September 26, 2003

DO NOT CALL WILL NOT FLY:

Supremes OK Anonymous Free Speech  (Julia Scheeres, Jun. 18, 2002, Wired)

In a case pitting the privacy rights of homeowners against the rights of door-to-door solicitors to anonymity and free speech, the U.S. Supreme Court ruled that a village in eastern Ohio cannot force doorstep canvassers to obtain permits before hawking wares or beliefs.

The folks in Stratton, Ohio, a village of 297 residents nestled against the Ohio River, were sick and tired of what the mayor called "flim-flam con artists who prey on small-town populations," so town leaders passed an ordinance in 1998 requiring itinerant solicitors to disclose their name, home address, employer and purpose of planned activity, and obtain a permit before ringing doorbells. Failure to comply with the decree was considered a fourth-degree misdemeanor and included a $50-$100 fine.

On Monday, the High Court struck down the local law in a 8-1 decision, ruling that the ordinance violated the First Amendment because it forced all petitioners -- even those wanting to talk politics and religion –- to get permission from the mayor's office before approaching townspeople.
The ruling was based on a case brought against the village by the Jehovah's Witnesses, who take literally the biblical exhortation to teach "publicly, and from house to house."

The church had lost in two lower courts before appealing to the U.S. Supreme Court.

"The mere fact that the ordinance covers so much speech raises constitutional concerns," wrote Justice John Paul Stevens in the opinion of the Court. "It is offensive -- not only to the values protected by the First Amendment, but to the very notion of a free society -– that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so."


Pennsylvania Town Suspends Restrictions on Door-to-Door Canvassing Under Threat of ACLU Lawsuit ACLU Press Release, August 28, 2003)
Officials in Kennedy Township in Western Pennsylvania today agreed to the American Civil Liberties Union’s request that it suspend enforcement of a new ordinance that restricts peoples’ right to go door-to-door to discuss political, religious and other issues face-to-face with community residents.

Witold Walczak, the Pittsburgh ACLU’s legal director, called the Township’s decision to suspend enforcement prudent. "The Supreme Court ruled just last year that municipalities cannot require people to register with the government before they knock on their neighbors’ door. There is no more important free speech principle in this country."

Kennedy’s Board of Commissioners unanimously approved the ordinance on August 11, 2003, over objections from a community resident who said that the ACLU had already advised her that the new law violated constitutional free speech guarantees. 

The Pittsburgh ACLU, acting on behalf of community residents Joan Sakai and Michelle Bittner, sent a letter on August 26 to town officials requesting that it immediately suspend enforcement of the law or face a federal civil rights lawsuit. Today, the Township agreed to suspend enforcement of the law while it studies the ACLU’s objections.

Bittner, a candidate for a Montour School District Board Director position in November elections, lauded the Township’s decision. "The school district is facing some very serious issues, and I want to be able to hear directly from my potential constituents about their views and I want them to hear mine. The best way to do that is to go door-to-door where you can establish rapport with a person and have a meaningful conversation."

The ACLU’s August 26 letter cited three problematic provisions in the new Kennedy Township law: 

1. some political and/or non-profit-group solicitors had to register with the police and get a permit before going door-to-door;

2. between October 1 and March 31 no soliciting could occur after 6:00 p.m.; and 

3. the Township would maintain a "no-knock" list of people who didn’t want to be solicited and a violation of that restriction carried hefty fines and a possible jail terms.

In its letter, the ACLU advised the Township of 2002 Supreme Court decision holding that a law very similar to the Pennsylvania law was an unconstitutional restriction on free speech.


Not only will the lower court judge's ruling that the Do Not Call List is unconstitutional be upheld by the Supreme Court, the case will be unanimous or nearly so. This is not really an issue that's open to dispute in our current constitutional/judicial regime.

Posted by Orrin Judd at September 26, 2003 9:49 AM
Comments

SCOTUS has held registering requirments unconstitutional in the past. This ruling is in step with precedent. It is not a permissible "time, place and manner" restriction. It's a blanket prohibition. Note: I did see the quote about the "No knock" list. However, it's not clear that anything related to that played any part in the ruling. The registration requirement is enough to render the ordinance unconstitutional.

But the DNC list is a different kettle of fish. Again, commercial speech is not political speech and is not entitled to the same level of First Amendment protection. Second, this is not a blanket prohibition -- only if consumers "opt-in" will the legal benefits of the list take effect. Third, even if they can't call them, businesses still have plenty of alternative ways (that are less intrusive) to get their message out.

