FIRST AMENDMENT ISSUES
RELATED TO UBE

Note: for information regarding other aspects of the spam problem, see my "Stop spam!!" page.

This document addresses the issue of unsolicited broadcast email (UBE) and what relationship (if any) the First Amendment has to it, but the principles discussed here probably apply equally to junk faxes and unsolicited pager and cell phone advertising.

Currently there are laws on the books dealing with the issue of UBE in four states. The most well known laws are Californiaís1 and Washingtonís 2. Nevada3 also has a law, as does Virginia4. Maryland considered one, but didn't pass it.5.

The California law attempts to address the problem of cost shifted advertising by requiring that actors sending unsolicited electronic faxes or emails provide a toll free number or a valid return address for requests for removal. It also establishes a private right of action for email address providers to recover costs associated with UBE in the amount of $50.00 per message to a cumulative total of $25,000. It does not provide any private right of action for individuals burdened by the practice. It is an affirmative defense to the statute if the sender could reasonably have been unaware of the recipientís desire not to receive the advertising. There are no criminal penalties associated with this law.

The Washington law prohibits forged or falsified addressing information and provides for damages per message sent of $500.00 to individuals and $1000.00 for service providers. It also immunizes from liability providers who use blocking mechanisms to reduce the volume of UBE.

The Nevada statute prohibits UBE except in the case of a prior existing business relationship, when the recipient has given express consent or the material is clearly identified as advertising and "clearly and conspicuously provides" a legal name, address and return email address. The statute establishes a private right of action to recover $10.00 per message received and the right to obtain restraining orders to prevent further transmission. It does not address faxes, pagers or cell phones and does not provide for any criminal penalties.

The Virginia law is the most restrictive law in the country regarding UBE. It renders unlawful the sending of email with falsified or forged routing and transmission information when sending UBE. It also makes it unlawful to sell software designed to forge or falsify routing and other transmission information. The statute establishes criminal penalties up to a Class 6 felony and a private right of action that provides for recovery of $10.00 per message or $25,000.00 per day, whichever is less. There is some question whether the law applies only to Virginia residents or to all data passing through networks located in Virginia. The law may be the first UBE law to be challenged in the courts.

Only the Washington statute addresses the issue of financial loss incurred by an individual and establishes a private right of action for relief. There have been reports of individuals suing under the Washington bill and settling out of court. As far as I can ascertain, no one has yet been sued in California or Nevada. There have been reports of difficulties obtaining the necessary paperwork and information from the California Attorney Generalís Office in order to pursue litigation against violators. None of the above referenced laws has been active long enough to have undergone significant legal challenge, and no rulings have been made regarding the constitutionality of the laws with respect to the First Amendment.

The First Amendment is invoked in discussions about UBE because it involves speech. It doesnít seem to occur to those who argue its applicability (notably the ACLU6 and the DMA7) that advertisers should not have the right to shift the cost of their advertising to their recipients, in whole or in part. The ACLU has recently adopted the stance that advertisers ought to have the right to send UBE until the recipient requests that it stop. The DMA adopted a similar stance in a highly publicized meeting with Internet activists in December of 1998. Both ignore the fact that even one unsolicited email transfers the cost of advertising to the recipient.

Internet and Network Service Providers and individuals, which are drowning in a flood of UBE, have expressed a different opinion. The overwhelming attitude of most providers and users is that UBE should be outlawed and fines ought to be sufficient to render the practice unprofitable and, in some cases, criminal.

A number of court cases have been pursued by various entities in an effort to put a stop to UBE. The most notable cases involved a "spammer" named Sanford Wallace, proprietor of Cyberpromo, an online "bulk" email advertiser, who seemed to delight in the havoc he created by mailing millions of UBEís a week. In AOL v. Cyberpromo8, the United States District Court for the Eastern District of Pennsylvania ordered

"that Cyber Promotions, Inc. does not have a right under the First Amendment to the United States Constitution or under the Constitutions of Pennsylvania and Virginia to send unsolicited e-mail advertisements over the Internet to members of American Online, Inc. and, as a result, American Online, Inc. may block any attempts by Cyber Promotions, Inc. to do so.

Cyber Promotions, Inc. shall, within ten days of the date of this Order, submit to the Court a list of the theories other than the First Amendment which it believes entitles it to send unsolicited e-mail to members of American Online, Inc."

