September 25, 2003

STRIKE TWO:

House Authorizes F.T.C. to Administer Do-Not-Call List (Reuters, 9/25/03)

A second federal judge has blocked a national ``do not call'' list that would have allowed consumers to stop unwanted sales calls.

However, Thursday's decision was based on telemarketers' free speech rights rather than questions over whether the Federal Trade Commission had the authority to implement such a list.

U.S. District Judge Edward Nottingham in Denver said ``the Federal Trade Commission has chosen to entangle itself too much in the consumers' decision by manipulating consumer choice and favoring speech by charitable (organizations) over commercial speech,'' the judge wrote.


Here's the First Amendment ruling we've all been waiting for--inevitable and accurate according to precedent, but wrong as to the intent of the Constitution. Only political speech needs such high protection.

Posted by Orrin Judd at September 25, 2003 7:34 PM
Comments

Again, I think all speech is protected by the First Amendment; but this is not speech.

There is a bell in my telephone, and I own both telephone and bell. The debate is over whether or not the telemarketers have a right to ring my bell. It being my bell, I think I can rightfully decide who gets to ring it.

If this were a churchbell in a belltower, and you had to pull a rope to ring it, everyone would agree that the property owner has a right to decide who can ring the bell and who can't. Not much difference here.

Posted by: pj at September 25, 2003 7:59 PM

PJ:

If OJ is right, then if you disconnected the bell in your phone, you would be violating the Constitution.

Posted by: Jeff Guinn at September 25, 2003 8:39 PM

pj:

They are your ears too, but you have no right to tell someone they can't talk because you might hear them.

Posted by: oj at September 25, 2003 8:41 PM

oj - If they come in my home, I do.

Posted by: pj at September 25, 2003 9:05 PM

Ah, but that''s the point--they can come to your home and then you can tell them you don't care to listen.

Posted by: oj at September 25, 2003 9:10 PM

So, there is a right to privacy. Ye gods (as Gregg Easterbrook would say). Or is this just antoher discussion of Justice Holmes's statement about the right to be left alone?

Posted by: jim hamlen at September 25, 2003 9:13 PM

OJ:

"They are your ears too, but you have no right to tell someone they can't talk because you might hear them"

This would apply in a public setting, where one wouldn't have an expectation of privacy. I have an expectation of privacy in my home (private property), and in all other circumstances, except it seems with telemarketers, I can legally deny others the right of free speech on my property. I have specifically asked (put my name on the do-not-call list) for this privacy in my home. Why does someone else's right to free speech trump my right to enjoy and use my property (including my phone, which is paid for by me, not by the government or the telemarketer) as I wish? What am I missing that should allow others to hijack my telephone to near harass me when I wish otherwise?


Posted by: Mike M. at September 25, 2003 9:21 PM

Mike M.:

They aren't allowed to harass you. They are allowed to call you. Or they can knock on your door. Free speech rights are constitutionally protected. Property rights aren't. If folks are saying that non-political speech does not deserve First Amendment protection and that property rights should be added--I agree.

If people are saying that this right of companies to call you is at variance with our Court's current interpretation of the Constitution they are completely wrong.

Posted by: oj at September 25, 2003 9:24 PM

Wasn't the do-not-call list set up so that you could keep telemarketers from calling you when they were selling something? Weren't charities and political speech exempt? Why doesn't Congress, under the commerce clause, have a right to regulate this?

Posted by: Mike M at September 25, 2003 9:49 PM

The same reason it can't restrict abortion under the Commerce Clause. Once something is recognized as a protected right restrictions have to meet higher standards. The question remains: why should non-political speech be protected by a political document?

Posted by: oj at September 25, 2003 9:56 PM

Mr. Judd;

Because it's too hard to declare what's political and what's not. Better to protect speech with a broad brush. As for why a political document protects non-political speech, are you saying that the Second Admendment only protects political ownership of guns?