Posted by: ProCynic at September 26, 2003 9:58 AM

Pro:

The Do Not Call List has to have a registration requirement too in order to exempt religious, charities, political groups, etc., doesn't it?

Posted by: oj at September 26, 2003 10:05 AM

No, it does not. Many of the states have similar exemptions and define those exemptions not according to registration requirements, but according to other provisions of state or federal law. For instance, charitable groups are typically defined as organizations that are exempt under Sec. 501(c)(3) of the Internal Revenue Code. Other exemptions are often based on licensure requirements that are already in place for those particular professions. For instance, if you have an exemption for realtors, you can call if you are licensed as a realtor. The ability to make telemarketing phone calls is incidental to licensure as a realtor.

Posted by: ProCynic at September 26, 2003 10:12 AM

You can't require these groups to get licenses to speak either.

Posted by: oj at September 26, 2003 10:22 AM

No, you cannot. But they need licenses to represent themselves as, say, realtors. If you don't have a license to be a realtor, you can't be a realtor. If your state exempts realtors from the DNC list and you are a realtor, the exemption applies to you.

Posted by: ProCynic at September 26, 2003 10:27 AM

So the law can't work on exemptions. They can't require you (the Democratic Party, the local church, etc.) to get a license to engage in free speech.

Posted by: oj at September 26, 2003 10:35 AM

No, they cannot. But chances are that you're not going to be a church very long unless you have 501(c)(3) status. Hence the exemption for 501(c)(3). The assumption is that you are not a charity unless you have 501(c)(3). The same for realtors, the assumption being that you are not a realtor unless you have a license. It's not a license for free speech; it's a license to act as a realtor and is unrelated to free speech.

Posted by: ProCynic at September 26, 2003 10:40 AM

But as in the cited case you can't require people with legitimate and undisputed free speech rights to get licensed and prove they meet the exemptions, can you?

Posted by: oj at September 26, 2003 10:47 AM

In the above cases concerning professionals, the licensure requirement is unrelated to the free speech issue. There is no First Amendment right to fraudulently misrepresent yourself as something you are not. In many cases misrepresenting yourself is a criminal offense that can get jail time -- though how Hillary has managed to avoid jail time suggests a certain ineffectiveness on the part of the law. But there are a number of things you can't do if you're not a realtor. In some states you cannot sell any house but your own. You cannot make certain advertising claims. And, if your state makes a DNC exemption for realtors, you cannot make telemarketing calls unless you meet one of the other exemptions. In other words, the ability to telemarket is neither substantively nor procedurally linked to the ability to act as a realtor.

For a 501(c)(3) group, the assumption is that if it is a 501(c)(3) then it is a charity. If it is a charity, it is entitled to the highest level of protection for its political speech.

Posted by: ProCynic at September 26, 2003 10:55 AM

Now you're losing me. I don't dispute the fact that you can require licenses to sell real estate--though individuals can sell their own home can't they?--the question is whether you can require such a license to speak or, alternatively, whether a ban on speech for only those who have certain kinds of licenses can be effective. Are licensed telemarketers banned but Sam the butcher can call?

Posted by: oj at September 26, 2003 11:02 AM

I'm not entirely certain of your question, so I'll try to put my response another way.

The typical DNC statute defines telemarketing phone call as a phone call that proposes a sales transaction or attempts to collect or disseminate information for the purpose of completing a sales transaction -- the purchase of goods or services.

Typically, there are exemptions. Some exemptions are based on the fact that what is proposed really isn't a sales transaction -- charities and political campaigns, for example. Other exemptions, like realtors, may be based on the unique combination of realtors' dependence on phone calls and the fact that the number of phone calls they make is very limited and their targeted audience -- existing customers -- is even more limited. In other words, when people think of the hated telemarketing callm they think of phone companies, credit cards, mortgage companies, etc., but not realtors. They weren't the problem.

An existing customer exemption -- which is also at issue in the Colorado federal case -- would cover the realtors' issue, but it would also be a hole so large that it would swallow the statute. How many people get calls from their current monopolist phone or cable company, asking for the umpteenth time if they are interested in buying additional services that they have stated upteen times they are not interested in. So sometimes a specific exemption for real estate is put in.

But in order to sell real estate, you have to have a license (typically). A statute can use that license as the basis for an exemption.

A couple other things to remember here.

First, the federal list is an opt-in. The legal effect of the list does not kick in unless and until the consumer places their number on the list.

