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This page contains a single entry from the blog posted on September 29, 2003 2:14 AM. The previous post in this blog was Letter from Diane. The next post in this blog is Champ of the airwaves. Many more can be found on the main index page or by looking through the archives.

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Monday, September 29, 2003

One ringy-dingy

Well, some federal judge somewhere has decided that the national "do not call" list, which allows folks to block telemarketers' calls, is unconstitutional.

My first reaction? I'm starting to lose what respect I had left for federal judges. My cooler, second reaction? The judge is just doing his or her job -- it's the Supreme Court's ill-advised "commercial speech" doctrine that's at fault. Under that doctrine, even the Coors Light twins are protected First Amendment speech. (Not that there's anything wrong with -- twins! Named Klimaszewski!)

But under the Supreme Court doctrine, Congress can regulate commercial speech to further important state interests. The right to be left alone, free of commercial messages, in one's home would seem to be such an interest. Having a phone does not imply consent to unwanted telemarketing calls. We'll see.

The judge probably would have gone along with the list, but for the fact that the law creating it is limited to commercial telemarketing; it does not allow residents to opt out of unsolicited calls from politicians and charities. Well, that's easy enough to remedy -- make those folks subject to the "do not call" list as well. Indeed, most constituents would have preferred them to be included in the ban to begin with. I hate calls from the whole lot of them.

And if Congress won't do that? Then let's have a constitutional amendment OK'ing the law as currently written. It would pass with flying colors, in record time.

Telemarketers, the jig is up. Go find a real job.

Comments (12)

It's really interesting, because I helped write one of the state do-not-call list laws, and certainly when we wrote it, we all believed that you HAD to exempt charities and political calls in order NOT to run afoul of the First Amendment. It's wacky, because now that's exactly what the judge said was unconstitutional. Don't we all feel silly.

Most telemarketing call-staff face being jobless anyway: I've noticed a lot of calls are recorded now.

Apropos of twins, have you been watching football on TV enough to notice that the infamous Coors Light twins actually have a role in "Scary Movie 3"? The "Scary Movie" franchise should not surprise us with the conflation of commercial pop culture and pop culture commercials, but still, it makes you wonder whether Coors Light paid the studio for the product placement, or vice-versa.

Telemarketing, like panhandling, is First Amendment protected speech. Having a phone does imply consent to unwanted calls, just like walking on a public street implies consent to unwanted requests for spare change. There would be neither panhandlers nor telemarketers if both weren't profitable vocations. Just as some people willingly give a panhandler a quarter when solicited, some telemarketees willingly give $ to telemarketers. The state has no important interest in "protecting" people from irritating, but harmless, phone solicitation. The constitution protects the "sanctity of the home" from government invasion, not exposure to irritating private commercial messages (e.g. Old Navy TV ads). As I write this we received a telemarketing call; we said, "no thanks, please don't call us anymore," hung up, and moved on with life. Abolishing telemarketing means pushing them out of the headsets and cubicles and onto the sidewalks with their palms up.

Sam, I appreciate your views, although those of us who were getting as many as a half dozen of these jerks on the phone in a single evening have a different perspective.

When the constitutional amendment comes up for a vote, you can be one of the 1% that votes no.

I don't think it's been anyone's argument that the constitution protects the sanctity of the home against telemarketing. No one is arguing that telemarketing is unconstitutional. But that doesn't mean that prohibiting telemarketing is unconstitutional. It's very easy to blow off sales calls as "harmless" until you hear a bunch of senior citizens and people with disabilities talk about hauling their asses up and down the stairs to answer calls that turn out to be dead air because the telemarketing computer called 100 people to occupy its 25 operators, and unfortunately, 35 people were home, so ten of them got hung up on when they answered the phone. Or until you hear how people get the bejeezus scared out of them because they don't understand why they're getting six or eight hangup calls every night, not realizing that the hangup calls are from computers. I personally believe that had telemarketers been content to live within the logistical limitations that would be placed on them if they made a real live person make a real live phone call every time they wanted to call anyone, there's a good chance that this wouldn't be happening. There's only so much volume they could produce when they did business that way, and telemarketing survived for many years even though people didn't like it. It was the advent of predictive dialers and the like, technologies that have been exploited by marketers who simply decree that they will hang up on forty people rather than have one operator sit idle for fifteen seconds, that have forced the hand of regulators. These people have eaten themselves, and they have only themselves to blame. Courts decided a long time ago that it was all right to post a "No Solicitors" sign on your door and for it to be enforced through ordinances, despite the fact that door-to-door solicitation is protected speech also. As I said, had the marketers not gotten greedy and started cost-shifting onto consumers by making them waste their time jumping up to answer dead calls, I think there's a good chance they wouldn't be in this position.

