PeterDavid.net

Indeed; but the law as it stands could tecnically see your local politician going to jail for nine months.

Well, if the local politician was trying to defraud people and choke out their e-mail boxes, then I have no problem with that. But if he was delivering messages of political content and was being prosecuted, then that is a case that merits the law being overturned.

PAD

I agree with the legal theory that places telemarketing, spam (screw the Vikings, I don't like spam!!!), and the like differently than other forms of speech. But I don't think the analogy of a blaring car stereo goes far enough. I believe a better analogy would be a door-to-door salesman who literally shoves his way through your front door. Your phone and your PC are your property, after all.

I believe the best legal basis for combating spam is not its content (although I'm not a fan of that content) but the costs to consumers in terms of slower Internet speeds and higher bandwidth costs. The First Amendment guarantees me the right to free speech, but it doesn't obligate someone else to give me a platform on their dime.

I see your points and definitely anytime we're dealing with First Amendment issues/laws, we must always review these situations carefully because we don't want to set the wrong precedent, such as prosecuting someone for legitimately expressing political or religious beliefs via the internet.

That being said, even with the First Amendment, there are still reasonable limitations. As you mentioned, slander, false advertising or screaming fire in a crowded place where there isn't a fire. I think this case falls in line with those cases simply because this guy's actions were deceitful and harmful (though not physically). He sold a bogus product and the malicious (based on my understanding of this post) attempt was to bombard people's email boxes.

Granted that it probably wouldn't hurt if the laws were better clarified for future cases but as it stands now, I think the courts are well within their rights to prosecute Jayne.

Oh and look, my spam box is full....again..

The problem is that current jurisprudence has interpreted the laws to afford greater protection for corporations, and less protection for individuals. This is why you see Exxon getting out of having to pay anything for the Valdez spill, but single mothers and college students are getting whacked by the RIAA. (Which, incidentally, has shockingly been found to have turned the grand sum of zero over to musicians whose music it's sued to protect.)

Not that this spammer was unjustly punished. He deserved what he got.

Just wanted to make that clear.

"But I don't think the analogy of a blaring car stereo goes far enough. I believe a better analogy would be a door-to-door salesman who literally shoves his way through your front door"

I'm not sure that is a good analogy, though. The salesman you mentioned is committing clear crimes, but those crimes have nothing to do with the fact that he is selling something. A crazy person who shoves his way into your house without saying a word would be arrested on the exact same charges as the salesman. Both the crazy person and the salesman are doing something that is physically threatening. That doesn't really apply to spamming at all. Spamming is just an annoyance, the same as loud music blasting next door.

I think PAD is right, the law is screwy, but this ruling doesn't really deal with the screwy-ness. If someone actually had a real product and sold it through mass e-mails at a reasonable price, the annoyance would be the same but the speech wouldn't be misleading. Spam laws really need to be written along the lines of nuisance laws, not on general principles of not being allowed to speak.

Today, screaming fire in a crowded theater probably wouldn't cause a stampede like it used to in the past, for 2 reasons. There have been so many fire escape training sessions for people for so many years that many people would no automatically start running in panic as they might have 20 or 30 or 40 years ago. The theaters are also nowhere as near as dangerous as they were 50 to 100 years ago. They were often built of wood, decorated with curtains, and lighted with kerosene torches. When there was a fire, it spread quickly, and if you didn't get out in a minute or two, you might not get out.

Maybe shouting fire in a crowded place is not the same offense as it used to be.

First, the key issue with spamming, as Peter said, is the fraud. Spam is sent via false e-mail addresses, to avoid filters, therefore is fraudulent. Send the bastard to jail.

And to the previous poster, who touts improvements in the non-flammability of movie theaters, remember, it is OK to yell "fire" in a crowded movie house if there is actually a fire, because, yes, people need to get out.

"Spamming is just an annoyance, the same as loud music blasting next door."

The loud music next door is coming from someone else's property. Spam takes up space on your hard drive -- which is your property. That's where I see the similarity. But I'd be the first to admit I'm neither a lawyer nor a legal scholar.

Re: Exxon

The Exxon Valdez case is currently before the Supreme Court. A ruling is expected Monday. It has been 19 years since the major oil spill in Alaska. The fishing industry in that area was all but destroyed by that spill. Th punitive damages that were assessed are what is at argument before the Supreme Court. Exxon obviously doesn't want to pay the punitive damages. The damages are supposed to go to the people whose livelihoods were destroyed
by the spill.

According to the numbers I heard, the amount assessed would be equal to $75,000 for every person affected by the spill. Exxon wants it reduced to $30,000 per person. If the fishing industry had only been affected for one year, an argument could be made that $30,000 would be sufficient. But the industry was affected for quite a long time, and some argue that it is still not back to where it was. $75,000 divided by 19 years is less than $4000 a year.

Clinky said:

"Send the bastard to jail."

---

That's not right.

You don't know if his parents were married when he was born. ;-)

About a month ago, I get a text message on my cel, informing the sender had gotten my number from a mutual friend. "Go to (website), look for me under (name)." Afetr logging in, being forced to open an account see who the person was, I find myself at a singles/friends/intimacy site. I can't find a way to unsubscribe, so now I'm getting nailed with offers to meet hot singles.

I put a very terse message on my profile telling people not to bother. I still get hit with messages, much to my wifes annoyance/amusement. (depends on how the baby is behaving today).

Finally, today, I find a way to get to their customer support, and send of an e-mail telling them to cancel my account. Ten minutes later, guess what? More messages.

This guy got what he deserved, and he deserved it the minute he used false ID's to send out his junk. Be honest about who you are and what you're selling, don't attach any viruses, and we're good. Otherwise, let the hammer fall.

Manny, don't bother contacting the text-spammers. They don't give a shit. Contact your cell phone provider to see if these people can be blocked. If not, contact the government agency that regulates telephony in your state (in New York it's the Public Service Commission, but I don't know whether it's the same in all states).

As an aside, several years ago I was calling into small- to mid-size accounts trying to get appointments for a major manufacturer of photocopiers. When asked whether they were making a sales call, some of my less scrupulous colleagues would say "no." I on the other hand would say, "yes."

I would then politely explain the value of upgrading to the latest digital copiers, very quickly mention an upgrade program designed to make it affordable, and ask if the prospect had a few moments to discuss. I got fewer leads, but a much higher percentage of mine panned out. Go figure.

How about a neighbor blaring protest songs with political messages at maximum high volume at 2AM? Should that be protected under the first amendment?

"The loud music next door is coming from someone else's property. Spam takes up space on your hard drive -- which is your property. That's where I see the similarity."

That's a point of extreme semantics. I could easily follow up by saying the the *sound* is in your house, the same as the spam is in your hard drive.

But the main point I was trying to make is that someone forcing himself into your house is a physically threatening act in a way that spam is not. I'm okay with saying that spam is bad and should be illegal to some degree, but I'm a little leery of exaggerating the damage by comparing it to more severe crimes.

"How about a neighbor blaring protest songs with political messages at maximum high volume at 2AM? Should that be protected under the first amendment?"

Not according to the SCOTUS. While I would be hard-pressed to cite the exact ruling wherein the precedent was established, the courts allow "time, place, and manner restrictions" on speech. Simply put, the government may regulate when, were, and how you speak, as long as those regulations are narrowly defined enough so as not to completely suppress or place an undue burden on speech.

To use a hypothetical example, the government may not forbid you to march down a public sidewalk in the middle of downtown while peacefully handing out leaflets advocating that we "nuke the whales." The government can, however, tell you that you may not walk down a residential neighborhood at 2 am screaming that message at the top of your lungs.

"How about a neighbor blaring protest songs with political messages at maximum high volume at 2AM? Should that be protected under the first amendment?"

No. The constitution protects your right to express your opinions, not the way in which you express them.

Telling a friend that you dislike the President's policies? Protected speech.

Carving your disapproval of the President's policies into someone's forehead with a knife? The speech is still protected, but you will go to jail for the head carving.

The neighbor in your example would run into trouble with the law for the volume of his music, not the content of it.

"No. The constitution protects your right to express your opinions, not the way in which you express them."

