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Judge Rules Political Robocalls Are Protected By First Amendment (onthewire.io)
Trailrunner7 quotes a report from On the Wire: A federal judge has ruled that robocalls made on behalf of political candidates are protected by the First Amendment and cannot be outlawed. The decision came in a case in Arkansas, where political robocalls had been illegal for more than 30 years. On Wednesday, U.S. District Court Judge Leon Holmes ruled that banning political robocalls amounts to an infringement of free speech protections and also constitutes prior restraint of speech. Political campaigns have been using robocalls for decades, and some states have sought to ban them, arguing that they are intrusive and violate recipients' privacy. In the Arkansas case, the state attorney general put forward both of these arguments, and also argued that the calls can tie up phone lines, making them unusable in an emergency. Holmes said in his decision that there was no evidence that political robocalls prevent emergency communications, and also said that the Arkansas statute should have banned all robocalls, not just commercial and political ones. "The statute at issue here imposes a content-based restriction on speech; it is not one of the rare cases that survives strict scrutiny. The state has failed to prove that the statute at issue advances a compelling state interest and is narrowly tailored to serve that interest," Holmes wrote.
Sanity Mode.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
My phone line does not have to accept every call made to it.
Funny how autodailers were illegal when it was just hackers using them to poke around.
Does this mean that robots are protected under the U.S. Constitution?
Can they vote for the candidate they are calling for?
Judges are elected politicians in the US.
It is "equally first amendment" to block them. The actual issue here is just that the ban singled out specific types of robocall instead of blocking them all. The Judge didn't say you can't block them because first amendment, he said you can't single them out to be blocked based on their content.
I'd require that those robocalls be done by humans for it to count as "free speech". If we go by this judge's ruling, then, hey, putting a tape recorder on the assembly floor would be an acceptable fillibuster strategy, no?
A federal judge has ruled that robocalls made on behalf of political candidates are protected by the First Amendment and cannot be outlawed.
It should be illegal for them to ignore the federal do-not-call list, and for them to call cell phones period. The First Amendment doesn't say I have to provide anyone a platform at my expense or my inconvenience.
The state has failed to prove that the statute at issue advances a compelling state interest
Wouldn't it be novel if a law only had to show that it advances a compelling CITIZEN interest?
A sane, factual, well thought-out, and reasonable post? I haven't seen that on Slashdot in months!
Someone should organize the "Do Not Call" political party and put him on a hourly loop with vitally important messages.
So, if I understand correctly, the judge ruled the 1st Amendment guarantees that a party using a specific mode of communication has an unfettered right to communicate their message even though other modes of communication are available to use and are less obtrusive. Does this mean that cell phones can now be blind dialed by these political robocallers?
The House Un-American Activities Committee (HUAC) next it will be illegal to hang up on them
applies to Judge cunts who allow politicians to fuck with the entire population while they rip you off at the same time.
Ban ALL robocalls. This would mean that your dentist will need a real person to phone an appointment reminder, but that's a small price to pay.
So make it equally first amendment to block them. My phone line does not have to accept every call made to it.
This. I should be able to set up a "EULA" on my phone, my mailbox, my email account and whatever else communication channel I have indicating what forms/groups/types of contact I will accept. Anyone wishing to contact me would have to self-certify that they belong to a category I'll accept. Then you can make it an offense to lie, just like on immigration forms.
Live today, because you never know what tomorrow brings
The judge didn't rule that political robocalls couldn't be banned, but rather that you couldn't JUST ban political robocalls. Generally, content-based restrictions on speech face a much higher hurdle than form-based restrictions. If the law had banned ALL robocalls, it might still have been overturned, but by only trying to ban SOME robocalls, the law was banning speech based on its content (political vs. charity message), and that's a very tough hurdle to get over.
The actual issue here is just that the ban singled out specific types of robocall instead of blocking them all.
The state law closed the loophole the politicians left in the federal do-not-call system. Yay for the state. Serving the interests of the citizens and not the politicians.
