Re: Responses to "Spam costs and questions" (long)

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In <Pine.GSO.3.95.970608053415.20770A-100000@well.com>, on 06/08/97 
   at 07:36 AM, Declan McCullagh <declan@well.com> said:

>I don't think commercial speech should be treated as second-class speech.
>But my position is hardly surprising. 

Well I think that there are some that would confuse the issue between 1st
Amendment free speech and the issues surrounding fraud. Especially those
in government who write the laws that regulate commercial speech.

- -- 
- ---------------------------------------------------------------
William H. Geiger III  http://www.amaranth.com/~whgiii
Geiger Consulting    Cooking With Warp 4.0

Author of E-Secure - PGP Front End for MR/2 Ice
PGP & MR/2 the only way for secure e-mail.
OS/2 PGP 2.6.3a at: http://www.amaranth.com/~whgiii/pgpmr2.html                        
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At 5:51 AM -0700 6/8/97, William H. Geiger III wrote:
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>
>In <Pine.GSO.3.95.970608053415.20770A-100000@well.com>, on 06/08/97
>   at 07:36 AM, Declan McCullagh <declan@well.com> said:
>
>>I don't think commercial speech should be treated as second-class speech.
>>But my position is hardly surprising.
>
>Well I think that there are some that would confuse the issue between 1st
>Amendment free speech and the issues surrounding fraud. Especially those
>in government who write the laws that regulate commercial speech.

The mistake has been to extend "fraud" laws to non-contract situations,
e.g., ordinary speech (as distinguished from contracts).

If the Catholics say drinking the blood of JC and eating a piece of his
flesh (aka, "Jesus sashimi") will get you into Heaven, is this fraud or not?

In the increasingly popular notion of fraud, sure it is. It is a statement
or assurance which is almost certainly false. But then, aren't all
religions frauds?

Contracts, with clearly stated conditions and with judgeable or
falsifiable/testable conditionals, are a matter for the courts (private
courts, in fact), but vague promises, advertisements, propaganda, etc. are
not.

Clear now?

--Tim May

There's something wrong when I'm a felon under an increasing number of laws.
Only one response to the key grabbers is warranted: "Death to Tyrants!"
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^1398269     | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

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In <v03102802afc0e602d172@[207.167.93.63]>, on 06/08/97 
   at 03:48 PM, Tim May <tcmay@got.net> said:


>At 5:51 AM -0700 6/8/97, William H. Geiger III wrote:
>>-----BEGIN PGP SIGNED MESSAGE-----
>>
>>In <Pine.GSO.3.95.970608053415.20770A-100000@well.com>, on 06/08/97
>>   at 07:36 AM, Declan McCullagh <declan@well.com> said:
>>
>>>I don't think commercial speech should be treated as second-class speech.
>>>But my position is hardly surprising.
>>
>>Well I think that there are some that would confuse the issue between 1st
>>Amendment free speech and the issues surrounding fraud. Especially those
>>in government who write the laws that regulate commercial speech.

>The mistake has been to extend "fraud" laws to non-contract situations,
>e.g., ordinary speech (as distinguished from contracts).

>If the Catholics say drinking the blood of JC and eating a piece of his
>flesh (aka, "Jesus sashimi") will get you into Heaven, is this fraud or
>not?

>In the increasingly popular notion of fraud, sure it is. It is a
>statement or assurance which is almost certainly false. But then, aren't
>all religions frauds?

>Contracts, with clearly stated conditions and with judgeable or
>falsifiable/testable conditionals, are a matter for the courts (private
>courts, in fact), but vague promises, advertisements, propaganda, etc.
>are not.

>Clear now?

Well I would have to dissagre. Advertisements should be covered under
contract law as verbal contracts. If I advertise that "X" does "Y" but it
really does "Z" then this is clearly fraudulent behavior.

The difficulty is in proving that "X" does "Z" and not "Y" but that is an
exercise left to the civil courts.

