Yesterday, August 2nd, the U.S. Court of Appeals for the Fifth Circuit issued a decision in the case of White Buffalo Ventures, Inc. v. University of Texas at Austin, holding that the University of Texas didn’t violate the constitutional rights of an online dating service when it applied UT’s general anti-solicitation policy and blocked thousands of unsolicited emails.

White Buffalo Ventures, which operates, argued that the spam blocking system developed by the University violated its commercial speech rights under the First Amendment (and was preempted by federal antispam law). Both arguments were rejected. In upholding UT’s decision to block White Buffalo’s spamming on First Amendment grounds, the court applied the U.S. Supreme Court’s Central Hudson test (Central Hudson Gas & Electrical Corp. v. Public Service Commission, 447 U.S. 557 (1980)), holding that the UT policy met the constitutional requirements imposed by Central Hudson.

The spamming began with a public records request. In April 2003, after White Buffalo obtained UT email addresses using an information request under the Texas equivalent of the FOIA, it began spamming UT addresses. Soon, UT received several complaints regarding these “email blasts” and, after determining that White Buffalo had “indeed sent unsolicited emails to tens of thousands of UT email account-holders”, issued a cease-and-desist letter to White Buffalo. White Buffalo refused to comply, so UT immediately blocked all email messages addressed to “” from the IP address that was the source address for the spams.

In response, White Buffalo sued the University in state court, and obtained a temporary restraining order against UT, which immediately removed the case to federal court (White Buffalo had claimed, among other things, that the UT policy violated the First Amendment and the federal CAN-SPAM Act). The federal court denied the application for a preliminary injunction and then, after discovery, granted UT’s motion for summary judgment.

The Fifth Circuit affirmed, holding that the UT spam blocking policy did not violate the First Amendment and was not preempted by the CAN-SPAM law. The decision is interesting because, significantly, there are still very “few published cases determining the constitutionality of governmental spam regulations.” Steven G. Brody and Bruce E.H. Johnson, Advertising and Commercial Speech: A First Amendment Guide ㋔ 13.3.2 at 13-84 (2d ed. 2005). The leading decision, thus far, was the Washington Supreme Court’s decision in State v. Heckel, 143 Wn.2d 824, 24 P.2d 404 (2001), but Heckel involved fraudulent or misleading solicitations, which have traditionally been regulated by the states. White Buffalo did not involve any allegations of fraud. The parties agreed that White Buffalo’s spams were “legal and that they contain factually accurate information.” Thus, the case turned purely on the appropriateness of stopping bulk emails.

The court’s analysis of the First Amendment interests required that the UT policy comply with Central Hudson, which among other things requires that state regulations of commercial speech be “no more extensive than necessary to achieve” a substantial state interest. Given that the UT policy protected the University’s computer system and its users “from only those unsolicited, commercial emails that have been identified as problematic by complaint, system monitors, or other means,” the policy was narrowly tailored as required by Central Hudson, by promoting user efficiency, which it defined as “the ability of UT email account holders to go about their daily business without constantly having to identify and delete unwanted commercial spam.”

In one of the novel points in this decision, the court acknowledges “as substantial the government’s gatekeeping interest in protecting users of its email network from the hassle associated with unwanted spam” and holds that a governmental agency’s antispam policy, “which blocks specific incoming commercial spam after account-holders have complained about it,” directly advances that particular interest.

The court did reject UT’s argument that its anti-solicitation policy also was narrowly designed to promote server efficiency, noting that UT could “easily” use “time of day and volume filters” rather than “categorically exclude all unsolicited commercial bulk email.” But because user efficiency was effectively, and narrowly, promoted by the blocking filters, the UT system satisfied Central Hudson.

White Buffalo is one of the first appellate courts to consider the First Amendment issues presented by spam, and probably the first major case to consider governmental spam blocking software. A copy of the decision is available here.

Posted by Bruce Johnson