Is it OK to block political speech?

I've been talking to folks a lot these past couple of days about the potential legalities around blocking unwanted spam from non-profit, political or advocacy senders. From what I understand, this is pretty likely to be legal. The first amendment limits government action as it relates to restricting speech. But the first amendment doesn't apply to private parties; there is no constitutional "right" that private party number one must accept a message from private party number two. That seems cut and dry. CAN-SPAM certainly doesn't touch on it; it doesn't say a spam filterer can't block certain kinds of messages.

But, is it right? What if you run an ISP, or a blacklist, and you choose to list or reject mail from somebody sending mail with a political purpose? Is that ethical? Should it be allowed?

I think that blocking that kind of mail should be allowed. I believe that it is the right thing to do. Why? Here's my take.
  • Spam is spam is spam is spam. The reasoning behind it doesn't matter. The content doesn't matter. The amount of goodness in your heart doesn't matter. It's unwanted bulk garbage, regardless. If the recipients didn't ask for it, and you're adding them to a list and blasting to them, you're spamming, and blocking spam is the right, expected thing to do.
  • Commercial vs non-commercial doesn't matter. If you're advocating your position to me, you're still trying to sell me something - your point of view.
  • Disallowing ISPs to use their best efforts to block this kind of thing is kind of like forcing me to open my front door and allow you to bring your trumpet in and blow it in my face. Or forcing me to turn my TV on and have to keep it on the channel you specify.
  • It's not like driving a sound truck down the public way with the speakers blasting ads for a political candidate. It's like forcing the truck into my private garage. My email inbox, and the ISP server where they reside are not the public way. They're private space, reserved for exclusive use of those who live there.
  • It's not like "equal time for all candidates" in the broadcast media, ala the Fairness Doctrine. ISPs and spam filterers are not government-licensees of a public resources. The mail servers you and I are using at the ISPs you and I are using a wholly connected via private interconnected networks.
  • It's not neighborly to send me garbage I didn't ask for. People have wildly varying political views. Forcing those views into the inboxes of people, many of whom are going to disagree with that opinion, isn't going to make you many friends. I'm already decided on whether or not I am pro-choice or pro-life; do you REALLY think your spam is going to suddenly get me to reconsider?
And whatever you do, don't tell me it's a political conspiracy when somebody starts blocking your political or advocacy mail. Spam filters block spam. The vast majority of spam filters are data driven and have much less to do with the content of what you're sending. Complaints and spamtrap hits driving a blacklisting or blocking issue have nothing to do with your political point of view and everything to do with poor list practices.

MoveOn cried "it's a conspiracy!" back in 2006 when they got blocked by AOL, but their claims and whines were thoroughly and completely rejected by just about the entire world. It was a wasted effort, time they could have better spent on building their list SMARTER instead of just growing it BIGGER without thinking.

7 comments:

  1. MoveOn.org's mailservers were never blocked by AOL. The dearaol.com url was blocked due to excessive spam complaints about mail containing the url sent from other sources, most of which was not normally political in nature.

    In general, legitimate political mail should be handled in a targeted manner just like any other mixed-opinion mail. Some users will want it, some won't. Your system should be smart enough to give each individual user the experience they want.

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  2. At what point can an elected representative or official contact the registered voters in their district/area of purview based on the contact information available to their office? If CAN-SPAM covers commercial spam, is there an implication that government communication to constituents is marketing instead of pertinent information for registered voters? At what point should a 3rd party DNSBL or reputation service be allowed to filter a government communication?

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  3. Well, since you're mentioning CAN-SPAM, let's review what the statute says on that topic. It says, "Nothing in this Act shall be construed to have any effect on the lawfulness or unlawfulness, under any other provision of law, of the adoption, implementation, or enforcement by a provider of Internet access service of a policy of declining to transmit, route, relay, handle, or store certain types of electronic mail messages."

    So, legally, it sounds like it puts no restrictions whatsoever as it pertains to "filter[ing] a government communication."

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  4. > So, legally, it sounds like it puts no restrictions whatsoever as it pertains to "filter[ing] a government communication."

    I mentioned CAN-SPAM for specifically commercial email; government communications has no commercial basis, and by definition my reading of the CAN-SPAM act would lead me to believe that this Act does not address non-commercial UBE.

    Advocacy, political and other sorts of mailing streams I wouldn't attempt to defend from CAN-SPAM since the spirit of marketing/commercial communication is still there, but there are no laws (that I am aware of) governing the use of email by Local, State, or Federal representatives or other elected positions that are NOT marketing messages, but are still sent in bulk (and perhaps even unsolicited, although pursuing that argument will get ugly I am sure). There DOES exist a relationship between a registered voter and their elected officials, albeit an intangible and unrecorded one as it relates to an opt-in path. The question of whether a government agency can interpret the act of registered to vote, or voting in a particular election, as consent to contact via electronic mail seems to require more legislative or judicial insight to determine an answer.

    It is pertinent to mention I act as postmaster for the mailing streams you wrote on. I enjoy dealing with legislative, political, advocacy, and non-profit clients, somewhere in the ballpark of 2B+ messages a year. I believe you can mail responsibly within this niche of mass communication without difficultly so long as you have the proper preparation, opt-in paths, and understanding of current DNSBLs and filtering technologies.

    > there is no constitutional "right" that private party number one must accept a message from private party number two.

    Couldn't agree more; by my view, if an ISP is going to rate-limit my messaging to their system or outright block my IPs/domains/MTAs/etc, that is their right and as a fellow postmaster, who am I to determine their network policies? So long as their users receive the messages they are expecting or requesting, this is private enterprise, even if the message content is a government communication.

    Anyway, $.02.

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  5. If political activists want to use my bedroom wall for their campaign billboards, then I will have to tell them no, and thats *my* first amendment right.

    Same principle holds true for my mailserver's disk.

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  6. The quote that the appliance mover famously bungled on CSPAN was from Justice Burger, writing for the majority in Rowan v. Post Office:

    The Court has traditionally respected the right of a householder to bar, by order or notice, solicitors, hawkers, and peddlers from his property... ...To hold less would tend to license a form of trespass, and would make hardly more sense than to say that a radio or television viewer may not twist the dial to cut off an offensive or boring communication, and thus bar its entering his home.

    Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit... ...The ancient concept that "a man's home is his castle" into which "not even the king may enter" has lost none of its vitality, and none of the recognized exceptions includes any right to communicate offensively with another.

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  7. I'm sorry to be commenting late on this thread, but I just read every word of it. Soo good. I agree that a private corporation should have a right to set its own policies and block or not block what they want. I might be assuming they will work in the best interests and preferences of their customers but who knows? I do wonder if there is some relationship here to the net neutrality issue? Especially when you start looking at specific streams of data like political. I do see a bias towards some data by those in the email community that I don't think reflects that of the average consumer. I also don't have to deliver a billion messages a day- so I get both sides of the issue.

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