Pornography trade group the Free Speech Coalition has filed for a preliminary injunction against the state of Utah aiming to stop the state from enforcing its so-called child-protection do-not-e-mail registry.
The group filed suit against Utah in federal court last November in an attempt to get the state’s child-protection registry declared in violation of the federal Can-Spam Act, and/or an unconstitutional restriction of interstate commerce.
In a 35-page motion filed last week, the Free Speech Coalition argued that Utah’s child do-not-e-mail registry constitutes impermissible prior restraint, violates the “expressive privacy” of the coalition and its members, imposes an unconstitutional burden on protected expression, and is too vague.
The group also argued that Utah cannot constitutionally regulate advertising just because it may entice minors to buy products or services it is illegal for them to buy.
Marketers find themselves in the uncomfortable position of hoping the Free Speech Coalition prevails.
Utah and Michigan passed laws last summer allowing parents and guardians to sign up e-mail addresses and other electronic “contact points,” such as instant messaging addresses, used by minors as off limits to commercial e-mail containing material illegal for them to buy or view.
Marketers of such material are supposed to scrub their lists against the registries against the states’ registries on a monthly basis. Both Utah and Michigan’s registry laws include severe financial penalties for violators, and allow individual parents to file suit against companies they believe broke the law. Critics contend that since only law abiding companies use the registries, they will do nothing to prevent children from getting inappropriate e-mail while placing an onerous burden on legitimate marketers.
Critics also contend that the registries potentially make it easier for online predators to identify children’s e-mail addresses. An incident last week involving anti-spam concern Blue Security’s “do-not-intrude” registry bolsters critics’ arguments. An irate spammer identified some registrants on Blue Security’s list and began sending them messages threatening to send them more spam if they didn’t resign from Blue Security’s service.
A victory for the Free Speech Coalition in Utah would not necessarily have any effect on Michigan’s registry. As a result, the group must deal with Michigan separately.
The case is Free Speech Coalition V. Shurtleff No. 2:05-cv-00949.
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