In Concentric Networks v. Cyberpromo9, the United States District Court Northern District of California San Jose Division issued a Stipulated Judgment and Permanent Injunction which stated in part

"Defendants and their officers, agents, servants, employees, and attorneys, and those persons in active concert and participation with Defendants who receive actual notice of this injunction, are permanently enjoined from:

(i) using any accounts opened with plaintiff, CNC, or using any of CNC's equipment to send or receive electronic mail or in connection with the sending or receiving of electronic mail;

(ii) causing their electronic mail messages to bear any representation that the messages were sent by, originated from or are in any way sponsored or condoned by CNC;

(iii) sending or causing to be sent any unsolicited electronic message to any CNC subscriber; "

These cases establish precedent showing that the courts will look favorably upon efforts to stop UBE so long as the States don't attempt to limit the content of the messages. Furthermore, the courts have clearly ruled the First Amendment does not provide a sender with the right to inundate unwilling recipients with his message. These court rulings seem to indicate that the courts would not overturn legislation protecting citizens from the effects of UBE or using methods to filter or block UBE.

In a related case, Earthlink v. Cyberpromo10, a California judge ruled that UBE constituted trespass on the property of private networks and granted injunctive relief.

"Los Angeles Superior Court Judge Diane Wayne found that Cyber Promotions' actions constituted a trespass upon EarthLink's computer resources and granted, in full, EarthLink's requested preliminary injunctive relief. The court prohibited Cyber Promotions from: sending unsolicited email advertisements to EarthLink members; using EarthLink's computer network, systems, equipment, email system, and servers without prior authorization; preventing or denying EarthLink's right or ability to block the offending emails; and inserting false references to EarthLink or its systems, equipment, or domain addresses in any email advertisement, including falsely identifying EarthLink or its users as the source of the email."

Trespass was also claimed in the Compuserve v. Cyberpromo11 case, and the United States District Court for the Southern District of Ohio Eastern Division granted injunctive relief.

In Bigfoot Partners v. Cyber Promotions12, the United States District Court Southern District of New York issued an extensive Consent Order. The Consent Order enjoined Cyberpromo from using Bigfootís name or network in any way for sending UBE either to or from Bigfootís network and from involving the Bigfoot name in any scheme to transmit UBE.

Closer to home, a Texas corporation in Harris County sued Cyberpromo in Web Systems v. Cyber Promotions13 in Texas District Court, Harris County, claiming common law nuisance, trespass and conversion as well as violations under Chapter 143, Texas Civil Practice & Remedies Code, Harmful Access by Computer, and received injunctive relief. And of course, the Internet-famous "Flowers.com" case14 was tried in Travis County. Tracy LaQuey Parker, who submitted written testimony and spoke before the Texas Senate Subcommittee on Business and Technology Growth as a resource witness on Senate Bill 106, was awarded injunctive relief and actual damages for "common law trespass" and "nuisance" in a case of "domain forgery", where the spammer used the Flowers.com domain to deflect complaints and bounces and hide the true origin of his spam.

It is apparent from the cases reviewed above, that cost shifted advertising is a serious problem. It is also apparent that parties affected by it have used existing law in their efforts to combat it, but existing law only addresses the issue peripherally. What are needed are laws that address the issue of theft directly, meeting the scourge of cost shifted advertising head on. Senate Bill 106 is carefully crafted to do just that. There is no reference to and no sanctions for the content of commercial speech, only the method of delivery. It seems to me states are well within their rights to pass legislation which protects their citizens from theft.

In support of this assertion, there is existing Federal litigation which addresses the issue directly, albeit in a different context. The most direct decision in this regard is probably Rowan v. Post Office 15.

In Rowan v. Post Office, the appellants challenged the constitutionality of 39 USC 4009 which provides that the recipient of advertising he or she considers "pandering" may request the Post Office to issue an order requiring the sender to remove their address from the senderís mailing list. In its ruling, the Court found

  1. The statute allows the addressee unreviewable discretion to decide whether he wishes to receive any further material from a particular sender. Pp. 731-735.
  2. A vendor does not have a constitutional right to send unwanted material into someone's home, and a mailer's right to communicate must stop at the mailbox of an unreceptive addressee. Pp. 735-738.

With regard to the First Amendment argument, appellants contended they had an unfettered right to speak regardless of the recipientís desires.

"The freedom to communicate orally and by the written word and, indeed, in every manner whatsoever is imperative to a free and sane society." Brief for appellants 15.

In constructing its response, the court stated

"In today's complex society we are inescapably captive audiences for many purposes, but a sufficient measure of individual autonomy must survive to permit every householder to exercise control over unwanted mail. To make the householder the exclusive and final judge of what will cross his threshold undoubtedly has the effect of impeding the flow of ideas, information, and arguments that, ideally, he should receive and consider. Today's merchandising methods, the plethora of mass mailings subsidized by low postal rates, and the growth of the sale of large mailing lists as an industry in itself have changed the mailman from a carrier of primarily private communications, as he was in a more leisurely day, and have made him an adjunct of the mass mailer who sends unsolicited and often unwanted mail into every home. It places no strain on the doctrine of judicial notice to observe that whether measured by pieces or pounds, everyman's mail today is made up overwhelmingly of material he did not seek from persons he does not know. And all too often it is matter he finds offensive.