- -- 
- ---------------------------------------------------------------
William H. Geiger III  http://www.amaranth.com/~whgiii
Geiger Consulting    Cooking With Warp 4.0

Author of E-Secure - PGP Front End for MR/2 Ice
PGP & MR/2 the only way for secure e-mail.
OS/2 PGP 2.6.3a at: http://www.amaranth.com/~whgiii/pgpmr2.html                        
- ---------------------------------------------------------------

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At 5:27 PM -0700 6/8/97, Tim May wrote:
>(Oh, and it almost goes without saying that the same "lies" William and
>others are so worried about in "commercial" speech happen all the time in
>non-commerical speech. For every example of where commercial speech
>involves lies or fraud, I can find similar or fully equivalent
>non-commercial examples, ranging from lies like "I love you" to get a
>partner into bed to deliberate misstatements to mislead an opponent. Why
>should such "lies" be protected while putatively commercial speech is to be
>subjected to an increasing number of limitations?)

The only justification I can think of off hand is that a presumption of
truth may make for more efficient markets.  On the other hand, it also has
very bad effects when applied to political speech.


-------------------------------------------------------------------------
Bill Frantz       | The Internet was designed  | Periwinkle -- Consulting
(408)356-8506     | to protect the free world  | 16345 Englewood Ave.
frantz@netcom.com | from hostile governments.  | Los Gatos, CA 95032, USA

Bill Frantz <frantz@netcom.com> writes:

>
> At 5:27 PM -0700 6/8/97, Tim May wrote:
> >(Oh, and it almost goes without saying that the same "lies" William and
> >others are so worried about in "commercial" speech happen all the time in
> >non-commerical speech. For every example of where commercial speech
> >involves lies or fraud, I can find similar or fully equivalent
> >non-commercial examples, ranging from lies like "I love you" to get a
> >partner into bed to deliberate misstatements to mislead an opponent. Why
> >should such "lies" be protected while putatively commercial speech is to be
> >subjected to an increasing number of limitations?)
>
> The only justification I can think of off hand is that a presumption of
> truth may make for more efficient markets.  On the other hand, it also has
> very bad effects when applied to political speech.

I'm inclined to argue that "presumption of truth" and "implied warranty
of merchantability" actually lead to LESS efficient markets, but I'm
too tried tonite.  If anyone's interesting, please ping me later. :-)

---

Dr.Dimitri Vulis KOTM
Brighton Beach Boardwalk BBS, Forest Hills, N.Y.: +1-718-261-2013, 14.4Kbps

At 4:14 PM -0700 6/8/97, William H. Geiger III wrote:

>Well I would have to dissagre. Advertisements should be covered under
>contract law as verbal contracts. If I advertise that "X" does "Y" but it
>really does "Z" then this is clearly fraudulent behavior.

When I was growing up, advertisements that a product would make one
attractive to women, for example, were treated as marketing jive. And we
were all taught the old saw, "If Johhny told you to jump off a cliff, would
you?" (This along with "sticks and stones" formed the basis of my
proto-libertarian view.)

An advertisement is a tease, not a promise. If a advertisement for a
Pentium says it will run Macintosh software and run it at 600 Mhz, the
proper response is skepticism, not demanding a law be passed to stop such
advertisements.

The key lies in proper contracts, not in regulating speech.

(Oh, and it almost goes without saying that the same "lies" William and
others are so worried about in "commercial" speech happen all the time in
non-commerical speech. For every example of where commercial speech
involves lies or fraud, I can find similar or fully equivalent
non-commercial examples, ranging from lies like "I love you" to get a
partner into bed to deliberate misstatements to mislead an opponent. Why
should such "lies" be protected while putatively commercial speech is to be
subjected to an increasing number of limitations?)

--Tim May

There's something wrong when I'm a felon under an increasing number of laws.
Only one response to the key grabbers is warranted: "Death to Tyrants!"
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^1398269     | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

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In <v03102804afc0fc8e1db0@[207.167.93.63]>, on 06/08/97 
   at 05:27 PM, Tim May <tcmay@got.net> said:

>At 4:14 PM -0700 6/8/97, William H. Geiger III wrote:

>>Well I would have to dissagre. Advertisements should be covered under
>>contract law as verbal contracts. If I advertise that "X" does "Y" but it
>>really does "Z" then this is clearly fraudulent behavior.

