As both the Internet (1) and the volume of its users continue to grow, (2) it is not surprising that legal problems associated with the Internet also continue to develop in every area of the law. This article explores a narrow issue that has serious First Amendment implications: whether 'junk' e-mail (also called 'bulk' e-mail or 'spam') should be legally protected. First, this article defines junk e-mail and attempts to explain why on-line computer services are trying desperately to curtail it. Second, this article reviews recent cases that have dealt specifically with junk e-mail in the First Amendment context. Third, this article assesses whether junk e-mail may be afforded protection under state common or federal statutory law.
II. WHAT IS JUNK E-MAIL?
As e-mail (3) becomes a popular alternative to traditional letter writing, advertising companies, who ordinarily send bulk mail such as catalogs, brochures, pamphlets and other forms of direct mail, are frequently attempting to tap into this potentially massive audience by sending unsolicited e-mail messages to hundreds of thousands of email users worldwide. From an advertising standpoint, one of the more important benefits of e-mail advertising compared to traditional forms (which advertising companies were quick to recognize) is that it is virtually cost-free to the advertiser. Other than a basic service fee paid to companies who distribute the e-mail ads, there is no per-message charge. Additionally, advertising by e-mail is much faster than traditional direct mail because the messages reach their destinations within minutes. This type of direct on-line advertising is known by various terms, including bulk e-mail, junk e-mail and spam. (4)
Recognizing the potential market for direct e-mail advertising services, many companies now are founded for the sole purpose of distributing the advertisements of various other commercial entities. In fact, companies now sell software designed specifically to facilitate sending junk e-mail. (5) However, due to the vast amount of unsolicited e-mail ads filling up Internet users' mailboxes, most e-mail users have not been thrilled with this new development.
Many Internet e-mail customers now complain to their respective Internet Service Providers (ISPs), such as America Online, CompuServe and Prodigy. As a result, ISPs are forced to respond or risk losing their subscribers. The usual, first response of ISPs is to notify these junk advertisers that they are prohibited from using their respective computer networks to send unsolicited e-mail. Predictably, the advertisers rarely stop sending the e-mail. Because these notices usually do not solve the problem, ISPs create software programs to prevent dissemination of this junk e-mail. (6) Undeterred, the advertising companies seem to find ways to protect their messages from the software by concealing their names and addresses. The inability of ISPs to compromise with junk advertisers has spawned multiple lawsuits, seeking both equitable remedies, to prevent advertisers from sending junk email, and legal relief in the form of monetary damages.
Because of a lack of immediate remedies, Internet users themselves have begun to step up efforts to eliminate spamming because it both interferes with their use of e-mail and violates the rules of 'netiquette' (rules of etiquette in cyberspace). One web site conducting a survey on opinions of junk e-mail reveals what one might expect: the vast majority of people oppose spamming. (7) Not surprisingly, a search of the Internet reveals numerous sites lobbying for a ban on junk e-mail (8) and other sites offering to help users stop unwanted junk e-mail. (9) Despite such sites, however, the problem of junk e-mail has yet to be fully resolved.
III. IS JUNK E-MAIL PROTECTED SPEECH?
The First Amendment to the United States Constitution states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press. …