"...people's "right" not to hear, a right with uncertain roots in the first amendment theory.
It is a posture that seems inconsistent with the idea that the first amendment protects a field of robust, wide open, and uninhibited speech. If I want to impose my own epistemological filter, that's fine, perhaps, but should government help me to do so?" *** The notions of "a right with uncertain roots" and one's own "epistemological filter" seem worth focusing on. We invent new rights with some frequency, or put new labels on inchoate rights when they become choate enough. Then we trace roots and legitimize, so I don't think that's going to be the big problem to overcome in thinking about the Do Not Call constitutional-issue problem. Suppose we started from a premise such as this: Congress has the right to regulate the use of the instrumentalities of interstate commerce including the phone lines into one's home. Direct marketers (commercial) and direct marketers (political, religious) want to call residents by the millions to make their sales pitch. Residents object to sales calls, particularly commercial, it seems. Can gov't favor one category to the exclusion of others? This assumes that one can adequately isolate, by non-vague definition, the difference between a commercial call that tries to sell a new phone service and a religious call that tries to sell you a bible or on the idea of making another form of donation. Isolating categorically by creating definitions is often a most difficult problem to solve. Assuming gov't's duty is to act as neutral regulator over a communicative forum, may it impose rules of the game? Time, place, and manner rules are allowed. Content based rules are not. That seems to suggest we focus on TPM. Why, instead of rushing to legislate, as Congress did last week, does Congress not hold hearings designed to show whether this problem can be resolved using TPM technique, including advances in phone technology such as call screening, caller i.d., etc? Not epistemological filters, but useful nevertheless perhaps. Seems to me we need to hear from knowledgeable members of the mass communication industries and government about such things as opt-in and opt-out laws or lists. Fifty million people have asked not to be called in their homes. That ought to mean something legally. This is not fifty million people objecting to a sky-writing airplane at a (large) beach. We all understand the difference between being out in public where our attention can be called, to the sense of privacy we'd like to enjoy in the privacy of our home. At home we've got nowhere else to go. We don't want to be driven literally our of our homes. If gov't has no power to enter our bedrooms (Lawrence overruling Bowers), what greater right do direct marketers have to invade our living rooms and kitchens? Ah, we've installed telephones where we live? Are telephones the Trojan Horses in our domiciles? I hadn't realized. I think the Trojans, once burned, had a right to beware Greeks bearing gifts in the future. And so do the fifty million plus Americans. Our problem is in finding the right doctrine (epistemological filter?) which allows this protection and doesn't impair the FA in the process. Bob Sheridan SFLS -----Original Message----- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of Randall Bezanson Sent: Monday, September 29, 2003 8:57 AM To: [EMAIL PROTECTED] Subject: Re: Do Not Call - the constitutional question I wonder if others are concerned, as I am, about the government serving as the agent of individuals' preferences and prejudices about speech they like and dislike. This concern, it seems, would apply to the current version of the do not call registry, and more importantly it would apply to an alternative version that might give the individual a menu of choices from which to choose. I'm troubled by both versions. I understand that the government does serve as the agent of individual rights and interests -- e.g. the right to property (trespass), to quietude (noise ordinances, et al), to be free of discrimination -- and that some conventional first amendment analysis may suggest that there are no problems with the government serving such a role as long as it does not discriminate and acts out of non-speech-related interests. But it is nevertheless a troubling posture for government to be in, especially if government's purpose would be to facilitate people's "right" not to hear, a right with uncertain roots in the first amendment theory. It is a posture that seems inconsistent with the idea that the first amendment protects a field of robust, wide open, and uninhibited speech. If I want to impose my own epistemological filter, that's fine, perhaps, but should government help me to do so? Randy Bezanson Univ. of Iowa