Actually, that's incorrect. The First Amendment explicitly states that "Congress shall make no law... abridging the freedom of speech, or of the press..." If you interpret the wording literally, the Congress has no authority to regulate speech in any way. That's why First Amendment absolutists, like the late SCOTUS justice Hugo L. Black, maintain that libel laws are unconstitutional. On the flip side, Black maintained that the First Amendment protected exactly what it said it protected: "speech," and "the press." Flag-burning, in his view, falls outside of its protections because it is an act and not "speech."

"The neighbor in your example would run into trouble with the law for the volume of his music, not the content of it."

Yes, but if your neighbor were spreading lies about you at a reasonable hour and at a resonable volume, he or she could still get in trouble for the content of that speech. Most First Amendment advocates, myself included, recognize that no right can be absolute. But restrictions on free speech must be narrowly and precisely defined so as to avoid even the slightest risk of suppressing ideas.

Talk about "spam in a can" :)

"That's a point of extreme semantics. I could easily follow up by saying the the *sound* is in your house, the same as the spam is in your hard drive."

Your interest in arguing the point appears to have exceeded mine. It was merely a thought, and one I've already acknowledged was based on a too-scant understanding of relevant legislation and court precedents.

Oh, in case my earlier point was unclear: the First Amendment, when interpreted literally, allows for no exceptions. Those exceptions come not from the Constitution but from legislation and case law that recognize certain exceptions as being necessary. I believe it was Albert Camus who observed that, "There is no freedom without justice and no justice without freedom."

Considering the advances in thought and technology over the past 200+ years, does anyone else here think perhaps it's time for the First Amendment to itself be amended? Or at least made a bit more specific?

If so, what do you think it ought to encompass?

I get lots of fraudulent emails along the lines of "your account is in danger, please use the attached link to re-enter your information." (These often appear to come from eBay and Citibank.) I don't know if this would be considered spam (since it's certainly unsolicited by me) or fraud (since it's sent by people who aren't with those companies and are after personal information), but I'd be thrilled to see them prosecuted -- and hate to see them try and hide behind the first Amendment.

"I don't know if this would be considered spam..."

It's generally called phishing," and most definitely falls under the category of fraud. I'm not a First Amendment scholar, but from what I do know I am confident that phishing enjoys *no* First Amendment protections.

Queen Anthai: "Considering the advances in thought and technology over the past 200+ years, does anyone else here think perhaps it's time for the First Amendment to itself be amended? Or at least made a bit more specific?"

I don't see how new technology would necessitate altering the First Amendment. Speech is speech, whether it is conveyed by someone standing at a podium, printing a newspaper, or sending e-mails.

Besides, amending the U.S. Constitution requires ratification by legislatures of three-fourths of the states. And just because an amendment is proposed doesn't obligate state legislatures to actually vote on it. That's a lot slower than the rate of technological change.

I believe tinkering with the First Amendment is dangerous, because of the temptation to slip in exceptions. I think it works just as well today as it did when it was first written, as long as it is interpreted properly.

> Spamming is just an annoyance, the same as loud music blasting next door.

Hardly. I go on trips overseas which easily last up to a month. I have better things to do with my time than to get on the Internet to check mail. I usually travel to 'get away from it all', after all. So, what happens when I get back home and learn that I've had important messages get turned away because my electronic mailbox is full thanks to spam? More than a mere 'annoyance'.

>How about a neighbor blaring protest songs with political messages at maximum high volume at 2AM? Should that be protected under the first amendment?

It falls under a city's anti-noise ordinance. Nothing to do with freedom of speech.

Bill, speech IS speech. On the other hand, to reach a vast number of people when the First Ammendment was written involved a heck of a lot more effort than it did, say, thirty years ago. Get someone then with too much time on their hands and a phone, life can be made pretty miserable. Now, look at the advances that have been made in the last 15 years. My ex-girlfriend had a cell phone. She had to use two hands to use it, and all I wanted was my own phone line in my room. Now, my wife and I each have our own cell phone numbers, I can send her text messages while either typing or driving(not that I ever do that) and I can also go bowling on my phone. Unfortunately, legislating often doesn't stay up to date with technology.

That being the case, the law is out of line and should be overturned. Unfortunately, this case wasn't the one to overturn it.

So people should be held to illegal laws if they're guilty of something else? Brrr.

Sean: "Unfortunately, legislating often doesn't stay up to date with technology."

Yeah, but we're not talking about altering just any legislation. Queen Anthai asked whether the First Amendment itself needed to be updated. I don't believe it does. It remained relevant in its original form through the birth of radio, movies, T.V. vinyl records, CDs, and the Internet. I believe it is worded correctly to remain relevant for the foreseeable future.

I guess I'm not seeing how or why we should amend the First Amendment to regulate Internet speech, cell phone calls, or whatever.

"So, what happens when I get back home and learn that I've had important messages get turned away because my electronic mailbox is full thanks to spam?"

Easy! You switch to gmail. The spam filter is excellent, and six gigs should be enough space to hold anything that sneaks through. ;)

Justice Elizabeth Lacy: "[the law is] unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mail including those containing political, religious or other speech protected by the First Amendment to the United States Constitution."

Peter David: Since I haven't read the law, I will simply take her word for it. That being the case, the law is out of line and should be overturned. Unfortunately, this case wasn't the one to overturn it.
Luigi Novi: Could it be amended to be more narrow? Is there a way to keep the law so that it applies solely to things pertaining to Nigerian bank scams, unsolicited porn links, and offers to lengthen certain portions of my anatomy that I'm quite okay with?

For those of you want to read the entire story from the equine piehole: http://www.physorg.com/news123516004.html

Alan Coil: Maybe shouting fire in a crowded place is not the same offense as it used to be.
Luigi Novi: Well it's not an offense at all if there really is a fire. :-)

Could it be amended to be more narrow? Is there a way to keep the law so that it applies solely to things pertaining to Nigerian bank scams, unsolicited porn links, and offers to lengthen certain portions of my anatomy that I'm quite okay with?

I'm not lawyer, but I don't think it can be amended. I think it would have to be thrown out and then rewritten.

PAD

So people should be held to illegal laws if they're guilty of something else? Brrr.

What's sad is that I read the posting before I read who wrote it and thought, "What a dick," and then read the name attached and thought, "Oh, well, okay...figures."

I didn't create the way challenges to laws work. This law was written specifically to nail the types of abusers that this guy is and represents. So he's the wrong person, and this is the wrong case, with which to challenge it. The way you challenge and get rid of such a law is with a case that demonstrates the law is so overbroad that it is catching up the type of speech and type of situation it obviously was NOT intended to include.

Which I suspect you may even know, but your mentality is such that you just have to come up with new things to say to attack me, no matter how stupid they may be.

PAD

My take on the comment "the law is "unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mail including those containing political, religious or other speech" is based primarily on the term "anonymous". If I receive 10,000, 100, or even 1 spam e-mail from an anonymous sender -- if the burden of getting myself removed from their e-mail list falls on *my* shoulders, how am I supposed to go about doing that if I don't know who to contact?

This question is based upon the faulty premise that the burden of removing myself (or "opting-out") from such a list should be my responsibility in the first place. "Legitimate" mail-senders can ignore such requests with impunity, while the far-less-scrupulous types will merely view such attempts as confirmation that the address is "live" and simply package it with other similar addresses and sell it to their buddies.

The *entirety* of the burden of list-management should fall on the sender of those e-mails, using a method of verification called "double opt-in", in which the sender sends an initial e-mail to a list of addresses not yet in their subscriber database, asking them to confirm their interest. The only addresses that should then be added to their "permanent" list are those from which the recipients replied confirming their interest in receving such e-mail. In other words, if you don't want on the list, just ignore the introductory mail, and the rest will never follow.

As for the Constitutinality of such e-mail, even from "legit" senders -- I see little difference between unsolicited spam and a person walking up to my house and shouting a message into a window two or three random times a day, for days on end, or hanging advertisements or literature on my front door. At least I can put a sign on my door asking people not to do these things (which *is* effective, for the most part) -- this is something I cannot do with my e-mail address.

Can you tell that I feel strongly about this issue? :)

Wildcat

>if the burden of getting myself removed from their e-mail list falls on *my* shoulders, how am I supposed to go about doing that if I don't know who to contact?

