Pitch Battle

Should annoying phone calls be illegal?

The guy says he's calling on behalf of a police organization, mainly to tell me and my family to buckle up and not to drink and drive. Having reminded me of the legal authority wielded by the people he represents, he hits me up for money.

In exchange for my donation, he will send me a car decal identifying me as a supporter of the police, presumably to increase the odds of lenient treatment if I happen to be pulled over. How much protection money would I like to pay: $35, $50, $100? Zero is not an option.

This is one of my least favorite telephone pitches, but it's not covered by the Federal Trade Commission's "do not call" registry, which was scheduled to take effect at the beginning of the month. The FTC's rules, which threaten an $11,000 fine for each telemarketing call to a number in the database, exempt charitable solicitations, along with calls from pollsters and political groups, even though such calls are at least as annoying as attempts to sell newspaper subscriptions or long-distance telephone service.

According to a federal judge, that distinction is not only illogical but unconstitutional. Although the U.S. Supreme Court says the First Amendment does not protect commercial messages as much as other categories of speech, U.S. District Judge Edward Nottingham ruled, the government still must justify a decision to impose special restrictions on sales pitches.

"The mechanism purportedly created by the FTC to effectuate consumer choice instead influences consumer choice, thereby entangling the government in deciding what speech consumers should hear," Nottingham wrote in his September 25 decision. "The registry creates a burden on one type of speech based solely on its content, without a logical, coherent…reason supporting the disparate treatment."

Nottingham's argument is pretty persuasive, especially when you realize that the second-class status of commercial speech has no basis in the Constitution. The First Amendment, after all, does not distinguish between a proposal to refinance your mortgage and a request for money to help save the baby harp seals.

Once you think of telemarketing as a form of speech that people are free to accept or reject—in contrast with, say, an assault or a burglary—you have to wonder whether the government has any business trying to stop it in the first place. It's hard to see how your rights have been violated when you pick up the phone and find that the caller is a stranger you'd rather not talk to.

Don't get me wrong. I hate telemarketers as much as the next guy—probably more. I've got caller ID and the Telezapper, a device that's supposed to convince automated dialers your phone is disconnected. If I answer the phone and there's a tell-tale second or two of silence, I hang up immediately—at the risk of missing calls from distracted friends or hanging up on my mother when she calls from Jerusalem.

Still, it seems to me that telemarketing is a nuisance that should be addressed by phone companies, which could prohibit come-ons to customers who don't want them, threatening to cut off service to offenders. If the good will of their customers is not sufficient motivation, they could charge a little extra for solicitation-free service—or, alternatively, charge marketers to reach receptive households. The government could encourage such private solutions by removing regulatory barriers and fostering competition in local telephone service.

Instead, the Federal Communications Commission is promising to enforce the rules that Judge Nottingham stopped the FTC from implementing. That stance in undeniably popular, but it's a mystery why a plan that violated the First Amendment when the FTC tried it would be constitutional with the FCC in charge.

The popularity of this program does not reassure me. The same day Nottingham issued his ruling, almost every member of Congress voted to override another judge's determination, announced just two days before, that the FTC did not have statutory authority to establish the do-not-call registry. "Fifty million people can't be all wrong," Sen. Charles Schumer (D-N.Y.) declared.

I doubt that the 50 million or so people who signed up for the registry were expressing an opinion about whether the FTC's revised Telemarketing Sales Rules were authorized by the Telemarketing and Consumer Fraud and Abuse Prevention Act. But Schumer's sentiment is clear: Might makes right. If something annoys you, there ought to be a law. And if enough people share the feeling, there will be.