Well, it might work better to post all of the relevant parts of the first amendment.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
Which means, basically, that the government shall not promote religion, but nor shall it impair religion. The best way for government to accomplish this is to stay the hell away from religious matters, and not to discriminate on behalf of any religion (establishment) or against any religion (free exercise).
Seperation of church and state is a decent way to describe this.
Sadly this is incorrect. This case has very little to do with voluntary recital of the pledge.
The issue is this: Can the government MANDATE that the pledge be recited in class, where even though it is settled that students can refrain from reciting the pledge according to their wishes, but where those students are so young that they are unaware of their rights and are due to their tender years and lack of knowledge or will, prone to be coerced into following the lead of their teachers.
This case wouldn't come up with regards to adults. Children though are more easily coerced into doing this and don't know that they needn't.
Voluntary recital of the pledge is still, and always has been, A-OK however. This case has nothing to do with that. Have you even _read_ the opinions in this case?
It varies. Take a look at how GOMS analyses are conducted, and you'll see that on average, a handful of extremely commonplace commands are faster than mousing, but that many other keyboard commands are slower. That's objectively. Subjectively, the keyboard always seems faster because your mind is more occupied with remembering commands than it would be if you're mousing, which distorts your time sense slightly.
Maybe so, but the term was well in use before copyright laws existed, and at any rate, the U.S. didn't exist until the late 18th century.
Incidentally, the originating quote from 1668 actually calls them "land-pirats," perhaps sinking the notion that they were asea. Really a pirate publisher at that time was more or less any publisher. There weren't a whole lot of presses stashed away and in operation AFAIK. Instead pirate editions would be printed by the same people that would also print legal editions of other works, when they had the time to do so.
That's easy. Connect a to 1, 2, and 3 using connections that are in front of the plane the elements are in. Connect b to 1, 2, and 3 using connections that are in the plane the elements are in. And connect c to 1, 2, and 3 using connections that are behind the plane the elements are in.
You weren't saying that you thought or knew this couldn't be done, right?
Pft. He's using OTOH as a single object since he doesn't know what it means. If someone was talking about foo to you, and you didn't know what it was, you might validly ask, "Foo?" meaning "What is 'foo?'"
Incidentally, you also are a dumbass. OTOH means "On The Other Hand."
I think that the ship has sailed, as it were, with regards to piracy being used to describe unauthorized copying and distribution.
The first recorded use of the word 'pirate' in regards to people who made copies of books without permission dates back to 1668. When there were the other kind of pirates as well. And decades before copyright laws came into being. Take a look in your convenient pocket-sized unabridged OED.
It _is_ a propaganda term -- if someone were trying to achieve the same effect today, they'd call infringers 'terrorists.' But it's such an ancient one that I don't think that there's much point in bitching about it now.
Yeah, that would be content-neutral. However, there still has to be some content-neutral reason for banning all unsolicited bulk email. And incidentally, how much is bulk, and how unsolicited is unsolicited?
Personally, I think that would be a very bad thing to do though, and it might not survive a challenge. It would be _very_ burdensome on speech, and so far the main reason people seem to dislike spam is because it's annoying. I don't see that the tradeoff would be appropriate in our society that values speech so highly.
You will have to admit that opt-out is not realistically practicable.
Well, I think there are two options. One is opt-out, the other is to provide constructive notice in a reasonable manner.
Think of the former as being like telling an individual salesman to go away, and the latter as putting up a prominent sign reading 'no solicitors.'
I don't have a problem with your taking action against people who ignore either, provided the notice was actual or sufficient.
A low-level technical solution, such as on the SMTP level, would be the only thing that technically works, and I don't think you'd bet a months wage that the spammer would care this --||-- much.
Won't matter. What matters in that case -- providing constructive notice -- is whether it is sufficiently prominent that reasonable spammers _should_ have seen it, regardless of whether they actually did. Or of course, if they actually did, that works too.
Whether or not spammers care is not particularly relevant.
The FTC Do Not Call list is a form of this -- since it's difficult to put a sign on your phone, or reengineer the phone system, a big list was provided that telemarketers ought to be aware of. An email solution needn't necessarily be a big list, it just has to be prominent enough.
I think that if enough people had an SMTP solution it would work. OTOH some people have proposed making a post to Usenet, and I don't think that would work. But really it's going to depend on how a jury decides, should it come to that. (after all, if it's respected, who cares if it's enforcable -- only when someone violates it do you have a desire to go to court)
If my speech includes harrassing or maybe killing others (hey, that can be a tremendous message), it's no longer a matter of speech. I'll get jailed for harrassment or murder, not for speech.
Yeah, but there's nevertheless fairly high bars that have to be met for someone to prove that your speech is so bad that it's regulable. Take a look at the case of Brandenburg v. Ohio for the general test.
Likewise, IMHO spammers deserve to be jailed (at least) not for speech, but for the about 20 minor felonies (fraud, harrassment, theft of service, etc.) that they commit while doing their little "speeches".
Fine. If a spammer _is_ acting fraudulently, or in a harassing manner, etc. then I'm not defending him. However those things are not necessarily coextensive with spam -- it is possible to send spam that is not harassing nor fraudulent, and we should not prevent people from doing so.
So I say, instead of passing broad anti-spam regulation, why not just enforce the laws on the books against fraud? It's much easier, doesn't raise significant constitutional questions, and we can do it right now.
For one, the volume of physical junk mail is several orders of magnitude lower than that of spam.
Yeah, but it's nevertheless easier to dispose of even large quantities of spam than it is to dispose of large quantities of junk mail.
Also the quantities received differ -- I have three email accounts. One gets almost no spam. One gets some, but it's entirely managable. The other gets a great deal, but I can still get rid of all of it in about a minute using a lousy web interface. None of these is such a heavy burden that I would be justified in calling for government assistence, especially given the speech issue involved.
