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Sunday, May 25, 2003  

SCOTUS, spam and commercial speech

I post my email address on my blog. As a result, my already too high ratio of spam to fiber has increased significantly during the last two months. My email account needs to go on a diet. However, I don't believe a plan to convince spammers to keep it in the can proposed by the California legislature will pass constitutional scrutiny.

SAN FRANCISCO, California (Reuters) -- The California State Senate this week approved a bill that would make it illegal to send unsolicited e-mail advertising and allows people to sue so-called spammers for $500 per unwanted message.

...The measure, which was approved Thursday by a vote of 21-to-12, would require Internet marketers to get advance approval from e-mail recipients if they did not already have a business relationship with them.

Though commercial speech does not have the same high status as political speech in American jurisprudence, there will be problems for a law that treats email from like situated parties differently and restrains spammers before they have acted.

A business one purchased an item from, say the Good Guys, a particularly egregious spammer, may be no more welcome in one's mailbox than a business one has never used. Nor is it fair to penalize a business one doesn't know about yet for making contact while allowing a nuisance one once purchased from entry. A California legislator says an approach of that type was tried and failed. Perhaps fine tuning it would make it more effective.

The proposal would be more logical if it penalized spammers after they have sent unwanted email, perhaps with a certain volume triggering scrutiny, to recipients who complained, likely to a state consumer affairs office.

War Liberal Mac Thomason says "it sounds good to me," though he has doubts about enforcement of the proposed law. I foresee a conflict between it and the courts.

The Supreme Court's first in a series of rulings altering the scrutiny of commercial speech was in Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976). The focus was on consumers' right to receive information without the state interrupting its free flow.

. . .the Court voided a statute declaring it unprofessional conduct for a licensed pharmacist to advertise the prices of prescription drugs. Accepting a suit brought by consumers to protect their right to receive information, the Court held that speech that does no more than propose a commercial transaction is nonetheless of such social value as to be entitled to protection. Consumers' interests in receiving factual information about prices may even be of greater value than political debate, but in any event price competition and access to information about it is in the public interest.

The same concern is implicated in regard to spam. For all the lack of interest I have in offers of Viagra and penile enlargement, I can't say there are not citizens who are interested in receiving such information.

The fact situation that most resembles a ban on spam is the challenge of a law banning distribution of handbills because of ensuing clutter. In the email context, spam causes similar clutter. SCOTUS rejected the city's claim that it was acceptable to distribute some printed material on its property, but other similar material should be barred in City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417 (1993). In the context of spam, the state is attempting to prevent clutter in the mailboxes of its citizens, but the rationale is the same. Furthermore, how is this different from the state seeking to prevent clutter in our real mailboxes?

The Court has also given weight to the interest of advertisers in commercial speech.

Turning from the interests of consumers to receive information to the asserted right of advertisers to communicate, the Court voided several restrictions. The Court voided a municipal ordinance which barred the display of ''For sale'' and ''Sold'' signs on residential lawns, purportedly so as to limit ''white flight'' resulting from a ''fear psychology'' that developed among white residents following sale of homes to nonwhites. The right of owners to communicate their intention to sell a commodity and the right of potential buyers to receive the message was protected, the Court determined; the community interest could have been achieved by less restrictive means and in any event could not be achieved by restricting the free flow of truthful information.

In addition, I don't see how a good argument can be made that spam purveyors are different from those who advertise the same or similar products through other means.

SCOTUS has developed a four-part test for analyzing commercial speech cases.

•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.

•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.

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

It is that analytical framework that was used to reach the result in Discovery Network.

The ``reasonable fit'' standard has some teeth, the Court made clear in City of Cincinnati v. Discovery Network, Inc., [supra] striking down a city's prohibition on distribution of ``commercial handbills'' through freestanding newsracks located on city property. The city's aesthetic interest in reducing visual clutter was furthered by reducing the total number of newsracks, but the distinction between prohibited ``commercial'' publications and permitted ``newspapers'' bore ``no relationship whatsoever'' to this legitimate interest. The city could not, the Court ruled, single out commercial speech to bear the full onus when ``all newsracks, regardless of whether they contain commercial or noncommercial publications, are equally at fault.''

Again, what is spam and what is fiber is in the eye of the beholder at least some of the time.

The California proposal is vulnerable under parts three and four of reasonable fit analysis.

I don't have an alternative idea about how to regulate spammers. But, I believe Californians, and people in other states who are given hope by the proposed law, will be disappointed once it is subjected to judicial scrutiny.

5:52 AM