In Martin v. Struthers, 319 u.s. 141 (1943), Mr. Justice Black, for the court, while supporting the "freedom to distribute information to every citizen," id., At 146, acknowledged a limitation in terms of leaving "with the homeowner himself" the power to decide "whether distributors of literature may lawfully call at a home." Id., At 148. Weighing the highly important right to communicate, but without trying to determine where it fits into constitutional imperatives, against the very basic right to be free from sights, sounds, and tangible matter we do not want, it seems to us that a mailer's right to communicate must stop at the mailbox of an unreceptive addressee. The court has traditionally respected the right of a householder to bar, by order or notice, solicitors, hawkers, and peddlers from his property. See Martin v. Struthers, supra; cf. Hall v. Commonwealth, 188 Va. 72, 49 s.e.2d 369, appeal dismissed, 355 u.s. 875 (1948). In this case the mailer's right to communicate is circumscribed only by an affirmative act of the addressee giving notice that he wishes no further mailings from that mailer. To hold less would tend to license a form of trespass and would make hardly more sense than to say that a radio or television viewer may not twist the dial to cut off an offensive or boring communication and thus bar its entering his home. Nothing in the constitution compels us to listen to or view any unwanted communication, whatever its merit; we see no basis for according the printed word or pictures a different or more preferred status because they are sent by mail. The ancient concept that "a man's home is his castle" into which "not even the king may enter" has lost none of its vitality, and none of the recognized exceptions includes any right to communicate offensively with another. See Camara v. Municipal court, 387 u.s. 523 (1967). Both the absoluteness of the citizen's right under sec. 4009 and its finality are essential; what may not be provocative to one person may well be to another. In operative effect the power of the householder under the statute is unlimited; he may prohibit the mailing of a dry goods catalog because he objects to the contents-- or indeed the text of the language touting the merchandise. Congress provided this sweeping power not only to protect privacy but to avoid possible constitutional questions that might arise from vesting the power to make any discretionary evaluation of the material in a governmental official.

In effect, congress has erected a wall-- or more accurately permits a citizen to erect a wall-- that no advertiser may penetrate without his acquiescence. The continuing operative effect of a mailing ban once imposed presents no constitutional obstacles; the citizen cannot be put to the burden of determining on repeated occasions whether the offending mailer has altered its material so as to make it acceptable. Nor should the householder have to risk that offensive material come into the hands of his children before it can be stopped.

We therefore categorically reject the argument that a vendor has a right under the constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even "good" ideas on an unwilling recipient. That we are often "captives" outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere. See Public Utilities Comm'n v. Pollak, 343 u.s. 451 (1952). The asserted right of a mailer, we repeat, stops at the outer boundary of every person's domain."

Although this Supreme Court decision addresses postal mail, the principles articulated by the Justices would seem just as applicable to any type of commercial advertising that trespasses on the property of a recipient. In the telecommunications industry, the "outer boundary of every personís domain" should be the point at which the recipient begins to bear a cost. It seems to me it is unreasonable to interpret the Supreme Courtís clear language in Rowan v. Post Office to mean that recipients must accept advertising, at their expense, until such time as they have properly notified the sender to remove them from a list. Absent a ruling to the contrary, it appears Senate Bill 106 is well within the framework necessary to survive challenge on constitutional grounds.

A Ninth Circuit Court decision addresses the issue even more specifically. In Destination Ventures v. FCC16 the United States Court of Appeals, Ninth Circuit, dealt directly with the issue before us in Senate Bill 106. In that case, plaintiffs asserted a First Amendment challenge to the Telephone Consumer Protection Act of 1991 banning unsolicited faxes that contain advertisements. (Senate Bill 106 is similarly constructed and based on the court's ruling here it appears it would withstand a similar challenge.)

The court ruled

We review constitutional issues de novo. Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994). Regulation of commercial speech must directly advance a substantial governmental interest in a manner that forms a "reasonable fit" with the interest. Central Hudson Gas and Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 566, 100 S.Ct. 2343, 2351 (1980); Board of Trustees v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 3034, 106 L.Ed.2d 388 (1989). The burden is on the government to demonstrate the reasonable fit. Board of Trustees, 492 U.S. at 480, 109 S.Ct. at 3034. The government's burden "is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." Edenfield v. Fane, ___ U.S. ___, ___, 113 S.Ct. 1792, 1800, 123 L.Ed.2d 543 (1993).

