The Shape of Days

Today’s topic is speech, prepared two ways.

I’ve been thinking a lot about freedom of speech lately. For reasons that escape me, one of my banks has put me into their telemarketing rotation. Six, seven times a day I get calls from a number in Wilmington, Delaware. It’s becoming a nuisance.

So naturally I thought of the FTC’s “do not call” list. Sign up with the FTC, and your name goes on a list. Telemarketers are prohibited by FTC regulation from calling any number on that list. Sounds great to me.

Problem is, it might be unconstitutional.

The Constitution says, “Congress shall make no law… abridging the freedom of speech.” It doesn’t get any more specific than that. It doesn’t say that Congress shall make no law abridging the freedom of political speech. It doesn’t say that Congress shall make no law abridging the freedom of speech as long as it’s not annoying. It says Congress shall make no law, period.

Of course, it’s not that simple. When speech presents a clear and present danger to the United States, it can be restricted. When speech impinges upon the rights of others, it can be restricted. In limited contexts, speech can be restricted for nearly any reason.

But for Congress to authorize a federal agency to maintain a list the sole purpose of which is to restrict speech… well, it raises questions.

Commercial speech is like obscenity: it’s virtually impossible to define objectively, but we know it when we see it. But the line between what’s acceptable and what’s obscene is fairly easy to draw, even though the delineation is difficult to pin down. The line between commercial speech and protected speech, on the other hand, it thinner and has a tendency to disappear altogether.

For example, if a toilet paper company called you at home to offer to sell you toilet paper, would that be commercial speech? Certainly.

What if they called to encourage you to buy toilet paper the next time you went to the store? Yes, that would almost certainly be commercial speech, too.

What if they called to ask you what brand of toilet paper you buy? Well… maybe. That could probably be considered commercial speech.

What if the toilet paper company hired a market research firm to call you and ask you what brand of toilet paper you buy? Hmm.

What if the market research firm took it on its own initiative to call you and ask you what brand of toilet paper you buy, for the purpose of collecting the data and selling it to toilet paper companies? Er…

What if the toilet paper company called you to encourage you to vote no on proposition 133, which would mandate that all toilet paper be made from silk and peacock feathers and sold for ten cents a roll? Aw, heck.

The line is blurry. For the government to restrict speech solely on the grounds that the owner of a telephone number has signed up for a list… well, that raises questions.

I don’t know what my opinion is yet. I just wish my bank would quit calling me.

That was item one. Item two on our menu of fun is this: I have a speech to give on Monday. I’m nervous. Very nervous.

I guess item two was kind of an anticlimax. I suppose I should have led with the second thing. Oh, well.

• Rove ’08
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