Spam, Free Speech, And Anonymity (continued...)

[ Posted Thursday, November 13th, 2008 – 18:15 UTC ]

The column I wrote yesterday has provoked a number of interesting comments, both here and at the Huffington Post. So today I would like to continue the conversation and attempt to explain myself further. [My policy is not to use anyone's login name without permission, but you can read the comments where they originally appeared if you'd like.]

First, let me begin by stating my biases in the matter: I don't like spam. I do like the First Amendment. I just wanted to get that out of the way, so you can spot any bias which might creep in to what I write here.

As I see it, the issue breaks down in a number of ways. The first question is anonymity -- do Americans have an absolute right to anonymity in political messages? The second question is technological -- is anonymity a right, no matter what the medium? And the third question seems to be political, and deal with campaign and election law -- what kinds of rules on speech are constitutionally allowable in politics?


Free speech

All of these points stem from the basic question of how far does the free speech guaranteed us by the First Amendment actually go? Speech has been limited by American government in the past, and sometimes this is a good thing and sometimes it isn't. I have written before about the Supreme Court case Schenck v. United States, where we get the phrase "shout 'fire' in a theater" from. Few would argue with the sentiment, but when you look into what Schenck was actually doing (peacefully protesting war) the argument doesn't really fit the facts of the matter. So sometimes good even comes out of bad court decisions.

There are a few things we, as a country, have decided are illegal, even though they fall under "free speech" -- things like "fighting words" or "incitement to riot" or "conspiracy to commit a crime" or child pornography. There are others, these are just a few examples. Then there are more modern laws, which criminalize "hate speech." This is debatable to many -- to some "hate speech" falls under "fighting words" and to others it falls under "political discourse." A very good argument can be made that the content of the statement "Obama is a secret Muslim" is actually hate speech, as it is currently defined.

Which brings me to one of the most amusing comments from yesterday:

Once upon a time there was a legal principle that the accused could actually face their accusers, and that the accusers had to be truthful or face consequences. The protection of anonymous free smears that defame, debase, and incite hatred doesn't sound like something in the publick goode that should be encouraged. I fear that it's only a matter of time before some jurist opines that yelling fire in a crowded theatre is quite acceptable provided it is done anonymously.

Several people pointed this out -- libel (written) and slander (spoken) are both illegal. But much of what appears in campaign television commercials could be considered either, depending on who is doing the deciding. If your favorite candidate says something over-the-top, you may excuse it by saying "it's just campaign rhetoric," whereas if the opponent says something over-the-top about your favorite, you may say "that's a bald-faced lie and should not be allowed on the airwaves."

Meaning, of course, that American politics is truly a free-for-all when it comes to content. Almost. If a candidate put an ad up calling on citizens to beat up campaign workers from the other side, that would clearly be illegal (just to give one odious example). But applying "hate speech" laws to campaign rhetoric would be tough indeed, as much of it can accurately be described as hateful (at least by one side or the other). This is the basic flaw in "hate speech" laws -- who decides what is and is not "hate" speech?

If candidates truly do go too far, they leave themselves open to libel and slander suits from the other candidate, which does indeed happen during election campaigns (but usually don't get resolved -- the court system moves even slower than our campaign season does). But how do you sue someone if you don't know who they are?



Which brings me to anonymity. Political speech can be anonymous. I should know, having written a book under a pseudonym and mailed a copy to each Democrat in Congress. That was my right to do (although by the time I mailed the book, I had taken ownership of it publicly). But I didn't have to. Remember "Primary Colors" by "Anonymous"? The author was finally outed, but not for a long time after the book hit the shelves.

But in both cases, if anything in either book had been libelous, the author could have been legally held responsible in court of law, by suing the publisher and "John Doe" as the author. The publisher would likely be forced by a court to reveal who the author was if they lost such a suit.

But this doesn't address the "Federalist Papers" issue brought up by the Virginia Supreme Court -- do we have an absolute right to anonymity in political discourse? If that is true, then the publisher could refuse to identify the author, since by doing so it would infringe on the author's constitutional rights.

Of course, neither my book nor "Primary Colors" was tied to any election in any way (although you could, I suppose, make a case that my book was, in the abstract). So neither of them falls under any sort of election or campaign laws. Which, as we will see later, do in fact already restrict anonymity.



Free speech covers everything, just about. It covers standing on a public street screaming at passersby, it covers publishing, it covers blogging, it covers journalism, it covers pretty much any way you have of expressing a message to another.

But limits have already been placed on certain technologies when it comes to free speech. Obscenity laws are the best example of this. Another, less dramatic, example is the way the FCC regulates what is said on broadcast television and radio (but not cable television or satellite radio, making the issue even murkier).

