Whether 'Anti-Spam' Laws Violate The First Amendment
(article 8)

Why Robert Redford May Call Your House to Get Your Vote,
But He May Not Send You an Email


by
R. Jonas Geissler†

[Cite as: R. Jonas Geissler,
Whether 'Anti-Spam' Laws Violate The First Amendment,
2001 J. Online L. art. 8, par. ___.]

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Introduction

{par. 1} In the election of 2000, Pennsylvania—my home state—was among the many states considered battlegrounds for the highly-contested presidential election.[1] For many of us living in the battleground states, it was not uncommon to receive phone calls from the political camps asking for support and encouraging us to get out the vote for their candidate.[2]  In the 2000 election, this effort sometimes took the shape of pre-recorded messages from various celebrities, calling one’s home with a message about the candidate they supported.[3]

{par. 2} Not everyone was aware that these were pre-recorded messages; at least in the beginning.  So, when an out-of-state houseguest of mine answered the phone in my home and heard Robert Redford calling, she believed it to be the genuine article.  She hurriedly handed the phone to wife stating, "It’s for you," as though we had been expecting Bob to call all evening. Amusing as it was to receive calls from celebrities, it became tiresome to be inundated by the sheer amount of voter solicitation from television, direct mail, print media, radio broadcast, and phone calls during the 2000 election. I took some consolation from the fact that when I used my email or accessed the Internet I was not attacked with the same barrage of junk mail that filled my conventional mailbox everyday.  Unless I had signed up for an email listserv about the campaign or sought out a political party’s web page, I was not given information on the election involuntarily through these media.  Even though email and the Internet are efficient and price-effective media, they were not used by the major campaigns as the conventional media were for push-type communications, i.e. those communications that come to the passive listener rather than those specifically sought out by the listener.[4]

{par. 3} Why didn’t Robert Redford write me an email, though, if he was willing to call my home about his favorite candidate?  Some states’ legislation stood in the way of any political party sending unsolicited email en masse in the same fashion the major parties had sent unsolicited conventional mail and phone calls.[5]  Unsolicited, bulk email, often called spam,[6] is illegal to send in many states and is the subject of proposed federal restrictions.[7]

{par. 4} Since spamming is currently an unsettled area of the law and different attempts at legislation are either pending, have failed, or are being challenged in the courts, the topic is ripe for investigation. This article outlines the constitutionality, under a first amendment analysis, of the proposed federal anti-spam law with regard to a limited area of speech: political speech. In order to do this, this article will: (1) establish the basis for anti-spam laws, (2) establish a doctrinal framework in which to analyze anti-spam laws that affect political speech, (3) analyze the current necessity for anti-spam laws, and (4) conclude that anti-spam laws, as presently proposed, are unconstitutional.

Anti-Spam Laws Are Based at Most on a Substantial Government Interest

{par. 5} In the proposed federal anti-spam statute—the object of this article’s analysis—the federal government claims a substantial interest in regulating spam based on (1) the cost to Internet Service Providers ("ISPs"), and (2) the recipients right to decline to receive spam directed at themselves or their children.[8]  Though email is sent for free by individuals, there is a cost associated with moving and storing the volume of email over the Internet.[9]

{par. 6} The government has a legitimate interest in protecting the mental equanimity of individuals.  Courts have held that restrictions of free speech in the use of loudspeakers in public places were constitutional because the government had an interest in protecting the quiet and tranquility of individuals.[10]  Similarly, spam is received in email inboxes. The email may be read at work or home, but, regardless of where it is read, it is directed at the individual who cannot merely look away.[11]  Until the recipient has read the content of the email its nature may not be evident; but, once read, its damage to the reader, if any, is done. Individuals’ rights to be free of governmental intrusion into their beliefs within their homes,[12] however, mitigates the government’s interests.  Therefore, the government should not make a regulation so intrusive that the regulation itself outweighs individuals’ mental equanimity.

{par. 7} The right to free expression is protected by the federal constitution.[13]  This right encompasses written speech, such as email. Even unpopular speech is entitled to protection,[14] although some restrictions on free speech are constitutional.  To place anti-spam laws that affect political speech into the proper doctrinal framework, one must: (1) briefly distinguish types of restrictions on free speech and the proper tests for each, (2) establish the speech characteristics of spam relative to the proposed federal anti-spam law, and (3) place the anti-spam law in the proper doctrinal test.

Restrictions on Free Speech Are Based on the Speech’s Content or on Its Collateral Effect

{par. 8} Restrictions on free speech can be divided into restrictions based on the content of the speech, and restrictions based on the adverse effects associated with the speech regardless of its content.  The Supreme Court has found that certain categories of speech content are not entitled to full free-speech protection.  These categories include: obscenity,[15] advocacy of imminent lawless behavior,[16] defamation,[17] "fighting words"[18] and speech that is, itself, criminal, e.g. solicitation.[19] Placement of speech into one of these categories is tantamount to an acknowledgement that the speech cannot be nullified by the introduction of yet more speech.  Such a categorization emphasizes the value of meaningful dialogue by excluding from protection utterances that are not part of the "exposition of ideas" or of "slight social value as a step to[ward] truth."[20] 

