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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

First Amendment - Internet Library of Law and Court Decisions - Updated January 27, 2008

4 F.Supp.2d 1029, No. Civ-474 LH/DJS, 1998 U.S. Dist. Lexis 9849 (D. N.M., June 30, 1998) affirmed, 194 F.3d 1149 (10th Cir. 1999)

The court issued a preliminary injunction enjoining enforcement of a New Mexico statute which prohibited the dissemination by computer to persons under 18 years of age of information "harmful to [] minor[s]", or which "depicts actual or simulated nudity, sexual intercourse or any other sexual conduct." The court found that the statute ran afoul of both the First Amendment and Commerce Clause of the United States Constitution.

Civ. Act. No. 98-5591, 1999 U.S. Dist. Lexis 735 (E.D. Pa., Feb. 1, 1999)

The court enjoined enforcement of the Child Online Protection Act ("COPA") because it constituted an unconstitutional regulation of speech in violation of the First Amendment. The COPA imposes criminal penalties and fines on those who "knowingly ... by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors ...". The statute contains an extensive definition of what constituted material "harmful to minors." Individuals who fall within the ambit of the statute are provided an affirmative defense to prosecution if they undertake specified steps to restrict the access of minors to "harmful" material. These steps include requiring users to use a credit card, debit account, adult access code or adult personal identification number to access the material that is "harmful to minors."

Applying "strict scrutiny," the court determined that the statute could be found to be constitutional only if it chose the least restrictive means available to promote a compelling governmental interest.

The court concluded that Congress was attempting to promote the compelling state interest of protecting minors from accessing harmful material on the Web. Because, however, "it is not apparent ... that the defendant can meet its burden to prove that COPA is the least restrictive means available to achieve the goal of restricting the access of minors to this material" the court determined that the COPA was unconstitutional.

The court found that the statute would impose a burden on protected speech. Use of the screening mechanisms mandated by the statute would deter adults from viewing material that, while harmful to minors, was material they had a First Amendment right to access. The statute might also result in unwanted self censorship as content providers pulled down questionable content to avoid prosecution or the loss of site traffic use of the screens would impose. The court pointed to commercially available blocking software, that could either be installed in the home by concerned parents or made available to them by their ISP, as a potentially less restrictive means to achieve the government's goal. This could potentially prevent unwanted access by minors to "harmful" material, while at the same time not chilling the permissible use of this material by adults.

Civ. Action No. 98-5591 (E.D. Pa., November 20, 1998)

Court issues temporary injunction, enjoining enforcement of the Child Online Protection Act ("COPA"), which represents Congress' efforts to cure the constitutional infirmities of the Communications Decency Act. Like its predecessor, the COPA seeks to prevent minors from accessing materials on the Internet that are obscene or "harmful to minors" within the meaning of the statute. The statute affords a defense to prosecution to those who adopt one of a series of designated alternatives to prevent minors from accessing their materials, such as requiring use of a credit card to gain access. The court held that plaintiffs had shown a sufficient likelihood of success on their claim that the COPA violates the First Amendment to be entitled to the requested injunctive relief. Central to the court's ruling was its determination that plaintiffs had submitted sufficient evidence to cast doubt on their ability to avail themselves of the protections against prosecution offered by the statute. This was particularly true of plaintiffs who made their sites available to the public for free. As such, plaintiffs were faced either with discontinuing permitted speech with adults (because of the ability of minors to access the websites on which it was contained) or criminal prosecution.