>When I was growing up, advertisements that a product would make one
>attractive to women, for example, were treated as marketing jive. And we
>were all taught the old saw, "If Johhny told you to jump off a cliff,
>would you?" (This along with "sticks and stones" formed the basis of my
>proto-libertarian view.)

>An advertisement is a tease, not a promise. If a advertisement for a
>Pentium says it will run Macintosh software and run it at 600 Mhz, the
>proper response is skepticism, not demanding a law be passed to stop such
>advertisements.

>The key lies in proper contracts, not in regulating speech.

>(Oh, and it almost goes without saying that the same "lies" William and
>others are so worried about in "commercial" speech happen all the time in
>non-commerical speech. For every example of where commercial speech
>involves lies or fraud, I can find similar or fully equivalent
>non-commercial examples, ranging from lies like "I love you" to get a
>partner into bed to deliberate misstatements to mislead an opponent. Why
>should such "lies" be protected while putatively commercial speech is to
>be subjected to an increasing number of limitations?)

So what you are saying that if I call up Widgits, Inc. and order product
"X" that they advertizes does "Y". They instead send me product "X" that
does "Z" not "Y" then I should have no recource? I should atleast be able
to get my money back as they have not sold me the product that they
claimed to be selling (clear violation of the "contract" between buyer and
seller).

I have no problem with them saying their product does "Y" but if I spend
my hard earned money on it then it best do what they say it does. 

- -- 
- ---------------------------------------------------------------
William H. Geiger III  http://www.amaranth.com/~whgiii
Geiger Consulting    Cooking With Warp 4.0

Author of E-Secure - PGP Front End for MR/2 Ice
PGP & MR/2 the only way for secure e-mail.
OS/2 PGP 2.6.3a at: http://www.amaranth.com/~whgiii/pgpmr2.html                        
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"William H. Geiger III" <whgiii@amaranth.com> writes:
> So what you are saying that if I call up Widgits, Inc. and order product
> "X" that they advertizes does "Y". They instead send me product "X" that
> does "Z" not "Y" then I should have no recource? I should atleast be able
> to get my money back as they have not sold me the product that they
> claimed to be selling (clear violation of the "contract" between buyer and
> seller).

Romans firmly believed in "caveat emptor" and had no implied warranty
of merchantability.

> I have no problem with them saying their product does "Y" but if I spend
> my hard earned money on it then it best do what they say it does.

The cypherpunk solution is to make sure they can't use your money until
you've assertained that the product does what you want it to - and I
don't necessarily mean e-cash.

I occasionally buy shit by mail order on a credit card.  A few times I
was not happy with the purchase, and had to appeal to the card issuer
as an arbiter.  I was happy with the results.

Here both I and the merchant explicitly agree that the card issuer will
be the first arbiter in the dispute - the buyer offers the card, the
seller accepts it.

---

Dr.Dimitri Vulis KOTM
Brighton Beach Boardwalk BBS, Forest Hills, N.Y.: +1-718-261-2013, 14.4Kbps

At 7:57 PM -0700 6/8/97, William H. Geiger III wrote:

>So what you are saying that if I call up Widgits, Inc. and order product
>"X" that they advertizes does "Y". They instead send me product "X" that
>does "Z" not "Y" then I should have no recource? I should atleast be able
>to get my money back as they have not sold me the product that they
>claimed to be selling (clear violation of the "contract" between buyer and
>seller).

Contracts in a free society are a complicated issue. I suggest reading some
of the usual literature on the subject, including Benson's "The Enterprise
of Law," Friedman's "The Machinery of Freedom, "Reason" magazine, etc.

In your hypo above, even you are talking about after the fact redress, or
contract arbitration. This is quite different from the increasing
regulation of commercial speech in blanket forms (such as no liquor
advertising within X yards of schools, no cigarette advertising without
extensive mandated warnings, limitations on claims for medical products,
etc.)

In the hypo of ordering a product, an implicit contract is made. Phone
orders are for the convenience of consumers like ourselves; corporations
usually place "purchase orders," and these P.O.s almost always contain
performance requirements.

