Luigi brought the following to my attention:
Jeremy Jaynes of Raleigh, N.C., considered among the world’s top 10 spammers in 2003, was convicted of massive distribution of junk e-mail and sentenced to nine years in prison.
Almost all 50 states have anti-spamming laws. In the 4-3 ruling, the court rejected Jaynes’ claim that the state law violates both the First Amendment and the interstate commerce clause of the U.S. Constitution.
This is one of those strange situations where I find myself agreeing with both sides. For instance, one of the dissenting justices in the case wrote:
the law is “unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mail including those containing political, religious or other speech protected by the First Amendment to the United States Constitution.”
Since I haven’t read the law, I will simply take her word for it. That being the case, the law is out of line and should be overturned. Unfortunately, this case wasn’t the one to overturn it.
Jaynes allegedly used aliases and false Internet addresses to bombard Web users with junk e-mails peddling sham products and services. The court’s majority said misleading commercial speech is not entitled to First Amendment protection.
Well…yeah. I don’t see how it possibly could be. If a store is charged with false advertising with the intention of bilking its customers, how can the store owner possibly seek defense behind the First Amendment? Just as the First Amendment doesn’t protect things you say about another person knowing that they’re falsehoods, I do not see how it can protect attempts to bilk people over the internet. To say nothing of slamming e-mail boxes with thousands of spams. It’s no different than a neighbor blasting his stereo at ear-splitting decibel levels at 2 in the morning in violation of local ordnances and then claiming he has a First Amendment right to do so.
There may well be grounds for challenges to anti-spamming laws, but I don’t see this case as offering them.
PAD
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Jeffrey, your example is just plain bad. Your law has no valid basis…it’s not just unconstitutional on it’s base, it’s just plain invalid. There’s no credible basis for which that law could pass muster. And if by some bizzare legislative act, it were written, passed, and became law, your scenario would still not come to pass, because the law is patently in violation of the Constitution.
Here’s the key difference…the anti-spam law has a valid application, in that spam distributed by duplicitous or fraudulent means is not protected speech. Insofar as the law is applied to those specific offenders, it’s within the bounds of the Constitution. Your example tries to make criminal something that the Constitution patently protects…there’s no wiggle room that would ever allow the government to criminalize a culture/nationality. Even if those individuals were guilty of other illegal acts, they still could not be charged with violating this law, becase the entire law itself is in violation of the Constitution.
As a tangental aside, there’s a way to avoid spam while the current laws are in effect. If you know your email provider’s main page, you can often go there to access your email account directly and delete anything you don’t want — then use Outlook Express, and you’ll only download what you left. This isn’t a perfect solution, but it can be a good way to get rid of annoying spam while bypassing the danger of a spam filter removing actually useful email. (A friend on mine didn’t get a school-related email from a friend because he appreviated the word “analysis” to “anal.” and her spam filter wouldn’t anything in with “anal” in the subject.)
Most laws are made to make it possible for companies to do business. That is the biggest reason for anti-spam laws. Businesses were spending big money just to get their needed business emails.
Laws are written by imperfect people, and, as the last 7 years have shown us, Republicans are more likely to be imperfect than most normal people, so any law that is created to protect businesses is more likely to be flawed.
My anti-spam method is to use a fake e-mail account. Anything that wants an e-mail address to sign up that I don’t completely trust (like monopoly.com) I use the fake address. Because of this my fake e-mail address gets metric tons of spam that I don’t even have to sort through while my real account sometimes goes months without getting any.
“Yeah, but we’re not talking about altering just any legislation.”
Okay, point taken. Maybe a smarter way to put it would have been to say write new legislation to deal with this kind of thing.
There are several legal things at play here.
1. When a law is analyzed for being overbroad, the specific acts of the defendant are not in play. Challenges for overbroadness are designed to weed out those laws that reach constitutionally protected speech in cases where the defendant is acting in a manner that is NOT protected. Thus, to say that “this is the wrong case” to challenge the law for overbroadness is incorrect (legally speaking) because the doctrine is designed precisely for those questions.
2. Challenges for overbroadness are disfavored. In fact, in order for a law to be deemed overborad it has to substantially so. For very good reason, courts don’t like to throw out laws if they can reasonably interpret them in a way that does not offend constitutional rights.
