Spam Regulation and Unpopular Speech

At first glance, this week’s materials seem to suggest that few conflicts arise between First Amendment values and spam regulations. After all, the CAN-SPAM Act pertains only to “commercial” emails, and the Maryland and Delaware cases both uphold laws directed at profit-driven commercial schemes. Surely this sort of fraudulent and parasitic behavior has very low priority in First Amendment’s protection of speech.

However, stepping outside the current case law, it is extremely troubling to consider the process by which the federal CAN-SPAM Act (CSA) and similar state statutes were put in place. While these statutes were partially motivated by material costs (congestion, operating fees, etc.) to the system, it seems that a significant impetus was the mere inconvenience and unpleasant experiences that arise from spam. Indeed, the CSA treats the two as equal causes for the Act, stating that mass spam threatens the “convenience and efficiency of electronic mail.” While the latter is certainly a legitimate concern, the former seems to be point to the possibility of a dangerous trend in speech regulation.

Yes, spammers are as unpopular as telemarketers and door-to-door solicitors, but this should not diminish their First Amendment rights. To be clear, these rights do not include protection for emails that are fraudulent or possibly even those that are solely profit driven. However, the extreme prejudice with which spam operations have been terminated should give free speech proponents significant pause. The unpopularity of spam seems to be the main impetus behind the state and federal regulations, and even some of the judicial decisions upholding these laws. The measures have been applauded by justices and congressmen alike, such as Maryland state senator Teitelbaum, who approved of an anti-spam law as a “piece of legislation that protects the people.” The ease with which these regulations have been passed should serve as a striking reminder about the importance of preserving true protected speech, and the insidious tendency for politicians to suppress messages which their constituents find displeasing.

After all, the First Amendment’s freedom of speech was constructed as a protection for those whom society wanted to muzzle. Watchtower speaks of the importance of protecting the voices of “little people” who are lacking in financial resources or overall manpower to use normative channels of expression and must instead use canvassing or campaigning to further their message. Mass emailing provides a remarkably powerful and inexpensive medium for small groups to promote their ideas. It is imperative that restrictions on such an empowering tool as email be the “least restrictive” means necessary to legitimately curtail illegal messages. Otherwise, there is the possibility for the creation of over-broad laws which intentionally aim to restrict unpopular but protected speech.

Spam regulations are reconcilable with First Amendment rights, provided that they only concern truly commercial or fraudulent messages. However, any statutes which aim to limit speech must be viewed with heightened vigilance, to assure that cleverly constructed restrictions on unpopular but protected speech do not slip through the cracks of judicial review.