Posted by: Annoying Old Guy at September 25, 2003 10:09 PM

AOG:

Precisely. Guns are protected specifically for defensive purposes, against enemies foreign and domestic. The 2nd Amendment isn't there because the Founders were afraid PETA would ban hunting.

Posted by: oj at September 25, 2003 10:17 PM

PJ

You may own your telephone and bell. Presumably you also own a mailbox. Do you have the right to tell someone not to send you letters?

By installing a phone and listing your number in the directory, aren't you telling the world where you are and making an implied invitation if they wish to contact you?

Posted by: Peter B at September 26, 2003 6:17 AM

Dangit, Peter! I can't believe I forget the mailbox analogy!

Posted by: oj at September 26, 2003 8:05 AM

OJ your statement to AOG regarding the 2nd Admendment is correct. However back to the 1st Admendment, a rational person could easily assume that the founders wanted free give and take in areas other than political discourse. For instance in science (could the government prohibit the teaching of evolution in public or PRIVATE institutions)

Posted by: h-man at September 26, 2003 8:16 AM

Peter
"implied invitation " to receive mail?
But in this case the government is providing a method to "EXPLICITLY" issue a prohibition of unsolicited phone calls or if you extend it to mailboxes a method to "EXPLICITLY" communicate that a tresspass will occur it you send unsolicited paper to my property.

Neither case involves free speech, but only a definition of property rights.

Posted by: h-man at September 26, 2003 8:25 AM

OJ:

You forgot the mailbox analogy because it is wrong.

You pay for it, but the government controls it. For instance, if you have a flyer announcing a neighborhood block party, you may put it on, or near, the mailbox, but not in it.

The analogy fails in one other respect: junk mail senders have to pay postage for the privilege of filling your mailbox.

Last time I checked, telemarketers weren't paying my phone bill.

Posted by: Jeff Guinn at September 26, 2003 8:39 AM

h-man:

Of course, they can. School boards routinely decide which ideology they'll allow to be taught to kids--Darwinism, Intelligent Design or both. Remember, Scopes lost.

Posted by: oj at September 26, 2003 8:53 AM

h-man:

Put a sign up on your mailbox saying you don't want any circulars and see if it works.

Posted by: oj at September 26, 2003 8:54 AM

Jeff:

Yes they are for the calls they make to you. The solution is quite simple and preserves their First Amendment rights. Don't own a phone.

Posted by: oj at September 26, 2003 8:56 AM

I still have one unanswered question:

To what extent must others respect signs such as "No Trespassing" or "No Solicitors?"

I was under the impression such signs are legally directive, establishing a virtual wall at the property line.

If so, then this Do Not Call registry seems the functional equivalent of a "No Solicitors" sign.

Posted by: Jeff Guinn at September 26, 2003 8:59 AM

Peter - I agree that the arrangement of rights -- "anyone can call anyone, anyone can mail anyone" -- is a reasonable arrangement. However, it could become extremely unreasonable: imagine if the volume of calls became so overwhelming that my phone line becomes gridlocked and my phone is ringing all day. This is a "tragedy of the commons". Because calling is free and open to everyone, the resource -- the phone -- is overused and low-value uses disrupt the ability to use the resource for valuable uses.

In such circumstances, the rational response is for the law to recognize a property right in the right to call. Then, congestion can be reduced by introducing pricing. For instance, if I own the right, I could set up a rule saying, "Friends and family call free, all others have to pay me $0.25 to call." If the telemarketers own the right to call me, I could bid to buy the right from them to win peace.

Now, telephone network providers could introduce this kind of rights-based calling service if they wished. And, if Congress never legislates, sooner or later they will. But I don't see why Congress can't legislate. It's only defining property rights, a classic function of government.

Posted by: pj at September 26, 2003 9:03 AM

Jeff:

They are meaningless for these purposes. When we canvassed our attorney would simply call towns that tried keeping us out or that said we couldn't enter posted property and cite the case law. You can keep kids from using your lawn for football games, but can't stop a Boy Scout from offering to sell you chocolates.

