Like It Or Not, Free Speech Protects Telemarketers

[RS Davis]

[glow=red,2,300]Robert A. Levy Wrote:[/glow]
Maybe so. But constitutional rights cannot be overridden by temporal majorities -- not 51 percent of the people or even 91 percent of the people. And the court has the final word when it comes to the Constitution. A federal judge in Denver already has held that no-call prohibitions on telemarketers -- with exemptions for calls that are arguably more intrusive, like those from charities, polling organizations, and (you guessed it) politicians -- violate the First Amendment. Speech may not be suppressed based on its content, said the judge. Now the Tenth Circuit Court of Appeals will review the lower court ruling.


Yes, the Supreme Court has declared that commercial speech is not entitled to the same First Amendment protection as non-commercial speech. So the Denver decision may well be overturned. That may strike some consumers as the right outcome, but the Court's distinction between commercial and non-commercial speech has never been coherent. When someone advertises a political book, promotes a paid political event, or markets merchandise in support of a political cause, the commercial and political implications are inextricably entwined. It's time for an overhaul of the Supreme Court's commercial speech doctrine. Our Constitution protects Klan speech, flag burning, even "gangsta" rap. Surely the right of companies to provide information about their products is no less worth protecting.


No-call may be a great idea -- but only if the arrangements are controlled by private contract and not by government regulation. A phone customer does not own the lines coming into his home, so he may not restrict their use. Once a call enters his house, the customer has a remedy: Hang up. That's not much different than radio or TV. If you don't want to see a commercial, turn off the TV or switch channels. Your ownership of the television doesn't give you the right to prevent advertisers from broadcasting into your living room. Similarly, your ownership of a phone doesn't mean you can suppress usage of incoming lines. If you would rather eat dinner uninterrupted, just turn off the ringer. You can even use caller ID or record your messages and return them selectively.

- Rick

[CJYJTJ]

More simply, though, our right to control who uses the service we pay for trumps their right to free speech.

Sorry, telemarketers lose.

[RS Davis]

CJYJTJ said:

More simply, though, our right to control who uses the service we pay for trumps their right to free speech.

Sorry, telemarketers lose.

So, we get to decide by government fiat which channels our local cable providers carry, and who may advertise on them?

- Rick

[penguin]

CJYJTJ said:

More simply, though, our right to control who uses the service we pay for trumps their right to free speech.

Sorry, telemarketers lose.

Don't they pay for it as well?

[RS Davis]

penguin said:

Don't they pay for it as well?

Yeah, but they are the dreaded Big Business...

- Rick

[penguin]

RS said:

Yeah, but they are the dreaded Big Business...

- Rick

Hey, don't get me wrong, I dislike annoying telemarketers as much as the next bird, which is part of the reason I have an unpublished number, an answering machine, and caller-id. I take care of myself, but I'm not crazy about using the Force of government to keep me from being pestered.

[RS Davis]

penguin said:

Hey, don't get me wrong, I dislike annoying telemarketers as much as the next bird, which is part of the reason I have an unpublished number, an answering machine, and caller-id. I take care of myself, but I'm not crazy about using the Force of government to keep me from being pestered.

Agreed. I pretty much hate telemarketers, but I hate a lot of things. One of my biggest is people who want to use the coercive power of government to rid the world of all the things they hate.

- Rick

[Jodi]

Although there some truth in the author's words (namely, that allowing certain kinds of telemarketing calls but not others isn't proper), the belief that telemarketers (or anybody, for that matter) have an innate right to call anybody they choose is incorrect.

You have every right to tell somebody to NOT call you, whether it's a pushy co-worker wanting you to work extra shifts, an annoying guy you dated once but don't want to see again, or somebody hawking phone service.

The author suggests that the problem isn't a No-Call list, but rather that the No-Call list is a government project. He's wrong. If somebody calls you against your will, after you've asked them to stop, that's harassment- and appropriately subject to government intervention.

[RS Davis]

Jodi said:

Although there some truth in the author's words (namely, that allowing certain kinds of telemarketing calls but not others isn't proper), the belief that telemarketers (or anybody, for that matter) have an innate right to call anybody they choose is incorrect.

You have every right to tell somebody to NOT call you, whether it's a pushy co-worker wanting you to work extra shifts, an annoying guy you dated once but don't want to see again, or somebody hawking phone service.