And the government has banned certain methods of communication before, and gotten away with it. This is because the right to free speech collides head on with your right to privacy -- specifically, the right to be let alone. The first legal battle over this (to my limited knowledge) was over fax machines.

In the dim and distant past, fax machines were the new whizzy electronic appliance that everyone just had to have. But some advertisers began compiling lists of fax numbers, to send "junk faxes" to -- advertising. At the time (I said it was the dim and distant past), most fax machines used thermal paper, which was quite expensive. So the advertisers were clogging people's fax machines with ads, and it was costing the fax machine owners money. So junk faxes were banned.

Legally, this falls into the "right to be left alone." Which is where the email spam comes in. Just because I have an email address does not mean that I want (or should have to put up with) dozens of Viagra or sex ads coming in to my inbox daily. This is why the anti-spam laws were passed -- to strengthen my right to be left alone. As was the "Do Not Call" registry for telephones.

Ah, but the Do Not Call law specifically exempts political calls. This shouldn't be a big surprise, seeing as how the law was written by politicians.

So the law is kind of all over the map on technology. The concept of free speech -- even anonymous free speech -- comes up against the right to be left alone technologically. Just because there's a crazy guy on the streetcorner yelling "America is a center-right country!" doesn't mean I have to allow him into my home to scream his delusions at me in my living room, in other words.

There was even another case I didn't go into -- anonymous political text messages were being sent out to a huge cell phone mailing list. Now, text messages actually cost money for the recipient, so again, free speech is infringed by the right of a citizen not to have to pay to hear it.

And federal elections rules prohibit dirty tricks with phone lines, even for blatantly political uses (such as jamming your opponent's switchboard with calls on election day... or creating fake robocalls which appear to be supporting your opponent, and then starting the calls at 3:00 AM, causing a backlash of resentment).

In other words, sometimes free speech is trumped by the right to privacy. The right for you to swing your fist ends at my nose, in other words.


Political implications

But actually creating rules for campaigning is always touchy. Look at the continuing fight over campaign finance laws, for instance. The Supreme Court has ruled that money given to a campaign is somehow "free speech," but they have also upheld limits for monetary donations given by a single individual, which appears on its face to be a giant contradiction. What it really means is that these rules are kind of made up on the fly. Sometimes they make sense, and sometimes they don't.

Federal election rules also specify that campaign donors be publicly identified. Unless they don't give very much (there's a limit, I believe $200, below which donors may apparently remain anonymous). Once again, a contradiction. And muddying the waters even further are the rules for independent groups which run political ads -- where donors can give as much as they want, and remain anonymous, but where also it has become illegal to run ads a certain number of days before an election. These groups, it should be noted, are forbidden from coordinating their efforts with anyone's campaign -- which is another massive violation of free speech rights.

At some point, the whole system looks pretty creaky and ad-hoc. There's a good reason for this -- because that is exactly what it is. Laws are passed, loopholes are discovered, more laws are passed, laws are thrown out by the courts... and what we are left with is a patchwork of legalisms that bear no relation whatsoever to the First Amendment ideal.

So, in the midst of this confusion, why not ban anonymous political spam? Is there anyone who will stand up for the "right" to receive thousands of slanderous emails with no recourse to finding out who is sending them?

There was one other comment I'd like to paste in full here. The commenter was responding to this sentence I wrote in yesterdays column: "Legislation should be written carefully which defines bulk campaign email as a financial contribution to the campaign, which would bring it under the purview of the campaign finance laws." The response:

I have a couple of issues with this. The first is, a whole list of confusing questions. If I send out an email to my address book (or just flat out spam addresses) stating my position on a candidate, have I really made a contribution to a candidate? If my email points out the congressman x supported a handgun ban, did I contribute to congressman x's opponent or to a pac supporting gun rights? Which Pac did I contribute to? If congressman x is still in a primary contest, did I contribute to x's primary opponent or to his/her general election opponent? Are the candidates required to keep track of my emails?

Secondly, and most importantly, the answer to speech we don't like is more speech, not less. I instinctively cringe at attempts to limit what others can say. If people want to say Obama is a muslim or that 9-11 was an inside job and Bush ordered down the towers, let them do it. We must just be sure to speak ourselves.

