First amendment and spam


One common argument that spammers use to support their “right” to spam is that they have a first amendment right to free speech. My counter to this argument has always been that most networks are private and not government run and therefore there is no first amendment right involved. I have always hedged my bets with government offices, as these are technically government run and there may be first amendment issues involved if the government office blocks email.
Recently the Third Circuit Court of Appeals ruled on Ferrone v. Onorato, No. 07-4299, 2008 WL 4763257 (3rd Cir. October 31, 2008) addressing this issue specifically. Evan Brown at InternetCases has a post up about the court’s finding. He says:

The court held that the First Amendment’s prohibition on the “abridgement” of the right to petition the government requires a plaintiff to show an actual intent on the part of the government to diminish this right. The court refused to accept Ferrone’s argument that the act of blocking email messages alone, without an examination of the government’s intent, would rise to the level of a constitutional violation.

In my lay reading of the ruling and the blog post indicates that government offices are able to block email messages without violating sender’s first amendment rights. More interestingly is the application of this ruling to advocacy programs. All of us have seen cases where we can send a letter to any (or many) elected officials through the simple expediency of entering a name and clicking submit on an online petition site. Could this ruling be used to justify blocking email from such sites? Does blocking that email rise to the level of deprive a citizen of her Constitutional rights? What if the volume of email is high enough to cause email delays, as happened recently with Congress?
These are questions that may need to be mediated by further court cases. On the good side, the Third Circuit’s ruling is quite clear that blocking abusive mail is not a violation of First Amendment rights. While I do not think that this will stop spammers from claiming that blocking is a violation of their rights, it does remove one more legal avenue from their attempts to force recipients to accept their mail.

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By laura

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