In Defense of the First Amendment (and reluctantly, Spam)

By Ned Barnett (c) 2008

This is a bit of a diversion from the run-of-the-mill post here, but it does tie PR and Politics together.

Since you asked, here, in a nutshell, are my views on Free Speech (commercial, personal and political) – please recall that these are linked to the US Constitution’s First Amendment, and may not apply directly to Canada and other democracies who handle Free Speech in different (but essentially similarly effective) manners.

The First Amendment was written with an eye toward free political speech – it was written in reaction to the excesses of Good King George, who’d punished colonists for speaking out against their king (I think that’s called “Lese Majesty”). The former colonists wanted the freedom to express controversial and even confrontational political ideas without prior suppression. Which is why in one of its first actions, the Supreme Court struck down the Alien and Sedition act in about 1790 – and well they should have. This is also why the Supremes were right to side with the ACLU and the American Nazi Party in the mid-Sixties when the Nazis wanted to march in predominantly-Jewish Skokie (I lived near Skokie at that time in another predominantly Jewish suburb of Chicago – my father’s office was there – and I saw the chaos it created … nonetheless, that march was classic controversial political speech). This is also why the Supremes were WRONG (IMO) in upholding the McCain-Feingold Campaign Finance Reform Act, which limits privately-financed political speech (ads) close to election times – while permitting 527 groups, wealthy candidates and the media (on their editorial pages) to engage in financed political speech (ads and ad-like op-eds) close to an election.

The First Amendment, because of the way it was written, has been applied to commercial free speech (which I don’t think the Founding Fathers meant, but which works) and offensive/pornographic free speech (which I am CERTAIN the Founding Fathers did not mean and would not have agreed with – they wrote and spoke on limits to free speech, and pornography is certainly “speech” they would have objected to). But to the area of commercial free speech, in 220 or so years, the Supremes have extended the First Amendment to commercial speech, with a few caveats (such as “truth in advertising”). And as PR people, we depend on that freedom.

Let me repeat that: As PR people, we depend on that freedom.

We exist to practice commercial speech on behalf of our clients (unless, of course, our clients are political candidates or issues-advocacy group, in which case our efforts are protected by the “original intent” of the Founding Fathers). Which means that bans or harsh limitations on annoying spam-faxes or annoying spam-emails are in fact bans or harsh limitations on our ability to function in a free society on behalf of our clients. For there is no practical way that I can think of to ban “enlarge your penis” types of spam without also banning legitimate email pitches to reporters and editors. Both are unsolicited. Both are essentially commercial. And, for editors, both are inbox-cloggers (I spoke to the editor of one of the Las Vegas business weekly newspapers in February – he told me he gets 300 or so unsolicited email pitches each day – he said that to emphasize the importance of picking up the phone and calling him, especially when the story was breaking near his deadline).

Communications technology – if we’re to do our jobs for our clients – must remain free and essentially unregulated, unless the regulations are very tightly drawn (such as bans on emails soliciting sexual encounters – though this might also ban legitimate dating services, such as eHarmony – as I said, these regs must be very carefully drawn.

I am always amazed at those PR people who are eager to ban spam emails – yes, they’re annoying, but they’re also easy enough to get rid of (I get about 500 spam emails per day, and spend about 5-10 minutes purging them daily – and that’s because I try to make sure that no “legit” emails get into my junk box). By banning (or advocating the banning of) any channel of communications, we are advocating outside prior restraint on our own efforts to reach out to the media. That is counter-productive (in Darwinian terms, it’s a counter-survival trait).

Bottom line: we in Public Relations have a duty to our clients and to ourselves to fight to maintain a broad interpretation of that First Amendment freedom to speak (via emails, faxes, Bizwire, phone calls, mass mailings, etc.) – without that, we’re out of business.