FREE SPEECH LAWYERS

 

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"Jonathan Katz, an eminent First Amendment lawyer in Silver Spring, Maryland"  -  Foundation for Individual Rights in Education.

 

 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. First Amendment to the United States Constitution.

 

"Monsieur l'abbé, I detest what you write, but I would give my life to make it possible for you to continue to write." Voltaire, letter to M. le Riche, February 6, 1770.

 

 

THE CAN-SPAM REGULATIONS - OUT OF HARMONY WITH THE FIRST AMENDMENT

NOTE:  On May 19, 2004, the Associated Press quoted our Criminal Defense and Constitutional Law partner Jon Katz as follows on the unconstitutionality of the CAN-SPAM regulations involving sexually explicit e-mail: "'This is a back door effort to violate people's first amendment rights, whether well intentioned or not," said attorney Jonathan L. Katz of Marks & Katz, LLC, in Silver Spring, Md. He is a first amendment lawyer whose clients include members of the adult entertainment industry." This quote rapidly spread across the Internet, and led to many replies in strong dissent. Jon's further discussion of the issue follows. Click here for the full Associated Press story (and here for foreign language press coverage). . 

By Jonathan L. Katz

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. First Amendment to the United States Constitution.

INTRODUCTION

    The First Amendment to the United States Constitution is not needed for expression that everybody likes, because such expression is at little risk of suppression. The First Amendment is needed to protect controversial expression. When faced with expression that one does not like, it is far better to respond with more speech, than to seek out government-imposed censorship. 

    The true test of tolerance of free expression does not take place when New Yorkers smile at Red Sox fans marching in the South Bronx, nor when Ozzie Osbourne hits the stage at an Ozzy and Harriet convention without an uproar. The true test of such tolerance comes when one tolerates expression that creates substantial discomfort, challenges the status quo, and even challenges the economic flow.

    I have experienced the discomfort of my own instances of intolerance of free expression, going to the ludicrous when I got bent out of shape that one of my two freshman college roommates painted his wall black (which by today causes me little discomfort). I have experienced the disgust of being censored by my own government, which was highlighted when thirteen years ago a Capitol police officer threatened me and my co-demonstrator with arrest for carrying anti-war posters when the Senate was debating whether to authorize war against Iraq, and which became more ludicrous when the permitting office would only offer a permit space behind trees far to the east of the Capitol building and away from every Senate member. Once I took up the litigation cause of everyone's free speech rights,  from left to right, from animal rights activists to adult entertainment to government workers' free expression rights, First Amendment rights became all the more critical to me, both from the selfless standpoint of advancing freedom from government abuse of power, and from the selfish standpoint of knowing that the protection of others' free expression rights ultimately gives greater strength to the free expression rights of me and those who engage in expression that I value the most.  

THE CAN-SPAM REGULATIONS  

    Today, a true test of people's tolerance of free expression comes from spam. Spam decreases Internet and e-mail productivity, often assaults sensibilities, and rattles many a parent whose young child might see some of the very explicit sexually-oriented images. Then again, there was a day when everyone got along just fine without the Internet -- and without the spam that cannot exist outside cyberspace; spam is far from the only or worst thing that assaults people's sensibilities; and the delete button and spam image blockers help neutralize spam. 

    Some of the strongest opponents of my view against the CAN-SPAM regulations talk in terms of their rights to protect their children, rights to their e-mail accounts and bandwidth, incredulousness that the First Amendment is somehow implicated by forcing the phrase "sexually explicit" in e-mail subject lines (at the threat of imprisonment and huge fines -- 15 U.S.C. 7704(d)(5) ), and for alleged vileness of sexually explicit material. Taking such arguments to their conclusion, however, we would have a bland society at best, and a tyrannically censorious government at worst. Legions of solutions exist to shield children from sexually explicit cyber-images, without needing to turn to government censorship, including filters, image-blocking software, and the presence of parents. Those who do not want their e-mail accounts inundated with spam have alternatives to going to the government, including the many excellent spam blocking products on the market, and reserving unpublished e-mail addresses for close friends and family members (my private Hotmail account has never displayed spam). The concept that the First Amendment is not implicated by the CAN-SPAM regulations clashes with the fact that the CAN-SPAM regulations discriminate based on the content of the communication; content-based regulations of speech strike at the very heart of the First Amendment. Although many people are repulsed by many of the images in sexually-related spam, the CAN-SPAM regulations go after a whole host of material that would be fully protected on prime time television without requiring any warnings of sexual content. 

    It is critical to remember that the same basis for creating First Amendment "exceptions" that further many people's agendas, can later be used against those same people when they express commercial and non-commercial ideas that are important to them. It is impossible to carve out exceptions to certain free expression rights without leaving a chilling mess that threatens our remaining free expression rights.

WHAT DO THE CAN SPAM REGULATIONS SAY? 

The following CAN-SPAM regulations are contained in 69 Federal Register 21024 (April 16, 2004): 

List of Subjects in 16 CFR Part 316

Advertising, Business and industry, Computer technology, Consumer protection, Labeling.

Accordingly, for the reasons set forth in the preamble, the Commission adds a new part 316 consisting of § 316.1 to title 16 of the Code of Federal Regulations to read as follows:

PART 316--RULES IMPLEMENTING THE CAN-SPAM ACT OF 2003

§ 316.1 -- Requirement to place warning labels on commercial electronic mail that contains sexually oriented material.

