Yesterday, I argued an appeal before the Appellate Division, First Department on a case involving the faxing of a lawyer’s newsletter to other lawyers. The newsletter was a substantive essay about a particular area of law of general interest to lawyers, but the plaintiff, also a lawyer, didn’t want to receive it and sued under the Telephone Consumer Protection Act (TCPA).
My argument focused on the fact that the newsletter was protected speech under the 1st Amendment to the United States Constitution. The TCPA prohibits the uninvited commercial solicitation of goods or services via fax, under the theory that it ties up someone else’s fax, and uses their paper and toner.
Junk faxes are, without question, an annoyance, though their vitality is well past their prime as faxes are no longer a favored means of sending advertisements because the fax is a dinosaur. I opened with the point that this decision will likely have little impact in the fax world, as the problem had abated under its own weight. Technology had moved on. However, the decision would be very significant to this Court’s 1st Amendment jurisprudence, which would be applied to upcoming issues of huge importance, such as lawyer advertising. Thus, this decision should be viewed in its proper context, as this Court and the bar would live with the consequences of this decision for a long time to come. The Court didn’t seem terribly interested in this point.
Many of the recipients of this newsletter enjoyed receiving it. Some called to cancel it (which my client happily did) and others called to ask for it, because they wanted to receive it. The plaintiff lawyer, after receiving 7 issues, sued. He also sued for another 7 issues sent to another attorney who had been using his fax number but was no longer in his office.
The attorney for the plaintiff argued zealously that this was a commercial advertisement. When pushed to the wall by the judges, his only response was “why else?” Why else would an attorney put word to paper and send it out? The Court was troubled by his argument. I was offended by his argument. He was self-righteous.
But a question was posed to me by Justice George Marlow. He asked, what if my client’s fax was 1000 pages, used up all the paper and all the toner and tied up the fax for hours.
I struggled with this question. The obvious, and correct, answer is that the 1st Amendment trumps whatever inconvenience (monumental waste and annoyance) one could conjure up by taking the point to its logical extreme. Why? Because it’s the price of living in the United States of America, where we have a 1st Amendment that tells government and courts what it cannot regulate. But Justice Marlow wasn’t buying.
The judge was singularly unimpressed with the 1st Amendment. He appeared to have some experience with annoying faxes, and he wasn’t letting go. From what I could see, my first amendment right stopped at his fax machine. I argued that the TCPA was very limited in its prohibition, and was so held in order to pass constitutional muster. He didn’t care. At one point, Justice Marlow’s “question” became more of a rant against the evils of junk faxes. Not a good sign for me. Not a detached vision as one would want from a judge. But that was how it went.
After the argument, I told me client (who was present in the audience) that I wasn’t satisfied with how a dealt with Justice Marlow’s question. I told him that I just couldn’t come up with a good response.
My client looked at me and said, “Honor God.”
It was perfect. It was brilliant. It was THE answer. I wish I had thought of it.
What he meant was, what if each page of the thousand page fax contained only two words, “Honor God.” Over and over. Page after page. It’s hard to imagine anything more annoying. But it’s impossible to miss the point that the 1st Amendment precludes any law to prohibit it. While extreme (and fortunately so), it’s the price of being an American, and a price that every judge must accept.
This morning, one day after argument, it was announced that Justice Marlow will be leaving the Appellate Division bench to become the New York State court system ethics czar.
My argument focused on the fact that the newsletter was protected speech under the 1st Amendment to the United States Constitution. The TCPA prohibits the uninvited commercial solicitation of goods or services via fax, under the theory that it ties up someone else’s fax, and uses their paper and toner.
Junk faxes are, without question, an annoyance, though their vitality is well past their prime as faxes are no longer a favored means of sending advertisements because the fax is a dinosaur. I opened with the point that this decision will likely have little impact in the fax world, as the problem had abated under its own weight. Technology had moved on. However, the decision would be very significant to this Court’s 1st Amendment jurisprudence, which would be applied to upcoming issues of huge importance, such as lawyer advertising. Thus, this decision should be viewed in its proper context, as this Court and the bar would live with the consequences of this decision for a long time to come. The Court didn’t seem terribly interested in this point.