{par. 9} In order to be constitutional, however, the categorization must be neutral as to the content of the particular utterance.[21]  It is axiomatic that spam that fits into one of the court-ordained categories of unprotected speech such as obscenity would not be protected speech, even in the absence of an anti-spam law.[22] A restriction based on content that does not fall into these categories is presumed unconstitutional. An anti-spam law that were based on a particular type of content would be presumptively unconstitutional. Content-based regulations are subject to a strict-scrutiny test in which the government must show that the regulation is "necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end."[23]  The means will not be the least restrictive, i.e. most narrowly drawn, if the effect of the content of the speech can be effectively be rebutted by the introduction of more speech into the marketplace of ideas.[24] Speech that is "commercial," however, is an exception to this general rule. Commercial speech may be subject to a regulation without passing the test of strict scrutiny; rather, such speech is subject to an "intermediate scrutiny" analysis.[25]

{par. 10} A second type of restriction on free speech comprises regulations that relate not to the content of speech, but rather to the time, place, and manner of speech.[26]  If the government imposes a restriction on speech unrelated to content , but, instead, based on the independent impact of the speech, a court will apply a two-part test to determine if the restriction is, in fact, content neutral. The court will review the statute to determine whether, on its face, it actually does target the content of the speech.  If it does, the statute is not content-neutral and is therefore subject to the strict scrutiny review applied to content-based restrictions.[27]  Second, even if the statute is facially neutral, the court will determine whether it was intended to suppress certain types of expression.[28]  If so, the statute is again subject to a strict scrutiny analysis. If the statute passes this two-prong test, however, it is a content-neutral restriction on free speech.

{par. 11} Content-neutral speech restrictions are assessed with regard to the particular forum. If the restriction applies to a public forum then the significant government’s interest embodied in the content-neutral statute must outweigh the individual’s interest in free expression in the public forum.  Additionally, the restriction must not close adequate alternative channels[29] and it must be narrowly tailored.[30]  If the content-neutral restriction applies to speech in a non-public forum, then the government need only show that the restriction is rationally related to a legitimate government interest, so long as the restriction’s impairment of expression is not substantial, i.e. that there are other channels open to the speaker to reach the same audience.  If, however, the restriction’s impairment of expression is substantial—if there are no alternative channels to reach the same audience—then the government must show that the restriction is narrowly tailored to further a significant government interest.[31]

{par. 12} Regardless of  where a restriction falls into this framework, courts may also strike it down if it is overbroad or vague.    A restriction is overbroad if it sweeps into its reach speech or behavior that is otherwise protected by guarantees of free speech.[32]  A restriction is vague if it fails to clearly identify the proscribed conduct.[33]  To strike down  an entire statute under the overbreadth doctrine—rather than ruling a particular application of the statute unconstitutional—the burden on free speech must be substantial.[34]

{par. 13} When the Court considers political speech, the level of scrutiny is typically "strict," though political speech may still be subject to certain content-neutral restrictions such as time, place and manner restrictions, and special content based restrictions such as electioneering laws limiting campaigning within the vicinity of a polling place.  Political speech is deemed to be at the core of First Amendment values; it is therefore entitled to the greatest possible protection.

The Speech Characteristics of Spam

{par. 14} Three distinctions must be established before we can undertake a first amendment analysis.  First, because spam is directed at individuals or organizations’ email accounts, it is not speech in a public forum.     Second, like current state statutes,[35] the proposed federal anti-spam law[36] applies to commercial speech. The distinction between commercial and non-commercial speech is significant even though, as we shall see, determining the commercial quality of email speech if often difficult.  Third, many of the cases that have thus far dealt with spam have been efforts by the plaintiffs to seek temporary restraining orders or permanent injunctions against the spammers.  Because anti-spam laws act to block all speech in a manner similar to those cases, i.e. by imposing a limitation on the sending of emails over private networks, this article treats the proposed federal anti-spam statute as a prior restraint on free speech.

Private Email Accounts Are Not Public Fora

{par. 15} A forum is public if it is specifically designated as such or if its characteristics meet a two-part test: (1) the forum is traditionally used for assembly and expression, and (2) the forum’s principle purpose is to allow the free exchange of ideas.[37]

{par. 16} Email accounts are not designated public fora.  Whereas a bulletin board service or Internet chat room might specifically be designated by their respective managers as public fora, an individual’s email account cannot be presumed to be so designated.  In fact, restrictions on the sending of unsolicited mail by ISPs would imply the contrary:  that email mailboxes are specifically not designated public fora.

{par. 17} Email mailboxes do not meet the two-part test for a public forum, either. Admittedly, there is very little tradition to apply to the first prong of the test.  Popular use of email is not a long-standing tradition but a relatively recent development.  The Court has ruled that conventional home mailboxes do not constitute public fora.[38]   By analogy, then, individual’s email mailboxes are not public fora either.  Additionally, though email mailboxes may be used for the exchange of ideas, they are not necessarily intended for the "free" exchange of ideas. Again, ISPs’ restrictive terms of use for distribution of mass email to their email account holders imply that individuals’ email accounts are not a site for the free exchange of ideas. Therefore, either by analogy to conventional mailboxes or by their own characteristics under a public-forum analysis, email mailboxes are not public fora.