The author suggests that the problem isn't a No-Call list, but rather that the No-Call list is a government project. He's wrong. If somebody calls you against your will, after you've asked them to stop, that's harassment- and appropriately subject to government intervention.

No. You have every right to hang up on them or better yet, not answer their calls, but you don't have the right to prevent them from calling any more than you have the right to prevent McDonald's from advertising across your TV.

- Rick

[Jodi]

RS said:

No. You have every right to hang up on them or better yet, not answer their calls, but you don't have the right to prevent them from calling any more than you have the right to prevent McDonald's from advertising across your TV.

- Rick

That's a faulty comparison. One willfully and intentionally turns on the television- knowing that there will be advertisements. For your comparison to be valid, it would require advertising executives activating your television against your will, and broadcasting advertisements into your home without your consent.

If somebody calls you, and you don't wish them to, it's harassment, and that person can be prosecuted. You are completely within your rights to tell an individual to stop calling you.

Why do you believe businesses and other organizations are above that?

[RS Davis]

Jodi said:

That's a faulty comparison. One willfully and intentionally turns on the television- knowing that there will be advertisements. For your comparison to be valid, it would require advertising executives activating your television against your will, and broadcasting advertisements into your home without your consent.

If somebody calls you, and you don't wish them to, it's harassment, and that person can be prosecuted. You are completely within your rights to tell an individual to stop calling you.

Why do you believe businesses and other organizations are above that?

One willfully and intentionally gets a telephone, knowing people will want to call them. If one doesn't want to be called by unknown people, there are various remedies, including having a non-published number, caller ID, screening through an answering machine, and even hanging up on anyone one doesn't know.

I have no problem with the phone company setting up a no call list, but it is outside the government's authority.

- Rick

[Jodipants]

Hmmm. I keep getting bounced after logging in.... Anyway-

RS said:

One willfully and intentionally gets a telephone, knowing people will want to call them. If one doesn't want to be called by unknown people, there are various remedies, including having a non-published number, caller ID, screening through an answering machine, and even hanging up on anyone one doesn't know.

That's equivalent to saying that because you put a front door and doorbell on your home, you have no right to tell certain people or groups to stay off your property.

I have no problem with the phone company setting up a no call list, but it is outside the government's authority.

And therein lies the crux of your opposition- you don't believe the government has the authority to protect us from harassment. This is more about your opposition to government than about the "rights" of the telemarketing company.

That argument falls apart though, because if businesses have a 1st amendment right to call you, then they have a right to call you even if the phone company tells them not to do so.

Besides, in your setup, what is the penalty if telemarketers or violate the telephone company's no-call list?

[RS Davis]

Guest-Jodipants said:

That's equivalent to saying that because you put a front door and doorbell on your home, you have no right to tell certain people or groups to stay off your property.

You have the right to tell someone to get off your property, or to not answer the door, but when someone calls you, they are not on your property.

Guest-Jodipants said:

And therein lies the crux of your opposition- you don't believe the government has the authority to protect us from harassment. This is more about your opposition to government than about the "rights" of the telemarketing company.

That argument falls apart though, because if businesses have a 1st amendment right to call you, then they have a right to call you even if the phone company tells them not to do so.

Besides, in your setup, what is the penalty if telemarketers or violate the telephone company's no-call list?

My only opposition to the government is in securing rights against it's invasion, so you can't separate the two.

Also, they don't have the right to call you if the phone company tells them not to, any more than McDonald's has the right to advertise on NBC if NBC refuses to air their ads. You have a right to speech, but no entitlement to the means of distribution, outside voluntary agreement or self-promotion.

As it is, the phone company owns those lines, and can regulate them any way they wish. That is why they can contractually oblige their customers to not call people who choose not to be called. A side benefit is that politicans wouldn't be able to exempt themselves from that list.

- Rick

[penguin]

RS said:

Also, they don't have the right to call you if the phone company tells them not to, any more than McDonald's has the right to advertise on NBC if NBC refuses to air their ads.

Right. The first amendment only prevents the government from infringing upon your speech rights, not Verizon, a little technicality that's often overlooked when discussing free-speech rights.

[RS Davis]

penguin said:

Right. The first amendment only prevents the government from infringing upon your speech rights, not Verizon, a little technicality that's often overlooked when discussing free-speech rights.

Yeah, like people who insist to their boss that they can talk about anything they want because they have freedom of speech - that's always good for a laugh. ;D

- Rick