Free Speech Coalition, Inc. v. Shurtleff,
No. 2:05CV949DAK (D. Utah Mar. 23, 2007)
[A PDF copy of the decision is
available here.]
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
FREE SPEECH COALITION, INC., Plaintiff,
vs.
MARK SHURTLEFF, KEVIN V. OLSEN, UNSPAM REGISTRY SERVICES, INC.,
Defendants.
MEMORANDUM DECISION
AND ORDER
Case No. 2:05CV949DAK
This matter is before the court on Plaintiff
Free Speech Coalition's Motion for Preliminary Injunction, Defendant
Unspam Registry Services' Motion to Dismiss for Lack of Jurisdiction,
Defendants Mark Shurtleff and Kevin V. Olsen's Motion to Dismiss for Lack
of Jurisdiction, Unspam's Motion to Strike Portions of Plaintiff's Briefs
and Submissions, and Unspam's Motion to Strike Affidavit in Support of
Motion. The court held a hearing on these motions on November 8, 2006. At
the hearing, Plaintiff was represented by Stephen F. Rohde and Jerome
Mooney, Unspam was represented by Parker Douglas and Brent O. Hatch,
and Defendants Mark Shurtleff and Kevin V. Olsen ("State Defendants") were
represented by Thom D. Roberts. The court has carefully considered the
pleadings, memoranda, and affidavits submitted by the parties, the
arguments advanced by the parties at the hearing on the motions, and the
law and facts relevant to the motions. Now being fully advised, the court
renders the following Memorandum Decision and Order.
Plaintiff Free Speech Coalition is a trade association
that allegedly represents over 3000 members "involved in the production,
dissemination, or production of sexually explicit non-obscene expression."
Plaintiff has brought this action seeking declaratory and injunctive relief
as to the constitutionality of provisions in the Utah Child Protection
Registry Act, Utah Code Ann. § 13-39-202 ("CPR"). The CPR, which
in its amended form went into effect May 1, 2006, allows parents or guardians
of minor children in Utah to register electronic "contact points" with the
Utah Consumer Protection Division to prevent certain unwanted communications.
A contact point includes an email address, an instant message identity, a
mobile or other telephone number, a facsimile number, or an electronic
address. Under the provisions of the CPR, absent consent from an adult in
control of a minor's "contact point":
(1) A person may not send, cause to be sent, or conspire with
a third party to send a communication to a contact point or domain that has
been registered for more than 30 calendar days . . . if the communication:
(a) has the primary purpose of advertising or promoting a
product or service that a minor is prohibited from purchasing; or
(b) contains or has the primary purpose of advertising or
promoting material that is harmful to minors, as defined in Section 76-10-1201.
Utah Code Ann. § 13-39-202(1). Section 76-10-1201 is a criminal
statute that defines materials harmful to minors as consisting of nudity,
sexual conduct, sexual enticement, or sadomasochistic abuse when it:
(a) Taken as a whole, appeals to the prurient interest in sex
of minors;
(b) Is patently offensive to prevailing standards in the adult
community as a whole with respect to what is suitable material for minors; and
(c) Taken as a whole does not have serious value for minors.
Serious value includes only serious literary, artistic, political, or
scientific value for minors.
Utah Code Ann. § 76-10-1201. This criminal provision is a felony,
punishable up to five years in prison, and has been upheld as constitutional.
See id. § 76-10-1206; State v. Burke, 675 P.2d 1198 (Utah
1984).
Plaintiff alleges that both it and "many of its members"
send email messages that the CPR purports to regulate. Plaintiff seeks
a declaration from this court that the CPR is unconstitutional and an
injunction prohibiting the enforcement of the CPR. Specifically, Plaintiff
contends that: (1) the CPR is expressly preempted by the federal CAN-SPAM
Act of 2003, P.L. 108-187, codified at 15 U.S.C. §§ 7701 - 7713
and 18 U.S.C. § 1037; (2) the CPR violates the dormant Commerce Clause
of the United States Constitution; and (3) the CPR violates the First
Amendment of the United States Constitution and Article I, Section 15 of
the Utah Constitution.
Defendants Mark Shurtleff, Kevin V. Olsen, and Thad Levar are
sued in their official capacities only. Defendant Unspam Registry Services, Inc.
is a for-profit corporation that has contracted with the State of Utah to "scrub"
email lists for emailers at a cost of .5 cents per name. The only way that
emailers can determine whether or not any particular email address in Utah
has been registered under the CPR is to register to participate in the
Registry's so-called "scrubbing" services and have Unspam compare hash values
to look for matches with any contact point on the Registry.
DISCUSSION
Although Plaintiff's Motion for Preliminary Injunction
was filed first, Defendants' motions to dismiss argue that Plaintiff lacks
standing to bring the present case. Because a lack of standing implicates
whether this court has jurisdiction to decide the merits of the case before
it, the court will address the motions to dismiss first.
Defendant UNSPAM's Motion to Dismiss
Unspam moves to dismiss Plaintiff's Complaint for lack of standing,
and Defendants Shurtleff and Olsen have filed a notice joining in Unspam's motion to
dismiss. "In every federal case, the party bringing the suit must establish standing to prosecute the action." Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1, 11 (2004). An association has constitutional standing when it seeks judicial relief in its own right to redress an injury to the organization itself. Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977).
An organization may also have associational standing to assert claims on behalf
of its members in a representative capacity when "(a) its members would
otherwise have standing to sue in their own right; (b) the interests it
seeks to protect are germane to the organization's purpose; and (c) neither
the claim asserted nor the relief sought requires the participation of
the individual members of the lawsuit." Id.
Under either type of standing, the association and/or its
individual members must meet Article III standing requirements. Article III
requires: (1) a concrete and particularized "injury in fact" that is not
conjectural or hypothetical; (2) a causal connection between the alleged
injury and the challenged conduct such that the injury is "fairly traceable"
to the defendants' conduct; and (3) a likelihood that the injury will be
"redressed by a favorable decision." Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992).
When a motion to dismiss is based on a plaintiff's failure to
allege grounds for federal jurisdiction, the court must consider the allegations
of the complaint as true. Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th
Cir. 2002). The motion should only be granted if it appears that the plaintiff
can prove no set of facts supporting its claim that would entitle it to the
relief sought. Yoder v. Honeywell, Inc., 104 F.3d 1215, 1224 (10th Cir. 1997).
A. Plaintiff's Standing to Sue on Its Own Behalf
Defendants assert that Plaintiff does not have standing to
sue on its own behalf because it has not alleged that it sends messages
that are covered by the CPR and, therefore, it has not been injured by the
CPR. Because of the disjunctive nature of subsection 13-39202(1)(b), the
CPR applies to (1) an email that "has the primary purpose of advertising
or promoting a product or service that a minor is prohibited from purchasing";
(2) an email that "contains . . . material that is harmful to minors, as
defined in Section 76-10-1201"; and (3) an email that "has the primary purpose
of advertising or promoting material that is harmful to minors, as defined
in Section 76-10-1201." Utah Code Ann. § 13-39-202(1).
