Nice try, Dewey, but that only allows people to avoid receiving materials that are “erotically arousing or sexually provocative”.
Most people cannot honestly request that they stop receiving ads for argyle socks under this law.
** No, law is ambiguous so that it can be better manipulated to suit the needs of the moment.
When the phrasing of the law does not allow it to be objectively applied, the opinions and biases of those who enforce it will come into play, as a genuinely ambiguous law cannot be applied at all. When subjective opinion enters into law, it makes it impossible for everyone to be judged under the same principles, obliterating the principles of justice which the system is intended to espouse.
No, I had it with the pertinent information removed.
** I contest it; thus, your statement is erroneous.
** Ah, but a compelling interest that can arbitrarily override some forms of speech but not others?
If the government bans a stand of magazines, newspapers, and candy at a location, it must also ban stands offering free information about ecological destruction or political candidates, unless it can demonstrate that it has a compelling reason to distinguish and discriminate between the forms of speech.
** The government is required not to tolerate error merely because it is inconvenient to recognize and fix. To do so would make the convenient the enemy of the good.
Which this is not.
** Unbelievable.
I understand that freedom of speech does not allow any form of speech to occur at any time at any place. However, the government must be able to justify restricting speech in any particular situation. Merely saying “the government can restrict some speech, so it must be able to restrict speech in this situation” is invalid.
** The law cannot be presumed to be constitutional merely because it exists. In order to be evaluated by the courts, the constitutionality of a law must come into question; it is neither presumed valid or invalid until a judgment is reached.
** Of course there’s a distinction! Unless we were stupid enough to disregard the meaning of words, those distinct references refer to distinct concepts! There’s also a distinction between speech that supports candidate A and speech that supports candidate B.
But the government is not authorized to restrict speech according to all possible distinctions, merely some of them. The problem here is that the FCC is making a judgment about the types of speech people can choose to not receive. In Dewey’s referenced law, whether something is “sexually arousing” is left up to the judgment of the receiver. (I doubt this law is ever enforced as written, but I’m going by its stated form instead of what people “interpret” it as.) But now people cannot choose not to receive annoying and harassing calls from an organization affliated with a political campaign, since there’s only one list.
You’re suggesting that it should be illegal for unassociated individuals to all attempt to contact a person? If you call a person, and many other people are also doing so in close succession, you’re guilty of a crime and can be force to pay a fine?
This is a joke, right? Please tell me that you didn’t actually intend to ask these questions.
Guess what: the law cannot guarantee that you won’t be annoyed by people validly and responsibly using the phone system to contact you. If ten thousand people somehow independently take it into their heads to contact you, and your phone is ringing night and day, you can either live with it or disconnect it. That’s life.
** No, I object to such ill-defined concepts as “common sense” being used to support the interpretation of law. Without being more specific, we have no way to evaluate your interpretation. Besides, my “common sense” says exactly the opposite of what you claim. Which common sense should be accept, and which should be reject?
** To whom? Perhaps I’m far more interested in getting a new credit card than overthrowing the system.
If the list banned all solicitation, that would not involve an overreaching of power on the part of the government. It wouldn’t be ideal, but people would have an option. If multiple lists allowed people to decide for themselves what forms of solicitation they wished to avoid, that would also not be a problem.
But at the moment, the government has decided that people cannot choose to avoid some solicitation while others can be avoided. The government has decided for the populace what forms should be considered more important. That’s why the list is wrong.
Yes, but merely having less protection does not mean that any arbitrary protection can be eliminated at will.
I haven’t been following the exchanges too closely, but this just stood out. The government shouldn’t be deciding anything for me, we as a society decide what is important and the government should reflect that. The government is here to serve our needs, not the other way around.
But that’s exactly what it’s done.
It has decided that people can request to be protected from phone calls related to potential purchases, but not from calls from charities or political organizations. All those types of calls could presumably be equally annoying, disturbing, and unwanted. But all that matters is the content of the communication.
Yes, they can. If you read further in the decision…
**In operative effect the power of the householder under the statute is unlimited; he may prohibit the mailing of a dry goods catalog because he objects to the contents-or indeed the text of the language touting the merchandise. **
So? Sexually explicit mail of the type the law deals with is commercial speech.
