Re: Responses to "Spam costs and questions" (long)
-----BEGIN PGP SIGNED MESSAGE----- In <Pine.GSO.3.95.970608053415.20770A-100000@well.com>, on 06/08/97 at 07:36 AM, Declan McCullagh <declan@well.com> said:
I don't think commercial speech should be treated as second-class speech. But my position is hardly surprising.
Well I think that there are some that would confuse the issue between 1st Amendment free speech and the issues surrounding fraud. Especially those in government who write the laws that regulate commercial speech. - -- - --------------------------------------------------------------- William H. Geiger III http://www.amaranth.com/~whgiii Geiger Consulting Cooking With Warp 4.0 Author of E-Secure - PGP Front End for MR/2 Ice PGP & MR/2 the only way for secure e-mail. OS/2 PGP 2.6.3a at: http://www.amaranth.com/~whgiii/pgpmr2.html - --------------------------------------------------------------- -----BEGIN PGP SIGNATURE----- Version: 2.6.3a Charset: cp850 Comment: Registered_User_E-Secure_v1.1b1_ES000000 iQCVAwUBM5qsdY9Co1n+aLhhAQHXDQP/XXKYn5xkMENOzSe4/stMvo4TwSYgJvUm 7Z7j4Zb+lEj6+eag923IGI50q42D+uBrjEDeepvTv09GDxfyAWLjqdx9uwW56KOe Fo6vvyQ5Rx0rOGtLJs7Sy+XqWrzpHOZdA5Gj1KRdt8shmMuXocKT7/Fo8Czjv36J LqcbJ4BZZHc= =6Yqy -----END PGP SIGNATURE-----
"William H. Geiger III" <whgiii@amaranth.com> writes:
In <Pine.GSO.3.95.970608053415.20770A-100000@well.com>, on 06/08/97 at 07:36 AM, Declan McCullagh <declan@well.com> said:
I don't think commercial speech should be treated as second-class speech. But my position is hardly surprising.
Well I think that there are some that would confuse the issue between 1st Amendment free speech and the issues surrounding fraud. Especially those in government who write the laws that regulate commercial speech.
Sure - it's their means of livelyhood :-) Now, "fraud" suggests that the onus is on the gumbint to prove that the claim is false. However if I were to market "borshch" by mail order as a cure for cancer, I'd be asked to "prove" in some ridiculous unscientific ways that it does indeed cure cancer - spending $100M, which only the few large drug companies can affort - suits them and the FDA just fine. Troll: and how about them proposed restrictions on tobacco advertising... --- Dr.Dimitri Vulis KOTM Brighton Beach Boardwalk BBS, Forest Hills, N.Y.: +1-718-261-2013, 14.4Kbps
Troll: and how about them proposed restrictions on tobacco advertising...
Troll-Response: The UK government has recently proposed a ban on all tobacco advertising (should be in place within a few months) including sponsorship of sport etc. Time to dust of the barbeque, we`re gonna have us a statist roast ;-)... Datacomms Technologies data security Paul Bradley, Paul@fatmans.demon.co.uk Paul@crypto.uk.eu.org, Paul@cryptography.uk.eu.org Http://www.cryptography.home.ml.org/ Email for PGP public key, ID: FC76DA85 "Don`t forget to mount a scratch monkey"
Paul Bradley <paul@fatmans.demon.co.uk> writes:
Troll: and how about them proposed restrictions on tobacco advertising...
Troll-Response: The UK government has recently proposed a ban on all tobacco advertising (should be in place within a few months) including sponsorship of sport etc. Time to dust of the barbeque, we`re gonna have us a statist roast ;-)...
In China and thereabouts (Mongolia, Malaysia...) tobacco companies are sponsoring sports events and creating professional sports leagues where otherwise the market wouldn't bear them. --- Dr.Dimitri Vulis KOTM Brighton Beach Boardwalk BBS, Forest Hills, N.Y.: +1-718-261-2013, 14.4Kbps
On Sun, Jun 08, 1997 at 07:51:37AM -0500, William H. Geiger III wrote:
In <Pine.GSO.3.95.970608053415.20770A-100000@well.com>, on 06/08/97 at 07:36 AM, Declan McCullagh <declan@well.com> said:
I don't think commercial speech should be treated as second-class speech. But my position is hardly surprising.
Well I think that there are some that would confuse the issue between 1st Amendment free speech and the issues surrounding fraud. Especially those in government who write the laws that regulate commercial speech.