Taking these issues one by one: I am free to write a column that cheers on a candidate of my choosing. I did so during the general campaign a number of times. But (even though it was non-standard) in my Friday Talking Points column, where I usually hand out awards with a contact link to the person I'm honoring -- I could not do so by listing their campaign address. Because if someone reads my column, clicks the link, and donates to the campaign, I have thus given the campaign something of value. This is how I understand the law (I may, of course, be mistaken), and I was very careful not to fall afoul of it. During the primaries, I ran a speech from all the Democratic candidates with links to their campaign sites -- but without favoring one over the other, and without any solicitation on my part to donate to any of them. I don't know if that was bending the law or not, but by equal treatment I hope I did the right thing.

If you, personally, send out an email to people, then you have not contributed to the candidate, but if you sent it in bulk as spam, you may have. If you paid an unscrupulous spammer to handle the technical details, then that is indeed an "in kind" contribution to the campaign. I think.

This is where election laws get really silly -- which is kind of a prime example of why limiting free speech isn't all that easy to do. If you are a political group putting an ad on television, for instance, there are actual laws stating that you can't say "vote for Smith" or even "don't vote for Jones." You can say "this is why Smith would be terrible for our district" or even "Jones wants to ban guns" or whatever. But you can't say the word "vote" (as in "vote for" or "vote against"). Now, the laws also differentiate as to what you are -- a private citizen, an advocacy group, a tax-exempt group, an "issues" group, or a political campaign. It's all in the snarl of tax code beginning in the low 500s -- a "501(c)(3)" group or a "527" group, or whatever. It's a nightmare. Just look at how the group "" has changed as a legal entity over the years to see what I'm talking about.

As to the commenter's last paragraph, I agree in general that more speech is better than less speech. The "marketplace of ideas" is indeed supposed to be somewhat self-correcting. You are allowed to say what you want, and I am allowed to disagree or agree with it. And that is indeed a good thing.

But allowing it into my email's inbox is not, in my opinion. As I've pointed out, there are (1) limitations on all types of speech in general already, (2) limitations on technological free speech, and (3) limitations on political free speech. So why can't spam be added to the list of things which are not allowable political free speech? I would have no problem getting a spam message saying "Obama is a Muslim" if it had a real IP address on it, and if I could find out who owned that IP address. This way, as a journalist, I could write a story saying "Richard Mellon Scaife or (to be fair) George Soros is financing a vicious whispering campaign online, and should be held accountable for doing so." And I would have no problem with either man publishing (even anonymously) "Obama is a Muslim -- the book" or even "Obama is a Muslim -- the movie" and selling their idea in the marketplace.

Maybe it is just my own anti-spam bias talking, but I still say there's nothing wrong with banning political spam as an infringement on my right to be left alone from such. There are already so many other rules limiting political free speech -- and so many other avenues for even anonymous political free speech, that I simply cannot raise anonymous political spam above my right not to be inundated by it -- for the same reason that I cannot condone someone anonymously yelling "fire" in a theater. Because of the consequences. If anonymous political spam is truly a free speech right, then I predict by the next election cycle we are all going to be inundated with email slime of the most vicious and scurrilous type. And I can't see how banning unaccountable and illegal (libelous) political spam from the email universe is anything but a good thing.


-- Chris Weigant


9 Comments on “Spam, Free Speech, And Anonymity (continued...)”

  1. [1] 
    Osborne Ink wrote:

    Ultimately, Americans have to be educated to a mass realization that information is NOT knowledge.

    Let me say that again:


    Just because you read something on the internet does not mean it's true.

  2. [2] 
    Elizabeth Miller wrote:

    I couldn't agree more with Osborne Ink. Unfortunately, too many voters are not capable of thinking critically and are gullible to a dangerous fault.

    And, just because you read something in the New York Times or the Washington Post doesn't mean that it's anywhere near the truth of the matter, either.

    Either we get educated or the media gets competent - one is as likely to occur as the other.

    As for spam, political and otherwise - I'm completely against it and let's have a blanket ban on all of it.

  3. [3] 
    Michael Gass wrote:


    In the vain of "free speech" and "spam", off for you and the readers my reaction to The State newspaper in South Carolina printing a letter entitled, "President Bush kept us safe." You can read it here:

    My response, sent to The State, the South Carolina Democratic Party, my own state Senator, and Keith Olbermann, reads:

    In the November 13th, 2008, edition of The State newspaper based in Columbia, South Carolina, a letter by Mr. Cliff Springs was published titled, "President Bush kept us safe." That this letter was published by The State newspaper proves, once again, the total lack of journalistic integrity, partisanship, and total avoidance to the truth, much less reality, that The State's editorial division displays under Mr. Brad Warthan, Editorial Page Editor and VP of The State newspaper.

