It Isn't So Easy to Put Those Marketers on Hold
By Stuart Banner
Sunday, October 5, 2003; Page B03
The phone rang twice the other night while I was trying to put my daughter to bed. One call was from a telemarketer trying to sell me something; as usual, I hung up before I could find out what it was. The other call was from an old friend I hadn't heard from in years. I was delighted to hear his voice. After finishing up the bedtime story, I called him back and settled in for a long chat.
The calls were equally annoying while the phone was ringing. Both interrupted our nighttime ritual. Before I knew who the callers were, I hated them both. But of course in the end my reactions to the calls were completely different. And this difference may shed some light on the dilemma facing the regulators who are trying to implement "do-not-call" registries and the judges who are deciding whether such registries are consistent with the First Amendment.
It's hard to think of a court decision in recent years that has aroused more anger than U.S. District Judge Edward W. Nottingham's ruling late last month that the planned do-not-call registry to be administered by the Federal Trade Commission is inconsistent with the First Amendment. The notion that freedom of speech includes a right to bother people at home with sales pitches struck many as absurd.
I'm no fan of telemarketing. I signed up for the federal registry on the day it opened for business, and a few years ago, when I lived in St. Louis, I signed up for Missouri's successful do-not-call registry, one of the models for the federal version. But given the practical details of do-not-call registries, and given the current state of the Supreme Court's First Amendment jurisprudence, there's nothing absurd about Nottingham's decision. There just isn't any way to implement a do-not-call registry without inviting First Amendment challenges.
Unwanted phone calls are a genuine pain in the neck. If we could find a way to screen them out before they arrive, we'd all be happier. The difficulty is that some unanticipated phone calls turn out to be pleasant surprises, and there's no way to tell, as the phone is ringing, which call will be which. In theory, we could establish a do-not-call registry that covered all unexpected calls, but I wouldn't sign up for that -- would you? -- because I'd miss out on the good ones. We could set up a caller-ID system that automatically blocks calls from unfamiliar numbers, but I wouldn't sign up for that either, because so many of the pleasant surprises, like the call from my old friend, come from numbers I don't know. Regardless of our law or our technology, it's impossible to separate, in advance, the calls we want from the calls we don't.
The closest we can come is an imperfect substitute. There's one category of calls I know I don't like, and those are sales calls. A do-not-call registry that covered only commercial calls wouldn't be a perfect way of separating the good calls from the bad, but at least it would eliminate a big chunk of the bad without depriving me of any of the good. I must not be the only one who feels this way, because do-not-call registries covering commercial calls have been extremely popular with telephone subscribers in the states where they have been established.
This is why do-not-call registries discriminate on the basis of the content of the speaker's message. They apply to sales calls, not to all calls. We could expand the prohibited content to include other categories of calls people might find annoying -- charitable solicitations, political campaigns, surveys, whatever -- but no matter how we define the scope of the registry, some kinds of calls will be covered and some won't. We'll inevitably be discriminating based on the content of the call. There's no other practical way to run a do-not-call registry.
And that is why do-not-call registries are susceptible to First Amendment challenges. The issue is governed by two general principles established by the Supreme Court. One is that the government needs a very good reason before it may discriminate based on the content of speech. The point of the First Amendment is to prevent the government from playing favorites by burdening some kinds of speech but not others. The second principle is that advertising is a valuable form of speech, too. We all have to spend a significant fraction of our time buying things, and, for all its faults, advertising is the primary way we learn about the locations and prices of the things we need. In some respects, advertising receives less First Amendment protection than other kinds of speech, but the first principle applies: The government can't discriminate against advertising without, at the very least, a good reason for doing so.
The classic example is the 1993 Supreme Court case Cincinnati v. Discovery Network, in which the city of Cincinnati tried to prohibit news racks containing advertisements, on the ground that the news racks were ugly, without also prohibiting news racks containing newspapers, which were equally ugly. The Supreme Court found that the distinction violated the First Amendment, because Cincinnati had no reason for playing favorites. The city could have banned both kinds of news racks, or none, but it could not ban only one if the basis for doing so applied equally well to the other.
In his decision, Nottingham straightforwardly followed Cincinnati v. Discovery Network. Commercial calls are annoying, he reasoned, but other kinds of unwanted calls, such as charitable solicitations, are equally annoying. He concluded that the government had failed to provide a good reason for including sales calls but excluding other calls.
But what if the registry had included charitable solicitations, too? Following Judge Nottingham's reasoning, an expanded registry would have violated the First Amendment rights of charities and telemarketers, both of whom could have pointed to yet another equally annoying category of phone calls -- say, political campaign messages -- that were not subject to the registry. And if the registry included political calls? Now we would have three classes of plaintiffs, all of whom could rightly say that their speech was being burdened while other people's equally annoying speech -- calls from survey researchers, for instance, or even overly chatty neighbors -- was left unregulated. It's not Judge Nottingham's fault. He's just applying Supreme Court precedent. The problem is that there's no way to administer a do-not-call registry without discriminating on the basis of the content of the calls.
Nevertheless, judges don't usually pursue constitutional doctrines to their logical end if doing so would require dashing the hopes of tens of millions of Americans (especially if some of those Americans are judges, as I imagine they are). So the smart money says Nottingham's decision will get reversed on appeal. Two strategies, a narrow one and a broad one, are available to the government's lawyers. The narrow one is to work within the framework of Cincinnati v. Discovery Network, by trying to demonstrate that sales calls really do cause problems that other calls don't -- for instance, that telemarketers are more prone to commit fraud than other callers, or are more likely to ignore a request not to call again.
The broad strategy is to escape the framework, by arguing that the First Amendment's general presumption against discrimination on the basis of the content of speech should not apply to do-not-call registries, because individual telephone subscribers, not the government, are the ones doing the discriminating. This argument will rely on Rowan v. U.S. Post Office (1970), in which the Supreme Court upheld the constitutionality of a statute that in effect allowed homeowners to sign up for a "do-not-mail" registry that applied only to advertisements for sexually provocative material. The implication of Rowan seems to be that a registry can authorize private individuals to discriminate against communications of a certain content, as long as the ultimate decision to exclude rests with the individual rather than the government.
If either of these arguments prevails, the do-not-call registry will be back in action. The government should prefer winning on the broader ground, however, because it will apply just as well to other methods of direct advertising. Lurking around the corner is similar litigation over curbs on advertising by electronic mail. Spam was inconceivable to most people 20 years ago. Twenty years from now, who knows how the sales pitch will reach us?
In the end, I suspect that telemarketing will survive despite a do-not-call registry. Telemarketers will have fewer numbers to call, but each number they call will be more likely to yield a sale because, thanks to the registry, their list of numbers has been pre-screened to eliminate the people least likely to be receptive to the pitch. There must be lots of people out there who buy things from telemarketers -- otherwise, the industry wouldn't exist. Whoever those people are, they can expect the phone to ring more often.
Stuart Banner is a professor of law at UCLA and has written about advertising and the First Amendment.
© 2003 The Washington Post Company |