The prospectus is a legal document -- part of the contract between the mutual fund and the customer. So, the question is, should there be any legal constraints on the "speech" in contracts? Can I sign a contract, and later be able to say "Oh, *that* clause! That was just a *joke*"? -- Kent Crispin "No reason to get excited", kent@songbird.com the thief he kindly spoke... PGP fingerprint: B1 8B 72 ED 55 21 5E 44 61 F4 58 0F 72 10 65 55 http://songbird.com/kent/pgp_key.html
The prospectus is a legal document -- part of the contract between the mutual fund and the customer.
So, the question is, should there be any legal constraints on the "speech" in contracts?
Of course, a contract is a binding document, that does not imply that there should be any legal constraint on the speech within that contract. If I sign a contract which says that I must kill myself on demand, and the penalty for breach of contract in this case is a fine of say $5000, I am certainly stupid if I sign such a contract, assuming that is that I am logical and not suicidal, I must later decide if I value my life at over $5000, I assure you, this is not a difficult question to answer ;-). The point is that breach of contract shouldn`t be a criminal offence, it is a civil offence, and the penalties for breach of contract should be agreed during negotiation of that contract. Therefore, I must evaluate for myself if I consider the contract to be reasonable and if I consider the penalties for breach of that contract too great to risk incurring such penaties. There is no reason to suggest that contractural speech is protected in this fashion, as it is an agreement and not pure speech.
Can I sign a contract, and later be able to say "Oh, *that* clause! That was just a *joke*"?
This is a straw man, there is no way you can equate contractural speech and other forms of speech, one takes the form of an agreement, the civil crime commited on breach of contract is not a form of speech, it is an overt act which breaks that contract. Datacomms Technologies data security Paul Bradley, Paul@fatmans.demon.co.uk Paul@crypto.uk.eu.org, Paul@cryptography.uk.eu.org Http://www.cryptography.home.ml.org/ Email for PGP public key, ID: FC76DA85 "Don`t forget to mount a scratch monkey"
Paul Bradley <paul@fatmans.demon.co.uk> writes:
The prospectus is a legal document -- part of the contract between the mutual fund and the customer.
So, the question is, should there be any legal constraints on the "speech" in contracts?
Of course, a contract is a binding document, that does not imply that there should be any legal constraint on the speech within that contract. If I sign a contract which says that I must kill myself on demand, and the penalty for breach of contract in this case is a fine of say $5000, I am certainly stupid if I sign such a contract, assuming that is that I am logical and not suicidal, I must later decide if I value my life at over $5000, I assure you, this is not a difficult question to answer ;-).
I don't know how they phrase it in the UK, but in the US such a contract would violate "public policy" and is therefore unenforceable.
The point is that breach of contract shouldn`t be a criminal offence, it is a civil offence, and the penalties for breach of contract should be agreed during negotiation of that contract. Therefore, I must evaluate for myself if I consider the contract to be reasonable and if I consider the penalties for breach of that contract too great to risk incurring such penaties. There is no reason to suggest that contractural speech is protected in this fashion, as it is an agreement and not pure speech.
Can I sign a contract, and later be able to say "Oh, *that* clause! That was just a *joke*"?
This is a straw man, there is no way you can equate contractural speech and other forms of speech, one takes the form of an agreement, the civil crime commited on breach of contract is not a form of speech, it is an overt act which breaks that contract.
That's a very good point. If I commit assault/battery on Kent, the gubmint supposedly has jurisdiction because I've violated "king's peace". If I advertise that "borshch cures cancer" and Kent buys some borshch from me, and dies from cancer anyway, then what's the basis for the gubmint's involvement? --- Dr.Dimitri Vulis KOTM Brighton Beach Boardwalk BBS, Forest Hills, N.Y.: +1-718-261-2013, 14.4Kbps
-----BEGIN PGP SIGNED MESSAGE----- In <JumZ8D35w165w@bwalk.dm.com>, on 06/08/97 at 12:11 PM, dlv@bwalk.dm.com (Dr.Dimitri Vulis KOTM) said:
If I advertise that "borshch cures cancer" and Kent buys some borshch from me, and dies from cancer anyway, then what's the basis for the gubmint's involvement?