End consumers who are not happy buying from "PCs-R-Us" because they ordered
a 200 MHz Pentium and instead received a 66 MHz 486 machine have plenty of
recourses. They can almost certainly get their money back from the vendor
(without their being laws on speech), they can call their credit card
company and cancel the sale, they can take the matter to court or
arbitration (not on free speech grounds, of course), and so on.

Ultimately,  "PCs-R-Us" would last for a short time in a competitive
environment, and savvy buyers would avoid them. One of the best protections
against the kind of hypothetical fraud William Geiger hypothesizes is
_reputation_.

Claiming that Big Brother needs to have laws limiting the speech of
"commercial" speakers is not the right way to go.

(And it wasn't even common until this century, especially the last 20 years.)

--Tim May




There's something wrong when I'm a felon under an increasing number of laws.
Only one response to the key grabbers is warranted: "Death to Tyrants!"
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^1398269     | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

At 9:06 AM -0700 6/10/97, Bill Frantz wrote:
>At 5:27 PM -0700 6/8/97, Tim May wrote:
>>(Oh, and it almost goes without saying that the same "lies" William and
>>others are so worried about in "commercial" speech happen all the time in
>>non-commerical speech. For every example of where commercial speech
>>involves lies or fraud, I can find similar or fully equivalent
>>non-commercial examples, ranging from lies like "I love you" to get a
>>partner into bed to deliberate misstatements to mislead an opponent. Why
>>should such "lies" be protected while putatively commercial speech is to be
>>subjected to an increasing number of limitations?)
>
>The only justification I can think of off hand is that a presumption of
>truth may make for more efficient markets.  On the other hand, it also has
>very bad effects when applied to political speech.

I was speaking of justifications in the Constitution.

There is of course a little phrase about "the power to regulate commerce,"
by which was meant (until this century) the power to set tariffs and a very
few other things related to commerce.

This century, though, this clause has been used to to what I think are
severely unconstitutional things, like place restrictions on certain items
(tobacco, alchohol, drugs). And advertising. And the airwaves. And so on. A
pernicious reach by Congress into the choices of vendors and consumers.

As for Bill's point that a mandate on truth would possibly make for more
efficient markets, I doubt it. Who determines truth? And a populace which
believes everything it is told must be true because the government requires
truth will necessarily lose critical thinking abilities.

--Tim May


There's something wrong when I'm a felon under an increasing number of laws.
Only one response to the key grabbers is warranted: "Death to Tyrants!"
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^1398269     | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

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On Sun, 8 Jun 1997 15:48:58 -0700, you wrote:

>At 5:51 AM -0700 6/8/97, William H. Geiger III wrote:
>>-----BEGIN PGP SIGNED MESSAGE-----
>>
>>In <Pine.GSO.3.95.970608053415.20770A-100000@well.com>, on 06/08/97
>>   at 07:36 AM, Declan McCullagh <declan@well.com> said:
>>
>>>I don't think commercial speech should be treated as second-class speech.
>>>But my position is hardly surprising.
>>
>>Well I think that there are some that would confuse the issue between 1st
>>Amendment free speech and the issues surrounding fraud. Especially those
>>in government who write the laws that regulate commercial speech.
>
>The mistake has been to extend "fraud" laws to non-contract situations,
>e.g., ordinary speech (as distinguished from contracts).

  This is very true. We now live in a society that expects to be
'protected' from everything, including their own ignorance, by Big
Brother. Free Speech is just that -- free -- and should be accepted as
such. We have various private organizations that have made it their
business to oversee the truthfulness of product advertising and
quality and this is how it should be.

  I believe that we have actually given up some of our free speech
rights in order to be protected against the 'big bad companies looking
to rip you off'. This has resulted in the government making a grab for
more and more of our rights, the building of a buearucratic
infrastructure to support this grab, and a seperate society back there
in Wasington DC.

