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Every time I complain here about telepredators and spammers, I get some email about how they have a constitutional right to invade my property, and that if society acts against these noxious trespassers, we're starting down a slippery slope toward repeal of the First Amendment.
That's also the argument advanced by the American Teleservices Association in a lawsuit filed last summer in U.S. District Court in Denver. It's related, but it's not the same case as the one in Oklahoma which produced a ruling last week.
There, U.S. District Judge Lee West ruled that Congress
had authorized only the Federal Communications Commission
to implement a national do not call
list that was
supposed to take effect Oct. 1. The list had been
implemented by the Federal Trade Commission. The judge thus
held that the FTC did not have that authority.
That ruling should be quickly fixed by Congress; leaders of both parties favor legislation to give the FTC the proper authority.
That's a simple administrative issue. The constitutional issue, which is before the federal court in Denver, is not so simple.
Our courts distinguish between political speech (i.e., expressing an opinion on some public issue) and commercial speech, and allow the latter to be regulated for content.
By and large, this is sensible. Few would argue that the First Amendment allows a baker to claim that he is selling one-pound loaves of bread when the loaves weigh only 14 ounces. An Adam Smith absolutist might argue that consumers are free to bring their own scales, and that the powerful invisible hand of the market will punish short-weight bakeries.
But it's inconvenient to carry scales, and where's the harm to public discourse if the butcher is not allowed to label horse meat as beef?
So we accept regulation of commercial expression. Since
the do not call
lists, as well as various anti-spam
proposals, are aimed at commercial operations, there
doesn't seem to be a serious constitutional problem.
With the non-commercial forms of free expression, the
courts have held that government can regulate time,
place and manner,
but not content.
In other words, you have a First Amendment right to walk past my house on the public sidewalk while carrying a sign, chanting a slogan, passing out petitions or the like, and thereby advocate whatever cause you have in mind. You don't have the right to stand in front of my house and shout through a bullhorn, or to dump a ream of pamphlets on my porch. (Or if you think you do, I'll be sorely tempted to exercise certain Second Amendment rights.)
As long as these regulations are neutral as to content, and serve a reasonable public purpose, the courts have generally upheld them.
The do not call
list legislation specifically
exempts religious messages and proselytizing, as well as
charities and political messages. It also has exemptions
for existing business relationships,
which explains
a call I got the other morning from the marketing people
for the Super 8 Motel chain, who apparently think that I
wanted to establish a long-term relationship after one
night in Torrey, Utah, two years ago.
Those calls are annoying and apparently legal. So also
are the ones trying to sell me a Salida Discount
Card
to benefit some local high-school club (presumably
this is a charitable solicitation), or the e-mail vacation
offers from the website where I bought some airline tickets
last spring.
It certainly appears that we're going at this the wrong
way. Instead of creating state or national do not
call
lists, as well as anti-spam laws to keep unwanted
junk from clogging the Internet, we should take the
opposite approach.
Establish registries for lists like I love talking
about new siding when I had planned to eat dinner with my
family,
I enjoy providing personal information to
strangers selling insurance over the telephone
and I
can't read enough about penile enlargement, home
refinancing and computer security patches that appear to
come from Microsoft but don't.
People could sign up for those. The marketers would buy the lists because they would get a receptive audience. U.S. Attorney General John Aschroft could make himself useful prosecuting violators, and the rest of us might be able to again enjoy the telephone and e-mail services that we pay for.
Even at that, though, the weasels will doubtless find a way around any regulations. But they will stop if they lose money, and they'll lose money if nobody responds to the solicitations. So, don't ever buy anything from a stranger on the phone or via email. We could use the market to put those 2 million telepredators out of work, and eliminate the spammers, all the while avoiding any constitutional problems.
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