Many of the recipients of this newsletter enjoyed receiving it. Some called to cancel it (which my client happily did) and others called to ask for it, because they wanted to receive it. The plaintiff lawyer, after receiving 7 issues, sued. He also sued for another 7 issues sent to another attorney who had been using his fax number but was no longer in his office.
The attorney for the plaintiff argued zealously that this was a commercial advertisement. When pushed to the wall by the judges, his only response was “why else?” Why else would an attorney put word to paper and send it out? The Court was troubled by his argument. I was offended by his argument. He was self-righteous.
But a question was posed to me by Justice George Marlow. He asked, what if my client’s fax was 1000 pages, used up all the paper and all the toner and tied up the fax for hours.
I struggled with this question. The obvious, and correct, answer is that the 1st Amendment trumps whatever inconvenience (monumental waste and annoyance) one could conjure up by taking the point to its logical extreme. Why? Because it’s the price of living in the United States of America, where we have a 1st Amendment that tells government and courts what it cannot regulate. But Justice Marlow wasn’t buying.
The judge was singularly unimpressed with the 1st Amendment. He appeared to have some experience with annoying faxes, and he wasn’t letting go. From what I could see, my first amendment right stopped at his fax machine. I argued that the TCPA was very limited in its prohibition, and was so held in order to pass constitutional muster. He didn’t care. At one point, Justice Marlow’s “question” became more of a rant against the evils of junk faxes. Not a good sign for me. Not a detached vision as one would want from a judge. But that was how it went.
After the argument, I told me client (who was present in the audience) that I wasn’t satisfied with how a dealt with Justice Marlow’s question. I told him that I just couldn’t come up with a good response.
My client looked at me and said, “Honor God.”
It was perfect. It was brilliant. It was THE answer. I wish I had thought of it.
What he meant was, what if each page of the thousand page fax contained only two words, “Honor God.” Over and over. Page after page. It’s hard to imagine anything more annoying. But it’s impossible to miss the point that the 1st Amendment precludes any law to prohibit it. While extreme (and fortunately so), it’s the price of being an American, and a price that every judge must accept.
This morning, one day after argument, it was announced that Justice Marlow will be leaving the Appellate Division bench to become the New York State court system ethics czar.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
You have a gross misunderstanding of First Amendment law. First, religious speech is protected — not immune. Second, the content of the speech is given separate analysis from the method of delivery. Kovacs v. Cooper outlawed sound trucks, even for the most highly protected content. Time, place, and manner restrictions, such as the junk fax law, are content neutral and can be applied to any content.
Your example of the 1000 page fax would clearly be actionable under trespass, conversion, and trespass to chattels. Doing it many times would constitute an actionable nuisance.
There is one basic flaw in your 1st Amendment claim: Your 1st Amendment right stops at my doorstep. Further, you do not have the 1st Amendment right to force me to pay for your diatribe. It is analogous to me dropping off a flyer at your office then invoicing you $1.25 for the cost of the flyer.
I say it again: your 1st Amendment right stops at my doorstep.
Cheers,
Robert Reese~
I’ve decided to allow this comment, despite the fact that you have violated the coward requirement by using a fake email address (which would otherwise have precluded your comment from appearing) in order to make a point.
1. You’re an ignorant blowhard.
2. You’re a coward, by being an ignorant blowhard who doesn’t have the balls to use a real email.
3. You’ve broken the one Rule of commenting here:
Interesting, but just not the law. The constitutionality of the TCPA hinged on its limitation to commercial solicitations. You may not like it, and your phrase, “your 1st Amendment right stops at my doorstep” is cute. It just isn’t correct. Nor is your analogy valid, since the cost of a fax is incidental, but that’s obvious.
I disagree. The Constitution protects you from the government, not private parties, no matter how much you say otherwise or want it so.