2. Rather, what PAD and others are arguing — I think — is that this guy was clearly doing what the legislature intended to punish. As has been pointed out, it is ok to make laws that punish speech when it is commercial and false. In fact, at one time commercial speech was not constitutionally protected, at all. SCOTUS changed its position on that, however, and such speech now gets 1st Amendment protection, but it gets less protection than most categories of speech because there is a greater gov’t interest in seeing that commercial speech is truthful.
4. Short of reversing itself, this court wouldn’t reconsider the question of whether the statute is overbroad or ever need to “overturn” the law. If the “right” case presented itself, such as where the state convicts someone under this law for espousing *protected* speech, the court could rule such a conviction unconstituional. This is called an “as applied” challenege to the law. In other words, although the statute is not overbroad, the state has applied it in a way that is unconstitutional. While the court doesn’t have the power to “amend” the law, it can say a statute is being applied in a way that offends the constitution. In such a case, the court doesn’t overturn the law, but basically says “don’t use it this way again becuase it violates a person’s rights.”
5. As someone pointed out, the car stereo analogy is what is called a “time, place, and manner” restriction on speech. The analysis would not change if, as someone pointed out, instead of blarring music, the stereo blarred a political message. Time, place and manner restrictions are ok as long as they are content neutral. In other words, banning all loud speech at 2AM is ok, even if political speech is supressed as a result. However, banning ONLY political speech at 2AM would violate the 1st Amendment because government cannot target a specific category of protected speech.
Hope this nerdy legal analysis helps. If you are really interest in first amendment law, you should look up the cases filed by Fred Phelps’s “church” where he takes issue with recent laws enacted to prevent him and others from protesting the funerals of fallen soldiers. There is one in Missouri that is winding its way through the legal process now. The facts in those cases really make it difficult for those who believe for believers of the first amendment and people who find Phelps’s conduct reprehensible (which I hope is everyone).
“Republicans are more likely to be imperfect than most normal people…”
I am a lifelong Democrat, as are my parents, as were their parents. And I can tell you from personal experience that your belief in the superiority of non-Republicans is about as inaccurate as can be. It is unfortunate that you feel the need to impute poor character to Republicans simply because you disagree with them.
Bill, I think you missed the true targets of Alan’s jibe. Humans are, by nature, imperfect. Only lunatics, aliens and cyborgs would be otherwise. When Alan says that “Republicans are more likely to be imperfect” he is, in effect, claiming that Republicans are more likely to be human than Democrats, who, presumably, are therefore more likely to be the spawn of some Lovecraftian elder Gods.
Well, you can say what you like about our frat house but I’m not gonna sit here and listen to you badmouth my Democratic friends! Bill Myers–to use just one example–is so dámņ imperfect it’s almost scary!
Let’s remember that we’re all in this handbasket together and keep our eyes on the true enemies of mankind. Quakers. No, wait. Zombies. Sorry.
“Bill, I think you missed the true targets of Alan’s jibe.”
Bill, I think you are missing Bill’s point about the imperfection of non-Republicans. He’s actually making about about the vastness of the imperfection of Democrats. He’s trying to explain to you that Democrats are imperfect in their very souls; that they roam the streets at night, hungering for the first born young of hamsters.
Only a republican has the decency to sustain the Obama-middle-name-scare by apologizing in a press conference for the republicans who otherwise utter it among themselves. As the republican indifference to the public references to Hillary Clinton as a bìŧçh demonstrate, not everyone is lucky enough to have a taboo established from one’s exclusion from the white patriarchy.
Jeff, I’m going to try this just the one time. Try and follow me here.
Your example is just nuts. It doesn’t work because of the several reasons others have outlined.
With the case that PAD brought up, you have a law that may be to broadly written and may be unconstitutional because of that. There are a number of people, including very good legal scholars, who have argued that. If/when it tags someone by overreaching, that’s when it will be challenged and should be struck down in its present form.
This case doesn’t meet those standards. This case is nailing someone for acts that were made illegal by this law that have lost challenges before. This aspect of this law falls under the umbrella of constitutionality. There’s nothing here to legitimately challenge. Hence the original statement from PAD about…
“That being the case, the law is out of line and should be overturned. Unfortunately, this case wasn’t the one to overturn it.”
