The Constitution Does Not Protect Spamming

here's a new television commercial that pulls viewers in with a flurry of poignant phrases: "I love you" . . . "I felt the baby move" . . . "It's benign." The voice-over is a salute to free speech. "All words are created equal," it says. "The power to use them is our right as humans." Has the First Amendment gone out and gotten itself an advertising strategy? Not quite. The ad is for a phone company. The freedom it celebrates is in a calling plan that says "local and long distance calls are unlimited." Not exactly what James Madison had in mind when he gave the First Amendment top billing in the Bill of Rights.

Conflating the right to call for the overthrow of tyranny with the right to call at bargain rates seems harmless enough. But it is emblematic of a troubling trend in constitutional law: the erasing of the line between commercial and noncommercial speech. A campaign is under way, led primarily by conservatives like Supreme Court Justice Clarence Thomas, to make advertising the equal of political advocacy. If it succeeds, which a Supreme Court decision last month seems to make more likely, it could become more difficult for the government to protect people from being harmed, in small ways and large, by corporations.

Commercial speech was once given no First Amendment protection at all. In 1942, the owner of a former Navy submarine docked in the East River was told that he could not hand out fliers advertising his boat as a tourist attraction because they littered the streets. He sued, citing his free speech rights, and the Supreme Court threw out the case, saying the Constitution does not protect "purely commercial advertising."

Over time, the court wisely backed away from that absolutist approach. It created a new category of commercial speech, which has been protected, but less than other speech. The court has held that the government can punish false or misleading claims about a product in a way that it cannot go after politicians or journalists for saying things that are untrue.

In commercial speech cases, courts balance the value of the speech against the government's interest in regulating it. Applying that test, the Supreme Court held that the speech rights of lawyers were not violated when a state disciplined them for misleading advertising.

Lately, however, corporations and their supporters, on the Supreme Court and off, have taken to calling the commercial speech doctrine a "contrived distinction," and they have been urging that advertising be accorded the same protection as political speech. At the same time, judges sympathetic to that point of view have been applying the current test in an increasingly aggressive manner to strike down worthy government regulations. Last month, for example, a court struck down a federal law banning junk faxes and affirmed the right of a company called American Blast Fax to continue to blast away.

If other courts push corporate free speech to this illogical limit, laws against spam e-mail may suffer the same fate, as judges elevate the right to send e-mail ads for get-rich-quick schemes and Internet pornography sites to a constitutional imperative.

More troubling, courts have been increasingly willing to overturn, on First Amendment grounds, laws aimed at protecting public health.

Last month, by a 5-to-4 vote, the Supreme Court struck down a federal law barring pharmacies from advertising "mixed to order" drugs, pharmaceuticals that have not gone through the usual safety screening. The largely conservative majority was more concerned about pharmacies' right to market these products than the government's interest in protecting the public from drugs that, as the dissenters noted, "can, for some patients, mean infection, serious side effects or even death."

In his dissenting opinion, Justice Stephen Breyer, writing for four members of the court, suggested that the majority's reasoning could return the country to the dark days of the early 20th century, when the Supreme Court routinely overturned important health and safety laws as a violation of the due process rights of corporations. In the Lochner era — named for New York v. Lochner, a case striking down a maximum-hours law for bakers — the courts threw out laws limiting the hours employees could be made to work, minimum wage laws and laws barring companies from making workers promise not to join a union as a condition of employment.

The Lochner era is in some ways a distant mirror of our own times. The Supreme Court's aggressive championing of corporations then is finding more and more parallels in the antiregulation decisions of today's court. What the Lochner-era justices did with their wildly expansive reading of the due process clause, today's court may wind up doing through an expansive reading of the First Amendment.

Commercial speech obviously has value, and the courts have been right to protect it when the government's interests in restricting it are minimal or the law being challenged is truly excessive in scope. The restrictions on commercial speech most offensive to the First Amendment are those that actually aim at speech, at stopping companies from contributing information and opinions to the marketplace of ideas.

But in most of the recent commercial speech cases, the government was curbing advertising in an effort to prevent physical harm. When laws protecting the public from floods of junk faxes, dangerous drugs and other corporate mischief collide with companies' desire to market products, the Supreme Court should continue to use its sensible balancing test, and it should be more willing to find that the balance tips in favor of the people.

If a person repeatedly telephoned me and said the things that they say on spam email for internet pornography sites, they'd be jailed. Why should it be okay to say these things to me in email?

-PJ

Many companies already have. McAfee has SpamKiller, for instance.

By the way, Welcome to FR. Enjoy the search function. This has to be a record for me, replying to a 3 year old post.

-PJ

Well Thank you PJ,
but my experience with McAfee is that they also have software programs which cause computers to misfire and are just as dangerous to use in my personal opinion.

Glad I helped break an all time record for you.

I am presently doing some research for a paper on spyware and advertising methods on the internet. I find it an aweful shame that the consumer needs to protect themselves against marketing companies and their malicious spyware programs which install themselves without the users knowledge.
I personally have used Adawre and Spybot for these adware programs. Yet I do not find that paying for a software program is any mroe effective. Since most computers come with some form of spyware installed before people even buy them it is almost essentail to arm a computer with removal tools.
I find it better to get a free one that is not aiming to gain from the use is far better and less likely that you will find another spyware program installed from a major company such as norton and mcafee..after all they are looking for more sales too.. using 2 like adaware and spybot S&D, almost guarentees that you dont have any spyware left in your computer.
Thank you for your welcome!

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