September 27, 2003


No-Call List: Constitutional Doubt on Hot Political Issue (ADAM LIPTAK, 9/27/03, NY Times)

Much of the legal terrain in the telemarketing case is clear. There is no dispute that the marketing calls forbidden by the registry are commercial speech. Nor does anyone dispute that commercial speech is not entitled to as high a level of First Amendment protection as many other forms of speech, including that of charities, political parties and religious institutions.

At first blush, then, the distinction drawn by the creators of the do-not-call registry would seem to draw the line in precisely the right place.

But legal experts said that analysis was too superficial. They said that commercial speakers were entitled to insist that the government justify discrimination against them by showing that there is no other good way to overcome the problem it is trying to solve. In legal terms, as Judge Nottingham put it, "a content-based distinction cannot be made on constitutional grounds unrelated to the asserted government interest."

The government's interest here, of course, is the protection of privacy in the home and the right to be free from unwanted phone calls.

Lawyers for the telemarketers said there was no logical connection between the registry's limited scope and advancing that interest.

"A ringing phone is a ringing phone," said Robert Corn-Revere, a Washington lawyer who represents the American Teleservices Association and two Colorado telemarketers, which are the three plaintiffs in the case. "You don't regulate commercial speech differently if the problem you seek to regulate has nothing to do with the commercial nature of the speech."

It is for that reason that legal scholars said Judge Nottingham's decision was at least plausible.

"It's obviously not a popular decision, and for millions of people it is a profoundly irritating one," said Floyd Abrams, the prominent First Amendment lawyer. "But it is consistent with existing First Amendment law."

Legal experts agreed that the ultimate outcome of the Denver case will turn on the proper interpretation of a case decided by the Supreme Court in 1993 involving news racks, the sidewalk boxes that contain newspapers and advertising pamphlets. In that case, the court held that the city of Cincinnati had violated the First Amendment in banning, in the interest of aesthetics, only the advertising pamphlets.

The discrimination was unconstitutional, the court held, even though the pamphlets were commercial speech and the newspapers were entitled to full First Amendment protection. The distinction between the two, it said, was insufficiently linked to the city's interest in beautification. [...]

In a passing remark, Judge Nottingham outlined what he thought regulators might remain free to do if his ruling stands.

"Were the do-not-call registry to apply without regard to the content of the speech, or to leave autonomy in the hands of the individual," he wrote, "it might be a different matter."

Congress could, then, at substantial political cost -- and in some cases against its members own interests -- create a registry that would allow the blocking of a broader range of calls from charities, political fund-raisers and the like. It could also probably allow consumers to choose which kinds of call they would block.

No matter how popular Do-Not-Call is with voters, it will be a cold day in Paris when the Congress bans religious groups and political organizations and candidates from calling people at home.

Posted by Orrin Judd at September 27, 2003 5:34 AM


Why? How would we be less free? We could always call them if we wanted their services.

Posted by: Peter B at September 27, 2003 6:53 AM

They are we.

Freedom is not "from"
it is "to".

Posted by: oj at September 27, 2003 7:01 AM

Surely that is an overly-abstract way to approach a concrete nuisance that is overwhelming and driving people crazy. We are not they. We are we, they are they and they are driving us crazy. The focus on competing rights here is driving the notion of reasonableness out the door.

When telemarketing began, nobody minded. Many were intrigued and welcomed it. Now, it is a pest through repetition and has been infected by hucksterism. So, gotta rein it somehow. Do we really need a gaggle of constitutional lawyers and political theorists here? (Obviously, I have no view on what your constitution says--I just wonder why it is even in the picture. Wouldn't some of your constructionalists say the issue is outside its purview and is regulatory in nature?)

What do you think would or should happen to your right to canvass if everyone started getting two hundred pounds of pamphlets from a myriad of sources every day? How about if a hundred faiths decided to prosletyize like the Witnesses, all at least once a week?

BTW, many of my telemarketing calls come from somewhere in the southern US. I'll bet a lot of yours come from Canada. As the song says, it's a small world, and the existence of a registry may not be the panacea its supporters hope for.

Posted by: Peter B at September 27, 2003 7:46 AM

No, there is no countervailing right. The Constitution expressly grants freedom of speech. Nowhere in the text is there a right of privacy. That people of the Right are adopting the privacy argument out of convenience is unfortunate.

Freedom is a goddam nuisance, but that's hardly news. If we're going to shut people up just because we find them annoying, I've got an awfully long list...

Posted by: oj at September 27, 2003 8:04 AM

OK, one last try. Do you believe the Jehovah's Witnesses have or should have the right to circle my block endlessly during daylight hours delivering their message from a loudspeaker on top of their car?

Posted by: Peter B at September 27, 2003 8:21 AM

Do you allow others to do so?

Posted by: oj at September 27, 2003 8:24 AM

Oh sure. No discrimination here. Imagine a cavalcade of repectable faiths.

Posted by: Peter B at September 27, 2003 8:51 AM

No, not faiths. Are you going to forbid political candidates to use loudspeakers?

Posted by: oj at September 27, 2003 9:00 AM

No, what I am asking is whether there should be a way short of a constitutional amendment to limit activities that would, in themselves, be benign or even an expression of basic freedoms when the use of those activities becomes so widespread, intense and invasive so as to constitute an overwhelming nuisance. In other words, is the nature of the activity the end of the story or are its frequency and/or widespread use and the effects of that frequency and/or widespread use also issues?

Posted by: Peter B at September 27, 2003 9:10 AM

That's what I'm asking: are you saying that the use of a loudspeaker is so inherently a nuisance that it should be banned altogether? Or are you sayting that the message of some people is so annoying that they shouldn't get to use a loudspeaker?

