Etiquette for E-mail lists: the Freedom of Speech issue
$Revision: 1.11 $
This summary is by a non-lawyer for non-lawyers,
and is intended to provide the reader with intuitions about
why the dividing line has been drawn where it has.
- Conflicting rights:
there are few absolute rights;
most rights, if applied too broadly, impinge on other rights.
Well-known statements of principle:
The right of free speech does not entail the right
to compel people to listen
(to compel an audience).
The typical freedom-of-speech case revolves around establishing
an appropriate balancing point between someone's desire to present
and the desire of others to not be forced to listen.
- The right of free speech does not protect
yelling "fire" in a crowded theater.
- One person's rights end where the next person's nose begins.
Protected/unprotected speech is a common way of referring to situations
that are/aren't covered (protected) by the right of free speech.
- Use of analogies:
Issues of freedom on speech are typically argued by using analogies
to situations that have already be decided and widely accepted.
Typically multiple analogies are used to bracket the new situation
between ones that have been decided.
I will present a series of analogies to iteratively
narrow in on where I see our e-mail list fitting in.
- "Man on soap box in public park":
This is the basic case of protected speech.
- Minimal imposition on people passing by:
they can choose to not listen, or even give him a wide berth.
- However, he cannot pursue them:
This distinction can be seen in decisions that
simple panhandling is protected speech,
but activities commonly labeled
"aggressive panhandling" are not.
- Consider, does his right to speak extend to
his climbing onto a table being used for a family picnic
in that same park,
or does it extend to usurping home plate during
a softball game as his platform.
part of the definition of pornography is that it is material
that the general community finds offensive.
Hence, the purveyors of porn must operate under the default assumption
that people do not want to see/hear it,
and it can be displayed only
where it will be seen by people who have made an explicit decision
to see it.
- Adult Bookshop, but not general bookshop.
- Display racks inside Adult Bookstore,
but not where it would be seen (inadvertently)
by a passerby outside
(for example, the rack cannot be placed in a window
facing a public street).
- Background: Junk FAX is a variant of junk mail:
someone sends unsolicited materials (typically advertisements)
to a FAX machine.
Minor problem if you receive an occasional unsolicited item,
but some FAX machines were receiving so much junk FAX
that the recipients had problems sending and receiving
- Unprotected speech: judged to impose too much burden on owner of FAX machine
- Consumption of resources: paper, but especially connect time
- The analogue of walking away from "the man on a soapbox"
was also too burdensome:
- The typical FAX machine runs in unattended or semi-attended mode:
someone picks up (and distributes) messages after they have
arrived, often after a significant delay.
- To screen out unwanted FAXes, the FAX's owner would have to
have a full-time operator who would read FAXes as they arrived
in order to decide whether to receive them in full or cut them
off (hang up the connection).
- Explicitly refusing a FAX would be ineffective.
The sending FAX machine would not be able to tell that you
chose not to receive its transmission:
it would see your breaking the connection as a normal transmission
error and would automatically resend the FAX
(after a preprogrammed interval).
Aside: Automatic resending of unwanted materials is akin to
As with Junk FAX, this is judged to be unprotected speech
because of the burden imposed on the audience.
The imposition of having to answer the phone
is fundamentally different from passing within hearing range of
"the man on a soapbox.".
You have to
- stop what you are doing,
- go to the phone, and
- listen to enough of the spiel to know that you don't want to hear more
Meetings: Agendas and Procedures
I know of no serious legal challenge to the right of groups
to constrain speech in meetings through the use of agendas and
procedural rules, for example, Robert's Rules of Order.
(Individual rules may be challenged, but that is a different matter).
- People who come to the meeting
may well not be interested in all items on the agenda,
but the agenda allows them to make a prior, informed decision
on whether or not to attend.
In choosing to attend, they agree to sit through those items
on the agenda that are not of interest to them.
However, if people are allowed to speak on any item they chose,
then they would have a captive audience:
people who had not bargained to listen to those topics,
but who cannot leave the meeting without sacrificing the opportunity
to participate in the items they are interested in.
- Agendas and procedural rules allow the group to decide on
what are suitable topics,
formats for discussions,
time limits on topics and speakers,
and other limits on speakers
(for example, whether they may speak more than once).
If an item is not on the agenda,
the assumption should be that the audience does not
consent to listen to it
(analogous to the situation for pornography).
- Public bodies often have an agenda slot for members of the public
to speak on any item not on the agenda.
Typically there is a time limit on each speaker and
a total time for all speakers.
On the agenda of Palo Alto City Council,
this is called Oral Communications.
E-mail Lists (circa 2002, needs updating)
An e-mail list involves a combination of characteristics of the above
(otherwise, I wouldn't have wasted your time reading them).
- Basic problem with using analogies for e-mail lists:
people use e-mail in
very different ways
and in very different settings.
An analogy that is a good match for one person's situation
may be totally irrelevant to another's.
- Some e-mail lists can be viewed as virtual meetings:
- Selected topic matter of the list is analogous to a meeting agenda.
- Rules of Etiquette (explicit or implicit)
is analogous to procedural rules.
- List membership is analogous to meeting attendance:
- Joining and leaving a list often involves non-trivial effort
on part of participant.
- Leaving a list in order to avoid others' off-topic (non-agenda)
items involves sacrifice:
one may lose best/only means of participating
in the on-topic (agenda) items.
- Analogy to junk FAX
- The occasional off-topic message is minor irritant,
but many such messages can be a major imposition. Small delays inherent in dealing with each message add up.
- Comparison to tying up a phone: depends on your network connection
- Broadband (DSL, cable, ...):
negligible impact for simple messages
- Disk space and CPU usage: comparable in some situations
to expending recipient's supply of FAX paper.
- Invisible rejects: comparable
- If you delete a message without reading it,
the sender gets no indication.
- It is too much of an imposition for you to have to send
note to sender of message saying that you are
not interested in receiving subsequent messages
on that or related topics.
- The technology behind mailing lists does not readily support
a sender being sensitive to what individual
members of that list have said that they were not
interested in receiving:
A message goes to everyone of the list, or
it goes to no one.
- Analogy to telemarketing
- Significant number of people use e-mail in way analogous
- Unwanted e-mail interrupts other activities.
Rules of civility are not a violation of free-speech.
Free speech is about expressing ideas,
and not a license to say whatever you want wherever you want.
yelling "fire" in a crowded theater
does not constitute free speech,
neither does verbal behavior that impinges on the rights
of others to participate.
If confrontational and/or verbally abusive behavior has the effect
of intimidating others or driving them out of the forum,
it is not a violation of free speech to discipline those engaging
in such behavior.
Parting advice - Editorial
My experience is that respect for free-speech is so deeply embedded
in American culture
that virtually all claims of free-speech violations are bogus.
People who legitimately believe that they should not be denied the
opportunity to speak in a particular forum
argue based upon the facts of the particular situation.
If someone resorts to citing the principle of free-speech,
my experience it is a good sign that that either
they know that their action is inappropriate or
they don't care about appropriateness and the rights of the audience.
People who claim their free-speech rights are being violated
are almost invariably arrogrant, self-righteous, self-absorbed,
It is pointless to try to reason with them:
other people's rights are simply irrelevant to them.
I am willing to accept corrections of fact and
suggestions on how to improve the presentation of this information.
I am not a willing audience for debate or advocacy on this topic:
I am reporting widely accepted decisions,
and not taking the role of an advocate.
Version Info: $Revision: 1.11 $ $Date: 2002/03/10 07:59:44 $
Copyright 2000 by Douglas B. Moran
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