Case No. 1-04-CV-032178 (Superior Ct., Ca., March 11, 2005), writ of mandamus granted, court directed to quash subpoena and issue protective order, 139 Cal. App. 4th 1423, 2006 WL 142685 (Cal. App., 6th Dist., May 26, 2006)

Court denies bloggers' motion for a protective order, which sought to quash a subpoena served by plaintiff Apple Computer, Inc. ("Apple") on Nfox, the e-mail service provider for the blog PowerPage.  The subpoena sought materials, including e-mails, that would permit Apple to identify the individual(s) who transmitted trade secret information about an Apple product to PowerPage, which information PowerPage subsequently published on its blog/website.  The Court held that the bloggers were not entitled to such relief under California's 'Shield Law,' as that statute only protects journalists from being found in contempt for failing to produce information, and does not support a motion to quash.  Similarly, such relief could not be grounded on the privilege afforded journalists under the First Amendment, as this privilege cannot be used to prevent the disclosure of information related to criminal activity such as that at issue here, the disclosure of trade secrets.  Because Apple had made a prima facie case that a crime had occurred, it was entitled to the requested discovery.

214 F.3d 456, No.99-2318 (4th Cir., June 2, 2000)

The Fourth Circuit vacated an injunction issued by the District Court which directed defendants to remove content from their web site critical of the plaintiff. The court held such relief warranted because the injunction failed to properly specify the reasons for its issuance as required by Fed. R. Civ. P. 65(a). The court further held such relief warranted because the district court's injunction raised serious First Amendment concerns due to the injunction's apparent failure to "burden no more speech than necessary to serve a significant government interest." In reaching this conclusion, the Fourth Circuit stated: "[J]ust because speech is critical of a corporation and its business practices is not a sufficient reason to enjoin the speech. As the First Circuit stated, if a trademark owner could 'enjoin the use of his mark in a noncommercial context found to be negative or offensive, then a corporation could shield itself from criticism by forbidding the use of its name in commentaries critical of its conduct." The case was remanded to the District Court for further consideration.

H021153 (Cal. Court of Appeal, 6th Appellate District, November 1, 2001)

Reversing the court below, the California Court of Appeal denied plaintiff's application for a preliminary injunction, by which plaintiff sought to enjoin defendant Andrew Bunner and others from publishing on web sites the computer program DeCSS. DeCSS permits a user to evade the "content scramble system" which both encrypts DVDs and is designed to prevent their unauthorized use and duplication. Plaintiff claimed that it was entitled to such relief under California's Uniform Trade Secret Act, Civil Code Section 3426.1, et seq. The court rejected plaintiff's application on the grounds that such an injunction was an impermissible prior restraint on speech which ran afoul of the First Amendment. This decision was premised on the court's determination that defendant's publication on a web site of the source code of the DeCSS program was a form of speech subject to First Amendment protection.

67 F. Supp.2d 745 (E.D. Mich., September 7, 1999)

Court denies plaintiff's application for a preliminary injunction to enjoin defendant from publishing plaintiff's confidential materials on the Internet, notwithstanding the fact that such publication would violate Michigan's Uniform Trade Secrets Act. Enjoining this conduct, determined the court, would constitute an impermissible prior restraint on speech prohibited by the First Amendment.

Defendant, a student, came into possession of documents containing confidential information about plaintiff Ford Motor Company and its products. Defendant threatened to, and did publish a number of these documents on a web site he maintained. Defendant claimed that he was unaware of the identity of the individuals who delivered these materials to him. The court surmised that they were "likely former and current Ford employees" under a duty to keep such materials confidential.

Plaintiff Ford brought suit alleging, among other things, that defendant's conduct violated Michigan's Uniform Trade Secrets Act. Plaintiff sought to enjoin further publication of these materials, a remedy authorized by that act.

In denying plaintiff's application, the court stated that even though "Ford ... presented evidence to establish that [defendant] is likely to have violated the Michigan Uniform Trade Secrets Act, the Act's authorization of an injunction violates the prior restraint doctrine and the First Amendment as applied under these circumstances." The court further stated that:

[T]his court is bound by existing precedent, and, under the broad holdings of the Pentagon Papers case and Procter & Gamble, may not enjoin [defendant's] publication of Ford's trade secrets and other internal documents. In the absence of a confidentiality agreement or fiduciary duty between the parties, Ford's commercial interest in its trade secrets and [defendant's] alleged improper conduct in obtaining the trade secrets are not grounds for issuing a prior restraint.