The Proposed Federal Statute Defines Spam as Commercial Email

{par. 18} The proposed federal anti-spam law does not use the term spam, but, instead, refers to unsolicited "commercial electronic mail messages."[39] Since by its plain language, the statute is intended to affect "commercial electronic mail messages," the definition of this term is crucial to the constitutional analysis of the statute as a whole. The act defines "commercial electronic mail message" as:

{par. 19} any electronic mail message that primarily advertises or promotes the commercial availability of a product or service for profit or invites the recipient to view content on an Internet web site that is operated for a commercial purpose. An electronic mail message shall not be considered to be a commercial electronic mail message solely because such message includes a reference to a commercial entity that serves to identify the initiator.[40]
 

{par. 20} The act does not define "for profit," or "commercial purpose." Singling out commercial spam, as opposed to a prohibition on all spam, is a content-based restriction on the exercise of free speech. Commercial speech, however, is not entitled to the same level of protection as non-commercial speech.[41]

{par. 21} The characteristics of spam make drawing a line between commercial and non-commercial speech difficult, if not impossible, in some circumstances. Take, for example, an email that directs the recipient to view a web page that is intended to induce the viewer to purchase partisan literature or make donations to a political group.[42]  Though the solicitation of donations or subscriptions may not seem to fit the for-profit requirement at first, consider that that requirement is not defined.  If the organization seeking donations is not incorporated as a non-profit organization, is a donation to it "for profit"?  If the organization or its leaders make money from subscriptions to support themselves, do the subscription fees count as profit?

{par. 22} Given that the definition of commercial electronic mail message is divided by the placement of "or" in the beginning and end of   the first sentence, an email message may meet the definition if the message: (1) primarily advertises, (2) promotes commercial availability of a product or service for profit, or (3) invites the recipient to view the content on an Internet web site that is operated for a commercial purpose. Therefore, a message that has nothing whatsoever to do with profit would nonetheless be subject to statutory restriction, as long as the message invites the recipient to view an Internet website operated for a commercial purpose.  Like the undefined "profit" characteristic, the undefined "commercial purpose" characteristic fails to clarify what email may fall within the statute. For example, if the AFL/CIO sent an unsolicited email, en masse, to non-members, would it be for a commercial purpose?  Trade unions have a commercial purpose, namely the greater reward for their members’ labor, but they may also want to send a message that could be viewed as political, e.g., buy American. Would such a message be commercial from this sender, since the adoption of the point of view would result in commercial gain, but not be commercial from another sender who would not directly gain?

{par. 23} None of the three aforementioned defined characteristics of unsolicited commercial electronic mail messages in the first sentence of the definition contain a de minimis exception.  Nor is there such an exception contained elsewhere in the proposed statute. Therefore, it would appear that if an unsolicited email directs the recipient to a website, it would be considered a commercial email if that website contained any reference to an item for sale or even to the making of donations.  Taken to an extreme, this may even include email directing the reader to websites that contain links to yet other web sites that may have items for sale or a solicitation of donations.

{par. 24} When, indeed, a message is mixed and has both political and non-political content, it becomes difficult for to characterize as political on non-political. Such a determination is itself a political question.  For example, one court may view an unsolicited message sent from a separatist group,[43] en masse, to non-members, as a political message; whereas, another court may view the same message as a terrorist threat, particularly if the message advocates violence against a class of people of which the email recipient is a member. The question of the political nature of something is non-justiciable,[44] in part because it places values on the substance of the political argument.  The proposed legislation would burden courts with the task of determining the value of political speech. Consider also that if a reader determined that an email was commercial –say, because it solicited a donation– he could file a complaint with the Federal Trade Commission ("FTC") under the proposed statute and force the political organization which sent the email to defend against any resulting claim.[45]  There would be an obvious chilling effect on the free exchange of ideas from this threat of FTC action.  Fear of having to defend against such an action could lead to a wholesale avoidance of mass email communications of any type.

The Proposed Anti-Spam Statute Acts as a Prior Restraint on Free Speech by the Government

{par. 25} The proposed federal anti-spam law provides a punishment for the use of an ISP’s network to send spam;[46] the threat of punishment operates as a prior restraint on the exercise of free speech since its effect is the same as an injunction[47] —namely, it allows the ISP to license which sender, if any, may use its network and block all others even before a message is sent.  The Supreme Court has adopted a strong presumption disfavoring prior restraints on the exercise of free speech.[48]  Earlier private civil actions by ISPs against spammers have often centered on petitions by the ISPs for temporary restraining orders or permanent injunctions against spammers’ use of the ISPs’ networks.[49]  The proposed federal anti-spam law criminalizes any attempt to use a network in violation of the private provider’s terms of use.[50]  The statute, therefore, provides state action to enforce a prior restraint on the use of the ISPs’ networks for spam speech. This state enforcement of the ISP’s terms of service vitiates the distinction made by the court in Cyber Promotions v. America Online, Inc. ("AOL"), namely that AOL’s terms of service could not be challenged on constitutional grounds because AOL was not a state actor.[51]  Therefore, even though ISPs are not governmental entities, there is a significant and close nexus between their action to restrict network use and government enforcement, under the proposed statute, that the ISPs’ licensing or outright restriction on mass email have the effect of a prior restraint placed on speech by the government.

Anti-Spam Restrictions on Free Speech Can Be Parsed into Content-Based and Non-Content-Based Restrictions

{par. 26} The proposed anti-spam law would regulate spam in five ways: (1) criminalizing fraudulent routing information;[52] (2) requiring a valid return address on email;[53] (3) prohibiting the sending of unsolicited commercial email to a recipient after that recipient has requested to be removed from mail lists under the sender’s control;[54] (4) requiring unsolicited commercial email to be self-identified as such and to include a notice of an option to opt-out of future mailings from that sender;[55] and (5) as mentioned previously, criminalizing the use of an ISP’s network equipment to send unsolicited commercial email in contravention of the ISP’s policy governing use of its equipment.[56]  These restrictions can be placed into two groups: (1) those restrictions on the time, place, and manner of unsolicited email; and (2) those restrictions based on the content of email.

