The Direct Marketing Industry’s Assault on First Amendment Rights

"Write Everything Right!" by Denny Hatch

The art and science of prospecting are officially dead

This is about my trip around the world and how I hand-built a list of prospects for my new book, “Write Everything Right!”

My Role Model: Richard Viguerie
Back in the 1960s, conservatives
whether political candidates, policy groups, or activist organizationshad no way to get their message past the filter of the liberal mainstream media and into the hands of the American people. —From Richard Viguerie’s Official Biography

In 1965, Viguerie, age 32, discovered a list on file with the clerk of the U.S. House of Representatives. It contained the names and addresses of all $50-plus donors to Barry Goldwater’s campaign. All were in public domain.

Viguerie spent many hours in the bowels of the Capitol laboriously hand-copying the names and addresses of these 12,500 donors. This became the base of Viguerie’s fledgling business: “now the largest list of active charitable and conservative donors in the world: Viguerie Political Lists.”

Over the years, Richard Viguerie has sent out billions of mailings and raised millions of dollars.

Without Viguerie’s geeky little prospecting effort in 1965, both Viguerie and American politics would be all the poorer for it.

The Key Markets for “Write Everything Right!”: Print Media
Newspapers are dying. The numbers:

Every morning, newsroom employees wake up with a renewed sense of dread.

I believe—down into the core of my being—”Write Everything Right!” is what journalists and editors absolutely need. With my revolutionary information about writing and design, my book will save jobs and save publications.

My Trip Around the World
In searching for journalists and editors who should be made aware of “Write Everything Right!” I traveled the globe. Using my desktop computer this past winter, I set out on a huge journey.

Denny Hatch is the author of six books on marketing and four novels, and is a direct marketing writer, designer and consultant. His latest book is “Write Everything Right!” Visit him at dennyhatch.com.

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Comments
  • John Miglautsch

    We just set up a new email server for sending out my little spam messages (everyone on there has personally ‘connected’ with me in some way).

    You’re right, even supposedly open sending servers have plenty of speed bumps. And whom do you call when you’re black listed?

    You can try facebook – they don’t seem to mind sending my posts… except that the messages only go to about 20% of people who call me friends – ugg.

    If you’re going to get treated as a spammer – you gotta think like one. Obviously there is no real blocking of spam – my inbox is jammed full – and I really do read the titles – even in my junk folder.

    If you need help defending the 1st amendment – you know where I’m hiding – @JRMigs

  • John Kremer

    Most services like Constant Contact, aWeber, etc. don’t allow their users to import a list that has not had double opt-in, and some of those services even require your first message to say: Do you want to be on this list? Of course, most people say no. So a list like the one Denny has developed has few options.

    Personally, I get over 1,000 emails a day, most spam (and most filtered out by Gmail). Since I rarely check the 800 email messages marked as spam by Google, I know I’m missing some things. But 200 wanted emails are as much as I can deal with every day.

    My email address is publicly available on my websites because I do want to hear from people who have something I’m interested in (like Denny’s messages). So I live with an open policy, get lots of spam, but would rather get that spam that not be accessible to the people I want to hear from.

    I have noticed in developing my own list of bookstore email addresses that about 20% of the publicly listed email addresses bounce back. I just don’t understand why any business would publicly announce an email address that doesn’t work.

    I do believe that, like Denny, if you make your email address publicly available, you are giving people – anyone! – permission to contact you.

  • Tim Orr

    Good afternoon, Denny!

    I have my spam filter shut off (or at least, as shut off as I can). Things still end up in the spam folder sometimes. How they get there, I do not know.

    Nevertheless, I agree with others that it is only the Congress that is bound by the First Amendment, not private firms, like Google or Gmail.

    Like Barbara Graham, I have used the "small batch" method. And she is absolutely right: tedious.

    Nevertheless, I have heard so much from so many about their disgust at "spam" that I can understand why folks like Yahoo and Gmail would not want to incur their ire. Thus, they block all they suspect are spammers, and in so doing, block some who are not such.

    People gripe about "junk mail" too. And of course, the best remark I’ve ever heard on that was from, I think, Freeman Gosden, Jr., who said, "The only ‘junk mail’ you get is the mail that doesn’t interest you."

    Now, what if the USPS were to set up an e-mail system? Might they, as an agent of the government, be so bound by the First Amendment that they could not block "spam"?

