Thursday, April 12, 2007

Utah Spam Registry Law Is Not Preempted, Unconstitutional

This posting was written by Cheryl Montan, editor of CCH Guide to Computer Law.

A Utah law designed to protect minors from receiving unwanted pornographic spam survived constitutional challenges and was not preempted by the CAN-SPAM Act, the federal district court in Salt Lake City has ruled.

The Free Speech Coalition, an association of commercial pornography producers and distributors, sought to invalidate the Utah Child Protection Registry Act (CPRA) and enjoin its enforcement on the grounds that the law was expressly preempted by the CAN-SPAM Act and that it violated both the First Amendment and the dormant Commerce Clause of the United States Constitution.

The court ruled that the CPRA was not preempted by the CAN-SPAM Act. Congress's basic purpose in enacting the CAN-SPAM Act was to create a national standard for rules governing the structure of commercial e-mail messages and the techniques used to send them.

Although CAN-SPAM generally preempts state commercial e-mail statutes, the CAN-SPAM Act limits its preemptive effect by delineating certain exemptions, including one for state laws referring to “computer crime.” The CPRA qualified for the computer crime exemption, according to the court, because it referred to the transmission of materials harmful to minors, which is a felony under Utah law.

Dormant Commerce Clause

The CPRA did not violate the dormant Commerce Clause of the United States Constitution because it neither discriminated against interstate commerce, nor unduly burdened interstate transactions, the court held. The Free Speech Coalition argued that the CPRA had an impermissible extraterritorial effect that rendered it per se invalid under the Commerce Clause because virtually everyone sending adult e-mail into Utah would be forced to use Utah's registry to ensure that they were not sending e-mail to someone listed on the registry.

By including exceptions to preemption in CAN-SPAM, Congress, which has the power to regulate interstate commerce, expressly granted states the right to regulate certain types of commercial e-mail.

The court disagreed with the Coalition's assertion that the burden CPRA placed on commerce was more substantial than the putative local benefits. The CPRA provides information that helps e-mailers to more effectively comply with existing Utah law making it a crime to distribute materials harmful to minors The small fee to “scrub” names on e-mail lists was not an excessive burden in relation to the local benefits of enabling parents to protect their children from exposure to pornographic material

First Amendment

The Coalition's arguments that the CPRA violated the First Amendment's free speech protections were found to be without merit. Compliance with the registry's “scrubbing” service in advance of dissemination did not impose a prior restraint on e-mail expression, the court held.

The remainder of the Coalition's free speech claims failed because citizens have a right to avoid unwanted e-mail communication as part of their broader right of privacy. The Coalition asserted that the CPRA interfered with their right to access adults via e-mail. In essence, the Coalition was contending that it had an unfettered right to send pornographic materials to adults, including to those who opt-out from receiving such materials.

The opt-in nature of the Utah registry required an affirmative action on the part of adults who wished to participate. Individuals who do not wish to receive sexually explicit e-mails have a right to prevent unwanted speech from entering their own homes.

“Chilling effect”

The Coalition's claim that the CPRA had a “chilling effect” on its expressive rights was inapposite because there can be no chilling effect on unwanted speech, the court observed.

The CPRA advanced the state interest in protecting minors form exposure to illegal content and the statute was narrowly tailored through its opt-in feature to prevent exactly what it was designed to prevent: unwanted, adult-oriented speech from entering the home of unwilling recipients, the court concluded.

The decision is Free Speech Coalition, Inc. v. Shurtleff, Case No. 2:05CV949DAK, March 23, 2007 (CCH Guide to Computer Law ¶49,306).

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