Over the past couple of days, there has been an unexplained surge of interest in  an old post about the 1st Amendment.  My guess is that it was linked to some non-lawyer listserve or blog of very angry people, some of whom decided to drop by Simple Justice and give me a piece of their mind. 

Generally speaking, I’m cool with that, provided they don’t violate  the one rule of this blawg.  Some did.  Some went even further.  These are the risks one faces when you decide to blawg.

But other issues are raised by this deluge of interest and angst that merit discussion.  One of the commenters, Robert Reese, politely but insistently kept pounding the table by repeating the phrase, “your 1st Amendment right stops at my doorstep.”  After a few comments to this effect, to which I attempted to explain (obviously ineffectively) how the law applied, it finally dawned on me that the foundational problem was that Robert had no familiarity with the law and was flying on emotion masquerading as reason.

At that point, I copied in a blurb from the caselaw.  He then recognized the distinction between the law and his dissatisfaction with the policy behind it.  More on this below.

Another commenter, Christine Baker, similarly lacked any familiarity with the law, and had neglected to read the comments between Robert and I, and demanded answers to questions designed to prove that she was right and I was wrong.  Christine’s comments showed an inability to grasp logical connections, which caused her to offer this insight :

I know I’m an idiot, like all people who aren’t lawyers.

Apparently, her post hoc position managed to get in a dig against all lawyers as well as me.  But it fails to address the problem, whether she would be a lawyer or non-lawyer.  Arguments still require a logical connection, and visceral opposition doesn’t make an irrational argument stronger.  Christine ultimately resorted to her original argument, which may make perfect sense to her but provides no logical connection to her point.

And then there is my personal favorite comment, from Sam Hassan.

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 argument is.

It doesn’t get any better than Sam.

There were numerous other comments left that never saw the light of day because the posters refused to give real emails.  I could have manually allowed them, but most had the fatal combination of being ignorant and offensive.  As a manifestation of anger, I can understand why they felt compelled to make offensive comments.  As a practical matter, they just won’t appear on this blawg.  So, I hope it was cathartic for these posters, but it contributed nothing to the discussion.

And why did I bother with any of this?  Lawyers have an ethical responsibility to help educate the public on the law.  While their arguments may have been poor and irrational, their feelings about the impropriety of the subject and confusion about the law warranted some attention.  So I tried to help, recognizing that convincing someone whose beliefs are grounded in emotion by responding with logical argument is almost always doomed to failure. 

And now, a public service to my anger-ridden readers.  There is a good argument in the midst of all your anger, but you’ve been blind to it because of your efforts to ground your argument in law, something with which you are ill-equipped to argue.

Receiving an unsolicited fax of any sort is annoying.  It is a burden on your machine, telephone line, paper, toner and psyche.  While some may shrug it off, some rightfully have gotten fed up with it and have taken the offensive.  In other words, your feelings on the general subject are valid and no one disputes your right to feel as you do.  But it is emotional, not legal.  And there’s nothing wrong with that.

Legally, there are limits on what the law can prohibit.  Note the word “prohibit”, as this is what makes all the difference in the subject at hand.  No one, and no law, says you have to invite unsolicited emails, or telephone calls.  No one, and no law, suggests that you must embrace the exercise of free speech by anyone else.  You have every right to hate it and hang up the phone, tell the faxer that you want it stopped, or take whatever action you might have lawfully available to you to control the use of your telephone or fax machine.

The 1st Amendment issue in the TCPA is a different issue.  The TCPA prohibits only commercial solicitations.  We know that because it says so.  Constitutionally, that’s all it can prohibit, no matter whether non-commercial unsolicited faxes are just as annoying and bothersome as any commercial solicitation.  It is the law.  It may not be to your liking, and you can argue about the 1st Amendment stopping at whatever part of your house or business you like, but your feelings about the law don’t change what the law is.

Consider, if you will, that under existing federal law, charities are still permitted to call numbers on the Do Not Call registry.  This includes such dubious solicitations as the various pretend police charities, where 97% of the funds collected go to the business handling the solicitations, and 3% go to any actual police benefit.  This annoys me to no end, and likely annoys you as well.  And we are both entitled to be annoyed by it, but that doesn’t alter the fact that they have a right to solicit in this fashion, no matter how much we wish they wouldn’t.

Your argument, therefore, is one of policy, not law.  Perhaps it’s somewhat short-sighted on the policy side, since your concerns are limited to the particular use of a fax machine, but the protections given free speech in one context necessarily carry over to others, because courts are constrained (unlike angry blog commenters) to try to use reason to justify their decisions.  Under other circumstances, I’m sure that many of the same people would be strong supporters of constitutional rights; they just don’t like it in this context.  And it’s your absolute right to dislike it.  No one would say that you are compelled by law to be happy about something that you find annoying.

To the extent that much of the commentary misapprehended the specifics of the particular case of Stern v. Bluestone, particularly the aspect that the report involved was faxed only to lawyers who included their fax numbers in the New York Lawyers Diary as an invitation to other lawyers to send them faxes, it’s of little consequence.  The bigger issue, unsolicited faxes aside from this particular case, is a fine topic for discussion and comment.  To the extent that this helps to explain matters, it was worth the effort.  To the extent that this does nothing to clarify the law, at least I tried.