Free speech is not the right to blast your message into someones bedroom at four in the morning. It is also not the right to break into your house and talk to you incessantly while you are having dinner. And it is also, therefore, not the right to break into your house electronically (using a phone) to talk to you incessantly while you are having dinner.
you have no right to compel anyone to listen.
The federal Do Not Call list should be strictly enforced. You have the right to speak, but that doesn't mean that anyone must listen to what you have to say.
Not to mention the bit implying that a compelling *state* interest would justify abridging the First Amendment.
I mean, it's a constitutionally guaranteed right, shouldn't abridging it require a compelling *public* interest? That is, protecting the rights of other citizens, as is the case in the classic example of yelling of "Fire!" in a crowded theater? If a compelling state interest is sufficient to abridge our constitutional rights, then those rights exist only so long as they don't interfere with the state's accumulation of power.
--- Most topics have many sides worth arguing, allow me to take one opposite you.
would like to give this judge a call.
This is where legal theory and practical reality are colliding.
* It does not make rational sense that we allow commercial companies to use robocalls for advertising.
* It does make rational sense that my child's school can robocall the parents if there is an unexpected early dismissal.
Back when commercial robocalls were allowed, people were inundated with calls. The dinner time advertisement recorded call was a regular event in our house during the 80s and 90s. Even now, where it is mostly illegal, sometimes a person's number gets on a list and they have to get a new phone number because the robocalls make their phone unusable. This happens with email addresses all the time.
Even a strong free speech advocate can see that the practical effect of calling robocalls "speech" is crazy. Not all forms of "audible vibrations that form words" is speech. If that were so, we would have people (heck, robots!) with megaphones trolling the streets spewing advertising and scam vacations.
Since when is calling me on my private phone anyone's right, let alone protected speech? It is one thing to say that politicians may not buy advertising space in a paper or on a web site that otherwise carries advertising or that they can't stand up on a soapbox blathering forth in a public space. It is quite another to decide that anyone has the right to call my phone whenever they want for any purpose they might have in mind. My phone isn't a public space and calling me isn't your first amendment right!!
Given that it's not a person making the call, surely freedom of speech doesn't apply.
It's going to suck.
HBI's Law: Frequency of calling others Nazis is directly correlated with the likelihood of the accuser being Communist.
Did you read the decision or the summary? By the judge's logic if I can rent a robot to follow and berate you 24 hours a day, 7 days a week that is perfectly acceptable as long as it is for political speech and not for commerce. He specifically held that privacy interests of citizens was not compelling and talks about another decision that held that "residential peace and tranquillity" are insignificant when compared to political speech.
I suspect that this ruling is symptomatic of the varies demographics of the ruling class being divorced from the People of the country. Many of the elite -- judges, politicians, the wealthy -- do not drive, do not use phones, do not shop, etc. They have "people" for that. And if those "people" are distracted, annoyed or incensed by a pernicious nuisance then it is no more than an abstract notion.
Rest assured that if it ever left the realm of the abstract that action would be taken. Not for the benefit of the People, naturally. For examples of this look no farther than the No Fly List whose constitutionality goes unquestioned, but when one of the elite (Ted Kennedy) was inconvenienced by it the rules were changed. Not to abolish it, make it transparent, provide for a removal mechanism, or anything of the sort. No, there was behind the scenes activity and no powerful senator will gain have to face the No Fly List.
Door to door salesmen are supposed to skip houses with "No Solicitors" signs, but are now doing so saying they're conducting surveys.
It's high time *all* of us became political candidates - no matter how inane and minor the position, and start flooding the bigger candidates with robocalls to serve the state's interests.
Tell him how you feel: 501-604-5380 US District Judge J. Leon Holmes 500 West Capitol Avenue, Room D469 Little Rock, AR 72201 501-604-5380 Courtroom 4D Staff Information Law Clerks: Nicole Swisher, Lauren Summerhill Courtroom Deputy: 501-604-5384
the issue wasn't that they were banning robocalls, it was that they were banning specific types of robocalls, by content.
That's iilegal.
It's also hard... if Donald Trump wants to call people offering you a hat, he can say anything he wants.
The actual issue is that unwanted robocalls are already handled by the national do-not-call registry, but the politicians have exempted themselves from the relevant laws meaning they do not have to respect the do-not-call registry.
