“I’m annoyed by telemarketers calling me. Therefore, this judge must have made a mistake when he reached his decision. Therefore, I’ll call him so often that he’ll be annoyed and appreciate how difficult it is. That’ll make him change his mind!”
Nice.
It’s clear that the government has the right to put some restrictions on certain forms of commercial speech. For example, companies who lie about what’s in the food they sell are in for some problems. That doesn’t mean that they can’t air commercials that are misleading or appealing. Certain health-threatening products are banned from specific advertising venues. I disagree with this decision, but it is a precedent.
But at the moment, no one has the right to refuse to receive information from someone else except under very specific circumstances that don’t arise here. If people don’t want solicitors, they can hang up signs, and anyone walking around is banned. If they don’t want to receive calls from people trying to get them to do something, we can have a list for that. But exempting requests for donations from political parties and charities is unjustified. There isn’t a great deal of difference between trying to get someone to send money for a product instead of a cause.
** No, you’ve missed my point. Dewey is claiming that political speech is distinct from commercial speech. Then he suggests making the judge realize that his distinction is invalid by bombarding him with political speech. Yeah, that’ll teach him how annoying uninvited commercial speech is!
** What irony? How does blasting the judge with political opinions on his rulings demonstrate that greater restrictions should be placed on commercial speech? If anything, you’re only making him wish he could restrict your political speech.
** Whether you have that right depends on the Constitution. Whether you’re given that right depends on how the Constitution is interpreted. This judge had reached the conclusion that existing Constitutional protections on speech do not give the government to right to allow people to opt out of one form of speech but not another.
** And would that law contradict a principle in the Constitution, or not? The default is unrestricted speech – each restriction needs to be justified.
If there isn’t a specific law against a form of communication (which is justified) then the First Amendment allows it. In order to create a law limiting speech, a compelling need must be demonstrated. According to this judge, a strong case for considering charities and political groups as different from commercial telemarketers has not been made. All of the groups might call at inconvenient times, and they all might call repeatedly. Only the content of the speech would differ, and even then, not by much.
I don’t object to a list of people who have requested they not be contacted for solicitation. I – and this judge – object to a list that makes distinctions between the nature of the solicitation.
Actually, it seems obvious that everyone does the right to refuse to receive information from someone else, except under very specific circumstances that don’t arise here.
Or I could have a sign that says “No solicitors, except for charities and those seeking political donations”, and then I’d have the physical equivalent of the do-not-call list. Would you be opposed to such a sign?
He’s failed to explain why we can restrict commercial speech that annoys us but not requests for donations. Precedent doesn’t cut it – why did those judges in those cases hold their positions?
So tell me – what is the difference between a request for money for a cause and a request for a product? Why can the government say one is appropriate and the other not in the same medium?
** Really? You have the right to refuse junk mail? You can go down to the post office and tell them that you will no longer be accepting commercial mail? Tell me more – I’d take advantage of that.
You can, of course, always throw away the mail, or refuse to have mail delivered. You can hang up on telemarketers after telling them not to contact you again, or unplug your phone. You can’t expect the phone company to allow only “authorized” people to call your number any more than you can expect the post office to send you only “authorized” mail.
If some person set it up? No. The person could just as easily have chosen to set up a “no solicitors” sign to screen them all out.
Correct me if I’m wrong, but there’s only one version of the DNC list at present, yes? It doesn’t screen out charities and political groups. If the FCC had multiple lists, I’d consider that acceptable. But it only has one, and that single list includes a judgment which the FCC is making about the types of information transfer which people can choose not to accept.
But he can. As I said before, courts (not surprisingly) have traditionally ruled themselves to be immune from political protest.
Yes, we know the judge’s reasoning, and we’re saying he’s wrong.
Not true. As the old adage goes, you do not have the right to yell “Fire!” in a crowded building. The onus is on the court to demonstrate why the law is unconstitutional, and why freedom of speech should trump right to privacy in this case. If the judge has done a poor job of this (which I suspect he has), it’s going to be overturned.
I don’t understand how it is that in a previous paragraph, you ACKNOWLEDGE the distinction between commerical and non-commercial speech, then in this paragraph, say there is no distinction.