Prohibiting telemarketing is unconstitutional; it violates the First Amendment. Predictive dialer abuse that results in barrages of hang-up calls to one phone in a short time may be some kind of tort that falls outside of First Amendment protection, like how a junk e-mail barrage that crashes a computer has been ruled trespassing. Similarly, repeatedly calling someone who has asked not to be called may be harrassment instead of protected speech. But laws against those things already exist, as do adequate private sector safeguards (e.g. those pre-recorded "if you are a solicitor, please hang up now" messages available to screen unrecognized calls, which are analagous to "no solicitors" signs). It's redundant, constitutionally risky, and silly for the government to restrict telemarketing speech with a "do not call registry." How about we set up a "do not show Gap ads on my TV registry" next? A constitutional amendment banning telemarketing is even sillier; it obscenely places this "problem" in the same league as involuntary servitude. An elderly or disabled person is very lucky if his most serious problem is having to haul his ass up and down the stairs to answer the phone. In a society that values unrestrained communication, we have to tolerate annoying, unwanted messages.

Such as yours. 8c)

You say that repeatedly calling someone who has asked not to be called could be illegal without offending the First Amendment? That's what the DNC registry is. It's a place to put your "I am asking not to be called" request. If you agree that there's no right to call the homes of people who have asked not to be called, then there's room for the registry within the bounds of what's constitutional. And one guy's version of what's "redundant" or "silly" has bupkus to do with what's constitutional. The Gap ad analogy doesn't work at all; you have to have your TV on to see a Gap ad. If they could turn your TV on remotely and show you a loud, annoying Gap ad while your kids were trying to sleep, then it would be a closer comparison. The "no solicitors" thing on your phone isn't a fair comparison, either; that generally requires you to pay a monthly service fee, and it's not currently enforceable by the government. If you'd be willing to have enforcement of the "Hang up if you're a solicitor" system by the government, just as the "No Solicitors" signs are enforceable by local ordinance and you can be fined for violating them, then we're closer, but in that case, then I really don't see how that's all that different from the DNC registry to begin with. If you wouldn't be willing to allow enforcement, then it's not going to be anything like a "No Solicitor" sign. One other thing -- in my opinion, calling somebody's phone and hanging up is not speech. Predictive dialers -- not only when "abused," but when used as intended -- are meant to call a certain number of people and hang up on them. That ain't speech, so to me, that's got zero constitutional protection, and the things could be entirely outlawed.

Jack: I thought this was an enjoyable, interesting debate. If you would rather I not participate anymore, I will stop. Sorry if I offended you. Thanks for the great tax teaching, and your blog is really good too. 80)

Sam: No, no! That was just a wisecrack that I couldn't resist making. No censorship here!

Jack: Thanks for the clarification. I suspected you added this awesome comment feature to your blog to facilitate debate; I just didn't want to continue commenting if the host finds my comments annoying and unwanted. I'm glad you don't, because I am itching to respond to Alli's last post, and I would also like to hear you tell me why I'm wrong.

Alli: Responsible telemarketers should maintain and abide by their own do-not-call lists. I don't know if existing law imposes penalties on telemarketers who fail to do so; if not, it should. But keeping the list is a function that belongs in the private sector, and allocating thinly stretched government resources to that function is wasteful, if not unconstitutional. The Oregon state government's priorities are seriously screwed up if it has a "DNC registry," because Oregon also has the shortest public school year in the nation, terrible roads, no social safety net, skyrocketing poverty, 8% unemployment, and no sales or property tax.

The Gap analogy works because you can choose to turn your phone's ringer off, or screen calls with your answering machine; i.e. you can choose to shut out telemarketers as well as TV ads. If you keep the phone in your baby's crib with the ringer set on "loud," yer gonna have trouble whether it's a telemarketer or grandma calling. There's no fee for screening your calls, and you can delete telemarketer's messages without listening to them.

I agree that calling someone and hanging up is definitely not protected speech, but harrassment, and predictive dialers should be illegal if that's what they're designed to do. But an enforcement mechanism is already available to protect you against someone who calls you repeatedly against your express wishes: it's called the POLICE and a RESTRAINING ORDER. The existence of "do not call" registries indicates that many Americans think the government owes them protection from having to answer the phone, and thus indicates that many Americans have lost all concept of real hardship.


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