Plaintiff's Second Amended Complaint alleges that Plaintiff
"regularly disseminates via email to its adult members, to its adult
supporters, and to other adults interested in receiving it, the Free
Speech X-press, which, on a weekly basis, reports and comments upon legal,
political, and social developments of concern to those who oppose
censorship of expression and to those who seek to remain free to produce,
disseminate, and receive presumptively protected sexually oriented
expression." Second Amended Complaint ¶ 9. These emails also
include "a link to the FSC web site, and that web site regularly contains
banners advertising such matters as conferences and trade shows concerning
the adult entertainment industry." Id.
Although Plaintiff's emails are allegedly intended to be
aimed at only adults and report on developments of concern in the area of
censorship, Plaintiff alleges that "from time to time" its "Free Speech
X-Press . . . reports on matters that may be unsuitable for consideration
by minors." Therefore, the communications could be covered by CPR. Other than
using the CPR registry, there would be no way for Plaintiff to know whether
a minor had access to certain accounts. Plaintiff further asserts that it
has standing to sue on its own behalf because it sends emails advertising
and promoting its own conferences and trade shows that minors are prohibited
from attending. With respect to those emails, its entire purpose is to
advertise and promote such conferences and trade shows. Depending on the
specific content of Plaintiff's emails, the court finds that Plaintiff runs
the risk of prosecution for distributing material "harmful to minors." The
court, therefore, finds that Plaintiff's allegations that such material is
likely to be obscene to minors is adequate at this pleading stage to confer
standing.
B. Associational Standing
With respect to Plaintiff's associational standing to
sue on behalf of its members, Defendants argue that there is no
associational standing under the Hunt test because Plaintiff has not
alleged a concrete injury to its members and some of Plaintiff's claims require the participation of the individual members. Defendants contend that Plaintiff's allegations are insufficient because they claim that Plaintiff's members' emails are directed solely to adults and are non-obscene, but may be legally obscene (i.e. harmful) as to minors. Plaintiff argues that it meets each of the Hunt elements.
Under the first prong of the Hunt test, Plaintiff alleges that "most of FSC's members' email expression . . . consists of messages the principle purpose of which is either to propose a commercial transaction or to facilitate a previously agreed upon commercial transaction over the Internet," many of which "commercial transactions--proposed or facilitated--involve products or services that minors in Utah are legally prohibit[ed] from purchasing, especially in light of the involvement of FSC's members in the adult entertainment industry." These allegations establish that Plaintiff's members would otherwise have standing to sue in their own right.
Under the second prong of the Hunt test, the interests Plaintiff seeks to protect must be germane to the organization's purpose. Plaintiff's interest in representing its members and providing services to its members and members of the public is implicated by its ability to send email communications between the various parties. Therefore, the second element of the Hunt test is met.
Defendants argue that under the third prong of
the Hunt test, Plaintiff lacks associational standing because its
claim regarding the constitutionality of Section 13-39202(1)(a) "requires
the participation of the individual members in the lawsuit." 432 U.S. at
343. Plaintiff's Complaint acknowledges that its members' communications
practices are varied. Although Defendants attack the use of the words "some,"
"most," and "many," there is no requirement in associational standing that
100% of an organization's members have standing in their own right. All of
Plaintiff's members engage in the uniform practice of sending emails that
are likely covered by the CPR. The interests of those members are identical
and nothing in the Second Amended Complaint alleges otherwise. Therefore,
on the face of the Complaint, the challenge to the constitutionality of
the CPR does not require the participation of individual members in the
lawsuit. Moreover, Plaintiff's complaint only seeks injunctive and declaratory
relief, not damages for Plaintiff and/or any of the individual members.
Therefore, the court finds that Plaintiff has associational standing to sue
on behalf of its members. Accordingly, Defendant Unspam's motion to dismiss
is denied.
The State Defendant's Motion re: Limited Standing
Claims of Plaintiff
The State Defendants move for a ruling that Plaintiff has
no standing with respect to Utah Code Annotated Section 13-39-202(1)(a). Subsection (a) applies to an email that "has the primary purpose of advertising or promoting a product or service that a minor is prohibited from purchasing." To the extent that Plaintiff and Amici have submitted affidavits, exhibits, or arguments regarding the effect of or constitutionality or enforceability of subsection (a), Defendants ask for them to be stricken and an order in limine entered. Defendant Unspam filed a notice joining in the State Defendants' motion. This motion is similar to Unspam's motion to dismiss except that it focuses only on subsection (a) and seeks to exclude certain evidence relating to that subsection.
Defendants assert that Plaintiff and its members have no intention to engage in conduct, and they do not claim to engage in conduct, that comes within the provisions of subsection (a)--advertising a product that a minor is prohibited by law from purchasing. Rather, they allege that they have the intention to engage in conduct and that they engage in conduct that falls within the proscription of subsection (b)--sending or advertising material harmful to minors.
In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990),
the court struck down some of the challenged provisions as violative of the
constitutional rights of the plaintiffs, upheld some provisions, and refused
to reach the merits of the challenges as to some of the provisions based on
lack of standing. Id. at 233-34. In CAMP Legal Defense Fund Inc. v.
City of Atlanta, 2006 WL 1623279 (11th Cir. 2006), the court also dealt
with the issue of requiring standing as to each of the challenged provisions. The court rejected a party's argument that standing to challenge some provisions allowed it to challenge all of the provisions. Even under the relaxed standing allowed in some First Amendment cases, standing still has to exist as to each challenged provisions. Id.
Relying on the same arguments it asserted against Unspam's
motion to dismiss, Plaintiff argues that it has standing to challenge both
subsections of Section 13-39-202(1). Plaintiff contends that the only
reasonable interpretation of subsection (a) is that it deals with the transaction
in which goods and services are bought and sold. For someone to sell certain goods or services to a minor, the minor must purchase such goods and services. Plaintiff claims that the state cannot be arguing that while the sale to minors of such sexually explicit goods and services is prohibited, their purchase by minors is somehow allowed. If the State is seriously urging this court to enter a declaratory judgment that subsection (a) does not apply to any email communication on the basis of sexual content, then Plaintiff will have prevailed on that aspect of this action and can focus on the unconstitutionality of subsection (b).