Two, where I live you can put a "no ads, please" sticker on your mailbox. Almost everyone will respect that. I think you can take people to court if they don't.
I'm not entirely sure how well that would work with regards to junk mail, as opposed to non-mailed advertisements, but sure. I don't have a problem with signs like that provided they give adequate notice. Your's likely does.
One, I consider even a single "enlarge your penis!!!" mail sent to my mother as offensive. It isn't always a question of quantity alone.
Meh. Certainly if this were in public, your mom would be SOL. There's no right not to be offended; this has been long-ago settled in the Cohen case IIRC. (basically someone was walking around with 'Fuck the draft' written on his jacket)
In private, people do have a right to act as gatekeepers, permitting in some people or messages and denying others from entering. Nevertheless, when you connect to the 'net and request that your mail program download all the mail sent to you, you're allowing it all in. You didn't have to -- you could have not d/l'ed your mail and let it languish. Or you could filter it. Or you could 'manually' filter it by deleting it once it's come in.
In the world of snail mail, you can block offensive mail from coming to you, BUT you have to specifically request that it be blocked. What is offensive to some is not offensive to others, and it's inappropriate for the government to block me from getting mail that I might not have a problem with merely because your Mom would. Especially since she isn't getting my mail anyway!
Thus, if your mom would find that offensive, the onus is on her to have it filtered so that she never has to encounter it again. I'm sorry if this means that spammers might have one free bite at the apple since she likely couldn't block something without knowing it was out there, but I think that's how it works out.
Two, the argument that "you can deal with it" is very misguided. It's like saying that murder shouldn't be illegal because everyone can get a gun and defend himself.
You're not seriously claiming that spam is as serious a problem as murder are you? That would indicate that you have no sense of proportion.
There is a qualitative/quantitative difference here. A door-to-door salesman or telemarketer can only annoy so many people per hour. A spammer can easily annoy millions in the same timeframe. That is enough of a quantitative difference to make it of a different quality.
A junk mailer can easily annoy millions of people simultaneously too. The degree to which a message is unpopular is irrelevant. The first amendment exists precisely to protect even the most unpopular speech.
But the 1st Amendment doesn't include a right to force your speech on others.
That's true. BUT no spammer in the whole world can force you to recieve his email. It was your choice to get email, it was your choice to download it all no matter what email it might have been... you invited the spam in the spam that had collected in your mailbox.
What you ought to do is tell spammers that you don't want mail from them, which I believe they should have to respect, or provide sufficient generic notice to all spammers that might contact you in the future that their spam isn't wanted.
I mean the UI. The MacOS UI was in desperate need of replacement by something significantly better. OS X doesn't improve on the basic UI from the Mac, and in many places it's gotten worse.
Don't take this as meaning that there's something else that's good out there either. All UIs suck at the moment.
I didn't say the First Amendment was an absolute bar to speech regulation. I said it was a high bar. In the case of graffiti though, the state has a pretty good chance of being able to regulate it. Spam's not graffiti though, and I think the arguments that worked for the latter won't work for the former.
If this absurd argument were correct, it would be legal to run a bullhorn on a residential street at 3 AM unless and until enough (all?) of the residents of the street specifically and individually asked you to stop. It isn't. QED.
No. You seem to be referring to a time/place/manner restriction on speech. There _would_ have to be a preexisting rule against it of course; you can't take action for doing something that there literally is no prohibition against. But these are fairly common. As laws, though; not as mere presumptions of the wishes of the people in the area. I don't really expect that would work, and I doubt anyone's bothered to try. Nevertheless, they are only permitted to _shift_ speech, not to ban it. 3AM is no good, but you could probably do this at 3PM and not get in trouble.
The burden is on the would-be visitor to check for NO TRESPASSING signs. Spammers have not made even the most cursory attempt (e.g. Google each e-mail address to check for a do-not-spam statement in a Usenet sig) to do so.
Well, the burden is only there provided that the notice is sufficiently prominent. A 'no solicitors' sign that you keep in your closet is clearly no good. Even if it's posted in there. One on the back door probably isn't that good either if the typical view people would have of your house is from the front. It's rather akin to how there are often rules for 'no trespassing' signs; how many there have to be for a given perimeter, how large, how visible, etc.
Honestly, I don't think that Google counts, unless that's where the address came from. And even then, the harvester might not be the same person as the spammer meaning that they're doing nothing wrong by merely collecting the address, and might not be obligated to pass that information on to someone who would act on it. Personally I think that there should be work done to make a standard way of presenting this in the mail protocols. Possibly as an RFC. Then people need to use it and popularize it so that it's accepted as a standard rather than merely alleging to be one. (e.g. EBCDIC is nominally a standard, but it's not as if it's seriously used)
It's customary to insert much more padding than that between mutually exclusive assertions.
They're not mutually exclusive, though. How is it deceptive for junk mail to be in a handwritten envelope? Are you saying that advertisers _must_ print envelopes? Isn't that rather bizarre? Likewise, I've gotten a decent number of ads that look like bills. They're not, they don't say they are, it's just that they come in an envelope that has no significant advertising on it, and which is of the same general class as a bill envelope.
Just because it can get past my mental filters as it were doesn't mean it's actually deceptive. It means I'm making overly broad assumptions, e.g. that all handwritten envelopes must contain personal letters.
The one and only relevant issue is that the use of filter-evasion techniques (including the obfuscation of words that are commonly known to be indicative of spam) proves beyond reasonable doubt that the spammer is deliberately attempting to intrude upon private property against the express prohibition of the owner.
Unfortunately it can't really prove that in light of the fact that a filter is NOT an express prohibition. The filter sits on the user's computer, generally. How is that expressly telling the spammer anything? How is it a prohibition against sending mail when it's designed to dispose of mail ALREADY RECEIVED and could never even have an effect on sending mail.
