Is spamming a constitutional right?

* Virginia Supreme Court decision imposes on others the obligation to listen

In 2004, Jeremy Jaynes was sentenced to nine years in prison for violating Virginia's fairly restrictive antispam law. Earlier this year, he appealed to Virginia's Supreme Court and his conviction was upheld. He appealed again and week before last his conviction was overturned. The Court ruled that the Virginia law was too broad because it did not provide an exemption for religious and political spam messages. The Court, in rendering its decision, agreed that spammers have the right to express their political or religious beliefs even if they forge their identity.

I believe that this ruling will have relatively little impact on spamming in the short term, since few spammers adhere to antispam (Compare antispam products) laws anyway and most of the antispam laws on the books have, at best, been fairly ineffective. However, I believe that the Virginia ruling will have significant long-term impacts on users of messaging and unified communications.

The U.S. Constitution guarantees the right of free speech. What it does not guarantee, however, is the right of speakers to be heard, nor does it impose on others the obligation to listen. However, what the Virginia Supreme Court did, in essence, is to bind the right of free speech with the obligation to listen to or otherwise actively deal with that speech. The Court, by ruling that a spammer has a right to send non-commercial e-mails to anyone, has also ruled implicitly that receivers of those communications have an obligation to receive them or otherwise deal with them actively by deleting the messages, spend money on spam filters and the like.

The purpose of the Constitutional guarantee to the right of free speech was to obligate government to protect that right, not to obligate all of us to listen to it.

I’d like to get your take on this issue – please let me know your thoughts.

Copyright © 2008 IDG Communications, Inc.

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