The Time, Place and Manner Restrictions Meet Constitutional Scrutiny.

{par. 27} Criminalizing fraudulent routing information and requiring a valid return address appear to be time, place and manner restrictions.  The former may even be a separately proscribed category of speech, i.e. speech that is itself criminal, if the recipient relies to his detriment on fraudulent routing information.  Therefore, these provisions will be subject to a facial review of neutrality and a determination of whether the government intends to suppress certain types of expression,.  If the restrictions pass these two prongs then the government need only show that the restrictions are rationally related to a legitimate government interest.

{par. 28} Both the routing and return address provisions apply only to unsolicited commercial electronic mail; nonetheless, the requirements, even if applied to all electronic mail, do appear facially neutral.  The fraudulent routing information provision forbids the intentional transmission of a message to a computer in the United States: "with knowledge that any domain name, header information, date or time stamp, originating electronic mail address, or other information identifying the initiator or the routing … [be] false or misleading."[57]  The return address provision requires that the initiator of a message to a recipient in the United States include: "a valid electronic mail address, conspicuously displayed, to which a recipient may send a reply to the initiator to indicate a desire not to receive any further messages."[58]  These requirements also appear to be facially neutral inasmuch as they impose an equal burden on all speakers.  Therefore, they pass the first prong of the non-content-based analysis.

{par. 29} The restrictions do not appear aimed at the suppression of any given expression either. Alternative channels of communication are open to all speakers through the Internet—opt-in mail lists, bulletin board services, chat rooms, paid or exchanged advertisement on other websites—or through conventional media.  The non-content-based restrictions impose the same burden on any initiator of an email message that falls within the definition of unsolicited commercial email, which could broadly include any initiator; therefore, the restrictions pass the second prong of the non-content-based analysis.

{par. 30} The requirement that all spam be sent with an accurate return address to which the recipient may respond is similar to existing requirements on conventional mail.[59]  At first blush, it may appear that such a requirement eliminates the anonymity of the sender, such that he or she must then fear retribution for his or her speech.  In the context of a political message, anonymity can be crucial to the speaker’s right to speak freely and is, therefore, constitutionally protected.[60]  Anonymity protects the speaker from fear of retribution and "ensures that readers will not prejudge [the writer’s] message simply because they do not like its proponent."[61]  Anonymity can be preserved in email, however, even when the sender provides an accurate return email address.  The sender’s email address need not be descriptive of him or her; it can be a combination of numbers and letters bearing no relation to the sender. Therefore, the sender would remain anonymous to all but the most astute email users who may be able to trace the path of the email, but still may not be able to identify the individual writer.  This situation is analogous to a conventional mail sender who lists only a post office box address for his or her return address. The sender is anonymous to the recipient, yet the recipient is able to reply to the sender. Thus the anti-spam proposal preserves mental equanimity by allowing recipients to opt out of future mailings. A deliberate process is also created: a sender of bulk emails may also receive responses causing the sender to consider other points of view. This deliberative process may raise the quality of speech by debate.

Content-Based Restrictions Fail Constitutional Scrutiny

{par. 31} The other restrictions of the proposed legislation relate to the content of the message. These restrictions must pass a content-based analysis, namely that the restriction must be narrowly tailored to meet a compelling government interest,[62] unless it is limited to commercial speech, in which case the government interest need only be no more extensive then necessary to meet a substantial government interest.[63]  The opt-out provisions may survive either of these tests, but the enforcement of ISPs terms of use is not narrowly tailored, and it is more extensive than necessary.

{par. 32} The legislation would give the recipients of spam the right to opt out of future mailings.[64]  In the closely analogous case of conventional mail delivered through the U.S. Postal Service, the Court has upheld a law that allowed a mail recipient to obtain a post office order removing the recipient from the mailer’s mailing list.[65]  "A mailer’s right to communicate must stop at the mailbox of an unreceptive addressee."[66]  This proscription is narrowly tailored to the individual addressee and meets the compelling interest of the government in protecting recipients who have that they do not wish to receive email from a specific sender; the opt-out requirement is therefore constitutional.

{par. 33} The proposed federal statute also puts the power of state action behind private ISP’s.[67]  In so doing, the statute dissolves the doctrinal basis on which one court upheld an ISP’s use of filtering software to screen out spam as not violative of the first amendment because the ISP was not a state actor.[68]  Therefore, the government’s enforcement of private actors’ terms of use may violate a sender’s first amendment rights if the terms of use, and not the federal statute, would fail a first amendment analysis. To minimize the implication of governmental action in enforcing private ISPs’ terms of use, the Act includes limiting criteria.[69]  These limiting criteria require that ISPs give notice of their terms of use they do not require compliance with any set criteria, nor do they limit the government enforcement of the ISPs’ terms of use. Therefore, the provision providing for enforcement of ISPs terms of service is an unconstitutional broadsword used to remove cancerous spam where the scalpel of a limited regulation would be more easily justified, e.g. the non-content-based return address requirement of the anti-spam law. Given the mixed commercial and non-commercial content of email that would fall within the anti-spam law’s broad sweep, some non-commercial messages would be proscribed while others would escape censorship based on the government’s interpretation of the content. A case challenging this statutory scheme would be analogous to the case of Metromedia, Inc. v. San Diego.[70]  In that case, the Court stuck down portions of San Diego’s ordinance which prohibited billboards containing some non-commercial speech while excepting certain other categories of non-political speech. Though the Court acknowledged that commercial speech may be subject to  more restrictions than non-commercial speech, the Court found that the government may not choose among the non-commercial messages those subjects it deems appropriate for public disclosure.[71]

{par. 34} Even if the proposed federal anti-spam law survives all other doctrinal scrutiny, the overbreadth doctrine may be its undoing.  A restriction on all expression in a given forum—even a non-public forum such as email—is overbroad because no conceivable government interest can justify an absolute prohibition on speech.[72]  The state action behind enforcement of ISPs’ terms of use sweeps within the ambit of the statute’s prohibition virtually all speech sent through an ISP; therefore the statute is overbroad.