Think of it like this: At Christmas, someone gives you a fruitcake. An express prohibition would be if you refused to accept it from the person giving it to you and told them to never give you one again. But this would be rude, so most people don't do that. Instead they do what a filter does -- they accept the fruitcake, and then throw it away when no one is looking, or give it to someone else. They didn't indicate in
Well Apple hasn't really got a monopoly. You'd have more of a monopoly if you had Baltic and Mediterranean Avenues.
Plus of course, MS is exceptionally bad at writing good software. It's buggy, it's not secure, the user interface is godawful. Apple sometimes has problems with this, and it's gotten worse since Steve came back, but they at least have a better reputation in this respect.
And MS is considerably more evil than Apple apparently.
Well, spam is merely a nuisance. It's amazingly trivial to filter or even manually delete spam. The Court has said before that it's not too much of a burden for recipients of junk mail to have to sort it and throw it out. Why should spam, which you can have automatically thrown out, or which can be thrown out at the press of a button be more of a burden when it's easier to deal with?
As for frequency, 1) mail arrives when it arrives. If people are checking it all the time, then they're the ones making more work for themselves, just as if you opened the door every six minutes to see if someone was there. There's nothing stopping you from only checking once a day or so, in which case as far as you're concerned the spam all arrived in a big lump with your other mail. 2) While it's possible that solicitors could be a nuisance, your mere annoyance with them probably isn't enough for them to be considered such. E.g. what if they were all unrelated solicitors who just happened to all be coming by at about the same time? If one spammer sent you a lot of the same spam, that could be a nuisance. If they were different spams, then I'm inclined to think of it as not being that bad since it's vaguely like getting one envelope with a lot of different offers inside. And if they were different spammers, it's unlikely to be a nuisance at all, just a coincidence.
I realize that a lot of people don't like spam, and a lot of people are seriously annoyed by spam -- I certainly am -- but I think that it's a really bad idea to start reducing the protection of the first amendment for a mere annoyance.
So do you think that it would be possible for the government to outlaw all methods of speech other than, say, face to face communication, and have it be legal because it doesn't encompass the message?
Pshaw.
While _some_ manner restrictions might work, they cannot legally form a serious burden to speech. And speech is more than just the message, it's also closely tied to the medium.
Aside from the fact that unsolicited commerical email is content based discrimination (being commerical -- unless you think it should be illegal for there to be ANY unsolicited mailing, such a friend mailing you without being invited to), this would pose too great a burden on people who wish to communicate.
Your attempt to wiggle around the first amendment isn't likely to work.
I do not have to put a "burglars not wanted" sign on my door because otherwise the poor burglars can't tell whether I want them or not.
That's because burglary is illegal. Spam is not illegal, and being a form of speech is very difficult to make illegal given the significant protections we afford speech.
This means you wind up having to opt out again.
Since we can safely assume that 99% of the receipients of spam don't want any, opt-in is the only solution that makes any sense.
No. 99% of recipients of junk mail or telemarketing calls likely don't want them either, yet the most we can do is opt out. I don't think you quite realize how special a place speech occupies.
They know perfectly well that the probability that everyone they target wants their stuff is on a par with the probability that all the oxygen molecules in the room will happen to randomly cluster in the far corner.
That's really not too relevant. We have an enormous commitment to free speech. Door to door religious missionaries surely know the same thing. Yet their actions are entirely legal in the absence of actual or constructive knowledge as pertaining to particular individuals. The generic likelihood though isn't enough in the case of speech.
The usual standard for using someone else's private property is "permission must be granted first", not "you have permission until and unless it is explicitly refused".
True but as you note, there are exceptions. Spam qualifies for one -- the fact that you have a door is an implicit invitation for people to do what would otherwise be trespass in order to knock on it and talk to you. The fact that you have a phone connected to the phone network implicitly invites calls. The same goes for email.
You can affirmatively reject these permissions, but the assumption in our society is that if you're able to receive communications, you're inviting communications. Our society just likes communication after all. It's not odd for us to weigh in so heavily in favor of it.
When someone sends a bulk e-mail with forged headers
Well it's a hell of a lot easier to just make it illegal to forge headers in commerical communications. Forging headers is arguably deceptive advertising, a form of fraud. That's _not_ protected under the current state of first amendment law relating to commercial speech. Likewise we can probably mandate, though it's a bit more difficult, that removal addresses be offered. (they have to actually work of course, since if they didn't it'd be fraud)
And enforcing the rules we _already_ have or know are constitutional will at least get rid of spammers that somehow lie in their spams. That is a lot of spam right there. But it doesn't threaten honest spammers who at least are better than the other kind. And of course such enforcement would be just as likely to work from a practical perspective as a general ban on spam with regards to jurisdiction, effectiveness, etc.
to advertise "herb@l V1AGRA", it's clear on the face of it that he knew that the mail would be filtered if he had sent it with honest headers and not obfuscated the words "herbal VIAGRA". Thus, there is no question of whether or not the spammer had been put on notice that he wasn't supposed to send spam to any given person; he's already revealed that he knew that some of his targets did not want his mail and had taken active steps to reject it.
That's pretty dumb. I've been sent junk mail that looked like some other kind of mail but didn't actually rise to the level of being deceptive. E.g. junk mail in a handwritten envelope, or that looks vaguely like a bank statement or some such. Advertising around filters is legal as long as a HUMAN BEING isn't deceived. Computers are notoriously stupid as hell -- why on earth would we use them to determine what's deceptive or not?
Final point: Spam is not free speech. Fighting spam is not suppressing speech. For all I care, people can write as many "make $$$ now" mails as they like. They just have no right whatsoever to send them to me if I don't want them.
I disagree. The core assumption of the First Amendment at least seems to be that it encompasses and protects all speech. Thus the 'no law' language. In practice it's possible to show that some restrictions are sufficiently important as to outweigh it, but it always takes significant effort on the part of the person who wants the restriction.
