I think calling someone a fool is also prohibited.
The sender may question whether the initial material mailed to the addressee was an advertisement. But once it’s decided that it’s an advertisement, the block can be applied to all subsequent mailings, commercial or not, from this particular mailer. In other words, Rowan affects non-commercial speech as well.
I don’t believe I ever claimed that the FCC “would be sued”, and if I did, I take it back. What I said was that there is a valid concern that they will. I don’t necessarily disagree with your reasoning, TVAA, but since when does that preclude anyone filing a lawsuit? The essential flaw in your argument is that you assume everyone in the country is going to agree with your reasoning, that nobody would file a lawsuit, and that no judge would rule against the DNC list. I’m not going to be so brazen as to say I know for a fact that they would be sued, but I do think it pretty likely. When you’re talking about pure speech, there is a definite tendency for judges to err on the side of protecting the speech.
I didn’t just make this up, you know. The FTC has lawyers who know a lot more than you or I, and they were concerned about the issue. Why do we have to be punished because they decided to be prudent and only try to bite off what they thought they could chew?
I’m glad you’re so sure. Many experts who know far more on the subject than you weren’t so sure.
True, your freedom to cold-call me at home in order to sell me stuff would be trampled on. But my freedom to have privacy in my own home would be protected. A more than equitable trade, IMO.
But the issue is not what you think, it’s whether the FTC felt that there was a risk, and acted to try to mitigate that risk.
Now you just sound like a broken record. Explain to us why it is necessary to move on ALL fronts before one can move on ONE front. Why do ALL problems have to be solved before ANY problem can be solved?
Oh, spare me. The clear dividing line in the postal regulation is commercial versus noncommercial speech. If you’re deemed to be sending ads, you can be blocked; if you’re deemed to not be sending ads, you can’t be blocked.
Yes, the statute is worded such that once you’re deemed to be sending advertising all of your mailings are blocked. That makes sense – the law presumes that if you’ve sent ads in the past, your future mailings are most likely ads as well. There is no need to litigate that question for every single subsequent piece of mail you want to send to a particular mailbox – doing so would render the law practically useless. None of that changes the fact that the threshhold issue is whether or not the ban-triggering piece of mail was commercial in nature.
Point taken. However, my point is, reading the Rowan case and all the other case you cited, there seems to be no constitutional impediment as to blocking any call or mail, provided that it’s the individual who decides and not any government institution. (Unless you can provide a cite that contradicts this assertion. - I’m just basing everything from the cites you provide…hehehe. BTW, thanks for those links. Wouldn’t have been able to find it myself.)
…and that particular type of content judgment – commercial versus noncommercial – is one they are capable of making under existing Supreme Court precedent, Universal Network notwithstanding. **
I can’t believe I’m hearing this. You, who has yet to cite to anything resembling “the law” in support of your arguments or even to demonstrate that you’ve bothered to even glance at any of the cases touching on this issue, are chastising me for my decisions about when and where to cite to legal authority. That’s rich. **
Context, dear boy: you said you were contesting whether the tranquility of the home was a substantial government interest of a type sufficient to justify a restriction on commercial speech. I said you were a fool to do so, because that issue is actually quite clear-cut precedent-wise.
Well, fine – I agree that this might be a very different case if the government was deciding on its own to ban certain types of speech, without any input from individuals whatsoever. But the fact remains that that isn’t the set of facts we are confronted with. The salient point to answer is this: how exactly is the DNC list any different from the mail list in Rowan?
I think the main difference between the DNC list and the mail list in Rowan is that the DNC list blocks any and all telemarketing calls while in the mail list, “blocks” are done on a company to company basis. This is how the First Amendment was implicated in the DNC list. By offering consumers to block an entire class or type of communication, and only that kind of communication, the government effectively chose one type of speech over the other.
Pretty clear to whom? You seem to be the only one assigning evil intent.
You are also assuming that the purpose behind having provided his phone number is to “spam his phone lines with complaints”. Rather than the actual intent, which is to provide the means with which to give feedback.
If a public servant does something with which his consituents do not agree, they, having voted him in, have a right to let their complaints be known.
If you go to a restaurant, and the cook burns your food, you have a right to complain. If he consistantly burns everyone’s food, they’re allgoing to complain.
Since this particular judge has “burned the food” of 50million folksies, they ARE within their rights to complain about it without being labeled as complaining merely to “spam him”.
Can you NOT see the silliness of what you’ve just said here???
If it’s inconvenient against the 50million people who’ve STATED that not only is it inconvenient but that they’d like help from the gov in making it stop, then it’s perfectly okay.
But if we as citizens, in part to try and persuade this judge regarding our opinions about his decision, should inconvenience HIM, then we’re “rude”?