Anti-Spam Laws Are Neither Appropriate Nor Necessary

{par. 35} The marketplace of ideas can regulate spam without the need for further government regulation.  As earlier mentioned, the introduction of other speech into the market place may obviate the need for government regulation if the new speech can counteract the speech the government wants to proscribe.  Moreover, email users have the ability affirmatively to reject unwanted spam without government regulation.  Free Internet services are available that filter mail messages from known spammers.[73]  Email users may subscribe to voluntary opt-in email marketing services.[74]  By sending messages through such services, legitimate commercial emailers can reach consumers interested in their product or service without the need for government regulation to protect disinterested email users from unsolicited messages. Even if the marketplace could not regulate spam, existing law can regulate the most egregious forms of spam such as pyramid schemes and inducements to send money for non-existent products, without the need for a sweeping restriction on First Amendment rights.[75]  Spam is, for example, apt to be considered a trespass.[76]

{par. 36} Regulation of email, which is sent and received globally even if the regulation is restricted to computers in the United States, places the United States in the role of policing a world where not all countries share the same values for free speech. The United States has made it official policy to recognize the global quality of the Internet and its limited role in the regulation of the Internet.[77]  An attempt to interject itself in the governance and policing of the Internet would be contrary to the established policy of the federal government.[78]

Conclusion

{par. 37} The proposed federal anti-spam law would unconstitutionally limit speech because the government interest in preventing mere annoyance is not the sort of compelling interest needed to limit core political speech—the inevitable effect of the proposed statute. Adequate responses to the problem of spamming already exist. Spamming can be regulated by private civil actions, by public criminal actions, and by the market place of ideas, without the need for a separate general anti-spam law. Any attempt to impose specific anti-spam regulations beyond mere time, place and manner restrictions such as requiring accurate return addresses, would needlessly and unconstitutionally limit free speech.

 


FOOTNOTES

† College of William and Mary in Virginia, B.A., 1996; Villanova University School of Law, J.D., 2001.

 

[1] Bush, Gore Storm Battleground Sates, available at http://www.cnn.com/2000/ALLPOLITICS/stories /10/28/campaign.wrap.01/index.html (last modified Oct. 28, 2000) (identifying Pennsylvania as among the battleground states in the view of the two major party candidates for president in the 2000 election).

 

[2] Calling All Voters, available at http://abcnews.go.com/sections/politics/DailyNews/campaigntele marketing0001103.html (last modified Nov. 4, 2000) (explaining: "In the final days of the election year, candidates have launched a flurry of targeted telephone campaigns in key states").

[3] Ibid. (listing comedian Bill Cosby, actor Robert Redford, former candidates Elizabeth Dole and John McCain, poet Maya Angelou and former car executive Lee Iacocca among the celebrities who pre-recorded phone messages which were then directed at key campaign states).

[4] Timothy Wu, Application-Centered Internet Analysis, 85 Va. L. Rev. 1163, 1171-72 (1999) (comparing the invasive nature of television and radio—push technologies—with the internet which can be used as either an invasive or non-invasive manner).

[5] Margaret Smith Kubiszyn, Federal and State Legislative Attempts to "Can" Spam, available at http://www.gigalaw. com/articles/kubiszyn-2000-08-p1.html (Aug. 2000) (outlining the attempts of many states to outlaw spam or place restrictions on unsolicited email).

[6] Lloyd L. Rich, Internet Legal Issues: SPAM, available at http://www.publaw.com/spam.html (1999) (defining spam as a term coined in the early 1990’s to describe email messages sent to newsgroups that were not related to the topic of discussion). Spam is unsolicited email, sent in masse, usually of a commercial nature.  Id. Often spam advertises "dubious products, get-rich-quick schemes, or quasi-legal services."  Id.   

[7] See note 5, supra; see also 2001 Cong. U.S. H.R. 718, 107th Congress, 1st Session, Unsolicited Commercial Electronic Mail Act of 2001 (introduced January 3, 2001).

[8] 2001 Cong. U.S. H.R. 718, Sec 2(b), 107th Congress, 1st Session, Unsolicited Commercial Electronic Mail Act of 2001 (characterizing the government interest as "substantial," but not even claiming a compelling interest).

[9] See Time Digital, The War on Spam Heats Up, Anti-spam activists are taking their cause to the Net, and to the courts, available at http://www.time.com/time/digital/daily /0,2822,28398,00.html (originally published July 22, 1999) (citing a Coalition Against Unsolicited Email (CAUCE) estimate that it costs ISPs up to $7.00 per user, per year to move email over the Internet). 

[10] Kovacs v. Cooper, 336 U.S. 77 (1949) (holding that a restriction of "loud and raucous noises" was a valid restriction on the time, place and manner of speech). 

