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The First Amendment

. . . Congress Shall Make No Law . . .

 

Spammers' first line of defense is to quote (usually incorrectly) the First Amendment to the Constitution of the United States of America. Spammers would have you believe that if they are not permitted to send their junk E-Mail, their “rights to free speech” (often mis-spelled “frea speach”) are being violated. This argument is bogus in the extreme.

Yes, in the United States, neither the federal government nor state governments can pass laws limiting freedom of speech. But the Spammers' invocation of the First Amendment simply proves Spammer Rule 2 (Spammers Are Stupid). So stupid they can not understand their own nation's constitution, always assuming, that is, that they have even read their own nation's constitution.

So with the above in mind, kiddies, let us review The First Amendment to your wonderful Constitution of your wonderful United States of America. Here is The First Amendment in full.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech; or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Got that? If a Brit can read and understand your constitution, you should be able to as well. Unfortunately, if you are a Spammer, Rule 2 applies.

The First Amendment is America-Centric

The primary problem with the “free speech” argument is that it is United States of America-centric. The great majority of jurisdictions in the world don't recognise the “freedoms” granted by the United States Constitution. In many jurisdictions of the world, speaking your mind—“speaking freely”—will land you in jail, or worse.

The First Amendment Does Not Provide A Right To Encroach

The second problem with the “freedom of speech” argument is that—even in the United States—the argument is irrelevant. True, you are indeed “free” to speak all you like and to write all you like. But that “freedom” stops there—you emphatically do not have the “right” or the “freedom” to encroach upon another person or upon that other person's property. Notice that one of the freedoms is that of the press. You are, for instance, quite free to write your own manifesto with the kookiest notions in the world. You are free to spend your own time and money to print a million copies of your kook manifesto. But you are not free to dump copies of your kook manifesto on another person's property. End of Story. Notice that one of the freedoms is “peaceably to assemble”, but not to riot. And so on. You are free to speak all you like and write all you like. You are not free to push your junk on somebody else who has not asked for it and doesn't want it.

Encroachment Is Actionable Under Tort Laws

This basic “Do Not Encroach” is a basic pillar of the old English Common Law, upon which much of the Constitution is built. Do Not Encroach is a part of Judaic law, and of Islamic law. Do Not Encroach as a law was round long before America was discovered. Do Not Encroach was around long before there was a United States of America. Do Not Encroach was around long before there was even a United States Constitution to which a First Amendnment could be applied. When you broadcast your junk to another person's E-Mail box, you are encroaching, and liable under the law of tort. Courts in the United States have labelled this form of encroaching “Trespass to Chattel”.

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Page Updated 2011 December 10