White Buffalo Ventures v. University of Texas

Citation: White Buffalo Ventures, LLC v. University of Texas at Austin, 420 F.3d 366 (5th Cir. 2005)

Facts
A dating service used a Freedom of Information Act request to obtain the email addresses of all of the University of Texas. It then began sending large numbers of spam to those addresses. After refusing to stop sending the emails, the university blocked its messages. The spammer sued the university under the first amendment and the federal CAN-SPAM Act. The trial court sided with the University. On the CAN-SPAM Act claim, the spammer claimed that the federal law preempted state law regarding spam, including the university's anti-spam policy. The trial court had premised its holding:


 * “on four propositions: (1) that the ‘purposes' of CAN-SPAM, as determined by reference to the statute and the accompanying Senate Report, suggest that Congress did not mean to preempt technological approaches to combating spam; (2) that § 7707(c) specifically exempts UT from the scope of express preemption; (3) that § 7707(b)(2), which states that ‘[s]tate laws not specific to electronic mail, including State trespass, contract, or tort law’ are not preempted, exempts UT's anti-spam policy because that policy is part of a larger set of anti-solicitation rules; and (4) that UT's ITS policy is not a ‘statute, regulation, or rule of a State or political subdivision of a state’ and is therefore not preempted by § 7707(b)(1).”

Appellate Court Decision
The Fifth Circuit Court of Appeals affirmed, holding that a university was within its rights to block spam sent by a dating service to thousands of student email users. However, the appellate court took its own approach to the question.

It made its decision on the very narrow ground that the CAN-SPAM Act is ambiguous and therefore there was a presumption against preemption of state law and regulations:


 * “CAN-SPAM does not preempt the Regents' Rules, because is in tension with plain text found elsewhere in the Act, and that tension triggers the presumption against preemption.”

On the first amendment/free speech claim espoused by the spammer, the court found that the university's use of its anti-solicitation policy to block the plaintiff's unsolicited e-mails, which had drawn complaints from students, was a permissible regulation of commercial speech based on university's interest in protecting “user efficiency,” but the court held that the university's interest in “server efficiency” could not support challenged action (“The server efficiency interest is almost always coextensive with the user efficiency interest, and the fit is sufficient for the latter; but declaring server integrity to be a substantial interest without evidentiary substantiation might have unforeseen and undesirable ramifications in other online contexts”).