The First Amendment:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

 Some observations I have noted from reading Supreme Court decisions regarding the First Amendment:

Free speech is regulated. No one can scream "FIRE" in a crowded theater. Sedition (inciting to revolt against the government) is a federal offense. Free speech is not protected when it causes damage, injury or when it usurps private property.

"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 439 , 31 S. Sup. Ct. 492, 55 L. ed. 797, 34 L. R. A. (N. S.) 874"

“[I]t is untenable that conduct such as vandalism is protected by the First Amendment merely because those engaged in such conduct intend thereby to express an idea.” In re Michael M., 86 Cal.App.4th 718, 729 (2001) citing Texas v. Johnson, 491 U.S. 397, 404 (1989).

The United States Supreme Court recognizes the governmental interest in protecting the privacy of the home – the “last citadel of the tired, the weary, and the sick” in Justice Black’s famous phrase – is “of the highest order.” See Frisby v. Schultz, 487 U.S. 474, 484 (1988) (upholding ban on anti-abortion protesters picketing an individual’s home).

The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another person's home or office." Dietman v. Time Inc. 449 F.2d 245, 249 (9th Cir. 1971)

The First Amendment does not require individuals to turn over their homes, businesses or other property to those wishing to communicate about a particular topic.

Throughout all Supreme Court decisions in regard to the first amendment, a recipient must be willing to receive a message or solicitation no matter the format (paper, sound, video, etc.). Telemarketing, unlike a leaflet that can be refused is forced upon the recipient whether they are willing or not.

"The telephone is an insistent master when it rings we answer it..."Comments of the Hon. Edward J. Markey (chairman), Hearing, HR Cong. Rec 101-43 (1989); 101st Cong Sess, 1st Sess on HR 638, HR 2131 and HR 2184

Other Supreme Court Decisions:

Leafleting, handbilling, etc. - "We are of the opinion that the purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it."

  1. Schneider v. Town of Irvington, 308 U.S. 147, 161, 162 (1939)
  2. Jamison v. Texas, 318 U.S. 413 (1943)
Several members of an antiwar group had attempted to distribute leaflets on the mall of a large shopping center, calling on the public to attend a protest meeting. Center guards invoked a trespass law against them, and the Court held they could rightfully be excluded. "The property rights of the center owner will overbalance the expressive rights to persons who would use their property for communicative purposes."
  1. Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)
Sound trucks, noise - the use of sound trucks to convey a message on the streets may disrupt the public peace and may disturb the privacy of persons off the streets.
  1. Grayned v. City of Rockford, 408 U.S. 104 (1972)
  2. Citing Saia and Kovacs as examples of reasonable time, place, and manner regulation, the Court observed: ``If overamplified loudspeakers assault the citizenry, government may turn them down.''
  3. Ward v. Rock Against Racism, 491 U.S. 781 (1989).
  4. Grayned v. City of Rockford, 408 U.S. 104 (1972) (sustaining ordinance prohibiting noisemaking adjacent to school if that noise disturbs or threatens to disturb the operation of the school)
  5. Kovacs v. Cooper, 336 U.S. 77 (1949)

    "That more people may be more easily and cheaply reached by sound trucks, perhaps borrowed without cost from some zealous supporter, is not enough to call forth constitutional protection for what those charged with public welfare reasonably think is a nuisance when easy means of publicity are open."
Picketing - ordinance prohibiting picketing ``before or about'' any residence or dwelling, narrowly construed as prohibiting only picketing that targets a particular residence, upheld as furthering significant governmental interest in protecting the privacy of the home.
  1. Frisby v. Schultz, 487 U.S. 474 (1988)
Door-to-door solicitation - the dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas.
  1. Martin v. City of Struthers, 319 U.S. 141, 147 (1943)
Child Pornography - In Paris Adult Theatre I v. Slaton the court adhered to the principle that obscene material is not protected by the First and Fourteenth Amendments even if access is limited to consenting adults.

Mail - Protection of unwilling adults was the emphasis in Rowan v. Post Office Dep't, 397 U.S. 728 (1970), which upheld a scheme by which recipients of objectionable mail could put their names on a list and require the mailer to send no more such material.

