Political speech is protected by the First Amendment, so candidates can get around bans on spam. But just asking to be taken off a list will usually work.
July 27, 2018 12 AM Central
Welcome to The Texas Tribune's "Texplainer" series, where we answer questions from readers like you.
Hey, Texplainer: I keep getting texts and emails from political campaigns. How do I stop the spam?
With the 2018 general election just a few months away, many local, statewide and congressional candidates are looking for ways to leave lasting impressions on Texas voters. Texting and emailing has proven to be one of the more modern — and effective — ways of doing so.
But if you’re tired of those messages constantly buzzing your phone, there’s bad news. While the law clearly bans commercial email and text message spam, things are different when politics are thrown in the mix.
According to the Federal Trade Commission, it’s illegal for businesses to send unsolicited emails or text messages unless the sender gets permission first. There are several measures on the books regulating this.
For starters, Steve Augustino, an attorney at the Washington, D.C.-based law firm Kelley Drye & Warren, said consumers are protected from unsolicited telemarketing calls, automatic telephone dialing systems and text messages under the Telephone Consumer Protection Act. Another law, the CAN-SPAM Act, prohibits many types of email spam and bans the sending of emails to senders after recipients state they do not wish to continue receiving them, he said.
And the Federal Communications Commission regulates robocalls, which are phone calls initiated by an automatic telephone dialing system that often leave a prerecorded voice message. Those are banned unless the sender receives consent from a consumer before calling. Political robocalls are also policed by the FCC, though the onus is primarily on the receiver to report them.
But personalized emails and texts don’t fall under those rules. And politicians are able to skirt these measures because the messages they’re sending are non-commercial and therefore exempt from these laws.
“Those laws only apply to commercial messages and these are not commercial messages because they’re not proposing a commercial transaction,” said Hugh Brady, a law professor at the University of Texas at Austin.
Texts and emails, Brady added, are protected political speech under the First Amendment.
“A political text that just says, ‘Hey, I’m David and I’m a volunteer for this campaign,’ is not covered under the the CAN-SPAM Act or the Telephone Consumer Protection Act because those, ostensibly, are not robo-texts,” Brady said.
Julie Oliver, the Democrat running to unseat Republican U.S. Rep. Roger Williams of Austin, said her field director sent out their campaigns’ latest hoard of text messages to voters in her district last Friday in hopes of identifying supporters and soliciting volunteers.
“I host town halls and then also do blockwalking. Meeting people in person is definitely the most effective tool that you can utilize when it comes to voter contact,” Oliver said. “But are there modern tools that can be used to enhance that experience? Absolutely, and text messaging is one of them.”
For smaller, more local races, some political strategists say email and the utilization of social media sites like Twitter and Facebook are better for reaching voters.
Matt Mackowiak, a Republican consultant and chairman of the Travis County GOP, said candidates he works with often use email to send insider information, candidate updates, photos and, in some cases, ask for money.
“Every campaign is using email. If you’re not using email, I don’t know what you’re doing,” Mackowiak said. “It’s become a very basic campaign tool. And in some ways, [email] is less intrusive than someone calling you or knocking on your door.”
Wondering why you are receiving so many texts and emails? There might be several reasons, Augustino said.
For one, there’s a chance you accidentally opted into receiving them.
“A lot of times the call recipient will have given consent to the party or to another campaign and that consent was fairly broad. It covered not just that particular candidate, but might cover other candidates or all Democratic or Republican candidates,” Augustino said. “So they share the list and that information.”
Augustino said that it’s also possible that you have a recycled cell phone number.
“Particularly if it’s a relatively new phone number you have, it might have been associated with someone else who had given their consent to this particular candidate or source,” he said. “And the outbound caller has no good way of telling when a number has been reassigned.”
But there’s good news: Taking your name off a candidate’s mailing or texting list should be easy, according to Colin Strother, a longtime Democratic strategist in Texas.
Overall, he said, most politicians don’t want to bother voters. So if you want to be removed from someone’s list — just ask.
“My best advice if you’re receiving unsolicited text messages, emails or phone calls is to contact the campaign, speak to a real live human being and let them know you do not wish to receive this type of communication and ask to be removed from the list,” Strother said. “I think most campaigns will take that to heart and remove you from their list.”
“We’re in the business of trying to get people to like us. Not get people to hate us,” he added.
The bottom line: While there’s no federal law prohibiting candidates from sending voters texts and emails, there are ways to opt out of political spam. The next time you receive a text or email from a politician you don’t remember giving your consent to, try calling the campaign and asking to be removed from its list.
Disclosure: The University of Texas at Austin has been a been financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.
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