Saturday, September 15, 2007

The hate that dare not speak its name

Oklahoma ex rel. Edmondson v. Pope, -- F.Supp.2d --, 2007 WL 108943 (W.D. Okla.)

In January 2006, Pope hired a company to call thousands of Oklahomans and play a prerecorded message:

Stand by for an important message. Hear County Commissioner Jim Roth speak of his success in advancing the homosexual agenda in Oklahoma County. Including homosexual language into the county personnel handbook and fighting to keep homosexual books in the children's section of the library. Commissioner Jim Roth will discuss his role in advancing the homosexual political agenda on Monday, January 30th at 6:30 p.m. at Epworth United Methodist Church. Stand by for a one question survey. If you think that Commissioner Roth should continue using his position to advance the homosexual agenda press one, if you do not, press two. Thank you.

The message didn’t identify defendant or provide his contact information. (Background, and laughable defense from Pope that he was "promoting" Roth's speech, here. Roth is in charge of things like this parking garage project; I was not previously aware that shovels possessed a sexuality.)

At least nine recipients complained to the state attorney general about the calls. The issues were whether the “technical” standards of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C.A. § 227 (requiring identifying information to be included in prerecorded calls to residences) applied to political messages, and if so whether the TCPA violated the First Amendment.

The court held that the TCPA did apply. By statute, the FCC is allowed to exempt certain calls from the general prohibition against prerecorded calls made without prior consent, and it has done so for prerecorded calls not made for a commercial purpose. Pope’s calls clearly fit within the exemption. But the court ruled that, based on clear statutory language, even automated calls exempted from the prior consent requirement needed to comply with the technical requirements (which include both identification and a provision that the caller must release the line shortly after a hang-up).

Thus, the court turned to the First Amendment claim: political speech can’t be regulated in this way. I haven’t read the briefs, but it appears from the discussion that the state argued that the proper body of doctrine was public forum doctrine and that, because the telephone system is private but heavily regulated, the lower standard applied to regulation of speech in nonpublic forums should apply, allowing content-based (though not viewpoint-based) discrimination.

Wow, that could probably be more wrong, but it’s not clear to me how. The phone system is private property, but the phone system isn’t the speaker and is in fact compelled to offer carriage to everyone who can pay. It’s not like a newspaper or other private intermediary choosing what speech to publish. And in terms of government property, unlike even public parks, the phone system is designed for speech and there aren’t nonspeech activities with which particular calls compete. The idea that the government could decide that speakers uttering nonobscene sexually explicit content can’t use the phone lines, because they’re a nonpublic forum, is a bit surprising. You could, I suppose, analogize prerecorded messages to loudspeaker volume, both technological innovations that allow greater message penetration at the cost of greater annoyance to people at home, but I don’t see that public forum doctrine is relevant to that.

The court modestly declined to reject the state's manifestly silly argument. Rather, it ruled, the key is that the TCPA regulates all prerecorded messages and is content-neutral. The legislative purpose was “to protect consumers from unwarranted and intrusive prerecorded calls,” regardless of the message conveyed. Intermediate scrutiny applied: content-neutral time, place, or manner restrictions are okay if they’re narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication. Since everything you can say with a straight face is a significant governmental interest, the keys here are narrow tailoring and alternative channels.

The court found that the technical requirements “allow people receiving those calls to contact someone regarding future calls and to have use of their telephone line after hangup.” These were narrowly tailored measures “to remedy the underlying problems previously experienced with anonymous prerecorded message calls.” And they only incidentally restricted Pope’s ability to spread his message. Pope could have called residences uninvited without providing identifying information, if he’d called himself or used live operators, or he could have provided identifying information. Given the harm inflicted on thousands of Oklahomans – “uninvited calls on their home phones that contained a prerecorded, politically-oriented message with no information about its source or how to avoid subsequent intrusions” – this was a minimal burden.

The court also rejected Pope’s selective enforcement claims.

This all makes sense, except for the bit we rushed over in the beginning: content neutral? A regulation requiring all communications to include a specific piece of information – a name and other contact information – is content neutral with respect to what the speaker wants to say, but content-based with respect to what she doesn’t, if she wishes to remain anonymous. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995), a case mysteriously absent from the opinion, discusses reasons why governments want to regulate anonymity and why people might want to remain anonymous; those reasons, I submit, make regulation of anonymity content-based. (In a footnote, the court cited Talley v. California, 362 U.S. 60 (1960), another anonymous leafleting case, but distinguished it on the grounds that (1) there was no concern over fears of reprisal from unpopular speech here (wrong, to the extent it was even relevant to this facial challenge), and (2) the privacy interest here is greater.)

I am not arguing that the interest in residential privacy cannot sustain the regulation – it might – nor that other interests, such as those animating campaign finance regulation, cannot justify disclosure requirements for large-scale political speech of the type in which Pope engaged. Those are the things we should be talking about, rather than pretending that the regulation is content-neutral. Indeed, such a discussion might suggest that disclosure of contact information – specifically, a number someone could use to say “never call me again!” – addresses the relevant interests well enough that a ban on anonymity cannot survive. Anonymous unsolicited recorded calls might well be perceived as more intrusive than non-anonymous unsolicited recorded calls, so there’s still some privacy justification for a disclosure requirement. But since a political caller gets one free smear under the TCPA, it’s at least worth considering the extra benefit added by a name disclosure requirement.

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