Second, the customer CAN still receive calls from telemarketers from whom they still wish to receive calls. They just have to give them documented permission to do so. So, if you give Sam the Butcher written permission to call you abut new specials, he can still legally call you and not run foul of the statute.

As for other telemarketers, they still can contact you, but not by phone. There are still ample other ways to contact you without calling you during dinner or during the 9th inning of Game 7 of the World Series.

Posted by: ProCynic at September 26, 2003 11:21 AM

Pro:

The right to speech is not dependent on the listener though. It belongs to the speaker. So opting in makes no difference.

Posted by: oj at September 26, 2003 1:23 PM

The right to speech is not dependent on the listener in a public place. There the speaker is entitled to speak and it is up to the listener to determine if they want to listen to the message or not. In the home it is a different matter. There is no constitutional right to enter someone's home and speak to them if they want to be left alone. The listener here is entitled to privacy. The speaker has no right -- constitutional or otherwise -- to enter your home without your permission and give you a message you don't want to hear. Telemarketing is essentially someone popping up in your living room and trying to sell you something. Unlike TV, acceptance of telemarketing calls is not a passive activity. It requires action on the part of the listener -- interupting whatever you're doing to get up and answer the phone, or not answer, put up with the noisy rings and take the chance that it actually is not someone you want or need to talk to. You can get caller ID or an answering machine and screen your calls -- if you have money. Privacy in your own home is not and should not be dependent on the amount of money you have in order to protect yourself from someone else abusing something that you purchased for your own use. And make no mistake, what telemarketers do is abuse.

Posted by: ProCynic at September 26, 2003 2:08 PM

Pro:

Wanna bet on the case?

Your phone is essentially public in nature, as is your front walk and stoop. You can hang up on the caller and you can turn the visitor away, but you can't stop them from making the contact in the first place, except through physical measures that make such contact impossible.

Posted by: oj at September 26, 2003 2:21 PM

I've often thought my neighbors might appreciate it if the next time the Jehovah's Witnesses came around, I called the cops and reported two shifty-looking characters in shirts and ties trolling for drugs.

Seems less likely to get me sued than turning the dog on them or answering the door with a crucifix in one hand and a 12-gauge in the other, anyway.

Posted by: Random Lawyer at September 26, 2003 2:55 PM

And what bet did you have in mind, OJ? ;-)

I'm not sure what you mean by "public in nature." I would argue that the phone is not public in nature, nor are your front walk and stoop. Someone can walk up your front walk and knock on your door, but they cannot stand on your stoop banging away on your door all day. That is harrassment, and it is illegal. Furthermore, they cannot stand on your stoop all day in any case. That is trespassing. One can make an argument (albeit a weak one in my opinion) that telemarketing is, in fact, trespassing. And I believe some common law trespass actions have been filed against telemarketers. Knocking on your door is not entering your home. Calling you on the phone arguably is. "Trespassing" is entering the land of another or causing entry into the land of another without permission. One can argue that the telemarketer trnasmitting their voice over the phone lines and into the phone located in your house is trespassing, assuming it is without your permission.

Again, this is a time, place and manner restriction. It is content-based only to the extent that the constitutional protection has been interpreted to be content-based (commercial versus political). There are already regulations in place (that have been upheld) that say telemarketers cannot call you after, say 9 pm. This is no different.

I must say, though, that I am probably demonstrating more confidence in our courts than, say, the 9th Circuit should give me reason to. But I think we are in the midst of a growing revolt against our courts -- Judge Moore in Alabama was a Rubicon crossing here. I've seen some reference to growing anger against our courts on your (very enjoyable) blog, but I wonder if we've gone further and faster down that road. If the 10th Circuit actually upholds this decision, we may see it more quickly than I had anticipated. And we may see the courts becoming a big issue favoring the GOP in 2004. It's about time.

Posted by: ProCynic at September 26, 2003 3:11 PM

I'll bet you a book that the Court upholds the lower court 8-1, just as in the cited case.


I wonder if this paragraph doesn't get to the nub of the problem you're having:

"Again, this is a time, place and manner restriction. It is content-based only to the extent that the constitutional protection has been interpreted to be content-based (commercial versus political). There are already regulations in place (that have been upheld) that say telemarketers cannot call you after, say 9 pm. This is no different."

The restriction is content based, as you concede, and is not time, place, or manner, because as you say those restrictions are in place already and note that they apply regardless of content.

Posted by: oj at September 26, 2003 3:51 PM

Random:

I used to get stopped by cops all the time. They mostly got annoyed at homeowners sending them on wild goose chases.