135 F.Supp.2d 409, 00 Civ. 549 (S.D.N.Y., March 19, 2001)

Court holds that neither the Communications Decency Act or the First Amendment immunize an Internet hosting company from potential liability under the Lanham Act for hosting the website of a third party which allegedly infringed plaintiff's trademark. As a result, the court denied defendant Mindspring's motion to dismiss, and allowed Gucci to proceed with its claim that, by hosting a third parties' site containing allegedly infringing materials, despite notice of the same, Mindspring was guilty of direct or contributory trademark infringement and false designation of origin in violation of the Lanham Act, as well as violations of state trademark and unfair competition statutes.

2000 WL 1210372 (Cir. Ct. Va., January 31, 2000) reversed on other grds., sub. nom., America Online Inc. v. Anonymous Publicly Traded Co., 542 S.E.2d 377 (Va. 2001)

Court holds that America Online Inc. ("AOL") must respond to a subpoena duces tecum calling for AOL to identify four AOL Internet service subscribers who allegedly anonymously posted defamatory statements and confidential insider information on the Internet. Court holds that such subpoenas are valid "when the court is satisfied by the pleadings or evidence supplied to [it] that the party requesting the subpoena has a legitimate, good faith basis to contend that it may be the victim of [actionable conduct] ... and the subpoenaed identity information is centrally needed to advance that claim."

Case No. C 06-2057 JF (RS) (N.D. Ca., March 16, 2007)

Court dismisses action seeking redress as a result of Google’s alleged downward manipulation of the “Page Rank” it assigned plaintiff’s website.  This act allegedly reduced the ranking of plaintiff’s search engine in various Google Search results which, in turn, adversely impacted both the traffic and advertising revenue plaintiff’s site generated.  “Page Rank” is a system offered by Google for rating the usefulness of websites.  Google’s search engine utilizes the relative “Page Ranks” it assigns to websites in determining the order in which to deliver responsive search results to a user’s query. 

In its Second Amended Complaint, plaintiff claimed such acts constituted violations of the Sherman Antitrust Act, the Lanham Act and California Business and Professions Code Section 17200, as well as plaintiff’s right to free speech under both the Federal and California constitutions.  Plaintiff also alleged that it was defamed by Google’s alleged statement that the low “Page Rank” it assigned plaintiff’s site was arrived at objectively, without human manipulation.

The Court found that had failed to state a claim, and accordingly dismissed its complaint with prejudice.

2007 WL 530156, Civ. Act. No. 06-319-JJF (D. Del. February 20, 2007)

The Court held that the First Amendment, and the guaranties afforded Google and Yahoo thereunder, barred claims seeking redress as a result of Google and Yahoo's refusal to run advertisements on their search engines they did not wish to run.  In reaching this result, the Court followed decisions that afforded newspapers similar First Amendment protections when challenges arose concerning their refusal to run advertisements they deemed objectionable.  As a result, the Court dismissed claims advanced by plaintiff arising out of the defendants' refusal to run his advertisements, including claims that the defendants defrauded him and engaged in deceptive business practices, violated his First Amendment rights, and failed to meet the duties imposed on those, like inn keepers, engaged in a public calling.

The Court also held that Google and Yahoo were immunized from such claims by the Communications Decency Act, 27 U.S.C. Section 230, which "bars 'lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions - such as deciding whether to publish, withdraw, alter or postpone content.'" It should be noted that plaintiff was proceeding pro se.

956 F. Supp. 953 ( W.D. Okla., January 28, 1997) aff'd. 133 F. 3d 771 (10th Cir. 1998)

University's policy of restricting students from using University server to access news groups the University deemed to be distributing obscene materials did not violate plaintiff's First Amendment rights.

