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ACLU, Anti-Spam Laws, and the First Amendment

In an article published by the Technology Liberation Front, Cato Institute adjunct scholar Tim Lee dissects a recent argument by the American Civil Liberties Union (ACLU) regarding free speech & anti-spam laws.

It’s been interesting to watch the ACLU wrestle with anti-spam legislation. Their entire purpose is to work through the legal system to protect our civil rights, as defined in the First Amendment—which is why I’ve been a card-carrying member since before I was old enough to vote—so of course they’re going to push back against any perceived abridgment of the right to free speech, including anonymous speech. Yet as Tim Lee argues, the amount of speech afforded to spammers before they run afoul of the Virginia statue is enormous: “someone may (a) send out an unlimited number of emails using a real email address, (b) send out 9999 emails per day (99,999 per month, 999,999 per year) while falsifying email headers, or (c) send out an unlimited number of emails with falsified addresses to people who have previously consented to receive them.”

In order to violate this Virginia statute, you have to be very bad. In order to violate CAN-SPAM and get even more federal attention, you have to be even worse. Anyone with a real need for free, anonymous speech will have a myriad of other, simpler, and very likely cheaper avenues available to them—including, unfortunately, sending 9999 forged, unsolicited emails each & every day.

This article was originally written for & published by the Coalition Against Unsolicited Commercial Email

By J.D. Falk, Internet Standards and Governance

Filed Under


Commercial speech traditionally has far less protections than free speech Suresh Ramasubramanian  –  Aug 9, 2008 2:59 PM

All due respect to the ACLU - but yes, someone needs to point out to them that:

The FTC prosecuting can-spam infringements, the DoJ / FBI going after fraudulent or criminal spams - or the various state antispam laws under which spammers can be prosecuted primarily target commercial and/or fraudulent speech. 

Neither of which has much 1st amendment protection.

As for the non commercial free speech that’s sent as unsolicited bulk email, ISP spamfilters are quite capable of blocking it, based on their users voting that they havent asked for such speech (the this is spam button etc). 

CAN-SPAM certainly doesn’t bar ISPs from taking good faith action to block spam.

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