If you live in Virginia (or, I suppose in NJ or NY-23) and happen still to have a landline for whatever reason, then I’m sure you have a very special reason to be glad that election season is over for another year(ish). By the final week, Caroline and I were getting 3 or 4 robocalls a day (in our case, mostly urging us to vote for Bob “Women Should Be Barefoot and Pregnant” McDonnell, but YMMV). The blitz of calls prompted my friend Dale Miller (we’re not related so far as I know, but we are both Mill scholars with overlapping interests in political/moral/legal philosophy) to posit that political robocalls ought to be subject to some restrictions. I countered that doing so would likely fail on free speech grounds. We had an interesting set of exchanges that are mostly buried in a comment thread. Seeing as how a bunch of y’all are lawyers, though, and that a bunch more of y’all are political consultants, I thought some of you might want/be able to add in your $0.02.
For starters, some ground rules: We’re going to just stipulate that robocalls are annoying as all hell. And we’re going to bracket the question of whether they work. I suspect that there’s probably pretty good evidence that they do. My evidence for this is basically that really smart campaign managers seem willing to pay for them, and they must have good reasons for doing so. (Although seeing as how some of those same managers pay to put signs in the median of ever single road in the Commonwealth, my faith might be misplaced here.) Also, it’s probably not the smartest thing in the world to start a Con Law discussion with someone who is currently teaching Con Law, especially when you last looked at the literature somewhere around the spring of ’05. That’s really less of a ground rule and more of an observation. But I digress.
Anyway, here’s the gist of the argument thus far.
JM: Political robocalls might well be annoying, but they are clearly a form of political speech. And the Court has consistently ruled in favor of political speech over annoyance. The standard in Cohen v. California would apply here: you might find the speech irritating, but if so, you can always avert your gaze (in this case, by unplugging the phone.) That might be inconvenient, but your being inconvenienced isn’t adequate reason for limiting political speech.
DM: The “avert your gaze” standard in Cohen doesn’t apply. Cohen was on public property. Your phone is in your own private home. Moreover, my voicemail automatically picks up the content of said calls, so simply turning off the phone isn’t even equivalent to turning off my TV to avoid those ads. I’m stuck hearing them either way. Robocalls are closest to direct mail, but even there, I can choose when to pick up my mail, and the high price of mail limits the extent to which I am inconvenienced anyway.
Dale goes on to suggest at least limiting the times during which candidates can call. That doesn’t strike me as terribly unreasonable. Nor does it seem to me as if subjecting political candidates to Do Not Call registries would be Constitutionally problematic. After all, the First Amendment gives me the right to say as I wish, but it doesn’t guarantee me an audience or a particular platform. (Which is too bad, because I think I could publish a really kick-ass political magazine, if only the Constitution would guarantee me some readers. And some advertisers.)
That said, I’m not sure it’s possible to do things like limit numbers of calls. I think that Cohen is probably still the right answer, wrt the annoyance factor. One can, after all, ditch the voicemail feature. And these days, one can communicate by plenty of other methods (e-mail, cellphone, skype, etc.), so it’s not as if one can plausibly argue that turning off the landline would be unduly burdensome.
Then again, I’m a philosopher, not a lawyer. And I’ve rarely found the law lining up with the clearly-articulated, internally-consistent sets of reasons that philosophers tend to offer.