Balancing Freedom and Protection... Again

Watchtower highlights the idea that First Amendment protection is meant to promote the free and open exchange of ideas, especially for the “little guy” marginalized groups like Jehovah’s Witnesses. Further, MaryCLE, et al and Jaynes contribute to the idea that fraud is unprotected by the First Amendment. Given that most spam e-mailing contains links to fraudulent sites, these decisions make sense. I am more interested in the point raised by Jaynes’ lawyer, who wondered if this decision would apply to and therefore ban other forms of speech sent out in mass e-mailings as well. Virginia’s law specifically covered all mass e-mailings, not just commercial ones, so while Jaynes can be prosecuted, Jehovah’s Witnesses would be unable to spread their message through an online campaign. Clearly, there is a need to define what forms of mass e-mailings are allowable under the First Amendment, that is, the government needs to regulate the content of mass e-mails. The government already has the power to require media providers to promote different voices, a la the Turner decision, so the government could force the Virginia law to make allotments for mass e-mailings of a non-commercial nature. However, the government won Turner because the requirement made no reference to content provided by the media. The problem for the government is whether it can regulate the content of mass e-mail without violating the First Amendment as laid out in Turner. Perhaps the solution is to allow for mitigating circumstance. Since spam is clearly harmful to the free exchange of ideas, and if the government’s job is to protect people from harm as well as to promote the free exchange of ideas, then perhaps the government does have a right to regulate on the basis on content. However, the problem with content regulation is that it can easily constrict the sphere it was supposed to enlarge. The question is, is the risk worth it?