Defendants assert that they are making the argument
that subsection (a) does not apply to email communications merely on the
basis of sexual content. Subsection (a) requires that the communication involve advertising or promoting a product "that a minor is prohibited by law from purchasing." The statutory provisions with regard to material harmful to minors (and also pornography) explicitly prohibit the distribution or sale of the materials but also explicitly do not make it unlawful to purchase the materials. The quintessential examples of products under subsection (a), alcohol and tobacco, on the other hand, explicitly prohibit the purchase and criminalize the purchase or possession of those substances by a minor. Defendants contend that there is a difference between prohibited by law from purchasing and prohibited by law from selling.
Defendants also object to the characterization by Plaintiff
that it "will have prevailed on that aspect of this action" by a determination
that Plaintiff lacks standing to challenge that provision. Rather, this case
should be allowed to go forward, if at all, only on those challenges to
statutory provisions that actually apply to the Plaintiff and its members.
Defendants mailed a letter to many of Plaintiff's members on November 7, 2005, stating that "[t]he Division has taken the position that the Child Protection Registry covers those that may send or provide content for sending commercial email that advertises: 1. an alcoholic beverage or product; 2. any form of tobacco; 3. pornographic materials; and 4. any product or services that is illegal in Utah . . . such as illegal drugs, prostitution, and gambling." This letter makes it clear that the State intends to enforce subsection (a) against Plaintiff's members.
Because of such intent, Plaintiff has standing to
assert its members interests as to subsection (a) as much as subsection
(b).1 Furthermore, Plaintiff alleges that
it sends its own emails advertising conferences that minors could not lawfully
attend. Accordingly, the State Defendants' motion to dismiss is denied.
1
Plaintiff, however, has only the right to make arguments for its members.
The court has received materials from Amici that do not relate to the same
issues or concerns as Plaintiff's members. These materials are of little
relevance, but the court finds no need to strike them from the record. The
court is capable of reviewing the materials submitted and limiting its
consideration of the materials to only those items that are relevant to the
specific legal issues pending before it.
Plaintiff's Motion for Preliminary Injunction
Plaintiff seeks a preliminary injunction from this
court enjoining the Defendants from enforcing any of the provisions
contained in the CPR. In order to obtain preliminary injunctive relief,
the moving party must establish:
(1) a substantial likelihood that the movant will eventually prevail
on the merits; (2) a showing that the movant will suffer irreparable injury
unless the injunction issues; (3) proof that the threatened injury to the
movant outweighs whatever damage the proposed injunction may cause the
opposing party; and (4) a showing that the injunction, if issued, would
not be adverse to the public interest.
SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir.
1991). Because a preliminary injunction is an extraordinary remedy, the
"right to relief must be clear and unequivocal." Id.
Plaintiff's motion focuses primarily on the likelihood
of success on the merits of its claims. "[W]here a preliminary injunction
'seeks to stay governmental action taken in the public interest pursuant to
a statutory or regulatory scheme" no arguably lesser standards for the
issuance of a preliminary injunction are applicable. Heideman v. South
Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). Plaintiff must
meet its burden of establishing that each of the four required elements
for a preliminary injunction weigh clearly and unequivocally in its
favor. Id.
I. Likelihood of Success on the Merits
In this case, Plaintiff has raised constitutional challenges to the
CPR under the Supremacy Clause (preemption), the doctrine of the dormant
Commerce Clause, and the First Amendment of the United States Constitution
and Article I, Section 15 of the Utah Constitution. Each claim will be
discussed separately.
A. Preemption
The first issue is whether the CPR is preempted by
the Controlling the Assault of Non-Solicited Pornography and Marketing
Act of 2003 ("CAN-SPAM Act"). In 2003, the United States Congress enacted
the CAN-SPAM Act because it was concerned with unsolicited commercial email,
commercial email that was disguised or fraudulent as to its source or purpose,
and the vulgar and pornographic nature of much of the commercial email. 15
U.S.C. § 7701. The CAN-SPAM Act (1) prohibited false or misleading
transmission information, (2) prohibited deceptive subject headings, (3)
required return address and an opt-out feature for future emails, and (4)
required a heading identifying sexually oriented materials as such and
requiring that the material not be immediately viewable upon opening the
email. Id. § 7704.
With respect to a "do-not-email" registry, CAN-SPAM did
not create one nor did it prohibit the creation of one by the states or
the federal government. Rather, it directed the Federal Trade Commission
to prepare a report setting forth a plan for establishing a national
"do-not-email" registry and discussing any problems with such a
registry. Id. § 7708.
The preemption provisions of CAN-SPAM are contained in
Section 7701(b), which provides:
(b) State law
(1) In general
This chapter supersedes any statute, regulation, or rule
of a State or political subdivision of a State that expressly regulates the
use of electronic mail to send commercial messages, except to the extent
that any such statute, regulation, or rule prohibits falsity or deception
in any portion of a commercial electronic mail message or information
attached thereto.
(2) State law not specific to electronic mail
This chapter shall not be construed to preempt the
applicability of--
(A) State laws that are not specific to electronic
mail, including State trespass, contract, or tort law; or
(B) Other State laws to the extent that those
laws relate to acts of fraud or computer crime.
Id. § 7701(b).
Plaintiff contends that the CPR is preempted by Section
7701(b)(1). In determining whether a federal act preempts state legislation,
a court must consider whether preemption has occurred in any one of three
forms: (1) language in a congressional enactment which creates express
preemption; (2) preemption that is implied by the breadth of a congressional
scheme that occupies an entire legislative filed; or (3) preemption implied
because of a conflict with a congressional enactment.
Where a congressional enactment has an express preemption
provision, the court's "task is to identify the domain expressly pre-empted,
because an express definition of the pre-emptive reach of a statute supports
a reasonable inference that Congress did not intend to pre-empt other matters." Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001). The focus
should be "on the plain wording of the clause, which necessarily contains
the best evidence of Congress's preemptive intent." Sprietsma v. Mercury Marine, 537 U.S. 51, 62-63 (2002). Courts also "work on the assumption that the historic police powers of the States are not to be superseded by the Federal Act unless that is the clear and manifest purpose of Congress." Lorilland,
533 U.S. at 541-42. The presumption against preemption applies both to the
existence of preemption and the issue of the scope of any preemption.
Plaintiff argues that CAN-SPAM expressly preempts state
laws such as the CPR because the CPR expressly regulates commercial email in a manner dramatically inconsistent with CAN-SPAM. This argument, however, moves from express preemption immediately to implied preemption based on a conflict with a congressional enactment. In order to determine whether there is express preemption, the court must examine the language of CAN-SPAM.
The express preemption provision in CAN-SPAM is a
clear indicator of Congress's intent because it directly and specifically
describes the area of state authority superceded by the statute. The "purpose
of Congress is the ultimate touchstone" in every preemption case. Retail
Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963). Relevant to this inquiry
is "the structure and purpose of the statute as a whole, as revealed not only
in the text, but through the reviewing court's reasoned understanding of the
way in which Congress intended the statute and its surrounding regulatory
scheme to affect business, consumer, and the law." Medtronic Inc. v.
