From: Kent Crispin <kent@songbird.com>
Date: Tue, 10 Jun 1997 13:59:52 +0800
To: cypherpunks@cyberpass.net
Subject: Re: Fraud and free speech
In-Reply-To: <v03102802afc0e602d172@[207.167.93.63]>
Message-ID: <19970609224927.55362@bywater.songbird.com>
MIME-Version: 1.0
Content-Type: text/plain



On Mon, Jun 09, 1997 at 12:03:52PM -0700, Tim May wrote:
> At 7:11 PM -0700 6/8/97, Kent Crispin wrote:
> 
> >
> >But the fundamental principle that says "redress is available for speech
> >that causes harm" seems fairly clean.  That cuts across advertising,
> >salespersons lies, libel/slander, yelling "fire" in a theater -- a
> >whole gamut of free speech issues.  Spam falls under such a rule, as
> >well.  Of course, the issue of prior restraint is orthogonal to this
> >rule...
> 
> This "fundamental principle" is not nearly as clean or as fundamental as
> you represent.

[Several good examples deleted.]

> No. And there should not be. Harm is a name for various adverse
> developments. Many if not most of them are closely linked to speech issues.
> Legislating harm away is not consistent with a free and open society.

A good point.  However, I only used one telegraphic sentence to
express my thought, not an essay such as you would write.  I don't
have time to write an essay, but let me try to add at least a little 
more.  Hopefully you can fill in the blanks.

Clearly, in this context "harm" would be actually defined through
laws, and some other term should be used.  Let me qualify it as 
"unfair harm", realizing that it's still probably not a good term.

"Unfair harm" (as I imagine this legal infrastructure to be) cannot
occur if it is a result of a consciously accepted risk.  Thus, for
example, if you engage in the game of business you consciously accept
the rules and risks of the game.  A competitor who advertises better
prices is not creating "unfair harm".

The point of this exercise is to move the debate from what kind of
speech is protected to a debate about what constitutes "unfair harm". 
That is, all speech is free, period.  If you cause "unfair harm",
however, you are responsible for it, whether it comes from speech or
from action. 

So, for example, rather than debating whether "true speech" is
protected, we ask whether a particular case of "true speech" caused
"unfair harm".  In questionable cases we don't agonize over whether
some artificial class of speech is free -- instead we argue over
whether the harm was "fair" or not.

Why change the terms of the debate?  Because it restores freedom of 
speech as an absolute, and places all the fuzzy stuff somewhere 
else.

[...]

> Spam is a name for "unwanted communications." The proper solution is
> technological/ontological, e.g., metering. It is a defect of our current

["ontological"?  What do you mean by that? (Ontology -- the study of the 
nature of existence?]

> e-mail model that one can deliver a million pieces of e-mail for no cost.

I don't believe that metering is a solution.  It has clearly not
worked for physical mail -- I make a moderate effort to keep myself
off mailing lists, but more than half of my p-mail is junk.  That's
worse by far than my email. 

> This will be fixed, and is a solution vastly preferable to having a
> government agency decide which communications are permissable and which are
> not.

I don't favor a government agency.  I think other technologies than 
metering will be necessary.

> (Many of these issues are mooted by crypto anarchy, of course.)

Oh sure.

-- 
Kent Crispin				"No reason to get excited",
kent@songbird.com			the thief he kindly spoke...
PGP fingerprint:   B1 8B 72 ED 55 21 5E 44  61 F4 58 0F 72 10 65 55
http://songbird.com/kent/pgp_key.html