U.S. v. Smallwood: District Court Says CAN-SPAM Act Does Not Violate First Amendment

U.S. v. Smallwood, 09-CR-00249 (N.D. Tex. July 15, 2011) Slip Opinion hosted by Scribd.co

The District Court for the Northern District of Texas rejected a First Amendment challenge to the CAN-SPAM criminal statute, which prohibits the computer transmission of “multiple commercial electronic mail messages, with the intent to deceive or mislead recipients . . . . as to the origin of such messages.”

The court first rejected defendant Alicia Smallwood’s motions challenging her indictment for, among other things, electronic mail fraud in violation of 18 U.S.C. §§ 1037(a)(2) and (b)(2)(c) (“CAN-SPAM Act”). The court determined that Smallwood was engaging in “clearly proscribed conduct” and was therefore not entitled to challenge the statute for vagueness. As a result of this finding, the main issue in the case became whether the statute was overly broad in its regulation of protected speech and thus a violation of the First Amendment. The arguments presented by Smallwood for over-breadth centered around the statute’s limitations on commercial speech, and the court rejected them.

Eric Goldman provides commentary on the outcome and implications of the opinion. For a background on the CAN-SPAM Act’s requirements, see Cybertelecom.

Smallwood’s main argument focused on the CAN-SPAM statute's effects on commercial speech, which she claimed had been protected in the past. She contrasted the purpose of the statute – to prevent the unwanted dissemination of pornographic material – with the potentially arbitrary application of the statute to acceptable forms of advertising. Smallwood claimed that this statute could result in the suppression of consumer product information, since companies who might need to subcontract others to advertise by bulk will be deterred if they believe that such anonymous speech will result in criminal consequences. The resulting reduction of information available to consumers would, according to Smallwood, defeat the purpose of the First Amendment. The court decided that, based on case law, the over-breadth doctrine does not apply to commercial speech, and the legislative history is irrelevant because the language of the statute is clear.

Of all of Smallwood's arguments, the most significant and interesting was her assertion that the Virginia anti-SPAM statute, which was found unconstitutional by the Supreme Court of Virginia in Jaynes v. Virginia, a case previously covered by JOLT, was indistinguishable from the CAN-SPAM statute. The court summarized the holding in Jaynes, noting that the constitutional problem in that case was that the statute was not narrowly tailored enough to advance the state’s legitimate interest. The statute in Jaynes was meant to control the transmission of “unsolicited commercial, fraudulent, or otherwise illegal bulk email,” but its breadth created an additional burden on political and religious speech. Here, the district court found that the same burden did not exist in the CAN-SPAM statute, and that distinction precluded the application of Jaynes to Smallwood’s situation.

The significance of this case is that it further affirms the permissibility of prohibiting mass electronic messaging as long as it does not indirectly create a burden on certain protected speech, such as political or religious speech. The court’s decision evinces that the Jaynes case was an anomaly in the realm of constitutionality and over-breadth of anti-SPAM statutes. Essentially, this case is demonstrative of the difficulty of making First Amendment challenges to anti-SPAM statutes and underscores the reasons why Jaynes was a special case in this area.

Samantha Kuhn is a 3L at Harvard Law School.