    Mr. Springs states in his letter, "For me, President Bush’s legacy is clear: For seven years since 9/11, he kept my family safe. Think back to that day. We watched the horror, the precision with which the terrorists massacred innocent people. They bloodied bodies and our national psyche. We assumed that 9/11 marked the beginning of an era in which we would face each day with the threat of terrorism."

    That may be true for Mr. Springs and it is certainly his "opinion", but, for the rest of the nation who acknowledges reality, President Bush has not kept America safe. The tragedy that was 9/11 occurred 8 months into President Bush's administration. For Mr. Springs, and anyone else, to give President Bush "credit" for "keeping America safe" after 9/11 is an insult to those who died on that day.

    George Tenet was appointed as the Director of the CIA in 1997 under President Clinton. During Mr. Tenet's time as Director of the CIA; Al-Qaeda attacked two United States embassies in 1998 in Africa and the USS Cole in 2000 in Yemen. The CIA under George Tenet was able to keep America's shores safe, that is, until President Bush took office.

    Robert Mueller was nominated for the post of Director of the FBI in July, 2001, only 2 months prior to 9/11, and, was confirmed on September 4th, 2001, only 7 days before the attack. The Director of the FBI under President Clinton, Louis Freeh, was able to keep America safe from September, 1993, until June, 2001, when he resigned. As many remember, the first World Trade Center bombing occurred in February, 1993, only 8 weeks after President Clinton was sworn into office and before he was able to get his own confirmations through Congress.

    Mr. Springs writes, "Be honest with yourself: Could you imagine we would be here seven years later without another attack?" In fact, we don't have to imagine it. The time between the first World Trade Center bombing and the second attack on the World Trade Center was 8 years and 7 months. The better question is how could two services that were able to keep America safe for almost 9 years fail so utterly only 8 months after President Bush took office?

    Mr. Springs continues in his letter, "Other than some new procedures for air travel, very little of our day-to-day life has changed. Brave men and women of our military, homeland security and law enforcement carry this burden for us and ensure that America remains America." Let's examine that for a minute.

    In response to the first World Trade Center bombing, President Clinton's administration used the agencies already in place, the FBI and the CIA, to track down the perpetrators of the attack. In March, 1994, only a year and one month after the attack, four of the terrorists were convicted of the crime. In November, 1997, two other terrorists involved in the plot were convicted for their crime. President Clinton did not need to start brand new agencies, invade any countries, or attack our Constitutional liberties in order to bring six of the terrorists to justice.

    In response to the second World Trade Center bombing, President Bush's administration created the Department of Homeland Security and the Transportation Security Administration. He attacked the training camps of Al-Qaeda in Afghanistan, but, failed to capture Osama Bin Laden. His administration pushed the Patriot Act through Congress, yet, Osama Bin Laden remains free while the FBI misused the new powers in thousands of known instances against American citizens. His administration pushed through the Military Commissions Act, imprisoned thousands, whether in Afghanistan, Iraq, Guantanamo Bay, or in secret "black" CIA sites, yet, Osama Bin Laden remains free. His administration pushed for a torture exemption for the CIA, called the Geneva Conventions "quaint", has tortured an unknown number of people around the world in these prisons, yet, Osama Bin Laden remains free. In fact, President Bush, in 8 years of being in office, with even more power, more agencies, secret prisons and using torture, has been unable to do what President Clinton did in 1 year; hold those accountable responsible. In addition to the above, President Bush invaded Iraq, a country that had no connection to Al-Qaeda or the attacks of 9/11, and mired our military into a war of choice that has seen 4200 American military members dead, tens of thousands of our service members wounded, hundreds of thousands of Iraqi's dead and tens of thousands of Iraqi's imprisoned for the crime of fighting our illegal invasion.

    I challenge any American citizen to live through what we have wrought on the Iraqi people; where you only get power for a few hours a day while living in 140 degree heat, where your infrastructure was destroyed and years later is still in shambles, where you live without a job because your city was destroyed unable to feed your family your children, where you saw your government deposed and a new government installed whether you wished it to happen or not, where you have foreign soldiers invade your house, kill or imprison members of your family, and where you cannot even drive down the streets of your own neighborhood without having your car, with your family in it, fired upon by foreign soldiers at will. No American citizen would stand for it, yet, people like Mr. Springs cheer what we have done to Iraq because our country was attacked by a group of terrorists who had no connection to that country - all because HE feels safe. Mr. Springs probably hasn't been to Iraq since our invasion in 2003, but, I have. I have seen firsthand the destruction of that country that President Bush unleashed. That action, in and of itself, begs for President Bush and all who engineered the war against Iraq be tried for war crimes.

