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Comment by lotusleaf1987 | Hacker News Reader

lotusleaf1987

Printing the books isn't the act that constitutes speech, it's the act of passing them out to others. To ban their 'dump[ing]' and spamming is unfortunately tantamount to banning their speech altogether.

I'm don't disagree with the law, I actually support it, but I think it's very likely it will ultimately be repealed.

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No one wants to ban passing them out. It's just they want to ban passing out advertising without consent. I don't think that's barring free speech in any way, is it? Also, don't littering/nuisance laws start to come into play, at some point?

What's the difference between a phone book and a similarly sized brick with "Jesus loves you -- call us to find out more" on it? Can I go around leaving bricks all over the place under the guise of free speech?

|No one wants to ban passing them out. It's just they want to ban passing out advertising without consent.

This may be the one sticking point they have around it. However, I wonder how this is any different than junk mail? Junk mail just pays the Post Office, how is that better/worse than paying an employee to pass out the flyer/phonebook/etc?

I think this is an interesting case and I'm looking forward to the outcome.

I don't know, but I would guess if junk mail is different, it is because of the special letter delivery laws that the US Post Office has. It would probably require some "CAN-SPAM" equivalent type law for letters to get rid of junk mail. But, as the PO gets paid for each letter, I doubt any such law would get through.

Exactly, but if I was the lawyer defending the phonebooks, that's exactly the argument I'd make--that the PO was no different and that paying a government employee to deliver the document* shouldn't make the act any more legitimate than paying your own employee to do so. You could argue it's anti-competitive or that it's essentially a bribe to the government as well.

*Document meaning any letter, junk mail, leaflet, flyer, or phonebook.

They have to cross on to private property to deliver them.

It depends though, private property that is open to the public is different than private property that is protected.

"Open to the public" considerations in trespass is generally a concept applying to commercial property. If you allow passage for all, you can't restrict it arbitrarily. No kids, no black people...you can't charge people with trespass if the property is generally open to the public (speaking of a mall rather than a bar with legal restrictions). My apartment building is not open to the public, though I suppose the sticking point is that my porch is, absent signage or other fence-y stuff.

| If you allow passage for all, you can't restrict it arbitrarily.

I know more about private property in regards to the 4th Amendment, but in those situations anything that is accessible to the public, like a walkway to your front door, driveway, etc those are all legally permissible areas for a police officer to be, even though they haven't been invited onto your property. I'd imagine they'd make a similar argument that you can't have a part of your property open to the public but then only restrict people passing out phonebooks/flyers/etc.

What about an opt-out? Is it suppression of free speech to not be tortured with phone calls during dinner every, single, night?

I'd arguably be more upset about this due to the complete waste of resources and generation of additional litter.

(edit, as someone else has noted, there appears to be an opt-out. I'd have to say I'd argue in favor of letting them then. )

I really don't know, I'm a paralegal not a lawyer yet. Everyone in this thread is bringing up interesting points.

An opt-out is a good defense that the companies should have done a long time ago to avoid criticism and getting into this situation in the first place. It's doubtful that too many people would take advantage of it, and the companies can just point and say "see, we allow an opt-out!".

But as a society, I think an opt-out is a poor thing to encourage. If the behaviour is not acceptable, why should people have to opt-out, instead of opting in?

They've had this for many years: http://www.yellowpagesoptout.com/

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