Using this judge's backwards reasoning, that is a violation of the 1st amendment and said exemptions must be shat upon.
YEE HAW! Lets see how long that lasts.
I subscribe intentionally to the do not call list with all my numbers. Some political hack calls me I simply won't vote for them. I have a good memory for people that show me no respect or courtesy so will go out of my way to vote for their opponents.
The power of the Boycott works for Politicians too!
-The wise argue that there are few absolutes, the fool argues that there are no probabilities.
Robots don't have rights.
Now if it were a live person calling on behalf of their politician of choice, then maybe this judge would be on to something and only if the recipient isn't on the national DNC list or if they request to be added to the telemarketer's DNC list.
Even if political robocalls are protected, shouldn't there at least be some provision to have all robocaller phone number registered? The idea would be to allow people to a) block them if the so choose b) prevent 'political' [insert product here] robocalls?
Jumpstart the tartan drive.
The state law closed the loophole the politicians left in the federal do-not-call system. Yay for the state.
The state could have accomplished the same end by banning all robocalls that the recipient didn't specifically sign up for. Since that wouldn't be based on the content of the calls it wouldn't be subject to this particular 1st Amendment challenge. By banning politicial robocalls in particular they guaranteed that the law would be found to violate the 1st Amendment.
"The state is that great fiction by which everyone tries to live at the expense of everyone else." - Bastiat
Thing like this do make me pine for the days of actual switched circuits; when an airhorn, or even a really good whistle, could send enough signal and generate a loud enough noise to cause pain to the person on the other end, especially if they were wearing a headset. Yes, I know we're talking about robo-callers here. But they're almost always solicitations such that some keypress or another will connect you to someone in the organization calling you.
Imagine all the people...
Is that they are usually 'brute forced' or from a list of people who may or may not have consented.
I assume the non-political/commercial robocalls are in fact targetted services, like your hospital robocalling you to remind you of your appointment (someone who's read the law in question please correct me.)
There are valid uses for robocalls, but they should be consent-based and for the direct benefit of the recipient. (Obviously this wording can be abused to allow political/commercial calls as well, so it would need some refinement for actual legal use.)
That judge just pretty much declared my phone to be a public place, in other words, I am under no obligation to pay for it, it's tax funded now. Yay!
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
And get it put on every spam list.
How does a machine have more rights than a person?
If a LIVE person want to dail a phone number and talk politics, that would be fine. But having a machines rights superseed a person's right to privacy is ridiculous! Why should the receiver have to PAY to receive an unsolicited call from a machine? Yes, some people pay per minute or pay to have a phone and don't list or provide their phone number to anyone they don't want to be called by, but still receive robocalls.
No where in the ruling does it specify the language must be english or the language of the recipient. Use your fax machine to send a political message to the judges and politicians
This was a STATE law, that prohibited most robocalls (including political ones), but had a few exceptions, such as for charities. The South Carolina robocall law struck down last year had the same problem... it prohibited almost all robocalls, but permitted debt collection calls.
You can't favor one type of call over another based on content. Duh.
The federal law (47 USC 227) prohibits all robocalls to cell phones without express consent regardless of content. The law has no exemptions based on content (although the FCC created some administrative exceptions like package delivery robocalls, to the extent those are unconstitutional the FCC's administrative exception would be struck down, not the federal law that is content neutral). An exemption for emergency purposes (such as robocalls about contaminated water, civil emergency, etc.) is in the federal statute, but that is not content based.
If politicians are guaranteed "free speech" to come into your house via your telephone, then can't they also be guaranteed to walk into your house for "free speech?"
I think your translator broke right after your started your second sentence. The Republican candidate did not win by coin toss, they won by popular vote. People don't like that very much, but that is a fact. The Democratic candidate won by coin toss, drawing cards, collusion within the Democratic party and it's insiders, and collusion with media. Again, that is factual.
I generally don't have Presidential candidates robo-calling, I have people at Congress/Senate or State level pestering me. Note that TFA says specifically "political" calls, not just "presidential candidates".