And yes, it does stop at my doorstep. The cost of the fax, just as the cost of a flyer, is incidental. It is *still* a cost which you have no right to force me to bear. Which, as you stated, is obvious.
Yes, the Constitution protects you from the government. Are you missing the TCPA aspect? That would be a law enacted by Congress, signed by the President, that prohibits the faxing of commercial soliciations. That’s the government action. Is that part unclear?
As for it stopping at your doorstep, the law prohibits commercial solicitations, and only commercial soliciations. You are welcome to disagree all you like, but that’s still the law and that’s still the basis upon which the TCPA was held to be constitutional. The TCPA does not prohibit unsolicited faxes. It prohibits unsoliciated advertisements. Nothing more.
The TCPA is simply giving me, a private party, a venue in which to confront the offender.
The law does not prohibit only commercial solicitations as you assert. The constitutionality of it hinged on the burden of cost borne by the recipient, and therefore prohibits all unsolicited faxes.
And allow me to ask you: what is unclear about you not being allowed to force me to bear your costs for your speech, commercial or not? Where does the Constitution allow you trespass and theft?
Let me be clear about this: your rights stop when they interferer with mine.
I don’t write the laws. If you don’t like it, write your congressman.
Why do you have a security code for me to post a comment here. You are stripping the sapmmers of their first amendment rights.
PS I don’t really believe that, but I just wanted to show how silly your agument is.
Well, I guess you got me good with that one, Sam.
I will concede the point of the ‘commercial’ requirement of the TCPA. Having reread it, you are correct.
However, the problem of theft and trespass is still present in non-commercial unsolicited faxes. (I challenge you to find a case where there is absolutely no commercial avenue in an unsolicited fax). Using your client’s interesting point, he is certainly allowed to print a thousand pages and mail them to me, or even drop them off on my doorstep. He isn’t, however, allowed to take two reams of my paper and then take my printer and proceed to print off his diatribe and then deposit the load onto my coffee table. He isn’t allowed to do that with even a single sheet of my paper or a droplet of my ink or a microwatt of my electricity. Incidentally, he’s not allowed to do that with my tax dollars, either.
In the end, the 1st Amendment does not surmount my right of my private property.
Neither my client nor I would disagree with you at all. The 1000 pages was a hypothetical posed by the judge, not something that anyone either did, proposed to do or is contemplating doing. Wherever you (and the suddenly influx of others) obtained your information about this matter, which would not appear to be from any source familiar with the law, much of the information and reasoning has clearly been confused. Anyone who would send 1000 pages would be insane, but taking legal arguments to their logical extreme is a way of testing the validity of the theory. It is not something that any normal person would do.
Ironically though, my office has received calls from anonymous callers asking for the fax number so that they can send 1000 pages. The fact that anyone would go to the extreme of actually calling my office suggests that wherever this surge is coming from harbors some very sick people. Is this why you continue to push the issue? Is this some group of angry and disturbed individuals who act out their anonymous fantasies?
I agree with the insanity of 1,000 page fax. But I, like you, was trying to illuminate the fallacy of your argument that X has the 1st Amendment right to steal from Y and commit trespass in the process. Whether it is one sheet or one-thousand sheets, theft is theft and trespass is trespass.
On the calls, I suspect someone has blogged about your blog. I honestly have no idea from where these folks are getting your blog or your contact info; I can assure you I have nothing to do with those folks. I’d rather have an intelligent discourse than ‘play the fool’.
Since I feel I have made my point as well as I can in this medium (given my limited time) and seeing as you have been essentially ‘slash-dotted’, thus requiring you to deal with idiots (c’mon, people, don’t act like children!), I’m going to “rest my case” if you’ll forgive my choice of phrases.
It’s been a pleasure,
Robert~
(sorry about the double post. Somehow the webpage sent it in the middle of me editing my post. Please delete the first one if you are able [and have the time or inclination].)
R~
Thank you as well for an intelligent and thoughtful discussion regardless of our disagreement. I hope you’ll be back again.
