Spam - 9

"There is a higher law than the Constitution."

William H. Seward

Spam and the First Amendment

Let's begin with preliminaries: I am European, Austrian even, and no lawyer, both of which will show.

Whenever it comes to restricting spam by law or other measures against spam those who send the unsolicited messages are quick to claim First Amendment rights. They scream and shout as people want to restrict their freedom of speech. Of course they do; they have the right to do so; but I think they are not right.

Theft

As we have seen, spam is theft. The right to free speech is certainly one of the most fundamental and precious ones. How important a message you have to tell in order to justify stealing for it I don't know. I doubt that any advertisement can ever be.

The theft is not so much the time it takes to delete unwanted mail. This is the case with almost every message we receive, we have to decide whether the information in it is relevant for us or not. The issue is that unsolicited email uses the recipient's (and their ISP's) resources, i.e. money. It is as if you would not buy a newspaper because you want to and because of its content. Instead, the journalists came to your house, took your paper and your ink to write, no, not an interesting article about "Free Peach For All!" but an advertisement they take money for.

Clearly, even the spammers themselves know that the theft that goes with spam is an issue as Sanford Wallace keeps repeating how cheap Internet access has become.

Privacy

I don't know to what extent the US constitution knows a right to privacy (sorry), but I think it is not too far developed. Most constitutions that I know do have that right and it has even been extended to protect nature (!) as belonging to everybody's privacy. Anyways, I consider my email address to belong to my privacy and the fact that it appears on this Website does not express that I want to see barely legal (!) teenagers (or does it?).

Excessive freedom of speech is no freedom

If everybody has the right to tell everything to everybody at every time (even against their will) and everybody does that in the end nobody will ever listen to anything from anybody. This is not what the First Amendment aims at.

Finally, Philosophy

While the law is (unfortunately) necessary it makes people forget about ethics and morality.

While the law needs many, many regulations only to fail at some other point in the end and while the law is always positive, not absolute there is only one moral law, says Kant.

This moral law can be seen as a meta-law from which everybody can derive it's incarnations for the moment. While the moral law is true and right, errors in the implementation are possible.

"Act in a way that the maxim of your will can at any time be the principle for general legislation."

Immanuel Kant, Critique of practical reason, p 54; my translation

If this sounds familiar to you this is no reason to be alarmed: yes, it is more or less what Jesus has said in his Sermon on the Mount and yes, this is what we tell our children when we say they shouldn't do to others what they don't want to happen to themselves. These two facts do not necessarily mean that the moral law is wrong.

At another occasion Kant reformulates the moral law to my preferred version (Critique of practical reason, pp 155f; my translation, my accentuation):

"...everything can be used only as a tool if one wants to and has the power to do so. Only the human being and with them every reasonable creature is a purpose in itself."

This means that we must not use any human being as a tool only. I think now it is clear what is wrong with spam.