Lohr, 518 U.S. 470, 485 (1996).
CAN-SPAM's language evidences that Congress's basic
purpose in enacting the legislation was to create a national standard
for rules governing the structure of commercial email messages and the
techniques used to send them. 15 U.S.C. §§ 7701, 7703, 7704. The
statute expressly acknowledges that federal legislation alone cannot be
viewed as, and is not in fact, the sole solution to the problems created by
the rapid growth and abuse of spam and adult-oriented messages. Id.
§ 7701(5), (12). CAN-SPAM also expressly states that it does not apply
to state laws that are not specific to electronic email or those
involving computer crimes. Id. § 7707(b).
Plaintiff claims that the CPR does not fall within either
of the exceptions to preemption provided for in CAN-SPAM. First, Plaintiff
contends that the CPR cannot reasonably be viewed as a state law that is
"not specific to email" because the CPR repeatedly refers to email and
defines a "contact point" by listing email as the first means of electronic
communication. Defendants argue that the express terms of the CPR are not
specific to only email because it regulates contact points, only one of which is email. Defendants assert that had Congress wanted to preempt every statute that mentioned email or purported to regulate email among other things, it easily could have done so in exacting terms. It did not. The court believes that this case demonstrates that the language of CAN-SPAM with respect to laws "not specific to email" could be interpreted to support either side in this controversy. The court need not conclusively determine the meaning and application of the language given that the issue before it is whether Plaintiff can demonstrate a likelihood of success on the merits. This court cannot conclude that the language of CAN-SPAM excepting laws "not specific to email" clearly supports Plaintiff's position.
With respect to the second exception to preemption
contained in CAN-SPAM, Plaintiff argues that the CPR cannot reasonably be
viewed as regulating "computer crime." Plaintiff contends that for
CAN-SPAM's "computer crime" exception to have any meaning it must pertain to
something other than laws that criminalize certain computer mediated email
transmissions, or else the exception would swallow up the rule. Plaintiff
asserts that the real meaning of "computer crimes" relates to property damage,
unauthorized access to a computer system, or impairing the physical integrity
of the system. Thus, Plaintiff argues that any alleged offense based on
the content of an email cannot constitute a "computer crime" against the
recipient's computer.
CAN-SPAM's exception for computer crimes, however, is an express acknowledgment that criminal provisions regarding public welfare
are within the province of the state's police powers. "It is fundamental
in our federal structure that States have vast residual powers." McCulloch
v. Maryland, 316 L. Ed. 579 (1819). State police powers are traditionally
considered to extend at a minimum to issues of public health, safety, and
morals. The CPR is presumptively a proper exercise of Utah's police powers,
as the Supreme Court has acknowledged the state's interest in safeguarding
parents' right "to authority in their own household to direct the rearing of their children [which] is basic in the structure of society." Ginsberg
v. New York, 390 U.S. 636, 639 (1968). The Court has called the "liberty
interest . . . of parents in the care, custody, and control of their
children . . . perhaps the oldest recognized by this Court." Troxel
v. Granville, 530 U.S. 57, 65 (2000). There is no clear and manifest
attempt to displace these historic police powers in CAN-SPAM.
Plaintiff fails to acknowledge that the CPR refers to
acts of computer crime under Utah law. Prior to the passage of the CPR,
it was already a crime in Utah to target children with pornographic messages.
See Utah Code Ann. § 76-10-1206 (2005). The CPR also defines a
violation of Sections 13-39-301(1) and (2) as computer crimes. Had
Congress wanted to specify certain versions of computer crimes for exemption,
it certainly could have. It appears to be left broad to allow states to
define their own "computer crimes" under their traditional police powers.
The United States filed a statement of interest asserting
the position that CAN-SPAM does not preempt the CPR because the exception for
state laws relating to computer crimes applies. The United States points out
that Congress did not define "computer crime" and neither party has presented
the court with any basis for concluding that "computer crime" is a term of
art with a single commonly accepted meaning. The United States, however,
asserts that the proper definition of the words "computer crime"--one which
pays due regard for the presumption against preemption provisions--encompasses
crimes involving computers that have traditionally been the subject of state
police-power regulations. There can be no doubt that the protection of
children from sexually explicit materials is such an area. The Supreme
Court upheld the "obscene as to minors" standard nearly forty years ago and
it is that standard that is incorporated in the Utah definition of "harmful
to minors" under Utah Code Ann. § 76-101201(3). Therefore, the court
concludes that the CPR falls within an express exemption to preemption
contained in CAN-SPAM.
Plaintiff further attempts to argue that the federal
opt-out registry provisions in CAN-SPAM was a part of the legislative
design to regulate commercial email exclusively at the federal level.
Congress deferred the opt-out registry issue to the FTC. Although Plaintiff
asserts that this reveals unambiguous congressional intent to reserve all
matters pertaining to an opt-out registry to the federal government, there
is no evidence of this intent in the statute. An agency's after-the-fact
reports shed no light on the intent of Congress. In fact, the Supreme Court
has expressly cautioned against looking to such reports as any indication of
statutory meaning. American Trucking Ass'n v. Atchison, Topeka & Sante
Fe Ry., 387 U.S. 397, 417 (1967).
Because the court finds that an express exemption to
preemption applies, the court need not address the arguments Plaintiff makes
with respect to implied preemption. The express exceptions to preemption in
CAN-SPAM demonstrate that Congress did not attempt to occupy the entire field.
In addition, the fact that the CPR fits within an express exemption to
preemption contained in CAN-SPAM demonstrates that the CPR is not in
conflict with CANSPAM.
If Congress had intended to completely displace all state
regulation of commercial email, it certainly could have done so in CAN-SPAM. It
could have provided for no exceptions. But, it did not do so. Congress' inclusion
of an exception for computer crimes appears to be a recognition of the states'
traditional police powers. The CPR is a valid exercise of Utah's police power
which is entitled to full presumptions against preemption. Plaintiff has,
therefore, failed to meet its burden of demonstrating success on the merits
with respect to preemption.
B. Dormant Commerce Clause
Plaintiff asserts that the CPR is an unconstitutional
violation of the dormant Commerce Clause. The Supreme Court has held that
the Commerce Clause of the United States Constitution contains a "negative
command, known as the dormant Commerce Clause," which reserves "an area
of trade free from interference by the States" and forbids state regulations
that "erect barriers against interstate trade." American Trucking Ass'n
v. Michigan Pub. Serv. Comm'n, 125 S. Ct. 2419, 2422 (2005). A state
law violates the dormant Commerce Clause if it "affirmatively discriminates
against interstate commerce" or if it "burden[s] interstate transactions
only incidentally," even if on its face, the law treats intrastate and
interstate transactions the same. Maine v. Taylor, 477 U.S. 131,
138 (1986). Laws of the second type are invalid if "the burden imposed on
such commerce is clearly excessive in relation to the putative local
benefits." Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).