Posted by: oj at September 26, 2003 9:04 AM

pj:

First, how're phone calls any different from spam, which is costing consumers billions of dollars and untold hours?

Second, why doesn't the Republican Congress simply recognize that a fetus has a property right in its own body and thereby ban abortion?

Posted by: oj at September 26, 2003 9:12 AM

oj -

1) It's not different from spam.

2) I wouldn't call it a property right - if the fetus can hold property, then it's a person. The issue here is really judicial supremacy - the Supreme Court has claimed that its power to assert rights is superior to that of Congress, so the Court's right to abortion would trump Congress's right to life. Not being a judicial supremacist, I think the Congress can and should pass legislation defining the distribution of rights between fetuses and mothers, subject to whatever limits enumerated powers place upon federal power in the matter.

Posted by: pj at September 26, 2003 9:19 AM

Rather, constitutional supremacy. Free speech rights are protected. Property rights are not. What is needed is a clarification of what we mean by speech rights, in the form of an amendment and they should be restricted to political speech consistent with preservation of the Republic.

Posted by: oj at September 26, 2003 9:24 AM

OJ,

Actually, in some places you can keep a Boy Scout from offering to sell you chocolates at your home by posting a "No soliciting" sign. Some cities make this sign enforceable by ordinance.

The fact of the matter is that the First Amendment was intended to cover political speech, not commercial speech. For that reason, commercial speech does not have the same First Amendment protections (nor should it). Which is why charities and political campaigns are exempt from the national DNC list.

In any case, if my understanding is correct, the court decision striking down the DNC list was based on statute, not constitutional law. Which is why Congress was able to change it so quickly.

Posted by: ProCynic at September 26, 2003 9:25 AM

Pro:

The signs do not pass constitutional muster as evidenced by the second ruling in the Do Not Call List case.

Posted by: oj at September 26, 2003 9:29 AM

This is where missing the news for one night hurts. I missed the second ruling (Judge Nottingham's), which was based on constitutional law. The first ruling (Judge West's) was not. So I stand corrected in that regard.

I haven't read Judge Nottingham's ruling yet, so I can't say for certain, but based on what I'm reading (FOX News), the ruling is incorrect. Judge Nottingham has apparently cited the difference between the way commercial telemarketers and charities are treated. This is perfectly permissible under constitutional case law. Courts have ruled that solicitation by charities is "inextricably intertwined" with political speech (because they are making social and political statements) and is therefore entitled to the highest First Amendment protection. Those by telemarketers is commercial speech, which is entitled to First Amendment protection, but not the highest level of protection. My guess is this ruling will be overturned.

Posted by: ProCynic at September 26, 2003 9:38 AM

Pro:

Not only will the Court uphold the lower court judge, it won't even be a close case:

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.

Posted by: oj at September 26, 2003 9:46 AM

What telemarketers do is not speech.

It's harrassment.

In the last two days my CallerID box show they tried to call me seven time while I was at work, and they left no messages. If I call you repeatedly and hang up, you can get a restraining order against me, and no one would consider it a violation of "free speech."

Posted by: Raoul Ortega at September 26, 2003 9:55 AM

Raoul:

That's true. But try getting a restraining order against me before I've ever called you once.

Posted by: oj at September 26, 2003 9:59 AM

oj -

1) Property rights are part of the Constitution -- e.g. "No one shall be deprived of life, liberty, or property ...", & 5th Amendment takings clause.

2) The Constitution does not distinguish between political speech, commercial speech, and other forms of speech. It only mentions "speech."

3) Freedom of speech can only be coherently understood as a set of property rights. I own my lips, tongue, and larynx, therefore I have a right to control how they're used; I own my printing press, therefore I can decide how it's used. Understanding these freedoms/rights any other way leads to the possibility of unlimited contention -- e.g. if the New York Times has to make its printing press available to anyone who wants to use them, then "freedom of the press" becomes incoherent.