Let me try and pull your really bad example into a different example. Let’s say that some idiot in the Halls of Power decides to pass a law that adds extra penalties into certain fines, like speeding as an example, based on the individual’s religious beliefs. If you’re Jewish, they tack an extra $25 on the fine. If you’re Muslim, they stick you with an extra $50. If you’re a Scientologist, they tack an extra 7000 Zontarion Pacaboos onto the fine.
The law is, on the face of it, unconstitutional. You’re punishing someone for a constitutionally protected right, freedom of religion, and for something that has nothing to do with the original crime of speeding. It should be challenged and struck down.
You get pulled over and written for speeding. You’re none of the above faiths and you don’t get the extra fines. Because of that, there’s nothing for you to challenge. You can’t go before the judge and tell him that he needs to throw out your fine because you were just charged for the crime of speeding, but you could have been charged more if you were one of the above mentioned religions. Well, you could, but you’d be laughed at by the judge.
You are not the man to challenge it. Now, a Jew, a Muslim or a Scientologist getting jammed up by this law can challenge it in a heartbeat. This hypothetical law should be struck down, but yours is not the hypothetical case to do it.
That’s a bit legally oversimplified, but pretty close to the only explanation you’ll get that doesn’t start getting into tons of mind numbing and overly complicated legalese.
Hmmm… Mike’s still off his meds and Jeff wants to pick fights by coming up with really Loony Tunes examples. It’s nice to see that some things in life are dependable and constant.
I don’t have to check my watch to know it’s time for Jerry to insist I owe it to him to take drugs for no given reason. You’d almost think I’d, like, asked anyone to take my word for something.
After having read Bill Mulligan’s and Jason M. Bryant’s most recent posts, I’m not sure what I meant anymore. I’m not even sure what I actually wrote.
Many democrats have no sense of humor any more.
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I once almost got hit by a man while my father was standing right there. My father later explained to me that it is dangerous to hit a man while he was down. I hadn’t actually hit him. What I had done was make a smart@$$ed comment while the guy was still in pain after hurting himself after doing something stupid. If my father hadn’t been there, he would have hit me for sure.
I was picking on Republicans because they are down and they are not able to hit me, as they are not in my abode.
I don’t honestly think most Republicans are lesser human beings, but there does seem to be enough of them that are that I wanted to make sure to perpetuate a stereotype, because, ya know, that is what they have been doing to the Democrats for the last 15 years or so. Turn-about is fair play, don’t ya think?
Your example is of an illegal law no one was held to, he-who-accepts-a-salary-for-enforcing-the-law. For your analogy to apply to the ruling we’re talking about,
Thanks for the analogy.
In my example, PAD would apparently have no standing to challenge the law, since he had not been arrested for violating it, if I am to believe him and his supporters. By their reasoning, no law, no matter how wrong, could be challenged except by those already arrested for violating it. With this kind of thinking, consider this example:
1. A law is passed ordering the gassing of all Democrats.
2. Jeff, who is a Republican, thinks this is stupid – so he petitions the court to overturn the law.
3. The court says “Hey, what’s it to you? Wait until we’ve got some Democrats in the camp and see if they want to make something of this. Don’t be presumptuous. Mind your own business.
or:
A. Country G decides to invade country P and kill many citizens of P.
B. Country U thinks this is bad, and complains.
C. The League of Nations says “Hold on, U: This has nothing to do with you. If someone from P wants to complain, OK.
Silly me. For Jerry’s analogy to apply:
The best way to do things is to differentiate between ‘pushed’ speech and presented speech. Spam, cold calling, leaflets pushed through letter-boxes all force the individual to take time out of their day to deal with them. They cannot be ignored, or you end up with a full inbox, letterbox or answerphone.
On the other hand, handing out leaflets in the street, websites, public speaking etc, should be protected as one always has the option to ignore it and refuse to engage with the speaker.
Surely the flip side of the whole free-speech thing is I should be free to ignore you if I so wish. Whether it’s a fraudster after my money or an MP after my vote.
Drawing back from hyperbole for a moment, I think PAD, bobb alfred and some others are holding to an excessively strict view of standing to challenge an unconstitutional law. As I read them, even a person in the targeted group would have no standing to challenge the law until it had already been turned on him personally. One would have no standing at all to argue on another’s behalf or to anticipate harm which had not already fallen upon oneself.
