As both the Internet itself and the volume of users who access the Internet continues to grow, 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 and "spam") should be legally protected. First, this article defines "junk" e-mail and attempts to explain why on-line computer services are desperately trying to curtail it. Second, it 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 statutory law.

As e-mail became a popular alternative to traditional letter writing, advertising companies, who ordinarily send bulk mail, such as catalogs, brochures, pamphlets and the like, decided to tap into this potentially massive audience by sending unsolicited e-mail messages to almost all e-mail users. One of the more important benefits of e-mail advertising over traditional forms (which advertising companies were quick to recognize) is that it is virtually free. Other than the basic service fee, there is no per-message charge. Additionally, advertising on e-mail is quicker because the messages reach their destinations within minutes. This type of on-line advertising is known by various terms, including "bulk" e-mail, "junk" e-mail and "spam."

Recognizing the potential market for advertising services over the Internet, many companies were founded for the sole purpose of distributing the advertisements of various other commercial entities. Companies began selling software designed to facilitate sending bulk e-mail. For example, Fortune Net, Rod's Networking Services. However, most e-mail users were not so thrilled with this new development. When an individual would check his/her e-mail, that individual would be bombarded with many of these "junk" e-mail messages from various advertisers.

Many Internet e-mail customers complained to their respective servers, such as America On-Line, CompuServe and Prodigy. As a result, the service companies were forced to respond or risk losing their subscribers. The servers' first response was to notify these "junk" advertisers that they were prohibited from using its computer equipment to send unsolicited e-mail. Predictably, the advertisers did not stop sending the e-mail. In a further attempt to curb the junk e-mail, the service companies created software programs to prevent dissemination of this "junk" e-mail. Spam Filter, e Filter. Still not deterred, the advertising companies found ways to protect their messages from the software by concealing their names and addresses. Unwilling and unable to compromise due to the stakes, lawsuits were filed seeking various forms of relief, including equitable (injunctions to prevent a company from sending junk e-mail) and legal relief (money damages).

Soon Internet users themselves began to step up efforts to eliminate "spamming" (as the mass bombardment of on-line advertising came to be called) because it interfered with their use of e-mail and violated the rules of etiquette of the Internet (called "Netiquette"). One site conducted a survey on people's opinions of junk e-mail. Junk Email Survey The survey reveals what one might expect: the vast majority of people oppose spamming. A search of the Internet reveals numerous sites lobbying for a ban on junk e-mail. Fight Spam on the Internet!, I Hate Junk E-Mail. In addition, there is a site on the Internet that teaches e-mail users self-defense against junk e-mail. Self Defense Against Annoyance Mail. Moreover, there are sites on the Internet offering to help users stop unwanted junk e-mail. No Junk E-Mail. If you feel a need to voice your opinion on this issue, please contact some of these sites or let your service-provider know how you feel about spam.

The First Amendment states that "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." U.S. Const. Amend. I. For First Amendment purposes, the most important word in that sentence is "Congress" because speech is only protected against government action. Hurley v. Irish-American Gay Group of Boston, 115 S. Ct. 2338 (1995); Hudgens v. NLRB, 96 S. Ct. 1029, 1033 (1976). Thus, unless the advertising companies (spammers) can somehow argue that "abridging" access to the Internet in these cases is really government action, then the computer service providers legally will be able to block the "junk" e-mail. In Cyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 436 (E.D. Pa.. 1996), Cyber Promotions, a private on-line advertising company, brought state law claims and claims under the Computer Fraud and Abuse Act against America Online (AOL). In response to Cyber's sending millions of "junk" e-mails to AOL customers, AOL sent "e-mail bombs" to Cyber's service providers. Id. at 437. This "bombing" allegedly resulted in the cancellation of various contracts between Cyber and its service providers. Id. Cyber argued that AOL's allegedly private action constituted state action because there is a "close nexus" between AOL's action and the government. See Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).

