No, seriously, cite. Please demonstrate that the FCC actually does have the power to set up the list, and that thus the judge’s decision was illogical. Please show that he didn’t apply common sense when he concluded that the law cannot be interpreted to say what it doesn’t say.
The more color, the less neural activity.
Where was I? Oh yes – if the FCC could not carry out this action under existing law, then the law must be changed (presuming such change does not violate certain principles on which our government is founded, yadda yadda). Denying that the law says this because it’s undesirable for it to do so is insane.
Uh ** TVAA**, I don’t want to embarrass you on this widely read forum but the judge I have been talking about is the Denver judge, the one that blocked the congressional law giving authority to the FTC to implement the ban on unwanted solicitations on strictly Constitutional grounds. But you wanted a cite so here’s a cite…
UNITED STATES CONSTITUTION Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.**
See** TVAA**, this amendment protects the right of all men to speak freely. But nowhere, anywhere, does it require anyone to listen.
**(Note: Only seven neurons were required to answer TVAA’s question…four to color, three to answer.) **
FTR, I clearly delineated that I was responding to the Colorado decision premised on the first amendment, not the New Mexico decision based on a statutory technicality (a technicality which was quickly remedied by Congress and will be signed by President Bush in short order).**
Your invocation of Orwell is misplaced. Orwell was writing about insular, unaccountable government officials who used sophistry to cow a willing populace into submission without regard to that populace’s actual wants and desires – not unlike the federal judiciary in this case. **
So acts of constitutionally-protected political protest are wrong? It is wrong to contact government officials and let them know you think they’ve made a mistake? You find that immoral?
And you have the temerity to call me Orwellian? **
Put simply, the judge puts too much stock in Cincinatti v. Discovery Network (which, admittedly, is itself overbroad). The court would, ironically, bless Congress’ outright ban of unsolicited telephonic speech, but rejects efforts that attempt some measure of nuance to the ban. Prior caselaw, Discovery Networks notwithstanding, clearly gives commercial speech fewer first amendment protections than political speech. The government ought to be able to choose to regulate this less-protected speech without also deciding to regulate political speech. **
** You claim the judge is resorting to sophistry to cow an unwilling populace into submission without regard to its wants and desires?
Oh brother.
You want the FCC to, on its own initiative, extend its authority beyond that granted to it, merely because a large number of people desires it to do so. No wonder you view the decision as based on a “technicality”.
** Just because something is constitutionally protected does not make it ethically correct. You’re trying to get people to harass this man because he reached a conclusion you don’t like. You haven’t shown that his conclusion was improper, or not based on sound legal theory – you just want him to reverse the decision so you’ll get what you want.
That is immoral.
** Fine. But if the government agency attempting to do so doesn’t actually possess the requisite authority because of a law or set of laws, those laws should be changed. We shouldn’t simply ignore the laws in question because they’re an obstacle to attaining our goals.
No, I was using a bit of hyperbole in response to your ridiculous invocation of Orwell. Next time I shall use a smilie so as not to confuse you.**
You are again confusing the Oklahoma case (upon which I have not commented at all except in passing, although I did erroneously call it the New Mexico case) with the Colorado case. Two different courts in two different states with two different judges, both of which reached two different legal conclusions.
The Oklahoma case dealt with the vesting of authority to implement the Do Not Call List with the FTC (not the FCC), holding that the FTC had exceeded its authority. That opinion is defensible as a matter of statutory construction. It is also easily remedied, and in fact has been remedied – after the decision, Congress quickly passed a bill authorizing the FTC to implement the list, and Bush is expected to sign it in the next few days.
On the other hand, I have been talking about the Colorado decision. The Colorado decision is not premised on the authority of the FTC to implement the list, but rather on dubious first amendment grounds. **
If that is immoral, then all forms of protest are immoral, because all protests are meant to object to conclusions by government officials that the protestors do not like.
It is also incorrect that I haven’t shown (or at least explained) why I think the Colorado decision was incorrect; I clearly laid out my argument in abbreviated form in my last post. **
Again, here you are referring to the Oklahoma case, upon which I have not commented, and which is moot for all practical purposes thanks to the swift action of Congress.
It’s also off-topic for this thread, since the OP specifically sought to deal with the free speech aspects of the Do Not Call list, and not with the much more technical question of FTC authority.
** Okay, you ARE a sophist after all. I suppose you’re the type of person who TPed the houses of teachers who assigned difficult homework in high school.
Actually, you said that for those calling the judge, “harassment charges might be appropriate”. So your repeated accusations of “intellectual dishonesty” are misplaced.
You also came up with this gem:
and followed it with:
So calling the judge is perfectly justified, under the same rationale you use to justify telemarketers. No one is forcing the judge to pick up the phone when I call him to protest his decision, either.
So if, in your judgement, it is wrong to call the judge in protest, it must be equally wrong for telemarketers to call me, and you must feel that the judge has been proven wrong after all.