Plaintiff argues that the only way to comply with Utah's
CPR is to censor all of its email or submit its entire email list for
scrubbing on a monthly basis according to the statutory scheme. In either
event, Plaintiff claims that the CPR has an extraterritorial effect which
renders it per se invalid under the Commerce Clause because virtually
everyone sending adult email would be forced to use Utah's registry to ensure
that it was not sending email to someone listed on the registry. Plaintiff
contends that an interstate and even international system like email is a
poor subject for regulation by individual states, especially where such
regulation is not strictly limited to in-state effects.
Plaintiff's dormant Commerce Clause is essentially
a reiteration of its federal preemption claim, except it rests on the
assumption that the CPR's alleged unconstitutionality violates an implied
power of Congress to regulate interstate commerce, even absent congressional
action. Unlike preemption which is prompted by federal legislation, the
dormant Commerce Clause allows the judiciary to determine the propriety of
state regulation on an issue that Congress has not acted upon.
Plaintiff's claim under the dormant Commerce Clause suffers
an analytical flaw because Congress has expressly allowed states to regulate
commercial email, as discussed in the preceding preemption analysis. In the
CAN-SPAM Act, Congress acknowledged that there were computer crimes that it
could not properly regulate alone. "When Congress so chooses, state actions
that it plainly authorizes are invulnerable to constitutional attack under
the commerce clause." Northeast Bancorp, Inc. v. Board of Governors,
472 U.S. 159, 174 (1985). Moreover, "the States retain authority under
their general police powers to regulate matters of 'legitimate local
concern,' even though interstate commerce may be affected." Lewis v.
BT Investment Managers, Inc., 447 U.S. 27, 36 (1980). The dormant aspect
of the Commerce Clause was not intended "to cut the States off from legislating
on all subjects relating to health, life, and safety of their citizens,
though the legislation might indirectly affect the commerce of the
country." Huron Portland Cement Co. v. Detroit, 362 U.S. 440,
443-44 (1960).
The CPR does not discriminate between in-state and
out-of-state senders. Even assuming that the dormant Commerce Clause
would otherwise invalidate the CPR, CAN-SPAM evidences Congress's consent
to exempt such regulation from running awry of the Commerce Clause.
"The limitations on state authority created by the Commerce Clause cannot
be ascertained without reference to the relevant federal law" and if
authorized by federal law cannot run afoul of the Commerce Clause.
Norfolk Southern Corp. v. Oberly, 822 F.2d 388, 393 (3rd Cir. 1987).
Although heavily relied upon by Plaintiffs, cases such as
American Libraries Assoc. v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997)
and ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999) were decided
before Congress enacted CAN-SPAM and are of limited value in the discussion
of whether Congress allowed for simultaneous state regulation. Both cases
also involve distinctly different types of statutes that were much broader
in the attempted scope of regulation than the CPR.
Post CAN-SPAM cases are more instructive to the present
case. In response to the argument that internet commerce demands
consistent treatment and should be regulated only at the national level,
the court in Beyond Systems, Inc. v. Keynetics, Inc., 422 F. Supp. 2d
523 (D. Md. 2006), explained that "[w]hile perhaps interesting from an
academic standpoint, it is clear that Congress itself, in enacting
CAN-SPAM, specifically reserved to the States . . . authority to regulate
certain aspects of Internet activity." Id. at 531. The Beyond
Systems court also recognized that "[i]f Congress itself was satisfied
that supplementary state legislation would impose no undue burden on
interstate commerce, this Court can hardly presume to tell Congress it
is wrong." Id. at 535.
Plaintiff further claims that the CPR does not pass the
Pikes balancing test because the burden placed in commerce by the CPR
is more substantial than the local benefits. Plaintiff complains that the
cost of using the scrubbing service is an undue burden on it and if every
state were to do as Utah has done, it would dramatically increases the
costs of emailing. Even if the State interest in protecting children is
great, Plaintiff contends the CPR threatens the economic well-being of
certain businesses.
Plaintiff fails to recognize that the CPR provides it
with the information it needs to comply with the existing criminal laws of
the State of Utah. It is a crime to distribute these materials to children.
The CPR now enables Plaintiff and its members to find out if a certain
contact point is accessible by children. Plaintiff acknowledges that it
does not have a constitutional right to send its materials to children.
In addition, the small fee imposed to "scrub" each name on
Plaintiff's list is not excessive. The cost to "scrub" each email name is
far less than if Plaintiff attempted to use traditional mail to send its
message to the same number of recipients. Moreover, if Plaintiff's list of
recipients diminishes as a result of the CPR registry, its costs will also
diminish over time.
Congress itself has found that "[t]he convenience and
efficiency of electronic mail are threatened by the extremely rapid growth in
the volume of unsolicited commercial electronic mail." 15 U.S.C. § 7701.
"Spam also costs recipients extra money, may expose recipients to obscene
material, costs e-mail providers money, and is frequently fraudulent or
deceptive." Jaynes v. Commonwealth, 634 S.E.2d 357, 367 (Va. App.
2006) (citing 15 U.S.C. § 7701). "That anti-spam laws, in general,
produce local benefits is unquestionable." Id.
In balancing these interests, the court finds that the
fee charged for the scrubbing services is not an excessive burden in relation
to the local benefits of enabling parents to protect their children from
instant exposure to pornographic materials which is already illegal to send.
Accordingly, the court finds that Plaintiff has not met its burden of
demonstrating that it will likely succeed on the merits of its claim under
the dormant Commerce Clause.
C. First Amendment
Plaintiff's motion alleges several violations of the
First Amendment and one violation of the Utah Constitution. Plaintiff
contends that its Free Speech X-Press email newsletter and some of
its member's emails constitute core political expression which is
presumptively protected by the First Amendment.
Plaintiff argues that the CPR constitutes an
impermissible prior restraint. Plaintiff claims that whether or not
any of this expression is obscene as to minors or advertises products
or services minors cannot lawfully purchase, it remains fully protected
when addressed to its intended audience of consenting adults and is immune from unconstitutional prior restraints upon its dissemination. Because the only practical way to avoid the penalties of CPR is to submit email lists to the Registry and pay for scrubbing in advance of dissemination, Plaintiff contends that the CPR effectively imposes a prior restraint on email expression by it and its members. According to Plaintiffs, such prior restraints on presumptively protected expression are unconstitutional and enforceable only if they strictly specify narrow and definite standards to limit the discretion of the approving officials in order to insure that such officials will not base their decision to grant or deny approval upon their own evaluation of the content of the expression in question.