It gets worse. Much (most?) of the time, the links or addresses you're told to use to get you removed from that mailing list merely serves to confirn yours is a valid address and then the spam artists know to really deluge you with their crap.

I suppose one could always do the electronic equivalent of what one guy did in Canada. Fed up with all the junk mail he was getting in his real mailbox, he took to collecting it all and, every couple of weeks, putting it in a plain brown envelope and mailing it [free of charge fortunately] to his Member of Parliament (equivalent to your Congresscritters). He then got his friends to do the same thing. After a while the elected bozo got the point. Maybe forwarding all suspected spam to their electronic mail addresses would help accomplish the same thing?

PAD is right to be wary of anything Mike writes, but it would be better if his response to "So people should be held to illegal laws if they're guilty of something else? Brrr" addressed the statement, rather than the fact it is by Mike. In this case, Mike raises an important issue (whatever his intent in raising it). It is as wrong to punish the guilty as the innocent for violating an unconstitutional law. An unconstitutional law has no business being on the books just because the "right" people are penalized. That's the point.

What's sad is that I read the posting before I read who wrote it and thought, "What a dick," and then read the name attached and thought, "Oh, well, okay...figures."

"That being the case, the law is out of line and should be overturned. Unfortunately, this case wasn't the one to overturn it..." seems to leave nothing to interpretate other than "So people should be held to illegal laws if they're guilty of something else?" If you're going to blame me for your failings, I have no reservation against calling you on what is plainly observable in this thread.

You should start considering that you simply have a blind spot I have no problem observing, and that that doesn't make me damaged goods, as you insist on portraying me. If we waited until we saw 360° no one would ever drive a car.

A pretense of invulnerability is not only wrong, it doesn't seem to carry you in particular. For you, maintaining one seems to be a lose/no-win situation. What have you got to lose from dropping it?

...the law is "unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mail including those containing political, religious or other speech protected by the First Amendment to the United States Constitution."

That being the case, the law is out of line and should be overturned....

I didn't create the way challenges to laws work. This law was written specifically to nail the types of abusers that this guy is and represents. So he's the wrong person, and this is the wrong case, with which to challenge it. The way you challenge and get rid of such a law is with a case that demonstrates the law is so overbroad that it is catching up the type of speech and type of situation it obviously was NOT intended to include.

Which I suspect you may even know, but your mentality is such that you just have to come up with new things to say to attack me, no matter how stupid they may be.

You are contradicting yourself. You can't validate and invalidate the minority dissent selectively as it serves your self-interest. You can have one or the other -- not both.

In other words, you've reiterated your point without demonstrating how it's incompatible with -- nor providing an alternative to -- what I've said.

I guess I'm not seeing how or why we should amend the First Amendment to regulate Internet speech, cell phone calls, or whatever.

Yeah, whatever the problems we have from near unfettered free speech they pale in significance to the potential disaster that tinkering with the first amendment could bring. Analogies to babies and bathwater, destroying villages in order to save them, and applying knives to ones own nose seem apropos.

I always thouht a way to end spam is to charge for email after a point.
Users would get a certain number of free emails per month (1000? 2000?) that would ensure basic free email for the majority. Over that, there could be a small charge of say .1 cents per. Large bussiness could easily absorb this cost, or even buy bulk email at a cheaper rate, as long as the source is known. Legitimate companies shouldn't have a problem.
But spammers would then face costs that would make their mailings unprofitable.
Sending out a million free emails with the hope of a few responses might work. If it now cost you a few grand, the business model falls apart.

Gee, Jeff Frawley, who regularly finds fault with what I say, backs up Mike, who regularly finds fault with what I say. What were the odds?

Back to ignoring both now.

PAD

...as opposed to Peter David, who characterizes maybe 4 disagreements I've had with him over 24 months as "regularly finds fault with what I say." Why, it's practically an opera.

"It is as wrong to punish the guilty as the innocent for violating an unconstitutional law. An unconstitutional law has no business being on the books just because the "right" people are penalized. That's the point."

This is an oversimplification, and I think Mike at least knows the difference. It's not a simple thing to declare a law unconstitutional. Observers can review the draft of a law and make the statement "the law is unconstitutional on it's face," but the executive is still the branch that enforces the law, and if the executive office only seeks to enforce the law selectively in cases that do not breach the Constitution, then the SCOTUS will never have the chance to strike down the law, because AS APPLIED, it's not a breach of Constitutional limits.

So, in this case, the law on it's face appears that it could be applied to restrict protected speech, but in this particular application, does not because the actions addressed in this case are not in fact protected.

As for re-writing the law, I don't know of anything that would prevent the legislature from doing so, but they'd probably screw things up more than if they just tried to write a new bill.

I always thouht a way to end spam is to charge for email after a point.

The system fails because most spam is sent out under fake addresses.

And, would you really want to keep your credit card on file for a Hotmail account? Because, that would be the end result: that *anybody* sending out an email would have to have it on file *just in case* you hit the limit where they have to start charging you.

> Users would get a certain number of free emails per month (1000? 2000?) ... Over that, there could be a small charge of say .1 cents per.

Craig points out a valid problem with it but there's another. Once one opens these sorts of doors, the industry is quick to start taking advantage. Want to bet that, at some point, someone won't come up with an excuse to charge for ALL electronic mail? I look at the way user fees are piling up in banks and elsewhere and wouldn't at all be surprised.

PAD, wouldn't it be great if you could actually address people's arguments, rather than counting on unthinking agreement? I would have thought you had enough self-confidence to respond something like this: "No, (insert name here), that's where you're wrong. This is the way it is, and here's why." I don't like Mike, and if I met him I would probably dislike him even more - but he raised an issue that is important. Let me suggest another "bad law" which might make you think differently:

A. City A (call it "New York") passes a law that "Jews are to be imprisoned on sight and sentencing guidelines are to be consistent with racketeering convictions."

B. PAD is not, at this time, arrested or imprisoned - I am not certain of the reason.

C. Arthur Flegenheimer, who operates under the name "Dutch Schultz," is subsequently arrested and thrown in prison, being in arrant violation of the anti-Hebrew statute.

D. Upon further investigation, PAD determines that Dutch Schultz is a really bad fellow - all that killing, and pimping, and gambling, you know. A long prison term seems quite a good idea - not disproportionate, or anything.

E. How should PAD feel about the anti-Hebrew statute? Does it seem like a good idea that Mr. Schultz is imprisoned for its violation, or would it be wise to challenge the law on its own demerits? (I'm leaning toward punishing people only for violations of legitimate statutes, rather than bad ones that happen to snare unsavory ones.)

I should be ignoring this, I should be ignoring this, I should be ignoring this...

Jeff...that's idiotic. I mean, it's monumentally idiotic.

The law that you posited isn't overbroad. It's very specific and unconstitutional right off the bat. It criminalizes being a Jew. It's not remotely comparable to what I was discussing. Nor did I ever discuss whether someone is "a really bad fellow." I said his ACTIONS are SPECIFICALLY what the law in question was designed to PREVENT, and it is a prevention that I have zero problem with because I don't believe that fraudulent spam deserves First Amendment protection any more than any other criminal speech that is not protected.

And I don't know why the hell I'm even bothering to point this out to you, because I just expect it to bounce off the impenetrable wall of illogic that you customarily build when I or anyone makes the blunder of engaging you in a discussion.

This is just another case of you being willing to say anything in order to find some means of disagreeing with me. You're just embarrassing yourself.

PAD

This law is like one of those laws that the CBLDF opposes, but instead of an honorable retailer being caught in the crosshairs, a pedophile has been snagged. Yes, the law worked, but its net is too broad... someone else needs to break the law just so that we can prove it, though.

Jeffrey, your example is just plain bad. Your law has no valid basis...it's not just unconstitutional on it's base, it's just plain invalid. There's no credible basis for which that law could pass muster. And if by some bizzare legislative act, it were written, passed, and became law, your scenario would still not come to pass, because the law is patently in violation of the Constitution.