** Trying to get a group of people to call the private home of a person in the public eye and complain about a public policy is as unfair and vindictive as purposely sending hundreds of emails to a person’s account to block their service.
** There’s no law against you calling this man. I suspect there’s no law against having hundreds of people call him on the same subject. It’s still extremely rude.
** It’s pretty clear that the intent of giving out the judge’s phone number is not merely so that people can make their opinions. The idea is to spam his phone lines with complaints.
So far, I’m not impressed by your reasoning. Do you start with the conclusions and work backwards?
Honestly, TVAA, can’t you even get basic facts right? First you confuse the two cases at issue, now this.
I did not give out judge’s home number. I gave the phone number of his office at the courthouse, which is publicly available on the district court’s home page. That, and not his residence, is the appropriate place to direct complaints about the judge’s decision, just as surely as you would call your congressman’s office to complain about bad legislation.
Unlike telemarketers, I don’t believe in bugging people at home. **
So whenever people are encouraged to call their congressperson en masse on a particular issue, they’re being rude?
Because charities do not constitute commerical speech. The FTC was actually afraid that if they included non-commercial concerns in the DNC list, that the rule would be challenged on First Amendment grounds. It’s a strategy that may or may not have backfired, depending on whether this ruling is upheld on appeal.
The “difference” is that one is commercial speech, and one is non-commercial speech. Did you understand what I said about them being subject to a different legal standard? I understand the judge’s reasoning, but I think it may be flawed. Not all “speech” is equal in the eye of the law. For example, you are allowed to say certain things about public figures with impunity that would be considered slanderous if said about a private citizen who is not a public figure. The “only difference” is that one person is famous while the other isn’t. Yet the two kinds of speech enjoy a different legal standard.
It doesn’t necessarily matter if the “only difference” is whether it’s commercial or non-commercial speech. It’s an important difference. A salesman’s pitch is not ENTITLED to the same level of constitutional protection as non-commercial speech. Traditionally, they are not treated the same.
To be sure, some in this thread are not understanding it. I, however, do understand. But I actually think there’s a part of this that you aren’t understanding.
Exempting non-commercial speech wasn’t a “goof”, it was most likely a strategic decision to try to prevent lawsuits. The FTC admitted that they were concerned about a possible First Amendment issue if they included non-commercial speech. It’s somewhat ironic that the decision has now resulted in a successful First Amendment challenge, but if they were to go back and change the rules, the original concern will still be there. The FTC is quite simply “damned if they do and damned if they don’t”. IANAL, but in my opinion, their best strategy now is, first thing, to push to get the ruling overturned, NOT go back and try to incorporate non-commercial speech into the rules. My bet is that’s what they will do. The Oklahoma case was easily remedied by rewriting the law, but the Denver case is not as simple to deal with.
Another thing that I think some people who aren’t familiar with how the law works are failing to grasp is that these things aren’t nearly as cut-and-dried as one might think. This is not some iron-clad logic that can only be decided one way. If a judge really wants his decision to come out a certain way, there’s plenty of wiggle room. It’s all a matter of which precedents and which principles of law are emphasized. A lot of experts are expecting this ruling to be overturned; it wouldn’t be hard at all for another judge to make a case the other way.
** Both judges seem to be doing their job, and you’ve presented a poor case for why either decision should be considered incorrect. But you’re right about this point – I’d forgotten the phone number was for an office, not a home.
Point granted. Sorry. Please accept my apologies.
It’s the en masse part I’m complaining about. You’re not encouraging people to communicate with this judge, you’re trying to nibble him to death with phone calls.
Also, I’m not sure calling a judge to complain about a ruling is appropriate. Congressperson? Sure. Judge?
I can’t speak for the otehrs, but I’m aware this is how the law works. I think it’s terrible. Why bother having laws if they can be interpreted to permit two mutually contradictory results?
For those of you, who are under the misconception that so-called “commercial speech” enjoys the same Constitutional protections as political speech, let me ask you:
When is the last time you have seen a cigarette commercial on the “tube”?
The judge that struck down the FCC’s “do-not-call list”, as a “equal protection” violation, is just another example of judicial activism propogated by selective “interpretation”.
I notice you haven’t bothered to critique the reason I gave for why I think the court’s decision was wrong – you’ve just said it was a “poor case” and left it at that. That’s shallow debating on your part: if you can’t tell me why my view is wrong, then you really have no business telling me I’ve done a poor job. **
People mount phone drives to call congresspersons and the White House all the time. The “en masse” is what makes it effective: it registers that this complaint is not just from one or to malcontents, but represents a real and palpable dissatisfaction on the part of the people. **
Why not? Judges are government officials, just like any other. They are not high priests set apart from the rest of the hoi polloi. People can and should make their views known to judges just as they should to any other official.