Thanks to a link on Academic Blogs Wiki, I found an online article in the Harvard Journal of Law & Technology titled “Splog! or How to stop the rise of a new menace on the Internet.” I was particularly interested because of my own battles with comment spam on this blog. The article starts out with a concise definition of comment spam (which they call “link spam”) and spam blogs, and an overview of the extent of the problem. Then the authors explore the legal ramifications of trying to regulate comment spammers and spam bloggers. They conclude that some regulation would be both constitutionally allowable and realistically enforcable….

…Congress should enact a law proscribing the use of automated software to post to blogs, wikis, and blog comments. Because this approach would not target speech directly, the government can constitutionally attack the incentives of spammers. First, the proscription should codify the Central Hudson test for commercial speech. The government has a substantial interest in protecting the “user efficiency” of bloggers and Internet readers and the vitality of an important new method of speech. Also, this method of furthering the government’s interest is a “reasonable fit.” It directly advances the government’s interests by limiting the quantity of spam blogs and freeing up the blogosphere for productive free speech activity. Furthermore, it is not more extensive or intrusive then it needs to be, since it prevents spam blogs from proliferating in great numbers but does not prevent any particular type of speech from being posted to the Internet. In fact, the law would function much like certain portions of the CAN-SPAM Act, already enacted into law.

A ban on automatically created spam blogs and link spam should withstand constitutional analysis even if some spam is found to be non-commercial speech. The proposed regulation is content-neutral in that it is “justified without reference to the content of the regulated speech” posted to the Internet. Any currently posted spam blog could be re-posted without offending the new law, as long as it is not reposted with automated software. As such, the law is a content-neutral manner restriction on posting material to the Internet. Furthermore, it is an acceptable manner restriction because it is narrowly tailored to the problem being addressed — the large quantity of spam blogs and comment spam — and “leave[s] open ample alternative channels for communication of the information.” As noted, the spammers can still use the same forums and avenues for spamming, just without the benefit of automated programs and open proxies. Indeed, such a regulation would be akin to laws that prevent the use of loudspeakers on city streets or limit decibel levels at concerts. Spammers can still get their “message” across, just at lower “volumes.”

[pp. 483-484, Harvard Journal of Law & Technology, vol. 19 no. 2, spring 2006.]

The authors are fairly realistic about the possibility of enforcement — such legislation won’t eliminate comment spam and spam blogs, but at least it provides a minimal level of legal protection. Or I’d say this: at least it would show that Congress is committed to protecting authentic free speech on the Internet, which would in fact mean a lot to me as a blogger.

Right now, the Bad Guys are winning the range war here in Blogger Gulch, and the Good Guys (like me) are feeling like the Marshall in our little town is more interested in catching rustlers in the next county, than catching the rustlers stealing our cattle right under his nose. It almost feels as if the Marshall isn’t really interested in protecting free speech at all, he’s just interested in shooting off his gun (to hopelessly mix metaphors).

The complete article is worth reading for anyone interested in the intersection of free speech and new technology.

Link.