[11] Cf. Cohen v. California, 403 U.S. 15 (1971) (holding that "fuck the draft" written on a jacket in public was profane speech, but nevertheless entitled to protection because, among other rational, the public could turn away) The public is not a captive audience to such a situation, but in the case of spam, the email subject line may not disclose the profane content of the message, of may itself be profane. Therefore, the recipient may be a captive audience inasmuch as he/she is either subject to an immediately profane message, in the case of a profane subject line, or tricked into opening a profane message, in the case of a deceiving subject line with profane content behind it. The email scenario often fits into J. Harlan’s criteria that a reader must be in his/her home to be a captive audience. Id.   

[12] Stanley v. Georgia, 394 U.S. 557 (1969).  The Internet is arguably a different scenario than merely staying within one’s home to formulate ideas and beliefs, inasmuch as the Internet allows one to reach outside the home from within; however, the Internet does not give license to the government to reach into the home of the individual who does not journey out from there to contemplate his or her beliefs, and, arguably, the individuals should have the right to receive email messages there, just as conventional mail, to help form those beliefs in a deliberative process.

[13] U.S. Const. Amend. 1 (stating: "Congress shall make no law … abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances").

[14] Abrams v. U.S., 250 U.S. 616 (1919) J. Holmes, dissenting (theorizing that even unpopular ideas should be free to compete in the market place of ideas, unless they threaten immediate unlawfulness, because "the best test of truth is the power of the thought to get itself accepted in the competition of the market").

[15] Miller v. California, 413 U.S. 15 (1973) (establishing a three-part test for obscenity; if all three parts are met, then the work is unprotected: (1) material which the average person, applying contemporary community standards would find, when taken as a whole, appeals to the prurient interest; (2) the material depicts or describes, in a patently offensive manner, sexual conduct specifically defined by applicable law; and (3) the material, when taken as a whole, lacks serious artistic, political, or scientific value).  Note that the proper community standards to apply for the Miller Test in the cyberspace paradigm are the standards in the receiving community, where the information is sent and downloaded.  See Thomas v. U.S., 74 F.3d 701 (6th Cir. 1996) (upholding a conviction of a bulletin board service operator in California who made obscene images available to a user in Tennessee, the obscenity being accessed in terms of Tennessee’s community standards).  

[16] Brandenburg v. Ohio, 395 U.S. 444 (1969) (stating that speech may be proscribed if it is intended to incite imminent lawless action, capable of inciting such action, and such action is the imminent result of the inciting speech, regardless of the seriousness of the lawless action). 

[17] New York Times v. Sullivan, 376 U.S. 254 (1964) (holding that when a public figure and a public issue are the subject of defamatory speech, the speech will still be protected unless the aggrieved party proves that the speaker had actual malice, i.e. knowledge of the statement’s falsity or reckless disregard for the statement’s truth).  Truth of the statement provides an absolute defense, if proven.  Id.

[18] Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (upholding a statute which illegalized the use of fighting words, i.e., those words that a person of common intelligence would understand to be calculated or likely to cause the average addressee to fight).

[19] See, e.g., State v. Mann, 345 S.E.2d 365 (N.C. 1986) (defining solicitation as the asking, inducing, or counseling of another to commit crime).

[20] Chaplinsky, supra, 315 U.S. 568.

[21] R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (holding a statute which restricted only racially-based fighting words, rather than all fighting words, generally, was unconstitutional).

[22] See, e.g., James Evans, Two Sentenced in Major E-Mail Spam Scam, available at http://www.cnn.com/ 2001/tech/computing/01/05/spam.scam.idg/index.html (last modified January 5, 2001) (giving an example of the application of current law to deal with fraudulent speech delivered by spam).  U.S. Attorney prosecuted two resident émigrés in U.S. for email that fraudulently induced many readers to send $35.00 each to the sender for promised moneymaking opportunities that did not exist.  Ibid.  A sample of such a fraudulent misrepresentation in an email message is stored in text form by the Electronic Frontier Foundation, on its website. See The Complete RMC Homemailorder Program, available at  http://www.eff.org/pub/Spam_cybersquatting_abuse/Spam/rmc.spam.  See also Doug Isenberg, Despite Outcry, Existing Laws Already Restrict Spam, Gigalaw.com, available at www.gigalaw.com/articles/isenberg-2000-09a-pl.html (originally published September 2000) (stating that there are already existing remedies to deal with illegitimate business solicitations via spam, even if current attempts to legislate spam, specifically, fail). 

[23] Widmar v. Vincent, 454 U.S. 263 (1981) (applying a test similar to the compelling-state-interest-and-narrowly-tailored-means test used under a due process or equal protection analysis).

[24] Abrams, supra, 250 U.S. 616.

[25] Virginia Pharmacy Bd v. Virginia Consumer Council, 425 U.S. 748 (1976) (holding commercial speech is not entitled to the same level of protection as other, non-commercial speech); Central Hudson v. Public Service Comm’n, 447 U.S. 557 (1980) (holding that commercial speech is entitled to an intermediate scrutiny protection under a four-part test for constitutionality of restrictions placed on commercial speech: (1) the commercial speech must not be otherwise unprotected, i.e. false, misleading, or concerning illegal activities; (2) there must be a substantial government interest justifying the regulation; (3) the regulation must advance the substantial government interest; and (4) the regulation must be no more extensive than necessary to advance the substantial government interest).  

[26] See generally, U.S. v. O’Brien, 391 U.S, 367 (1968) (applying a four-part test to conduct that is expressive to determine if the governments purportedly non-content based regulation of the expressive conduct is constitutional: (1) the government must have an interest unrelated to the suppression of free expression; (2) the regulation must be within the constitutional powers of Congress; (3) the regulation must further an important and substantial governmental interest; and (4) any incidental restrictions on First-Amendment rights must not be any greater than necessary to further the government interest, i.e. the regulation must not close alternative channels of communication.

