State Legislators Steamed About 'Spam'; Wave of Bills Would Limit Commercial E-Mail

By David L. Hudson

A wave of state proposals to regulate unsolicited e-mail, or "spam," shows that state government officials are as eager as their federal counterparts to exert greater control over the Internet and on-line advertising.

Most of the regulations single out e-mail advertising messages, suggesting that many legislators continue to undervalue speech of a commercial nature. Debate has often featured heated discussions of private property rights, captive audiences, and trespassing, without mentioning consumers’ interest in the free flow of information about goods and services.

Spammers--those who send unsolicited commercial e-mail--have certainly incurred the wrath of state legislators nationwide. Though only two states (Nevada and Washington) have passed anti-spam laws, bills have been proposed in more than a dozen states. They include California, Colorado, Connecticut, Kentucky, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, Virginia, and Wisconsin.

Nevada enacted the first anti-spam law in the nation last July. Washington followed suit in March.

The Washington bill originally contained a

However, the law contains some ominous language, noting that "the legislature also finds that the utilization of electronic mail messages for commercial purposes merits further study." To this end, the legislature created a "select task force" to "evaluate whether existing laws are sufficient to resolve any technical, legal, or financial problems created by the increasing volume of commercial electronic mail messages."

On March 31, a consumer protection committee in the California assembly unanimously approved a bill that not only prohibits unsolicited commercial e-mail in general, but also allows e-mail service providers to sue spammers for the damage they cause to e-mail networks.

This bill, modeled after the proposed federal Netizens Protection Act, fails to acknowledge that e-mail advertisements should receive what the U.S. Supreme Court has called the "qualified but nonetheless substantial protection accorded to commercial speech."

Spam may offend, annoy, or violate general principles of netiquette, but a bedrock principle of the First Amendment is that the government may not impose its own judgment on those in the private sphere and censor speech it finds merely offensive or annoying.

Government officials trying to outlaw spam continue to ignore the Supreme Court's warning in Bolger v. Youngs Drug Products Corp.: "[W]e have never held that the Government itself can shut off the flow of mailings to protect those recipients who might potentially be offended.... [T]he 'short, though regular, journey from mail box to trash can ... is an acceptable burden, at least so far as the Constitution is concerned.'"