New Jersey Law Journal

February 7, 2005

HEADLINE: Defining Political Spam;

Unsolicited political e-mails may be a nuisance, but they may also be protected speech

BYLINE: By Jonathan Bick; Bick is of counsel to WolfBlock Brach Eichler of Roseland and is an adjunct professor of Internet law at Pace Law School and Rutgers Law School. He is also the author of 101 Things You Need To Know About Internet Law [Random House 2000].

BODY:

The Internet has radically altered the nature of communication in the United States. Its effects on the American political campaigns are dramatic, as demonstrated during the most recent political campaign season where it played a decisive factor in several election victories. The Internet offers candidates the opportunity to contact a million votes for about $100 when using unsolicited bulk e-mails, often called spam. Under the First Amendment, political spam is generally lawful; however its use as a fundraising and other specific types of communication may cause legal difficulties.

Since its inception in 1994, the use of spam has grown exponentially. Since 2002, Spam has been considered a mainstream marketing option. Firms have spent more than $1 billion per year on spam for the past four years. The costs to people and corporations to deal with spam are ten times that amount. Such costs include lost productivity, more expensive servers and additional bandwidth, additional customer support staff, time spent deleting messages, time spent by people who mistakenly click on spam messages, and time spent tracking down messages deleted by spam filters.

During the 2004 national elections, candidates used e-mail to reach the electorate. By sending out unsolicited bulk e-mails, candidates sent information to millions of voters with the click of a button. Some see political spam as another nuisance, no different than commercial spam or junk mail. Like other forms of spam, it clogs inboxes. Others find political spam to be a form of speech. In particular, they find political spam to be protected speech.

Election-related speech restrictions pose tough legal questions because they implicate conflicting fundamental legal interests. On one hand, the First Amendment has been interpreted by the courts to preserve free and unfettered debate over politics and the qualifications of candidates for office. In addition, the Supreme Court in New York Times Co. v Sullivan, 376 US 254 [1964], found that the First Amendment reflects a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open."

On the other hand, the states have an interest in preserving the integrity and reliability of their elections. The Supreme Court in Storer v. Brown, 415 US 724 [1974], recognized that "as a practical matter, there must be a substantial regulation of elections if elections are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." This case also noted that multiple Supreme Court decisions have resolved that avoiding voter confusion is an important state interest. Consequently, this case has been used as the legal basis for contemplated action to regulate political spam.

Political speech remains at the core of the First Amendment freedoms, and it is unlikely that federal or state lawmakers will challenge its protection. Courts have approved the regulation of analogous types of speech, such as commercial spam.

The Controlling the Assault of Non-Solicited Pornography and Marketing [CAN-SPAM] Act of 2003, 15 U.S.C.A. 7701 [West 2004], was enacted to eliminate unsolicited bulk e-mail advertisements. The act provides for up to $2 million in fines and prison terms for fraudulent header information, such as false reply addresses or misleading subject lines. In some cases involving substantial violations, the fines may be trebled up to $6 million.

This federal statute only regulates commercial e-mail, not political e-mail. In particular, commercial e-mail is generally intended to sell a product or service in exchange for a fee. Thus, commercial e-mail is a form of commercial speech that relates to the economic interests of the speaker and its audience. Courts do not protect commercial speech to the same degree as political speech.

Ultimately, political spam will probably be defined more by market effects than government regulation. Currently, the Internet is growing at a time when the television audience is shrinking. As the use of the Internet expands, politicians will follow voters by spending more time on the Internet than on the airwaves. Free speech is actively protected so it is unlikely that political spam will be regulated.

However, political spam, while lawful, may result in legal difficulties for those who use it. Consider that numerous provisions of the Internal Revenue Code affect state and federal political candidates and committees. In particular, when a political entity raises more than $100,000 in annual receipts, potential donors who receive fundraising solicitations must be told that contributions are not tax deductible. In short, certain political spam may be unlawful due to its content or lack of notice in this instance.

Failure to include the disclaimer could result in penalties of $1,000 per day, up to $10,000. If the political organization intentionally disregards this section, the per-day penalty is the greater of $1,000 or 50 percent of the cost of the solicitation, and the $10,000 upper limit does not apply.

Despite the special protection afforded political expression by the First Amendment, some legislation restricts political speech. Thirty-one states and the federal government have enacted statutes requiring disclosure notices in television and radio commercials. These notices normally state that any paid political advertisement which is broadcast on any electronic media shall be clearly identified or marked as a paid advertisement. These statutes usually make it unlawful for any person, candidate, principal campaign committee or other political committee to broadcast any political advertisement without a notice.

In the future, political spam might be required to have a notice at the beginning or end of each e-mail stating that the communication was a paid advertisement and giving the identification of the person, principal campaign committee or other political committee that paid for, or otherwise authorized such communication.