The column I wrote yesterday has provoked a number of interesting comments, both here and at the Huffington Post. So today I would like to continue the conversation and attempt to explain myself further. [My policy is not to use anyone's login name without permission, but you can read the comments where they originally appeared if you'd like.]

First, let me begin by stating my biases in the matter: I don't like spam. I do like the First Amendment. I just wanted to get that out of the way, so you can spot any bias which might creep in to what I write here.

As I see it, the issue breaks down in a number of ways. The first question is anonymity -- do Americans have an absolute right to anonymity in political messages? The second question is technological -- is anonymity a right, no matter what the medium? And the third question seems to be political, and deal with campaign and election law -- what kinds of rules on speech are constitutionally allowable in politics?

Free speech

All of these points stem from the basic question of how far does the free speech guaranteed us by the First Amendment actually go? Speech has been limited by American government in the past, and sometimes this is a good thing and sometimes it isn't. I have written before about the Supreme Court case Schenck v. United States, where we get the phrase "shout 'fire' in a theater" from. Few would argue with the sentiment, but when you look into what Schenck was actually doing (peacefully protesting war) the argument doesn't really fit the facts of the matter. So sometimes good even comes out of bad court decisions.

There are a few things we, as a country, have decided are illegal, even though they fall under "free speech" -- things like "fighting words" or "incitement to riot" or "conspiracy to commit a crime" or child pornography. There are others, these are just a few examples. Then there are more modern laws, which criminalize "hate speech." This is debatable to many -- to some "hate speech" falls under "fighting words" and to others it falls under "political discourse." A very good argument can be made that the content of the statement "Obama is a secret Muslim" is actually hate speech, as it is currently defined.

Which brings me to one of the most amusing comments from yesterday:

Once upon a time there was a legal principle that the accused could actually face their accusers, and that the accusers had to be truthful or face consequences. The protection of anonymous free smears that defame, debase, and incite hatred doesn't sound like something in the publick goode that should be encouraged. I fear that it's only a matter of time before some jurist opines that yelling fire in a crowded theatre is quite acceptable provided it is done anonymously.

Several people pointed this out -- libel (written) and slander (spoken) are both illegal. But much of what appears in campaign television commercials could be considered either, depending on who is doing the deciding. If your favorite candidate says something over-the-top, you may excuse it by saying "it's just campaign rhetoric," whereas if the opponent says something over-the-top about your favorite, you may say "that's a bald-faced lie and should not be allowed on the airwaves."

Meaning, of course, that American politics is truly a free-for-all when it comes to content. Almost. If a candidate put an ad up calling on citizens to beat up campaign workers from the other side, that would clearly be illegal (just to give one odious example). But applying "hate speech" laws to campaign rhetoric would be tough indeed, as much of it can accurately be described as hateful (at least by one side or the other). This is the basic flaw in "hate speech" laws -- who decides what is and is not "hate" speech?

If candidates truly do go too far, they leave themselves open to libel and slander suits from the other candidate, which does indeed happen during election campaigns (but usually don't get resolved -- the court system moves even slower than our campaign season does). But how do you sue someone if you don't know who they are?

Anonymity

Which brings me to anonymity. Political speech can be anonymous. I should know, having written a book under a pseudonym and mailed a copy to each Democrat in Congress. That was my right to do (although by the time I mailed the book, I had taken ownership of it publicly). But I didn't have to. Remember "Primary Colors" by "Anonymous"? The author was finally outed, but not for a long time after the book hit the shelves.

But in both cases, if anything in either book had been libelous, the author could have been legally held responsible in court of law, by suing the publisher and "John Doe" as the author. The publisher would likely be forced by a court to reveal who the author was if they lost such a suit.

But this doesn't address the "Federalist Papers" issue brought up by the Virginia Supreme Court -- do we have an absolute right to anonymity in political discourse? If that is true, then the publisher could refuse to identify the author, since by doing so it would infringe on the author's constitutional rights.

