IN A MASSIVE BLOW TO EFFORTS to have Utah's do-not-e-mail law overturned, the U.S. Department of Justice weighed in with court papers supporting the state's much-hated registry.
However, the effort left the biggest argument against the registry unaddressed.
In a brief filed Nov. 3, the Justice Department said that contrary to porn group Free Speech Coalition's claims, the federal Can Spam Act does not supersede Utah's so-called child protection registry act, and the state's do-not e-mail registry doesn't infringe on free speech.
Though mainstream marketers aren't taking part in the Free Speech Coalition's lawsuit against Utah, advertising trade groups have lined up against the state's do-not e-mail registry, hoping the porn group wins its fight.
The Justice Department's siding with the registry can't be seen by these groups as good news.
“It's never good news when the 800-pound gorilla weighs in on the other side,” said Jerry Mooney, the lawyer representing the Free Speech Coalition.
Not surprisingly, Unspam Technologies — the company that's been lobbying nationally for states to pass registry laws and that runs the do-not-e-mail registries in Utah and Michigan — issued a press release touting the news.
“The Department of Justice has clarified the Can Spam Act and effectively closed the potential legal loophole pornographers were trying to use in order to justify sending adult-oriented material to Utah's children,” said Unspam CEO Matthew Prince in the statement. “The United States has affirmed that even in the age of the Internet, states have the right to help parents keep unwanted material out of their homes.”
The one bright spot is that the Justice Department declined to address the Free Speech Coalition's argument that Utah's do-not-e-mail registry poses an unconstitutional interference with interstate commerce.
“They said they didn't have a dog in that hunt, which surprises me,” said Mooney. “They addressed the First Amendment issue, which they really didn't have an interest in, maybe other than a political one, and they didn't address the commerce issue, which I would think would be of governmental interest.”
Mooney said the interstate commerce argument is the strongest weapon he has against Utah's registry.
As for the Free Speech Coalition's claim that Utah's law is superseded by Can Spam, the Justice Department said: “[T]he Can Spam Act's pre-emption provision — which applies only to laws governing ‘the use of electronic mail to send commercial messages’ — does not pre-empt the [Utah registry law's] application to communications ‘containing material harmful to minors.’” The Justice Department also argued against the Free Speech Coalition's assertions that the registry infringes on freedom of speech.
“This claim, if successful, would unjustifiably favor the dubious ‘right’ to send unsolicited sexually oriented material directly and indiscriminately to personal e-mail addresses, heedless of whether they belong to adults or children, and regardless of the expressed wishes of the owner of the addresses,'” the Justice Department's brief said.
Marketers, the Federal Trade Commission and others have said that so-called child protection registries make it easier for online predators to get children's e-mail addresses. The Justice Department acknowledged this, but said it's up to Utah to determine the risks for itself.
“[T]his is a policy determination, necessarily based on predictive judgment, that is within the prerogative of the Utah legislature to make,” the Justice Department wrote.
“The protection of the fundamental rights of parents to protect children from harmful sexually oriented material is indisputably a worthy goal,” the department argued. “At this preliminary stage, plaintiff has not provided the court with any basis for its request to halt Utah's experiment in its tracks.”
The case is pending before Judge Dale Kimball in U.S. District Court in Utah.