24 F. Supp. 2d 552 (E.D. Va., November 23, 1998)

(Court held unconstitutional a Library policy which prevented all patrons from using library computers to access Internet sites containing child pornography, obscene material or material deemed harmful to juveniles. To effectuate this policy, the library had installed "X-Stop", a blocking software, on all library computers. Applying a strict scrutiny analysis because it found that the libraries at issue were limited public forums, the court found that the policy was neither necessary to further a compelling state interest, nor sufficiently narrow to achieve that end. Other, more narrow means were available to defendants, such as use of privacy screens or installation of blocking software on some but not all computers, to achieve the defendants' goals. The court further held that the policy was an impermissible prior restraint on speech).

2 F. Supp. 2d 783 (E.D. Va. April 7, 1998)

(Court determines that public library does not have unfettered discretion to place content-based restrictions on the Internet access provided library patrons via library computers. Rather, such restrictions are subject to the First Amendment, and must be both justified by a compelling governmental interest and narrowly tailored to achieve that end. Left for another day was whether the actual policy enacted by the library, which prohibited access to child pornography, obscene material and material deemed harmful to juveniles under Virginia law, and the library's use of "X-Stop" blocking software to effectuate that policy, passed constitutional muster. What was clear, however, was that the ability of a library patron to apply for, and potentially obtain access to otherwise prohibited sites would not save an otherwise unconstitutional policy because of the chilling effect such a policy would have on speech. The court further held that section 230(c)(2) of the Communications Decency Act did not prevent court review of the constitutionality of the Board's actions.)

121 F. Supp. 2d 156 (D.N.H., September 28, 2000)

The court granted defendants' motion for summary judgment, and held that defendant Network Solutions Inc. ("NSI") did not violate plaintiffs' First Amendment rights by refusing, under its "decency policy," to register domain names that contained, in their second level domains, various sexually-oriented words and phrases.

139 Cal. App. 4th 1423, 2006 WL 1452685 (Cal. App. , 6th Dist., May 26, 2006)

Reversing the court below, the California Court of Appeals holds that the Stored Communications Act prohibits an ISP that hosted a blog's email account from disclosing e-mails sent to the blog in response to a subpoena issued in a civil litigation.  The subpoena sought production of e-mails that would permit Apple Computer ("Apple") to identify the individual(s) who transmitted trade secret information about an as yet unreleased Apple product to the blog/website Power Page, which information was the source of articles Power Page subsequently published on its blog/website.

The Court further held that petitioners, who acted as publishers of, and/or editors or reporters for, the news blogs that published the stories at issue about this Apple product, were entitled to a protective order against their disclosure of the confidential sources of their stories.  Notwithstanding Apple's claim that the information petitioners received from these services constituted trade secrets disclosed in violation of confidentiality agreements each of its employees had signed, the Court held such disclosure barred by both California's Reporter's Shield Law and the First Amendment.  The Court held that the Shield Law, which prohibits a court from holding in contempt a publisher, editor or reporter of "a newspaper, magazines or other periodical publication" for failing to disclose the source of a published story, protected petitioners, publishers and/or reporters of news blogs, from having to disclose the sources of the stories at issue.  The First Amendment similarly provided protection, given Apple's failure to fully exhaust other avenues of disclosure before pursuing discovery from petitioners.

Case No. 98-2083 (N.Y. App. Div., 4th Dept., June 18, 1999)

The Fourth Department held that New York Penal Law §235.22 did not run afoul of either the First Amendment or the Commerce Clause of the United States Constitution. This statute makes it a crime for an individual to use a computer system to engage in communications with a minor which both "disseminate[] graphic images to [the] minor depicting nudity, sexual conduct or sadomasochistic abuse that is 'harmful to minors'", and "importunes, invites or induces a minor to engage in sexual activity." In reaching this conclusion, the court rejected defendant's contentions that Penal Law §235.22 was overbroad, vague or an impermissible content-based regulation on protected speech. Quite the contrary, held the court, the statute was "a precise means of accomplishing the Legislature's objectives" of protecting children from "high-tech cybersex abuse and actual sexual abuse."

