Do Not Call and the First Amendment
Wed October 22nd, 2003 22:56 MSTMuch talk and a few judicial rulings have been made about the impact of the first amendment on the Do Not Call law. Even Edward at Zonitics gets it wrong this time! [NOTE: 10/28 Edward is rendering his opinion of how the court will rule, not his personal views. Hence my characterization of his article is incorect]
The important part of the law is not about the speech, it is about the circumstances under which one can be disturbed by a ringing telephone. As with many other laws, the *purpose* of the call is a valid discriminator (whether we agree with the chosen purposes or not) as is the identity of the caller.
I don’t see any first amendment issue here until the conversation has been started by mutual agreement by both sides. Nowhere in the first amendment do I see wording that I *must* listen to someone, nor do I see anything that implies that if I *must* listen to one group of people, I have to listen to all.
Ringing my phone is not speech. It is like ringing my doorbell. It is trespassing and use of my resources unless I want it or you have a good and legal reason to do it!
I have been reading a ton of Seth Godin recently. How dumb are these people who must call and waste resources. Seth did not get to be so popular because only I was reading him
these people need to pull their heads out of their
John,
We disagree, but mainly over our assumptions. I don’t believe that the 1st Amendment should protect telemarketing. However, as interpreted by the Supreme Court, it probably will. The Court is very hostile to content-based restrictions. Because Do-Not-Call discriminates on the basis of content (commercial fundraising speech versus non-profit fundraising speech and political fundraising speech) the Court is likely to strike it down. Congress could likely pass legislation that outlawed all telemarketers, but my guess is that the Court won’t allow them to pick favorites. There’s caselaw to back this up. Let me know if you’re interested.
I wish they HAD made it to cover ALL telemarketing. The free speech on your dime arguments go back centuries. Advertising by FAX was killed pretty fast, the only reason telemarketing and spam have not is because it isn’t as expensive to the end-user. But the cost is still there. Free speech means you have the right to say what you want, it doesn’t mean I should be forced to listen, or that I should be forced to pay for your printing press, mail costs, radio or tv spot, telephone call center, or web site. And if you want to use services that I pay for, you should be expected to pay me for them, or go away.