You are continuing to display your ignorance of how the judicial system works. In our system, precedent IS law. A judge cannot ignore precedent any more than he can ignore statutory law.
And this is not some arbitrary distinction - it is eminently practical and grounded in common sense. It’s ridiculous to contend that a guy who is trying to sell me a penis-enlargment pump ought to be afforded the same level of constitutional protection as someone who is, for example, attempting to communicate ideas regarding social justice or environmental conservation.
The question is, why CAN’T they? The law says you can’t call to sell me something if I’ve asked not to receive such calls. Why should it be struck down just because it doesn’t regulate other types of calls? That’s like saying a speed limit statute is no good if it doesn’t also prohibit U-turns. If they want to pass a law regulating non-commercial laws, they can. Why should that invalidate this law?
Isn’t this a “reasonable time, place, and manner” issue? For example - In my state it is illegal to send an unsolicited commercial fax. It, of course, is not illegal to send that same information through the mail. What’s the difference? In the first case the commercial sender is using my fax line, my fax paper, and my ink to send his commercial message to me. In the last case he is using his postage, his paper and his ink to send me the same message.
In the case of telemarketers, they take advantage of the telephone service you purchased – a service you purchased for a different reason than receiving telemarketing calls — and they occupy time you intended for purposes other than answering telemarketing calls ------ so, as John Mace (I think) said earlier in this thread – ‘why can’t these calls be blocked at the gate’ by simply indicating that this paid for telephone service isn’t available to telemarketers. This doesn’t block their commercial speech – it just makes them pay the costs –
** Fascinating. Makes sense, too – or every idiot with an axe to grind would be trying to pressure the judges into changing their rulings.
** Yelling “fire” in a crowded building endangers human life pointlessly. And since the “right to privacy” doesn’t even appear in the Constitution and is entirely a judicial construction, the standard that needs to be met to show that the freedom of speech trumps it isn’t stringent.
** Because I didn’t acknowledge the distinction. You’re seeing what you want to see. Again: there is a difference between calling someone to communicate and spamming someone over and over with the same message. A telemarketer who calls once belongs to the first category; a person (hypothetically) calling a judge repeatedly to complain belongs to the second.
I agree. This is quite reasonable – although the cost of screening telephone calls is less than dealing with unwanted faxes, it’s still much higher than screening mail.
If the list applied to all solicitations (at a minimum) or there were multiple lists (better), I’d support them.
** I know. That doesn’t make it any less stupid. An unreasonable decision that contradicts both logic and sense can become enshrined in law because it sets the precedent.
The requirements of reason are much higher than the requirements of law (all the worse for us, IMO).
** Why?
Asserting “It’s common sense!” doesn’t convey a principle we can analyze. Why shouldn’t this man trying to get you to give him some of your money have less protection than some other person trying to get you to give him some money?
No, it’s like saying that the speed limit doesn’t apply to cars driven by non-profit organizations.
I think my prior posts were perfectly acceptable as back-of-the-envelope arguments. But since you apparently wish to hear a more fulsome discussion, I’ll give you the following:
BACKGROUND
The parameters of the first amendment are shaped by prior case law. Reference to what prior case law says is thus not only proper, but integral to any sort of legal argument on this topic. And the fact of the matter is, under longstanding Supreme Court precedent, commercial speech is accorded lesser protections than political speech (indeed, prior to the 1970’s, commercial speech was accorded essentially no first amendment protection). Restrictions that would be wholly impermissible for political expression are permitted for commercial expression.
The test for the permissibility of restrictions on commercial speech is set forth in Central Hudson Gas & Electric v. Public Service Commission. It holds that, for a commercial speech restriction to be valid, it must (i) concern an illegal activity (ii) curb misleading speech, or (iii) deal with a substantial government’s interest, directly advance that interest, and be no more extensive than necessary to serve that interest. We are clearly not dealing with items (i) or (ii), so our focus must remain on (iii). The described intermediate level of scrutiny for item (iii) is far short of the strict scrutiny applied to noncommercial speech regulation, under which the government interest must be “compelling” and the regulation “narrowly tailored” to serve that interest.
