The First Amendment permits governmental regulation of commercial speech so long as the government’s interest in doing so is substantial, the regulations directly advance the government’s asserted interest, and the regulations are no more extensive than necessary to serve that interest. The Supreme Court has ruled that the government has a “substantial interest” in regulating false, deceptive, and misleading advertisements. However, the Supreme Court had not been asked to consider whether the First Amendment allows the government to regulate the distribution of unwanted advertisements. It may be asked shortly to do so with the prevalent use of “spamming” on the Internet.
Spamming is a term that describes the mass distribution of unwanted and unsolicited e-mail that advertises the sale of goods and services. Large-scale delivery of electronic advertisements on the Internet is not only annoying to users but also to ISPs and Web site owners whose mail servers can be overburdened by bulk e-mail. Sixteen states have banned spamming to some extent, and Congress has several bills before it aimed at achieving the same purpose. However, legal challenges are slowly creeping into courts across the country.
The Washington State Supreme Court, for example, upheld the state’s anti-spamming law. State v. Heckel, 143 Wash.2d 824, 24 P.3d 404 (Wash. 2001). The court concluded that the law served the legitimate purpose of banning cost-shifting inherent in the sending of deceptive unsolicited bulk e-mail, and the only burden it placed on spammers was in prohibiting the distribution of e-mail with misleading subject lines. RCWA 19.190.010 et seq. The court found that this prohibition was consistent with other state statutes outlawing false and deceptive advertising. However, not all courts agree on this issue. The U. S. District Court for the Southern District of Ohio found that spamming constitutes an illegal form of trespass. CompuServe, Inc. v. Cyber Promotions, Inc., 962 F.Supp. 1015 (S.D.Ohio 1997).