  Brian

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----------------------------------------------------------------------------------
Brian C. Lane             http://www.eskimo.com/~nexus                      KC7TYU
------------------  96B9 C123 5C90 BECC  6A1F 7DC6 4F2B A26E  --------------------

nexus@eskimo.com (Brian Lane) writes:
> >The mistake has been to extend "fraud" laws to non-contract situations,
> >e.g., ordinary speech (as distinguished from contracts).
>
>   This is very true. We now live in a society that expects to be
> 'protected' from everything, including their own ignorance, by Big
> Brother. Free Speech is just that -- free -- and should be accepted as
> such. We have various private organizations that have made it their
> business to oversee the truthfulness of product advertising and
> quality and this is how it should be.

Cool - can I sue George "no new taxes" Bish for breach of contract?

>   I believe that we have actually given up some of our free speech
> rights in order to be protected against the 'big bad companies looking
> to rip you off'. This has resulted in the government making a grab for
> more and more of our rights, the building of a buearucratic
> infrastructure to support this grab, and a seperate society back there
> in Wasington DC.

Very good point. Again, in various traditional Europan and various Asian
legal systems, lying per se is never a crime.  Lying while swearing by a
deity or a king is a crime.  Lying in court while under oath to various
local deities may be perjury.  Lying in a written document endorsed by the
king may be fraud.  Claiming that the borshch (borscht) one is selling is
the miracle cure for all diseases and the secret of eternal youth on the
basis of one's own reputation is OK.  Claiming that and also claiming FDA
endorsement is fraud if the borshch is not really endorsed by the FDA.
If a patient wants to buy non-FDA-endorsed medicine, it's between the
buyer and the seller.

---

Dr.Dimitri Vulis KOTM
Brighton Beach Boardwalk BBS, Forest Hills, N.Y.: +1-718-261-2013, 14.4Kbps

On Sun, Jun 08, 1997 at 06:14:59PM -0500, William H. Geiger III wrote:
>In <v03102802afc0e602d172@[207.167.93.63]>, on 06/08/97 
>   at 03:48 PM, Tim May <tcmay@got.net> said:
[...]
>>Contracts, with clearly stated conditions and with judgeable or
>>falsifiable/testable conditionals, are a matter for the courts (private
>>courts, in fact), but vague promises, advertisements, propaganda, etc.
>>are not.
>
>>Clear now?
>
>Well I would have to dissagre. Advertisements should be covered under
>contract law as verbal contracts. If I advertise that "X" does "Y" but it
>really does "Z" then this is clearly fraudulent behavior.
>
>The difficulty is in proving that "X" does "Z" and not "Y" but that is an
>exercise left to the civil courts.

I agree that advertisements are in many cases a verbal contract ("does
0-60mph in 5 seconds flat"), but this seems to be intrinsically messy. 
There aren't any simple, clear-cut rules that separate advertising
from other speech. 

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... 

-- 
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

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.

Much speech indisputably "causes harm." Some harm is economic, some harm is
pyschogical, some harm is even physical.

Much of this speech remains protected, even in these times where the
Constitution has suffered decay. For example, one of the tests for libel
and slander, to name an example where "harm" is usually claimed, is
"knowingly false."

And in commercial areas, much "harm" is done by businesses to other
businesses, and yet this is (properly) protected. When a business
advertises its lower prices, or cites endorsements from luminaries, this is
"speech." If another business is "harmed" by this speech, is there
"redress"?

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.

The example of "falsely shouting "Fire!" in a crowded theater" (I inserted
the word "falsely" as this is often left out by folks, and is of course
central to the point) is well-trod ground. The SC Justice who used this
later said he wished he'd never used the expression, as it was used by all
manner of people seeking to limit speech.

Spam is a name for "unwanted communications." The proper solution is
technological/ontological, e.g., metering. It is a defect of our current
e-mail model that one can deliver a million pieces of e-mail for no cost.
This will be fixed, and is a solution vastly preferable to having a
government agency decide which communications are permissable and which are
not.

