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Captive audiences and unwanted advertisement: The construction of public/private borders in legal discourse
Unformatted Document Text:  18 Consequently, in cases of unwanted advertisement, one rhetorical strategy in identifying harm as the basis for liability is casting listeners into particular social identities that justify regulatory action: Unlike the unsolicited bulk mail advertisement found in the mail collected at the resident’s leisure, the ring of the telephone mandates prompt response, interrupting a meal, a restful soak in the bathtub, even intruding on the intimacy of the bedroom. Indeed, for the elderly or disabled, the note of urgency sounded by the ring of the telephone signals a journey which may subject the subscriber to the risk of injury. (State of Minnesota v. Casino Marketing Group, Inc., op.cit., emphasis added) We note, however, that content-based harm could only play a role in the final decision if the listeners are able to state their social identity in terms the courts would recognize. For example, in a recent case of facsimile transmission of unwanted ads to a large class of consumers, the court stated that plaintiffs have “…mischaracterized the basis of liability as arising from defendant's mere use of the facsimile machine to send advertisements… Transmissions to each plaintiff would necessarily occur in different places, at different times and under differing circumstances. Given the individual proof necessary to establish liability, the commonality requirement cannot be met.” 24 Availability of signaling mechanisms We have seen in the analysis of early Supreme Court rhetoric that the captivity of the audience depends essentially on whether or not the courts recognize the existence of available mechanisms of signaling that certain messages are unwelcome. Signaling mechanisms, or mechanisms for “mutual involvement”, are constitutive of privacy boundaries formation (Goffman, 1963). For Altman, one’s level of privacy is adjusted through conventions of social distance and territoriality behaviors (Altman, 1975). 24 Forman v. Data Transfers, 164 F.R.D. 400, p.7

Authors: Popescu, Mihaela. and Baruh, Lemi.
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18
Consequently, in cases of unwanted advertisement, one rhetorical strategy in
identifying harm as the basis for liability is casting listeners into particular social
identities that justify regulatory action:
Unlike the unsolicited bulk mail advertisement found in the mail collected at the resident’s leisure,
the ring of the telephone mandates prompt response, interrupting a meal, a restful soak in the
bathtub, even intruding on the intimacy of the bedroom. Indeed, for the elderly or disabled, the
note of urgency sounded by the ring of the telephone signals a journey which may subject the
subscriber to the risk of injury.
(State of Minnesota v. Casino Marketing Group, Inc., op.cit.,
emphasis added)
We note, however, that content-based harm could only play a role in the final
decision if the listeners are able to state their social identity in terms the courts would
recognize. For example, in a recent case of facsimile transmission of unwanted ads to a
large class of consumers, the court stated that plaintiffs have “…mischaracterized the
basis of liability as arising from defendant's mere use of the facsimile machine to send
advertisements… Transmissions to each plaintiff would necessarily occur in different
places, at different times and under differing circumstances. Given the individual proof
necessary to establish liability, the commonality requirement cannot be met.”
24
Availability of signaling mechanisms
We have seen in the analysis of early Supreme Court rhetoric that the captivity of
the audience depends essentially on whether or not the courts recognize the existence of
available mechanisms of signaling that certain messages are unwelcome. Signaling
mechanisms, or mechanisms for “mutual involvement”, are constitutive of privacy
boundaries formation (Goffman, 1963). For Altman, one’s level of privacy is adjusted
through conventions of social distance and territoriality behaviors (Altman, 1975).
24
Forman v. Data Transfers, 164 F.R.D. 400, p.7


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