Junk-e-mail, or "spam," represents a darker side of the Internet. Such material is usually the least welcome, though often most voluminous, addition to our electronic mailboxes. Many regular users of cyberspace fervently wish they could bar spamming, or at least create a digital shield that would spare them daily exposure to its excesses. Lawmakers at both federal and state levels are responding vigorously to such hopes and wishes from their Internet-savvy constituents.

Such responses encounter three serious barriers. First, there is a remarkable ease with which even a one-person spam operator can reach an audience of millions. Second, such activity has proved highly profitable, spawning a whole new digital cottage industry matching the direct-mail industry of the print world.

Third, and most important, is a fact the regulators and the courts seem largely to have overlooked — that the material they seek to ban or channel is presumptively protected commercial speech. Save for limited understanding in some quarters of a new communications medium, the failure to perceive more clearly the analogy to print advertising is puzzling and deserves to be addressed.

Legislative curbs on spam reflect two increasingly divergent approaches — total prohibition on one hand, and on the other hand less drastic measures such as required disclosure of source and other essentially "time, place, and manner" controls. At the federal level, the Senate in mid-May opted for the milder approach, attaching the Murkowski-Toricelli bill to the anti-"slamming" bill that would protect telephone consumers from involuntary changes of service.

This bill would compel senders of unsolicited commercial e-mail to include the sender's name and addresses (both physical and electronic), and would obligate the sender to remove a recipient from a digital list on request. That approach seems generally consistent with court decisions balancing privacy against the free speech rights of print advertisers and solicitors.

Such a restraint is, however, too mild to satisfy the rising tide of anti-spam sentiment. Those voices have been heard more clearly at the state level. Washington State's law, though first proposed as a total prohibition, emerged as a ban only on commercial e-mail that "contains false or misleading information," misrepresents the point of origin, or misappropriates a domain name.

Nevada, however, has gone further. A law that became effective July 1 gives recipients of commercial e-mail a cause of action against the sender unless there is a pre-existing business or personal relationship, the recipient has consented, or the message is "readily identifiable as promotional," or is labeled as advertising and contains several other prescribed ingredients. Other states (e.g., Alaska, Connecticut, Illinois, Kentucky) have considered, but have not yet enacted, similar curbs on junk e-mail.