Wednesday, March 19, 2008

Legislation would ban "robocalls"

Here is the text of HB6323, a bill that would ban most "robocalls" -- especially those annoying calls that just won't stop during election season. Exemptions would be permitted for "(i) a public safety agency notifying a person of an emergency; (ii) a school district to a student, a parent, or an employee; (iii) a subscriber with whom the caller has a current business relationship; or (iv) an employer advising an employee of a work schedule."

The bill was introduced by Republican Reps. Timothy L. Schmitz of Geneva and Ruth Munson of Elgin, presumably in response to widespread disgust over the abuse of robocalls in the recent Oberweis-Foster cage match in the 14th Congressional District.

Since the bill was proposed by Republicans it presumably will sink without a ripple. This would be a shame.

I live in the City of Chicago proper, far away from the 14th District, but we were also besieged by robocalls (also spelled robo-calls) during the Primary season just past.

In one story I saw about this proposal, it was mentioned that House Speaker Michael Madigan expressed concerns that banning robocalls might constitute an impermissible restriction on free speech.

But "robocalls" are merely a means for conveying someone's message; the content of the messages is constrained only by the richness of the vocabulary and checkbook of the person buying access to the autodialer.

And in thinking of it this way, it occurred to me that a case I read about this week in the Chicago Daily Law Bulletin might provide a useful analogy.

Patricia Manson's article for the March 12 issue concerned a tattoo parlor that claimed its constitutional rights of free expression were violated when the City of North Chicago denied a special use permit for its proposed location. Manson reported that Senior District Judge James B. Moran dismissed the tattoo parlor's claims.

Moran's opinion can be found in Hold Fast Tattoo, LLC v. City of North Chicago, 2008 WL 656077 (N.D.Ill. 3/7/08). Analyzing the tattoo parlor's free speech claim, Moran wrote, "To determine whether an activity warrants First Amendment protection, the court must determine whether there was intent to convey a particularized message and whether there is a great likelihood that the message would be understood by those who view it." (2008 WL 656077 at *2.)

Moran concluded, "The act of tattooing fails the first prong of this test because the act itself is not intended to convey a particularized message. The very nature of the tattoo artist is to custom-tailor a different or unique message for each customer to wear on the skin. The act of tattooing is one step removed from actual expressive conduct, which is similar to a sound truck, which enables each customer to express a particularized message, but the sound truck vehicle is not expressive. The Supreme Court, in R.A.V. v. St. Paul, noted that a noisy sound truck is a 'mode of speech' because it can be used to convey a message, but 'in and of itself' it is not protected by the First Amendment. 505 U.S. 377, 386 (1992) (quoting Niemotko v. Maryland, 340 U.S. 268, 282 (1951)." (2008 WL 656077 at *2.)

It seems to me that eager volunteers working a phone bank are different than a machine repeating one recorded message ad nauseum to anyone foolish enough to answer their phone. Autodialing machines repeating political messages should be accorded no greater constitutional protection than soundtrucks... or tattoo parlors.

With any luck, the leadership will co-opt this bill, or put through a similar one of their own. If I had an autodialer, I'd program it to call their offices and offer encouragement.

I got more information about HB6323 from this post on via The Capitol Fax Blog.

1 comment:

Shaun said...

This is the season that politicians introduce bills that look good to the public but have no chance of moving through the legislative process to become law.

There is an alternative to regulations which run square into first amendment issues.

I started a non-profit, non-partisan organization last year to combat intrusive robo-calls by using a voluntary, private sector solution: the Political Do Not Contact Registry. As a result I was asked to testify at the U.S. Senate 2.27.2008 along with N.C. Attorney General Roy Cooper.

Our registry is similar to the federal government’s Do Not Call list. But to succeed it requires politicians who will honor the wishes of voters who’d rather not endure the endless robotic, political phone calls during campaign season.

Congresswoman Virginia Foxx (R-NC) was the first Member of Congress to join us. She has taken the pledge and agreed not to robo call constituents that sign up for free at the National Political Do Not Contact Registry at We commend her leadership on this important consumer issue that impacts the privacy of all voters. As one frustrated Mother wrote us: "I find it very frustrating... I tend to get calls at the WORST time. I have a one year old daughter, and it NEVER fails that the phone will ring when I put her down for a nap or for bed.”

Voters’ phones will soon be ringing off the hook this Fall. Fed up voters can visit our web site at and add their names to our free Do Not Call registry. It’s time we give the political dialogue back to average, concerned citizens.

Shaun Dakin
Founder & CEO, the National Political Do Not Contact Registry