THE CONSTITUTION AND SPAM:
Is There A First Amendment Right To Send Unsolicited Faxes And Email?

Each week, I find more and more weird advertisements coming over my fax machine or landing in my emailbox. I don't need any diet pills, I will never invest in a get rich quick scheme, and I really don't want to pay $50 for a book telling me how I can make millions working at home, nor do I seek to enjoy a cheap trip to Las Vegas.

Will I - and you - be destined to receive these annoying communications for the rest of our lives? A recent ruling suggests the answer may be yes, for such communications may be protected by the Constitution.

Since 1991, a federal law, the Telephone Consumer Protection Act (TCPA), has prohibited unsolicited ("junk") fax advertisements in all fifty states, and allowed recipients to sue the businesses that send them. Individual states may go even further in regulating junk faxes.

But in March, in State of Missouri v. American Blast Fax, Inc., a federal court in Missouri ruled that the TCPA violates the First Amendment. Now Missouri has gone from being the "Show me" state to the "Fax me" state.

The Federal Junk Fax Law's Provisions

The TCPA defines a junk fax as any material transmitted via facsimile that "advertises the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission."

To be illegal under the federal law, a fax must (1) be unsolicited and (2) advertise the commercial availability or quality of property, goods or services. For example, faxes from political parties do not count as junk faxes. Nevertheless, a political fax could violate the law if it announced a paid event or sold campaign merchandise such as bumper stickers.

The Federal Communications Commission and the courts have held, properly, that just because you have made your fax number public does not mean that you have given "prior express invitation or permission" to receive junk faxes. (The FCC also maintains a website regarding the TCPA) Express permission is just that. You need to have informed a company: "I agree to let you send me fax advertisements." Alternatively, you may have a pre-existing business relationship that permits such faxes to be sent.

The Ruling Invalidating the TCPA

In the recent Missouri case, the State of Missouri sued American Blast Fax and Fax.com, two commercial fax services, for violating the TCPA by sending unsolicited advertising via fax to Missouri residents. But the court found that, even though the speech regulated was commercial speech (and thus subject to a somewhat lower First Amendment standard), the First Amendment was violated.

First, the court reasoned that the junk faxes contained commercial speech entitled to First Amendment protection. The Supreme Court had stated in the Central Hudson case that "for commercial speech to come within that provision, it at least must concern lawful activity and not be misleading." The court held that since the faxes at issue were not misleading, they qualified for protection.

Second, the court was dubious as to whether the government had a substantial interest that justified the ban on unsolicited junk faxes. When enacting the TCPA, Congress expressed two interests in banning unsolicited commercial faxes. First, the faxes were banned to prevent the receiver from unfairly footing the bill for the paper and toner consumed. Second, they were banned to prevent the receiver's fax machine from being tied up so that it cannot be used as frequently for its desired business purposes.

However, the court noted that: "It is obvious from the legislative history that Congress did not consider any studies or empirical data estimating the cost of receiving a fax or the number of unsolicited fax advertisements an average business receives in a day before enacting the TCPA." Rather, "[t]here were only many long hypothetical examples of how much it could cost a business."

The court also questioned whether, even if the interest was indeed substantial, the ban truly alleviated the harm Congress targeted to a material degree. The court thought it did not, since the statute does not ban all unsolicited faxes, but merely advertisements, which are only a fraction of the unsolicited faxes sent, and despite the TCPA, "[t]he costs of printing political messages, jokes, and even some advertisements which are not included within the TCPA's definition, still fall upon the recipient."

Finally, the court noted that there were less restrictive alternatives the government could have used - such as "do not fax" registries, where people could register their fax numbers and thus affirmatively opt out of being faxed. Such registries would be less restrictive of First Amendment rights since they would presumptively allow unsolicited faxes to be sent unless the receiver had opted out, rather than presumptively banning them unless the receiver opted in by giving express permission to the particular faxer.

Other Federal Courts Have Upheld the TCPA

The Missouri federal court's decision is currently on appeal, and no matter what the outcome, is likely to be appealed again, to the U.S. Supreme Court - especially in light of the fact that other courts that have considered the same question have reached contrary conclusions.

On appeal in the same case, the U.S. Court of Appeals for the Ninth Circuit agreed that the TCPA is constitutional. It described the measure as "a reasonable means of preventing the shifting of advertising costs to consumers," and not a violation of freedom of expression. "The ban is evenhanded, in that it applies to commercial solicitation by any organization, be it a multinational corporation or the Girl Scouts," Judge Betty Fletcher wrote.

Finally, a federal court in the Western District of Texas, in the case of Texas v. American Blastfax, Inc., agreed with these two precedents. It held that "Blastfax's argument that Congress' hearings were not based on sufficient statistical evidence is unpersuasive," and upheld the TCPA.

Junk Mail, Telemarketing Calls, and Junk Faxes: A Contrast

Under the law, not all unsolicited communications are treated the same. Rather, there is a patchwork of regulation that is difficult for consumers to navigate and to understand. The way in which we can tell someone to leave us alone varies - depending on the medium.

