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Anti-Spam Law Doesn't Bar State University's E-Mail Policy

The University of Texas can block incoming bulk e-mail messages without running afoul of the First Amendment or the federal anti-spam law's preemption clause, a 5th Circuit panel has ruled in what it called a case of "very, very first impression."

This was the first case over the CAN-SPAM Act to reach the 5th Circuit and the first time any court in the country has interpreted the law's preemption of state anti-spam regulations, the panel said.

The CAN-SPAM Act, formally known as the Controlling the Assault of Non-Solicited Pornography and Marketing Act, took effect Jan. 1, 2004. It bans false or misleading commercial e-mail messages, requires senders to give recipients a way to opt out of receiving further messages, and preempts certain state anti-spam regulations.

Under CAN-SPAM, states can continue to regulate false or deceptive commercial e-mails. Also, the statute does not prevent Internet service providers from using technological measures, such as filters, to block spam, regardless of whether the messages comply with CAN-SPAM's requirements.

Here, plaintiff White Buffalo Ventures sent thousands of e-mails to students, faculty and staff at the University of Texas at Austin pitching an online dating service. The university received complaints from recipients of the messages and blocked all incoming e-mails from White Buffalo's servers. The university did not dispute that the e-mails complied with the CAN-SPAM Act's requirements.

White Buffalo filed suit against the university in Texas state court, and the case was later removed to U.S. District Court for the Western District of Texas. The plaintiff claimed that the university, which is a state entity, violated the First Amendment by blocking the messages and that the university's spam policy was preempted by CAN-SPAM.

The District Court granted summary judgment to the university, and White Buffalo appealed.

First, the U.S. Court of Appeals for the 5th Circuit panel unanimously held that CAN-SPAM did not preempt the university's anti-spam rules. The statute is internally inconsistent, the panel noted, because it prevents states from regulating truthful commercial e-mail messages and at the same time allows state entities to restrict otherwise lawful messages when they are acting in the capacity of an Internet service provider, as the university is here. Congress did not anticipate this scenario when it drafted the CAN-SPAM Act, the panel said.

"Such tension, created by the text of the statute, leaves us unwilling to overrule the strong presumption against preemption," Circuit Judge Jerry E. Smith wrote for the court.

Next, the panel said the university did not violate the First Amendment by blocking White Buffalo's messages. The university argued that it has a substantial interest in protecting the users of its e-mail system from dealing with the hassle of unwanted bulk e-mail, and the panel said that is enough to justify the regulations.

The university also argued that it has an important interest in protecting the efficient operation of its computer system and that it would be overwhelmed by the volume of spam if it could not block the messages completely. The panel said it was more skeptical of this argument, noting that White Buffalo said it could send limited numbers of messages at off-peak times to avoid overloading the university's system.

If the university were relying solely on the server-efficiency argument, the panel said, it would have to show why it could not employ a less-restrictive filtering system that would let some messages through without compromising the functioning of its computer system.

"'Suffer the servers' is among the most chronically over-used and under-substantiated interests asserted by parties (both government and private ones) involved in Internet litigation, and rules imposed pursuant to such interests require more than a judicial rubber-stamp," the panel said.

In addition to Judge Smith, the panel included Circuit Judges W. Eugene Davis and Harold R. DeMoss Jr.