Of course, neither my book nor "Primary Colors" was tied to any election in any way (although you could, I suppose, make a case that my book was, in the abstract). So neither of them falls under any sort of election or campaign laws. Which, as we will see later, do in fact already restrict anonymity.

Technology

Free speech covers everything, just about. It covers standing on a public street screaming at passersby, it covers publishing, it covers blogging, it covers journalism, it covers pretty much any way you have of expressing a message to another.

But limits have already been placed on certain technologies when it comes to free speech. Obscenity laws are the best example of this. Another, less dramatic, example is the way the FCC regulates what is said on broadcast television and radio (but not cable television or satellite radio, making the issue even murkier).

And the government has banned certain methods of communication before, and gotten away with it. This is because the right to free speech collides head on with your right to privacy -- specifically, the right to be let alone. The first legal battle over this (to my limited knowledge) was over fax machines.

In the dim and distant past, fax machines were the new whizzy electronic appliance that everyone just had to have. But some advertisers began compiling lists of fax numbers, to send "junk faxes" to -- advertising. At the time (I said it was the dim and distant past), most fax machines used thermal paper, which was quite expensive. So the advertisers were clogging people's fax machines with ads, and it was costing the fax machine owners money. So junk faxes were banned.

Legally, this falls into the "right to be left alone." Which is where the email spam comes in. Just because I have an email address does not mean that I want (or should have to put up with) dozens of Viagra or sex ads coming in to my inbox daily. This is why the anti-spam laws were passed -- to strengthen my right to be left alone. As was the "Do Not Call" registry for telephones.

Ah, but the Do Not Call law specifically exempts political calls. This shouldn't be a big surprise, seeing as how the law was written by politicians.

So the law is kind of all over the map on technology. The concept of free speech -- even anonymous free speech -- comes up against the right to be left alone technologically. Just because there's a crazy guy on the streetcorner yelling "America is a center-right country!" doesn't mean I have to allow him into my home to scream his delusions at me in my living room, in other words.

There was even another case I didn't go into -- anonymous political text messages were being sent out to a huge cell phone mailing list. Now, text messages actually cost money for the recipient, so again, free speech is infringed by the right of a citizen not to have to pay to hear it.

And federal elections rules prohibit dirty tricks with phone lines, even for blatantly political uses (such as jamming your opponent's switchboard with calls on election day... or creating fake robocalls which appear to be supporting your opponent, and then starting the calls at 3:00 AM, causing a backlash of resentment).

In other words, sometimes free speech is trumped by the right to privacy. The right for you to swing your fist ends at my nose, in other words.

Political implications

But actually creating rules for campaigning is always touchy. Look at the continuing fight over campaign finance laws, for instance. The Supreme Court has ruled that money given to a campaign is somehow "free speech," but they have also upheld limits for monetary donations given by a single individual, which appears on its face to be a giant contradiction. What it really means is that these rules are kind of made up on the fly. Sometimes they make sense, and sometimes they don't.

Federal election rules also specify that campaign donors be publicly identified. Unless they don't give very much (there's a limit, I believe $200, below which donors may apparently remain anonymous). Once again, a contradiction. And muddying the waters even further are the rules for independent groups which run political ads -- where donors can give as much as they want, and remain anonymous, but where also it has become illegal to run ads a certain number of days before an election. These groups, it should be noted, are forbidden from coordinating their efforts with anyone's campaign -- which is another massive violation of free speech rights.

At some point, the whole system looks pretty creaky and ad-hoc. There's a good reason for this -- because that is exactly what it is. Laws are passed, loopholes are discovered, more laws are passed, laws are thrown out by the courts... and what we are left with is a patchwork of legalisms that bear no relation whatsoever to the First Amendment ideal.

So, in the midst of this confusion, why not ban anonymous political spam? Is there anyone who will stand up for the "right" to receive thousands of slanderous emails with no recourse to finding out who is sending them?

