It is an open question as to whether similar restrictions could be applied to e-mail spam. They can robocall or send out an automated text message to a voter without the voter’s prior consent or even if the voter previously opted out. In Michigan, commercial vendors are not permitted to robocall individuals without prior consent, but political campaigns and charitable organizations are exempt from any such restrictions. 4 This does not prevent a political campaign from making unsolicited calls or texts, but it does make it more costly and time-consuming to do so.Īlthough constitutionally permitted, not every state has enacted such restrictions. One example of a “content neutral” restriction that has been permitted by the courts is a restriction on auto-dialing residential home telephones and playing prerecorded messages or sending out automated text messages. The government can impose “content-neutral” restrictions in certain situations, or restrictions that apply regardless of the message being conveyed. (And the cynic would argue elected officials have no appetite to limit their own ability to reach voters and donors.)Ĭontent Neutral Restrictions on Political Speech As the Supreme Court explained, “he First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office.” 3 Because political speech is central to the First Amendment freedom of speech, Congress has been hesitant to take any actions curtailing campaign speech and may even be powerless to enact any meaningful restrictions. This is because political speech is held in the highest regard and is one of the most protected forms of speech in the United States. Meaning, politicians sending you political e-mails are not required to provide you with an opt-out option, or a clear subject heading. This gives the email recipient a chance to limit additional contact from the commercial sender.īut what about non-commercial spam? The requirements and regulations that commercial senders must abide by do not apply to e-mail messages of non-commercial senders, which includes political messages and non-profit messages, or any message in which the primary purpose is not a commercial advertisement or promotion of a commercial product or service. 2 The CAN-SPAM Act provides a list of five practices that commercial senders must abide by including: prohibition of sending false or misleading transmission information, prohibition of deceptive subject headings, prohibition of continued transmission after objection, inclusion of a return address or comparable mechanism, and inclusion of an identifier, opt-out, and physical address in the commercial e-mail messages. As a result, voters are inundated with spam messages they cannot opt-out of or avoid, and Congress is likely powerless to stop it.Ĭongress recognizes spam messages are a problem and has determined that, “he convenience and efficacy of electronic mail are threatened by the extremely rapid growth in the volume of unsolicited commercial electronic mail.” 1 To provide inboxes with some relief, commercial e-mail spam is federally regulated by the CAN-SPAM Act of 2003. Candidates are increasingly reliant on free mediums (such as email or social media advertising) and low-cost mediums (such as phone calls and text messages) to get their message across to voters and potential donors. While commercial spam tries to entice us to buy something year-round, every two years, voters must also suffer through an uptick of political advertisements during election season. Anyone with an email address or cell phone is painfully familiar with spam messages, unsolicited e-mails, phone calls, and text messages, clogging our already crowded inboxes and resulting in constant notifications to our phones.
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