Does Spamming Constitute Protected Free Speech?
I know, I know....
I'm posting, me, the one who chokes in my own pile of spam. My topic is information
quality, so I found this interesting article on spamming and it's ramifications on free
speech issues. All pills, including those that insure integral rights like speech, are
hard to swallow sometimes. I would be interested to see what kind of tone you get from
this article.. Where is the irony coming from and what point is he trying to make with
Does Spamming Constitute Protected Free Speech?
By Bill Frezza
"Congress shall make no law ... abridging the freedom of speech, or of the
press." Important words, guaranteeing the right of every American to
speak his or her mind.
But where in the First Amendment does it say that a private company is
obliged to act as an unwilling distributor of information considered
unwelcome or harassing by the vast majority of its customers?
By what tortuous reasoning can a constitutional restriction on the power of
government be used to disarm private organizations attempting to protect
themselves and the privacy of their customers from unwanted intrusions?
Does upholding the same freedom of speech that is keeping abominations
like the Communications Decency Act at bay imply that we are doomed
to drown in a sea of spam as traditional direct-mailers discover the potent
economics of electronic junk-mail distribution?
It could certainly happen.
The fight by America Online and other Internet service providers to
respond to their customers' pleas to disconnect aggressive junk-mailers is
spilling into the courts. Our judicial system must now decide where the
rights of one group end and the rights of another begin. By what standard
will this decision be made?
There was a time when such a question was easy to answer. Rights were
ascribed to individuals and not groups. Private contracts between freely
consenting adults were held sacrosanct. The government's role in
providing for the common weal was limited to powers explicitly
enumerated in the constitution, and freedom of association was counted
among the basic rights of Americans.
But today we live in a world where restaurant owners can be sent to jail if
they choose to serve smokers and auto makers can be put out of business
if their cars don't meet fuel efficiency standards. Is it any wonder that it's
no longer easy to guess the outcome of the great Internet junk-mail battle?
Many slippery slopes await, all of which will be pursued persuasively by
Should ISPs be treated like common carriers? Since the early days of the
railroads, this peculiar legal classification earned its holders certain rights
and privileges in return for accepting open-ended political obligations.
Government largess, often in the form of rights-of-way but sometimes
including explicit subsidies or monopoly status, was granted as long as
common carriers agreed to subject themselves to "democratic control."
This gave every citizen and lobbying group the ability to have an impact on
a company's terms of business, including dictating who it can or must
serve. If the post office has to deliver junk mail, why not America Online?
If ISPs are not common carriers, do they have a right to pick and choose
their customers? The civil rights movement, for all the good things it
accomplished, destroyed forever the idea that we enjoy freedom of
association in this country. Neither in employment nor in serving the
public, which means doing business with anyone outside your own family,
is it permissible to practice discrimination.
For a private company to declare that it will not accept the business of
specific classes of "legitimate" customers is an invitation to a lifetime of
litigation. If insurance companies can't even refuse to write policies for
homes built on hurricane- prone beaches, how can an ISP turn down
someone's business just because it doesn't like the content of his or her
The ultimate slide into the quagmire comes when an aggrieved party can
claim a "compelling public interest." Thanks to expansive interpretation of
the interstate commerce clause, the constitution's most egregious camel's
nose under the tent, government can interfere in any business it chooses
provided it can make a case that the business crosses state lines and that
intervention serves the "public good." Such an approach vitiates the whole
concept that there is such a thing as a private business, turning every
commercial dispute into a game of power politics.
Who is "the public" and what are its interests? Only your lawyer knows
Even then, if you're not happy with the decision of the courts, you can
always go back and lobby Congress. Just tell them about all the new jobs
Internet junk mail will generate. Surely, this public good outweighs the
private inconvenience of having to hit the "delete key" 200 times a day.
No matter how you look at it, the spammers are gaining the upper hand,
and we have no one to blame but ourselves.
Perhaps there is a silver lining in this black cloud. Maybe we will sink so
low in our abandonment of the idea of "private" that a movement will
emerge to re-establish the rights of contract and freedom of association
within the peculiar domain of cyberspace.
Seeking solutions outside the realm of government, perhaps the ultimate
cause of privacy will be enhanced via the development of purely
technological means by which individuals can control their own
Wouldn't it be sweet revenge if a torrent of spam released by government
intervention creates a market for sophisticated filtering, encryption and
authentication tools that will force everyone, including Uncle Sam, to mind
their own business?
Bill Frezza is president at Wireless Computing Associates and
co-founder of the online forum DigitaLiberty. The opinions expressed here
are his own. He can be reached at firstname.lastname@example.org.
Copyright ® 1996 CMP Media Inc.