More to the point, as both Captain Amazing and the Supreme Court point out, the law effectively allows for the opting out of any commercial mailing.
The law isn’t used very much because it is inefficient in operation: the individual must fill out paper forms at his local post office for each individual advertiser he wishes to block (I think it unconscionable that the Post Office hasn’t implemented a web form for this, in much the same way as they do for changes of address). But that doesn’t change the fact that the law allows him to block commercial messages, something you did not believe possible.
Indeed. In operative effect, since the definition of “sexually provocative” is left up to the citizen, someone willing to lie could claim that anything they received is erotic to them and can thus be disallowed.
This presents something of a problem for honest, truth-loving individuals who don’t wish to receive certain kinds of mail but refuse to pervert their principles.
If they’re willing to lie, since I very much doubt that many people will find dry-goods catalogs sexually exciting, and the people who do probably would like to receive more, not less, of such mail.
However: note the major differences between this method and the DNC list. Each individual source must be blocked individually. Even if you blocked Sam Standard’s Dry Goods Catalog, you’ll continue to receive Gertrude’s Amoistural Great Stuff Catalog. Anything can be banned (if the citizen is willing to lie, etc.), whether it’s from a charity, a political campaign, or someone trying to sell paperclips.
Contrast this with the DNC. It acts on categories, not individual groups or companies. It does not permit certain types of phone calls to be banned (“non-commercial”).
Are you really telling me that you don’t understand why the first system cannot be challenged on First Amendment grounds and the second can?
Adjust that tin foil hat, Sparky, it’s slipping**
The opposite of what you describe is an inflexible legal system that yields overly harsh results for unforeseen circumstances. There is a tension in the law between objective, bright-line rules and rules based on broader wording that are subject to greater interpretation. Taking the former too far is overly harsh and yields unintended results; taking the latter too far, as you point out, yields inconsistent results and ad hoc decisionmaking. Neither extreme is preferable. Good law strives to strike a balance between the two.
At any rate, one wonders why you’re complaining on this front. The law in question – the do not call list – could not be clearer in how it is intended to operate. The only ambiguity comes from the first amendment itself, which is very broadly worded and thus subject to significant interpretation. Are you seriously suggesting that we scrap the first amendment in favor of a detailed, “objective” system of free speech protection?
You must hate the constitution and the bill of rights, seeing how they both contain sweeping language that absolutely requires the interpretation of judges, and of necessity their subjective opinion on that interpretation. **
Like most “back of the envelope” things, it was a brief summary and nothing more. You could have asked for further explication on any particular point. **
In the context of talking about a particular court case, the statement “no one contests” a particular thing neccessarily means that neither the parties before the court nor the court itself contests a particular thing. Even absent that context, most reasonable readers implicitly understand a reasonableness requirement: the statement “no one believes the moon is made of green cheese” would be taken to mean no reasonable person believes such a thing; crackpots who do believe as much are implicity excluded from the statement. You are playing silly semantic games.
But nonetheless, I will amend my statement: no intelligent person who has a modicum of knowledge of the law thinks that residential privacy is an insufficient government interest for purposes of Central Hudson analysis. **
For the reasons I gave above, I think the facts of this case are distinguishable enough from those of Discovery Network that the burden on this issue can be met by the state (and I note that the burden is a “neutral rationale,” not a “compelling reason.”) **
Au contraire. The government most certainly is allowed to enact measures that do not fully cure a given problem. There is nothing in the constitution that requires the government to only pass “silver bullets.”
And, BTW, accepting a partial solution is not “tolerating error.” It is instead tolerating compromise, which is an important feature of representative government. **
Congress and the White House disagree. Fortunately for us all, outside of the legal restrictions imposed by the Constitution, what is or isn’t a “good law” is determined by the ordinary processes of representative democracy.
This is simply wrong as a matter of law. As a general rule, a law is presumed constitutional unless it is proven otherwise; indeed, if a law can be given two interpretations, one constitutional and the other not, the courts will deliberately assume the constitutional interpretation.