Jeffrey, you’ve just admitted you engage in hyperbole. What interest does your resolve to be hyperbolic serve other than you cut our urgency to absorb what you say — as if you’re providing your own sarcasm against you?
Jeffrey, trust me on this one, standing is the very second thing a court will look at before it even gets into the facts of the case. The first thing…they very first thing…a court does is check jurisdiction. After that, it checks standing. Without these two elements satisfied, no court will ever hear a case. Why? Because without those two elements, the court’s decision cannot be binding.
If the court lacks jurisdiction, any decision it renders will be meaningless, because it has no authority to make a decision in the matter. Likewise, if the plaintiff lacks standing, then the court’s decision won’t have any impact on that person. In either case, the court’s time will have been wasted, and no court is going to engage in any activity that it knows going into the proceeding that it’s a waste of time.
One key to having standing is to have a dog in the race…you have something tied to the outcome of the case. If all you have is a law that’s offensive to you, but isn’t impacting you other than inflating your blood pressure, you don’t have any standing to challenge that law. I’m sorry if that seems outlandish to you, but literally hundreds of years of legal precedent happened before Jeffery S. Frawley came around and decided that anyone, anytime, for any reason, should be able to challenge a law because it offends them.
Jeffrey, as far as I can see, PAD is exactly right on this–it’s the whole concept of “locus standi”. From Wikipedia–standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case. In the United States, for example, a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that the plaintiff is (or will be) harmed by the law. Otherwise, the court will rule that the plaintiff “lacks standing” to bring the suit, and will dismiss the case without considering the merits of the claim of unconstitutionality. In order to sue to have a court declare a law unconstitutional, there must be a valid reason for whoever is suing to be there. The party suing must have something to lose in order to sue unless they have automatic standing by action of law.
This happens all the time. Haven’t you heard about cases that went all the way to the Supreme Court and were rejected just because the justices said the plaintiffs had no standing?
“Many democrats have no sense of humor any more.”
On a side note, Hillary Clinton got a few decent jokes on The Daily Show last night. Mainly the interview was just talking points, which I would expect from any politician at this point, but it was nice to see her make a few jokes. I think she does have a decent sense of humor, it’s just not the side of her personality we see the most of.
Jeffrey, do you now see how cutting back from the hyperbole increases the urgency for others to address what you say? It’s happening right now.
“–it’s the whole concept of “locus standi”. “
Which was the point I was underscoring with my example. But if the Troubled Twins couldn’t figure it out in an example that was designed so simple that elementary school students could get it, do you honestly think that you’re not going to confuse the hëll out of them by throwing the legalese around? Especially Thing One since he’ll just warp the actually legal explanations into some otherworldly rat’s maze of a posting.
~8?P
YJ7T28 hi nice site man thx http://peace.com
Locus standi wasn’t relevant to my observation. You haven’t invalidated what I’ve said — and it’s still a wonder you feel the need to challenge anything I say.
Locus standi must be interpreted more broadly than “It’s harming me, personally, right now.” The way bobb alfred is posing it, I would have no standing in the following situation:
A. Rule #5: All Methodists are to wear a blue hexagon on their sleeve, or they will be shot in the neck.
B. I am a Methodist, I do not wear a blue hexagon on my sleeve, they don’t catch me, and I don’t get shot in the neck.
C. Nonetheless, I really object to Rule #5 and want to challenge it in court.
More extremely than this, suppose I objected to a law affecting the welfare of some other group. By the very strictest interpretation of locus standi, women and the physically handicapped would have no right to challenge Selective Service policies, and people disinclined to commit suicide would have no right to speak on the subject of suicide. Going even further, how could any court have standing to hear any case not involving the judge’s own welfare?
Look, here’s the thing with what you’re talking about. A bad law has to be used and challenged to be struck down. As using a hypothetical analogy seems to deeply confuse some people, why not us a real world example.
In the 90s, Congress passed the Line Item Veto into law. The Newter & the Republicans supporting him made it clear that they weren’t going to stand for the thing and that the first time it was used it would be challenged and taken to The Supremes. It was used, Newter was good to his word, it was challenged and the Supremes sang the song that Newt wanted to hear.
