Telemarketing calls and junk e-mail have become the bane of the electronic age, as persistent as Lily Tomlin’s operator Ernestine but not nearly as amusing. Telemarketing calls always seem to come at an inconvenient time, and junk e-mails–particularly X-rated solicitations–have become a plague to computer users.
Regulations against them, however, have to pay heed to the constitutionally protected right of free speech. Yes, a telephone pitch to buy a timeshare in Arizona is a form of speech.
The Federal Trade Commission unveiled a proposal last month to create a national “do not call” registry, with a free 800 number, for people who do not want to be bothered at home by telemarketers. Last week, State Rep. John Fritchey (D-Chicago) introduced a bill in the General Assembly to force commercial e-mailers to include warnings about commercial or sexual content as well as an 800 number to request removal of one’s name from the list.
The FTC’s proposal merits consideration. Fritchey’s bill may be well-intentioned, but it doesn’t have a prayer of being enforced.
Complaints about telemarketing have led some 20 states to legislate against e-mail “spam” and telemarketing calls. The efficacy and fairness of this conflicting web of state regulations are questionable–this is clearly a matter for interstate commerce regulation, if it’s a matter for regulation at all.
In the case of telemarketers, state-by-state rules place an undue burden on the industry, which is required to comply with 20 or so different don’t call lists.
Telemarketing is a huge industry, and a legitimate one. Neither the states nor the federal government have the right to regulate it out of existence or place arbitrary burdens on it because some people are annoyed. Large numbers of people respond to telemarketing pitches–otherwise the industry wouldn’t exist.
And not all the calls are commercial pitches. Should your church be prohibited from calling a list of parishioners in search of volunteers for a bake sale? Should political candidates or their supporters be prohibited from presenting their views? That’s exactly the kind of speech the 1st Amendment was designed to protect.
The courts have drawn distinctions between commercial speech and political advocacy. The former enjoys less protection than the latter. There should be a way to design federal law to create a “do not call” registry, as long as it is limited to the kind of time, place and manner restrictions on commercial speech that the courts have generally upheld.
As well, it might be easier for companies to comply with a national “do not call” registry than it is to keep up with the several registries maintained by the states. So reasonable restrictions on telemarketing would be warranted.
Regulating e-mail, though it might be desirable, involves a whole different set of logistics. E-mails originate from all 50 states and many foreign countries, and senders constantly change addresses to avoid detection. Pending development of some fiendishly clever screening software, any effort to screen out obnoxious e-mails is likely to be as fruitless as nailing Jell-O to a wall. Illinois would be better served if Fritchey and his colleagues in the General Assembly focused on more pressing issues–say, the state’s galloping budget deficit.