-The wise argue that there are few absolutes, the fool argues that there are no probabilities.
it means that if you're gonna pass a law to block robo-calls it has to block _all_ robo calls. You can't single out one type of call based on it's content.
Hi! I make Firefox Plug-ins. Check 'em out @ https://addons.mozilla.org/en-US/firefox/addon/youtube-mp3-podcaster/
Let them robocall my number all they want!
804-358-0560
Vic Gresham, Owner
http://conquestgroup.com/
Having political opinion shoved down your throat as fact is the same thing as a street evangelist following you around with a loudhailer. It might be free speech but it is HARASSMENT when you are clearly walking away with NO INTENTION of listening.
No. I'll go one step further. It's like a penis. It's all good having religion or a political opinion because it shows at least some awareness of the world outside your immediate bubble, and you should be rightly proud of your wang, but the SECOND you start shoving it down people's throats, conversations shall be had. In the Roman sense of the word.
Political debates have me rolling my eyes so much I think I got optical whiplash. I should sue. - Foamy The Squirrel
Let me be one of many to point out that robots are not people. Politicians... well, they are lower than robots in my book, but fine, if one of them wants to call me *personally*, I'll tell them everything I think about them.
And more importantly, the 1st amendment bars *Congress* from limiting speech. The federal do-not-call list is *opt-in*. Which means it's *I* who expresses the desire to limit speech I hear. Totally my right to scream "nananana, cannot hear ya" any time I want! Nothing to do with Congress. They are just providing the tools for me to exercise my right to not be bothered.
I'm here to announce that if I get a robo call from a political candidate, I will under no circumstance vote for that person.
I encourage everyone else to do the same.
If your opponent starts making fake robo calls to trick me into not voting for you, I guess you should have tried harder to ban their use.
Later suckers!
“Common sense is not so common.” — Voltaire
Federal Judge uses robocalls during re-election campaign. Talk about conflict of interest.
And the headline was inaccurate and sensational compared to the post itself? Shocking!
That one.
So if I set up a robot that calls all political parties and members of the house once a week urging them to stop robo-calls then that is also free speech. If 10000 others follow my example their phone lines are clogged.
Whose First Amendment rights?
The robots are US citizens?
The scammers and political Robocalls have enticed me to not answer the phone unless I know exactly who is calling. The Telephone system is now a liability, and not much more. The home phone displays who it is, and the mobile phone doesn't even ring unless the number is in the contacts list. So they can both go fornicate themselves/
The shepherds did so well protecting the flock that the sheep no longer believed that wolves existed.
"...no evidence that political robocalls prevent emergency communications..."
Of course not... everyone who could complain died in the fires that weren't put out, or before the could successfully call for an ambulance to save them from their heart attack, or because their phone rang while they were hiding under the bed as the killer searched their room while they were waiting to press "send" on their 911 call...
By the judge's logic if I can rent a robot to follow and berate you 24 hours a day, 7 days a week that is perfectly acceptable as long as it is for political speech and not for commerce.
If someone followed you with a robot 24/7, that would eventually become "harassment." A single robocall from a candidate does not fall under the banner of harassment.
The actual issue is that unwanted robocalls are already handled by the national do-not-call registry, but the politicians have exempted themselves from the relevant laws meaning they do not have to respect the do-not-call registry.
Political speech has always been treated differently, from day 1. Unlike commercial speech, political speech is granted specific leeway in the US Constitution.
I guess it still hasn't gotten through.
White listing solves the problem. I just downloaded a free, as in beer program from Kaspersky for my phone that does exactly that. Now, what was the issue again? We don't need any laws in this area. And now I can say that outlawing robocalls is a violation is the 1st amendment. The theme here I believe is to turn more people against the uniquely American free speech laws, and really the entire Bill of Rights and beyond. We should be very suspicious of the people behind this. Clinton already wants to turn over Citizens United. It would be a grave mistake to allow a constitutional convention at this time with all these fascists making so much noise. Be afraid, be very afraid. This is taking us into the abyss of tyranny.
“He’s not deformed, he’s just drunk!”