The law existed for a short time unused and thus unchallenged. Lots of people wanted to see it struck down, but they couldn’t do a thing about it because they had no standing. When it was finally used, the people that it affected, the people with standing in the case, challenged the constitutionality of it and won.
Take another famous case from some time back. Remember the Atheist fellow who challenged the constitutionality of the Pledge of Allegiance because of the phrase “under God” being in it? The Supremes didn’t want to touch that case with a ten foot pole and haven’t wanted to touch it since the day the words were added. They know that if the thing really gets challenged, they’d have to rule that it is unconstitutional because of the wording of the law that added those words into the pledge. Not a popular decision and one they really don’t want to deal with.
They ducked having to do it this time because of one very valid and very legal reason. The guy didn’t have any standing in the case. His case was being presented as him objecting to his daughter having to recite the pledge in school and that being against his Atheistic beliefs. The court passed on the case basically on the bases of him not having custody, the mother and child apparently not being Atheists and thus him having no standing in the case as he presented it.
It’s the same thing here. This guy is getting jammed up under the law for aspects of it that covers acts already known to not be constitutionally protected acts. There’s nothing, not so much as one little thing, that this law is doing to him that falls under the classification of unconstitutional in any way. Because he is not having his constitutional rights and freedoms trampled on, he cannot challenge his sentence on the bases of this being an unconstitutional law or this law/ruling against him denying him his constitutionally protected freedoms. He has no standing whatsoever here.
Not the right man, not the right case and not the right ruling to challenge it.
If you want to say that you find this wrong or unfair, I can maybe see that debate going somewhere for a little while just based on the philosophical nature of it. Now, if you wanna argue the facts of the legal system, the facts of the law, the way the legal system works, the way the law works and why the legal system and the law doesn’t really work like that in the surreal world, then go to school, study law, get your Masters and work your way up in the system to a place where you can try and change the way things really work in the real world to the way you think they work.
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Wow Mike. You so funny. Too bad it’s not in the ha-ha way.
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Well for my 2 cents, the only thing more important than fredom of speech is responsibility of speech… and those who hide behind the anonimity of the internet refuse the later and thus do not deserve the former… and thats all I am going to say about that
And, yeah, before those two or three of you that actually like me enough to recommend that I give up talking to the wall for my own mental health and well being, that’s my last attempt with them. I’ve got too much other important things to do involving other legal issues that I’m trying to figure out right now.
More from wikipedia–it isn’t like this stuff is being hidden, you know.
Constitutional requirements
There are three constitutional standing requirements:
1. Injury: The plaintiff must have suffered or imminently will suffer injury – an invasion of a legally protected interest which is concrete and particularized. The injury must be actual or imminent, distinct and palpable, not abstract. This injury could be economic as well as non-economic.
2. Causation: There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court. Massachusetts v. Environmental Protection Agency (global warming caused by EPA’s refusal to regulate CO2 emissions satisfied element of causation for Massachusetts’s alleged injury of loss of coastland).
3. Redressability: It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury.[4]
Y’know, guys, I think I’ve figured out the difference between Jeff and Mike:
Jeff is incapable of admitting that he’s wrong, and Mike is incapable of understanding that he’s wrong.
Of course, I could be wrong…
PAD
PAD: “Jeff is incapable of admitting that he’s wrong, and Mike is incapable of understanding that he’s wrong.“
Oh, god. Jeff-Mike is my mother.
“Locus standi must be interpreted more broadly than “It’s harming me, personally, right now.””
Whyso? As I mentioned, centuries of legal precedent disagree with you.
“The way bobb alfred is posing it, I would have no standing in the following situation:
A. Rule #5: All Methodists are to wear a blue hexagon on their sleeve, or they will be shot in the neck.
B. I am a Methodist, I do not wear a blue hexagon on my sleeve, they don’t catch me, and I don’t get shot in the neck.
C. Nonetheless, I really object to Rule #5 and want to challenge it in court.”
Yes. Exactly. You never suffer any imposition on you because of Rule #5, so you have nothing to challenge. That’s exactly the way standing works.
