|Received:||8/23/2004 3:10:14 PM|
|Agency:||Federal Trade Commission|
|Rule:||Definitions, Implementation, and Reporting Requirements Under the CAN-SPAM Act (NPRM)|
Comments:In Riley v. National Federation of Blind of N.C., Inc. (1988), the Supreme Court ruled that whenever there is a mixture of commercial and non-commercial speech in a message, then the message is non-commercial for the purposes of First Amendment analysis. I propose that we adopt the Riley rule for email. Therefore, any email that contains even a portion of non-commercial speech is protected as free speech under the First Amendment. Having this kind of hard and fast definition is incredibly useful because it protects the broadest possible range of noncommercial speech on the Internet. It also prevents legitimate speakers from being dragged through expensive court cases on the question of whether a message was "intended" to be commercial or whether a message was "substantially" commercial, two of the potential tests suggested by some. These sorts of subjective tests give trial lawyers a good payday but they leave ordinary people censoring themselves to avoid breaking the rules. By applying the Riley rule to email, we have a clear way to categorize as "commercial" any mail that says something like, "Cialisss i5 gOod bye s0me at this IP-address sucking URL." Please make the correct decision, in favor of freedom, and apply the Riley rule to the CAN-SPAM act.