This is a big deal. The court is making a distinction between in-person solicitations and phone calls on the one hand and text messages sent with the very cell phone that could have been used to make the phone call.
What is the Distinction?
The court determined that a text messages is more like an email than a phone call or a “real time” chat room. The key distinction not quite stated but obvious on its face, is that a person can ignore a text. That isn’t possible when in the presence of an attorney making a pitch for business. But in the case of a phone call, can’t a person simply hang up rather than respond?
Lumping Phone Calls with In-Person Solicitation Makes the Line Blurry
The phone call is the problem with this “bright line” of what constitutes direct solicitation. At the time these rules were developed telephonic communications was treated as similar to in-person communications. This came long before cell phones, email, texting and instant messaging. There was a greater taboo about hanging up on someone. Is that true today? When most people receive several cold calls a day, hasn’t it become much easier to treat such communications like an email that is ignored?
These days people break up with their girlfriend or boyfriend via text messages. This is instant communications as real time as voice to voice. I don’t think the finely drawn distinctions between forms of telecommunication technologies holds up any longer. Lets draw the line at in-person communications as solicitation and be done with it.