I assume that you don't think phone calls are in and of themselves a nuisance, or else you'd just shut off the ringer on your phone. So the question is how, consistent with the right of people to speak, do you propose to limit their ability to speak to you via a medium where you invite speech?

Posted by: oj at September 27, 2003 9:21 AM

No, the use of a loudspeaker is not inherently a nuisance. As an expression of freedom of speech and religion, you could argue it is a good. But hundreds of loudspeakers from different sources all day long is different in kind and the problem they cause shouldn't be handled by deconstructing the issue into the benevolent nature of each individual loud speaker.

I accept my phone is indeed a general invitation to the world to call and I don't share PJ's theory of my property in the phone meaning everybody needs permission. But I make that general invitation on the assumption that only so many people will want to contact me. When technology and plummeting communications costs mean that thousands of peddlers are now calling, my life is invaded. I shouldn't need a constitutional right to privacy to beat them off--the old common law on nuisance and some legislative common sense should do it.

But I don't know who they are, so I sign up for a registry. The telemarketers answer freedom of speech. My answer is that freedom of speech should not be defined or protected in a way that gives an unlimited number of people the absolute right to force their attention on me in a given way and at a time of their choosing.

Posted by: Peter B at September 27, 2003 9:50 AM


Then you are saying that your right to be free from speech trumps their right to speak. I don't think that's a conventional view of the right.

More important, you are asking government to intervene between you and others and determine what you have to hear. That seems dangerous.

A blanket provision would alleviate such concerns, but it is certainly a drastic limitation on the right of speech and we shouldn't pretend otherwise. It is entirely possible, even likely, that one function of the information age is that we'll grow tired of speech, that as it becomes omnipresent we'll weary of it altogether. If so, we need to enter the process of getting rid of free speech with our eyes open. We should also take advatage of the opportunity to get rid of other socially corrosive forms of speech, like pornography, profanity, and the like.

Posted by: oj at September 27, 2003 9:58 AM

OJ has convinced me his argument is correct, as obnoxious as the results may be.

There is no constitutional room for a do not call list.

However, that isn't the only way out. It is perfectly possible for the phone system to assign certain area codes to various types of unsolicited callers. Which would then make it easy for the called party to select, when and which type (if any) of solicited call they would not automatically hang up on.

Peter's and PJ's arguments must be taken into account. My phone is a communication device with others besides telemarketers. It is plausible that unsolicited calls could become so persistent that someone needing to call me--say my daughter on a babysitting job in several years--would be unable to get through.

In that circumstance, telemarketers would have deprived me of property rights.

But there are ways to obtain the correct result without abusing the consitution.

Posted by: Jeff Guinn at September 27, 2003 10:39 AM


Today, Do Not Call; tomorrow, Darwin. :)

Posted by: oj at September 27, 2003 10:44 AM

I acknowledge the danger, which is important and must always be kept in mind, but at some point political culture and consensus has to take over from legalisms. I doubt the freedoms of telemarketers are what your fellow New Hampshirites have in mind when they say live free or die, is it? I'm glad you mentioned the other forms of offensive speech, because as I have been tracking your posts on this subject, I couldn't help imagining the ACLU celebrating the triumph of Larry Flynt's freedom or the right to curse in public.

I also agree that information overload and speech becoming a cacophonous irritant will indeed be growing problems, which is one reason why the notion of a right to privacy is so popular. The modern world invades in ways no one could have imagined two hundred years ago, and the urge to flee or get away is palpable and growing. I do not know what the answer is.

Posted by: Peter B at September 27, 2003 10:47 AM

It's a short term problem anyway.

Even now, with caller ID, I've basically cut out telemarketing. If there's no ID for the call then I just don't answer. And if there is ID then it's easy to decide whether to answer. In the not distant future (a few years at most) you'll be able to click a button on the phone to say "don't even ring if this person / organization calls again" and "if there's no ID, don't ring").

Posted by: Annoying Old Guy at September 27, 2003 10:57 AM

The Telezapper is close to that now, or so I hear.

I think it would do our Constition good for a stand on principle to prevail against an unconstitutional will of the majority.

And about that Darwin thing, OJ, you better lay down until the vapors pass.

Posted by: Jeff Guinn at September 27, 2003 11:16 AM


As so often, by the time the government reacts to a "problem" it has already been dealt with.

Posted by: oj at September 27, 2003 11:25 AM


I am openly hostile to the idea that the Fiorst Amendment does any more than cover political speech conmsistent with the maintenance of the Republic set up by same Constitution. I'm just surprised to see so many "libertarians" and others joining the cause. This is a slippery slope I'm eager to see us get on.

Posted by: oj at September 27, 2003 11:31 AM

You can do almost all of this now, its just going to cost you $200 a year.

Posted by: David Cohen at September 27, 2003 1:37 PM

"No, not faiths. Are you going to forbid political candidates to use loudspeakers?"

Yes. And ice-cream trucks with annoying synthesized jingles, and teenagers with rap music blasting out of their super-enhanced subwoofers, bikers with ultraloud pipes, etc., etc. A decibel limit on the sounds you can emit on a public street strikes me as quite reasonable.

Unfortunately its hard to map this onto the telemarketing problem - my friends don't stand in the street and yell at me, they come to my door.

Posted by: ralph phelan at September 28, 2003 2:48 PM

A cold day in Paris when Congress votes to curtail political speech--McCain-Feingold.

Posted by: Lou Gots at September 29, 2003 9:53 AM

Telemarketers will just switch tactics, find loopholes, etc. The truth is that political solutions to problems (like the Do-Not-Call List) will always and forever leave a bad taste in everyone's mouth because they never work, cost ten times what they should, have horrible unintended consequences, or all of the above. That's because political solutions are either win-loose or loose-loose.

Posted by: Peter Houk at October 19, 2003 5:20 PM