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

--Tim May

There's something wrong when I'm a felon under an increasing number of laws.
Only one response to the key grabbers is warranted: "Death to Tyrants!"
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^1398269     | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

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

"William H. Geiger III" <whgiii@amaranth.com> writes:

> In <Pine.GSO.3.95.970608053415.20770A-100000@well.com>, on 06/08/97
>    at 07:36 AM, Declan McCullagh <declan@well.com> said:
>
> >I don't think commercial speech should be treated as second-class speech.
> >But my position is hardly surprising.
>
> Well I think that there are some that would confuse the issue between 1st
> Amendment free speech and the issues surrounding fraud. Especially those
> in government who write the laws that regulate commercial speech.

Sure - it's their means of livelyhood :-)

Now, "fraud" suggests that the onus is on the gumbint to prove that the
claim is false.

However if I were to market "borshch" by mail order as a cure for cancer,
I'd be asked to "prove" in some ridiculous unscientific ways that it does
indeed cure cancer - spending $100M, which only the few large drug companies
can affort - suits them and the FDA just fine.

Troll: and how about them proposed restrictions on tobacco advertising...

---

Dr.Dimitri Vulis KOTM
Brighton Beach Boardwalk BBS, Forest Hills, N.Y.: +1-718-261-2013, 14.4Kbps

> 
> Troll: and how about them proposed restrictions on tobacco advertising...
> 

Troll-Response: The UK government has recently proposed a ban on all 
tobacco advertising (should be in place within a few months) including 
sponsorship of sport etc. Time to dust of the barbeque, we`re gonna have 
us a statist roast ;-)...

        Datacomms Technologies data security
       Paul Bradley, Paul@fatmans.demon.co.uk
  Paul@crypto.uk.eu.org, Paul@cryptography.uk.eu.org    
       Http://www.cryptography.home.ml.org/
      Email for PGP public key, ID: FC76DA85
     "Don`t forget to mount a scratch monkey"

Paul Bradley <paul@fatmans.demon.co.uk> writes:
> > Troll: and how about them proposed restrictions on tobacco advertising...
> >
>
> Troll-Response: The UK government has recently proposed a ban on all
> tobacco advertising (should be in place within a few months) including
> sponsorship of sport etc. Time to dust of the barbeque, we`re gonna have
> us a statist roast ;-)...

In China and thereabouts (Mongolia, Malaysia...) tobacco companies are
sponsoring sports events and creating professional sports leagues where
otherwise the market wouldn't bear them.

---

Dr.Dimitri Vulis KOTM
Brighton Beach Boardwalk BBS, Forest Hills, N.Y.: +1-718-261-2013, 14.4Kbps

On Sun, Jun 08, 1997 at 07:51:37AM -0500, William H. Geiger III wrote:
>In <Pine.GSO.3.95.970608053415.20770A-100000@well.com>, on 06/08/97 
>   at 07:36 AM, Declan McCullagh <declan@well.com> said:
>
>>I don't think commercial speech should be treated as second-class speech.
>>But my position is hardly surprising. 
>
>Well I think that there are some that would confuse the issue between 1st
>Amendment free speech and the issues surrounding fraud. Especially those
>in government who write the laws that regulate commercial speech.
>

The prospectus is a legal document -- part of the contract between the
mutual fund and the customer. 

So, the question is, should there be any legal constraints on the 
"speech" in contracts?  Can I sign a contract, and later be able to 
say "Oh, *that* clause!  That was just a *joke*"?

-- 
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

> The prospectus is a legal document -- part of the contract between the
> mutual fund and the customer. 
> 
> So, the question is, should there be any legal constraints on the 
> "speech" in contracts?  

Of course, a contract is a binding document, that does not imply that 
there should be any legal constraint on the speech within that contract. 
If I sign a contract which says that I must kill myself on demand, and 
the penalty for breach of contract in this case is a fine of say $5000, I 
am certainly stupid if I sign such a contract, assuming that is that I am 
logical and not suicidal, I must later decide if I value my life at over 
$5000, I assure you, this is not a difficult question to answer ;-).

The point is that breach of contract shouldn`t be a criminal offence, it 
is a civil offence, and the penalties for breach of contract should be 
agreed during negotiation of that contract. Therefore, I must evaluate 
for myself if I consider the contract to be reasonable and if I consider 
the penalties for breach of that contract too great to risk incurring 
such penaties. There is no reason to suggest that contractural speech is 
protected in this fashion, as it is an agreement and not pure speech.