Fraud, which is just a special case of theift (theift by deception). What you are selling is not borshch but a cure for cancer (which happens to be borshch). Since your cure does not work this is seen as fraud which is theift and thus the government steps in. No if some disintrested 3rd party claims that borshch cures cancer, and you sell borshch, there is no fraud if the borshch does not cure cancer as you are just selling borshch which is all the you claimed it was. The 3rd party is not guilty of fraud as they have not entered into any contractual agreement with the buyer of the borshch. - -- - --------------------------------------------------------------- William H. Geiger III http://www.amaranth.com/~whgiii Geiger Consulting Cooking With Warp 4.0 Author of E-Secure - PGP Front End for MR/2 Ice PGP & MR/2 the only way for secure e-mail. OS/2 PGP 2.6.3a at: http://www.amaranth.com/~whgiii/pgpmr2.html - --------------------------------------------------------------- -----BEGIN PGP SIGNATURE----- Version: 2.6.3a Charset: cp850 Comment: Registered_User_E-Secure_v1.1b1_ES000000 iQCVAwUBM5rgX49Co1n+aLhhAQG9bwP/Q46+dwF77JSAK0dwzWNsXR49eh+eLQjN DJIEt+kZ3TFygLSSPGnqK7U7wpwXOhyTRrAEW9HqtWMph0Qu+EwqOGcKfwFmIptL D0Qc/lGAUZ6ohqHDVSBDLLLyCSFe4Ra4YYRDHbpLp0QNsK9pq/B++YDWKPEHCK2K UR0l/HrYm5g= =NVy0 -----END PGP SIGNATURE-----
At 5:51 AM -0700 6/8/97, William H. Geiger III wrote:
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In <Pine.GSO.3.95.970608053415.20770A-100000@well.com>, on 06/08/97 at 07:36 AM, Declan McCullagh <declan@well.com> said:
I don't think commercial speech should be treated as second-class speech. But my position is hardly surprising.
Well I think that there are some that would confuse the issue between 1st Amendment free speech and the issues surrounding fraud. Especially those in government who write the laws that regulate commercial speech.
The mistake has been to extend "fraud" laws to non-contract situations, e.g., ordinary speech (as distinguished from contracts). If the Catholics say drinking the blood of JC and eating a piece of his flesh (aka, "Jesus sashimi") will get you into Heaven, is this fraud or not? In the increasingly popular notion of fraud, sure it is. It is a statement or assurance which is almost certainly false. But then, aren't all religions frauds? Contracts, with clearly stated conditions and with judgeable or falsifiable/testable conditionals, are a matter for the courts (private courts, in fact), but vague promises, advertisements, propaganda, etc. are not. Clear now? --Tim May There's something wrong when I'm a felon under an increasing number of laws. Only one response to the key grabbers is warranted: "Death to Tyrants!" ---------:---------:---------:---------:---------:---------:---------:---- Timothy C. May | Crypto Anarchy: encryption, digital money, tcmay@got.net 408-728-0152 | anonymous networks, digital pseudonyms, zero W.A.S.T.E.: Corralitos, CA | knowledge, reputations, information markets, Higher Power: 2^1398269 | black markets, collapse of governments. "National borders aren't even speed bumps on the information superhighway."
-----BEGIN PGP SIGNED MESSAGE----- In <v03102802afc0e602d172@[207.167.93.63]>, on 06/08/97 at 03:48 PM, Tim May <tcmay@got.net> said:
At 5:51 AM -0700 6/8/97, William H. Geiger III wrote:
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In <Pine.GSO.3.95.970608053415.20770A-100000@well.com>, on 06/08/97 at 07:36 AM, Declan McCullagh <declan@well.com> said:
I don't think commercial speech should be treated as second-class speech. But my position is hardly surprising.
Well I think that there are some that would confuse the issue between 1st Amendment free speech and the issues surrounding fraud. Especially those in government who write the laws that regulate commercial speech.
The mistake has been to extend "fraud" laws to non-contract situations, e.g., ordinary speech (as distinguished from contracts).
If the Catholics say drinking the blood of JC and eating a piece of his flesh (aka, "Jesus sashimi") will get you into Heaven, is this fraud or not?
In the increasingly popular notion of fraud, sure it is. It is a statement or assurance which is almost certainly false. But then, aren't all religions frauds?
Contracts, with clearly stated conditions and with judgeable or falsifiable/testable conditionals, are a matter for the courts (private courts, in fact), but vague promises, advertisements, propaganda, etc. are not.
Clear now?
