The primary problem with the “free speech” argument is that it is United States of America-centric. The great majority of jurisdictions in the world don't recognise the “freedoms” granted by the United States Constitution. In many jurisdictions of the world, speaking your mind—“speaking freely”—will land you in jail, or worse.

The second problem with the “freedom of speech” argument is that—even in the United States—the argument is irrelevant. True, you are indeed “free” to speak all you like and to write all you like. But that “freedom” stops there—you emphatically do not have the “right” or the “freedom” to encroach upon another person or upon that other person's property. Notice that one of the freedoms is that of the press. You are, for instance, quite free to write your own manifesto with the kookiest notions in the world. You are free to spend your own time and money to print a million copies of your kook manifesto. But you are not free to dump copies of your kook manifesto on another person's property. End of Story. Notice that one of the freedoms is “peaceably to assemble”, but not to riot. And so on. You are free to speak all you like and write all you like. You are not free to push your junk on somebody else who has not asked for it and doesn't want it.

This basic “Do Not Encroach” is a basic pillar of the old English Common Law, upon which much of the Constitution is built. Do Not Encroach is a part of Judaic law, and of Islamic law. Do Not Encroach as a law was round long before America was discovered. Do Not Encroach was around long before there was a United States of America. Do Not Encroach was around long before there was even a United States Constitution to which a First Amendnment could be applied. When you broadcast your junk to another person's E-Mail box, you are encroaching, and liable under the law of tort. Courts in the United States have labelled this form of encroaching “Trespass to Chattel”.