Speech is free, silence golden

October 02, 2003|By Ellen Goodman

BOSTON -- I have always considered myself a First Amendment junkie. But this is where I sign up for rehab.

You want to tell me that a telemarketer has a constitutional right to interrupt my dinner with an offer to corrugate my roof? You want me to defend the free-speech rights of the guy who jars me out of the shower to push some credit card? You want me to believe that blocking access to my kitchen phone is a blow against the First Amendment? Finally, in this fractious, cranky country, Americans have something they agree on. Fifty million fed-up citizens signed up for the do-not-call registry.

Don't talk to me about voter apathy. Don't tell me that we're apolitical. Maybe Congress can't fix Medicare or prescription drugs. But your tax dollars at work actually solved a problem that infested more households than carpenter ants.

Then along came a series of court rulings. In the most important case, a Denver judge declared that the registry was unconstitutional. Never mind that his own telephone number appears on the do-not-call list.

Frankly, I feel for U.S. District Judge Edward W. Nottingham, whose name and number now also appear on Web sites for despairing consumers to share. But let's cut to the chase.

The lead item in the Bill of Rights was included to protect political dissent, not the sale of time-shares. Many Americans don't even realize that the First Amendment protects commercial speech. It does so under the theory that advertising can provide information as useful as, say, a campaign speech.

Since the 1970s, a company's right to extol the virtues of its product has been granted some of the same protections as the right to extol the virtues of a religion or political party. That's some of the same protection, but not all. A sales pitch, unlike a political pitch, isn't protected if it's false or misleading.

Still, the courts have gradually expanded the rights of commercial speech. Ten years ago, Cincinnati went on a beautification binge. The city tried to ban news racks filled with advertising fliers while permitting the ones filled with newspapers. But the Supreme Court declared that the city couldn't discriminate on the basis of "content" between the ugly boxes full of ads and ugly boxes full of news.

Now we go from the ugly to the annoying. When Congress and the Federal Trade Commission began dealing with telemarketing, they tried to craft a law that would allow people privacy without violating free speech. They tried to distinguish the two levels of speech.

So, the do-not-call registry blocks commercial solicitors but not charitable solicitors or political solicitors. That sounds like a sensible distinction, but one person's distinction is another judge's discrimination.

Mr. Nottingham said that telemarketers are equally annoying whether they're interrupting dinner for lawn care or Greenpeace. He ruled the government "has chosen to entangle itself too much in the consumer's decision by manipulating consumer choice and favoring charitable over commercial speech." In other words, you can't ban the folks soliciting for an asphalt driveway and allow the folks soliciting for Red Cross.

What happened next is so contorted that it rivals any performance by the Cirque du Soleil. Congress, the White House, the Supreme Court and two federal agencies were all sent twirling. And the largest telemarketing association got into the act by promising to temporarily honor the registry.

For the moment, the registry is working, but the whole mess is going to end up back in the Supreme Court. And unless the government wins, we're going to end up back at the ring-a-ding dinner table.

The First Amendment lawyers I talked with all referred to this as a "hard case," and couldn't predict the final outcome. On the other hand, they'd all signed up for the registry. Indeed, Floyd Abrams, even more of a First Amendment junkie than I, sighed, and paraphrasing Justice John Paul Stevens, said, "This is not the sort of issue American mothers bring up their children to die for."

By my count, the courts have already gone too far in protecting commercial speech. On the other hand, maybe the FTC didn't go far enough in protecting consumers. There are still a couple of ways around the constitutional question. We can treat profit and nonprofit telemarketers, commercial and noncommercial speakers alike by blocking them all. Or we can offer consumers a checklist with an equal option to block commerce, charities and politics.

In the meantime, 50 million Americans have delivered our own verdict: Speech is free, but silence is golden.

Ellen Goodman is a columnist for the Boston Globe. Her column appears Mondays and Thursdays in The Sun. She can be reached via e-mail at ellengoodman@globe.com.

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