4) What's at issue in the "Do Not Call" registry is the right to make use of a piece of physical property -- the telephone in my home, including its bell. We've traditionally had a "commons" approach to this property -- anyone can ring the bell at any time, just like it used to be that anyone could graze sheep on Boston Common at any time. But a "commons" approach to the use of property is (a) economically inefficient, lowering social welfare, and (b) not mandated by the Constitution, except under screwball constitutional theories.

5) I'm surprised you're buying into those screwball theories because they could have wide applicability. If we must have ownership-in-common of my telephone, why mustn't we have ownership-in-common of your home? (After all, you yourself have claimed that anyone has the Constitutional right to knock on your door -- why not knock on your windows or dining room table, why not make percussive music on your computer?) Why, indeed, wouldn't the Constitution mandate that all property be owned in common?

6) Raoul's point is a good one. The difference between having been called once and having been called multiple times is not part of the Constitution, it's part of the law. If the government can regulate the second call, they can regulate the first.

Posted by: pj at September 26, 2003 12:10 PM

PJ

I don't understand why this whole issue must be tackled from the perspective of "rights". We have a damaging nuisance that irritates--like a plague of unleashed dogs. So, regulate it. There must be all kinds of ways.

When you get into property rights in the phone and the bell (?), you get into all sorts of trouble. What if someone else owns and is paying for your phone? And the telemarketers are not depriving you of the use of the phone in any way or reducing its use or value. Isn't it a bit like arguing your careless driving on my street interferes with my property rights in my car? In any event, surely all the phone companies will do is to get everyone to waive their rights as a condition of service.

The telemarketers do pay--they just don't pay you. What economic service are you obtaining or loss are you incurring? That is not a fee, it's a fine. And, practically, how would you possibly collect. I can't even fathom a phone system working that way.

Raoul's argument confuses harassment with unwanted solicitation. You cannot get hypothetical harassment injunctions against a body of unknown persons. Regulating the second and subsequesnt calls is very different from regulating the first because you know who you are dealing with and have already ordered them not to contact you.

Finally, if you do prevail in your fight in favour of restricting calls in the name of constitutional property rights, would you please remember to include bill collecters, ex-spouses and meddlesome mothers-in-law?

Posted by: Peter B at September 26, 2003 12:51 PM

pj:

(1) that's mere due process. You can be deprived of life as long as the process is fair.

(2) The Constitution is a political document, that the speech covered is political should be assumed. Indeed, the lesser scrutiny given to other forms acknowledges this.

(3) that's absurd.

(4) No. The issue is whether someone can speak or you can stop them.

(5) The Constitution is silent on the issue of common ownership of property. It certainly doesn't bar it.

(6) They can't regulate the second call either.

Posted by: oj at September 26, 2003 1:17 PM

Jeff: Re: No Trespassing Signs

You seem to be bursting in frustration here. It probably varies widely from state to state and municipality. My general answer would be yes, in theory, but not in practice.

The law when faced with this issue tends to read in a lot of implied invitations and consents, so the definition of what constitutes trespassing tends to get restricted to entering property with unlawful intent. This is not just because of creeping statism--it reflects the way we live. Apartment buildings, suburbs etc do not resemble 18th century homesteads and country estates. If you put up a sign like that, do you think the kid flogging chocolate bars for the hockey team or wanting to rake your leaves can be bopped or arrested?

You may welcome solicitations from the Salvation Army, but not Planned Parenthood, but who is to know? What about emergencies? How about the local farmer selling fruit to die for?

So, in practice, it doesn't mean much until you tell a specific individual to get off your property. The firstimers can always get away with "Oh, I didn't realize you meant me. So, put away the rocker and shotgun!

Posted by: Peter B at September 26, 2003 1:17 PM

oj -

1) Due process is not "mere." The process must not be fair, but "of law." This means we have a right to control the use of our property except insofar as some due process of law has intervened. If Congress is ratifying in law our right to control our use of our telephones, doesn't this confirm that there is no "due process of law" by which that right can be taken from us and given to telemarketers?

