Yes, I have read the decision, and I agree with Dewey’s criticism of it. Not only does Judge Nottingham acknowledge most of the arguments I am making, he concedes them. He concedes that different types of speech are subject to different legal standards, and he concedes that the government is not required to move on all fronts in order to move on one front. In fact, his decision hinges on only the second prong of the 3-prong test in Central Hudson, i.e. “Do the Amended Rules Materially Advance the Substantial Interest Articulated by the FTC?”, and this is where he errs, IMO. As Dewey has pointed out many times, the judge compares the present case with the case in Discovery Network, where the judge ruled that a ban on commercial handbill racks did not materially advance the city’s interest in beautification, because the commercial racks only comprised 3% of the total number of racks. In other words, it wasn’t enough to do any good. If we were only talking about 3% of telemarketing calls being stopped, then the case would be on point, and probably nobody would give a rat’s ass whether the law went into effect or not. But we’re talking about much more than 3%, so Discovery Network is quite simply not on point here. Judge Nottingham then tries to justify using this precedent by conflating two points. Under the heading “Do the Amended Rules Materially Advance the Substantial Interest Articulated by the FTC?”, he goes on to argue that content-based distinction is improper. BUT THIS IS NOT EVEN THE ISSUE AT HAND. In simplified non-legal terms, the issue is “will it so any good?”, not “is it fair?”. “Is it fair?” is a seperate issue that has already been conceded. He then concludes, based on this unrelated point of content-discrimination, (which he has already conceded is not per se a fatal flaw in the law), that the “substantial interest” has not been materially advanced. It’s a logical nightmare.
I think you’re conflating mere logistical differences with substantive constitutional matters. Both laws allow consumers to block a certain class of communication; both laws thus implicate the first amendment. I can’t see why one should stand while the other falls.
Nitpick: federal judges are appointed, not elected.
Not that that changes things. They are still public servants, and the public still has the right to air their complaints over decisions with which they disagree.
IMO, that is a big difference. In Rowan, the government is effectively saying that you can block mass mailers you don’t like only after the initial mail and upon your own evaluation, the DNC list gives you the choice of blocking ALL telemarketing calls without the initial call, without the evaluation. I agree that this is not of itself violative of the first amendment. But when there is no option to block other calls that can be easily and legally blocked in the same manner, it’s tantamount to an endorsement that skews consumer choice, which I believe violates the First Amendment.
Indeed. The problem isn’t that commercial advertisements on people’s lawns are generally illegal while endorsements for political campaigns are permitted. The problem is that people are being given the ability to block out commercial messages for themselves, but not political or charitable ones.
There is no option to block mass mailers sending noncommercial materials to your home, even though such mailings could be “easily and legally blocked in the same manner” as that used for commercial materials under the Rowan regulation. Why is that not an “endorsement that skews consumer choice”? The government is, after all, giving an option to consumers for commercial mailings that it does not provide for noncommercial mailings.
The fact that consumers have to deal with mailings on a case-by-case basis rather than on a blanket list basis does not change the fact that it is, at the end of the day, consumers making the determination as to whether or not to block certain materials from their home. I think that’s a red herring that doesn’t elevate the constitutional scrutiny applied to the DNC list.
Again: the postal regulation also gives people “the ability to block out commercial messages for themselves, but not political or charitable ones.” You can block the ad selling argyle socks, but not a fundraising letter for Billy Bob’s political campaign. If it’s a “problem” for the DNC, then it’s also a “problem” for the postal regulation.
Okay, you’re right. There is no big difference between Rowan and the DNC list as far as blocking commercial speech and the lack of “blocking choice”. Let me delve on this a little more, and I’ll get back to you. I’m still uncomfortable with this “singling out” of lawful commercial speech. Maybe Rowan should be revisited, then? Apparently, this particular angle was never brought up in that case by the appelant.
Ah, but we can’t use logic or reason to evaluate court decisions, remember? We’re bound by tradition.
(Until enough people get together to force tradition to change, in which case we’re just bound to the new tradition. Isn’t the law wonderful?)
Oh DERRRR!! Thanks for reminding me, I WAS thinking of city judges for some odd reason.
But yes, my main point was what you stated in your second sentence above.
A lower court is bound by the decisions of a higher court. Stare decisis sets the parameters under which lower courts must operate, for the reasons described earlier in this thread. That doesn’t mean logic and reason are thrown out the window; it just means that prior decisions essentially set the premises that a lower court must use in determining the outcome of a given case.
You seem to be conflating your desire to criticise of existing precedent with a desire that lower courts flatly ignore those precedents. It’s a mistake you ought not make. If you think Central Hudson or Discovery Network or Rowan or any of the myriad Supreme Court cases establishing that commercial speech is subject to different rules than noncommercial speech, then fine. Criticize away; I certainly do – I think the Supreme Court has gotten things wrong on many occasions. But don’t mistake your criticism of existing law with the obligation of a lower court judge to guide his decisions by that existing law. To do otherwise is simply beyond the power vested in his office. **
Beats the alternatives that have been tried elsewhere.
I’m still looking forward to hearing concrete proposals from you for improving the way the judiciary works.
Resurrecting this to say Boo-ya!
perhaps you could do it again in a language that those of us who don’t speak “new-york-times-subscriber” could understand?