The regulations that the Court has "found invalid as prior
restraints have had this in common: they gave public officials the power to
deny use of a forum in advance of actual expression." Hill v. Colorado,
530 U.S. at 735 n.42. The CPR involves no licensing or preclearance system,
nor does it require speakers to obtain the permission of anyone prior to
speaking or to provide the content of its intended expression. The mere
fact that a regulation requires that a party take some action in association
with communicating a message does not transform the regulation into a prior restraint. It is also the court's understanding that the "scrubbing"
process is nearly instantaneous so there are no issues with delay. The facts
in this case do not demonstrate a prior restraint on Plaintiff's free speech
rights.
A majority of Plaintiff's other First Amendment claims falter
because the Supreme Court has repeatedly recognized the right of citizens to
avoid unwanted communication, even in cases involving core political speech, as
part of citizens' broader right to be left alone. Hill v. Colorado,
530 U.S. 703, 716-17 (2000). Supreme Court and Tenth Circuit precedent hold
that when government empowers citizens to do so, the First Amendment is not
violated when citizens control what speech enters their private domain.
Plaintiff and its members appear to be asserting that
although they are not attempting to distribute sexually-oriented material to
minors, the First Amendment gives them the right to send sexual messages that
are "harmful to minors" directly to email addresses that belong to or are
accessible by children because there can be no interference with their right to
access to adults. This is so even if the adult in question has opted-out
from receiving such material at certain contact points by choosing to participate
in the Registry. Plaintiff also appears to be asserting that under First
Amendment protections it should be able to make such contact anonymously.
Plaintiff asserts that all content based restrictions on
speech, including the CPR, are subject to strict scrutiny, no matter what
category of speech they might restrict. See Sable Communications of Ca. Inc.
v. FCC, 492 U.S. 115 (1989). Under strict scrutiny, a restriction must be
necessary to satisfy a compelling state interest. Id. at 126. Although
Plaintiff argues that the CPR is a content-based regulation of protected
expression that should be subjected to strict scrutiny, the cases it relies on
do not govern the First Amendment questions before this Court. In Sable,
the court recognized that "there is a compelling interest in protecting the
physical and psychological well-being of minors. This interest extends to
shielding minors from the influence of literature that is not obscene by
adult standards." Id.
The Sable Court also distinguished cases involving
regulation of mediums that require affirmative steps to be taken by adults and
those that are aimed at captive audiences of all ages. While the "dial-a-porn"
service before the Sable Court required "the listener to take affirmative
steps to receive the communication" and involved callers willing to pay for the
service, the Court recognized that these facts distinguished the case from
FCC v. Pacifica Foundation, 438 U.S. 726 (1978). Pacifica involved
a partial ban on indecent, but not obscene, radio broadcasts, that required the
broadcasts to run at certain times of day when children would most likely not be
exposed to it. Id. at 733. The Sable Court recognized that unlike
the dial-up aspect of its case, the Pacifica opinion relied on the
uniquely pervasive attributes of broadcasting which "can intrude on the privacy
of the home without prior warning as to program content, and is 'uniquely
accessible to children, even those too young to read.'" Sable 492 U.S.
at 127 (quoting Pacifica, 438 U.S. at 726). In Pacifica, the
Court recognized that to "say that one may avoid further offense by turning
off the radio is like saying that the remedy for an assault is to run away
after the first blow. One may hang up on an indecent phone call, but that
option does not give the caller a constitutional immunity or avoid a harm
that has already taken place." Pacifica, 438 U.S. at 748-49.
Similarly, unsolicited sexual email unquestionably raises
the captive-audience problem. The digital mediums targeted in the CPR are
used by all members of a family for a variety of different tasks. The fact
that the CPR protects only captive audiences of minors whose parents have affirmatively opted them out of receiving such materials significantly undermines Plaintiff's contention that the statute threatens the First Amendment rights of its members. Moreover, as in Pacifica, this case does not involve a total ban on Plaintiff's emails. The CPR sets up a Registry allowing parents to preclude emails to certain contact points accessible to children. Unlike Sable which included a total ban for adults and children, the CPR allows adults to register contact points accessible to children. An adult in Utah could choose to receive Plaintiff's emails on a personal email address or on a personal laptop, but opt-in to the Registry for a family email account or any email account accessible on a family computer. Obviously, because of the opt-in nature of the Registry, it also allows an adult in Utah not to participate with the Registry at all. Furthermore, the content lines drawn by the CPR track lines drawn by the Constitution itself. The Utah definition of "harmful to minors" is, for all relevant purposes, the same as the standard that the Court articulated and upheld in Ginsberg.
States may enact legislation enabling its citizens to
prohibit even core political speech from their own private domains
without running awry of the First Amendment. See Hill, 530 U.S. at
716-17. "[T]he State's interest in protecting the well-being, tranquility,
and privacy of the home is certainly of the highest order in a free and
civilized society." Frisby v. Schultz, 487 U.S. 474, 484 (1988).
"One important aspect of residential privacy is protection of the unwilling
listener . . . [A] special benefit of the privacy all citizens enjoy within
their own walls, which the State may legislate to protect, is an ability
to avoid intrusions. Thus we have repeatedly held that individuals are
not required to welcome unwanted speech into their own homes and that
the government may protect this freedom." Id. at 484-85.
The same logic defeats Plaintiff's claim of a "chilling
effect" on its expressive rights because there is no chilling effect on
unwanted speech. In Rowan v. United States Post Office, 397 U.S.
728 (1970), the court recognized that "it seems to us that a mailer's right
to communicate must stop at the mailbox of the unreceptive addressee. . . . To
hold less would tend to license a form of trespass and would make hardly
more sense than to say that a radio or television viewer may not twist the
dial to cut off an offensive or boring communication and thus bar its
entering his home." Id. at 736-37. The court directly held, "We
therefore categorically reject the argument that a vendor has a right
under the Constitution or otherwise to send unwanted material into the
home of another. . . . [N]o one has a right to press even 'good' ideas on
an unwilling recipient." Id. at 738.
In applying Rowan, the Tenth Circuit has adopted
a balancing test used by the Seventh Circuit which is heavily weighted
toward a citizen's right to restrict speech from his or her home. Dealing
with speech usually accorded strict scrutiny protection, the Seventh Circuit
held that "because of the 'opt in' nature of the Act, we need only determine that
the State's interest in maintaining residential privacy for . . . citizens
outweighs the speaker's right to communicate his or her message into private
homes." National Coalition of Prayer v. Carter, 2006 WL 2088297 at *3
(7th Cir. July 28, 2006). The Tenth Circuit, similarly, found that the
opt-in features of the national do-not-call registry easily made the act
pass First Amendment scrutiny. Mainstream Marketing Servs., Inc. v. FTC,
358 F.3d 1228, 1237-46 (10th Cir. 2004). The Tenth Circuit found that "the
idea that an opt-in regulation is less restrictive than a direct
prohibition of speech applies not only to traditional door-to-door
solicitation, but also to regulations seeking to protect the privacy
of the home from unwanted intrusions via telephone, television, or
the Internet." Id. at 1243.