  • Brent Gardner

    If you drill down, what we have here is the same problem I see in many areas of life: Government, or as I often refer to them in a pejorative fashion, gooberment overreach. Excessive and extraordinary meddling in our lives.

    I’m licensed by the states to negotiate contracts of insurance, but the several states, and then the federal goobers, have enjoined me from calling prospective clients on the telephone, while they exempted themselves from the same law. So the state charges me fees and taxes to obtain and maintain a license, then prohibits me from using the best tool to communicate to prospective clients with. For those that aren’t paying attention, the Do No Call lists are now permanent (numbers used to fall of after five years, but now they are there forever). Yet there has not been a single successful prosecution at the local level to enforce these laws, nor any successful civil torts that I can find. I’m not counting large conglomerates, who invariably have a loophole through interlocking directorates that enables them to legally bypass the intent of the law.

    I maintain lists of agents in the tens of thousands, have always used double opt-in methods to gain permission, and I still have lessor beings click the spam button on me. Even with the double opt-in, one spam button click can void a list, and even get my account shut down. Maintaining a backup list is a good idea, but one can’t import that lit into another service and expect any forgiveness when someone intentionally, or accidentally, clicks the spam button.

    I receive thousands of emails per day, and don’t have time to read most of them. Several times a year, I have to cull myself out of lists I’ve intentionally subscribed to (or been tricked into). As it is, twice a day I have to manually select several hundred emails for immediate deletion, because there’s not enough time to read even a fraction of them.

    As a result, I don’t send out that many emails to my own lists, because I don’t want to bore them into either un-subscribing, or just deleting without reading, my well crafted prose.

    The upside of all this is that the old fashioned methods of prospecting still work: Walking in businesses, asking for the owner, manager, or other relevant decision maker. Telemarketing businesses remains perfectly legal.

    Direct mail still works, too.

    As you noted, subscriptions to newspapers are declining. I read not long ago that the number of cable TV subscribers has been declining for five straight years. People are "unplugging" for lots of reasons. For privacy reasons, people are paying for remote mail boxes and mail drops. I know people who have taken their mail box down, and no longer accept mail at home. The one place where some marketing potential exists is with apps on smart phones, but I expect that to reverse eventually, as people tire of having their phone buzz all day long with texts and spam.

    Fortunately for me, my high touch methods of marketing still work, but it takes a lot of time and sweat equity.

  • former dm guy

    Denny, it may pay to try one of those services like Constant Contact or Mail Chimp. Low-cost marketers & nonprofits use them for large mailings that I receive all the time. No gmail etc. to boot you out.

  • Bruce Apar

    Sorry, Mr. Hatch, but this reader finds your precious premise yet another unfortunate example of how people are all to quick to exploit and define down the First Amendment for self-serving purposes. (We see it when public figures are penalized by employers for making comments that offend — a la Duck Dynasty and Mozilla — and apologists for the offenders invoke the First Amendment, as if it also is a guarantee of not being fired or suspended from a job.) The Founders obviously were talking about freedom to express opinions — in their minds political opinions mostly, but any kind of opinion. To interpret the First Amendment as a sacred shield for the right of marketers to promote a good or service any way they want, or as a sacrament of entitlement, is a transparently specious rationalization of the first rank and of the First Amendment. By your reckoning, the Federal Trade Commission violates the First Amendment when it regulates and restricts various aspects of selling and buying in this country, such as bait-and-switch tactics. You are entitled to your loose constructionist interpretation that the Constitution can be wielded as a cudgel in defense of hucksterism, but this prospect ain’t buying the P.T. Barnum routine.

  • Scott Wheatley

    What I find perplexing is that I can cut down a tree, create a dm piece, use fuel and contribute to "climate change" to send a dm piece to your mailbox without a wimper. Send you an enviromentally friendly email that can be deleted with a simple keystroke and you would think I just killed your mother.

    Makes no sense to me.

    Perhaps if google, hotmail and yahoo received 5 cents per email delivered, their policies may change.

