Commentary — Madison, robocalls and the First Amendment

Robocalls — I detest them. You probably do, too. If James Madison had had a cell phone when he was writing the First Amendment, he’d have pulled his powdered hair out in frustration over the frequent interruptions.

These breaches of our peace and quiet were still two centuries in the future when Madison’s quill pen scratched out his first draft. Robocallers have now joined publishers, readers, debaters, protesters, dissenters and many others in claiming the guarantee of free speech that Madison helped graft to our federal Constitution.

Legislators in Montana and Wyoming recently ran smack into Madison’s handiwork when they tried to stop the flood tide of robocalls. They banned robocalls for commercial and political purposes. Legislators in both states allowed robocalls to continue for other purposes, such as charitable fundraising.

That didn’t sit well with Victory Processing, a political consulting firm that used robocalls in both states. The company dusted off Madison’s First Amendment and put it to work to brush back Montana and Wyoming. Victory Processing argued that both laws were invalid because they violated the company’s free-speech rights.

The First Amendment prevents governments from “abridging the freedom of speech.” The company wanted to speak through robocalls. It had a strong argument. The states, back on their heels from the start because of the plain language of the First Amendment, claimed their laws were focused like lasers on avoiding the problems unwanted robocalls cause in the form of overflowing answering machines and busy phones.

It wasn’t enough. Federal judges observed that charitable robocalls allowed by Wyoming and Montana filled answering machines and tied up phones in the same way as the commercial and political calls that the states had banned. What’s more, the judges concluded that legislators had cherry-picked banned calls on the basis of their content. Speakers on some subjects could use robocalls. Speakers on other subjects couldn’t.

Interpretations of the First Amendment have become more and more complex in the years since Madison put his pen to paper. One principle is crystal clear: it is very difficult to justify laws that muzzle peaceful speech about one subject and yet allow people to freely sing out in the same way on a different subject.

If Madison were alive today, he might suggest that we look to California for laws that do not violate the First Amendment. California skinned the First Amendment cat by requiring a real person to begin calls. The guts of the message can be delivered by a robot, but not until after a real live person has made the connection and establishes that you want to hear the recorded information.

Some historians think Madison was too much cowboy and not enough horse — that is, great on theory, and not so hot when it came to putting theory into practice by actually moving down the trail. So it is in California. Robocalls still happen. But that is a problem of practical enforcement, not of constitutional law and the First Amendment.

Citizens for Community and The Nugget have joined forces to sponsor a forum on the First Amendment. It will be held on Thursday, October 24, at the Sisters Fire Hall. The event begins at 5:30 p.m. Madison is unlikely to attend, but his spirit will certainly be the loudest voice in the room.

Watch The Nugget for more about the First Amendment event. Just don’t wait for a robocall invitation!