Here's the key difference...the anti-spam law has a valid application, in that spam distributed by duplicitous or fraudulent means is not protected speech. Insofar as the law is applied to those specific offenders, it's within the bounds of the Constitution. Your example tries to make criminal something that the Constitution patently protects...there's no wiggle room that would ever allow the government to criminalize a culture/nationality. Even if those individuals were guilty of other illegal acts, they still could not be charged with violating this law, becase the entire law itself is in violation of the Constitution.

As a tangental aside, there's a way to avoid spam while the current laws are in effect. If you know your email provider's main page, you can often go there to access your email account directly and delete anything you don't want -- then use Outlook Express, and you'll only download what you left. This isn't a perfect solution, but it can be a good way to get rid of annoying spam while bypassing the danger of a spam filter removing actually useful email. (A friend on mine didn't get a school-related email from a friend because he appreviated the word "analysis" to "anal." and her spam filter wouldn't anything in with "anal" in the subject.)

Most laws are made to make it possible for companies to do business. That is the biggest reason for anti-spam laws. Businesses were spending big money just to get their needed business emails.

Laws are written by imperfect people, and, as the last 7 years have shown us, Republicans are more likely to be imperfect than most normal people, so any law that is created to protect businesses is more likely to be flawed.

My anti-spam method is to use a fake e-mail account. Anything that wants an e-mail address to sign up that I don't completely trust (like monopoly.com) I use the fake address. Because of this my fake e-mail address gets metric tons of spam that I don't even have to sort through while my real account sometimes goes months without getting any.

"Yeah, but we're not talking about altering just any legislation."
Okay, point taken. Maybe a smarter way to put it would have been to say write new legislation to deal with this kind of thing.

There are several legal things at play here.

1. When a law is analyzed for being overbroad, the specific acts of the defendant are not in play. Challenges for overbroadness are designed to weed out those laws that reach constitutionally protected speech in cases where the defendant is acting in a manner that is NOT protected. Thus, to say that "this is the wrong case" to challenge the law for overbroadness is incorrect (legally speaking) because the doctrine is designed precisely for those questions.

2. Challenges for overbroadness are disfavored. In fact, in order for a law to be deemed overborad it has to substantially so. For very good reason, courts don't like to throw out laws if they can reasonably interpret them in a way that does not offend constitutional rights.

2. Rather, what PAD and others are arguing -- I think -- is that this guy was clearly doing what the legislature intended to punish. As has been pointed out, it is ok to make laws that punish speech when it is commercial and false. In fact, at one time commercial speech was not constitutionally protected, at all. SCOTUS changed its position on that, however, and such speech now gets 1st Amendment protection, but it gets less protection than most categories of speech because there is a greater gov't interest in seeing that commercial speech is truthful.

4. Short of reversing itself, this court wouldn't reconsider the question of whether the statute is overbroad or ever need to "overturn" the law. If the "right" case presented itself, such as where the state convicts someone under this law for espousing *protected* speech, the court could rule such a conviction unconstituional. This is called an "as applied" challenege to the law. In other words, although the statute is not overbroad, the state has applied it in a way that is unconstitutional. While the court doesn't have the power to "amend" the law, it can say a statute is being applied in a way that offends the constitution. In such a case, the court doesn't overturn the law, but basically says "don't use it this way again becuase it violates a person's rights."

5. As someone pointed out, the car stereo analogy is what is called a "time, place, and manner" restriction on speech. The analysis would not change if, as someone pointed out, instead of blarring music, the stereo blarred a political message. Time, place and manner restrictions are ok as long as they are content neutral. In other words, banning all loud speech at 2AM is ok, even if political speech is supressed as a result. However, banning ONLY political speech at 2AM would violate the 1st Amendment because government cannot target a specific category of protected speech.

Hope this nerdy legal analysis helps. If you are really interest in first amendment law, you should look up the cases filed by Fred Phelps's "church" where he takes issue with recent laws enacted to prevent him and others from protesting the funerals of fallen soldiers. There is one in Missouri that is winding its way through the legal process now. The facts in those cases really make it difficult for those who believe for believers of the first amendment and people who find Phelps's conduct reprehensible (which I hope is everyone).

"Republicans are more likely to be imperfect than most normal people..."

I am a lifelong Democrat, as are my parents, as were their parents. And I can tell you from personal experience that your belief in the superiority of non-Republicans is about as inaccurate as can be. It is unfortunate that you feel the need to impute poor character to Republicans simply because you disagree with them.

Bill, I think you missed the true targets of Alan's jibe. Humans are, by nature, imperfect. Only lunatics, aliens and cyborgs would be otherwise. When Alan says that "Republicans are more likely to be imperfect" he is, in effect, claiming that Republicans are more likely to be human than Democrats, who, presumably, are therefore more likely to be the spawn of some Lovecraftian elder Gods.

Well, you can say what you like about our frat house but I'm not gonna sit here and listen to you badmouth my Democratic friends! Bill Myers--to use just one example--is so damn imperfect it's almost scary!

Let's remember that we're all in this handbasket together and keep our eyes on the true enemies of mankind. Quakers. No, wait. Zombies. Sorry.

"Bill, I think you missed the true targets of Alan's jibe."

Bill, I think you are missing Bill's point about the imperfection of non-Republicans. He's actually making about about the vastness of the imperfection of Democrats. He's trying to explain to you that Democrats are imperfect in their very souls; that they roam the streets at night, hungering for the first born young of hamsters.

Only a republican has the decency to sustain the Obama-middle-name-scare by apologizing in a press conference for the republicans who otherwise utter it among themselves. As the republican indifference to the public references to Hillary Clinton as a bitch demonstrate, not everyone is lucky enough to have a taboo established from one's exclusion from the white patriarchy.

Jeff, I’m going to try this just the one time. Try and follow me here.

Your example is just nuts. It doesn’t work because of the several reasons others have outlined.

With the case that PAD brought up, you have a law that may be to broadly written and may be unconstitutional because of that. There are a number of people, including very good legal scholars, who have argued that. If/when it tags someone by overreaching, that’s when it will be challenged and should be struck down in its present form.

This case doesn’t meet those standards. This case is nailing someone for acts that were made illegal by this law that have lost challenges before. This aspect of this law falls under the umbrella of constitutionality. There’s nothing here to legitimately challenge. Hence the original statement from PAD about…

“That being the case, the law is out of line and should be overturned. Unfortunately, this case wasn't the one to overturn it.”

Let me try and pull your really bad example into a different example. Let’s say that some idiot in the Halls of Power decides to pass a law that adds extra penalties into certain fines, like speeding as an example, based on the individual’s religious beliefs. If you’re Jewish, they tack an extra $25 on the fine. If you’re Muslim, they stick you with an extra $50. If you’re a Scientologist, they tack an extra 7000 Zontarion Pacaboos onto the fine.

The law is, on the face of it, unconstitutional. You’re punishing someone for a constitutionally protected right, freedom of religion, and for something that has nothing to do with the original crime of speeding. It should be challenged and struck down.

You get pulled over and written for speeding. You’re none of the above faiths and you don’t get the extra fines. Because of that, there’s nothing for you to challenge. You can’t go before the judge and tell him that he needs to throw out your fine because you were just charged for the crime of speeding, but you could have been charged more if you were one of the above mentioned religions. Well, you could, but you’d be laughed at by the judge.

You are not the man to challenge it. Now, a Jew, a Muslim or a Scientologist getting jammed up by this law can challenge it in a heartbeat. This hypothetical law should be struck down, but yours is not the hypothetical case to do it.

That’s a bit legally oversimplified, but pretty close to the only explanation you’ll get that doesn’t start getting into tons of mind numbing and overly complicated legalese.

Hmmm… Mike’s still off his meds and Jeff wants to pick fights by coming up with really Loony Tunes examples. It’s nice to see that some things in life are dependable and constant.

I don't have to check my watch to know it's time for Jerry to insist I owe it to him to take drugs for no given reason. You'd almost think I'd, like, asked anyone to take my word for something.

After having read Bill Mulligan's and Jason M. Bryant's most recent posts, I'm not sure what I meant anymore. I'm not even sure what I actually wrote.

Many democrats have no sense of humor any more.
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I once almost got hit by a man while my father was standing right there. My father later explained to me that it is dangerous to hit a man while he was down. I hadn't actually hit him. What I had done was make a smart@$$ed comment while the guy was still in pain after hurting himself after doing something stupid. If my father hadn't been there, he would have hit me for sure.