    Scott Wheatley

    Vancouver BC

  • Barbara Florio Graham

    This is yet another example of giving spammers an advantage the rest of us don’t have! I maintain contact my carefully-culled email media list by sending messages in small batches. It’s tedious, but effective. Butit would be impractical to try to reach thousands of contacts that way. Yet spammers reach me every day, selling a wide variety of services, most of which are totally unrelated to my needs or anything I do. This is why so many marketers are using social media to reach out. But only LinkedIn reaches key media. I now have 1,785 contacts on LinkedIn, although that has taken a lot of time to build. One columnist for the Ottawa Citizen just replied to an email I sent him with the comment: "I’m not surprised to hear you knew (him). But then, you know everybody."

  • Russell Perkins

    Denny, An interesting column with a lot of points being made, and thus a little difficult to unpack in this limited space, so I’ll limit myself to a few comments:

    1 – I do think Google and Yahoo have the right to disallow bulk email transmissions through their services for reputational and other valid business reasons. What I find more pernicious is that many of the big email service providers (i.e., companies in the business of sending bulk emails) are also moving towards full opt-in list policies. How is one supposed to distribute marketing messages in this environment?

    2 – I also believe you have the absolute right to hand assemble a curated mailing list and to send relevant marketing messages to that list. This is the essence of good marketing, and I don’t think it merits the label of “spam.” If we all have the right to not be bothered by unwanted promotional messages, what does this mean for all other forms of advertising? What makes email special? Indeed, CAN-SPAM requires only that marketers allow an easy way to opt-out of future messages.

    3 – Commenter Bruce Apar makes an articulate argument that marketers somehow degrade the First Amendment by seeking its protection. However, the Supreme Court for many decades has recognized the concept of “commercial speech,” and indeed has constructed a high bar for government to limit or regulate it.

    4 – Personally, I find comments such as the one made by Seth Godin a bit precious. Having achieved fame and fortune, Mr. Godin seems to be trying to pull the ladder up after him by setting a high standard for others who don’t yet have his marketing platform. I believe Mr. Godin found his success through social media, a channel that demands in effect that you yell louder than everyone else. By definition then, only a few will succeed. What are his suggestions for the rest of us?

    5 – Note the fine line being walked in the DMA ethics policy, which essentially says you can send all the unsolicited email you want (the business of many of its members), just don’t permanently append email addresses to your database without some indication of interest from the recipients.

    I get nearly 400 emails a day. Much of it is the junk messages that all of us would readily label as “spam.” Yet in our eagerness to eliminate these messages, we are promoting draconian rules and policies that don’t acknowledge that there is a valid place for valid email offers, provided they are sent on a reasonably targeted basis. All marketing is not evil, and our email inbox is not a sacred and protected space.

  • Rob Z

    I can’t totally agree with Mr. Hatch, although I sympathize with his complaint. Private companies such as Google and Yahoo cannot violate the First Amendment. Like the rest of the Bill of Rights that amendment only proscribes what Congress cannot do. But Bruce Apar’s reading of the First Amendment is completely off base. It does not only protect political speech, but ALL speech. It protects the expression of all ideas and opinions. It is Denny Hatch’s opinion that professional writers would benefit from reading his book. He has every right to express that opinion, whether it is right or wrong, and whether or not Mr. Apar considers it offensive "hucksterism." The speech of Lenny Bruce was offensive to many, but it was protected under the First Amendment. So is "hucksterism," no matter how offensive some people may find it. Personally, I find gratuitous attacks on other people’s freedom offensive, but I wouldn’t dream of calling for a law against them.

    The real violation of the First Amendment in this case is the one Denny Hatch highlights in his last bullet point before his takeaways: the CAN-SPAM ACT and it’s interpretation by the Federal Trade Commission. Congress, through the Federal Trade Commission may legitimately regulate fraudulent statements, but it has no authority under the Constitution to limit commercial speech per se. If that act did not exist, Google and Yahoo might try to limit so-called "spam," but other services would step in and provide a legal service to legitimate commercial customers such as Mr. Hatch.

    Denny, save your ire and your fire for overzealous regulators and unconstitutional laws. Use your considerable reach to call for the repeal or reform of CAN-SPAM (an opt-out requirement is about all that is really necessary). Google and Yahoo (and Constant Contact, etc.) are only operating under its regulations. Change the law, change the regulatory environment, and your right to email anyone you want about whatever you want will be protected.