No one contests that that the protection of privacy and tranquility within the home is a substantial government interest of a type sufficient to justify a restriction on commercial speech. Thus, the only questions for Central Hudson purposes is whether the do not call list directly advances the government’s interest, and whether it is an overly extensive means of furthering that interest.
THE COLORADO DECISION AND DISCOVERY NETWORK
The Colorado court (note: PDF) held that the “do not call” list amounted to unconstitutional content discrimination. It based its opinion heavily on City of Cincinnati v. Discovery Network, Inc., a 1993 Supreme Court case overturning a Cincinnati law banning commercial newsracks (e.g., those containing handbills and the like) from the sidewalks, but permitting newsracks containing noncommercial expression (such as newspapers).
Key to the decision in Discovery Network was the very small number of newsracks devoted to handbills relative to the total number of newsracks; only 63 out of 2,000 newsracks were devoted to handbills. The court held, in part, that the very small number of handbill racks meant that the commercial speech only restriction did not sufficiently directly advance the government’s interest in an aesthetically pleasing public square. That is not the case for the do not call list: the Colordo court accepts the FTC’s estimate that forty to sixty percent of telemarketing calls are commercial in nature; thus, the privacy interest advanced by the list would be significantly advanced – forty to sixty percent is a significant number. The Colorado court even admits as much, noting that underinclusiveness alone is not per se constitutionally fatal.
The Colorado court then cites to two non-commercial speech cases (R.A.V. v. St. Paul and Regan v. Time, Inc.) for the proposition that content discrimination is not tolerated under the first amendment. It then turns to language in Discovery Network that describes the newsrack ban as “content based” because it makes a commercial/noncommercial distinction, and says that such a content based distinction is impermissible without neutral rationale. On that ground, it finds the do not call list to be constitutionally impermissible.
But in doing so, it waves aside surrounding language in Discovery Network that indicates the newsrack ban was impermissible in part because the court saw a reasonable, less restrictive alternative available to improve sidewalk aesthetics: Cincinnati could simply limit the total number of newsracks allowed on the sidewalks. Such an alternative is not available to the FTC in its goal of protecting the privacy and tranquility of the home – the FTC clearly cannot limit the number of telemarketing calls sent to a person on the list on a given day, because the telemarketers are operating independently. The only option is in the direction of more restrictiveness. Unlike Discovery Network, there is a reason for using the commercial/noncommercial distinction beyond the mere “low value” of commercial speech: it is the least restrictive option available that still allows the FTC to fulfill its stated interest.
On that ground, I think the Colorado court erred in deciding as it did; it could have upheld the do not call list without running afoul of Supreme Court precedent.
ADDITIONAL CRITICISMS
Although it would be beyond the purview of a district court to do so, Discovery Network should be revisited by the Supreme Court. It is something of an oddball case; overturning it would not upset deeply rooted precedents. And the results it encourages are simply bizzare: it says the government can’t use the distinction between commercial and noncommercial speech in carrying out the public interest. That dichotomy forces the government to use a broadsword rather than a scalpel in enacting public policy, restricting all speech, however valuable, in carrying out its goals. And that is bad law because it leads to bad public policy.
It also straightjackets the government in dealing with these sorts of issues. Ther is a very real, legitimate concern over the restriction of political speech in a blanket do not call list – the application of strict scrutiny might well render such a law unconstitutional. Discovery Network effectively penalizes lawmakers for showing genuine concern for important constitutional distinctions. That is not the direction we ought to move in. **
It is laudable when people are encouraged to call their congresspersons en masse to complain about pending legislation they disagree with. Why should it be any different for judges? They’re public officials, too.
By your standard, we’d have to debate every little nitpicky question of the slightest relevance to reach an opinion. We’d have to debate why the federal courts can hear questions of constitutional import, rather than just citing to Marbury v. Madison. We’d have to debate why Congress has the power to pass these rules, rather than just citing to the commerce clause and the many cases interpreting it. Were this a state law (and many state have similar do not call lists of their own), we’d have to debate why the first amendment applies to them (by the amendment’s own text, it only applies to Congress), rather than simply citing to the cases establishing full incorporation of the Bill of Rights to the states.
