Intellectual Property Law

Is There a Constitutional Right to Send Unsolicited E-Mail Advertisement?

By Martha L. Arias

The First Amendment to the United States Constitution and the states' Constitutions guaranty freedom of speech in the United States. Consequently, some private parties have argued that there is a constitutional right under the First Amendment to send unsolicited e-mail advertisement. If sending unsolicited e-mail advertisement is constitutionally protected, does a private party have legal standing to protect its right in court? This article provides a district court interpretation of whether there is a constitutional right to send unsolicited e-mail advertisement, and legal standing to defend those cases in the United States.

In Cyber Promotions v. America Online, 948 F. Supp. 436 (E.D. Pa. Dec. 26, 1996) the a Pennsylvania district court was to decide whether a private company that sent unsolicited e-mail advertisement could invoke First Amendment protection against a private hosting company that blocked that advertisement. The plaintiff, Cyber Promotions, was a corporation incorporated under the laws of Pennsylvania that provided online advertisement services. The defendant, American Online (AO), is a corporation incorporated in Delaware.  AO is a private company with no public funding. AO charges its subscribers a monthly fee for Internet and e-mail services. E-mail services are offered through AO's server, which consists of computer hardware and software.  AO, as private company, invests on the improvement and efficiency of its server.   Cyber Promotions sent a great volume of unsolicited e-mail advertisement to AO subscribers, and AO blocked those e-mails. Cyber Promotions complained and claimed violation of its constitutional right of Freedom of Speech.  The district court held that Cyber Promotions did not have a constitutional right, under the United States Constitution or the state constitution, to send unsolicited e-mail advertisement. Cyber Promotions sought reconsideration of this holding.

When reconsidering its holding, the Pennsylvania District Court for the Eastern District affirmed its previous decision. The court first analyzed, as it is required in any constitutional claim, whether AO was a public entity or had any government participation to support this cause of action. Cyber Promotions argued that by providing Internet services, AO became a "mixed private and public" corporation to support this constitutional claim. The court rejected this position. The court held that AO was a purely private entity and utilized no political powers or services. "The guarantees of free speech, under U.S. Const. amend. I, guard only against encroachment by the government and erect no shield against merely private conduct," the court held.  The court reached this conclusion after applying the three test inquiries to determine whether AO was a state actor.

The district courts of Pennsylvania enunciated three tests to determine whether a defendant to a constitutional claim is a state actor. Mark v. Borough of Hatboro, 51 F.3d 1137, 1142 (3d Cir. 1995). The first test is called the exclusive public function test. "The inquiry under this test is whether the private entity has exercised powers that are traditionally the exclusive prerogative of the state."  The inquiry under the second test is whether "the private entity has acted with the help of or in concert with state officials." The third test inquiry is whether "the state has so far insinuated itself into a position of interdependence with the acting party that it must be recognized as a joint participant in the challenged activity." The district court applied each of these inquiries to the case at hand and concluded that Pennsylvania was not a state actor.

To conclude, a private entity may have a constitutional right to advertise and publish. This is different, however, than a First Amendment right to send unsolicited e-mail advertisement. Likewise, private companies offering Internet and e-mail services also have the right to block unsolicited e-mails to their customers. Most Internet and e-mail services are provided by private companies with no government participation. Thus, there is no state action sufficient to trigger a constitutional claim.

Full post as published by IBLS Internet Law Blog on January 27, 2010 (boomark / email).