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Never say never with unsolicited spam and faxes

Law Review, Jim Porter

Sometimes our legal system sucks.

Recall suits

The seesaw legal battles over the California Recall embarrass me as a lawyer. And I don’t embarrass easily – as many times as I have screwed up.

About a dozen lawsuits were filed challenging the recall.

They have all gone down in defeat, so maybe in the end we can say the legal system works. But last month, when three federal justices put a temporary hold on the election because “poor people” would be disenfranchised, it was more than I could take.

Punch card voting worked for years in California and now that we know its shortcomings, it will work even better. It bothered me that the justices would ignore the inconvenience and expense of postponing the election date, let alone the will of the people. Fortunately they were overturned.

I may be the only lawyer in the world who actually believes judges base their decisions on the law, uninfluenced by their political beliefs, but the U. S. Supreme Court Bush v. Gore decision, and the three so-called liberal justices ruling last week halting the recall, suggests I am na’ve.

Do-Not-Call suits

But that was yesterday’s news.

Today’s news is that two different federal judges have halted the popular federal “Do-Not-Call” registry.

Last week we wrote with a certain amount of excitement about the new Do-Not-Call Implementation Act.

This week we write with tempered anger that the telemarketing monied interests have invalidated the Do-Not-Call program.

Following a lawsuit filed by the Direct Marketing Association, a federal judge agreed with the association that the Federal Trade Commission is not authorized to establish the national registry.

In a remarkable showing of bipartisan support, in less than a week Congress passed legislation to authorize the FTC to operate the Do-Not-Call list. As one representative said, Congress moved “faster than a consumer can hang up a telemarketer at dinnertime.”

It must be an election year.

That case is on appeal.

A second lawsuit filed by several telemarketing companies resulted in yet another federal judge finding the Do-Not-Call plan unconstitutional – on First Amendment grounds, because the registry allows telemarketing for charitable solicitations while commercial telemarketers are barred from calling.

The argument goes that allowing telemarketing for political organizations, charities, public opinion polls, and companies with which consumers have a business relationship, unfairly discriminates against ordinary, greedy commercial telemarketers that always call just when you least want to be disturbed – selling a product you don’t need.

If our laws are such that if you allow one telemarketer, you have to allow them all, then we ought to start over.

New anti-spam

I am not done. There is a new California law effective Jan. 1 that creates an “ask first” requirement for commercial e-mail messages.

It purports to stop unsolicited commercial e-mail advertisements to California residents and businesses. It allows political e-mails. E.g., Fund-raising for the politicians that enacted the law.

Guess what’s going to happen to the anti-spam law, just signed by the Governor with great fanfare? It is an election year. The law will be challenged by the telemarketers on First Amendment Freedom of Speech grounds.

Here is my take on their argument: Our Founding Fathers granted boiler room operators the Constitutional right to barrage us non-stop with e-mails and faxes advertising Viagra, penile implants, millions of to be made from Nigerian bank accounts, inkjet cartridges, cheap medications, body contouring, gross farm animal tricks, adult movies, miracle diets, personal messages that aren’t, and the whole gamut.

The Direct Marketing Association will sue and stop the California law, so don’t count on any slowdown of obnoxious, unwanted spams.

Did I mention that sometimes our legal system sucks?

Jim Porter is an attorney with Porter-Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. He may be reached at porter@portersimon.com or at the firm’s Web site http://www.portersimon.com


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