If you are a stripper in a nightclub, or an aluminum siding salesman phoning Americans at suppertime, your activities are fully protected by the First Amendment. That is the import of last week's decision thwarting the Federal Trade Commission's Do Not Call list. But if you are a political organization like the American Civil Liberties Union or the National Right to Life Committee, you may not run advertisements 60 days before a general election urging Americans to vote for or against any candidate. That is the state of the law at this moment.
So the kind of speech the founders were most keen to protect -- explicit political expression about important public policy matters -- is slapped down, while invasions of privacy are not. The Supreme Court recently heard arguments for and against the McCain-Feingold campaign finance law, and we can hope that they will give it the heave ho. But honestly, how can it be possible, in a nation that claims to love freedom, that political speech must be rescued by the Supreme Court, while commercial speech is permitted to barge into your very home?
As federal judge Edward Nottingham noted in his ruling, the courts have traditionally shown great solicitude for our privacy: "The Supreme Court has recognized that ‘preserving the sanctity of the home, the one retreat where men and women can repair to escape from the tribulations of their daily pursuits, is an important value.'" And, quoting the Supreme Court in a 1970 case involving unwelcome mail, "'The concept that a man's home is his castle into which not even the king may enter has lost none of its vitality.'"
Well, that's a relief. But why the kibosh on Do Not Call? Nottingham found that the FTC regulation was unfair because it permitted some kinds of intrusive phone calls and not others. Charities and politicians were not to be included among those who would be barred from calling people who had registered for Do Not Call. This, he said, amounted to the government deciding -- based on the content of the speech -- what consumers could hear and was thus too much government interference.
But the privacy argument has not been urged nearly as firmly as it deserves. Leave aside the charitable-commercial distinction for a minute. Am I under any obligation, under the First Amendment, to permit a salesman or advocate into my home to express his view or urge his product on me? Of course not. When you knock on my door, it's up to me whether to permit you entry or not. It seems to me that I could, consistent with the First Amendment, adopt a policy of never permitting anyone to enter my home. I could even surround my home with barbed wire and put a huge "Keep Out" sign on the fence, right? It might not make me the most popular person in the neighborhood, but no one would suggest that I was infringing the free speech rights of the traveling salesman.
Why is it any different with phone calls, or emails for that matter? It isn't as if the Federal Trade Commission decided, without any contribution from citizens, who would and who would not be permitted to phone us at home. The Do Not Call registry was completely voluntary. Each citizen who signed up for it made the choice to block sales calls to his home.
Still, it is true that politicians conveniently excused themselves (and charities) from the restrictions of Do Not Call, and it isn't at all clear that they deserve this exemption. Political speech deserves the highest level of protection in the public sphere. But the public sphere stops at your front door.
It's extremely regrettable that a reported a 5.4 million Americans might lose their jobs due to this law (the Congress, in response to the court's decision, has rushed through legislation to permit Do Not Call), and that the economy may lose $275 billion annually. Advertisers will simply have to find more creative ways than interrupting our dinner to get their message out.
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