The same Net watchdog groups that will throw themselves bodily in the way of legislation to shut down hate group Web pages or Internet porn filtering in public libraries have shown little passion to salvage the constitutional rights of spam. And that's a big mistake, freedom-wise. After all, spam is a form of commercial speech, much like an uninvited television or radio commercial or a piece of junk snail mail. It is protected by the First Amendment, and any attempt to ban or curtail it may very well be applied to more valuable speech. Junk faxes, which were prohibited by federal law in 1991, haven't received the same First Amendment protection by the courts, the difference being that the recipient of the fax bears a cost for it.
Some legal commentators see an opportunity to ban spam by equating it with junk faxes.
In a recent Cardozo Arts and Entertainment Law Journal article, author Joshua Marcus suggested that because the costs of sending spam are borne primarily by the Internet providers and not the advertiser, a ban could be justified. Really though, junk faxes cannot be equated with e-mail. Most fax machines can only handle one incoming fax at a time, and junk faxes interfere with the recipient's ability to use their own equipment. E-mail doesn't prevent the receiver from using his computer or getting his other messages. It could conceivably allow limits on speech anytime the listener might be somewhat inconvenienced.