Destination does not contest the government's substantial interest in preventing the shifting of advertising costs to consumers. Instead, Destination argues that the FCC failed to sustain its burden of demonstrating a "reasonable fit" between this interest and the ban on fax advertisements. Specifically, it contends that the government has not shown that faxes containing advertising are any more costly to consumers than other unsolicited faxes such as those containing political or "prank" messages. According to Destination, Congress may not single out advertisements for regulation when other types of unsolicited faxes produce the same cost-shifting.

We disagree. Because Congress's goal was to prevent the shifting of advertising costs, limiting its regulation to faxes containing advertising was justified. The ban is even-handed, in that it applies to commercial solicitation by any organization, be it a multinational corporation or the Girl Scouts. Unlike City of Cincinnati v. Discovery Network, ___ U.S. ___, 113 S.Ct. 1505, 123 L.Ed. 2d 99 (1993), a case relied upon by Destination, where the Court found no reasonable fit between the ordinance and Cincinnati's goals of reducing blight and making sidewalks safer, because commercial newsracks, constituted a small share of all newsracks, id. at ___, 113 S.Ct. at 1510 (finding "paltry" benefit from removal of 62 commercial newsracks), here there is a reasonable fit. The plaintiffs have not disputed that unsolicited commercial fax solicitations are responsible for the bulk of advertising cost shifting. Thus, banning them is a reasonable means to achieve Congress's goal of reducing cost shifting. The First Amendment does not require Congress to forgo addressing the problem at all unless it completely eliminates cost shifting. United States v. Edge Broadcasting Co., ___ U.S. ___, ___, 113 S.Ct. 2696, 2707, 125 L.Ed.2d 345 (1993).

Destination also argues that further proceedings are necessary to examine whether the government's solution is excessive in light of what it asserts is minimal cost-shifting caused by unsolicited advertising faxes. It acknowledges that recipients of faxes incur at least some costs. However, it suggests that such costs may be de minimis, and that computer technology is rendering these costs, as well as the problem of tying up fax machines, obsolete.

In a declaration submitted in support of Destination's summary judgment motion, Don McGrath, owner of plaintiff National Faxlist, stated that "the cost of one page of paper used by the typical fax machine in use today is two and one-half cents," and "it takes between 30 and 45 seconds for a fax machine to print an 8-inch by 11-inch page of text." In its Response, the FCC agreed that transmission of a single page by fax takes 35 to 40 seconds, but submitted news articles estimating the cost of fax paper from 3 to 40 cents per sheet.

Both the Destination Declaration and FCC Response are outside of the scope of the pleadings. Because the district court considered such submissions, we are not barred from treating the district court's determination as a grant of summary judgment. Duggan v. International Association of Machinists, 510 F.2d 1086, 1087 (9th Cir.), cert. denied, 421 U.S. 1012, 95 S.Ct. 2417, 44 L.Ed.2d 680 (1975). "Sua sponte entry of summary judgment is proper `if there is no genuine dispute respecting a material fact essential to the proof of the movant's case. . . ." Buckingham v. United States, 998 F.2d 735, 742 (9th Cir. 1993) (citing Cool Fuel, Inc. v. Connett, 685 F.2d 309, 312 (9th Cir. 1982)). "However, a litigant must be given reasonable notice that the sufficiency of his or her claim will be in issue. . . ." Id. Destination had such notice by virtue of its own motion for summary judgment and its submission of factual evidence outside the pleadings. See Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528, 1533 (9th Cir.), cert. denied, 474 U.S. 826, 106 S.Ct. 85, 88 L.Ed.2d 70 (1985).

Viewing the facts in the light most favorable to Destination, we conclude that Destination's own figures do not rebut the admitted facts that unsolicited fax advertisements shift significant advertising costs to consumers. The possibility of future technological advances allowing simultaneous transmission and eliminating the need for paper does not alter this conclusion. We look at the problem as it existed when Congress enacted the statute, rather than speculate upon what solutions may turn up in the future. Therefore, we hold that the ban on unsolicited fax advertisements meets the Central Hudson and Fox test for restrictions on commercial speech.

In light of the rulings in Rowan v. Post Office and Destination Ventures v. FCC, it seems reasonable to assume that any challenge to Senate Bill 106 on First Amendment grounds would be quickly struck down by precedent. It's difficult to imagine a scenario where a court would ignore the clear rulings of those two cases and continue litigation, when the case is sure to be lost on appeal.