Well I would have to dissagre. Advertisements should be covered under contract law as verbal contracts. If I advertise that "X" does "Y" but it really does "Z" then this is clearly fraudulent behavior. The difficulty is in proving that "X" does "Z" and not "Y" but that is an exercise left to the civil courts. - -- - --------------------------------------------------------------- William H. Geiger III http://www.amaranth.com/~whgiii Geiger Consulting Cooking With Warp 4.0 Author of E-Secure - PGP Front End for MR/2 Ice PGP & MR/2 the only way for secure e-mail. OS/2 PGP 2.6.3a at: http://www.amaranth.com/~whgiii/pgpmr2.html - --------------------------------------------------------------- -----BEGIN PGP SIGNATURE----- Version: 2.6.3a Charset: cp850 Comment: Registered_User_E-Secure_v1.1b1_ES000000 iQCVAwUBM5tBtI9Co1n+aLhhAQHgOQQAnlWK4zx73nDMjx0e794RgW9Gu9QiFZLY 9fxxp8O2jX/Udky5sD6ojtQedvWQu39P05YLtf/UkUZfPsd27dbNhEiuPNEQxFPN 6IId9BJ2ts+fc+ZeWEzNdnEXjJ9Yar/9ysIrt2fC2nfv1BYUs57uinU9kAj0bO30 Jbek/gI+sSg= =ZMKe -----END PGP SIGNATURE-----
At 5:27 PM -0700 6/8/97, Tim May wrote:
(Oh, and it almost goes without saying that the same "lies" William and others are so worried about in "commercial" speech happen all the time in non-commerical speech. For every example of where commercial speech involves lies or fraud, I can find similar or fully equivalent non-commercial examples, ranging from lies like "I love you" to get a partner into bed to deliberate misstatements to mislead an opponent. Why should such "lies" be protected while putatively commercial speech is to be subjected to an increasing number of limitations?)
The only justification I can think of off hand is that a presumption of truth may make for more efficient markets. On the other hand, it also has very bad effects when applied to political speech. ------------------------------------------------------------------------- Bill Frantz | The Internet was designed | Periwinkle -- Consulting (408)356-8506 | to protect the free world | 16345 Englewood Ave. frantz@netcom.com | from hostile governments. | Los Gatos, CA 95032, USA
Bill Frantz <frantz@netcom.com> writes:
At 5:27 PM -0700 6/8/97, Tim May wrote:
(Oh, and it almost goes without saying that the same "lies" William and others are so worried about in "commercial" speech happen all the time in non-commerical speech. For every example of where commercial speech involves lies or fraud, I can find similar or fully equivalent non-commercial examples, ranging from lies like "I love you" to get a partner into bed to deliberate misstatements to mislead an opponent. Why should such "lies" be protected while putatively commercial speech is to be subjected to an increasing number of limitations?)
The only justification I can think of off hand is that a presumption of truth may make for more efficient markets. On the other hand, it also has very bad effects when applied to political speech.
I'm inclined to argue that "presumption of truth" and "implied warranty of merchantability" actually lead to LESS efficient markets, but I'm too tried tonite. If anyone's interesting, please ping me later. :-) --- Dr.Dimitri Vulis KOTM Brighton Beach Boardwalk BBS, Forest Hills, N.Y.: +1-718-261-2013, 14.4Kbps
At 4:14 PM -0700 6/8/97, William H. Geiger III wrote:
Well I would have to dissagre. Advertisements should be covered under contract law as verbal contracts. If I advertise that "X" does "Y" but it really does "Z" then this is clearly fraudulent behavior.
When I was growing up, advertisements that a product would make one attractive to women, for example, were treated as marketing jive. And we were all taught the old saw, "If Johhny told you to jump off a cliff, would you?" (This along with "sticks and stones" formed the basis of my proto-libertarian view.) An advertisement is a tease, not a promise. If a advertisement for a Pentium says it will run Macintosh software and run it at 600 Mhz, the proper response is skepticism, not demanding a law be passed to stop such advertisements. The key lies in proper contracts, not in regulating speech. (Oh, and it almost goes without saying that the same "lies" William and others are so worried about in "commercial" speech happen all the time in non-commerical speech. For every example of where commercial speech involves lies or fraud, I can find similar or fully equivalent non-commercial examples, ranging from lies like "I love you" to get a partner into bed to deliberate misstatements to mislead an opponent. Why should such "lies" be protected while putatively commercial speech is to be subjected to an increasing number of limitations?) --Tim May There's something wrong when I'm a felon under an increasing number of laws. Only one response to the key grabbers is warranted: "Death to Tyrants!" ---------:---------:---------:---------:---------:---------:---------:---- Timothy C. May | Crypto Anarchy: encryption, digital money, tcmay@got.net 408-728-0152 | anonymous networks, digital pseudonyms, zero W.A.S.T.E.: Corralitos, CA | knowledge, reputations, information markets, Higher Power: 2^1398269 | black markets, collapse of governments. "National borders aren't even speed bumps on the information superhighway."
