TELEMARKETING IS NOT FREE SPEECH!
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
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
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
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.
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
it..."Comments of the Hon. Edward J. Markey (chairman), Hearing, HR
Rec 101-43 (1989); 101st Cong Sess, 1st Sess on HR 638, HR 2131 and HR
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."
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
their property for communicative purposes."
- Schneider v. Town of Irvington, 308 U.S. 147, 161, 162 (1939)
- Jamison v. Texas, 318 U.S. 413 (1943)
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.
- Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)
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.
- Grayned v. City of Rockford, 408 U.S. 104 (1972)
- 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.''
- Ward v. Rock Against Racism, 491 U.S. 781 (1989).
- 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)
- 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."
Door-to-door solicitation - the dangers of distribution can so easily
be controlled by traditional legal methods, leaving to each householder
right to decide whether he will receive strangers as visitors, that
prohibition can serve no purpose but that forbidden by the
naked restriction of the dissemination of ideas.
- Frisby v. Schultz, 487 U.S. 474 (1988)
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.
- Martin v. City of Struthers, 319 U.S. 141, 147 (1943)
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.
Radio and Television - Because there are a limited number of broadcast
frequencies for radio and non-cable television use, the Federal
licenses access to these frequencies, permitting some applicants to
them and denying the greater number of applicants such permission. Even
this licensing system is in form a variety of prior restraint, the
has held that it does not present a First Amendment issue because of
unique characteristic of scarcity. Thus, the Federal Communications
has broad authority to determine the right of access to broadcasting,
of course, the regulation must be exercised in a manner that is neutral
regard to the content of the materials broadcast.
- "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)
Telemarketers have tried Free Speech defenses repeatedly and they have
and always will lose that argument:
- NBC v. United States, 319 U.S. 190 (1943)
- Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375-79, 387-89
- FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775,
- NBC v. United States, 319 U.S. 190 (1943)
- Federal Radio Comm. v. Nelson Brothers Bond & Mortgage Co.,
289 U.S. 266 (1933) FCC v. Pottsville, 309 U.S. 134 (1940)
- FCC v. ABC, 347 U.S. 284 (1954)
- Farmers Union v. WDAY, 360 U.S. 525 (1958).
The provision in the Telephone Consumer Protection Act of 1991
banning automated, prerecorded calls to residences is content-neutral.
adequately demonstrated that such calls pose a threat to residential
The ban is narrowly tailored to advance that interest, and leaves open
alternative channels of communication. Thus, it does not violate the
Amendment. Moser v. FCC, 46 F.3d 970 (9th Cir. 1995), cert. denied,
S. Ct. 2615 (1995). (This case reversed Moser v. FCC, 826 F. Supp. 360
Oregon 1993) (United States Court of Appeals, Ninth Circuit. Argued and
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.
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
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
E-mail will be dealt with accordingly!