97 Civ. 0629 (KNW)(S.D.N.Y. March 26, 1997), aff'd. 152 F. 3d 920 (2d Cir., Feb. 9, 1998), cert. denied, 525 U.S. 834 (1998)

Defendant enjoined from continuing to utilize plaintiff's service mark, Planned Parenthood, in its domain name, at which is found a web site featuring references to a book espousing anti-abortion positions. Such use held to violate Lanham Act and not to be protected by First Amendment

2000 U.S. Dist. Lexis 11621, 108 F. Supp. 2d 611 (W.D. Va., August 8, 2000)

Court issues preliminary injunction, enjoining Virginia from enforcing so much of Virginia Code section 18.2-391 that regulates the display on the Internet of sexually explicit materials to juveniles. The court based its decision on its determination that plaintiffs were likely to establish that the statute runs afoul of both the First Amendment and the Commerce Clause.

Case No. Civ-02-1457-M (W.D. Okla., Jan. 13, 2003)

Court denies plaintiff's application for a preliminary injunction, finding plaintiff is not likely to prevail on its claim that defendant Google is guilty of tortuous interference with contractual relations as a result of having intentionally lowered the ranking of plaintiff's websites on Google's search engine.

Despite the fact that this action adversely impacted the traffic plaintiff's sites received from those using Google, the Court held that plaintiff was unlikely to prevail because Google's determination of how a page is ranked in response to a search query is an expression of opinion protected by the First Amendment which cannot give rise to a tortuous interference claim.  The court further held that plaintiff, an ad broker, neither had the right to be listed on Google's search engine nor have its page ranked in a certain way in response to search requests.

No. C97-1360WD (W.D. Wash., July 17, 1998)

Court denied motion to enjoin plaintiff from continuing to publish on his website allegedly defamatory statements critical of credit reporting agencies that included what the court characterized as "scurrilous expression of opinion," as well as the home addresses and telephone numbers of criticized individuals. Such a prior restraint on speech, which, though held by the Court to be "offensive" had not at that time been found to be defamatory, was barred by the First Amendment because the speech at issue did not incite or produce lawless actions.

995 F. Supp. 634 (E.D. Va., Feb. 26,1998), reversed 216 F.3d 401 (4th Cir., Feb. 10, 1999), cert. denied 2001 U.S. Dist. Lexis 134 (2001)

Court strikes down Virginia statute prohibiting state employees from using state owned computers to access Internet sites containing sexually explicit content because statute violates the First and Fourteenth Amendments of the United States Constitution.

The statute was not appropriately tailored to achieve the State's goals of maintaining operational efficiency in the workplace and preventing the creation of a sexually hostile work environment. It was underinclusive because it only targeted sexually explicit content, and not other conduct that could disrupt the efficiency of the workplace, such as accessing computer games, or news or sports related sites. Similarly, it was underinclusive because it only limited the exposure of workers to sexually explicit content presented on the Internet, but not in other mediums such as books and pin-ups.

The statute was overinclusive, because it prohibited countless legitimate work-related endeavors by state employees dealing with sexuality and the human body.

Lastly, the State could achieve its goals by content neutral regulations which prohibit the "unauthorized use" of state equipment. These regulations treat all types of speech equally, without discriminating against any speech (such as sexually explicit speech) solely because of its content.

216 F.3d 401 (4th Cir., Feb. 10, 1999), cert. denied 2001 U.S. Dist. Lexis 134 (2001)

The Fourth Circuit, reversing the District Court, held that a statute that imposed restrictions on the ability of State employees to access the Internet, Va. Code. Ann. §2.1-804 et seq. (the "Act"), did not run afoul of the First Amendment. The Act prohibits state employees from using state-owned computers to access "sexually explicit content" on the Internet unless they obtain written approval from their agency head that such use is required for an approved governmental purpose. The Fourth Circuit determined that because the Act only restricts the conduct of State employees in the performance of their duties for the State, and not their acts as private citizens, the Act constitutes a permissible restriction the State, as employer, can impose on its employees that does not violate the First Amendment.