The principle of stare decisis is a good one. It allows for stability in the law, and relative consistency from one court to another. It’s much better than approaching each question tabula rasa.
Or we could reference basic legal principles and derive our conclusions directly from them. That would also lead to stability and consistency. It would also allow philosophical coherence between the letter of the law and its meaning. But that would probably be too straightforward and easy – after all, if the law can only be validly interpreted one way, we wouldn’t need so many lawyers.
Well, at least we have some substantive argument now.
** I’m contesting that. More specifically, such an interest logically applies to types of speech other than commercial, and placing a restriction only on commercial requires a distinction that the law has no just cause to make. People can be annoyed and harassed by non-profit telemarketers just as easily as for-profit, yet the current scenario restricts the first and not the second. Either ban everyone, or allow people to choose between multiple lists.
Ah, yes, and if only we could all agree on what exactly those principles are, and what to do when they conflict with one another. What a wonderful, swell, fantastic and utterly boring world that would be.
Grab a clue. The law is ambiguous becaus life is ambiguous. Law, like life, reflects competing values and opinions. **
You had it before in abbreviated form.**
Then you are a fool. For starters, neither of the parties before the judge contested the validity of the FTC’s claimed interest – within some narrow exceptions, a judge won’t rule on an issue that is not raised by the parties before him. That was my point in noting that no one contested the validity of the government’s interest.
Further, it would be a fool’s errand to contest it. Residential privacy has long been recognized as a valid interest for government. Furthermore, lesser interests have also been recognized as valid – for example, even though the newsrack statute in Discovery Network was overturned, the court nonetheless recognized that the aesthetic of the public square was a valid interest for purposes of Central Hudson analysis. **
Again, the first amendment has long been recognized as according greater value to noncommercial speech than to commercial speech. The first amendment’s free speech clause’s inclusion in the Bill of Rights was made principally to protect the individual’s right to participate in the political process. In our scheme of constitutional values, political speech is thus considered more important and worthy of stricter protections than commercial speech. **
The government is not required to make progress on every front before it can make progress on any front. To so hold would make the perfect the enemy of the good.
An all-inclusive list, or multiple lists, may well be superior solutions, but that fact alone should not prevent the enactment of a good law.
Again you miss the point. That’s an example I used to demostrate the larger point that freedom of speech is not an all-encompassing right. I’m trying to get you to understand that freedom of speech is situational. You are free to say what you want, but you are not necessarily free to say it in every conceivable situation. I gave you just one example of that, and I could give you a hundred more examples. When you pick apart the one example, you completely miss the larger issue.
Now you’re completely losing the train of thought. You seemed to be implying that there is some sort of automatic presumption that a given law is unconstitutional until it is proven otherwise. I’m saying that’s false; we aren’t talking about how “stringent” any standards of proof are.
Hmmm…alright. I thought when you said this:
that you were acknowledging a distinction between commercial and non-commercial speech.
Who said anything about the same person repeatedly calling? Why couldn’t it be a large number of people each calling one time?
Amazing! When we point out that our position is supported by legal precedent, you complain about the capriciousness of such reasoning. But when I point out that the principle is practical as well, you make the opposite complaint.
That’s a silly way of putting it, but let me try to explain it to you anyway. Perhaps you would understand the importance of free non-commercial speech if you didn’t live in a country that allows it. Imagine that you live in a country ruled by a ruthless dictator, where dissent is mercilessly put down. In such a situation, you might not be allowed to speak to others about changing the system - perhaps trying to convince others to support the opposition and remove the tyrant from power. Do you see how such speech would have considerably more importance than “Hey - buy this penis pump!”? Or let’s say a human rights organization exists in this fictional country that attempts to help those who are unjustly imprisoned and tortured by the government, but they are not allowed to solicit donations to help their cause, and are therefore rendered unable to assist these victims. Can you see how such speech, even though it may involve asking for money, is of much greater importance than “Hey, sign up for this credit card!”?
Our judicial system has traditionally held that non-commercial speech should be afforded more protection than commercial speech, and in spite of your opinion to the contrary, there are very real and logical reasons why this is so.