It's called a false dichotomy. It's the same one that allows the FTC to regulate commercial advertisements much more closely than political ones. Such things never last though--Mcain-Feingold was the inevitable outcome of the idea that any speech is regulatable for content.

I think unwanted calls are like spam. The Constitution does not give anyone a right to stuff my mailbox with trash, flood my email with spam, or disturb my peace and invade my privacy by causing my telephone to ring incessantly against my will.

Believe that, if you wish, but the fact is that the Federal Trade Commission, which established the telemarketing sales rule, was established under the interstate commerce clause of Article I of the US constitution, which authorizes Congress to regulate commerce among the states. Congress could not give the FTC broader powers than it (Congress) itself has, and so the FTC has powers limited to regulating interstate commerce. It is highly doubtful that political speech would be considered commerce, whether or not it is interstate.

My point is that unwanted calls are not protected free speech. It doesn't matter whether they are commercial or not.

My point is that unwanted calls are not protected free speech.

Why not? Because they are unwanted? That makes no sense.

If you don't want to take a call, you have several choices, including (i) getting rid of telephone service, (ii) disconnecting your phones when you don't want to take them (get call waiting--usually telemarketers don't bother leaving messages), (iii) get an answering machine and filter your calls, and (iv) answering a call and immediately hang up when you discover that it is an unwanted call. I do the quite often when a call is from an unwanted source--I don't even let them get past the "hi, I'm with ***" before I unceremoniously hang up.

That they are unwanted and inappropriate is highly relevant, because free speech is subject to time place and manner restrictions. Unwanted telephone calls have no more protection than spam, or unwanted demonstrations in front of someone's home. There is no more "right" to call someone on the phone any more than there is a "right" to knock on his door. On the contrary; there's a right to privacy. This isn't to say that telemarketers of whatever variety can't actually call people; only that they can't hide behind the First Amendment if people stop them.

Eric Scheie · October 26, 2006 10:00 AM

That they are unwanted and inappropriate is highly relevant, because free speech is subject to time place and manner restrictions

Sorry, this is only partially correct. Government may provide for reasonable time, place and manner restrictions, provided the restrictions are content neutral. That is conventional First Amendment jurisprudence. I'm surprised that you are not aware of it.

Let me understand, just how is government supposed to impose content neutral restrictions in the manner that you would like? The only way that I could see is that government could require telephone companies to provide for call-blocking services that would block telephone calls except for numbers that you have specifically told them could call you. Of course, then, you would not be able to receive calls from other numbers, some of which you may want to receive.

Two, you refer to calls with polical messages "spam," and it is spam that you object to. Now, let me understand, just how is the telephone company or anyone else supposed to determine what you believe among all of the myriad messages transmitted over telephone lines constitutes "spam"?

Three, continuing with the "political messages as spam" paradigm, would you extend that to all political messages? Suppose your neighbor, wants to call you from his/her home on behalf of a ballot measure (which call may or may not be on behalf of a candidate). Is that also "spam" that you would want to be free of? If so, just how is this neighbor supposed to know that?

Those are only a few problems with your formulation.

On the contrary; there's a right to privacy.

There is? Where does it say that? Assuming that there is a constitutional right to privacy--an assumption that has been hotly contested, as I'm sure you're aware--that only means that there is a right to privacy as against government intrusion into what are deemed private affairs. I have yet to see a global right to privacy. Perhaps you can provide a source for your contention.

I think privacy in cases like this is an inherent one like self defense -- ultimately to be enforced by the individual. (That the government has enabled rules to protect people's privacy somewhat confuses the issue, even though it shouldn't.)

I'm simply saying that no one has a First Amendment right to flood an individual with junk mail, spam, or unwanted phone calls.

I agree with the Supreme Court's formulation:

http://www.utdallas.edu/~pauls/spam_law.html

**quote** ...no one has a right to press even "good" ideas on an unwilling recipient. That we are often "captives" outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere.**quote**

They were dealing with a junk mailer's contention that there was a free speech right which overrode an individual's right to refuse junk mail, and I think the principle applies even more to phone calls, which are more invasive.

It's not so much that I want the government to protect me; only that my right to block the calls, sue for disturbing my privacy, etc. supersedes First Amendment claims to the contary.

What prompted this post was the apparent contention of the callers that they not only had the right to call in the first place, but that they had no duty to refrain from calling people after requests to stop. That's when speech becomes unwanted. No one has any such First Amendment right.

Ideally (and I know it isn't here yet) I'd like to see some electronic way to block all unwanted calls with a warning signal analogous to placing a "NO SOLICITING" or "NO TRESPASSING" sign on the front door. People who knock (absent regular callers or people with legitimate business) are trespassers.

Privacy in this context can be seen as a property right, which is of course also an individual right.