-----BEGIN PGP SIGNED MESSAGE----- In <v03102804afc0fc8e1db0@[207.167.93.63]>, on 06/08/97 at 05:27 PM, Tim May <tcmay@got.net> said:
At 4:14 PM -0700 6/8/97, William H. Geiger III wrote:
Well I would have to dissagre. Advertisements should be covered under contract law as verbal contracts. If I advertise that "X" does "Y" but it really does "Z" then this is clearly fraudulent behavior.
When I was growing up, advertisements that a product would make one attractive to women, for example, were treated as marketing jive. And we were all taught the old saw, "If Johhny told you to jump off a cliff, would you?" (This along with "sticks and stones" formed the basis of my proto-libertarian view.)
An advertisement is a tease, not a promise. If a advertisement for a Pentium says it will run Macintosh software and run it at 600 Mhz, the proper response is skepticism, not demanding a law be passed to stop such advertisements.
The key lies in proper contracts, not in regulating speech.
(Oh, and it almost goes without saying that the same "lies" William and others are so worried about in "commercial" speech happen all the time in non-commerical speech. For every example of where commercial speech involves lies or fraud, I can find similar or fully equivalent non-commercial examples, ranging from lies like "I love you" to get a partner into bed to deliberate misstatements to mislead an opponent. Why should such "lies" be protected while putatively commercial speech is to be subjected to an increasing number of limitations?)
So what you are saying that if I call up Widgits, Inc. and order product "X" that they advertizes does "Y". They instead send me product "X" that does "Z" not "Y" then I should have no recource? I should atleast be able to get my money back as they have not sold me the product that they claimed to be selling (clear violation of the "contract" between buyer and seller). I have no problem with them saying their product does "Y" but if I spend my hard earned money on it then it best do what they say it does. - -- - --------------------------------------------------------------- William H. Geiger III http://www.amaranth.com/~whgiii Geiger Consulting Cooking With Warp 4.0 Author of E-Secure - PGP Front End for MR/2 Ice PGP & MR/2 the only way for secure e-mail. OS/2 PGP 2.6.3a at: http://www.amaranth.com/~whgiii/pgpmr2.html - --------------------------------------------------------------- -----BEGIN PGP SIGNATURE----- Version: 2.6.3a Charset: cp850 Comment: Registered_User_E-Secure_v1.1b1_ES000000 iQCUAwUBM5uCfo9Co1n+aLhhAQG6XgP3f67O8YEkHd+e2uXJAfEB77of86QeOmhI AOkK3tjVEejkqsJZghoda2FnKC/xmdUxJut28zkGs+6r6Ua5sxc8GL72tqlESF5V vtnRIq1ushH4plUj/pjAzFI8G78ByNNg1dGpVIWsXeZSKwwFNNp39ANufnSf0osn q3Ts0DJM1Q== =qVti -----END PGP SIGNATURE-----
"William H. Geiger III" <whgiii@amaranth.com> writes:
So what you are saying that if I call up Widgits, Inc. and order product "X" that they advertizes does "Y". They instead send me product "X" that does "Z" not "Y" then I should have no recource? I should atleast be able to get my money back as they have not sold me the product that they claimed to be selling (clear violation of the "contract" between buyer and seller).
Romans firmly believed in "caveat emptor" and had no implied warranty of merchantability.
I have no problem with them saying their product does "Y" but if I spend my hard earned money on it then it best do what they say it does.
The cypherpunk solution is to make sure they can't use your money until you've assertained that the product does what you want it to - and I don't necessarily mean e-cash. I occasionally buy shit by mail order on a credit card. A few times I was not happy with the purchase, and had to appeal to the card issuer as an arbiter. I was happy with the results. Here both I and the merchant explicitly agree that the card issuer will be the first arbiter in the dispute - the buyer offers the card, the seller accepts it. --- Dr.Dimitri Vulis KOTM Brighton Beach Boardwalk BBS, Forest Hills, N.Y.: +1-718-261-2013, 14.4Kbps
At 7:57 PM -0700 6/8/97, William H. Geiger III wrote:
So what you are saying that if I call up Widgits, Inc. and order product "X" that they advertizes does "Y". They instead send me product "X" that does "Z" not "Y" then I should have no recource? I should atleast be able to get my money back as they have not sold me the product that they claimed to be selling (clear violation of the "contract" between buyer and seller).