It banned commercial and political campaign calls, but not all political calls. " The court, applying strict scrutiny, held that the statute was not narrowly tailored to protect the governmentâ(TM)s purported interestâ"to protect residential privacy and tranquility from unwanted and intrusive automated calls. Id. The statute restricted two types of automated callsâ"consumer and politicalâ"but permitted unlimited proliferation of other types, so the statute was underinclusive. Id." The AG argued that those were the only types of calls they received complaints about but what people actually want is of course irrelevant. Then after saying the law wasn't broad enough he went on to say it was too restrictive. Yay for contradictions!
That's why the first amendment claims in cases like this makes no sense. Freedom of speech never used to entail being guaranteed an audience, it meant that the authorities couldn't decide who was and wasn't allowed to speak.
The problem here is that there's no way that people can opt out of these robocalls and there's virtually no cost associated with calling and since in most races all the candidates are doing it, you can't even put a damper on it by refusing to vote candidates that use robocalls.
But, this is hardly the first time that judges got this issue wrong, I remember years ago that the telephone book people sued to stop a rule that they had to have permission to drop their phonebooks off on people's doorsteps. It didn't even require that the recipients opt in, it just required them to respect the recipients opt out requests.
Yes, but previously it wasn't invading your home.
It's one thing to say that they can say whatever they like in public, have it broadcast on TV and radio and such. It's quite a bit different saying that they can ring you up at home as often as they feel like because it's political speech.
The only reason the judges rule like that is because they know it helps they're chances of being appointed to higher courts.
Seriously, someone should start a service where you can pay $1.00 to robocall every politician that purportedly represents you, and deliver a custom message of your choosing. $2.00 for premium voices, like Indian support center guy, or the annoying chick from you navigation app (you know the one).
No, you just didn't think about it. This is a straightforwards and obvious ruling, there is nothing "backwards" about it.
And they don't analyze it that way, adding and subtracting the State and Federal laws from each other. Each has to be legal on its own. The Federal law does not matter here. The State law simply isn't allowed to try to plug the loophole (that Congress intentionally included) in the Federal law by examining the content. If they want to regulate it, they have to do in a content-neutral way; with a blanket ban. What do you suppose is the problem with that? If some robocalls are banned by both, that isn't a problem.
You might have simply been confused by the headline, and jumped on a bandwagon prematurely.
Not at all.
Part of speech is being able to make it. Blocking robocalls is similar to banning speech in the town square. The phone is specifically designed for people to contact you so you do not have to be in some public place.
So if you do not want robo calls, lobby your state to make a law that all robo calls must register the originating number 24 hours in advance and that telephone providers have to allow customers the option to block them by default if they desire. This now goes from blocking speech in the public square to you intentionally avoiding the public square when said speech is happening.
> Part of speech is being able to make it.
Part of speech is listening to it. Free speech means a limit to the prohibitions that can be put on a speech maker, not legislative support to help me with my message or force anyone to listen.
The problem with rulings like this, and most of US supreme court rulings are like this, is that besides in this instance giving 'free speech' to a machine, is that it removes all limits and responsibilities from the actor (the robo-caller). Can voters now robo-call all politicians, with a daily message? Also in this instance, the judge has defined how the robo-caller should be legislated.
Fuck that. Set up a robocaller to call a random number from a list of political parties and representatives that use robocallers to give them a message that they suck and their use of rocoballers means you wont use them.
It'll be a short list, so a good parallel caller with access to multiple lines should be able to keep most of the senate permanently engaged.
DOS the fuckers.
I'm not sure what your point is. You do not have to listen to the speech. Just hang up.
I'm not sure what your point is. You do not have to listen to the speech. Just hang up.
It is not "just hang up". It is also "just" having to interrupt your meal, "just" having got out from under your car that you were repairing (and cleaned your hands up), "just" having come in from the garden where you were digging a flower bed, "just" having to break off a conversation with some visitors, "just " being woken up from sleep you happen to need it in the day. I could go on, but I hope you get the point.
Blocking robocalls is similar to banning speech in the town square. The phone is specifically designed for people to contact you so you do not have to be in some public place.
