Spam is not protected speech

4 thoughts on “Spam is not protected speech”

1. Misleading

   Matt,

   Your post subject is a bit misleading. Judge Jimmy Z didn’t decide whether e360’s spam is or isn’t free speech. It reads, “Comcast is a private enterprise and has no obligation to honor the free speech rights of e360.” Meaning, because Comcast is a private business and not part of the state, the claim of free speech doesn’t even apply.

   1. Well…

      I was looking at it from the perspective that their speech is commercial, and commercial speech (advertising) is not a protected right under the First Amendment. As a common carrier, if I understand correctly, Comcast does have an obligation under the Fair Harbor provision of the DMCA to allow protected speech.

      Next thing you know, spammers are going to start including opinions on Presidential candidates in their penis-enlargement ads.

      —
      Matthew P. Barnson

      1. The Only Opinion That Matters

         The point is that Judge Jimmy Z did not issue an opinion as to whether spam is or isn’t free speech. And that’s the only opinion that matters in this case, and to represent it any other way is a bit misleading. 🙂

         Now, I personally feel that it should be permitted free speech. I didn’t realize there was case law or a prevailing judgment that removed commercial speech from the protected realm? Do you have a precedent on that? I would love to learn more. Perhaps your point that spam isn’t free speech is 100% accurate, based on some previous case?

         1. Spam speech precedent

            See analysis: http://www.abuse.net/commercial.html

            Quote of note:

            The Court has developed a four-pronged test to measure the validity of restraints upon commercial expression.

            Under the first prong of the test as originally formulated, certain commercial speech is not entitled to protection; the informational function of advertising is the First Amendment concern and if it does not accurately inform the public about lawful activity, it can be suppressed.18

            Second, if the speech is protected, the interest of the government in regulating and limiting it must be assessed. The State must assert a substantial interest to be achieved by restrictions on commercial speech.19

            Third, the restriction cannot be sustained if it provides only ineffective or remote support for the asserted purpose.20

            Instead, the regulation must “directly advance” the governmental interest. The Court resolves this issue with reference to aggregate effects, and does not limit its consideration to effects on the challenging litigant.31

            Fourth, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restriction cannot survive. The Court has rejected the idea that a “least restrictive means” test is required. Instead, what is now required is a “reasonable fit” between means and ends, with the means “narrowly tailored to achieve the desired objective.”

            The “reasonable fit” standard has some teeth, the Court made clear in City of Cincinnati v. Discovery Network, Inc….

            To sum up: Informational commercial speech == free speech. If it is inaccurate or unlawful, it’s not protected. Otherwise, it might be. This summary motion is a landmark in part because it denied protected speech status to commercial speech over a common carrier.

            But, meh, regardless, I re-read the summary judgment and realized the judge fielded it… by avoiding it:

            (C) Comcast is a private enterprise and has no obligation to honor the free speech rights of e360. C.B.S. v. Democratic Nat’l Comm., 412 U.S. 94 (1973). Comcast provides services traditionally performed by private enterprises, not the government. The government does not, with very few exceptions, connect people with one another through the Internet. Jackson v. Metropolitan Edison, 419 U.S. 345 (1974) (publicly regulated utility). The fact that an enterprise is regulated, licensed, or funded by the government does not make the enterprise part of the state. Wilcher v. City of Akron, 498 F.3d 516 (6th Cir. 2007).

            OK, you’re right, I’m wrong, not as big a watershed as I thought it was. At least I can say a spammer finally lost in court. Damn judges and their careful use of language.

            Swing and a miss, I’ll step up to the plate again soon.

            —
            Matthew P. Barnson

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