So I think you should prove that spam is not free speech if you want to say that it's not. You might be right, but I think it's best if people work their way through the analysis.
They just have no right whatsoever to send them to me if I don't want them.
And how, pray tell, are spammers supposed to know that you don't want them unless you tell them so, or put up some sort of notice that they are reasonably likely to be aware of? Which gets us into the problem of what sorts of notice are reasonable and what sorts are not.
I don't really understand the problem here. Just because you, and I, and most people, hate spam does not mean that he _has_ to hate it as well. Disliking spam is a commonly held opinion, but it's an opinion all the same.
It's okay for people to like obnoxious things like cigars, or Weird Al Yankovic, or riced out cars. Or even spam.
True, as long as someone likes any of those things, the rest of us will be stuck with them, but nevertheless I think that having to tolerate the existence of things you dislike is part and parcel of living in a free society. And it's not as though you have no other way to rid yourself of spam.
Well, in private homes at least, which is all we have to concern ourselves with here, you're right, I agree.
This is why I think the FTC D-N-C list is a good idea. Nevertheless, we ought to be careful, and make sure that this particular proposed restriction is carefully crafted to be effective, yet no more broad than necessary, and not hostile to the ideals of the first amendment.
Is caution -- and the willingness to fairly consider arguments against the list -- so objectionable to you?
Nope. I hate spam. And junk mail. And telemarketing calls. And door to door salesmen. And ads on the Internet, TV, radio, billboards, newspapers, magazines, etc. And prominent logos on goods.
Trust me, you wouldn't believe how much I hate advertising in all its forms.
Free speech is about political, artistic and personal speech
Why so limited? The Supreme Court, which has probably got some sort of experience looking into this subject before has come down the other way: "The First Amendment, as applied to the States through the Fourteenth Amendment, protects commercial speech from unwarranted governmental regulation." See the Central Hudson case at 447 U.S. 557.
Phone calls pushing time-share scams are none of those things.
Yeah, but they don't have to be.
Telemarketing companies are not people, companies have many more restrictions about what they can say, they have many restrictions about what they MUST say.
Well, they're not natural people, but the law does treat corporations as people. Like that, don't like that, it doesn't seem to be going anywhere at the moment.
The restrictions placed on speech by corporations, and commercial speech, are there, that's true, but they're not very far from restrictions already placed on other speech.
I've discussed this at length here and honestly I don't much feel like reciting the exact same things. Please take a look at that post, and assume that I included anything relevant in this post.
Free speech only applies to what the government can tell individuals to say. That is a well estabilished fact.
Well, it also applies to corporations. And it doesn't merely apply to government telling us to say something (see Barnette), but it also applies to government telling us not to say things, and it even goes so far as to apply to government interfering with our listening to what others say, and even to what we may and mayn't think. It's pretty broad, and you're doing it a serious disservice.
Likewise, the right to free speech ends when the speaker attempts to force others to listen.
Mmm... that's a tough thing to say really. Is an amazingly prominent billboard an attempt to force others to listen?
At any rate, your argument is not wholly applicable. We very well _can_ be subjected to speech in public. We can always leave, there might be an issue of harassment, but it takes some work to rise to that level.
The issue of telemarketing calls is not one of speech in public. It is whether people are being forced to listen to speech in PRIVATE. Now, I totally agree -- people do not have a right to force others to listen to speech in private.
Nevertheless, telemarketing calls don't do that. Basically, there is an implicit permission given to telemarketers to call people merely by virtue of their having a phone. Calls made to you aren't really made by right contrary to your permission. They're made with your implicit permission.
You can revoke this permission, but you need to do so explicitly. Do so, and as the Rowan Court told us, there is no right of telemarketers to force you to listen.
Thus, if you give notice to a telemarketer and he is actually aware that you've retracted permission, I don't believe he has a right to call you at home. If you give notice in a way that reasonable telemarketers ought to be aware of (such as by the FTC list) then the outcome is the same.
Fail to do either however -- and the calls are unobjectionable as far as from a legal perspective IMO. It is the burden of the recipient to decide not to listen; frankly it's inappropriate for government to decide you WON'T listen to it even if you might have wanted to. So this is the best way go, I think.
well except make threats, say 'heil Hitler' (in Germany), yell 'fire' in a theater, lie to a police officer or j
So if your house was on fire, I couldn't call you to wake you up and save your life because I lack your express permission?
Correct. You are not obligated to do anything in that example.
I didn't say obligated. I asked if I couldn't if I merely wanted to of my own free will.
You have implied permission in that case. The telemarketers have specific denial of permission. There is a big difference there.
I agree -- but I think that telemarketers have implied permission until you specifically deny it.
Your argument is not valid per reductio ad absurdum.
And that was certainly absurd. I think that it's disingenious to say that someone's phone number is the same as their genitals. Why not limit your attempts to disprove it to mediums of communication?
And in this case calling someone is who helpfully put their name and phone number on a list for the specific purpose of not being called by a commercial organization is not 'jostling' it's 'battery'. (You shoulda left that point out, it weakens your argument).
Sure. I'm _not_ against the FTC list really. But I was replying to your post that claimed that people oughtn't be allowed to call people REGARDLESS of whether they're on the list. I don't think that people not on the list, or who have not given other notice that they don't want to be called, have much recourse though.
So it's in line with my argument -- in the earlier post, and in a whole ton of posts on this and related subjects, really.
Some people chose to have the big 'go away to all' sign out front. What's the problem with that?
I think that it's great. I think there might be some good arguments against it, but I'm generally in favor of it. I never said I wasn't.
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Well, it might work better to post all of the relevant parts of the first amendment.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
Which means, basically, that the government shall not promote religion, but nor shall it impair religion. The best way for government to accomplish this is to stay the hell away from religious matters, and not to discriminate on behalf of any religion (establishment) or against any religion (free exercise).