To follow Jerry’s lead, how about this?: Most of us have seen those lists of actual laws that exist, but just seem silly. Like being illegal to take a lion to the movies. Or only watering the lawn if you hold a water hose in your hand. Or not serving wine in a teacup. Or serving beer in a tavern without having also brewing soup. Or requiring a woman out on a date to call her male date “master.” Or any number of other laws that are on some state or municipality’s books.
And in each and every case, Joe Q. Public can’t challenge any of them unless they are subject to their enforcement. Why not? Because that’s what the legislative process is for. If there’s a law on the books that you don’t like, your reccourse isn’t to challenge it in court…it’s to petition your elected officials and get them to change the law. Only if you you are facing charges under the law do you have standing in court to challenge it, because only in a real case, with a real controversy, will a court look at it. In addition to the limited resources of a court, the thinking is also that only a person facing the imposition of the law will have the best incentive to argue against it. If all a law does is annoy you, how hard are you going to be willing to fight it? Until it becomes inconvienent? A slight burden? Something beyond a trifle?
Only if you truly stand to lose something…property, liberty, life…will you have the greatest incentive to fight.
That is what the dissenting court minority did:
The only difference between the court dissent against the line item veto and the dissent here is the ratio of dissenting judges.
If you refuse to provide a logically valid alternative, why shouldn’t I believe what I say I believe? You can Make It A First.™
bobb alfred has admitted more than he meant to.
“Only if you truly stand to lose something…property, liberty, life…will you have the greatest incentive to fight.”
This goes further than he had previously stated in two ways: “Only if you stand to lose something” admits standing for a prospective, rather than actual, harm (Methodist resists requirement to wear blue hexagon, dislikes prospect of being shot in the neck, brings suit against Rule #5, etc.); also “the greatest incentive to fight” is an entirely different thing from “clearly has standing to bring suit. As an example of this, let us suppose the state of New York decides to confiscate property currently belonging to PAD; Let us also suppose the state of New York does not choose to permit PAD to bring suit in opposition to this taking. He would truly stand to lose property, and have the “greatest incentive to fight” – as bobb alfred specified – but he would have no standing. “Greatest incentive to fight” refers to a psychological or moral state; “Locus standi” refers to a matter of law, which coincides with psychological or moral states purely by accident.
Jeffrey, you are truly talking out of your ášš.
I pretty clearly said that the incentive to fight was an additional rationale behind limiting who can bring a suit in court. It’s not the end-all and be-all. Clearly, there will be those with less ability to fight, for whatever reason, even when faced with harsh consequences. But combined with other reasons, it creates a compelling reason to prevent just anyone from challenging a law.
Further with Rule #5…congress can pass any act it wants, and there are even ways to make an act into law over the objections of the president. But a law still has to be enforced before it can be challenged…or in some cases I suppose congress could sue the executive if it failed to enfore a law. But in any event, Rule #5 cannot be challenged in court if it’s never enforced. I’m sorry if this seems illogical to you, but that’s the way it is.
Further, your New York example is likewise off base. Like any branch of government, the courts have limited powers. Their jurisdiction is limited by law. In some cases, governments have removed the power of judicial oversigh for certain actions. While Jeffrey’s New York example is outlandish, it’s not unheard of for a municipality to shield itself from countersuits in emminent domain cases. In this case, it’s not that PAD wouldn’t have standing, it’s that the court doesn’t have jurisdiction to hear the case.
Jeffrey, it’s pretty clear that you’re arguing from a position of common sense. But you’re dealing with legal concepts, and common sense, oddly enough, doesn’t have much place in this arena.
“He has no standing whatsoever here.”
He absolutely had standing to challenge the law since he was convicted of it. The issue here is not standing. It is whether the law was written in a manner that was substantially overbroad to encompass protected conduct. The court held that it was not. If another case comes up where the law is used to punish protected conduct, then a court can find that it is being applied in an unconstitutional way. Such a ruling would not overturn the law, it would only overturn the conviction of whomever was challenging it.
The only way this law gets overturned now is if the state supreme court reverses itself, the U.S. Supreme Court reverses the state court, or a lower federal court enjoins the state law.
Will the convicted spammer then continue to be held to the overturned law? If not then, as Bobb pointed out:
…supposedly.