There are also exceptions where some or all of the burden of proof shifts from the plaintiff challenging the law to the government. Indeed, we’re dealing with just such an exception here – when the government applies a content distinction to speech, it bears the burden of justifying the distinction. This is true even for the lower-level intermediate scrutiny applied to commercial speech.
** It’s a simple matter of truth: laws with clear and specific meanings are difficult for people to bend to their desires, and so such laws are uncommon when people wish to manipulate the system.
It’s precisely the same reason why people trained in logic and rational thought are systematically eliminated from jury pools. Lawyers can’t manipulate them easily to whatever side they represent, so they’re undesirable.
** No. This is not merely a difference of opinion, it’s a matter of fact.
The justice system is intended to produce just that: justice. This requires inherent, preconceived notions of what justice is. The definition of the concept acts as a method to evaluate the performance of any law.
Computer programmers understand the necessity of writing specific and precise code, as well as the importance of writing code that can handle unexpected data in a manner consistent with the purpose of the program. It’s a shame computer programmers don’t write the laws.
“Overly harsh”? By what standard? Your evaluation implicitly recognizes standards that the laws themselves do not possess. The problem is that these implicit standards can vary from person to person. Taking values for granted does not lead to justice.
Your “compromise” is a compromise in the primary sense of the word: an impairment in integrity. Partial solutions do nothing but contaminate justice with the merely convenient.
In order to fulfill its function, law should be based on explicitly recognized principles that naturally lead to specific laws. When a law is shown to be insufficient according to those principles, it can be objectively demonstrated to be so, and the principles will set limits on how the rules can and should be changed.
The current system of law, the one that Dewey has become specialized in, is an abomination. It honors neither justice nor logic; it relies on precedent which does not manifest either of those principles, on juries which are free to reach whatever decision they choose, and on the ambiguity and uncertainty of poorly-written laws that can be twisted as convenient.
The mailing list rule also acts on categories; it allows the exclusion of certain types of mailings, namely sexually explicit materials. That it can also be used for dry goods is simply an unintended loophole.
It’s important to note that the mailing rule was passed in 1967, when maintaining a massive national database of folks opting out of certain types of mailing, and making that database available to direct mailers, was probably not feasible. Maintaining an individualized list at the local post office was presumably all that the technology of the time (e.g., typewriters and filing cabinets) would allow. I suspect the law might look more like the DNCL were it passed today. **
Point of fact, the mailing rule was challenged on First Amendment grounds – that’s why there’s a Supreme Court case dealing with it. We shall doubtlessly see what the high court has to say about the do not call list.
I agree that the first amendment issues here are non-trivial, and that there are serious points to consider from the other side. I do not, however, think those points are insurmountable. I think the do not call list will ultimately be found constitutional.
** No, it doesn’t.
Each individual source of mail must be blocked separately. It is entirely up to the individual citizen (NOT the Post Office or the government in general) to determine what things will be blocked. No judgment as to whether something is sexually explicit or not is required from the PO.
The DNC list blocks out categories, not individual sources, and the categories are set by the FCC, not the citizens.
** Even if the citizen’s preferences were stored in a nationwide database, there is no reason to conclude that they would not be required to block individual sources that they identified as objectionable rather than broad categories that they don’t define.
We can suspect many things. I can suspect that you weren’t in the top half of your law school graduating class. I can suspect that you ingested lots of paint chips and thermometer innards as a child.
But unless I base my suspicions on actual data, they mean nothing.
** Indeed. Given that the DNC is significantly different from the mailing list law in a variety of content- and government-involvement-issues, it will be quite interesting to see what the ruling is.
There’s no principle that we can’t eventually find a way around if we work at it. Logic and truth shall not stand against us! Black is white! Slavery is Freedom!
So, for example, the Bill of Rights was written by a bunch of guys who wanted to “manipulate the system?” After all, that set of amendments hardly have “clear and specific meanings.” They contain legal precepts which are, to put it mildly, broadly worded and highly susceptible to varying interpretations. Are you thus opposed to the inclusion of the Bill of Rights in the Constitution? **
Cite for the proposition that those trained in “logic and rational thought” are specifically targeted for elimination from jury pools? **
And I take it you’ve got this universal definition of justice all worked out?