Seperation of church and state is a decent way to describe this.
Sadly this is incorrect. This case has very little to do with voluntary recital of the pledge.
The issue is this: Can the government MANDATE that the pledge be recited in class, where even though it is settled that students can refrain from reciting the pledge according to their wishes, but where those students are so young that they are unaware of their rights and are due to their tender years and lack of knowledge or will, prone to be coerced into following the lead of their teachers.
This case wouldn't come up with regards to adults. Children though are more easily coerced into doing this and don't know that they needn't.
Voluntary recital of the pledge is still, and always has been, A-OK however. This case has nothing to do with that. Have you even _read_ the opinions in this case?
They're not carets. That points upwards, and on many keyboards is shift-6.
Typically they're called angle brackets. They're too big to be guillemets, however.
"HTML markers?" Don't tell me that someone was dumb enough to think that those symbols were invented for HTML or something.
It varies. Take a look at how GOMS analyses are conducted, and you'll see that on average, a handful of extremely commonplace commands are faster than mousing, but that many other keyboard commands are slower. That's objectively. Subjectively, the keyboard always seems faster because your mind is more occupied with remembering commands than it would be if you're mousing, which distorts your time sense slightly.
Maybe so, but the term was well in use before copyright laws existed, and at any rate, the U.S. didn't exist until the late 18th century.
Incidentally, the originating quote from 1668 actually calls them "land-pirats," perhaps sinking the notion that they were asea. Really a pirate publisher at that time was more or less any publisher. There weren't a whole lot of presses stashed away and in operation AFAIK. Instead pirate editions would be printed by the same people that would also print legal editions of other works, when they had the time to do so.
That's easy. Connect a to 1, 2, and 3 using connections that are in front of the plane the elements are in. Connect b to 1, 2, and 3 using connections that are in the plane the elements are in. And connect c to 1, 2, and 3 using connections that are behind the plane the elements are in.
You weren't saying that you thought or knew this couldn't be done, right?
Pft. He's using OTOH as a single object since he doesn't know what it means. If someone was talking about foo to you, and you didn't know what it was, you might validly ask, "Foo?" meaning "What is 'foo?'"
Incidentally, you also are a dumbass. OTOH means "On The Other Hand."
I think that the ship has sailed, as it were, with regards to piracy being used to describe unauthorized copying and distribution.
The first recorded use of the word 'pirate' in regards to people who made copies of books without permission dates back to 1668. When there were the other kind of pirates as well. And decades before copyright laws came into being. Take a look in your convenient pocket-sized unabridged OED.
It _is_ a propaganda term -- if someone were trying to achieve the same effect today, they'd call infringers 'terrorists.' But it's such an ancient one that I don't think that there's much point in bitching about it now.
Even with keyboards and mice, that is, even within the WIMP sort of UI, I think there's still a lot of room for improvement that Apple isn't pursuing.
Yeah, that would be content-neutral. However, there still has to be some content-neutral reason for banning all unsolicited bulk email. And incidentally, how much is bulk, and how unsolicited is unsolicited?
Personally, I think that would be a very bad thing to do though, and it might not survive a challenge. It would be _very_ burdensome on speech, and so far the main reason people seem to dislike spam is because it's annoying. I don't see that the tradeoff would be appropriate in our society that values speech so highly.
You will have to admit that opt-out is not realistically practicable.
Well, I think there are two options. One is opt-out, the other is to provide constructive notice in a reasonable manner.
Think of the former as being like telling an individual salesman to go away, and the latter as putting up a prominent sign reading 'no solicitors.'
I don't have a problem with your taking action against people who ignore either, provided the notice was actual or sufficient.
A low-level technical solution, such as on the SMTP level, would be the only thing that technically works, and I don't think you'd bet a months wage that the spammer would care this --||-- much.
Won't matter. What matters in that case -- providing constructive notice -- is whether it is sufficiently prominent that reasonable spammers _should_ have seen it, regardless of whether they actually did. Or of course, if they actually did, that works too.
Whether or not spammers care is not particularly relevant.
The FTC Do Not Call list is a form of this -- since it's difficult to put a sign on your phone, or reengineer the phone system, a big list was provided that telemarketers ought to be aware of. An email solution needn't necessarily be a big list, it just has to be prominent enough.
I think that if enough people had an SMTP solution it would work. OTOH some people have proposed making a post to Usenet, and I don't think that would work. But really it's going to depend on how a jury decides, should it come to that. (after all, if it's respected, who cares if it's enforcable -- only when someone violates it do you have a desire to go to court)
If my speech includes harrassing or maybe killing others (hey, that can be a tremendous message), it's no longer a matter of speech. I'll get jailed for harrassment or murder, not for speech.
Yeah, but there's nevertheless fairly high bars that have to be met for someone to prove that your speech is so bad that it's regulable. Take a look at the case of Brandenburg v. Ohio for the general test.
Likewise, IMHO spammers deserve to be jailed (at least) not for speech, but for the about 20 minor felonies (fraud, harrassment, theft of service, etc.) that they commit while doing their little "speeches".
Fine. If a spammer _is_ acting fraudulently, or in a harassing manner, etc. then I'm not defending him. However those things are not necessarily coextensive with spam -- it is possible to send spam that is not harassing nor fraudulent, and we should not prevent people from doing so.
So I say, instead of passing broad anti-spam regulation, why not just enforce the laws on the books against fraud? It's much easier, doesn't raise significant constitutional questions, and we can do it right now.
For one, the volume of physical junk mail is several orders of magnitude lower than that of spam.
Yeah, but it's nevertheless easier to dispose of even large quantities of spam than it is to dispose of large quantities of junk mail.