I simply think it’s a bad idea to selectively uphold an illegal law, because the defendant should be held to a legal law no one is apparently able to charge him with.
” He absolutely had standing to challenge the law since he was convicted of it.”
Yep. You right. Looking back at my post I in my haste mixed my hypothetical cases and their results and the case posted up top by PAD. The case that PAD mentioned had a complainant who had standing. It’s Jeff and anyone else who Jeff thinks should challenge it that has no standing.
I hear there are medications that can help you clarify your thinking. Of course thinking more clearly seems to increase the urgency for others to accuse you of being incapable of understanding you’re wrong without attributing any errors to you.
“Will the convicted spammer then continue to be held to the overturned law?”
Yes, because the law isn’t illegal, as held by the state supreme court. The fact that the state might, in the future, use it in an illegal manner does not mean the law itself is illegal.
Keep in mind though that the final arbiter of what violates the First Amendment are the federal courts (culminating in the Supreme Court.) If this guy wants to continue challenging the law, he can file a federal petition for habeas corpus and ask the federal trial court to rule that the state court misinterpreted the First Amendment. In other words, this case isn’t over. If a federal court agrees with him, they can overturn the law.
“It’s Jeff and anyone else who Jeff thinks should challenge it that has no standing.”
You are probably right. I don’t know the specific standing rules in North Carolina. But in federal court, these people would not have any standing to challenge the law until they were arrested and prosecuted for violating it.
Right. Let me rephrase: Will the spammer continue to be held to his conviction if the law he broke is later ruled unconstitutional?
There was a minority dissent saying just that. If that dissent turns into a majority at another review of the case, will the spammer be forced to complete his sentence for breaking a law ruled illegal?
That should be: If that dissent turns into a majority on a case revisiting the law, will the spammer be forced to complete his sentence for breaking a law ruled illegal?
My question is independent of the law being ruled illegal in a review of this case in particular.
Okay, going to do something stupid: I’m going to discuss the topic and not the personalities involved.
As a First Amendment advocate, I’ve got to admit I haven’t given a lot of thoughty to commercial speech in this context. At least not since my Media and Government class in college lo those many years ago. Should spam, telemarketing calls, and other forms of intrusive commercial speech enjoy First Amendment protections?
In my layperson’s mind, the answer is, “Yes, to a degree.” I think you can actually reign them in using the same narrowly defined exceptions to the First Amendment that apply to other forms of speech: fraud enjoys no Constitutional protection; and such speech is subject to “time, place, and manner” restrictions.
So how about where the rubber meets the road? Well, telephone calls into your home are intrusive, as is spam. Therefore, I believe they fall under “time, place, and manner,” because it’s not the *message* that’s being suppressed, simply the mode of communication. You can find other ways to convey these commercial messages, after all.
If the government were regulating telemarketing calls or spam on the basis of their *content*, I’d say we’d have a likely First Amendment violation. But that doesn’t appear to be the case here.
In terms of how laws are challenged in the courts, appellate courts can only overturn laws by overturning verdicts. If the verdict is constitutionally sound, the law stands — even if that law is on dubious constitutional ground.
Frankly, I think this is a *good* thing. It’s part of the checks and balances that were wisely built into our system of governance.
Bill Mulligan: “…it isn’t like this stuff is being hidden, you know.”
*Everything* is hidden from closed eyes.
By the way, tried calling you — *and* Shonna — but couldn’t get you or your voicemail. CALL ME. We need to tie off about our visit next week.
Let me rephrase my question with a f’rinstance: Dred Scott’s freedom was purchased just before he died, 8 years before the 13th amendment (banning slavery) and 11 years the 14th amendment (establishing US citizenship) were added to the constitution.
Missouri was a free state that disregarded slave status acknowledged in other states. The Missouri state supreme court selectively validated Scott’s slave status, and the federal supreme court upheld the ruling.
Hypothetically,
would the federal court’s 1857 ruling have upheld Scott’s slave status even after slavery had been made illegal? I know that isn’t what you’re saying, but this is someone’s opportunity to tell me I’m wrong for thinking Dred Scott in such a circumstance would have been freed.
I misrepresented the Missouri situation. Missouri was a slave state that had a history of ruling slaves taken to free territories were freed. My hypothetical question isn’t effected by this.