Nigerian Spammers Using TDD/TTY Telephone Relay Service

[Tim May]

On Wednesday, May 28, 2003, at 02:07  PM, John Kelsey wrote:

>
> This is aside from the first amendment problems (it's commercial 
> speech, so it may be possible to get around those problems, but who 
> really knows?) with antispam laws.
>


It's useful to remember that newspapers are commercial operations, 
e.g., the New York Times Corporation, and that the same arguments that 
commercial speech can be regulated would thus apply to 
newspapers....except this is not "regulate commerce" was intended to 
mean.

And of course book publishers and authors are engaging in commerce. By 
the logic that commercial speech is subject to regulation, very few 
things would be beyond the reach of censors and regulators.

(My informal understanding of the commerce clause is that it says only 
Congress may regulate tariffs and fees for commerce, that individual 
states may not do so. This was to preclude Virginia, say, from imposing 
a tariff on goods from Maryland. The commerce clause does not say that 
if a book publisher makes money ("commercial") that the words in the 
book can be regulated, censored, prior-restrained, etc. Of course, what 
has happened in the past several decades has been the extension of the 
commerce clause into areas it was not intended to go, such as laws 
restricting freedom of association (First A.) by claims that interstate 
commerce is affected by certain kinds of freedom of association, e.g., 
that a restaurant barring negroes would thus affect the purchase of 
napkins which would reduce business in nearby states which would affect 
interstate commerce. Of course, the same argument would imply that 
people should not be able to choose which motels to stay in or which 
restaurants to eat in or which books to buy, because all of these 
choices may affect "interstate commerce" and by the brain-damaged 
rulings of our courts only Congress may affect interstate commerce.)

The solution is of course to restate boldly that the commerce clause in 
the Constitution refers clearly to regulation of actual transport and 
shipment, of the sort between nations. Meaning, taxes and tariffs and 
import quotas and whatnot. And that the states do NOT have the power to 
act as nations do, that is, they have no power to regulate 
commerce...only Congress has that power.

All uses of the commerce clause involving limitations on free speech, 
freedom of religion, freedom of association, etc., would be ended.

--Tim May