For instance, as early as 1970, the U.S. Supreme Court held in Rowan v. United States Postal Service that a government regulation allowing citizens the choice to refuse to receive unwanted commercial mail was constitutional, despite a First Amendment challenge, for it protects individual privacy. As a result, a consumer has the right to affirmatively go to the United States Post Office, fill out a form and to ask never to receive unsolicited mail from a particular marketer.

Unsolicited telephone marketing solicitations are regulated primarily by federal law. The law requires that telemarketers fully identify themselves and allow individuals to opt out of receiving further calls. State laws creating "do not call" registries further bolster these restrictions. (The federal law also requires that telemarketers call only at reasonable times - for example, not during your family dinner or in the middle of the night).

The Missouri court suggested that, as with mail and calls, receivers should be required to "opt out" of receiving junk faxes. But there is a difference: Junk faxes use the recipient's paper and ink and tie up the fax machine.

Moreover, mass junk faxes are a serious problem. Blast faxes may clog up a fax machine because they are sent to multiple recipients through one machine. For businesses, the costs may be quite high given the volume of faxes that may be sent to multiple employees within one company or firm.

Finally, the "opt out" system is harder for fax recipients than for those who receive telemarketing calls. It is easy when a telemarketer calls to ask them never to call again; you are already on the phone. Caller ID also makes it possible to avoid the call altogether. In contrast, the "opt out" system the Missouri court envisioned for junk faxes seems to require more work on the part of the receiver. Unlike with call, requiring the receiver to fax back to "opt out" is no solution - for it costs the receiver money, wastes his or her time, and ties up the machine for even longer.

What about Unsolicited E-Mail (Spam)? No Bans, But Significant Restrictions

Meanwhile, approximately 20 states have passed legislation that imposes legal restrictions on the sending of unsolicited commercial email ("spam"). None of the statutes prohibit the sending of spam entirely. Rather, they impose certain requirements on the method by which the spam is sent, or require spammers to identify themselves and the nature of their email message.

Some laws require that commercial spam include a label in the email subject line or header showing it is an advertisement (such as ADV). Other statutes prohibit the use of a third party's name and email address for the return address without permission, or using false routing information (which shows the message's origin), or omitting routing information altogether.

Other states require that unsolicited bulk commercial e-mail messages must include opt-out instructions and contact information. Still others prohibit false or misleading subject lines. (You can't send a message labeled "Message from your grandmother" if the message contains an advertisement for a porn site.)

Most of the state laws dealing with unsolicited spam appear to satisfy First Amendment requirements regarding commercial speech, for several reasons. First, they are not absolute bans. Second, many of them mirror the junk mail and telemarketing "opt out" processes. Third, to the extent that they simply require spammers not to engage in fraudulent or misleading speech, in the subject line or otherwise, that is entirely constitutional, for the First Amendment does not protect fraudulent speech.

Finally, these statutes are predicated on a strong government interest in preventing the costs and burdens of spam. These costs have been documented in legislative histories relating to the different anti-spam state laws.

The burdens of spam may be much greater than those of junk faxes, for example. Sending bulk email is incredibly cheap. With a dialup connection and a PC, a spammer can send hundreds of thousands of messages per hour at only a tiny cost per email. Yet every person who receives the spam pays, in reading time, the annoyance of a clogged mailbox, and increased Internet Service Provider (ISP) costs. (ISPs must purchase more bandwidth, and servers can crash due to a large volume of spam.)

Most state anti-spam statutes, then, are on solid ground. A few, however, may create concern. Louisiana's statute, for example, makes it illegal for a person to send unsolicited bulk email in violation of an email service provider's terms of service. This prohibition is more ambiguous than those of other states, and thus might be subject to challenge.

Little First Amendment Issue, But A Dormant Commerce Clause Question

The Constitution's "commerce clause" allows the federal government to regulate interstate commerce. This power on the part of the federal government implies, conversely, that the states cannot regulate interstate commerce in ways that are in tension with federal regulation. This restriction on the states has been called the "dormant commerce clause," because it expresses the clause's unspoken flip side.

Recently, both the California and Washington anti-spam laws were challenged - and initially struck down - as violating the dormant commerce clause by placing undue burdens on interstate commerce. The initial rulings, however, were reversed on appeal.

Higher courts in California and Washington found that the statutes were in fact constitutional, and did not violate the dormant commerce clause; rather, the burdens they imposed were appropriate, and did not go too far, according to the courts.

Only time will tell how the court battles over junk faxes and spam will ultimately be resolved. But in the meantime, we can count on one thing: Rest assured that those companies that send us those pesky faxes and emails will continue to assert their purported (and, perhaps, actual) constitutional right to annoy us.

And at least for spam, we will have to personally contact each spammer to ask him or her (or it) from refraining from such conduct. It takes me long enough to delete the spam - let alone to engage in a new round of email correspondence with a spammer

What is most irksome is that the Missouri court determined not only that the companies had a right to send us the faxes - but that they had a right to make us pay for it too. And spammers can still spam us . . . they just have to let us know that they are doing so.