Stupid Media Watch: No, Spam Isn't About Free Speech
By Ken Magill
Sometimes you can be right, but for the wrong reasons. It’s why your math teacher made you show your work.
A recent example of being right for the wrong reasons was a piece in Slate Magazine headlined: “Canada’s New Anti-Spam Law Is Both Horrifying And Stupid.”
“Egads!” I thought. “A non-trade press outlet actually got this right?! Are those trumpets I hear? If I look out the window, will I see four horses in the sky? I should probably go take a quick pee and comb my hair.”
Alas, the apocalypse is not upon us. Or at least if it is, it is not being heralded by well-reasoned writing about email on Slate.
The article by Mark Joseph Stern starts innocuously enough, pointing out that Canada’s new anti-spam law requires prior consent under the threat of hefty fines.
But then he signals he’s about to veer off the land of no clue with the use of one word.
“Why is Canada so eager to enact a law that severely restricts advertisers’ speech and handicaps small domestic businesses and charities?” Stern wrote.
The word in question: Speech. The moment someone brings up the concept of speech in a discussion on spam, it is clear they have no idea what they’re talking about.
But let’s hear some more of what Stern has to say anyway:
“Most likely, the move is part of a broader trend in Canada and Europe to shield citizens’ privacy on the relatively untamed frontier of the Internet. Europe has recently enacted deeply misguided and censorial “right to be forgotten” laws, while Germany has gone a step further, forcing a citizen to delete private, consensual nude photos of his ex-girlfriend off his own computer. Not be outdone, the Supreme Court of British Columbia asserted its authority to censor every single search engine across the globe in June, controlling the information that people in other countries have access to.
“Seen in the context of this headlong rush to trample speech and expression in the name of privacy, Canada’s new spam law isn’t that surprising. It is, however, deeply stupid. Because the law applies only to Canadian companies, it will reduce spam by just about 2 percent for the typical citizen. The law might be more effective if the United States agreed to play along and censor American companies’ advertisements. But the Supreme Court has consistently held that the First Amendment protects advertisers’ rights to get their information across to potential consumers—even if nobody wants to hear what they have to say. A law so broad as to capture virtually all email advertisements in its sweep would never pass constitutional muster. (The United States does have anti-spam laws of its own, but they are, by necessity, much more narrowly tailored.)
“There is a chance, of course, that Europe might adopt similar anti-spam laws, thereby drawing more companies into a kind of worldwide web of commercial censorship. But so long as the First Amendment prevents the United States from joining the spam censorship club, the laws will remain essentially toothless. That’s probably a good thing: Irksome as junk mail may be, it’s never a good idea to hand governments the tools to control what information and ideas can and can’t be sent to us. Sometimes that information is annoying and unwanted. But a vigilant spam filter is a pretty small price to pay for Internet freedom.”
Canada’s anti-spam law has absolutely nothing to do with censorship. Yes, it is the most dumbassed, needlessly draconian piece of anti-spam legislation ever written. But its stupidity has nothing to do with freedom of speech or any lack thereof.
Its stupidity stems purely from a bunch of people who want to pat themselves on the back and say they have “done something” to fight mass unsolicited email in Canada.
When someone or some entity sends email, they consume bandwidth paid for by others to get their messages delivered. Yahoo!, Google and Microsoft pay a lot of money to sort and deliver email from companies to recipients and charge neither for the service.
Inbox holders are apparently profitable enough in other ways to make offering free inboxes and delivery worthwhile.
Freedom of speech does not come with a right to consume resources paid for by others to deliver the message.
The U.S. Can-Spam Act is not opt-out based because of some deep constitutional considerations. It’s opt-out based because advertising lobbyists were thankfully able to convince lawmakers that an opt-in based law that included an individual right to sue would be overly burdensome on law-abiding businesses that weren’t the cause of the spam problem.
Yes, Canada’s anti-spam law is horrifying and stupid, but not because of anything speech related.