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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Today I have a copy of the e360 briefing on Comcast’s motion for judgment on the pleadings.
On a superficial level, the writing of e360’s lawyers not as clear or concise as that of the Comcast lawyers. When reading Comcast’s writings it is clear to me that the lawyers have a story to tell and it has a beginning, a middle and an end. They take the reader through the setup, then through the evidence and case law, then proceed to the remedies requested. There is a clear narrative and progression and it all makes sense and the reader is never left standing. This briefing meanders hither and yon, prompting one person to ask was this written on the back of a placemat in crayon.
I still think e360 is misunderstanding or misstating some crucial facts in this case.
e360 argues that because they comply with CAN SPAM, then their mail is therefore not spam. This is not true (see Al’s post, and my post and John’s post). Complying with CAN SPAM does not mean you are not sending spam. I will go even farther to say that sending super-duper-double-confirmed-with-a-cherry-on-top-opt-in email does not mean you will always get through an ISPs filters. The ISPs have moved away from being in the position of having to decide between a mailer who insists a recipient opted in and a recipient who marks mail as spam. Now, the ISPs look at complaints and if you annoy your recipients, then the ISP is going to filter that mail. It is all about relevancy. It is all about not sending mail that is going to make those users hit the “this is spam” button. And endusers have never cared about permission, spam is email they do not want and if you send it, they will complain about it.
They also seem to have this impression that Comcast is letting all e360’s competitors send email to Comcast. Again, it is all about relevancy. If e36o’s competitors are sending mail that users do not complain about then yes, that mail is going to get through. The problem here is not that Comcast is picking and choosing which ESP gets to mail the users, it is that the recipients are choosing which emails they do not object to. Send emails recipients find useful and relevant, and it does not matter that you scraped their address off a website, they will not report it as spam.
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