FSC Board Chair Jeffrey Douglas, who is supervising the case told XBIZ he was “cautiously optimistic” about the case.
“The hearing went as well as could reasonably be expected,” Douglas said. “Stephen Rohde, who is handling the case for the FSC, is one the nation’s finest 1st Amendment lawyers.”
Rohde told XBIZ he too was pleased with the way the hearing went.
“The judge listened very carefully,” he said. “Of course it’s always dangerous to read tea leaves based on oral arguments.”
The FSC filed a motion in U.S. District Court in Salt Lake City in May seeking preliminary injunction to halt enforcement of the law.
Utah’s registry allows parents and others to register email addresses to which minors have "access," and then prohibits emails from being sent from anywhere in the world to those addresses that advertise "harmful matter" or products or services minors cannot purchase.
Emailers can pay a private company to "scrub" their lists at a cost of a 1/2 cent for every name on their list, according to the registry’s rules. That company, Unspam Registry Services Inc., is named in the suit.
Joining the case, attorneys for the Justice Department filed a brief siding with state officials and arguing that the statute is neither preempted by the federal Can-Spam Act nor contrary to the 1st Amendment.
According to Rohde, Kimball took time to consider the federal government’s argument during the Nov. 8 hearing. Although the Justice Department sided with Utah, portions of the brief helped the FSC, according to Rohde.
For example, Rohde said, the federal government agreed with the FSC that the statute was not limited to email.
Rebutting the FSC’s argument that enforcement of the state law would overrule Congress’ decision not to implement a “do not email” registry, Justice Department lawyers said in their brief that the Can-Spam “preemption provision applies only to state laws that expressly regulate the use of electronic mail to send commercial message.”
According to the Justice Department brief, Can-Spam does not preempt the Utah law’s ability to prohibit sending emails that “contain material that is harmful to minors.”
Rohde said the government offered little authority on the preemption argument and was not terribly persuasive. However, he told Kimball, that if the court agreed with the preemption argument it would do so at the expense of Can-Spam, effectively destroying the act because there would be no limit if states could label any law dealing with unsolicited emails as a computer crime.
The federal government claims the Utah law is not preempted by Can-Spam because of an exemption made for state laws regarding computer crimes in the federal law.
Addressing the FSC’s argument that the law imposes an impermissible prior restraint on free speech, Justice Department lawyers argued that Utah has a right to prohibit the sale of material to minors, when it is deemed “harmful to minors,” even though the same content would not be ruled as obscene as to adult.
Government attorneys also argued that the 1st Amendment does not “protect a speaker’s right to send unwanted material into the home of another.”
According to Rohde, the 1st Amendment argument presented by the government also appeared ineffective, but he said, the big surprise was that Justice Department lawyers did not address the dormant commerce clause issue in the case.
Under the dormant commerce clause, states are prohibited from passing laws that interfere with interstate commerce.
Rohde called this case a “classic example” of a dormant commerce clause issue, explaining that the provision of the Utah law that requires emailers to get face-to-face permission before sending emails clearly favors Utah companies over out-of-state businesses.
But, Rohde said, even if the face-to-face provision in the law was not an issue, the dormant commerce clause should still doom the statute because companies that do not intend to do business within Utah must still submit their email lists to be “scrubbed.”
According to Rohde, Kimball could write a sweeping opinion granting the preliminary injunction and staying enforcement of the law, pending a trial for a permanent injunction, which would likely address the same issues. Kimball also could write a more limited ruling, Rohde said.
The judge did not say when a decision could be expected. According to Douglas, Jerome Mooney, who is serving as local counsel in the case, believes Kimball will likely issue a ruling by the middle of December.
The case is Free Speech Coalition vs. Shurtleff, No. 2:05-cv-00949.
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