The group Patriotic Veterans Inc. has asked the Supreme Court to determine whether Indiana’s ban on robocalls – those annoying prerecorded messages that interrupt your dinner or favorite TV show – violates the First Amendment right to free expression.
Lower courts have ruled both ways on similar statutes, and the Supreme Court is the right forum for such disagreements.
Where the court might come down is anybody’s guess. A good case could be made either way, both that robocalls are protected by the First Amendment or that they are not.
If the ban is “content neutral” – in other words, if all calls are banned – then the ban amounts to “reasonable time, place and manner” restrictions on free speech that courts have always recognized. If only some calls are banned, then the ban is likely a violation of free speech rights.
That’s where it gets tricky. Indiana’s ban is aimed especially at political speech, and it makes some exceptions, such as messages from school districts to students, parents or employees and messages to subscribers with whom the caller has a current business or personal relationship.
We can debate the First Amendment implications all day, but such bans rely mostly on two principles that aren’t even in the Constitution.
• The right to privacy: We can only infer that right from various court interpretations of the Constitution.
• The right not to be annoyed: Do we have any more right to prevent someone from reaching us by phone than we do to prevent them from knocking on our door?
It is tempting to wonder what all the hubbub is about. People have so many ways of intruding on our privacy now, including the internet and social media, that it seems overly fussy to worry about recorded phone messages.
But understanding our free speech rights and limitations is vital to thriving in a constitutional republic, so every nuance counts. This would define one of those nuances.