Also the quantities received differ -- I have three email accounts. One gets almost no spam. One gets some, but it's entirely managable. The other gets a great deal, but I can still get rid of all of it in about a minute using a lousy web interface. None of these is such a heavy burden that I would be justified in calling for government assistence, especially given the speech issue involved.
Two, where I live you can put a "no ads, please" sticker on your mailbox. Almost everyone will respect that. I think you can take people to court if they don't.
I'm not entirely sure how well that would work with regards to junk mail, as opposed to non-mailed advertisements, but sure. I don't have a problem with signs like that provided they give adequate notice. Your's likely does.
One, I consider even a single "enlarge your penis!!!" mail sent to my mother as offensive. It isn't always a question of quantity alone.
Meh. Certainly if this were in public, your mom would be SOL. There's no right not to be offended; this has been long-ago settled in the Cohen case IIRC. (basically someone was walking around with 'Fuck the draft' written on his jacket)
In private, people do have a right to act as gatekeepers, permitting in some people or messages and denying others from entering. Nevertheless, when you connect to the 'net and request that your mail program download all the mail sent to you, you're allowing it all in. You didn't have to -- you could have not d/l'ed your mail and let it languish. Or you could filter it. Or you could 'manually' filter it by deleting it once it's come in.
In the world of snail mail, you can block offensive mail from coming to you, BUT you have to specifically request that it be blocked. What is offensive to some is not offensive to others, and it's inappropriate for the government to block me from getting mail that I might not have a problem with merely because your Mom would. Especially since she isn't getting my mail anyway!
Thus, if your mom would find that offensive, the onus is on her to have it filtered so that she never has to encounter it again. I'm sorry if this means that spammers might have one free bite at the apple since she likely couldn't block something without knowing it was out there, but I think that's how it works out.
Two, the argument that "you can deal with it" is very misguided. It's like saying that murder shouldn't be illegal because everyone can get a gun and defend himself.
You're not seriously claiming that spam is as serious a problem as murder are you? That would indicate that you have no sense of proportion.
There is a qualitative/quantitative difference here. A door-to-door salesman or telemarketer can only annoy so many people per hour. A spammer can easily annoy millions in the same timeframe. That is enough of a quantitative difference to make it of a different quality.
A junk mailer can easily annoy millions of people simultaneously too. The degree to which a message is unpopular is irrelevant. The first amendment exists precisely to protect even the most unpopular speech.
But the 1st Amendment doesn't include a right to force your speech on others.
That's true. BUT no spammer in the whole world can force you to recieve his email. It was your choice to get email, it was your choice to download it all no matter what email it might have been... you invited the spam in the spam that had collected in your mailbox.
What you ought to do is tell spammers that you don't want mail from them, which I believe they should have to respect, or provide sufficient generic notice to all spammers that might contact you in the future that their spam isn't wanted.
Much like ho
I mean the UI. The MacOS UI was in desperate need of replacement by something significantly better. OS X doesn't improve on the basic UI from the Mac, and in many places it's gotten worse.
Don't take this as meaning that there's something else that's good out there either. All UIs suck at the moment.
Naw. Graffiti is illegal too.
I didn't say the First Amendment was an absolute bar to speech regulation. I said it was a high bar. In the case of graffiti though, the state has a pretty good chance of being able to regulate it. Spam's not graffiti though, and I think the arguments that worked for the latter won't work for the former.
If this absurd argument were correct, it would be legal to run a bullhorn on a residential street at 3 AM unless and until enough (all?) of the residents of the street specifically and individually asked you to stop. It isn't. QED.
No. You seem to be referring to a time/place/manner restriction on speech. There _would_ have to be a preexisting rule against it of course; you can't take action for doing something that there literally is no prohibition against. But these are fairly common. As laws, though; not as mere presumptions of the wishes of the people in the area. I don't really expect that would work, and I doubt anyone's bothered to try. Nevertheless, they are only permitted to _shift_ speech, not to ban it. 3AM is no good, but you could probably do this at 3PM and not get in trouble.
The burden is on the would-be visitor to check for NO TRESPASSING signs. Spammers have not made even the most cursory attempt (e.g. Google each e-mail address to check for a do-not-spam statement in a Usenet sig) to do so.
Well, the burden is only there provided that the notice is sufficiently prominent. A 'no solicitors' sign that you keep in your closet is clearly no good. Even if it's posted in there. One on the back door probably isn't that good either if the typical view people would have of your house is from the front. It's rather akin to how there are often rules for 'no trespassing' signs; how many there have to be for a given perimeter, how large, how visible, etc.
Honestly, I don't think that Google counts, unless that's where the address came from. And even then, the harvester might not be the same person as the spammer meaning that they're doing nothing wrong by merely collecting the address, and might not be obligated to pass that information on to someone who would act on it. Personally I think that there should be work done to make a standard way of presenting this in the mail protocols. Possibly as an RFC. Then people need to use it and popularize it so that it's accepted as a standard rather than merely alleging to be one. (e.g. EBCDIC is nominally a standard, but it's not as if it's seriously used)
It's customary to insert much more padding than that between mutually exclusive assertions.
They're not mutually exclusive, though. How is it deceptive for junk mail to be in a handwritten envelope? Are you saying that advertisers _must_ print envelopes? Isn't that rather bizarre? Likewise, I've gotten a decent number of ads that look like bills. They're not, they don't say they are, it's just that they come in an envelope that has no significant advertising on it, and which is of the same general class as a bill envelope.
Just because it can get past my mental filters as it were doesn't mean it's actually deceptive. It means I'm making overly broad assumptions, e.g. that all handwritten envelopes must contain personal letters.
The one and only relevant issue is that the use of filter-evasion techniques (including the obfuscation of words that are commonly known to be indicative of spam) proves beyond reasonable doubt that the spammer is deliberately attempting to intrude upon private property against the express prohibition of the owner.