  • hummer

    while I truly enjoy your posts both for their humor and witt and usually agree with your point of view, I strongly disagree with your position on this post. From a pragmatic standpoint, without filters, your inbox would becomr so cluttered that it would become totally useless and well targeted emails would be lost amongst the sea of junk we would receive. Free speach is not an imperative. Yelling "fire" in a crowded theater can land you in jail, yet it is a violation of free speach.

  • Steve

    Denny, you say the government has violated the constitutional right of the first amendment?

    Contemplate this:

    Today, most people have the mistaken impression the Constitution limits the power of government at all times. The truth of the matter is, during a state of war or national emergency, the President and Congress can do virtually anything they wish if they feel that it is necessary for the safety and security of the nation (starting wars, giving trillions of $$$ to foreign countries, bombings like Iraq, Libya and other Arab countries, drones, assassinating Americans without trial, etc.)

    During periods of war or national emergency the Constitution is suspended in favor of an active or passive martial law. On March 8, 1933, all of the state legislatures voted to declare a state of national emergency and to suspend the Constitution, giving the President authority to assume dictatorial powers during the Great Depression. On March 9, 1933 President Roosevelt announced the nation’s financial crisis (the country was in bankruptcy) necessitating the temporary suspension of the Constitution.

    In 1917, President Woodrow Wilson signed the Trading with the Enemies Act which gave him the authority to assume unconstitutional powers during the time of war. In 1933 President Roosevelt convinced Congress that during a national emergency he would need to assume powers that were not granted to him in the Constitution.

    Congress and the President are not required to follow the Constitution during time of war or national emergency and the national emergency declared in 1933 has never been lifted: in fact since 1933 it has been renewed every three years, and there has never been even one day that our country has not been involved in some stage of war-like conflict, whether announced publicly or hidden beyond the public’s knowledge. The President, since the suspension of the Constitution, has been a military dictator and Congress has allowed him to ignore his duties and responsibilities as defined in the Constitution (executive orders).

    The president can do and does whatever he wants (executive orders). The Federal Government is a corporate entity, a fiction, created by the states. It operates as a corporation (see US Code TITLE 28 > PART VI > CHAPTER 176 > SUBCHAPTER A > § 3002, see line 15 A – http://www.law.cornell.edu/uscode/text/28/3002 – also go to Justia US Supreme Court, Stoutenburgh v. Hennick – 129 U.S. 141 (1889) – http://supreme.justia.com/cases/federal/us/129/141/). Every time you think, “They can’t do that, it violates the constitution,” you will discover that you are wrong and they can do that. They are a corporation that makes its own rules and laws. The complete understanding of this phenomenon would take hundreds of pages of proof and evidence to help anybody understand – it’s taken me 20 years of study. How do you think they got away with all of the banking fraud and trillions of dollars in financial support to very questionable entities over the last 14 years? Why do you think that we cannot do an audit of the private corporation, the Federal Reserve.

    So, applying your notion that there is a violation of the Constitution, or the first amendment, doesn’t have any bearing on Washington D.C.

    You might then argue: “other topics have been addressed that claimed a violation of the Constitution and action was taken to make a change or correction?” Washington D.C. often operates based on the public’s perception of what is right and wrong, so it is sometimes easy to sway the public to think a certain way. And they do it often (too many examples to list here), especially since they control the media.

    The easiest way to resolve what we consider to be a violation of the constitution is to appoint a new czar position by the president of that Washington D.C. corporation (United States of America, Inc. vs united States of America). And that position would be Director Of Relationship Knowledge (DORK). This would be a new federal department that oversees relationships between all entities* through email communication (*all entities defined as: anything living and/or fictitious).

    Or

    Get congress to declare the end of the state of national emergency. Each of the states must pass legislation revoking the consent that they gave to the president in 1933. Then the Constitution would once again be active.

