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Email spam vs. the First Amendment (continued)
Here's the scoop on the original SPAM
Hormel developed a canned ham product in 1926 and christened it "Hormel Flavor Sealed Ham." After a decade of dismal sales they announced a $100 reward for a new name, and "SPAM" won the prize. Hormel then sponsored George Burns and Gracie Allen's radio show, which featured Spammy the Pig, but SPAM's big break came during World War II. Because it required no refrigeration, SPAM became a staple on the front lines -- and not just for G.I. Joe. According to Nikita Kruschev, SPAM was a key factor in saving the Russian army during the war. And because it escaped the rationing applied to beef, it also became a prime staple for those keeping the home fires burning. In the post-war 1950s, SPAM was sold by the Hormel Girls, who sang "Cold or hot, SPAM hits the spot" door to door. SPAM later became a familiar chant for fans of the British comedy troupe, Monty Python.
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Now let's back up and study the terrain we're moving into when we talk about regulating spam. Because, regardless of what the troops on either side may want, this is an area where the benefits of regulation must co-exist with the rights of free speech. Can the government regulate spam? Or will we eventually discover that, despite its chilling effect on Internet users and ISPs, spam is protected by the First Amendment as an area of free speech?
This question is raised by Jonathan Byrne, writing in The West Virginia Journal of Law and Technology (JOLT). According to Byrne, spam is considered commercial speech, and until about twenty years ago, the Supreme Court was "reluctant to accord commercial speech the same protection given to other forms of speech."
In 1976, however, the Court decided to offer First Amendment protection to commercial speech. Since that time the government has been able to regulate speech if "(1) there is substantial government interest at stake, [Damn! That's scary! --DG] (2) the restriction directly advances that interest and (3) the regulation is narrowly drawn."
These three points are the precedents upon which decisions regarding unsolicited advertising, such as direct mail or junk faxes, have been decided. They are relevant here because any attempts to regulate spam will also be judged against these points.
The Federal front
Let's take a look at a few pieces of federal legislation attempting to regulate spam.
One piece of legislation that readers familiar with the anti-spam movement might be acquainted with is called the Unsolicited Commercial Electronic Mail Choice Act of 1997 (S. 771), sponsored by Senator Frank Murkowski (R-Alaska). In fact, the hearing at which Mr. Church was testifying had been called a month earlier by Mr. Murkowski. According to a review of the bill by the Center for Information and Technology at the John Marshall Law School in Chicago, it "requires senders to label each commercial email message as an 'advertisement' and to honor 'opt-out' requests." It would also require ISPs to block out incoming advertisements upon request.
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