The Don’t Call debate has reared its ugly head once again. The latest manifestation is a brouhaha about freedom of speech (rather than regulation of commerce). The argument here is better, I think, and that’s probably why a couple of federal judges have bought it. The essence of the challenge is that the DNC list improperly discriminates against commercial speech. As Jacob Sullum notes, the DNC list prevents the purveyors of most products and services from calling those who ask not to be called, but leaves a gaping loophole for equally annoying calls from charitable solicitors, political groups, and pollsters.
I find the free-speech argument intriguing but ultimately unpersuasive. The libertarian understanding of free speech rights is that they are just another species of property right. No one has a right to give a speech on your front lawn if you don’t want to listen; no one has a right to publish an op-ed in your newsletter if you don’t want to publish it. But oddly, Sullum (a libertarian) musters a straight-up free speech argument: “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.” But why should we think of it that way? If telemarketing is unlike assault and burglary, it is very much like trespassing or breaking and entering. If I’ve told you in advance that I don’t want you on my property, and you do it anyway, that’s a violation of my property rights. The same goes for making my phone ring if I’ve told you not to call me. (And that’s true even if I have decided to allow other people to call me, just as I can allow some people into my dining room while barring others.)
The better speech-based argument against the DNC list is that it unfairly discriminates between commercial and non-commercial speech. Most libertarians (myself included) think the commercial speech doctrine – which gives commercial communication second-class First Amendment status – is wrong-headed. But if you take the libertarian speech-rights-as-property-rights position, then it’s apparent that the DNC list would be perfectly fine if you could prevent both commercial and non-commercial soliciting. In either case, the government would just be helping you to enforce your property rights. By leaving a loophole for non-commercial speech, the government essentially said, “We’ll help you protect yourself against undesired commercial intrusions into your home, but you’ll have to defend yourself against undesired non-commercial intrusions.”
Why should the government make that distinction? Well, it shouldn’t. But I’d rather have some protection than no protection at all. When commercial telemarketers claim their free speech rights are being violated, they are effectively saying, “Hey, other people get to trespass – we should be able to trespass, too!” That argument doesn’t fly, because they had no fundamental right to trespass in the first place.
P.S. Apologies to H. P. Lovecraft fans for not weaving Cthulhu references throughout the post.