Justice is a malleable concept. It means different things to different people. Even in those areas where there is broad agreement, there is considerable dispute over the details. Most folks believe that due process is needed to reach a just result. But how much “process” is “due”? How many appeals to you get before the law can reasonably say you’ve been given a fair hearing?
There is no one, overarching concept of justice upon which we all agree. Those differences in viewpoint create conflicts, tensions which the law must balance. If the law is sometimes subjective, it is because justice itself is a subjective concept. **
I’m reminded of a Simpsons episode:
But more to the point, as good as you think you are at writing code that can “handle unexpected data,” real life is simply too complex to have a laws that clearly and unequivocally apply to every possible situation. Good law includes some room for interpretation on the part of the judiciary to handle such unexpected situations. **
Let me give you an example: mandatory minimum sentences. Great idea by your lights, right? Give the judge almost no discretion in setting the sentences of those convicted of certain types of offenses. Eliminate all those pesky subjective value judgments. Should work great, right? Yet the legal system’s experience with such rules has been mixed to say the least. “One size fits all” solutions sweep up the relatively clean-nosed along with the hardneded criminals. **
The democratic process necessarily entails compromise among competing values. This is actually a good thing, as it moderates and refines overly-ambitious legislation. Compromise is not per se unjust. **
And again I ask: who decides what principles laws should be based on, and how those principles should resolve themselves when the come into conflict? You?
History has shown us what happens when one person, or some centralized authority, gets to define in absolute terms upon what principles society will run. I think the results speak for themselves. I’d much rather have a representative democracy, with all the “terrible” subjectivity and ambiguity that necessarily entails. **
Yawn. Lawyer-bashing is so passe.
You’d be wrong on both counts. **
It must be nice to live in your black-and-white world, where important principles never conflict or, if they do, the resolution of that conflict is instantly clear. It would be nice to be 15 again so I could know everything once more. In fact, given that you’ve got all the answers, I’m proposing we change the name of this forum from “Great Debates” to “TVAA Explains It All.”
Tragically, the rest of us – the adults – live in a world with considerable shades of gray, a world where it’s possible to recognize that people with whom you disagree might have a good point, even if you don’t think it is a strong enough point to sway you. In our world, competing values must be balanced against one another, and the exact balancing point is necessarily one of subjective judgment.
** All men are created equal, and are treated equally under the law. Unless they happen to be slaves, in which case they are equal to three-fifths of a man.
**
** I suspect you’re being deceptive about that.
** Where the rightness of a decision is determined by logic instead of chance and circumstance? Yes, it is.
By the way, it’s not black-and-white: there are more colors than your neurology can support, and everything is precisely the color that it is.
Then every position is as valid, and invalid, as any other.
You live in a world without Truth. I cannot pity you.
Glad to hear it; you certainly weren’t forthcoming with that admission earlier.
Whether the government has the power to restrict speech in this instance IS NOT BEING QUESTIONED. There are 2 issues; 1) whether the authority resides in the FTC or the FCC (this issue has been rendered moot), and 2) whether the authority to restrict calls is being applied unfairly. Whether the government can restrict speech in this situation as a matter of principle IS NOT EVEN AT ISSUE.
BINGO! - That’s what I’m saying. It’s a law until challenged in court and ruled unconstitutional. It is NOT presumed to be unconstitutional if it’s not challenged.
No that’s wrong. Caselaw distinguishes between commercial and non-commercial speech. It does not distinguish between “candidate A” and “candidate B”. For better or for worse, in the eyes of the law, the KKK has an equal right to voice its opinion as the NAACP. However, AT&Ts right to sell you a long-distance phone service contract is NOT on an equal footing with either.
Must EVERY injustice be righted before ANY injustice can?
Must you derail EVERY train of thought in this thread? Getting the train back on the tracks:
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YOU objected to people phoning the judge multiple times because you say it constitutes harassment.
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I pointed out that it wouldn’t be harassment if each person called only once.
We’ll see, my friend. We’ll see…