[27] Chicago Police Dept. v. Mosley, 408 U.S. 92 (1972) (holding that ordinance restricting picketing near a school except for picketing related to a labor dispute there was facially content-specific; therefore, the court musty move to a strict scrutiny analysis, i.e. under the first doctrinal division: content-based restrictions).  "Government may not prohibit [people] from assembling or speaking on the basis of what they intend to say." Id.   

[28] Tinker v. Des Moines School Dist., 393 U.S. 503 (1969) (holding that a facially neutral policy to forbid wearing of armbands in school on the basis of regulating manner of speech was actually a motivated by a desire to avoid discussion of anti-war sentiment).

[29] Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981) (noting that a restriction on the time, place, and manner of speech must leave open alternative channel for communication of information"). 

[30] Clark v. Community for Creative Non-Violence, 453 U.S. 288 (1984) (noting that the narrowly tailored requirement means that the significant government interest cannot be served by a substantively less intrusive means on First Amendment interests).

[31] Ward v. Rock Against Racism, 491 U.S. 781 (1989) (holding that narrowly-tailored does not mean least-restrictive, rather the government need show that its means were not substantially broader than necessary to achieve the government interest).

[32] Thornhill v. Alabama, 310 U.S. 88 (1940).  Unlike the usual requirements of standing an overbreadth analysis will allow one to challenge the constitutionality of a restriction on free speech even if a more narrowly drawn statute to apply to him or her in a constitutional manner, but the statute, generally applied, could be overbroad.  Id.  Unlike situations in which courts find other grounds for unconstitutionality of restrictions on free speech, in an overbreadth situation, the court will not merely excise the constitutional portions; it will strike down the statute as unconstitutional on its face, until a more restrictive law is enacted. Id. 

[33] Connally v. General Construction Co., 269 U.S. 385 (1926) (defining a statute as vague when a person "of common intelligence must necessarily guess at its meaning and differs as to its application"). 

[34] Braodrick v. Oklahoma, 413 U.S. 601 (1973) (stating that: "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep"). 

[35] See, e.g., Va. St. § 18.2-152.12; Ca. Bus. & Prof. § 17538.45.

[36] 2001 Cong. U.S. H.R. 718.

[37] Lee v. International Soc. For Krishna Consciousness, 505 U.S. 830 (1992).

[38] U.S. Postal Service v. Greenburgh Civic Assns., 453 U.S. 114 (1981) (ruling that a civic group did not have a constitutional right to place unstamped mail in individual’s mailboxes). 

[39] 2001 Cong. U.S. H.R. 718.

[40] 2001 Cong. U.S. H.R. 718, Sec 3(2). Cf. Cal. Bus. & Prof. Code § 17538 (West 2001) (defining "Electronic mail advertisement" as "any mail message, the principal purpose of which is to promote, directly or indirectly, the sale or other distribution of goods or services to the recipient" (emphasis added).

[41] See Virginia Pharmacy Bd, supra, 425 U.S. 748. 

[42] See, e.g., Subscribe to the Nationalist Times, available at http://www.anu.org/subscribe-NT.html (last visited March 24, 2001) (offering hard copy subscriptions for $40.00 per year); The Socialist, Official Publication of the Socialist Party USA, available at http://sp-usa.org/socialist/ (last visited March 24, 2001) (offering hard copy subscriptions for $45.00 for 30 issues).

[43] See, e.g., The American NAZI Party, available at http://www.americannaziparty.com (last visited March 24, 2001); The Black Panther Party, available at http://www.cs.oberlin.edu/students/pjaques/etext/bpp-program.html (last visited March 24, 2001).

[44] Baker v. Carr, 369 U.S. 186 (1962).  Many of the same concerns of the Court in this case are reflected in the determination of what email content and to what degree that content is political by a court. In Baker, the Court held that political questions cannot be determined by the courts, generally, because there would be a lack of judicially manageable standards for political questions; such questions require determinations of policy—a power not entrusted to the judicial branch, but rather vested in the legislative or executive arms of the federal government; and possibility of embarrassment of the judiciary by multifarious pronouncements.  Id. When the courts are asked to apply even a narrowly tailored statute, i.e. one which criminalizes only commercial email and does not make mention to proscription of political messages, the same pitfalls of considering political questions will, undoubtedly, arise since the court would be asked to be the gatekeeper of the worldwide email system by determining which emails constitute commercial Spam and which constitute non-commercial, permissible messages.   Other concerns of the Baker Court, i.e. textual commitment of political determinations to other branches, lack of respect of the determinations of other branches, and the need for adherence to political determinations of other branches of government, may also be called into question, at least tangentially, by a court’s determination of political nature, vel non, of a mixed-content email message. 

[45] See 2001 Cong. U.S. H.R. 718, Sec 6 (providing enforcement of reported violations of prohibited practices under the statute by Federal Trade Commission investigation and order, enforceable U.S. District Court). 

[46] 2001 Cong. U.S. H.R. 718, Sec (5)(b) (illegalizing the transmission of an unsolicited commercial electronic mail message to any person within the United States in violation of the ISP’s policy for use of its equipment).

[47] See Cyber Promotions, infra, note 52.

[48] Near v. Minnesota, 283 U.S. 697 (1931) (expressing presumption against a prior restraint that would prevent speech from entering the marketplace, with the exception of (1) actual obstruction of government recruiting service, (2) publication of sailing date, troop number or movements, and the like, and (3)categories of unprotected speech).   

