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At 02:10 AM 9/12/96 -0400, Scott Finer  wrote:
>The courts have written plenty about commercial speech.  I feel no need to
>recount the particulars, except to say that the distinctions you make
>between freedoms of speech in a news vehicle vs in ads seem  rather
>convenient for people in the journalism profession.

Scott:

Although some might cloak it as such, the AOL v. Cyber Promotions dispute
isn't a Free Speech per se. There are three underlying issues integral to
the case: (1) Sure, corporations have a right of Free Speech under U.S. law,
but can they use unsolicited email as its medium? The answer is unclear. The
Federal government bans telemarketing by recorded voices but permits it by
live voices. (2) Is the AOL email system private or public? Internal company
email systems (i.e., xerox.com) are private, but is a commercially sold
email service private, as AOL Chairman & CEO Steve Case claims? It operates
similarly to a public communications utility but is not. And, (3) can AOL
act a priori and unilaterally on 'behalf' of its users without giving them
individual choice? You make an excellent analogy:

>Does the phone company have the right to shield its users by blockage from
>receiving calls from sources the phone company decides are unwanted?

Indeed, AOL jumped the gun. In blocking incoming email from Cyber
Promotions, AOL claimed the spams were unsolicited (which I believe to be
overwhelmingly true). But Cyber Promotions can easily counter that AOL never
bothered to offered any evidence that the email is unsolcited, not even a
user poll. And Cyber Promotions, simply by producing any positive AOL user
responses (even one) that it has gotten from its spams, could probably show
that there is a (tiny) minority of AOL users who want to see Cyber Promotion
emails, but who wouldn't have that choice if AOL blocks these emails. And
finally, as you pointed out, Cyber Promotion can make a case that AOL is a
competitor for advertising and may have commercial motives for blocking the
emails.

I agree with your point that users should be the ones who decide what they
receive. However, I doubt that for years we'll see technology offer anything
but a choice of either all unsolicited email or no unsolicited email. Note,
though, that in arguing your point for individual choice you invoked the
spammers shibboleth:

>E-mail account holders do not have to read anything they do not wish to
>read.   They can "change the channel" by deleting....it takes about as much
>effort as clicking a button on a remote.

And as much effort as hanging up the phone. But who wants to be constantly
receiving intrusive, unsolicited calls? Or emails?

_________________________________________________
Vin Crosbie         Freemark Communications, Inc.
        Director of Content Development
crosbie@freemark.com      125 CambridgePark Drive
(617) 492-6600 x211       Cambridge, MA 02140 USA
(617) 492-6622 fax        http://www.freemark.com
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