Constitutional Right to Commit Fraud?

Ordinarily, if you use false information to obtain something of value, that is fraud. When that false information is the transmission information for an email transmission, and the thing of value is the attention of email recipients, then, according to the Virginia Supreme Court, it is free speech protected by the First Amendment.

The argument, as I understand it, goes something like this. Freedom of speech requires the right to speak anonymously; otherwise the speech isn’t really free, because it may be inhibited by fear of retaliation. The only way to speak anonymously on the Internet is to use false transmission information. Otherwise, the bad guys will be able to track you down and retaliate.

The Court drew a distinction between “false” and “fraudulent” information. Presumably, if the spammer uses someone else’s IP address or domain name, that would be fraudulent. But in this case, I gather, the spammer just used made up IP addresses and domain names. Since it is theoretically possible to verify that those names and addresses are not actually in use, there is nothing fraudulent about using them.

In principle, I suppose, this would allow servers to block spam by refusing to accept email unless they can verify that the name and address are actually in use. Such verification would be costly, in terms of delivery time, and, if I understand the technical issues correctly, it would usually be unreliable. Or, to be more precise, it would be very costly to do reliably. In many cases, the cost of reliable verification would be considered too high, and servers would end up blocking legitimate emails from servers that couldn’t be verified by a less costly method.

So essentially, the ruling not only says that I have the right to speak anonymously; it also says that I have the right to charge you (though not to keep the proceeds) for the privilege of not listening to me. Next time you attend a séance, ask Thomas Jefferson about that one. I don’t think he’ll like it.

Moreover, it seems to me that the ruling does in fact allow the use of truly fraudulent information, even though it claims not to. Does the right to speak anonymously include the right for one individual to take on an unlimited number of anonymous identities? Since there are a huge number of IP addresses, and a virtually infinite number of potential domain names, that are not currently in use, a spammer can change his anonymous identity at will. It seems to me that such changes of identity constitute fraud. The spammer sends one bulk email, and then sends another with the implicit statement, “I am not the same person who sent you the previous email.” – a false statement used to obtain something of value.

Since the court used the example of the Federalist Papers, which were signed by an anonymous “Publius,” let’s pursue that example. The court maintains, rightly, that the authors had the right to use the anonymous pseudonym “Publius.” And if I read one of the papers by Publius and decide he is not worth reading, I can then refuse to read any of his others. But imagine if the authors had written each of the papers using a different name, using a different typeface, on a different kind of paper, etc.. It seems a little ridiculous to me to argue that freedom of speech allows them to do this. By claiming to be a different author, when he is in fact the same author, James Madison is making a substantive false pretense to get me to read another of his papers. That’s not freedom of speech; it’s fraud.