Update - February 4, 2001

In a recent Supreme Court case, HILL et al v. Colorado et al17, the US Supreme Court once again defined restrictions on speech which tramples on the rights of other

The right to free speech, of course, includes the right to attempt to persuade others to change their views, and may not be curtailed simply because the speaker's message may be offensive to his audience. But the protection afforded to offensive messages does not always embrace offensive speech that is so intrusive that the unwilling audience cannot avoid it. Frisby v. Schultz, 487 U. S. 474, 487 (1988). Indeed, "[i]t may not be the content of the speech, as much as the deliberate `verbal or visual assault,' that justifies proscription." Erznoznik v. Jacksonville, 422 U. S. 205, 210-211, n. 6 (1975) (citation and brackets omitted). Even in a public forum, one of the reasons we tolerate a protester's right to wear a jacket expressing his opposition to government policy in vulgar language is because offended viewers can "effectively avoid further bombardment of their sensibilities simply by averting their eyes." Cohen v. California, 403 U. S. 15, 21 (1971).

The recognizable privacy interest in avoiding unwanted communication varies widely in different settings. It is far less important when "strolling through Central Park" than when "in the confines of one's own home," or when persons are "powerless to avoid" it. Id., at 21-22. But even the interest in preserving tranquility in "the Sheep Meadow" portion of Central Park may at times justify official restraints on offensive musical expression. Ward, 491 U. S., at 784, 792. More specific to the facts of this case, we have recognized that "[t]he First Amendment does not demand that patients at a medical facility undertake Herculean efforts to escape the cacophony of political protests." Madsen, 512 U. S., at 772-773.

The unwilling listener's interest in avoiding unwanted communication has been repeatedly identified in our cases. It is an aspect of the broader "right to be let alone" that one of our wisest Justices characterized as "the most comprehensive of rights and the right most valued by civilized men." Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting).24 The right to avoid unwelcome speech has special force in the privacy of the home, Rowan v. Post Office Dept., 397 U. S. 728, 738 (1970), and its immediate surroundings, Frisby v. Schultz, 487 U. S., at 485, but can also be protected in confrontational settings. Thus, this comment on the right to free passage in going to and from work applies equally--or perhaps with greater force--to access to a medical facility:

"How far may men go in persuasion and communication, and still not violate the right of those whom they would influence? In going to and from work, men have a right to as free a passage without obstruction as the streets afford, consistent with the right of others to enjoy the same privilege. We are a social people, and the accosting by one of another in an inoffensive way and an offer by one to communicate and discuss information with a view to influencing the other's action, are not regarded as aggression or a violation of that other's rights. If, however, the offer is declined, as it may rightfully be, then persistence, importunity, following and dogging, become unjustifiable annoyance and obstruction which is likely soon to savor of intimidation. From all of this the person sought to be influenced has a right to be free, and his employer has a right to have him free." American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184, 204 (1921).

We have since recognized that the "right to persuade" discussed in that case is protected by the First Amendment, Thornhill v. Alabama, 310 U. S. 88 (1940), as well as by federal statutes. Yet we have continued to maintain that "no one has a right to press even `good' ideas on an unwilling recipient." Rowan, 397 U. S., at 738. None of our decisions has minimized the enduring importance of "the right to be free" from persistent "importunity, following and dogging" after an offer to communicate has been declined. While the freedom to communicate is substantial, "the right of every person `to be let alone' must be placed in the scales with the right of others to communicate." Id., at 736. It is that right, as well as the right of "passage without obstruction," that the Colorado statute legitimately seeks to protect. The restrictions imposed by the Colorado statute only apply to communications that interfere with these rights rather than those that involve willing listeners.

In FRISBY v. SCHULTZ, 487 U.S. 474 (1988)18, the court specifically addressed the issue of forcing speech on an unwilling listener thus

We have "never intimated that the visitor could insert a foot in the door and insist on a hearing." Ibid. (Referencing KOVACS V. COOPER , 336 U.S. 77 (1949) 19.) There simply is no right to force speech into the home of an unwilling listener.

For more on First Amendment issues, go here.

For more on First Amendment issues as they relate to commercial speech, see ABUSE.NET's page.

For information specifically related to the Telephone Consumer Protection Act (the "Junk Fax Law"), see the TCPALAW.COM page, go by the JUNKBUSTERS site or visit JUNFAXES.ORG. You may also wish to subscribe to the JUNKFAX-L mailing list by sending mail to listserv@junkfaxes.org with SUBSCRIBE JUNKFAX-L in the body of the message. For an analysis of the TCPA and its possible relationship to UBE, visit Professor Sorkin's page at the John Marshall Law School.

Last revised: Sunday, 04-Feb-2001 14:15:43 CST