I was picking on Republicans because they are down and they are not able to hit me, as they are not in my abode.

I don't honestly think most Republicans are lesser human beings, but there does seem to be enough of them that are that I wanted to make sure to perpetuate a stereotype, because, ya know, that is what they have been doing to the Democrats for the last 15 years or so. Turn-about is fair play, don't ya think?

Let’s say that some idiot in the Halls of Power decides to pass a law that adds extra penalties into certain fines, like speeding as an example, based on the individual’s religious beliefs. If you’re Jewish, they tack an extra $25 on the fine. If you’re Muslim, they stick you with an extra $50. If you’re a Scientologist, they tack an extra 7000 Zontarion Pacaboos onto the fine.

The law is, on the face of it, unconstitutional. You’re punishing someone for a constitutionally protected right, freedom of religion, and for something that has nothing to do with the original crime of speeding. It should be challenged and struck down.

You’re none of the above faiths and you don’t get the extra fines. Because of that, there’s nothing for you to challenge. You can’t go before the judge and tell him that he needs to throw out your fine because you were just charged for the crime of speeding, but you could have been charged more if you were one of the above mentioned religions.

Your example is of an illegal law no one was held to, he-who-accepts-a-salary-for-enforcing-the-law. For your analogy to apply to the ruling we're talking about,

1. the defendant would have be caught speeding,
2. the defendant would have to receive the religious penalty, and
3. the supreme court majority would have to uphold the ruling because he isn't a Jew, Muslim, or Scientologist, and therefore isn't owed any constitutional protection of his religion.

Thanks for the analogy.

In my example, PAD would apparently have no standing to challenge the law, since he had not been arrested for violating it, if I am to believe him and his supporters. By their reasoning, no law, no matter how wrong, could be challenged except by those already arrested for violating it. With this kind of thinking, consider this example:

1. A law is passed ordering the gassing of all Democrats.

2. Jeff, who is a Republican, thinks this is stupid - so he petitions the court to overturn the law.

3. The court says "Hey, what's it to you? Wait until we've got some Democrats in the camp and see if they want to make something of this. Don't be presumptuous. Mind your own business.

or:

A. Country G decides to invade country P and kill many citizens of P.

B. Country U thinks this is bad, and complains.

C. The League of Nations says "Hold on, U: This has nothing to do with you. If someone from P wants to complain, OK.

Silly me. For Jerry's analogy to apply:

1. the defendant would have be caught speeding,
2. the defendant would have be verified as, and penalized for being, say, a Jew, and
3. the supreme court majority would have to uphold the ruling because speeding isn't protected by the constitution.

The best way to do things is to differentiate between 'pushed' speech and presented speech. Spam, cold calling, leaflets pushed through letter-boxes all force the individual to take time out of their day to deal with them. They cannot be ignored, or you end up with a full inbox, letterbox or answerphone.
On the other hand, handing out leaflets in the street, websites, public speaking etc, should be protected as one always has the option to ignore it and refuse to engage with the speaker.

Surely the flip side of the whole free-speech thing is I should be free to ignore you if I so wish. Whether it's a fraudster after my money or an MP after my vote.

Drawing back from hyperbole for a moment, I think PAD, bobb alfred and some others are holding to an excessively strict view of standing to challenge an unconstitutional law. As I read them, even a person in the targeted group would have no standing to challenge the law until it had already been turned on him personally. One would have no standing at all to argue on another's behalf or to anticipate harm which had not already fallen upon oneself.

Jeffrey, you've just admitted you engage in hyperbole. What interest does your resolve to be hyperbolic serve other than you cut our urgency to absorb what you say -- as if you're providing your own sarcasm against you?

Jeffrey, trust me on this one, standing is the very second thing a court will look at before it even gets into the facts of the case. The first thing...they very first thing...a court does is check jurisdiction. After that, it checks standing. Without these two elements satisfied, no court will ever hear a case. Why? Because without those two elements, the court's decision cannot be binding.

If the court lacks jurisdiction, any decision it renders will be meaningless, because it has no authority to make a decision in the matter. Likewise, if the plaintiff lacks standing, then the court's decision won't have any impact on that person. In either case, the court's time will have been wasted, and no court is going to engage in any activity that it knows going into the proceeding that it's a waste of time.

One key to having standing is to have a dog in the race...you have something tied to the outcome of the case. If all you have is a law that's offensive to you, but isn't impacting you other than inflating your blood pressure, you don't have any standing to challenge that law. I'm sorry if that seems outlandish to you, but literally hundreds of years of legal precedent happened before Jeffery S. Frawley came around and decided that anyone, anytime, for any reason, should be able to challenge a law because it offends them.

Jeffrey, as far as I can see, PAD is exactly right on this--it's the whole concept of "locus standi". From Wikipedia--standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. In the United States, for example, a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that the plaintiff is (or will be) harmed by the law. Otherwise, the court will rule that the plaintiff "lacks standing" to bring the suit, and will dismiss the case without considering the merits of the claim of unconstitutionality. In order to sue to have a court declare a law unconstitutional, there must be a valid reason for whoever is suing to be there. The party suing must have something to lose in order to sue unless they have automatic standing by action of law.

This happens all the time. Haven't you heard about cases that went all the way to the Supreme Court and were rejected just because the justices said the plaintiffs had no standing?

"Many democrats have no sense of humor any more."

On a side note, Hillary Clinton got a few decent jokes on The Daily Show last night. Mainly the interview was just talking points, which I would expect from any politician at this point, but it was nice to see her make a few jokes. I think she does have a decent sense of humor, it's just not the side of her personality we see the most of.

Jeffrey, do you now see how cutting back from the hyperbole increases the urgency for others to address what you say? It's happening right now.

"--it's the whole concept of "locus standi". "

Which was the point I was underscoring with my example. But if the Troubled Twins couldn't figure it out in an example that was designed so simple that elementary school students could get it, do you honestly think that you're not going to confuse the hell out of them by throwing the legalese around? Especially Thing One since he'll just warp the actually legal explanations into some otherworldly rat's maze of a posting.

~8?P

YJ7T28 hi nice site man thx http://peace.com

Your example is of an illegal law no one was held to, he-who-accepts-a-salary-for-enforcing-the-law. For your analogy to apply to the ruling we're talking about,

1. the defendant would have be caught speeding,
2. the defendant would have to receive the religious penalty, and
3. [Updated:] the supreme court majority would have to uphold the ruling because speeding isn't protected by the constitution.

[Locus standi] was the point I was underscoring with my example. But if the Troubled Twins couldn't figure it out in an example that was designed so simple that elementary school students could get it...

Locus standi wasn't relevant to my observation. You haven't invalidated what I've said -- and it's still a wonder you feel the need to challenge anything I say.

Locus standi must be interpreted more broadly than "It's harming me, personally, right now." The way bobb alfred is posing it, I would have no standing in the following situation:

A. Rule #5: All Methodists are to wear a blue hexagon on their sleeve, or they will be shot in the neck.

B. I am a Methodist, I do not wear a blue hexagon on my sleeve, they don't catch me, and I don't get shot in the neck.

C. Nonetheless, I really object to Rule #5 and want to challenge it in court.

More extremely than this, suppose I objected to a law affecting the welfare of some other group. By the very strictest interpretation of locus standi, women and the physically handicapped would have no right to challenge Selective Service policies, and people disinclined to commit suicide would have no right to speak on the subject of suicide. Going even further, how could any court have standing to hear any case not involving the judge's own welfare?

Look, here's the thing with what you're talking about. A bad law has to be used and challenged to be struck down. As using a hypothetical analogy seems to deeply confuse some people, why not us a real world example.

In the 90s, Congress passed the Line Item Veto into law. The Newter & the Republicans supporting him made it clear that they weren't going to stand for the thing and that the first time it was used it would be challenged and taken to The Supremes. It was used, Newter was good to his word, it was challenged and the Supremes sang the song that Newt wanted to hear.