Scott
Done. It’s the magic of the blawgosphere. Happens all the time.
“But a question was posed to me by Justice George Marlow. He asked, what if my client’s fax was 1000 pages, used up all the paper and all the toner and tied up the fax for hours.
I struggled with this question. The obvious, and correct, answer is that the 1st Amendment trumps whatever inconvenience (monumental waste and annoyance) one could conjure up by taking the point to its logical extreme. Why? Because it’s the price of living in the United States of America, where we have a 1st Amendment that tells government and courts what it cannot regulate.”
Not being a lawyer, maybe you can explain to me what exactly you’re saying.
Could I start doing business or simply exercise my first amendment rights in your home or office?
And while we’re there, we empty your fridge and bar?
Would THAT be a problem and if so, why?
The problem with explaining this to non-lawyers is that there is a steep learning curve. There is a huge difference between commercial speech and non-commercial speech. The quoted portion refers to non-commercial speech, while your hypothetical relates to purely commercial activity, not even speech. Speech is protected by the 1st Amendment. Commercial activity has nothing to do with the 1st Amendment.
There is nothing in you question that bears any connection to the subject at hand. I realize that it may “feel” similar, but it is totally disconnected. Without the background to understand the distinctions, it’s impossible to discuss in any depth.
Thank you. I know I’m an idiot, like all people who aren’t lawyers.
So please let me simplify the question for you:
What can I talk about in your house?
I’d like to explain to you how credit scoring harms the disadvantaged.
Is that ok?
If your attempt at an analogy is off-base, don’t blame me.
You can call, or fax, without violating the TCPA if it is non-commercial speech. That’s what the law permits. As has been hashed out with others, similarly angry and self-righteous, if you don’t like the law, write your congressman. But that is what the TCPA provides.
It doesn’t have to meet with your approval, or be the correct result. It is simply what the TCPA, and what the Constitution, provides.
1) You wrote in your 2/5/08 comment:
“You may not like it, and your phrase, “your 1st Amendment right stops at my doorstep” is cute. It just isn’t correct. Nor is your analogy valid, since the cost of a fax is incidental, but that’s obvious.”
If the 1st Amendment doesn’t stop at your doorstep, why don’t you want me in your house?
If I don’t drink your beer, it’ll cost you nothing, not even a piece of paper and ink.
2) According to http://www.law.com/jsp/article.jsp?id=1157462048575 this goes back to 2006 and Clearly the newsletter was an advertisement.
“She cited the earlier decision in ruling that Bluestone “willfully and knowingly” violated the act when he faxed Stern. The statute specifies minimum damages of $500 per fax, with treble damages available in cases of willful conduct. Stern claims he received 14 faxes from Bluestone between November 2003 and March 2005.
Bluestone said Tuesday he had altered his faxes considerably since Solomon’s earlier decision. At that time, his advisories also had stated that he concentrated in attorney malpractice litigation and that inquiries were welcome. He removed that language, leaving only his name and contact information.”
Why didn’t he remove the contact info?
Because he was looking for business.
You decided to harp on 1st Amendment rights that have nothing to do with the TCPA and as others have stated, nobody has the right to free speech at others’ expense.
You ACTIONS show that you agree with me.
You don’t even allow spamming at your blog.
It’s always fun to engage in discussion with people with such a clear vision of logic.
Logical Fallacies and Non-Lawyer Commentary
Over the past couple of days, there has been an unexplained surge of interest in
We’re Not Just Self-Promoters
When the case of Stern v. Bluestone was first discussed here, it was following a 3-2 loss at the Appellate Division, First Department, which held that “it defined common sense” to believe that a lawyer would write an essay on a legal subject and distribute it but for the purpose of advertising.
We’re Not Just Self-Promoters
When the case of Stern v. Bluestone was first discussed here, it was following a 3-2 loss at the Appellate Division, First Department, which held that “it defined common sense” to believe that a lawyer would write an essay on a legal subject and distribute it but for the purpose of advertising.