Gyroscope

A newsletter for those unmoved by spin.
No. 17, November 17, 2003

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Spam. It threatens to overwhelm the Internet. I get 40 or 50 spam emails a day. It turns out, however, that attempts to stop it could run afoul of the courts. Spam, you see, is considered to be speech and speech, commercial speech, must be free. Attempts to control telemarking have also been stopped, or delayed, due to free speech issues.

I am an extreme believer in the First Amendment, and am unwilling to accept hardly any restrictions on it, legal or social. However, the attempt to protect spam has nothing to do with the rights of citizens and everything to do with protecting corporations.

To be sure, as Business Week pointed out (Nov. 10, p.74), freedom of "commercial speech" has been a means to break down restrictions on lawyers advertising and to permit businesses to draw attention to their products when other avenues are denied them.

However, telemarketing and spam are involve something more than the right to speak. They involve forced listening. The spammer, the telemarketer say that they have a right to hold you hostage and force you to consider their message. Further, they claim that even if you say that you do not wish to hear their message, they can override that and make you listen to them.

And there is of course, rank hypocrisy as well. Individuals are not accorded such universal rights to speak. I have no right to speak to you in a shopping mall (private property), no right to accost you and make you listen to me at an airport. But if I am a corporation hawking product, then I magically acquire these rights. It's anything but free speech, more like paid speech which is being protected.

The doctrine of freedom of speech is one of this countries most glorious experiments in democracy. It has not always found advocates and protectors, even on the court that should be its ultimate defender. It is a cheap debasement of this guard against tyranny to think that being forced to read spam at your own expense should receive more protections than political speech that the speaker is paying for.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." -- First Amendment to the U.S. Constitution.

"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right." -- Schenck v. US, 249 US 47 (1919) Justice Holmes.

"The dissents in Abrams, Schaefer, and Pierce show how easily "clear and present danger" is manipulated to crush what Brandeis called "[t]he fundamental right of free men to strive for better conditions through new legislation and new institutions" by argument and discourse (Pierce v. United States, supra, at 273) even in time of war. Though I doubt if the "clear and present danger" test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace. ... Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason". -- J. Douglass, concurring opinion in Brandenburg v. Ohio, 395 U.S. 444 (1969)