In Mainstream Marketing, the Tenth Circuit
analyzed the national do-not-call registry and summarized the Central
Hudson test as follows:
Central Hudson established a three-part test governing First
Amendment challenges to regulations restricting non-misleading commercial
speech that relates to lawful activity. First, the government must assert
a substantial interest to be achieved by the regulation. Second, the
regulation must directly advance the governmental interest, meaning that
it must do more than provide only ineffective or remote support for the
government's purpose. Third, although the regulation need not be the
least restrictive measure available, it must be narrowly tailored not
to restrict more speech than necessary. Together, these final two factors
require that there be a reasonable fit between the government's objectives
and the means it chooses to accomplish those ends.
358 F.3d at 1237.
The CPR satisfies the Central Hudson test in
similar fashion to the do-not-call registry. The CPR advances three
substantial governmental interests: Utah's interest in protecting minors
from pornography and solicitations regarding materials harmful to them;
Utah's interest in fostering the rights of parents to raise their children
in a manner they see fit; and Utah's substantial interest in fostering
privacy of the home from unwanted communications. The CPR is tailored to
address these goals. While it is easy to argue that the CPR cannot
completely solve the problems it attempts to address, the case law only
requires that the legislation be designed to reduce its targeted problem.
Mainstream Marketing, 358 F.3d at 1238-41. The CPR is narrowly
tailored through its opt-in feature to prevent exactly what it is
designed to prevent: unwanted, adult-oriented speech from entering the
home of unwilling recipients. See United States v. Playboy Entertainment
Group, Inc., 529 U.S. 803, 815 (2000) (opt-in blocking of offensive
programming "enables the Government to support parental authority without
affecting the First Amendment interests of speakers and willing listeners.")
The CPR only inhibits unwanted speech from entering the homes of unwilling
participants, and it allows parents the option of participating or not
participating.
Plaintiff next argues that the CPR suffers from
unconstitutional vagueness because it does not define the terms "advertises"
or "access." In its reply memorandum, Plaintiff also asserts that the
terms "primary purpose," "promoting," "minor," and "prohibited by law,"
are unconstitutionally vague.2 "There are
two possible, and independent, reasons a statute may be impermissibly vague:
'First, if it fails to provide people of ordinary intelligence a reasonable
opportunity to understand what conduct it prohibits. Second, if it
authorizes or even encourages arbitrary and discriminatory enforcement.'"
Faustin v. City and County of Denver, 423 F.3d 1192, 1201-02 (10th Cir.
2005).
2
The fact that Plaintiff first raised this challenge in its reply memorandum
is the basis of a motion to strike filed by Defendant UNSPAM. The court,
however, does not find a vagueness problem with any of these terms. While
it is inappropriate to raise an argument for the first time on appeal, the
motion to strike with respect to these terms is essentially moot.
In construing the terms of a statute, a court must
recognize that a word "gathers meaning from the words around it." Babbitt
v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687,
702 (1995). In other words, statutory terms are defined by their statutory
context.
The definition of a communication which "has the primary
purpose of advertising" is not vague to the point that a person of ordinary
intelligence could not understand what conduct is prohibited. Grayned v.
City of Rockford, 408 U.S. 104, 108-9 (1972); see also Bystrom v.
Fridley H.S., 822 F.2d 747, 753 (8th Cir. 1987) (finding term "advertises"
not vague in school prohibition against written material that "advertises
any product or service not permitted to minors by law"). The term advertises
has a common understanding. The court finds no vagueness problems with its
use in the CPR.
The term "access" is also a term with a common understanding.
The CPR allows the registration of contact points to which minors have access. The use of the term access in the CPR relates to an adults determination to register the contact point. It does not relate to what the CPR prohibits Plaintiff from doing. It also could not result in arbitrary or discriminatory enforcement of the CPR because all contact points that a registered are treated the same.
The remaining terms--"primary purpose," "promoting," "minor,"
and "prohibited by law,"--similarly appear to pass First Amendment standards
when read in the statutory context. The terms are easily understood, have
common meanings, and reference applicable statutes that aid in their meaning.
Plaintiff has not demonstrated to the court that these terms would cause
difficulties in the application of the CPR. Accordingly, the court finds
that Plaintiff has failed to meet its burden with respect to its vagueness
challenge.
Plaintiff further cites to Tinker v. Des Moines Indep.
Comm. Sch. Dist., 393 U.S. 503 (1969), to argue that minors enjoy
First Amendment Rights particularly when it comes to matters of public
interest, including controversial political issues. Plaintiff contends that
just as students do not shed their constitutional rights to freedom of speech
at the schoolhouse gate, they also do not do so at their computer screens.
The Tinker case's holding that minors enjoy the right to receive
information on matters of public controversy, however, does not provide a
basis for suggesting that Plaintiff may send communications into a child's
home when that child's parent has asked them not to do so. Contrary to
Plaintiff's assertions, minors do not have the right to receive indecent or
illegal material and solicitation for things they cannot legally purchase, when
parents have asked that such messages not be sent to those children, because the
First Amendment protects vigorous debate and a vibrant democracy.
Finally, Plaintiff argues that under the free speech
guarantees of the Utah Constitution, specifically Article I, Section 15
of the Utah Constitution, the rights guaranteed are "somewhat broader than
the federal clause." Provo City Corp. v. Willden, 768 P.2d 455 (Utah
1989). In American Bush v. City of South Salt Lake, 140 P.3d 1235 (2006),
the Utah Supreme Court recognized that there are free speech provisions in
both article I, section 1, and article I, section 15. Id. at 1241. Article I,
section 1 declares in relevant part that "[a]ll men have the inherent and inalienable right . . . to communicate freely their thoughts and opinions, being responsible for the abuse of that right." Utah Const. art. I, § 1. Article I, section 15, states in relevant part that "[n]o law shall be passed to abridge or restrain the freedom of speech or of the press." Id. art. I, § 15.
The court explained that the clause in section 1 "defines
the scope of freedom of speech," and the clause contained in section 15
"prohibits governmental actions that abridge or restrain those rights."
American Bush, 140 P.3d at 1241. The court further expounded that
no additional rights are secured by section 15 ("the governmental restriction
clause") than are contained in section 1 ("the liberty and responsibility clause"). Id. at 1242. The court determined that the "liberty and
responsibility clause" contained in section 1 "articulates a conservative
limitation upon the constitutionally granted freedom of speech right." Id.
at 1248. In finding that the clause did not protect nude dancing at nude
dancing establishments, the court appears to have announced that while the
restrictions on governmental regulation of free speech are broader in the
Utah Constitution, the free speech protections of the Utah Constitution are
less protective than the federal Constitution. Id. at 1252-53.
