Does America's First Amendment Forbid Spam Filtering? by John Levine
Posted in: Spam at 13/07/2010 16:31
A friend of mine wrote to ask: The Supreme Court overturned the Jaynes conviction on First Amendment grounds, yes? I'm wondering what that could mean from the spam filtering perspective.
Spam filters, and in particular DNS blacklists are intended to prevent e-mail from being delivered. Doesn't the First Amendment make it illegal to block speech? The short answer is no, but of course it's slightly more complicated than that in practice.
If I may put on my constitutional lawyer hat for a moment (it doesn't fit very well since I'm not any kind of lawyer, but nothing I'm about to say is particularly new or controversial,) let's review what the speech part of the First Amendment does. Like the rest of the Bill of Rights, the First Amendment limits the actions of the US government. Originally it just affected the Federal government, but the 14th amendment was eventually interpreted to apply it to the states as well. The key Supreme Court case was Gitlow vs. New York in 1925, an interesting case about an anarchist in New York who had been convicted of advocating overthrowing the government, and the court held in 1925 that the First Amendment precluded state laws against speech, even speech advocating overthrow of the government, short of a clear short-term threat to public safety.