The Court rejected this argument based on the three tests outlined by the Supreme Court to determine when private action (AOL) may be considered government action. Id. at 441. First, under the exclusive public functions test, the court considers whether the private entity (AOL) is exercising powers which are the exclusive prerogative of the government. In this case, the Internet is owned by private entities. Thus, it fails the exclusive public functions test. Second, under the acting in concert test, the court considers whether "'the private entity has acted with the help of or in concert with state officials.'" Id. at 441 (quoting McKeesport Hospital v. Accreditation Council for Graduate Medical Ed., 24 F.3d 519, 524 (3d Cir. 1994). Cyber argued that AOL was acting with the help of the Court itself (government action) by seeking injunctive relief in its counterclaim. The Court quickly rejected this argument based upon long-standing precedent that holds that filing a lawsuit alone does not transform an action into one under color of law (government action). Thus, it fails the acting in concert test. Finally, under the joint participant test, the court considers whether the private entity and the government are in a position of interdependence. Mark v. Borough of Hatboro, 51 F.3d 1137, 1142 (3d Cir. 1995) (quoting Krynicky v. University of Pittsburgh, 742 F.2d 94, 98 (3d Cir. 1984). Again, the court held that the doctrine did not apply to the facts of this case. As a result, the court found that the First Amendment was not implicated in this case.

Another case which addressed the issue of junk e-mail is CompuServe Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997). In CompuServe, another major on-line service provider, CompuServe, sued the same Internet advertising company that was sued in America Online, Cyber, for trespass to personal property. Cyber again relied upon the First Amendment as its affirmative defense. In granting plaintiff CompuServe's motion for a preliminary injunction (which prevents Cyber from sending junk e-mail during the pendency of the case), the court also held that plaintiff stated a viable claim for trespass under Ohio state law. Id. at 1017. The court relied upon the Restatement (Second) of Torts to support plaintiff's trespass claim. Section 217(b) states that a trespass may be committed by intentionally using or "intermeddling" with the another person's personal property (also called "chattel"). Id. at 1021. In addition, comment e to section 217 defines "intermeddling" as "intentionally bringing about a physical contact with the chattel." Id. The court then relied upon cases from other jurisdictions to support the proposition that "electronic signals generated and sent by computer" are "sufficiently physically tangible to support a trespass cause of action." Id. The court found that CompuServe alleged sufficient harm to its property to state a trespass cause of action under § 218 of the Restatement.

In identifying the harm to CompuServe from Cyber's actions, the court pointed out in its opinion that "many subscribers have terminated their accounts specifically because of the unwanted receipt of bulk e-mail messages." Id. at 1023. In addition, the court noted that comment e to § 218 of the Restatement gives the property owner a "privilege to use reasonable force to protect his possession . . . ." In this case, Cyber's efforts to circumvent CompuServe's security measures (check the above links for detailed information on the service providers' efforts to eliminate junk e-mail) by concealing the true domain name and origin of the messages prevented CompuServe from exercising this privilege.

Cyber argued, as it did unsuccessfully in America Online, that its actions were protected under the First Amendment. In particular, Cyber argued that CompuServe assumed the role of postmaster (for e-mail purposes), and therefore should be subject to the strictures of the First Amendment. Id. at 1026. Nevertheless, the court relied upon America Online (see discussion above) in holding that CompuServe is not a state actor. More importantly, the court noted that there were still alternative means of advertising in general (including the traditional means of U.S. mail) and specifically over the Internet by the use of designated commercial sites.

Based on the limited case law in this area, it appears that junk e-mail or spam will not be afforded First Amendment protection. In addition, courts appear sympathetic to the on-line servers' fears that people will drop e-mail accounts if the proliferation of mass spamming continues. Nevertheless, it is not clear whether appellate courts will follow the reasoning of the district courts, given the fact that there is a whole line of case law in the commercial speech area that affords limited protection to truthful commercial advertisements. In addition, it is still unclear how much First Amendment protection the Internet will receive. Reno v. ACLU, 117 S. Ct. 2329 (1997). For a full discussion of spamming and an analysis of the Supreme Court's treatment of commercial speech, see Joshua A Markus, Commercial Speech on the Internet: Spam and the First Amendment, 16 Cardozo Arts & Ent. L. J. 245 (1998).

As Congress and state legislatures continue to propose legislation designed to curb spamming, it will not be long before some legislation is passed. Once the law is passed and enforced, one can expect the junk e-mailers to bring a lawsuit challenging the legislation on constitutional grounds. For a review of current legislation and proposals, visit the following sites: Junk E-Mail Call to Action, E-Mail Statutes, and David Sorkin's Site on Spam Laws.