2) This makes as little sense as asserting that the 2nd Amendment protects only political arms, and the 4th Amendment political homes.

3) No, any other view becomes absurd and self-contradictory, because any other view creates irreconcilable conflicts between rights.

4) I don't mind phrasing it this way. But then you acknowledge that "free speech" is about control of my mouth -- if someone else can control my mouth, by dictating that I must speak when I would prefer to be silent, then they are violating my free speech rights. But then why don't you acknowledge that letting the telemarketer dictate that my phone must ring, when I would prefer it to be silent, may also be violating my free speech rights?

You see, the issue is: is my telephone bell akin to my mouth or the telemarketer's mouth? That's the issue we're debating.

5) Agreed, but it doesn't dictate the creation of common property. It allows recognition of private property.

6) So anti-harassment laws are unconstitutional?

Posted by: pj at September 26, 2003 1:39 PM

(1) So long as it follows due process then Congress could ban Catholicism?

(2) This too is acknowledged in things like hunting seasons. Would a season during which guns were owned at all pass muster? No.

(3) So Hellen Keller didn't have free speech rights?

(4) Your phone line is an extension of his mouth and your ear and vice versa.

(5) It dictates neither, allows both. What was the point again?

(6) Two phone calls for the purpose of asking you something isn't harrassment under any ratrional definition. Thirty phone calls trying to annoy you aren't commercial by any rational definition.

(7) None of this matters anyway. The Court has already decided these cases by overwhelming margins in favor of the speech rights. I agree they shouldn't. I agree that only political speech deserves protection. I agree we should put property rights in the Bill of Rights. I agree we should stop letting the Court interpret the Constitution.

Posted by: oj at September 26, 2003 1:50 PM


(1) Of course not. Look, the most dramatic claim I'll countenance is that the law constitutes a 5th Amendment taking -- telemarketers had the right to call and Congress took it -- which requires compensation. The point is that it was arbitrary, after the telephone was invented, who got the right to decide whether a call would be allowed. The only reason rights were allocated the way they were is that it was the least costly approach given the technology of the time. Now we have better technology, we can switch to a better allocation of rights.

(2) I don't get this comparison.

(3) Of course she has free speech rights -- as I've repeatedly said, any technology she owns that enables her to speak, she can, under the First Amendment, use to speak or not speak as she wishes. And insofar the bell in her telephone is a tool for speaking, if it's hers, she can use it to speak or not to speak as she chooses. If somebody else can force her to let it ring, that's a violation of her free speech rights.

(4) Sometimes, a phone is just a phone.

(5) The point was that since the Constitution is silent, Congress is allowed to legislate either way. Thus they can change their mind, as they're now doing.

(6) I don't care to pursue the harassment analogy, but notice that you're acknowledging that some speech can be limited.

(7) The Court isn't so self-consistent, nor is it going to rush to take an unpopular position. The judicial filibuster is hanging over their heads like Banquo's ghost. I think they'll let the law stand.

Posted by: pj at September 26, 2003 5:55 PM

(1) Takings don't actually cover the protections of the Bill of Rights. They're for specifically unprotected things like property.

(2) You can own a gun all the time but the government can tell you when you can hunt with it. The political right is protected, the subsidiary use fairly free game for regulation.

(3) is, of course, contradicted by (4) which you've suddenly made some kind of sacrosanct zone of privacy after a hundred years.

(5) Congress shall make no law...freedom of speech.

(6) You can't call someone and tell them their crowded house is on fire.

(7) When is the last time a sitting Court reversed its own 8-1 ruling?

Posted by: oj at September 26, 2003 7:02 PM

Meanwhile, here's a point to consider: there are probably a couple billion telephone books and innumerable websites with peoples' phone numbers listed in them, all available for free. But y'all are now propounding a view that people need express permission to call you?

Posted by: Anonymous (oops...OJ) at September 26, 2003 7:06 PM

Dear Anonymous:

How sensible.

Posted by: Peter B at September 26, 2003 8:06 PM
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