Contracts in a free society are a complicated issue. I suggest reading some of the usual literature on the subject, including Benson's "The Enterprise of Law," Friedman's "The Machinery of Freedom, "Reason" magazine, etc. In your hypo above, even you are talking about after the fact redress, or contract arbitration. This is quite different from the increasing regulation of commercial speech in blanket forms (such as no liquor advertising within X yards of schools, no cigarette advertising without extensive mandated warnings, limitations on claims for medical products, etc.) In the hypo of ordering a product, an implicit contract is made. Phone orders are for the convenience of consumers like ourselves; corporations usually place "purchase orders," and these P.O.s almost always contain performance requirements. End consumers who are not happy buying from "PCs-R-Us" because they ordered a 200 MHz Pentium and instead received a 66 MHz 486 machine have plenty of recourses. They can almost certainly get their money back from the vendor (without their being laws on speech), they can call their credit card company and cancel the sale, they can take the matter to court or arbitration (not on free speech grounds, of course), and so on. Ultimately, "PCs-R-Us" would last for a short time in a competitive environment, and savvy buyers would avoid them. One of the best protections against the kind of hypothetical fraud William Geiger hypothesizes is _reputation_. Claiming that Big Brother needs to have laws limiting the speech of "commercial" speakers is not the right way to go. (And it wasn't even common until this century, especially the last 20 years.) --Tim May There's something wrong when I'm a felon under an increasing number of laws. Only one response to the key grabbers is warranted: "Death to Tyrants!" ---------:---------:---------:---------:---------:---------:---------:---- Timothy C. May | Crypto Anarchy: encryption, digital money, tcmay@got.net 408-728-0152 | anonymous networks, digital pseudonyms, zero W.A.S.T.E.: Corralitos, CA | knowledge, reputations, information markets, Higher Power: 2^1398269 | black markets, collapse of governments. "National borders aren't even speed bumps on the information superhighway."
At 9:06 AM -0700 6/10/97, Bill Frantz wrote:
At 5:27 PM -0700 6/8/97, Tim May wrote:
(Oh, and it almost goes without saying that the same "lies" William and others are so worried about in "commercial" speech happen all the time in non-commerical speech. For every example of where commercial speech involves lies or fraud, I can find similar or fully equivalent non-commercial examples, ranging from lies like "I love you" to get a partner into bed to deliberate misstatements to mislead an opponent. Why should such "lies" be protected while putatively commercial speech is to be subjected to an increasing number of limitations?)
The only justification I can think of off hand is that a presumption of truth may make for more efficient markets. On the other hand, it also has very bad effects when applied to political speech.
I was speaking of justifications in the Constitution. There is of course a little phrase about "the power to regulate commerce," by which was meant (until this century) the power to set tariffs and a very few other things related to commerce. This century, though, this clause has been used to to what I think are severely unconstitutional things, like place restrictions on certain items (tobacco, alchohol, drugs). And advertising. And the airwaves. And so on. A pernicious reach by Congress into the choices of vendors and consumers. As for Bill's point that a mandate on truth would possibly make for more efficient markets, I doubt it. Who determines truth? And a populace which believes everything it is told must be true because the government requires truth will necessarily lose critical thinking abilities. --Tim May There's something wrong when I'm a felon under an increasing number of laws. Only one response to the key grabbers is warranted: "Death to Tyrants!" ---------:---------:---------:---------:---------:---------:---------:---- Timothy C. May | Crypto Anarchy: encryption, digital money, tcmay@got.net 408-728-0152 | anonymous networks, digital pseudonyms, zero W.A.S.T.E.: Corralitos, CA | knowledge, reputations, information markets, Higher Power: 2^1398269 | black markets, collapse of governments. "National borders aren't even speed bumps on the information superhighway."
-----BEGIN PGP SIGNED MESSAGE----- On Sun, 8 Jun 1997 15:48:58 -0700, you wrote:
At 5:51 AM -0700 6/8/97, William H. Geiger III wrote:
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In <Pine.GSO.3.95.970608053415.20770A-100000@well.com>, on 06/08/97 at 07:36 AM, Declan McCullagh <declan@well.com> said:
I don't think commercial speech should be treated as second-class speech. But my position is hardly surprising.
Well I think that there are some that would confuse the issue between 1st Amendment free speech and the issues surrounding fraud. Especially those in government who write the laws that regulate commercial speech.
The mistake has been to extend "fraud" laws to non-contract situations, e.g., ordinary speech (as distinguished from contracts).