The law existed for a short time unused and thus unchallenged. Lots of people wanted to see it struck down, but they couldn't do a thing about it because they had no standing. When it was finally used, the people that it affected, the people with standing in the case, challenged the constitutionality of it and won.

Take another famous case from some time back. Remember the Atheist fellow who challenged the constitutionality of the Pledge of Allegiance because of the phrase "under God" being in it? The Supremes didn't want to touch that case with a ten foot pole and haven't wanted to touch it since the day the words were added. They know that if the thing really gets challenged, they'd have to rule that it is unconstitutional because of the wording of the law that added those words into the pledge. Not a popular decision and one they really don't want to deal with.

They ducked having to do it this time because of one very valid and very legal reason. The guy didn't have any standing in the case. His case was being presented as him objecting to his daughter having to recite the pledge in school and that being against his Atheistic beliefs. The court passed on the case basically on the bases of him not having custody, the mother and child apparently not being Atheists and thus him having no standing in the case as he presented it.

It's the same thing here. This guy is getting jammed up under the law for aspects of it that covers acts already known to not be constitutionally protected acts. There's nothing, not so much as one little thing, that this law is doing to him that falls under the classification of unconstitutional in any way. Because he is not having his constitutional rights and freedoms trampled on, he cannot challenge his sentence on the bases of this being an unconstitutional law or this law/ruling against him denying him his constitutionally protected freedoms. He has no standing whatsoever here.

Not the right man, not the right case and not the right ruling to challenge it.

If you want to say that you find this wrong or unfair, I can maybe see that debate going somewhere for a little while just based on the philosophical nature of it. Now, if you wanna argue the facts of the legal system, the facts of the law, the way the legal system works, the way the law works and why the legal system and the law doesn't really work like that in the surreal world, then go to school, study law, get your Masters and work your way up in the system to a place where you can try and change the way things really work in the real world to the way you think they work.

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Wow Mike. You so funny. Too bad it's not in the ha-ha way.
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Well for my 2 cents, the only thing more important than fredom of speech is responsibility of speech... and those who hide behind the anonimity of the internet refuse the later and thus do not deserve the former... and thats all I am going to say about that

And, yeah, before those two or three of you that actually like me enough to recommend that I give up talking to the wall for my own mental health and well being, that's my last attempt with them. I've got too much other important things to do involving other legal issues that I'm trying to figure out right now.

More from wikipedia--it isn't like this stuff is being hidden, you know.

Constitutional requirements

There are three constitutional standing requirements:

1. Injury: The plaintiff must have suffered or imminently will suffer injury - an invasion of a legally protected interest which is concrete and particularized. The injury must be actual or imminent, distinct and palpable, not abstract. This injury could be economic as well as non-economic.
2. Causation: There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court. Massachusetts v. Environmental Protection Agency (global warming caused by EPA's refusal to regulate CO2 emissions satisfied element of causation for Massachusetts's alleged injury of loss of coastland).
3. Redressability: It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury.[4]

Y'know, guys, I think I've figured out the difference between Jeff and Mike:

Jeff is incapable of admitting that he's wrong, and Mike is incapable of understanding that he's wrong.

Of course, I could be wrong...

PAD

PAD: "Jeff is incapable of admitting that he's wrong, and Mike is incapable of understanding that he's wrong."

Oh, god. Jeff-Mike is my mother.

"Locus standi must be interpreted more broadly than "It's harming me, personally, right now.""

Whyso? As I mentioned, centuries of legal precedent disagree with you.

"The way bobb alfred is posing it, I would have no standing in the following situation:

A. Rule #5: All Methodists are to wear a blue hexagon on their sleeve, or they will be shot in the neck.

B. I am a Methodist, I do not wear a blue hexagon on my sleeve, they don't catch me, and I don't get shot in the neck.

C. Nonetheless, I really object to Rule #5 and want to challenge it in court."

Yes. Exactly. You never suffer any imposition on you because of Rule #5, so you have nothing to challenge. That's exactly the way standing works.

To follow Jerry's lead, how about this?: Most of us have seen those lists of actual laws that exist, but just seem silly. Like being illegal to take a lion to the movies. Or only watering the lawn if you hold a water hose in your hand. Or not serving wine in a teacup. Or serving beer in a tavern without having also brewing soup. Or requiring a woman out on a date to call her male date "master." Or any number of other laws that are on some state or municipality's books.

And in each and every case, Joe Q. Public can't challenge any of them unless they are subject to their enforcement. Why not? Because that's what the legislative process is for. If there's a law on the books that you don't like, your reccourse isn't to challenge it in court...it's to petition your elected officials and get them to change the law. Only if you you are facing charges under the law do you have standing in court to challenge it, because only in a real case, with a real controversy, will a court look at it. In addition to the limited resources of a court, the thinking is also that only a person facing the imposition of the law will have the best incentive to argue against it. If all a law does is annoy you, how hard are you going to be willing to fight it? Until it becomes inconvienent? A slight burden? Something beyond a trifle?

Only if you truly stand to lose something...property, liberty, life...will you have the greatest incentive to fight.

In the 90s, Congress passed the Line Item Veto into law. The Newter & the Republicans supporting him made it clear that they weren't going to stand for the thing and that the first time it was used it would be challenged and taken to The Supremes. It was used, Newter was good to his word, it was challenged and the Supremes sang the song that Newt wanted to hear.

That is what the dissenting court minority did:

...the law is "unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mail including those containing political, religious or other speech protected by the First Amendment to the United States Constitution."

The only difference between the court dissent against the line item veto and the dissent here is the ratio of dissenting judges.

That being the case, the law is out of line and should be overturned....

I didn't create the way challenges to laws work. This law was written specifically to nail the types of abusers that this guy is and represents. So he's the wrong person, and this is the wrong case, with which to challenge it. The way you challenge and get rid of such a law is with a case that demonstrates the law is so overbroad that it is catching up the type of speech and type of situation it obviously was NOT intended to include.

Which I suspect you may even know, but your mentality is such that you just have to come up with new things to say to attack me, no matter how stupid they may be.

You are contradicting yourself. You can't validate and invalidate the minority dissent selectively as it serves your self-interest. You can have one or the other -- not both.

In other words, you've reiterated your point without demonstrating how it's incompatible with -- nor providing an alternative to -- what I've said.

Y'know, guys, I think I've figured out the difference between Jeff and Mike:

Jeff is incapable of admitting that he's wrong, and Mike is incapable of understanding that he's wrong.

Of course, I could be wrong...

If you refuse to provide a logically valid alternative, why shouldn't I believe what I say I believe? You can Make It A First.™

bobb alfred has admitted more than he meant to.

"Only if you truly stand to lose something...property, liberty, life...will you have the greatest incentive to fight."

This goes further than he had previously stated in two ways: "Only if you stand to lose something" admits standing for a prospective, rather than actual, harm (Methodist resists requirement to wear blue hexagon, dislikes prospect of being shot in the neck, brings suit against Rule #5, etc.); also "the greatest incentive to fight" is an entirely different thing from "clearly has standing to bring suit. As an example of this, let us suppose the state of New York decides to confiscate property currently belonging to PAD; Let us also suppose the state of New York does not choose to permit PAD to bring suit in opposition to this taking. He would truly stand to lose property, and have the "greatest incentive to fight" - as bobb alfred specified - but he would have no standing. "Greatest incentive to fight" refers to a psychological or moral state; "Locus standi" refers to a matter of law, which coincides with psychological or moral states purely by accident.

Jeffrey, you are truly talking out of your ass.

I pretty clearly said that the incentive to fight was an additional rationale behind limiting who can bring a suit in court. It's not the end-all and be-all. Clearly, there will be those with less ability to fight, for whatever reason, even when faced with harsh consequences. But combined with other reasons, it creates a compelling reason to prevent just anyone from challenging a law.

Further with Rule #5...congress can pass any act it wants, and there are even ways to make an act into law over the objections of the president. But a law still has to be enforced before it can be challenged...or in some cases I suppose congress could sue the executive if it failed to enfore a law. But in any event, Rule #5 cannot be challenged in court if it's never enforced. I'm sorry if this seems illogical to you, but that's the way it is.