145 F. Supp. 2d 1168, Case No. C-00-21275JF (N.D. Ca., September 24, 2001)

United States District Court issues a declaratory judgment declaring unenforceable in the United States an order of a French Court which, inter alia, directs that Yahoo Inc., under threat of continuing penalties, prevent French citizens from accessing Nazi items offered for sale by third parties on's auction site, and "to take all necessary measures to dissuade and render impossible any access via to the Nazi artifact auction service and to any other site or service that may be construed as constituting an apology for Nazism or a contesting of Nazi crimes." Court issues such relief because of its determination that enforcement of this order would violate Yahoo's First Amendment rights.

Court holds that the prerequisite for the issuance of declaratory relief, the existence of an actual case or controversy, have been met as a result of the threat of enforcement of the French Court's order, and the ongoing penalties associates therewith. The Court also rejects defendants' contention that appropriate application of the abstention doctrine obligated the Court to refrain from resolving the instant litigation. Because the action seeks to litigate a question most properly decided by a United States court - namely the enforceability of the French Court's order in the United States - and not to relitigate the issue before the French court (whether Yahoo's site runs afoul of French law) the court declined to abstain from resolving it. Nor did principles of comity require the enforcement of the French Court's order, because to do so would run afoul of the United States' policies embodied in the First Amendment of the United States Constitution.

Quick Hits

Free Speech Coalition Inc. v. Mark Shurtleff, et al.
Case No. 2:05CV949DAK (D.Utah, March 23, 2007)

Court denies motion to enjoin enforcement of Utah's Child Protection Registry Act, a statute that prohibits the transmission of emails promoting products that are either harmful to, or that a minor is prohibited from purchasing to email addresses registered with the Utah registry, absent the consent of an adult.  The Court held plaintiff, a trade association representing members "involved in the production [or] dissemination of sexually explicit … expression", unlikely to succeed on the merits of its claims that Utah's Child Protection Registry Act was preempted by CAN-SPAM, or ran afoul of either the Commerce Clause or the First Amendment.  In reaching this result, the Court relied on an express exception to preemption provided in CAN-SPAM for state laws "relate[d] to … computer crime.", Inc. v. Lavasoft
356 F. Supp. 2d 1071 (C.D.Cal. 2003)

Court denied plaintiff Inc.’s motion for a preliminary injunction, which sought to enjoin defendant Lavasoft from both informing consumers via its Ad-Aware software that NewDotNet, a software program distributed by plaintiff, is installed and running on their computers, and providing consumers with tools that enable them to uninstall that software if they so desire.  Ad-Aware is a popular software program that aids consumers in removing unwanted “spyware.”  Plaintiff charged that by so identifying its software, Lavasoft was mislabeling and disparaging its NewDotNet software by associating it with such unwanted spyware.  As a result, charged Lavasoft with false advertising, unfair competition, trade libel and tortuous interference with prospective economic advantage. 
The court denied plaintiff’s motion, finding that by informing consumers that NewDotNet was installed and running on their computers, Lavasoft was engaging in speech about a matter of public interest protected by the First Amendment.  As such, the injunction plaintiff sought was an impermissible prior restraint on speech plaintiff claimed was defamatory, before that speech was actually determined to be false.  Said the Court:

For more than thirty years, it has been established that allegations of falsity are insufficient to warrant prior restraint. …  “Equity will not restrain by injunction the threatened publication of a libel, as such, however great the injury to property may be.  This is the universal rule in the United States …”

This prohibition on prior restraint applies to “all causes of action having as their gravamen the alleged injurious falsehood of a statement,” which here included both the Lanham Act and state law claims asserted by the plaintiff.