This is very true. We now live in a society that expects to be 'protected' from everything, including their own ignorance, by Big Brother. Free Speech is just that -- free -- and should be accepted as such. We have various private organizations that have made it their business to oversee the truthfulness of product advertising and quality and this is how it should be. I believe that we have actually given up some of our free speech rights in order to be protected against the 'big bad companies looking to rip you off'. This has resulted in the government making a grab for more and more of our rights, the building of a buearucratic infrastructure to support this grab, and a seperate society back there in Wasington DC. Brian -----BEGIN PGP SIGNATURE----- Version: 5.0 beta Charset: noconv iQCVAwUBM5wRWKQxGtxXsXypAQG9DAP/dKydBwBI9JZ40nuJv0hDsWlytQRwSUPq 9tgxjTr7QC+qRJ4mYzikIvcdWKISk203sD4BsXbC83fW9p8zQuaN9RagMTUBKfOw yM0Pc6lyfv/G6IYqxt71vWnzHBHCrcGamFQQXASd1QzKSvUUHH/ealuBCuPVZYm3 GWH1YrtzMiI= =Ht6r -----END PGP SIGNATURE----- ---------------------------------------------------------------------------------- Brian C. Lane http://www.eskimo.com/~nexus KC7TYU ------------------ 96B9 C123 5C90 BECC 6A1F 7DC6 4F2B A26E --------------------
nexus@eskimo.com (Brian Lane) writes:
The mistake has been to extend "fraud" laws to non-contract situations, e.g., ordinary speech (as distinguished from contracts).
This is very true. We now live in a society that expects to be 'protected' from everything, including their own ignorance, by Big Brother. Free Speech is just that -- free -- and should be accepted as such. We have various private organizations that have made it their business to oversee the truthfulness of product advertising and quality and this is how it should be.
Cool - can I sue George "no new taxes" Bish for breach of contract?
I believe that we have actually given up some of our free speech rights in order to be protected against the 'big bad companies looking to rip you off'. This has resulted in the government making a grab for more and more of our rights, the building of a buearucratic infrastructure to support this grab, and a seperate society back there in Wasington DC.
Very good point. Again, in various traditional Europan and various Asian legal systems, lying per se is never a crime. Lying while swearing by a deity or a king is a crime. Lying in court while under oath to various local deities may be perjury. Lying in a written document endorsed by the king may be fraud. Claiming that the borshch (borscht) one is selling is the miracle cure for all diseases and the secret of eternal youth on the basis of one's own reputation is OK. Claiming that and also claiming FDA endorsement is fraud if the borshch is not really endorsed by the FDA. If a patient wants to buy non-FDA-endorsed medicine, it's between the buyer and the seller. --- Dr.Dimitri Vulis KOTM Brighton Beach Boardwalk BBS, Forest Hills, N.Y.: +1-718-261-2013, 14.4Kbps
On Sun, Jun 08, 1997 at 06:14:59PM -0500, William H. Geiger III wrote:
In <v03102802afc0e602d172@[207.167.93.63]>, on 06/08/97 at 03:48 PM, Tim May <tcmay@got.net> said: [...]
Contracts, with clearly stated conditions and with judgeable or falsifiable/testable conditionals, are a matter for the courts (private courts, in fact), but vague promises, advertisements, propaganda, etc. are not.
Clear now?
Well I would have to dissagre. Advertisements should be covered under contract law as verbal contracts. If I advertise that "X" does "Y" but it really does "Z" then this is clearly fraudulent behavior.
The difficulty is in proving that "X" does "Z" and not "Y" but that is an exercise left to the civil courts.
I agree that advertisements are in many cases a verbal contract ("does 0-60mph in 5 seconds flat"), but this seems to be intrinsically messy. There aren't any simple, clear-cut rules that separate advertising from other speech. But the fundamental principle that says "redress is available for speech that causes harm" seems fairly clean. That cuts across advertising, salespersons lies, libel/slander, yelling "fire" in a theater -- a whole gamut of free speech issues. Spam falls under such a rule, as well. Of course, the issue of prior restraint is orthogonal to this rule... -- Kent Crispin "No reason to get excited", kent@songbird.com the thief he kindly spoke... PGP fingerprint: B1 8B 72 ED 55 21 5E 44 61 F4 58 0F 72 10 65 55 http://songbird.com/kent/pgp_key.html
At 7:11 PM -0700 6/8/97, Kent Crispin wrote:
But the fundamental principle that says "redress is available for speech that causes harm" seems fairly clean. That cuts across advertising, salespersons lies, libel/slander, yelling "fire" in a theater -- a whole gamut of free speech issues. Spam falls under such a rule, as well. Of course, the issue of prior restraint is orthogonal to this rule...