  • Spencer Rumsey

    My mail box is filled with solicitations from charities that I’ve never heard of or wish to support, advertisements and flyers for businesses that I could care less about, and the occasional letter from a real person still using that antiquated but charming mode of communication. My email is filled with spam, including requests from Nigerian royalty to whom injustice has been done and greetings from politicians’s flacks who address me by my first name in a forced familiarity that annoys me intensely. But sometimes out of the blue interesting information does arrive. Facebook is intrusive but necessary, I suppose, although I resent its relentless appetite for personal info. I figure I have the right to withhold my data although I’ve come to expect that it’s all out there online already. And there’s the NSA, of course.
    You raise an interesting question about First Amendment rights but this seems to me more of an FTC regulatory area. I work in the media, and my contact info is publicly available to any poor reader who wants to find it. It’s all in the guise of increasing traffic. I figure if you compiled an email list of working journalists, God bless them all, your right to contact them is a given, it seems to me, and their right to refuse to respond is implicit. And I know from experience that most of the comments I do get are caustic crap-ola. But they have the right to comment and I have the right to ignore them. Generally I love spam filters until I find out that important contacts for stories I’m working on have ended up there through no fault of mine or the sender, just the peculiar gatepost criteria of my email server. I believe you’re on to something important here, which might also apply in the debate over net neutrality and restraint of trade on the internet. As for marketing, bulk cc’ing doesn’t cut it, I suppose, although I do get email press releases sometimes with dozens of cc’s. And when we’ve used that list to "alert the media," some of those folks have replied that they don’t want to be contacted by us ever again. We live with that and move on.
    But perhaps the bulk cc/bcc has to be used more sparingly, if tediously, to get through the present system. It’s not as if in the days of Viguerie, he personally dumped a big bag of mail on one doorstep. Each person on the list got an individual piece of mail, and could dispose of it as he or she saw fit. I don’t see a violation of the Constitution here, but I do see hypocrisy on the part of the providers and restraint of trade. And I think there are legal ramifications yet to be explored.

  • Michele Roso

    The internet is not “destroying free speech”; in fact, it is providing a platform for the individual to be heard as never before. Nor is the “art and science of prospecting officially dead” – the internet has changed prospecting dramatically, but email service providers are not preventing you from reaching your prospects. Just as Mr. Viguerie had to in his day, they’re just asking you to pay a little for direct marketing. So buy ads where they’re likely to see them, send targeted letters to the correct individuals (which are easier than ever to identify thanks to the internet), produce a direct mail piece about your book, etc. The onus is on you as the producer of the product to reach your audience.

    There are some key differences between email and the USPS mail that cause customers to clamor for the restrictions noted in your post. Mail that arrives in my home mailbox provides the sender no additional access to me, plus I can opt out via various registries. Opting out of email solicitations doesn’t have the same effect – my Inbox is still overwhelmed with all manner of offers I don’t want to receive – precisely because email marketing costs little or nothing. These restrictions may cause us to miss out on info we need or want or could benefit from, but the flip side is so negative that we take that chance. Your 1 cent email idea wouldn’t solve that problem.

    In addition, there are laws governing mailing offers to buy and/or transmit pornography via the USPS, so I never receive mail of the type I receive via email. I definitely want my email provider to prevent those from showing up in my Inbox.

    And finally, please don’t compare marketing and selling your book to freedom of the press….

  • Barry Dennis

    Some years ago I wrote a column/article as requested by CNet, called "Why I Love Spam." So many people took offense and deluged my account with Forwarded and bulk email that my ISP shut me down. I’m talking many, many thousands, and many more thousands that were blocked. I took the position that while the junk was unwelcome, the things I liked to find out, the "valuable information potential" was welcome; then, as now, "beauty is in the eye of the beholder." I also noted that any marketer in his right mind would want to take advantage of a medium that was virtully free to use, and therefore not much wheat was needed from a free chaffing service to make a LOT of money. I was right then and I am still right. The solution I proposed then,and still support was CHARGE FOR EMAIL, Any cost no matter how minimal, would require marketers to establish list criteria, do some research, and calculate a ROI, a Lifetime Value, and establish other criteria that have evolved from the DM industry over time.
    So, Denny, I agree that much has transpired to restrict speech, to classify some speech in a negative way, to prevent SOME opinion from being heard or seen. Just yesterday the Supremes (they really are becoming more political entertainment than perfoming a mission of Constitutional Protection) allowed religious prayer preceding governmental meetings, in this case a town council. It’s just wrong. A similar, supposed ratification and extension off free speech occurred last year in the SCOTUS decision called "Citizen’s United," giving expanded "speech rights" meaning advertising, to virtually any business, institution or non-profit, including labor unions, to the effect that now unlimited money can manipuilate and control the political process
    So, your lament and rant against certain activity and restrictions is well received, at least by me.