This time the Judge argued 1st amendment reasons saying that since the law banned commercial solicitation but not charitable or political solicitation it was discriminating on the basis of content and was constitutionally impermissable.
I haven’t read the opinion but this opinion smells like a day-old turd just right on the surface description: the Judge is applying 1st amendment analysis regarding public speech but we are not talking about public speech – the do not call list regulates speech that intrudes into people’s private residences. Nobody has a right to come into my house and use it as a public forum. The 1st amendment analysis just doesn’t apply. If a political operative came into my house and started making political arguments to me, when I made my intention clear that I did not want such an intrusion, I would be completely within my rights to call the cops and have the idiot hauled off, no matter what he was saying. It’s not the speech thats at issue: its the invasion of privacy and the invasion of my private space. The home is the castle at least in theory but now the castle is open for business to anyone’s speech message.
I guess the Judge’s focus is that this is government action and the government is bound by the 1st amendment no matter what but I feel that since we are talking about safeguarding individual privacy in the private residence and since this is a voluntary list where the government is functioning as an agent of the people who sign up for the list I think this Judge is an idiot.
This frustrates the hell out of me. The people through their elected representatives pass this democratically by a large majority. Then 51 million people sign up for it. Then a judge says the FTC overreached its authority (earlier today) and blocks it. Then congress moves very quickly to grant the FTC the authority - Congress had already granted this authority to the FCC and had also voted funding for this project for the FTC so that first judge’s opinion smelled like a pile of crap to me too. So as soon as Congress fixes that problem, along comes this second judge with a second blockage of the bill. And the first amendment analysis just makes me laugh - there is no citizen group or civil rights rights group behind this lawsuit, AFAIK its the Direct Marketing Association who is suing.
Blech. IMO Direct Marketing Association is now Public Enemy #1 and this idiot Judge in Denver is their fawning lackey. I wonder what we can do to make DMA feel the pain?
Because it is the “consumer’s choice” in this instance to be on a list preventing telemarketers from profit-driven companies, and not be excluded from political and/or charity calls?
But if this is about legislation, then the capability to block charities and politics should be available.
I thought the list didn’t block charities and pollsters.
Here’s my question, why would telemarketers want to phone people who’ve made an effort to be on this list? Isn’t that a waste of time? Or is harrassment something they just get off on?
Some guy made a fairly good point on the NBC Today show about this… he basically said that this list would save these companies money… because they would know who would be a waste of time calling… and they could get on with calling those people that really don’t care.
I totally disagree with you, Dan. Nobody is saying you have to listen to the phone calls, they’re just saying the people can call you to try and contact you. You can hang up on them just like you can throw someone out of your house. The real analogy would be if Congress outlawed people even knocking on your door to see if you would talk to them. There are already several free speech cases on the books saying you can’t do that based on content (usually involving Jehovah’s Witnesses, so it’s kind of a combo free speech / free exercise thing in those cases). In fact, IIRC there are cases saying you can’t do that at all–I believe there was a fairly recent case where a city required permits for door-to-door solicitation and the courts struck it down as an impermissible infringement on free speech.
Now, you may hate telemarketers. I certainly do. But I think there’s a good argument that Congress is not allowed to say “Telemarketers can’t talk to people because many people hate telemarketers.” It doesn’t matter how many people vote for it or how many Congressmen like the idea. The First Amendment protects unpopular speech–that’s the whole point of the thing to begin with. I mean, I hate the wacky Lyndon Larouche people that demonstrate outside the Macy’s center across from my work, but I understand they have a right to do that and I support that right even though their exercise of it is a pain in my ass.
I think this law would stand up if it weren’t content-based. If Congress said “Nobody can call people on this list unless they have the person’s permission first,” that would probably stand up as a reasonable time, place and manner restriction (like the “no solicitors” signs you can put on your door). The problem is that Congress is trying to restrict certain kinds of speech, but not others. One clever way they might get around it is to have two lists–“Nobody call me” and “Nobody call me except charities”–and let folks opt which list to be on.
Actually, my guess is the tele-marketers know that nobody really WANTS to be called–the people who didn’t sign up for the list probably don’t know about it, is all. But once people are on the line, some small percentage of them are going to be people who can’t say “no” to a good salesman.
Same with spam–I’m sure nobody wants to get it, but some small percentage of morons actually buy the products, so it becomes cost-effective to send it.
Personally, I’d be happy to see the charities (we give a lot of money, but never to over-the-phone requests) and political calls disappear, too, if that’s what it would take to get rid of these pests.
Yeah, what Gav said; that was the stated reasoning, more or less, at the telemarketing place I worked at. By and large it’s just preying on the old and gullible.
Rywill, historically the courts have created stricter standards for commercial speech than non-commercial.
"The real analogy would be if Congress outlawed people even knocking on your door to see if you would talk to them. There are already several free speech cases on the books saying you can’t do that based on content (usually involving Jehovah’s Witnesses, so it’s kind of a combo free speech / free exercise thing in those cases). In fact, IIRC there are cases saying you can’t do that at all–I believe there was a fairly recent case where a city required permits for door-to-door solicitation and the courts struck it down as an impermissible infringement on free speech. "
Noone but delivery people or friends/family are allowed to knock on my door. I was allowed to make a choice about if I want solicitors bothering me at my door. It is a no tresspassing sign. It has legal teeth. I want the same for my phone, that is all.
Using the “no solicitation sign” analogy, I gather the only problem that judges have with the no call list is that its the government doing it. It’d be like saying the only way for someone to get a no soliciting sign in their yard was to ask the government for one.
I wonder if there’d be the same anti-do-not-call-list-lawsuits if say, the phone companies were the ones providing the service. (Probably).
I also wonder why these lawsuits haven’t happened before – some states have had do-not-call lists for a while now.
No, it’s a no ‘tresspassing’ sign, what we are asking for with the do not call list and regulations is the same thing as tresspassing laws. How do you do that for a phone? You need a list of ‘do not tresspass’ phone numbers. A property with no ‘No Tresspassing’ sign posted needs to ASK people to leave BEFORE it is considered tresspassing and the cops become involved. If you have a sign, you could actually (but do not usually need to, of course) just call the cops whenever someone is on your property without permission. Just by owning property, you are not implying that others can use it. Just by having a phone number, I am not implying it is for public or commercial use.
I think I’m spelling tresspassing wrong btw but I’m too lazy to go look at the sign, apologies.
Well, not the first time I have found a judge’s reasoning flawed, not even the first time today! :)
I musta missed the day in law school where I was taught about the right of free speech that lets someone use the service I pay for, plus force their way into my private abode to sell me something.
While I agree that the list should give an option to forbid all calls even 'charities" and politicos, but this is more a equal protection type argument and I don’t really believe that either should invalidate the whole list.
My right of privacy trumps your right of commercial free speech, we are not talking public speech or opinion…
I don’t know about you guys, but I have to erase literally dozens of hangups from my answer machine every day and I’m bloody well sick of it!
