Can You Hear Me Now?

Published Apr 27 2007, 06:39 PM by Wendy Kaminer

        Some people actually like receiving automated phone messages from political candidates (go figure; some people like watching reality tv;) but recent increases in robocalls have naturally prompted increases in complaints about them. The New York Times reports that more than 20 states are considering restricting their use. Proposed restrictions include barring overnight calls, establishing political no call lists, or even limiting the number of calls a household can receive in one day.

        These measures will seem mild to those who consider unsolicited, automated phone calls capital crimes, but, however irritating, candidate robocalls are protected speech. In fact, as political speech, they’re at the core of what the First Amendment protects, and regulating them is not as simple– or ought not be as simple – as many of us might like it to be.

        Not all regulations raise constitutional or even policy concerns. Legislators should start with reasonable time, place, and manner restrictions, barring late night or early morning calls, even imposing 11 or 12 hour bans on calls from, say, 9 AM to 9 PM.   But restrictions on the number of calls that can be made to any household a day, even the establishment of political no call lists, are more controversial. While the restrictions can be justified by the invasiveness of unsolicited calls (you can’t ignore your phone quite as easily as you can ignore a tv or radio ad,) they might also be said to impose unacceptable limits on political speech. The calls are “cheap, easy to make, and often highly effective,” according to the Times, which suggests that they might be particularly useful to outsiders challenging incumbents.

        But who gets to decide whether and how to limit robocalls? Incumbents -- who are not known for their unselfish approach to electoral reform. We might regard with skepticism the stringent restrictions that incumbent legislators propose for robocalls, just as we might regard with skepticism limits that they place on other forms of electioneering and campaign financing schemes. (Is there any reason to think that incumbent legislators enact campaign finance reform laws that are likely to hurt their chances for re-election?)

        Maybe we should stop and consider whether we really need comprehensive regulation of robocalls, beyond time, place and manner restrictions. After all, the more numerous and irritating these calls become, the more they’re apt to backfire on candidates who use them. There may be an effective libertarian approach to the problem of robocalls that vindicates both free speech and irritated voters: Let the market decide.