Further, your New York example is likewise off base. Like any branch of government, the courts have limited powers. Their jurisdiction is limited by law. In some cases, governments have removed the power of judicial oversigh for certain actions. While Jeffrey's New York example is outlandish, it's not unheard of for a municipality to shield itself from countersuits in emminent domain cases. In this case, it's not that PAD wouldn't have standing, it's that the court doesn't have jurisdiction to hear the case.

Jeffrey, it's pretty clear that you're arguing from a position of common sense. But you're dealing with legal concepts, and common sense, oddly enough, doesn't have much place in this arena.

"He has no standing whatsoever here."

He absolutely had standing to challenge the law since he was convicted of it. The issue here is not standing. It is whether the law was written in a manner that was substantially overbroad to encompass protected conduct. The court held that it was not. If another case comes up where the law is used to punish protected conduct, then a court can find that it is being applied in an unconstitutional way. Such a ruling would not overturn the law, it would only overturn the conviction of whomever was challenging it.

The only way this law gets overturned now is if the state supreme court reverses itself, the U.S. Supreme Court reverses the state court, or a lower federal court enjoins the state law.

It is whether the law was written in a manner that was substantially overbroad to encompass protected conduct. The court held that it was not. If another case comes up where the law is used to punish protected conduct, then a court can find that it is being applied in an unconstitutional way.

Will the convicted spammer then continue to be held to the overturned law? If not then, as Bobb pointed out:

...the court's time will have been wasted, and no court is going to engage in any activity that it knows going into the proceeding that it's a waste of time.

...supposedly.

I simply think it's a bad idea to selectively uphold an illegal law, because the defendant should be held to a legal law no one is apparently able to charge him with.

” He absolutely had standing to challenge the law since he was convicted of it.”

Yep. You right. Looking back at my post I in my haste mixed my hypothetical cases and their results and the case posted up top by PAD. The case that PAD mentioned had a complainant who had standing. It’s Jeff and anyone else who Jeff thinks should challenge it that has no standing.

I hear there are medications that can help you clarify your thinking. Of course thinking more clearly seems to increase the urgency for others to accuse you of being incapable of understanding you're wrong without attributing any errors to you.

"Will the convicted spammer then continue to be held to the overturned law?"

Yes, because the law isn't illegal, as held by the state supreme court. The fact that the state might, in the future, use it in an illegal manner does not mean the law itself is illegal.

Keep in mind though that the final arbiter of what violates the First Amendment are the federal courts (culminating in the Supreme Court.) If this guy wants to continue challenging the law, he can file a federal petition for habeas corpus and ask the federal trial court to rule that the state court misinterpreted the First Amendment. In other words, this case isn't over. If a federal court agrees with him, they can overturn the law.

"It’s Jeff and anyone else who Jeff thinks should challenge it that has no standing."

You are probably right. I don't know the specific standing rules in North Carolina. But in federal court, these people would not have any standing to challenge the law until they were arrested and prosecuted for violating it.

Yes, because the law isn't illegal, as held by the state supreme court. The fact that the state might, in the future, use it in an illegal manner does not mean the law itself is illegal.

Right. Let me rephrase: Will the spammer continue to be held to his conviction if the law he broke is later ruled unconstitutional?

There was a minority dissent saying just that. If that dissent turns into a majority at another review of the case, will the spammer be forced to complete his sentence for breaking a law ruled illegal?

That should be: If that dissent turns into a majority on a case revisiting the law, will the spammer be forced to complete his sentence for breaking a law ruled illegal?

My question is independent of the law being ruled illegal in a review of this case in particular.

Okay, going to do something stupid: I'm going to discuss the topic and not the personalities involved.

As a First Amendment advocate, I've got to admit I haven't given a lot of thoughty to commercial speech in this context. At least not since my Media and Government class in college lo those many years ago. Should spam, telemarketing calls, and other forms of intrusive commercial speech enjoy First Amendment protections?

In my layperson's mind, the answer is, "Yes, to a degree." I think you can actually reign them in using the same narrowly defined exceptions to the First Amendment that apply to other forms of speech: fraud enjoys no Constitutional protection; and such speech is subject to "time, place, and manner" restrictions.

So how about where the rubber meets the road? Well, telephone calls into your home are intrusive, as is spam. Therefore, I believe they fall under "time, place, and manner," because it's not the *message* that's being suppressed, simply the mode of communication. You can find other ways to convey these commercial messages, after all.

If the government were regulating telemarketing calls or spam on the basis of their *content*, I'd say we'd have a likely First Amendment violation. But that doesn't appear to be the case here.

In terms of how laws are challenged in the courts, appellate courts can only overturn laws by overturning verdicts. If the verdict is constitutionally sound, the law stands -- even if that law is on dubious constitutional ground.

Frankly, I think this is a *good* thing. It's part of the checks and balances that were wisely built into our system of governance.

Bill Mulligan: "...it isn't like this stuff is being hidden, you know."

*Everything* is hidden from closed eyes.

By the way, tried calling you -- *and* Shonna -- but couldn't get you or your voicemail. CALL ME. We need to tie off about our visit next week.

Will the convicted spammer then continue to be held to the overturned law?

Yes, because the law isn't illegal, as held by the state supreme court. The fact that the state might, in the future, use it in an illegal manner does not mean the law itself is illegal.

Let me rephrase my question with a f'rinstance: Dred Scott's freedom was purchased just before he died, 8 years before the 13th amendment (banning slavery) and 11 years the 14th amendment (establishing US citizenship) were added to the constitution.

Missouri was a free state that disregarded slave status acknowledged in other states. The Missouri state supreme court selectively validated Scott's slave status, and the federal supreme court upheld the ruling.

Hypothetically,

1. if Scott's freedom hadn't been purchased, and
2. if he had lived another dozen or so years,

would the federal court's 1857 ruling have upheld Scott's slave status even after slavery had been made illegal? I know that isn't what you're saying, but this is someone's opportunity to tell me I'm wrong for thinking Dred Scott in such a circumstance would have been freed.

I misrepresented the Missouri situation. Missouri was a slave state that had a history of ruling slaves taken to free territories were freed. My hypothetical question isn't effected by this.

"Will the spammer continue to be held to his conviction if the law he broke is later ruled unconstitutional?"

It depends. If the law is ruled unconstitutional, in another case, by the U.S. Supreme Court, then the spammer could request habeas corpus relief from the federal courts. The trick is that not all constitutional rules are "retroactive." For example, if the Supreme Court creates a new constitutional rule that is not dictated by its prior precedent, the rule is not retroactive: the spammer stays in jail. If the rule is retroactive -- the result was dictated by prior precedent -- then the federal courts will order the spammer to be released from jail.

There may be means of getting post-conviction relief in state court based on a later holding that the law was unconstitutional, but I'm not familiar enough with state law to know if the spammer would have an easier time there.

re: Dred Scott. All slaves were freed after passage of the 13th amendment. If Scott had lived that long, he too would have become free.

For example, if the Supreme Court creates a new constitutional rule that is not dictated by its prior precedent, the rule is not retroactive: the spammer stays in jail.

But if the constitutional rule used to render the spam law illegal is the 1st amendment, then -- going by what you've presented -- the spammer would be entitled to relief from his conviction.

All slaves were freed after passage of the 13th amendment. If Scott had lived that long, he too would have become free.

Then the 13th amendment demonstrates what you said about new constitutional rules not being retroactive is not absolute, does it not? If the 1st amendment is cited to rule the spam law unconstitutional, then the retroactive implementation of the 13th amendment simply means the spammer would really, really be entitled to relief from his conviction, yes?

Now, if I can bring all of this home:

No one seems to disagree the anti-spam law reserves for itself the privilege of disregarding the 1st amendment beyond notions of fraud. But for some, fraudulent spamming is severe enough to justify its selective application. What offense then would Dred Scott need to have committed for his status as property to be upheld regardless of the constitutional prohibition against slavery?

bobb alfred is clearly talking out of his own ass if he doesn't recall that states can (and often do) refuse to entertain suits against them by citizens. I suspect he also is if he thinks one must have been demonstrably harmed before one can challenge an unconstitutional law. If the law stated "Armenians may not be admitted to the University of Pennsylvania," the fact that an Armenian plaintiff had been accepted to Yale and had suffered no financial or social disadvantage by not being allowed into Penn would not prevent a lawsuit for that discrimination. The strict insistence that only an injured party may file suit would even lead to the extreme of barring attorneys acting for their clients - After all, a lawyer need not have been injured to argue that his client (who was, presumably) should collect from the respondent. Where does that guy get off concerning himself with things that don't affect his own welfare, one might ask.