Unfortunately it can't really prove that in light of the fact that a filter is NOT an express prohibition. The filter sits on the user's computer, generally. How is that expressly telling the spammer anything? How is it a prohibition against sending mail when it's designed to dispose of mail ALREADY RECEIVED and could never even have an effect on sending mail.
Think of it like this: At Christmas, someone gives you a fruitcake. An express prohibition would be if you refused to accept it from the person giving it to you and told them to never give you one again. But this would be rude, so most people don't do that. Instead they do what a filter does -- they accept the fruitcake, and then throw it away when no one is looking, or give it to someone else. They didn't indicate in
Well Apple hasn't really got a monopoly. You'd have more of a monopoly if you had Baltic and Mediterranean Avenues.
Plus of course, MS is exceptionally bad at writing good software. It's buggy, it's not secure, the user interface is godawful. Apple sometimes has problems with this, and it's gotten worse since Steve came back, but they at least have a better reputation in this respect.
And MS is considerably more evil than Apple apparently.
Well, spam is merely a nuisance. It's amazingly trivial to filter or even manually delete spam. The Court has said before that it's not too much of a burden for recipients of junk mail to have to sort it and throw it out. Why should spam, which you can have automatically thrown out, or which can be thrown out at the press of a button be more of a burden when it's easier to deal with?
As for frequency, 1) mail arrives when it arrives. If people are checking it all the time, then they're the ones making more work for themselves, just as if you opened the door every six minutes to see if someone was there. There's nothing stopping you from only checking once a day or so, in which case as far as you're concerned the spam all arrived in a big lump with your other mail. 2) While it's possible that solicitors could be a nuisance, your mere annoyance with them probably isn't enough for them to be considered such. E.g. what if they were all unrelated solicitors who just happened to all be coming by at about the same time? If one spammer sent you a lot of the same spam, that could be a nuisance. If they were different spams, then I'm inclined to think of it as not being that bad since it's vaguely like getting one envelope with a lot of different offers inside. And if they were different spammers, it's unlikely to be a nuisance at all, just a coincidence.
I realize that a lot of people don't like spam, and a lot of people are seriously annoyed by spam -- I certainly am -- but I think that it's a really bad idea to start reducing the protection of the first amendment for a mere annoyance.
So do you think that it would be possible for the government to outlaw all methods of speech other than, say, face to face communication, and have it be legal because it doesn't encompass the message?
Pshaw.
While _some_ manner restrictions might work, they cannot legally form a serious burden to speech. And speech is more than just the message, it's also closely tied to the medium.
Aside from the fact that unsolicited commerical email is content based discrimination (being commerical -- unless you think it should be illegal for there to be ANY unsolicited mailing, such a friend mailing you without being invited to), this would pose too great a burden on people who wish to communicate.
Your attempt to wiggle around the first amendment isn't likely to work.
I do not have to put a "burglars not wanted" sign on my door because otherwise the poor burglars can't tell whether I want them or not.
That's because burglary is illegal. Spam is not illegal, and being a form of speech is very difficult to make illegal given the significant protections we afford speech.
This means you wind up having to opt out again.
Since we can safely assume that 99% of the receipients of spam don't want any, opt-in is the only solution that makes any sense.
No. 99% of recipients of junk mail or telemarketing calls likely don't want them either, yet the most we can do is opt out. I don't think you quite realize how special a place speech occupies.
They know perfectly well that the probability that everyone they target wants their stuff is on a par with the probability that all the oxygen molecules in the room will happen to randomly cluster in the far corner.
That's really not too relevant. We have an enormous commitment to free speech. Door to door religious missionaries surely know the same thing. Yet their actions are entirely legal in the absence of actual or constructive knowledge as pertaining to particular individuals. The generic likelihood though isn't enough in the case of speech.
The usual standard for using someone else's private property is "permission must be granted first", not "you have permission until and unless it is explicitly refused".
True but as you note, there are exceptions. Spam qualifies for one -- the fact that you have a door is an implicit invitation for people to do what would otherwise be trespass in order to knock on it and talk to you. The fact that you have a phone connected to the phone network implicitly invites calls. The same goes for email.
You can affirmatively reject these permissions, but the assumption in our society is that if you're able to receive communications, you're inviting communications. Our society just likes communication after all. It's not odd for us to weigh in so heavily in favor of it.
When someone sends a bulk e-mail with forged headers
Well it's a hell of a lot easier to just make it illegal to forge headers in commerical communications. Forging headers is arguably deceptive advertising, a form of fraud. That's _not_ protected under the current state of first amendment law relating to commercial speech. Likewise we can probably mandate, though it's a bit more difficult, that removal addresses be offered. (they have to actually work of course, since if they didn't it'd be fraud)
And enforcing the rules we _already_ have or know are constitutional will at least get rid of spammers that somehow lie in their spams. That is a lot of spam right there. But it doesn't threaten honest spammers who at least are better than the other kind. And of course such enforcement would be just as likely to work from a practical perspective as a general ban on spam with regards to jurisdiction, effectiveness, etc.
to advertise "herb@l V1AGRA", it's clear on the face of it that he knew that the mail would be filtered if he had sent it with honest headers and not obfuscated the words "herbal VIAGRA". Thus, there is no question of whether or not the spammer had been put on notice that he wasn't supposed to send spam to any given person; he's already revealed that he knew that some of his targets did not want his mail and had taken active steps to reject it.
That's pretty dumb. I've been sent junk mail that looked like some other kind of mail but didn't actually rise to the level of being deceptive. E.g. junk mail in a handwritten envelope, or that looks vaguely like a bank statement or some such. Advertising around filters is legal as long as a HUMAN BEING isn't deceived. Computers are notoriously stupid as hell -- why on earth would we use them to determine what's deceptive or not?
Final point: Spam is not free speech. Fighting spam is not suppressing speech. For all I care, people can write as many "make $$$ now" mails as they like. They just have no right whatsoever to send them to me if I don't want them.