Are you nuts or was that just a wind-up? I can walk away from a town square but I cannot walk away from my phone or house. My phone installation was not designed to hear public announcements, it was designed for me to talk to friends and to businesses I want to deal with..
None of that is unique to the phone. I can go to your front door and all is the same. Of course you can ignore the door, but you can do the same with the phone. All the phone adds is easr in doing it.
Your phone was designed for you to be contacted too. You can refuse to answer the phone or hang up or unplug it or whatever. It is no different than the politicians going around knocking on doors when you are not at the public square outside of the effort needed.
By banning politicial robocalls in particular they guaranteed that the law would be found to violate the 1st Amendment.
You are aware that there are significant bans on political speech that have not been found to be unconstitutional, I hope. And specific rules for political speech that do not apply to other types. Also not unconstitutional.
A computer robocall is not being made by a person so it is NOT speech but a synthesized simulacrum of speech. There is no constitutional right to harass a person by automated means.
Without a person on the other end to get upset at being cussed out for disturbing you there is no satisfactory retaliation to garbage calls.
That judge needs his decision challenged.
NRRPT/RCT
The attorneys representing in Victor Gresham and Conquest Communications Group are in violation of their oaths to uphold the Bill of Rights.
Specifically, they are in violation of rights arising under the 9th Amendment, "rights retained by the people", and the 10th Amendment, "rights reserved to the people". The right to not be disturbed by unsolicited phone calls in one's home is such a right. The right to not have one's time wasted is also such a right, and a particularly important right as it is a corollary to the right to ethical practice of law - one of the most important rights in a society based on the rule of law, and a right that is often violated in the USA.
Also, in general, advertising must be opt-in, including advertising for a political cause, or a religion, and not just goods or services, as another right arising under the 9th / 10th Amendments.
This does not come into conflict in any way with the 1st Amendment, which is explicitly limited to restricting the authority of Congress. The Bill of Rights, as the highest law in the land, is higher legal authority than Congress, and as such can create limitations on behavior that Congress can not, particularly commercial behavior, including making political calls for pay. That's the primary reason we have a Bill of Rights.
An ethical and competent attorney would recognize these considerations, and would not have taken this case.
Legal professionals having multiple, very serious ethical conflicts of interest with regards to recognizing the 9th Amendment, this isn't merely an accidental or technical violation of the oaths sworn by parties participating, it's unethical practice of law. Further, any attempt by other legal professionals to keep these people in the profession makes them accessories to the original violation.
Nothing in the Bill of Rights limits its applicability, in general, to practicing legal professionals, or to non-governmental parties such as commercial businesses.
The actions of Victor Gresham and Conquest Communications Group are in violation of the law - as is any organization engaging in unsolicited robocalls, excepting those situations that any reasonable person would accepts, such as emergency notification by appropriate authorities. Any precedents to the contrary exist in violation of the Bill of Rights, and are invalid. No entity of government can take away rights retained by the people, by definition, and as a matter of ethical practice of law, especially including those rights that protect people from having portions of their lives used to serve the purposes of others without their consent.
They need to be held accountable for that. The US code already provides for civil and criminal penalties for violation of fundamental rights: no additional laws are needed to take action on this. Further, the exceptions made in the "Do Not Call" act, which contradict points made here, come into conflict with the Bill of Rights, and in any such conflict the Bill of Rights is superior.
It's more like blocking speech made in my house. As far as I'm concerned, being on my phone is equivalent to being in my house, and nobody is allowed in my house uninvited.
Outlawing robo calls - political or otherwise - is NOT an infringement on the 2nd Amendment. The 'speech' is not being denied. Just the act of forcing it upon people. Put the speech where we can get to it when we want it. I will come to see you speak before I cast my vote. I want to have the right to OPT-IN to things, not be forced to hear them, or have to OPT-OUT.
Privacy trumps this decision here. I have the right to not be bothered by ANY unsolicited call on my phones. My phones are tools for MY use, not a path for unsolicited anything.
Incidentally, mail is another abused media. near 98% of all mail I get is JUNK! If ew were to let those trees live rather than become junk mail, would it help reduce CO2 and slow climate change?
Self-importance and self-indulgence is the root of ALL evil.