Posted by: bobb alfred at March 4, 2008 02:59 PM

"While Jeffrey's New York example is outlandish, it's not unheard of for a municipality to shield itself from countersuits in emminent domain cases. In this case, it's not that PAD wouldn't have standing, it's that the court doesn't have jurisdiction to hear the case.

Posted by: Jeffrey S. Frawley at March 4, 2008 11:33 PM

"bobb alfred is clearly talking out of his own ass if he doesn't recall that states can (and often do) refuse to entertain suits against them by citizens."

Miss something there Jeff?

Beyond that...

Jeff, you can argue with us until you're blue in the face. It won't change how the world works.

Good Night.

Ben Stein voice: "Wow"

Mike, forget apples and oranges, you're comparing apples and potatoes.

You're example of Dred Scott's freedom is not a good analogy. Slavery was legal, the Missouri Supreme Court ruled in a manner that was consistent with their view of the constitution at that time and then the Constitution itself was later changed. Even if the Missouri SC decided that their ruling still held firm, the United States Supreme Court would overrule that decision if challenged based on the fact that the Constitution now clearly and explicitly made slavery illegal.

Again, you have something going from legal to illegal due to constitutional amendments and, if it came to that, a federal ruling overturning a state ruling.

The case that PAD has presented involves a law that can have within it the ability to overreach itself and enter into unconstitutional areas. In the case that was presented however, it did not do this. You also have the legality of the issue unchanged and you have the Constitution un-amended.

We know that you have a pathological need to "win" every argument you get into and be "right" about everything no matter how thin you have to stretch your argument, but you're heading out there a bit early even for you.

Beyond that, what I said to Jeff holds true for you as well.

Mike, you can argue with us until you're blue in the face. It won't change how the world works.

Good Night.

Why are people arguing with Mike? Why are people even reading his comments at all?

Why are people arguing with Mike? Why are people even reading his comments at all?

Who?

Well, I was reading BTWilders' comments and the two kinds go together. My post, in this case, was just my being amazed that Mike starting going into planet M mode this quickly. I didn't see that coming for at least another day.

But, yeah, time to stop kicking the cripple and all that.

Mike, you can argue with us until you're blue in the face. It won't change how the world works.

I'm not arguing with anyone, because I'm literally not asking anyone to take my word on anything:

1. I didn't infer the prohibition against against political, religious, and other speech in the challenged law. That interpretation came from a supreme court judge quoted in Peter's post, and
2. I haven't heard anyone say that interpretation is wrong.

Saying the spammer only engaged in unprotected speech is not saying the opinion Peter quoted is wrong. The 2 are not interchangeable, he-who-accepts-a-salary-for-enforcing-the-law. One is an apple, and one is a wax apple (they have those, you know).

As such, my question can be framed in the standard SAT format:

1. _Spamming_  is to  _"prohibits..._ political_ religious_ or_other_speech_ protected_ by_the_ First_Amendment"_
2. as  _[blank]_  is to  _slavery._

What did you get on your SATs, zero?

Why are people arguing with Mike?

I've been saying all along it's a wonder anyone feels the need to challenge anything I say.

Jeffrey, please read more carefully. You're making yourself look worse.

As for "If the law stated "Armenians may not be admitted to the University of Pennsylvania," the fact that an Armenian plaintiff had been accepted to Yale and had suffered no financial or social disadvantage by not being allowed into Penn would not prevent a lawsuit for that discrimination." Actually, under those facts alone, yes it would. If the student had in fact not applied to Penn, no act of discrimination would have occurred. Bear this in mind: Rules don't exist of their own accord...they have to be enforced. In order to have an action, you need an actual harm, and just having some words written on a paper that say "this here is a rule" usually doesn't harm anyone. If someone reads those words, and then enforces some action to follow the rule, harm may result.

In your Armenian student case, in order to file suit, the student would have needed to applied to Penn and been denied entrance under the "No Armenian Students" policy. A court might allow suit if the student could show that he wanted to apply, but was deterred from doing so because of Penn's very public practice of denying Armenian applications, but that would be a tenuous case, and the student would need to show that he took substantial steps to work on an application before deciding to no apply.

"The strict insistence that only an injured party may file suit would even lead to the extreme of barring attorneys acting for their clients"

Once again, this is making you look foolish. Attorneys represent their clients, not themselves (at least the smart attorneys don't represent themselves in court). I don't know how you connect the issue of standing to barring someone from hiring a legal professional to represent them as their agent...which is what you do when you hire an attorney...in a matter of law and court.

"But if the constitutional rule used to render the spam law illegal is the 1st amendment, then -- going by what you've presented -- the spammer would be entitled to relief from his conviction."

Mike, I'm too far removed from law school and legal scholarship to remember the term, but when a court strikes down a law, it will do so in the most conservative manner possible. Meaning, if it's possible to strike down only a portion of a law, leaving the remaining portions in effect, it will. Using an above example where higher penalties were applied to minority speeders, a court would declare the additional penatlies unconstitutional, but would not remove the general ban against speeding. Where possible, the court will use a scalpel to remove only the offending part.

In this case, if the court can determine that portions of the law are constitutional, and those parts can stand and have effect removed from the offending portions, it will remove only the offending part. Which very well could result in a future SCOTUS opinion ruling portions of this law overbroad and unconstitutional, while still finding that prior convictions under the permissible part remain in effect. Since the court has previously found that the speech used by the defendant in this case was not protected, it's likely that he'll stay in jail even if this law is later struck down.

...I will simply take her word for it. That being the case, the law is out of line and should be overturned.

...if it's possible to strike down only a portion of a law, leaving the remaining portions in effect, [the court] will.

I don't see how this doesn't settle the issue. Thank you.

"Right. Let me rephrase: Will the spammer continue to be held to his conviction if the law he broke is later ruled unconstitutional?"

Under this fact pattern, maybe not. If the law he broke...the specific part of the law he was convicted under...is later overturned, he'll have a good shot at getting his conviction overturned. Then again, there are cases where such reversals were not made retroactive.

"That should be: If that dissent turns into a majority on a case revisiting the law, will the spammer be forced to complete his sentence for breaking a law ruled illegal?"

This is a slightly different question, as the dissent appears to have been willing to overturn the entire law. Then again, the dissent went into that opinion knowing it was the dissenting voice, and could very well have been written only to serve as a warning to the Executive and Legislature that this law, if pushed too far, will be overturned. But, again, under the fact pattern as presented by Mike, it's likely that the convicted would be able to get his conviction overturned or voided.

I'm not familiar with the specifics of the Scott question, beyond what's been presented here. However, the later invalidation of slavery would likely have been held to supercede the prior court's validation of Scott's slavery status, because the prior decision was made when the Constitution did not prevent slavery. It's not quite a good analogy to the anti-spam case, because no one anticipates the Consitution to be changed to explicitly exclude spam from the protections of the First Amendment. SCOTUS opinion, like all court decions, are subject to periodic review and reversal based on whoever is sitting at the time.

Well, if courts have the discretion to selectively strike down portions of laws -- to line-item veto laws, so to speak -- then the majority simply left striking down the violations of the first amendment it referred to to the discretion of some other court. Unless you're some kind of pinko, encouraging local fixes for local problems sounds like a good idea.

Do you all see? I make Bobb articulate the discretion the courts have to line-item-veto laws, and we are all smarter for it.

Just for the record, Mike's not pulling my strings. But I did think that he asked a good question that wasn't getting a response. If I've helped any learn something new, I've fulfilled my Cookie Monster role for the day.

All I ask is to be the instrument on which Bobb plays.

"Just for the record, Mike's not pulling my strings."

bobb alfred, for the record, such a thing never occurred to me. I doubt it occurred to anyone who is even a little familiar with you.

I fully believe in disclaimers.

...and your disclaimer does not deny we are all smarter for my participation here.

good site dude