On Telemarketers and Other Pests
27 September 2003

A conversation between me and a telemarketer:
“Is David there?” I know that anyone who asks for David does not know me. That’s the name on my driver’s license, but I never use it.
“Who’s calling, please?” (Just to make sure it isn’t a law enforcement officer, or some similar person it would be unwise to offend or whose leg it would be unwise to pull.)
“This is [I don’t remember now, but I think they were promoting credit cards]”
“He died. This is his brother Benjamin.”
“I’m sorry that your brother passed away, but I’d like to... [Launches his spiel]”
I interrupt. “In my family we don’t ‘pass away’—we die.” (This is not a put-on. I dislike euphemism intensely. I have always wanted to be able to use this line.)
The telemarketer replies with a tone of annoyance: “Well, died, then. I’d like to [starts the spiel again]”
“Well, you’ve got a lot of gall,” I reply, cutting him off and hanging up.

This incident occurred a year or so ago. I don’t usually mess with telemarketers’ heads. Usually I just say, “No thank you” and hang up. It should not, therefore, be surprising that I signed up for the no-call registry the day it opened, even though, if I got no telemarketing calls, my telephone would probably not ring for days on end. Now the courts are trying to give the telemarketers an inalienable constitutional right to disturb my daily activities, all in the name of freedom of speech.

Now I think that freedom of speech is an excellent thing, and I believe it should be protected. The arguments in favor of the no-call registry turn on the possibility of limiting the freedom of speech in certain circumstances, in particular with respect to commercial speech. This is the same principle that leads to limitations on advertising of cigarettes and booze; but for some reason, the principle adduced by the court in the telemarketing case has not been applied there. On the contrary is the argument that limiting speech based on its content is a dangerous move, outside the ancient common-law exceptions of slander, fraud, obscenity, and incitement to riot.

I have no problem with extending freedom of speech as far as possible. But is causing a bell or buzzer to sound inside someone’s house without his permission speech? The problem with the free-speech argument in favor of unlimited telemarketing is not freedom of speech, it is the definition of speech. The courts have been very broad in their definition of what constitutes speech, but I wonder if they have gone too far in allowing nuisances to be considered speech. If my neighbor were to play amplified music through a loudspeaker directed at my house at all hours of the day and night, I would be able to get a court order compelling him to stop, under the doctrine of public nuisance. If someone were to harass me by calling me on the telephone every fifteen minutes, whatever he said when he did so, I could similarly seek and receive legal redress.

If the law were trying to limit the content of telephone conversations, that would be a limitation on the freedom of speech; but the problem with telemarketers is not so much what they are saying, but the fact that they are initiating the conversation by disturbing total strangers in the privacy of their own homes. If they were sending pieces of mail (as they do), the recipient would have a choice whether to read them or not, and if he wanted to read them, to pick his own moment to do so. Not so with a telemarketing call. It must be attended to, at the time it is received, even if only to screen it. The proposed law discriminates between commercial telemarketing on the one hand and political and charitable telemarketing on the other: but this leaves it vulnerable to the free-speech argument and fails to take advantage of the nuisance argument. I do not accept charitable solicitations on the telephone, no matter how much I approve of the solicitor, because I want to discourage even people I like from making nuisances of themselves.

The same argument applies to people who solicit by ringing doorbells. They are creating a nuisance in exactly the same way. I have a “No Soliciting” sign on my door. Everyone seems to believe himself exempt from my request not to be bothered by strangers. Apparently, I don’t have a legal leg to stand on. Anyone can come to my door and interrupt anything I am doing to attempt to harangue me with political or religious messages. Many of these characters consider that not only do they have a right to disturb my peace and privacy, but that I have a duty to listen to them. Even worse are the pitiable waifs who try to sell candy bars and magazine subscriptions on behalf of some organization which is rescuing them from a life of crime and poverty. In a good cause, apparently, not only does my right not to be harassed fade to nothing, so do any considerations of simple politeness.