(a) Any person who initiates, to a protected computer, the transmission of a commercial electronic mail message that includes sexually oriented material must:

(1) Exclude sexually oriented materials from the subject heading for the electronic mail message and include in the subject heading the phrase "SEXUALLY-EXPLICIT:" in capital letters as the first nineteen (19) characters at the beginning of the subject line; n1

n1 The phrase "SEXUALLY-EXPLICIT" comprises 17 characters, including the dash between the two words. The colon (:) and the space following the phrase are the 18th and 19th characters.

(2) Provide that the content of the message that is initially viewable by the recipient, when the message is opened by any recipient and absent any further actions by the recipient, include only the following information:

(i) The phrase "SEXUALLY-EXPLICIT:" in a clear and conspicuous manner; n2

n2 This phrase consists of nineteen (19) characters and is identical to the phrase required in § 316.1(a)(1) of this Rule.

(ii) Clear and conspicuous identification that the message is an advertisement or solicitation;

(iii) Clear and conspicuous notice of the opportunity of a recipient to decline to receive further commercial electronic mail messages from the sender;

(iv) A functioning return electronic mail address or other Internet-based mechanism, clearly and conspicuously displayed, that-

(A) A recipient may use to submit, in a manner specified in the message, a reply electronic mail message or other form of Internet-based communication requesting not to receive future [*21034] commercial electronic mail messages from that sender at the electronic mail address where the message was received; and

(B) Remains capable of receiving such messages or communications for no less than 30 days after the transmission of the original message;

(v) Clear and conspicuous display of a valid physical postal address of the sender; and

(vi) Any needed instructions on how to access, or activate a mechanism to access, the sexually oriented material, preceded by a clear and conspicuous statement that to avoid viewing the sexually oriented material, a recipient should delete the email message without following such instructions.

(b) Prior affirmative consent. Paragraph (a) of this section does not apply to the transmission of an electronic mail message if the recipient has given prior affirmative consent to receipt of the message.

(c) Definitions. (1) The definition of the term "affirmative consent" is the same as the definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(1).

(2) "Character" means an element of the American Standard Code for Information Interchange ("ASCII") character set.

(3) The definition of the term "commercial electronic mail message" is the same as the definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(2).

(4) The definition of the term "electronic mail address" is the same as the definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(5).

(5) The definition of the term "electronic mail message" is the same as the definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(6).

(6) The definition of the term "initiate" is the same as the definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(9).

(7) The definition of the term "Internet" is the same as the definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(10).

(8) The definition of the term "procure" is the same as the definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(12).

(9) The definition of the term "protected computer" is the same as the definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(13).

(10) The definition of the term "recipient" is the same as the definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(14).

(11) The definition of the term "routine conveyance" is the same as the definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(15).

(12) The definition of the term "sender" is the same as the definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(16).

(13) The definition of the term "transactional or relationship messages" is the same as the definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(17).

(14) The definition of the term "sexually oriented material" is the same as the definition of that term in the CAN-SPAM Act, 15 U.S.C. 7704(d)(4).

(d) Severability. The provisions of this Rule are separate and severable from one another. If any provision is stayed or determined to be invalid, it is the Commission's intention that the remaining provisions shall continue in effect.

Authority: Pub. L. 108-187, 117 Stat. 2699, 15 U.S.C. 7701 et seq.

By direction of the Commission.

Donald S. Clark,

Secretary.

Violations of the regulation are punishable by up to five years in prison and a substantial fine. 

    Where, as here, prison (up to five years) plus a substantial fine is available for violating the CAN-SPAM regulations, 15 U.S.C. 7704(d)(5), the chill to First Amendment rights is all the more prevalent. 

What is sexually oriented material?

    The CAN-SPAM regulations apply to sexually oriented material. 16 CFR § 316.1(a). The CAN-SPAM regulations say that sexually oriented material is defined the same as in 15 U.S.C. § 7704(d)(4), which gives a definition of "any material that depicts sexually explicit conduct (as that term is defined in section 2256 of title 18, United States Code), unless the depiction constitutes a small and insignificant part of the whole, the remainder of which is not primarily devoted to sexual matters." 18 U.S.C. § 2256(2) defines "sexually explicit conduct" as follows: 

"(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person."

    In other words, the CAN-SPAM regulations are so overbroad as to regulate even the "depiction" of the very sexual activities without which humanity would have perished long ago. The regulations do not claim even to exempt verbal depictions of such activities. Such depictions are replete in the bible (verbally), on prime time television, and in some of the greatest works of literature, visual arts, and the performing arts. Moreover, the definition of sexually explicit conduct includes even the lascivious exhibition of one's pubic area (whether clothed or unclothed), which some might even ascribe to Elvis Presley's early gyrations when performing onstage. 

THE CAN-SPAM REGULATIONS SHOULD BE CANNED

The First Amendment and the rest of the Constitution are stronger when we err on the side of permitting too much speech, rather than doing the opposite. The CAN-SPAM regulations cannot be reconciled with the First Amendment, and should be withdrawn. 

May 20, 2004

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