[49] See, e.g., Cyber Promotions, Inc. v. America Online, Inc., Civil Action No. C-96-4621 (E.D. Va. 1996) (AOL claimed it was a violation of its terms and conditions of use to distribute mass email through its network; therefore, it sough and eventually gained by settlement a preliminary injunction against the use of AOL’s network and also included a bar on Cyber Promotion’s use of AOL’s trademarks and aol.com domain name). 

[50] See 2001 Cong. U.S. H.R. 718, Sec (5)(b).

[51] See Cyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 436, 441 (E.D. Pa. 1996) (holding that "private action can only be considered state action when ‘there is a sufficiently close nexus between the State and the challenged action of [the private entity] so that the action of the latter may fairly be treated as that of the State itself’," quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)).

[52] 2001 Cong. U.S. H.R. 718, Sec 4.

[53] 2001 Cong. U.S. H.R. 718, Sec 5(a)(1).

[54] 2001 Cong. U.S. H.R. 718, Sec. 5(a)(2).

[55] 2001 Cong. U.S. H.R. 718, Sec 5(a)(3).

[56] 2001 Cong. U.S. H.R. 718, Sec. 5(b).

[57] 2001 Cong. U.S. H.R. 718, Sec. 4.

[58] 2001 Cong. U.S. H.R. 718, Sec.5(a)(1).

[59] See Rowan v. Post Office Dept., 397 U.S. 728 (enforcing statutory right to be removed from mass mail list).

[60] McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) (holding: "[a]n author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment"). 

[61] Id. 

[62] Widmar, supra, 454 U.S. 263.

[63] See Virginia Pharmacy Bd, supra, 425 U.S. 748.

[64] See, e.g, 2001 Cong. U.S. H.R. 718, Sec. 5.

[65] Rowan v. Post Office Dept., 397 U.S. 728 (1970) (upholding a law that allowed a recipient who received what he or she, in his or her sole judgment, deemed to be "erotically arousing or sexually provocative mail" to opt out of future mailings by way of a post office order to be removed from the mass mail list). See also U.S. Postal Service v. Greenburgh Civic Assns., supra, 453 U.S. 114 (holding that there was not right of public access to individuals mailboxes, even though the boxes were under government control).

[66] Rowan, supra, 397 U.S. 728.

[67] See Note 47, supra.

[68] Cyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 436 (E.D. Pa. 1996) (holding that AOL was a private network not equivalent to a state actor; therefore, AOL’s used of filtering software did not violate Cyber Promotion’s first amendment rights)

[69] H.R. 718, Sec 5(b)(2) Requirements for Enforceability. 

[70] Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981).

[71] Metromedia, 453 U.S. at 515 (holding that "[b]ecause some noncommercial messages may be conveyed on billboards throughout the commercial and industrial zones, [the city] must similarly allow billboards conveying other noncommercial messages throughout those zones").

[72] Airport Commissioners of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987).

[73] See Time Digital, The War on Spam Heats Up, Anti-spam activists are taking their cause to the Net, and to the courts, available at http://www.time.com/time/digital/daily /0,2822,28398,00.html (originally published July 22, 1999) (detailing Bright Mail, a free service of Bright Light Technologies that allows a user to have his or her email pass through the company’s server which stops any mail originating from a list of known spammers based on a list Bright Light Technologies maintains).

[74] Ibid. (explaining that Whitehat.com is an opt-in marketing services created by anti-spam advocates to allow advertisers to reach customers, who actually want to receive the advertisers’ messages, through email)

[75] See note 19, supra. See also Federal Agencies, State Attorneys General Crack down on Deceptive Mail Offers, unsolicited Faxes and "Spam," available at http://www.ftc.gov/opa/2001/01/mailbox.htm, (originally published Jan. 5, 2001) (illustrating the methods currently used to address spam without the existence of a federal anti-spam law). 

[76] See Cyber Promotions, supra, 948 F. Supp. 436.  Trespass theory has been a valid cause of action against spammers notwithstanding the opposition of some to the application of a trespass metaphor to cyberspace. See Benjamin Adida, et al., The Future of Trespass and Property in Cyberspace (last modified December 10, 1998) available at http://cyber.law.harvard.edu/ltac98/final.html. 

[77] See Management of Internet Names and Numbers, 63 Fed. Reg. at 31,748 (promising that:

The U.S. Government believes that the Internet is a global medium and that its technical management should fully reflect the global diversity of Internet users. We recognize the need for and fully support mechanisms that would ensure international input into the management of the domain name system. In withdrawing the U.S. Government from DNS management and promoting the establishment of a new, non-governmental entity to manage Internet names and addresses, a key U.S. Government objective has been to ensure that the increasingly global Internet user community has a voice in decisions affecting the Internet’s technical management.)
 

Despite this promise, the European Union appears skeptical that the United States government will actually relinquish complete control of the DNS.  See Communication from the Commission to the Council and European Parliament: The Organization and Management of the Internet International and European Policy Issues 1998-2000, at p. 14 (Apr. 7, 2000).

[78]  The only effective model for actual regulation of spam may have to come form the Internet’s self-government. David Post, Cyberspace’s Constitutional Moment, The American Lawyer, Nov. 1998. See also David Post, "Where is James Madison when we need him?" (last modified June 6, 1999) available at http://www.icannwatch.org/archive/governing_cyberspace.htm (following up the same thought as his previous article)

 
Last revised: 19-July-2001