So the National "Do Not Call" list has been blocked again, but this time the objection has more bite. The first time it got blocked it was because the judge didn't feel the FTC had the power to enact it. Congress leaped to the rescue and passed a bill in 24 hours to say, basically, "Yes it does, too." Now it's been blocked by another judge on the basis of inconsistency - since it blocks commercial calls but not others - saying that such discrimination is unconstitutional and a violation of Free Speech.
What do you guys think?
[ September 26, 2003, 10:15 AM: Message edited by: Chris Bridges ]
Posted by katharina (Member # 827) on :
Depends on whether or not phone numbers to private homes are considered public domain. No, I don't think it is - you have the right to say anything, but I don't have to listen to you.
Posted by Jeffrey Getzin (Member # 1972) on :
Well, more to the point, let's say that I explicitly told you not to call me. If you called me anyway, that's called "harrassment", and it's illegal.
Well, with this Do-Not-Call list, millions of people said "do not call me" to telemarketers. If they call you anyway, isn't that still harrassment?
Jeff
Posted by Zan (Member # 4888) on :
Is it unconstitutional for a private community to post a sign saying "No Solicitors"? If we can block an door-to-door salesman from coming to our door, why can't we block one from calling us on the phone?
Posted by sndrake (Member # 4941) on :
I discussed this with my partner, who used to practice as a lawyer for the Commerce Dept. in another state.
According to her, commercial speech is subject to certain restrictions which individual free speech is not. So the judge's reasoning isn't necessarily a valid one.
The legal debate will be whether or not the "do not call" list falls under restrictions already recognized in other court cases and in statute.
Take it for what it's worth. It's second-hand. But I'm trying to give just the points I'm sure I remember accurately.
Posted by Toretha (Member # 2233) on :
It lets politicians and non-profits call. I can see non-profits, but the politician's part IS rather inconsistent
Posted by UofUlawguy (Member # 5492) on :
I think it would be a tough argument for the telemarketers to make (although I guess they have already managed to convince at least one judge, or at least make him wonder.)
First, as has been pointed out, commercial speech is not protected to the same extent other kinds of speech are.
Second, the speech being restricted is not taking place in a public forum, but in private homes and businesses. Public speech is entitled to greater protection.
Third, aside from the Freedom of Speech arguments, there might be a Equal Protection argument, but I'm not too crazy about that one.
Maybe the argument they're trying to get in under is one based on the Commerce Clause. I'm not sure how that one would go, though. I think I'll see if I can find anything more informative about what the judge has actually said.
UofUlawguy
Posted by Chris Bridges (Member # 1138) on :
I believe what they're trying to do is say you can't block some without blocking all. The telemarketers know that there isn't as much support for blocking charity calls, and politicans won't vote for anything that blocks their fundraising and opinion poll calls, so they wnat to force the issue. If putting your name on a list means you can't be harassed, the logic here means that you shouldn't be called by anyone.
This is going to be really annoying if this stretches on. I know what the short-term effect will be: any telemarketer, any of them, that calls me will get maybe three words out before I demand to be placed on their own do-not-call list, as well as any afiliate lists they may own.
Posted by The Pixiest (Member # 1863) on :
This is ridiculus. Barring political ads within 30 days of an election IS constitutional but asking telemarketers not to harass you during dinner ISN'T? What does this ruling do for the Telephone Consumer Protection Act? Is it unconstitutional now to require companies to maintain their own Do Not Call List?
The First Admendment is all about Political speech. Yes, it protects other forms of speech as well, but the reason it's in there. The reason the founding fathers thought it important enough to be the FIRST THING amended in the constitution was because people were being shipped off to Australia or hanged for political speech against the King under their old system.
Posted by Dan_raven (Member # 3383) on :
I understand it.
The Constitution gives me the right to speak. Therefore it must impose the responsibility that YOU MUST LISTEN.
I am giving a speech in 1/2 hour. Everyone will report to the meeting hall and listen to my incoherent speaking then.
On the way out you must buy my audio tape of my speech, otherwise you are interfering with my right to speak.
Basically, this is just another example of a corporate organization paying expensive lawyers to get done what they think they need doing.
Posted by Tresopax (Member # 1063) on :
I think it would be unconstitutional if the government simply illegalized telemarketing. However, I think the do-not-call list is different because it involves a list of individuals who chose to add their names. Because of that, it's more akin to giving the phone owner the power to block certain callers than illegalizing a certain sort of speech.
Posted by rivka (Member # 4859) on :
quote: Barring political ads within 30 days of an election
Don't I wish! We get political ads up until election day here in CA -- is this a state law you refer to?
Posted by Chris Bridges (Member # 1138) on :
They were blocked by the Election Reform Bill, which is being challenged for that and other reasons. It had good intentions, but blocking the ads is too close to infringing on Free Speech.
And thank you Tresopax, that was the simplest and best counter to the judge's argument I've heard.
Posted by The Pixiest (Member # 1863) on :
Campaign Finance Reform bans political ads, not paid for by a candidate but that mentions a candidate within 30 days of an election.
It is a brutal attack on free speech that has been found constitutional. It makes me wonder which Constitution they were reading.
![[Confused]](confused.gif)
Don't I wish! We get political ads up until election day here in CA -- is this a state law you refer to?