I disagree. The core assumption of the First Amendment at least seems to be that it encompasses and protects all speech. Thus the 'no law' language. In practice it's possible to show that some restrictions are sufficiently important as to outweigh it, but it always takes significant effort on the part of the person who wants the restriction.
So I think you should prove that spam is not free speech if you want to say that it's not. You might be right, but I think it's best if people work their way through the analysis.
They just have no right whatsoever to send them to me if I don't want them.
And how, pray tell, are spammers supposed to know that you don't want them unless you tell them so, or put up some sort of notice that they are reasonably likely to be aware of? Which gets us into the problem of what sorts of notice are reasonable and what sorts are not.
I don't really understand the problem here. Just because you, and I, and most people, hate spam does not mean that he _has_ to hate it as well. Disliking spam is a commonly held opinion, but it's an opinion all the same.
It's okay for people to like obnoxious things like cigars, or Weird Al Yankovic, or riced out cars. Or even spam.
True, as long as someone likes any of those things, the rest of us will be stuck with them, but nevertheless I think that having to tolerate the existence of things you dislike is part and parcel of living in a free society. And it's not as though you have no other way to rid yourself of spam.
Well, in private homes at least, which is all we have to concern ourselves with here, you're right, I agree.
This is why I think the FTC D-N-C list is a good idea. Nevertheless, we ought to be careful, and make sure that this particular proposed restriction is carefully crafted to be effective, yet no more broad than necessary, and not hostile to the ideals of the first amendment.
Is caution -- and the willingness to fairly consider arguments against the list -- so objectionable to you?
You must be a spammer.
Nope. I hate spam. And junk mail. And telemarketing calls. And door to door salesmen. And ads on the Internet, TV, radio, billboards, newspapers, magazines, etc. And prominent logos on goods.
Trust me, you wouldn't believe how much I hate advertising in all its forms.
Free speech is about political, artistic and personal speech
Why so limited? The Supreme Court, which has probably got some sort of experience looking into this subject before has come down the other way: "The First Amendment, as applied to the States through the Fourteenth Amendment, protects commercial speech from unwarranted governmental regulation." See the Central Hudson case at 447 U.S. 557.
Phone calls pushing time-share scams are none of those things.
Yeah, but they don't have to be.
Telemarketing companies are not people, companies have many more restrictions about what they can say, they have many restrictions about what they MUST say.
Well, they're not natural people, but the law does treat corporations as people. Like that, don't like that, it doesn't seem to be going anywhere at the moment.
The restrictions placed on speech by corporations, and commercial speech, are there, that's true, but they're not very far from restrictions already placed on other speech.
I've discussed this at length here and honestly I don't much feel like reciting the exact same things. Please take a look at that post, and assume that I included anything relevant in this post.
Free speech only applies to what the government can tell individuals to say. That is a well estabilished fact.
Well, it also applies to corporations. And it doesn't merely apply to government telling us to say something (see Barnette), but it also applies to government telling us not to say things, and it even goes so far as to apply to government interfering with our listening to what others say, and even to what we may and mayn't think. It's pretty broad, and you're doing it a serious disservice.
Likewise, the right to free speech ends when the speaker attempts to force others to listen.
Mmm... that's a tough thing to say really. Is an amazingly prominent billboard an attempt to force others to listen?
At any rate, your argument is not wholly applicable. We very well _can_ be subjected to speech in public. We can always leave, there might be an issue of harassment, but it takes some work to rise to that level.
The issue of telemarketing calls is not one of speech in public. It is whether people are being forced to listen to speech in PRIVATE. Now, I totally agree -- people do not have a right to force others to listen to speech in private.
Nevertheless, telemarketing calls don't do that. Basically, there is an implicit permission given to telemarketers to call people merely by virtue of their having a phone. Calls made to you aren't really made by right contrary to your permission. They're made with your implicit permission.
You can revoke this permission, but you need to do so explicitly. Do so, and as the Rowan Court told us, there is no right of telemarketers to force you to listen.
Thus, if you give notice to a telemarketer and he is actually aware that you've retracted permission, I don't believe he has a right to call you at home. If you give notice in a way that reasonable telemarketers ought to be aware of (such as by the FTC list) then the outcome is the same.
Fail to do either however -- and the calls are unobjectionable as far as from a legal perspective IMO. It is the burden of the recipient to decide not to listen; frankly it's inappropriate for government to decide you WON'T listen to it even if you might have wanted to. So this is the best way go, I think.
well except make threats, say 'heil Hitler' (in Germany), yell 'fire' in a theater, lie to a police officer or j
Correct. You are not obligated to do anything in that example.
I didn't say obligated. I asked if I couldn't if I merely wanted to of my own free will.
You have implied permission in that case. The telemarketers have specific denial of permission. There is a big difference there.
I agree -- but I think that telemarketers have implied permission until you specifically deny it.
Your argument is not valid per reductio ad absurdum.
And that was certainly absurd. I think that it's disingenious to say that someone's phone number is the same as their genitals. Why not limit your attempts to disprove it to mediums of communication?
And in this case calling someone is who helpfully put their name and phone number on a list for the specific purpose of not being called by a commercial organization is not 'jostling' it's 'battery'. (You shoulda left that point out, it weakens your argument).
Sure. I'm _not_ against the FTC list really. But I was replying to your post that claimed that people oughtn't be allowed to call people REGARDLESS of whether they're on the list. I don't think that people not on the list, or who have not given other notice that they don't want to be called, have much recourse though.
So it's in line with my argument -- in the earlier post, and in a whole ton of posts on this and related subjects, really.
Some people chose to have the big 'go away to all' sign out front. What's the problem with that?
I think that it's great. I think there might be some good arguments against it, but I'm generally in favor of it. I never said I wasn't.