    Mr. Springs ends his letter writing, "Bush knew it wasn’t enough just to be safe. He knew America had to feel safe too. Anything less, and the terrorists win. His message was succinct. It was perfect. He asked us to do something mundane, something utterly normal and beautifully free. Eventually, magically, our fears subsided. He said, “Go shopping.” Because he did, my children will grow up in the same America I did. He didn’t just defend American people. He defended the very heart of what America is."

    The America I grew up in did not condone torture. In fact, the America I grew up in held those who condoned torture accountable and tried them for their crimes. The America I grew up in did not arbitrarily invade a nation, depose its government, kill its people, imprison them, and try to force our western ways upon their populace at the point of a gun. The America I grew up in did not kidnap people off the street, send them to a foreign country to be tortured, and keep them imprisoned for years without even being charged with a crime. In the America I grew up in, we did not toss our Constitutional rights into the garbage whenever our country faced a terrorist action committed upon our shores whether it was abortion clinic bombings or the first attack on the World Trade Center.

    In addition, to be told, "go shopping" as a nation while our government destroyed our constitution, tortured people, and invaded a country that had nothing to do with 9/11 was nothing more than President Bush saying to the citizens of our country, "don't mind what we are doing, it doesn't concern you". But, it does concern us, every one of us American citizens who hold our rights dear to us, who fought in our military to protect those rights, and who mourned those who came before us to keep those rights sacred.

    I don't know the America that Mr. Springs grew up in, but I know the world that he lives in and it is called fantasyland. That The State newspaper and Mr. Warthan gave Mr. Springs a platform to spout his revisionist history and total disregard for reality speaks volumes about the lack of journalistic integrity, the partisanship, and the desire to merely pander to the "base" that we have come to expect from The State newspaper.

  4. [4] 
    Michale wrote:


    It just really burns you up that there are people out there who actually think Bush has done OK, vis a vis, terrorism, doesn't it?

    Are they not entitled to their own opinions? Are there opinions as valid as your own??

    I have some sorrowful news for you. There are going to be many MANY people who don't agree with you, Michael. To simply classify them as living in "fantasyland" illustrates your narrow-minded and myopic view of reality.

    Get over yourself. You are not right all the time.
    Your opinions are not the gods' divine messages. People are allowed to have differing opinions and you should give them the same respect that you demand from others.


  5. [5] 
    Michale wrote:


    Just because you read something on the internet does not mean it's true.

    A message that the hysterical Right ***AND*** the hysterical Left needs to take to heart.


  6. [6] 
    Michale wrote:

    EVERY political blogger, author, commentator and poster should read this...


  7. [7] 
    Chris Weigant wrote:

    Quick note -

    No time to answer comments... Friday... busy, busy...

    BUT there is a link which needs to be posted here. The Supreme Court is taking up a case which is at least tangentally related to the subject at hand.

    More later...


  8. [8] 
    nypoet22 wrote:

    i kind-of responded briefly to the prior post, but there was actually some thought involved so i'd like you to follow my reasoning on this, far-fetched though it may be. i think your argument here is that one can't keep mud out of a pigpen, but one can ban it from one's home, and the inbox ought to be where the pigpen ends and the home begins. (i.e. it's legal for someone to shout obscenities on their own lawn, but not on yours.)

    If you look at ACLA v. Planned Parenthood (2002), both the majority and the dissenters on the 9th circuit made a distinction between public and private speech that might incite violence. per my reading of it, the majority ruled that any reasonable expectation on a recipient's part that online content might incite violence means that it is explicitly not protected under the first amendment. since spam does not just stay on a website but enters the inbox that is "your space," it is your own reasonable interpretation of the content that matters, not that of the sender.

    Hence, if you could reasonably interpret political spam as "fighting words," (e.g. Obama is a terrorist, Obama is a secret Muslim extremist, anti-american, etc.), when it enters your inbox it qualifies as incitement to violence, which brings it under the legal definition of terrorism, or, "The threat or actual use of violence in order to intimidate or create panic, especially when utilized as a means of attempting to influence political conduct." Since the new FISA law and Bush's precedent now allows the executive branch to spy on all possible domestic terrorists with minimal oversight, there is plenty of wiggle room for political hate spam to be monitored and prosecuted. i know it's not very palatable or realistic, but no less so than defining politi-spam as a campaign contribution, and much more manageable in the pragmatic sense, considering the broad power and secrecy of FISA.

  9. [9] 
    Michale wrote:


    Be careful what you wish for..

    Consider the aspect that CW mentioned about the powder sent to churches that supported Prop 8..

    Anti-terrorist laws can burn Democrats just as easily as it can be applied to Republicans who stir up hate mongering over Obama...


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