There was one other comment I'd like to paste in full here. The commenter was responding to this sentence I wrote in yesterdays column: "Legislation should be written carefully which defines bulk campaign email as a financial contribution to the campaign, which would bring it under the purview of the campaign finance laws." The response:

I have a couple of issues with this. The first is, a whole list of confusing questions. If I send out an email to my address book (or just flat out spam addresses) stating my position on a candidate, have I really made a contribution to a candidate? If my email points out the congressman x supported a handgun ban, did I contribute to congressman x's opponent or to a pac supporting gun rights? Which Pac did I contribute to? If congressman x is still in a primary contest, did I contribute to x's primary opponent or to his/her general election opponent? Are the candidates required to keep track of my emails?

Secondly, and most importantly, the answer to speech we don't like is more speech, not less. I instinctively cringe at attempts to limit what others can say. If people want to say Obama is a muslim or that 9-11 was an inside job and Bush ordered down the towers, let them do it. We must just be sure to speak ourselves.

Taking these issues one by one: I am free to write a column that cheers on a candidate of my choosing. I did so during the general campaign a number of times. But (even though it was non-standard) in my Friday Talking Points column, where I usually hand out awards with a contact link to the person I'm honoring -- I could not do so by listing their campaign address. Because if someone reads my column, clicks the link, and donates to the campaign, I have thus given the campaign something of value. This is how I understand the law (I may, of course, be mistaken), and I was very careful not to fall afoul of it. During the primaries, I ran a speech from all the Democratic candidates with links to their campaign sites -- but without favoring one over the other, and without any solicitation on my part to donate to any of them. I don't know if that was bending the law or not, but by equal treatment I hope I did the right thing.

If you, personally, send out an email to people, then you have not contributed to the candidate, but if you sent it in bulk as spam, you may have. If you paid an unscrupulous spammer to handle the technical details, then that is indeed an "in kind" contribution to the campaign. I think.

This is where election laws get really silly -- which is kind of a prime example of why limiting free speech isn't all that easy to do. If you are a political group putting an ad on television, for instance, there are actual laws stating that you can't say "vote for Smith" or even "don't vote for Jones." You can say "this is why Smith would be terrible for our district" or even "Jones wants to ban guns" or whatever. But you can't say the word "vote" (as in "vote for" or "vote against"). Now, the laws also differentiate as to what you are -- a private citizen, an advocacy group, a tax-exempt group, an "issues" group, or a political campaign. It's all in the snarl of tax code beginning in the low 500s -- a "501(c)(3)" group or a "527" group, or whatever. It's a nightmare. Just look at how the group "MoveOn.org" has changed as a legal entity over the years to see what I'm talking about.

As to the commenter's last paragraph, I agree in general that more speech is better than less speech. The "marketplace of ideas" is indeed supposed to be somewhat self-correcting. You are allowed to say what you want, and I am allowed to disagree or agree with it. And that is indeed a good thing.

But allowing it into my email's inbox is not, in my opinion. As I've pointed out, there are (1) limitations on all types of speech in general already, (2) limitations on technological free speech, and (3) limitations on political free speech. So why can't spam be added to the list of things which are not allowable political free speech? I would have no problem getting a spam message saying "Obama is a Muslim" if it had a real IP address on it, and if I could find out who owned that IP address. This way, as a journalist, I could write a story saying "Richard Mellon Scaife or (to be fair) George Soros is financing a vicious whispering campaign online, and should be held accountable for doing so." And I would have no problem with either man publishing (even anonymously) "Obama is a Muslim -- the book" or even "Obama is a Muslim -- the movie" and selling their idea in the marketplace.

Maybe it is just my own anti-spam bias talking, but I still say there's nothing wrong with banning political spam as an infringement on my right to be left alone from such. There are already so many other rules limiting political free speech -- and so many other avenues for even anonymous political free speech, that I simply cannot raise anonymous political spam above my right not to be inundated by it -- for the same reason that I cannot condone someone anonymously yelling "fire" in a theater. Because of the consequences. If anonymous political spam is truly a free speech right, then I predict by the next election cycle we are all going to be inundated with email slime of the most vicious and scurrilous type. And I can't see how banning unaccountable and illegal (libelous) political spam from the email universe is anything but a good thing.

-- Chris Weigant