Defining Political Spam

We've all experienced first-hand how radically the Internet has altered the nature of communication, particularly in the United States, where computers are commonplace in offices and homes, and where mobile connections ' from cyber cafes to cell phones ' allow virtually anyone instant and inexpensive e-mail access from just about anywhere, anytime.

e-Mail's effects have also made an impact on the sacred American marketplace of ideas, on which the Founding Fathers put their imprimatur and protective planning more than two centuries ago.

Indeed, the effects of e-mail on American political campaigns are dramatic, as demonstrated last November, when e-communication played a decisive factor in several election victories. The Internet as cyber forum offers candidates the opportunity to contact a million voters for about $100 using unsolicited bulk e-mails, often called spam. Under the First Amendment, political spam is generally lawful, but political spam used for fundraising and other specific types of communication may cause legal difficulties for candidates and their agencies ' from canvassers to other entities sending the spam, however well-intentioned.

Recent History Shows Impact

Since its inception in 1994, the use of spam has grown exponentially. In 2002, spam took on the identity of a mainstream marketing option. Firms have spent more than $1 billion a year on spam for the last 4 years, and the cost of people and corporations dealing with spam are 10 times that amount. Such costs include:

• Lost productivity;
• More expensive servers;
• Additional bandwidth;
• Expanded customer-support staff;
• Time spent deleting messages;
• Time wasted by people who mistakenly click on spam messages; and
• Time spent tracking down legitimate, wanted messages that spam filters delete.

During the 2004 national elections, candidates used e-mail to reach the electorate. By sending out unsolicited bulk e-mails, candidates sent information to millions of voters with the click of a button.

Some commentators see political spam as another nuisance, no different from commercial spam or junk mail because, at the least, just like other forms of spam, it clogs inboxes. But others find political spam to be a form of speech; in particular, they find political spam to be protected speech, and that changes the spam recipe somewhat and spices up discourse on the merits and exemptions of bulk e-mail.

Give Me Liberty, and Give Me Spam

Election-related speech restrictions pose tough legal questions, of course, because they implicate conflicting fundamental legal interests. On one hand, the First Amendment has been interpreted by the courts to preserve free and unfettered debate over politics and the qualifications of candidates for office. In addition, the Supreme Court in New York Times Co. v. Sullivan, 376 US 254 (1964), found that the First Amendment reflects a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”

On the other hand, the states have an interest in preserving the integrity and reliability of their elections. In Storer v. Brown, 415 US 724 (1974), the Supreme Court recognized that “as a practical matter, there must be a substantial regulation of elections if elections are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” This case also noted that multiple Supreme Court decisions have affirmed that avoiding voter confusion is an important state interest. Consequently, this case has been used as the legal basis for contemplated political-spam regulation.

Political speech remains at the core of First Amendment freedoms, and it is unlikely that federal or state lawmakers will challenge its protection. Courts have approved the regulation of analogous types of speech, such as commercial spam. The Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003, 15 U.S.C.A. 7701 (West 2004), was enacted to eliminate unsolicited bulk e-mail advertisements. The act provides for up to $2 million in fines and prison terms for fraudulent header information, such as false reply addresses or misleading subject lines. In some cases involving substantial violations, the fines may be trebled, up to $6 million.

This federal statute regulates only commercial e-mail, not political e-mail. In particular, commercial e-mail is generally intended to sell a product or service in exchange for a fee. By that definition, then, commercial e-mail is a form of commercial speech that relates to the economic interests of the speaker and its audience. Courts do not protect commercial speech to the same degree as political speech.

Ultimately, political spam will probably be defined more by market effects than by government regulation. Use of the Internet is growing as the general television audience is shrinking. As the use of the Internet expands, politicians will follow voters by spending more time on the Internet than on the airwaves. Free speech is actively protected, so it is unlikely that political spam will be regulated.

Shouting 'Funds' in an Online Forum

However, political spam, while lawful, may result in legal difficulties for those who use it. Consider this: Numerous provisions of the Internal Revenue Code affect state and federal political candidates and committees. Specifically, when a political entity raises more than $100,000 in annual receipts, potential donors who receive fundraising solicitations must be told that contributions are not tax-deductible. In short, certain political spam may be unlawful due to its content, or lack of notice in this instance. Failure to include the disclaimer could result in penalties of $1000 per day, up to $10,000. If principals of the political organization intentionally disregard this section of the code, then the per-day penalty is the greater of $1000 or 50% of the cost of the solicitation, and the $10,000 upper limit does not apply.

Despite the special protection the First Amendment affords political expression, some legislation does restrict broadcasted political speech. Thirty-one states and the federal government, for instance, have enacted statutes requiring disclosure notices in television and radio commercials. These notices normally state that any paid political advertisement broadcast on any electronic media shall be clearly identified or marked as a paid advertisement. These statutes usually make it unlawful for any person, candidate, principal campaign committee or other political committee to broadcast any political advertisement without a notice.

In the future, political spam might be required to have a notice at the beginning or end of each e-mail stating that the communication was a paid advertisement and giving the identification of the person, principal campaign committee or other political committee that paid for or otherwise authorized such communication.