In any event, Plaintiff has raised the Utah Constitution
as a separate basis for relief, but it does not provide a separate analysis
of free speech issues under the Utah Constitution. Plaintiff fails to advance
any arguments specific to the Utah Constitution. Therefore, it has not met its
burden of demonstrating that it is likely to succeed on the merits of its
claim under the Utah Constitution.
Therefore, the court concludes that Plaintiff has not met
its burden of demonstrating a likelihood of success on the merits of its
First Amendment challenges to the CPR. Accordingly, based on the above
reasoning, Plaintiff has not met its burden that it will likely succeed on
any of its challenges to the CPR.
II. Other Elements for Preliminary Injunction
In support of its motion for a preliminary injunction,
Plaintiffs also argue that an infringement of constitutional rights
constitutes irreparable harm, that such harm to its and its members
constitutional rights outweighs any injury Defendants could face, and the
vindication of constitutional infringements is in the public interest.
In Heideman v. South Salt Lake City, 348 F.3d
1182 (10th Cir. 2003), the Tenth Circuit held that "to constitute
irreparable harm, an injury must be certain, great, actual, and not
theoretical. . . . The party seeking injunctive relief must show that
the injury complained of is of such imminence that there is a clear and
present need for equitable relief." 348 F.3d at 1189. "An alleged
constitutional infringement will often alone constitute irreparable
harm." Goldie's Bookstore, Inc. v. Superior Court, 739 F.2d 466,
472 (9th Cir. 1984). In particular, "[d]eprivation of the rights
guaranteed under the Commerce Clause constitutes irreparable injury."
American Libraries Ass'n v. Pataki, 969 F. Supp. 160, 168 (S.D.N.Y.
1997). Similarly, "permitting states to regulate" where Congress has
preempted state regulation "would violate the Supremacy Clause, causing
irreparable injury." TWA Inc v. Mattox, 897 F.2d 773, 784 (5th Cir.
1990).
Violations of constitutional rights are given a
presumption of irreparable harm, but presumptions are not assumptions
merely because allegations of such violations are asserted. To do so
would render the irreparable harm prong meaningless in these cases. The
Tenth Circuit has stated that the merits of constitutional claims must be
considered when evaluating whether the presumption applies in a given
case. Heideman, 348 F.3d at 1190. Because of this court's findings
and conclusions with respect to the merits of Plaintiff's claims, the
presumption usually accorded allegations of constitutional violations
does not apply.
Plaintiff also argues that its members will be
irreparably harmed if they violate the CPR and are fined by Defendants.
Because the Eleventh Amendment may bar Plaintiffs' members from suing
Defendants to recover any such fines, Plaintiff contends such damages
may be irreparable. However, "[i]t is also well settled that simple
economic loss usually does not in and of itself constitute irreparable
harm." Id. The court concludes that Plaintiff has not met its
burden of demonstrating clearly and unequivocally that it will be
irreparably harmed absent the issuance of a preliminary injunction.
With respect to the balance of harms, Plaintiff claims
that the State of Utah will suffer no substantial or irreparable injury
because Congress and the FTC have already decided that CAN-SPAM is an
effective nationwide means of addressing the problems the CPR seek to
redress. The Tenth Circuit, however, has observed that postponing the
enforcement of a law is itself an injury that weighs in favor of the
Defendants. Heideman, 348 F.3d at 1190. Moreover, absent the
statute's enforcement, parents will lose an ability to control the speech
that enters their home, their privacy will be compromised, and their right
to raise their children as they see fit will be infringed. With the CPR,
children whose parents have already registered contact points under the
registry will be subjected to the ravages of pornography recognized as harmful by the Ginsberg court. Such damage, by definition,
cannot be remedied. Given the strength of the Defendants' arguments,
Plaintiffs cannot meet its burden of demonstrating that its harm is
clearly and unequivocally greater than Defendants.
Finally, Plaintiff asserts that the issuance of a
preliminary injunction is not adverse to the public interest because
the enforcement of the CPR would effectively overrule Congress's decision
not to implement a "do-not-email" registry. Congress's stated intent
in the CAN-SPAM act, however, is for the FTC to look into a way to
securely do such a list. Congress has not definitely or authoritatively
decided the matter. In addition, the court has found that the language
of CAN-SPAM expressly allows state statutes that regulate computer crimes,
such as the CPR. Most importantly, the issue here is the public interest.
The Utah Legislature, elected by the public, has passed the CPR to address
the problems of unwanted communications that are harmful to minors or
that solicit the sale of something which minors cannot legally purchase.
Therefore, the court concludes that Plaintiff has not
met its burden of demonstrating that the issuance of a preliminary
injunction enjoining the enforcement of the CPR would not be adverse
to the public interest.
The court concludes that Plaintiff has not met its
burden of clearly and unequivocally establishing each element for the
issuance of a preliminary injunction. Accordingly, Plaintiff's motion is
denied.
Defendant's Motions to Strike
Defendant Unspam moves to strike arguments raised for
the first time in Plaintiff's reply brief in support of its motion for preliminary injunction and to strike portions of the reply and exhibits which complain or purport to be evidence of individualized harm. Although it is not proper to raise evidence and argument for the first time in a reply, the court's previous rulings have essentially made this motion moot. Even considering this evidence and giving it the weight it deserved, Plaintiff has not met its burden for a preliminary injunction. However, because the evidence and arguments had limited value to the issues before the court and the court considered the evidence, Defendant's motion to strike is denied.
Defendant's Motion to Strike Declaration of Justin
Weiss
Defendant Unspam moves to strike the Declaration of
Justin Weiss on the grounds that it is irrelevant, it fails to demonstrate that any email addresses were obtained from the Registry, and Plaintiff's argument regarding the FTC's concerns with a registry is immaterial to the legal issues before the court. Defendant recognized that the rules of evidence do not apply in the preliminary injunction context. Heideman, 348 F.3d at 1188. The court finds that even with the inclusion of the declaration, its findings and conclusions are not altered. The declaration is of limited relevance to the legal issues before the court. Therefore, Defendant's motion to strike is denied.
CONCLUSION
For the foregoing reasons, Plaintiff's Motion for Preliminary
Injunction is DENIED. Defendant Unspam's motion to dismiss is DENIED. The
State Defendants' Motion to Dismiss is DENIED. Defendant Unspam's motions to
strike are DENIED.
DATED this 23rd day of March, 2007.
BY THE COURT:
DALE A. KIMBALL
United States District Judge