>Can I sign a contract, and later be able to 
> say "Oh, *that* clause!  That was just a *joke*"?

This is a straw man, there is no way you can equate contractural speech 
and other forms of speech, one takes the form of an agreement, the civil 
crime commited on breach of contract is not a form of speech, it is an 
overt act which breaks that contract. 

        Datacomms Technologies data security
       Paul Bradley, Paul@fatmans.demon.co.uk
  Paul@crypto.uk.eu.org, Paul@cryptography.uk.eu.org    
       Http://www.cryptography.home.ml.org/
      Email for PGP public key, ID: FC76DA85
     "Don`t forget to mount a scratch monkey"

Paul Bradley <paul@fatmans.demon.co.uk> writes:

> > The prospectus is a legal document -- part of the contract between the
> > mutual fund and the customer.
> >
> > So, the question is, should there be any legal constraints on the
> > "speech" in contracts?
>
> Of course, a contract is a binding document, that does not imply that
> there should be any legal constraint on the speech within that contract.
> If I sign a contract which says that I must kill myself on demand, and
> the penalty for breach of contract in this case is a fine of say $5000, I
> am certainly stupid if I sign such a contract, assuming that is that I am
> logical and not suicidal, I must later decide if I value my life at over
> $5000, I assure you, this is not a difficult question to answer ;-).

I don't know how they phrase it in the UK, but in the US such a contract
would violate "public policy" and is therefore unenforceable.

> The point is that breach of contract shouldn`t be a criminal offence, it
> is a civil offence, and the penalties for breach of contract should be
> agreed during negotiation of that contract. Therefore, I must evaluate
> for myself if I consider the contract to be reasonable and if I consider
> the penalties for breach of that contract too great to risk incurring
> such penaties. There is no reason to suggest that contractural speech is
> protected in this fashion, as it is an agreement and not pure speech.
>
> >Can I sign a contract, and later be able to
> > say "Oh, *that* clause!  That was just a *joke*"?
>
> This is a straw man, there is no way you can equate contractural speech
> and other forms of speech, one takes the form of an agreement, the civil
> crime commited on breach of contract is not a form of speech, it is an
> overt act which breaks that contract.

That's a very good point.  If I commit assault/battery on Kent, the
gubmint supposedly has jurisdiction because I've violated "king's peace".

If I advertise that "borshch cures cancer" and Kent buys some borshch
from me, and dies from cancer anyway, then what's the basis for the
gubmint's involvement?

---

Dr.Dimitri Vulis KOTM
Brighton Beach Boardwalk BBS, Forest Hills, N.Y.: +1-718-261-2013, 14.4Kbps

-----BEGIN PGP SIGNED MESSAGE-----

In <JumZ8D35w165w@bwalk.dm.com>, on 06/08/97 
   at 12:11 PM, dlv@bwalk.dm.com (Dr.Dimitri Vulis KOTM) said:

>If I advertise that "borshch cures cancer" and Kent buys some borshch
>from me, and dies from cancer anyway, then what's the basis for the
>gubmint's involvement?

Fraud, which is just a special case of theift (theift by deception).

What you are selling is not borshch but a cure for cancer (which happens
to be borshch). Since your cure does not work this is seen as fraud which
is theift and thus the government steps in.

No if some disintrested 3rd party claims that borshch cures cancer, and
you sell borshch, there is no fraud if the borshch does not cure cancer as
you are just selling borshch which is all the you claimed it was. The 3rd
party is not guilty of fraud as they have not entered into any contractual
agreement with the buyer of the borshch.

- -- 
- ---------------------------------------------------------------
William H. Geiger III  http://www.amaranth.com/~whgiii
Geiger Consulting    Cooking With Warp 4.0

Author of E-Secure - PGP Front End for MR/2 Ice
PGP & MR/2 the only way for secure e-mail.
OS/2 PGP 2.6.3a at: http://www.amaranth.com/~whgiii/pgpmr2.html                        
- ---------------------------------------------------------------

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