Telemarketing and Freedom of Speech

It’s been a long time since I studied Constitutional Law, but this don’t seem right to me.

I don’t see a problem with legislators treating commercial speech differently from non-commercial speech.

I predict that this ruling will not stand on appeal. An old lawyer once told me: Judges don’t always follow precedent, but they usually follow the election results.

I don’t know about the rest of you cats, but if this gets struck down, I will happily get behind a constitutional amendment to carve out a little free speech exception on this one.

I’m pretty sure the founding fathers didn’t anticipate annoying phone calls interrupting dinner.


That would be a great solution, but I suspect it’s one that won’t fly. Some political organization would inevitably sue. It’s a Catch-22; exempting political speech, which I think arguably could be considered protected speech, results in this unequal treatment argument.

That was my thought as well, but I’m not a lawyer. It just somehow seems wrong to me that telemarketing should be considered protected speech on a par with political speech. Do people really have a CONSTITUTIONAL RIGHT to cold-call me at home to sell me aluminum siding?

IANAL, but I think this is more or less in the ballpark:

Commercial speech used to be protected to a much lesser degree than speech on political and social issues. Since roughly the 1970s, the courts (including the current Supreme Court) have been chiseling away at the difference.

This case isn’t that important to me in and of itself, but it highlights the importance of preserving the distinction. There’s less of a societal need for fully protected commercial speech; IMHO there’s a very real societal need to regulate same; and it’s hard to discern that the Founders had commercial speech in mind when they wrote the First Amendment free speech protections.

I don’t see how protected speech has anything to do with this. No speech is protected from the censorship of private citizens on their own property. You make a phone call to me, you’re utilizing my equipment. Your speech while utilizing my equipment is not protected in any way, shape, or form. Not commercial speech, not political speech, none of it.

Yes, and this includes my right to pick and choose what speech I will listen to and what I will not.

If, by signing up for the do-not-call list, I am discriminating against commercial speech and not charities and politicians, there is no reason I should be prevented from doing so. If I post a sign at my front door reading, “No solicitation, except for politicians”, and a vacuum cleaner salesman sued me, I would hope he would be laughed out of court.

Unless he had his case heard before this Nottingham clown, apparently.

I agree, post this judge’s home phone number somewhere. God forbid I should be deprived of my free speech right to let him know what I think, just because he doesn’t want to hear from middle-aged lunatics off the Internet.


Thanks, MEB

The lawyer I work for is kind of a 1st Amendment buff (even though it’s not his practice). I asked his opinion on this case, and he said there is definitely a legal distinction between commercial speech and pure speech. He was of the opinion that the Denver judge’s ruling was pretty weak, and would most likely be overturned. Let’s hope he’s right. He also made the point (which I believe has already been brought up in this thread) that judges don’t exist in a vacuum, so the overwhelming public sentiment against telemarketing is bound to have an influence.

I’m wondering if this is an issue mainly between comercial calls and charity calls. Charity calls are not (necessarily) political, so it might be argued that the gov’t has treated two types of non-political speech in different ways.

What some people fail to grasp is that the judge in this case is not saying that people can’t block phone calls from enterring their homes. He’s saying that the gov’t has slanted the process for doing so in such a way that it is an unfair burden on certain types of callers. (I’m not saying I agree with him, but that is his point.) I wonder if many people who signed up for the DNC list would not have done so if charitable and political calls were also included in the blocking process.

But this whole thing just flunks the common sense test. Surely there must be some way for people to legally stop telemarketers from calling them.

Make the list blocking all cold calling, or at least for both charities and salesmen. Or set up two lists, one for charities, and one for salesmen.


Why does it flunk the common sense test? Because over 50M phone numbers are on the DNC list. That probably represents enough people to ensure the enactment an actual consitutional amendment if necesary. And we’re talking about people being able to control what enters their own homes.

Why must there be some way to get this law passed? See the above re: common sense.

Oh, right. I forgot that we live in a civilization where if enough people want to do something, they’ll make it legal.

You missed my point. If enough people want something, they can make it part of the Constitution. That’s called costitutional democracy, and it actually works quite well.:slight_smile:

Like to call during dinner.
Do not call me. Please!

Unless there is an overriding ethical consideration, laws should be based on what the majority wants.

Most of the time, there is an overriding ethical consideration. I fail to see what that consideration would be in the case of telemarketing.


And who gets to decide when there is an overriding ethical consideration?

I doubt that the majority of people who signed up for the list have given a second thought as to whether it’s legal, or even whether it’s right. All they care about is that they don’t wish to receive telemarketing calls.

I’m not particularly concerned about this example, but the general attitude being manifested in this case: that we should never be inconvenienced by the law.

There is.

Make it an opt-in list.


Change “overriding ethical consideration” to “constitiutional prohibition”, and then you’ve got it right.

What Captain Amazing said, increased by 50%:

The government sets up a website for DNC listing. Respondents can click on any of three types of calls they wish not to have: 1) Commercial; 2) Charity; 3) Political.

Any problems with this?

No, because the Constitution is just a law, and is just as dependent on majority opinion as any law.

TVAA seemed to be suggesting that something can’t be made illegal just because people want it to be illegal. But as long as it violates no ethical code, I see absolutely no reason for the majority not to win out.


If you think there is, put it out there. Tell what that ethic is that’s being violated. Say why it’s wrong.

The majority of the people who signed up for the list don’t care if it’s legal, that’s certain. If it’s illegal, it can be made legal. And I’d wager that the very great majority of them (including me) would say that it is completely morally sound.

I’ve never heard anyone even attempt to make an argument about a do not call list being ethically wrong. I don’t think there is an argument to be made, but if you have one I’d be more than delighted to hear it.