  1. "Nothing in the constitution compels us to listen to or view any unwanted communication, whatever its merit..."  Rowan v. Post Office 397 U.S. 728 (1970)
Radio and Television - Because there are a limited number of broadcast frequencies for radio and non-cable television use, the Federal Government licenses access to these frequencies, permitting some applicants to utilize them and denying the greater number of applicants such permission. Even though this licensing system is in form a variety of prior restraint, the Court has held that it does not present a First Amendment issue because of the unique characteristic of scarcity. Thus, the Federal Communications Commission has broad authority to determine the right of access to broadcasting, although, of course, the regulation must be exercised in a manner that is neutral with regard to the content of the materials broadcast.
  1. NBC v. United States, 319 U.S. 190 (1943)
  2. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375-79, 387-89 (1969)
  3. FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 798-802 (1978)
  4. NBC v. United States, 319 U.S. 190 (1943)
  5. Federal Radio Comm. v. Nelson Brothers Bond & Mortgage Co., 289 U.S. 266 (1933) FCC v. Pottsville, 309 U.S. 134 (1940)
  6. FCC v. ABC, 347 U.S. 284 (1954)
  7. Farmers Union v. WDAY, 360 U.S. 525 (1958).
Telemarketers have tried Free Speech defenses repeatedly and they have and always will lose that argument:

 The provision in the Telephone Consumer Protection Act of 1991 banning automated, prerecorded calls to residences is content-neutral. Congress adequately demonstrated that such calls pose a threat to residential privacy. The ban is narrowly tailored to advance that interest, and leaves open ample alternative channels of communication. Thus, it does not violate the First Amendment. Moser v. FCC, 46 F.3d 970 (9th Cir. 1995), cert. denied, 115 S. Ct. 2615 (1995). (This case reversed Moser v. FCC, 826 F. Supp. 360 (D. Oregon 1993) (United States Court of Appeals, Ninth Circuit. Argued and Submitted October 31, 1994. Decided February 6, 1995.

The bill I am introducing today falls well within the scope of the first amendment. The first amendment allows the government every right to place reasonable time, place and manner restrictions on speech when necessary to protect consumers from a nuisance and an invasion of their privacy. . . . The bill does not ban the message; it bans the means used to deliver that message. 137 Cong.Rec. S9840 (daily ed. July 11, 1991) (statement of Sen. Hollings).

Szefczek v. Hillsborough Beacon, 668 A.2d 1099, 1109 (N.J. Sup. Ct. 1995) (holding TCPA’s ban on prerecorded telemarketing calls does not violate First Amendment); cf. Bland v. Fessler, 88 F.3d 729, 739 (9th Cir. 1996) (holding California statute restricting use of prerecorded telemarketing calls did not violate First Amendment); Van Bergen v. Minnesota, 59 F.3d 1541 (1995) (holding Minnesota statute restricting use of automatic dialing and announcing devices did not violate First Amendment); Humphrey v. Casino Marketing Group, Inc., 491 N.W.2d 882, 891-92 (Minn. 1992) (holding Minnesota statute restricting use of automatic dialing and announcing devices did not violate First Amendment)

A Federal trial court judge in Missouri named Stephen N. Limbaugh, did decide that the government failed to persuade him that the junk fax provisions of the TCPA were properly written so as to pass constitutional requirements.  He held that, based on what was argued and presented as evidence, that the junk fax restrictions were unconstitutional.  That decision was not final, and was reversed under appeal.  Missouri v. Am. Blast Fax, Inc., --- F.3d --- , 2003 WL 1391192 (8th Cir., March 21, 2003)

Junk faxers have tried the First Amendment challenges to the junk fax law many times.  The highest court to address the question was a panel of judges on the 9th Circuit Court of Appeals in the case called Destination Ventures v. FCC, 46 F.3d 54 (9th Cir.1995)  In that case, the junk fax law was declared perfectly constitutional, and the junk faxers lost.  Junk faxers have now lost their bogus First Amendment arguments in federal courts in Oregon, Texas, Indiana, Minnesota and Missouri..

In conclusion; an individuals right to Free Speech is limited. To say that a marketers commercial free speech is unlimited is flat out wrong. When commercial speech forces itself on an unwilling recipient or their property, it becomes an intrusion or trespass. It becomes telemarketing terrorism!

Unsolicited Commercial E-mail will be dealt with accordingly!