We've all experienced first-hand how radically the Internet has altered the nature of communication, particularly in the United States, where computers are commonplace in offices and homes, and where mobile connections ' from cyber cafes to cell phones ' allow virtually anyone instant and inexpensive e-mail access from just about anywhere, anytime.

e-Mail's effects have also made an impact on the sacred American marketplace of ideas, on which the Founding Fathers put their imprimatur and protective planning more than two centuries ago.

Indeed, the effects of e-mail on American political campaigns are dramatic, as demonstrated last November, when e-communication played a decisive factor in several election victories. The Internet as cyber forum offers candidates the opportunity to contact a million voters for about $100 using unsolicited bulk e-mails, often called spam. Under the First Amendment, political spam is generally lawful, but political spam used for fundraising and other specific types of communication may cause legal difficulties for candidates and their agencies ' from canvassers to other entities sending the spam, however well-intentioned.

Recent History Shows Impact

Since its inception in 1994, the use of spam has grown exponentially. In 2002, spam took on the identity of a mainstream marketing option. Firms have spent more than $1 billion a year on spam for the last 4 years, and the cost of people and corporations dealing with spam are 10 times that amount. Such costs include:

• Lost productivity;
• More expensive servers;
• Additional bandwidth;
• Expanded customer-support staff;
• Time spent deleting messages;
• Time wasted by people who mistakenly click on spam messages; and
• Time spent tracking down legitimate, wanted messages that spam filters delete.

During the 2004 national elections, candidates used e-mail to reach the electorate. By sending out unsolicited bulk e-mails, candidates sent information to millions of voters with the click of a button.

Some commentators see political spam as another nuisance, no different from commercial spam or junk mail because, at the least, just like other forms of spam, it clogs inboxes. But others find political spam to be a form of speech; in particular, they find political spam to be protected speech, and that changes the spam recipe somewhat and spices up discourse on the merits and exemptions of bulk e-mail.

Give Me Liberty, and Give Me Spam

Election-related speech restrictions pose tough legal questions, of course, because they implicate conflicting fundamental legal interests. On one hand, the First Amendment has been interpreted by the courts to preserve free and unfettered debate over politics and the qualifications of candidates for office. In addition, the Supreme Court in New York Times Co. v. Sullivan , 376 US 254 (1964), found that the First Amendment reflects a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”

On the other hand, the states have an interest in preserving the integrity and reliability of their elections. In Storer v. Brown , 415 US 724 (1974), the Supreme Court recognized that “as a practical matter, there must be a substantial regulation of elections if elections are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” This case also noted that multiple Supreme Court decisions have affirmed that avoiding voter confusion is an important state interest. Consequently, this case has been used as the legal basis for contemplated political-spam regulation.

Political speech remains at the core of First Amendment freedoms, and it is unlikely that federal or state lawmakers will challenge its protection. Courts have approved the regulation of analogous types of speech, such as commercial spam. The Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003, 15 U.S.C.A. 7701 (West 2004), was enacted to eliminate unsolicited bulk e-mail advertisements. The act provides for up to $2 million in fines and prison terms for fraudulent header information, such as false reply addresses or misleading subject lines. In some cases involving substantial violations, the fines may be trebled, up to $6 million.

This federal statute regulates only commercial e-mail, not political e-mail. In particular, commercial e-mail is generally intended to sell a product or service in exchange for a fee. By that definition, then, commercial e-mail is a form of commercial speech that relates to the economic interests of the speaker and its audience. Courts do not protect commercial speech to the same degree as political speech.

Ultimately, political spam will probably be defined more by market effects than by government regulation. Use of the Internet is growing as the general television audience is shrinking. As the use of the Internet expands, politicians will follow voters by spending more time on the Internet than on the airwaves. Free speech is actively protected, so it is unlikely that political spam will be regulated.

Shouting 'Funds' in an Online Forum

However, political spam, while lawful, may result in legal difficulties for those who use it. Consider this: Numerous provisions of the Internal Revenue Code affect state and federal political candidates and committees. Specifically, when a political entity raises more than $100,000 in annual receipts, potential donors who receive fundraising solicitations must be told that contributions are not tax-deductible. In short, certain political spam may be unlawful due to its content, or lack of notice in this instance. Failure to include the disclaimer could result in penalties of $1000 per day, up to $10,000. If principals of the political organization intentionally disregard this section of the code, then the per-day penalty is the greater of $1000 or 50% of the cost of the solicitation, and the $10,000 upper limit does not apply.

Despite the special protection the First Amendment affords political expression, some legislation does restrict broadcasted political speech. Thirty-one states and the federal government, for instance, have enacted statutes requiring disclosure notices in television and radio commercials. These notices normally state that any paid political advertisement broadcast on any electronic media shall be clearly identified or marked as a paid advertisement. These statutes usually make it unlawful for any person, candidate, principal campaign committee or other political committee to broadcast any political advertisement without a notice.

In the future, political spam might be required to have a notice at the beginning or end of each e-mail stating that the communication was a paid advertisement and giving the identification of the person, principal campaign committee or other political committee that paid for or otherwise authorized such communication.