The court noted that once speech is found to be defamatory and false, a defendant can be enjoined from repeating it.  Said the Court:

The First Amendment offers no protection for false or deceptive commercial speech. …  By contrast, “once a jury has determined that a certain statement is libelous, it is not a prior restraint for the court to enjoin the defendant from repeating that statement.” generates revenue through the sale of domain names in nonstandard format, such as .free and .shop.  Because the internet does not recognize these domain names, they must be linked to domain names that the internet does recognize for a user to be able to locate them, such as those using traditional extensions such as .com.  According to the court, “without special software, either loaded onto a users computer or incorporate into the software of an internet service provider, an internet user who types a nonstandard domain name in his or her browser will not be able to locate the website. deals with this problem by providing software “newdotnet” that recognizes the nonstandard extension and connects the user to the web site without requiring the user to know and enter the site’s “true” name.”  According to the court, “ is typically introduced onto home computers through ‘bundling’ a process by which an individual who intentionally requests and downloads certain desired software actually gets a bundle of other software the was not sought by the user.”  Often “’s presence is disclosed deep within complicated user agreements that do not allow users to opt out of downloading the bundled conglomeration.”  The court presumed that often, the consumer is unaware that Newdotnet is actually installed on their computers.  Ad-Aware apprises the consumer of the presence of this program, and allows them to remove it if they so choose.

White Buffalo Ventures, LLC v. University of Texas at Austin
420 F.3d 366 (5th Cir., August 2, 2005) cert. denied, 126 S.Ct. 1039 (January 9, 2006)

Affirming the Court below, the Fifth Circuit holds that the University of Texas at Austin (“UT”) can block unsolicited commercial email sent by plaintiff White Buffalo Ventures (“White Buffalo”) to UT students that promote plaintiff’s online dating services.  Importantly, UT can take such action notwithstanding the fact that White Buffalo’s commercial emails comply with CAN-SPAM.

In reaching this result, the Fifth Circuit rejected White Buffalo’s arguments that UT’s conduct constituted state action preempted by CAN-SPAM.  The Court held that UT was a state actor, and that its determination to block unsolicited commercial email was a state regulation that fell within the ambit of CAN-SPAM’s preemption clause, found in section 7707(b)(1).  This section provides that CAN-SPAM preempts state regulation of email unless such regulation ‘prohibits falsity or deception’ in the email.

However, the statute further provides that ‘nothing in this chapter shall be construed to have any effect on the lawfulness or unlawfulness … of the adoption, implementation or enforcement by a provider of Internet access service of a policy of declining to transmit, route, relay , handle or store certain types of electronic mail messages.’  Section 7707(c).   As the provider of Internet access service – students are enabled by UT to access the internet via its wireless network, and to use email addresses UT provides – this section expressly permitted UT to adopt a policy blocking those who send spam to its network.

The Fifth Circuit held that Section 7707(c) conflicts with Section 7707(b)(1), and thus draws into question the limits of the preemptive effect of CAN-SPAM.   Given these conflicting provisions, held the Court, the presumption against preemption counseled against finding UT’s regulations invalidated by CAN-SPAM.  As such, the Court rejected White Buffalo’s argument that CAN-SPAM mandated that UT’s policies be invalidated on the ground that they ran afoul of CAN-SPAM, or were preempted thereby.

The Court similarly rejected White Buffalo’s claim that UT’s bar on the transmission of its commercial emails ran afoul of the First Amendment.  The Court held that the regulation was reasonably calculated to protect a substantial governmental interest – protecting users of its email network from the hassle associated with unwanted spam – and was no more extensive than necessary to protect that interest. 

The Fifth Circuit did hold that an absolute ban on the transmission of White Buffalo’s emails may be an overly broad restriction – from a First Amendment prospective – if the only interest protected was the capacity of UT’s system to handle the needs of its user community.  Summary judgment was inappropriate, on the record then before the Court, to sustain such a contention.  

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