The judge deciding the lawsuit against Utah’s so-called child protection do-not-e-mail registry is narrowly focused on the fact that the plaintiff is a pornography trade group, according to Jerome Mooney the lawyer representing the group.
As a result, the case is doomed unless others join in as plaintiffs and Mooney can change U.S. District Judge Dale Kimball’s opinion on some key points contained in a decision he rendered earlier this year, he said.
Kimball in March refused to grant a preliminary injunction for pornography trade group Free Speech Coalition to suspend enforcement of Utah’s child no-e-mail registry pending the outcome of the case.
Utah’s child no-e-mail law requires marketers who want to put anything in an e-mail illegal for minors to view or buy to scrub their e-mail lists against Utah’s registry for $5 per thousand names.
The Free Speech Coalition sued Utah in November 2005 to get the law establishing the state’s do-not-e-mail registry overturned, claiming it is pre-empted by the Federal Can-Spam Act, and unconstitutionally interferes with free speech and inter-state commerce.
Utah’s registry law—and a similar one in Michigan—is worded so broadly that many non-pornographic marketers fear they may run afoul of it with innocent e-mails such as beer- or wine-of-the-month club newsletters, or even pitches for automobiles or home loans.
But Judge Kimball’s language makes it clear he is narrowly considering the issues only as they apply to pornographers, Mooney said.
For example, where Utah’s right to protect children from material that is obscene and harmful to minors figures prominently in Kimball’s decision, it wouldn’t if there were a plaintiff in the case that was dealing in a less controversial industry than porn.
“We are impacted negatively that it’s the adult industry standing alone,” said Mooney.
Mooney added he is also having a difficult time mounting an effective argument that the registry violates the commerce clause of the Constitution. “The best commerce-clause arguments come from other industries,” he said. “We’ve asked for people representing other disciplines to join in as plaintiffs in the case and everybody’s afraid to get involved.”
Mooney said he spoke to unnamed representatives of the alcohol, tobacco and firearms industries and could convince no one to join the lawsuit as a plaintiff. “They hemmed and hawed, went back and forth for about two months and then gave us a very soft ‘no,’” said Mooney.
Many marketers are uncomfortable publicly supporting pornographers in their battle with Utah, but are rooting for the group nonetheless.
For example, in January 2006, trade groups the E-mail Sender and Provider Coalition, the American Advertising Federation, the American Association of Advertising Agencies and the Association of National Advertisers and advocacy groups the Electronic Frontier Foundation and the Center for Democracy and Technology filed an amicus brief with the court supporting the Free Speech Coalition.
However, the Direct Marketing Association was absent from the brief. DMA president John Greco later said the group did not sign the brief to avoid bad press.
Letting a pornography group battle on their behalf may have dire consequences for mainstream marketers who now run the risk of inadvertently sending something illegal for minors in an e-mail to Utah and Michigan.
Mooney said he expects a decision in the case possibly sometime in late spring.
