Thursday, September 25, 2003

Say What? Some federal judge decided to strike down the national Do Not Call list before it even got under way. He ruled that the Federal Trade Commission has no authority to tell telemarketers that they can't call people who are pleading to be left alone.

What gets me is that this is just a random federal judge in Oklahoma City making the arbitrary decision. As far as I know, Oklahoma isn't the home to all telemarketers or any major portion of the FTC. It appears that telemarketers picked that federal court district out of the 663 judgeships in the country because they knew the judge there, Judge Lee R. West, would rule in their favor.

There's something wrong with our judicial system when the judges choose to rule not by what they believe will be upheld by national precedent, but by their own prejudices. This has happened many times before. For example, I think it's no coincidence that the three most liberal judges in one of the most liberal appeals courts in the nation got to rule to delay the California governor recall vote. The three judges on the panel ended up wasting the judiciary's time by making an obviously mistaken ruling that had to be corrected by an en banc decision of 11 members.

Now a judge has decided that people aren't allowed to voluntarily place a "No Soliciting" sign by their telephone numbers. The judge made a bizarre ruling that although Congress appropriated money to the FTC for the express purpose of creating a Do Not Call list, Congress didn't give the FTC any authority to do such.

Federal judges are appointed for life so they make decisions based on sound legal principles instead of on politics or special interests. But it appears the lifetime job security actually leads to outright partisanship and nutty decisions, with no potential recourse. And people are free to take advantage of this system by filing lawsuits with their favorite incompetent judge.

Take heart, this telemarketer ruling will definitely be overturned, either by another court or by Congress. The House has already passed a bill to put the judge in his place. Telemarketers may whine that they will be losing jobs with everyone signing on to the Do Not Call list, but tell that to the telegraph operators who lost their jobs after the invention of the telephone. Times change. Technology changes. Now, if we could only do something about all this spam.

8:18 p.m. Update: Ah, this is what I call sweet justice. Check it out!

Next day update: Here we go again. Another judge ruled against the Do Not Call list, this time saying it violated the telemarketers' freedom of speech. Because Congress will let charitable organizations cold call people at home but not let businesses do the same, the judge ruled, the government was restricting speech based on content, a big no-no under the First Amendment.

Of course, I've got a rebuttal. Content-neutral speech restrictions (such as no loud noises in a suburban neighborhood at night) do pass constitutional muster better than restrictions on specific speech (such as no Green Party paraphernalia in the same suburban neighborhood). However, courts have consistently held that businesses and advertisers have less leeway in speech than people talking about politics and other issues. That's why businesses are required by law to list ingredients in food and are held to strict false-advertising rules. If you're not selling anything, the government can't force you to say anything or stop you from saying something, unless it involves slander or serious threats.

Congress has the power under the Constitution to regulate interstate commerce, which is exactly what telemarketing is. Maybe we should call this Denver judge, Edward W. Nottingham, and let him know that.

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