Does the U.S. Constitution Allow States to Have Laws Exiling Spam?

Published in the Richmond Times-Dispatch
January 28, 2002

The French playwright Moliere once wrote “Nearly all men die of their remedies and not of their illnesses.” In the realm of medicine, this phrase once was almost universally true.

For example, our first president, George Washington, died in 1799, purportedly from a severe throat infection. Yet, Washington’s doctors had drained about five pints of his blood during the day before his death. Since an average adult male (admittedly smaller than the 6-foot, 3-inch Washington) has only about 12 pints in him, Washington may have died before his time.

Considering Moliere’s statement more broadly, one reasonably can ask whether the spate of state laws attacking e-mail spam do more constitutional harm than annoyance-saving good.

Technological failure

Despite such laws and the technological resources dedicated to fighting spam, it grows in inboxes like kudzu.

For example, Microsoft Outlook allows you to build a list of undesirable e-mail sources, and it will label further e-mails from such sources as likely spam. Yet, if you use this feature, you’ll spend more time supplementing your spam list than you would just deleting the spam.

Additionally, most Internet service providers prohibit sending spam into or out of their networks. These ISPs use spammer lists (such as the controversial Realtime Blackhole List) to try to filter it out. They also employ rules for determining whether volumes of e-mail entering or leaving their domains are spam to be blocked.

Yet, even AOL can’t hinder the flow, because most spammers forge their e-mail headers and relay their spam through the mail servers of innocent bystanders. Doing so gives the appearance that the spam comes from somewhere other than its true origin, thereby ducking spam filters.

Such filtering failures leave spam management to the e-mail user. Here, beware of how many spammers work.

Any benevolent spammer will include a link in its e-mail that allows you to unsubscribe to future mailings. Unfortunately, using such links is like playing Russian roulette. An unscrupulous spammer will use your reply as a confirmation that it has found a working e-mail address and then will spam you more often.

Also, many spam messages are HTML-based. When this is so, the spammer can include in its e-mail a Web bug – a tiny piece of software that enables the spammer to detect if you have opened the message. Opening the message can confirm to the spammer that it has hit a working e-mail address, which will result in your getting more spam.

Thus, don’t open suspicious e-mail. Just delete it.

Constitutional challenges

Currently, 18 states have enacted anti-spam legislation. While these states’ laws vary in their content, they often include one or more of these features:

• They prohibit the use of forged e-mailheaders.
• They require the prefix “ADV” in the subject line to identify spam as advertising; if the spam promotes online porn, they require the header “ADV: ADULT.”
• They require the spam message to include a working unsubscribe function, such as a return e-mail address or a toll-free phone number; once someone opts out, it’s illegal to spam them again.
• They create financial penalties for each piece of illegal spam.

Are these laws constitutional? After all, the First Amendment protects speech, even annoying advertisements. Also, the Constitution’s Commerce Clause limits states’ ability to enact laws restricting interstate commerce, and nothing is more interstate than the Internet.

As for the First Amendment, the Constitution permits regulating commercial speech (speech intended to sell goods or services) as long as the government has a substantial interest in doing so and the restriction is narrowly tailored to fit that interest.

Courts upheld laws banning junk commercial faxes against First Amendment challenges primarily because of the cost imposed on the recipients of junk faxes. Similarly, although a state might not be able to ban commercial spam constitutionally since it’s not s costly to the recipient, most likely it can impose modest restrictions like the ones outlined above.

Yet, if a state tries to restrict all spam, including messages concerning political or religious topics, such a law has little chance of withstanding constitutional review. Our courts apply strict scrutiny to laws that prohibit all speech and rarely uphold them.

Then there’s the Commerce Clause. Essentially, it permits a state to enact a law affecting interstate commerce only if such law does not overtly discriminate against out-of-staters and is not excessive in relation to its benefits.

So far, the anti-spam laws of two states, California and Washington, have been tested on Commerce Clause grounds, and both survived. Most likely, state anti-spam laws will continue to pass Commerce Clause scrutiny as long as they remain reasonable in their prohibitions.

Ultimately, though, law and technology have accomplished little. Spam still gets through. If you value your time, the technological and legal remedies for spam can’t beat the delete key for efficiency.

By John B. Farmer