Posted by: oj at September 26, 2003 3:52 PM

OJ,

Well, I don't pretend to know diddly about First Amendment law -- I figure the courts mostly just cobble it together from ACLU position papers written by college sophomores -- but I've always thought soliciting is a more-than-moderately rude thing to do. Common decency and good manners should keep people from knocking on my door, calling me on the phone or sending me email unless they have some good reason to think I'll want to hear it. Protecting this sort of thing is just another instance of protecting bad manners and incivility from repercussions, another manifestation of soft-on-crime liberalism and allowing of broken windows. Just like most of the rest of the "free speech" rules.

Posted by: Random Lawyer at September 26, 2003 5:56 PM

Random:

Maybe we could all get bubbles to live in so that we never come in contact with people except by our own choice. We were always polite (both on political campaigns and doing lobbyist canvassing), folks were unfailingly polite to us and a very high % of folks either were willing to meet or hear about the candidates or were willing to contribute to the lobby groups. I was hesitant at first but it's a surprisingly rewarding experience.

Posted by: oj at September 26, 2003 6:50 PM

Pro-cynic:

I have asked this question a bunch of times, to no avail. Maybe because it is stupid to everyone but me.

To what extent must someone without prior permission from a property owner obey a "No Trespassing" or "No Solicitors" sign?

If the legal force of that sign is small or nil, why is that?

And if the sign carries legal force, does the Do Not Call Registry differ in any significant way from one of those signs?

Thanks,

Posted by: Jeff Guinn at September 26, 2003 8:08 PM

Jeff:

I've answered every time and the post that has the case law specifically references such signs. They have no legal force against people exercising first amendment rights, so long as all they do is approach your house, knock, and leave when asked.

Posted by: oj at September 26, 2003 8:41 PM

OJ:

Sorry, I didn't see your answers. Or, they weren't phrased that directly, in that the ones I did see sounded more like your personal opinion than something grounded in case law.

But now for something completely different:

Galileo ended its mission a couple days ago, crashing into Jupiter.

http://galileo.jpl.nasa.gov/images/topTen01.html

Has ten astonishing images; even more so because, according to OJ, none of it exists.

Posted by: Jeff Guinn at September 26, 2003 8:48 PM

Jeff:

Well, I have been both a door-to-door canvasser and admitted to the bar.

You're not buying that old photo hoax are you? Capricorn One has landed, again...

Posted by: oj at September 26, 2003 8:58 PM

OJ,

The man who invents those bubbles will become rich beyond the dreams of avarice, but sadly, he hasn't been born yet.

Seriously, it's rude to impose yourself on strangers' attention without a good reason, and the less important the reason, the more polite you ought to be. If you're being chased by a knife-wielding maniac, I'm glad to help even if you don't say "I beg your pardon, sir." If you're soliciting support for state senator whatsisname, better be very polite about it (which I don't doubt you were); public-spirited citizens want to understand the issues and the position of the candidates on them and it's a compliment to call someone public-spirited. If you're just selling me a "free" vacation in Aruba, a home-equity loan, or a bottle full of mysterious liquid that can clean anything, you're just wasting my time.

Perhaps it's a regional thing or a function of the nature of the solicitation. I grew up in California, lived there until I was 22, and can't recall anyone *ever* coming to our door to ask for support for a political candidate or a charitable cause. Just a lot of scam artists and Jehovah's Witnesses. These people (and telephone solicitors) don't take "Please leave" for an answer: They start arguing with you. They have a flowchart that tells them to make you say "Get lost" at least three times before they go. They count on people's polite reluctance to slam doors in their faces (or hang up without getting a "goodbye" out of the other party). Then they come back the next week (or call you the next night.) That's just taking advantage of other people's politeness and it shouldn't be tolerated.

Posted by: Random Lawyer at September 26, 2003 9:22 PM

Random Lawyer:

Less regional than you think. That was precisely my experience in Florida.

Once a Jehovah's Witness came by--I politely asked her to leave (Get Lost one), then insisted that my reason was because I had my own religious beliefs (Get lost two), then told her my beliefs were atheist (Get lost three).

She finally got lost. Only to come back a week later with the local head JW dude. I got to three a lot quicker that time--unfortunately, it only counted as one for them. My number four "If you don't leave this instant, you are going to have pavement burns on your faces from hitting the walkway after I throw you off this porch" finally got their attention.

I took no pleasure from that, but even less from having my civility abused.

Posted by: Jeff Guinn at September 27, 2003 10:52 AM
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