St. Mary's Law Journal


Scot M. Graydon


Internet users need protection from unsolicited commercial emails (UCEs), and this protection should come from federal legislation. Despite seventeen states having passed some sort of legislation regulating UCEs, this is insufficient to protect Internet users from UCEs. State laws are not uniformed and UCEs frequently cross state lines. Internet advertisers prefer commercial emails because of the ability to market to millions of consumers at a low cost. Consumers, however, suffer delays to their Internet access because of the amount of data UCEs accumulate, and in some cases may have to pay additional fees if they exceed the data limits of their plan. Internet advertisers argue the First Amendment provides commercial speech protection to UCEs. Regulations on forms of commercial speech—door-to-door solicitations, mass mailings, telemarketing calls, and facsimile machine advertisements—have been found constitutional by the United States Supreme Court. In weighing the interest of the commercial speaker and the recipient, the Court upholds regulations that constrain commercial speech so long as the regulation allows the recipient the right to decline or accept the receipt of unsolicited advertising. Congress should pass the Unsolicited Commercial Mail Act of 2000 (the Act) proposed by New Mexico Representative, Heather Wilson. The Act would require regulations including: the commercial email be inconspicuous, not be misleading, provide consumers with an opt-out clause, and include a valid return email address. In Central Hudson Gas & Electric Corp. v. Public Service Commission, the Court developed a four-prong test to determine whether commercial speech falls within the protections of the First Amendment: speech must concern a lawful activity, speech may not be misleading, regulation must serve a substantial governmental interest, and regulation must directly advance the interest. Because the Act gives Internet users the right to control what they receive, as with other forms of commercial advertisements, the Act is no more extensive than reasonably necessary in serving the interests of Internet users.


St. Mary's University School of Law