This "fundamental principle" is not nearly as clean or as fundamental as you represent. Much speech indisputably "causes harm." Some harm is economic, some harm is pyschogical, some harm is even physical. Much of this speech remains protected, even in these times where the Constitution has suffered decay. For example, one of the tests for libel and slander, to name an example where "harm" is usually claimed, is "knowingly false." And in commercial areas, much "harm" is done by businesses to other businesses, and yet this is (properly) protected. When a business advertises its lower prices, or cites endorsements from luminaries, this is "speech." If another business is "harmed" by this speech, is there "redress"? No. And there should not be. Harm is a name for various adverse developments. Many if not most of them are closely linked to speech issues. Legislating harm away is not consistent with a free and open society. The example of "falsely shouting "Fire!" in a crowded theater" (I inserted the word "falsely" as this is often left out by folks, and is of course central to the point) is well-trod ground. The SC Justice who used this later said he wished he'd never used the expression, as it was used by all manner of people seeking to limit speech. Spam is a name for "unwanted communications." The proper solution is technological/ontological, e.g., metering. It is a defect of our current e-mail model that one can deliver a million pieces of e-mail for no cost. This will be fixed, and is a solution vastly preferable to having a government agency decide which communications are permissable and which are not. (Many of these issues are mooted by crypto anarchy, of course.) --Tim May There's something wrong when I'm a felon under an increasing number of laws. Only one response to the key grabbers is warranted: "Death to Tyrants!" ---------:---------:---------:---------:---------:---------:---------:---- Timothy C. May | Crypto Anarchy: encryption, digital money, tcmay@got.net 408-728-0152 | anonymous networks, digital pseudonyms, zero W.A.S.T.E.: Corralitos, CA | knowledge, reputations, information markets, Higher Power: 2^1398269 | black markets, collapse of governments. "National borders aren't even speed bumps on the information superhighway."
On Mon, Jun 09, 1997 at 12:03:52PM -0700, Tim May wrote:
At 7:11 PM -0700 6/8/97, Kent Crispin wrote:
But the fundamental principle that says "redress is available for speech that causes harm" seems fairly clean. That cuts across advertising, salespersons lies, libel/slander, yelling "fire" in a theater -- a whole gamut of free speech issues. Spam falls under such a rule, as well. Of course, the issue of prior restraint is orthogonal to this rule...
This "fundamental principle" is not nearly as clean or as fundamental as you represent.
[Several good examples deleted.]
No. And there should not be. Harm is a name for various adverse developments. Many if not most of them are closely linked to speech issues. Legislating harm away is not consistent with a free and open society.
A good point. However, I only used one telegraphic sentence to express my thought, not an essay such as you would write. I don't have time to write an essay, but let me try to add at least a little more. Hopefully you can fill in the blanks. Clearly, in this context "harm" would be actually defined through laws, and some other term should be used. Let me qualify it as "unfair harm", realizing that it's still probably not a good term. "Unfair harm" (as I imagine this legal infrastructure to be) cannot occur if it is a result of a consciously accepted risk. Thus, for example, if you engage in the game of business you consciously accept the rules and risks of the game. A competitor who advertises better prices is not creating "unfair harm". The point of this exercise is to move the debate from what kind of speech is protected to a debate about what constitutes "unfair harm". That is, all speech is free, period. If you cause "unfair harm", however, you are responsible for it, whether it comes from speech or from action. So, for example, rather than debating whether "true speech" is protected, we ask whether a particular case of "true speech" caused "unfair harm". In questionable cases we don't agonize over whether some artificial class of speech is free -- instead we argue over whether the harm was "fair" or not. Why change the terms of the debate? Because it restores freedom of speech as an absolute, and places all the fuzzy stuff somewhere else. [...]
Spam is a name for "unwanted communications." The proper solution is technological/ontological, e.g., metering. It is a defect of our current
["ontological"? What do you mean by that? (Ontology -- the study of the nature of existence?]
e-mail model that one can deliver a million pieces of e-mail for no cost.
I don't believe that metering is a solution. It has clearly not worked for physical mail -- I make a moderate effort to keep myself off mailing lists, but more than half of my p-mail is junk. That's worse by far than my email.
This will be fixed, and is a solution vastly preferable to having a government agency decide which communications are permissable and which are not.
I don't favor a government agency. I think other technologies than metering will be necessary.
(Many of these issues are mooted by crypto anarchy, of course.)
Oh sure. -- Kent Crispin "No reason to get excited", kent@songbird.com the thief he kindly spoke... PGP fingerprint: B1 8B 72 ED 55 21 5E 44 61 F4 58 0F 72 10 65 55 http://songbird.com/kent/pgp_key.html
participants (7)
-
Bill Frantz -
dlv＠bwalk.dm.com -
Kent Crispin -
nexus＠eskimo.com -
Paul Bradley -
Tim May -
William H. Geiger III