Texas college can block certain mass e-mails, appeals court rules

TEXAS — The 5th U.S. Circuit Court of Appeals upheld a University of Texas policy in early August that blocks certain unsolicited mass commercial e-mails from being sent to the school’s e-mail account holders.

The lawsuit stems from the school blocking e-mails from the operators of the online dating service longhornsingles.com. White Buffalo Ventures, LLC, sued the school saying the school’s policy was pre-empted by the federal CAN-SPAM Act, which establishes guidelines for commercial e-mails, and that the policy violated the First Amendment. The University of Texas is a state school, and the CAN-SPAM Act explicitly prohibits states from enacting similar anti-spam laws.

The court denied both contentions by White Buffalo. In denying the First Amendment claim, the court decided that the school’s policy furthered a substantial interest when blocking specific e-mails: saving time for the system’s users. The court also found that the university was filling the role of an Internet service provider, and thus was exempt from the CAN-SPAM law’s pre-emption provision.

“I’m disappointed that the court decided that the government can censor e-mail,” said Brad Armstrong, founder and CEO of White Buffalo. “It gave no guidelines for that. It seems fairly arbitrary.”

The court declined to determine whether the university’s e-mail system was a public or private forum. That determination could have had an impact on whether or not the university could censor or restrict e-mails from individual students.

“We therefore decide that UT’s anti-spam policy is constitutionally permissible. … Because we so decide, we need not address what type of First Amendment forum a public university e-mail network constitutes,” the court’s opinion said.

The 5th Circuit’s decision upheld a previous decision by the U.S. District Court for the Western District of Texas.

Armstrong said he was glad the court found that his company was sending legal commercial e-mails under CAN-SPAM. But he said he wonders how students at the university feel about the school being able to stop e-mails from reaching them.

“I don’t know how the students will feel. Maybe they’re fine by that,” Armstrong said of the school blocking e-mails. “In my day we would not have been fine by that. We would have been disturbed by the power of the government to overreach and invade our personal liberties.”

He said the company is discussing the possibility of filing a writ of certiorari with the U.S. Supreme Court.

White Buffalo received e-mail addresses for the university community after filing a Public Information Act request in February 2003 and started sending e-mails in April 2003, according to court documents.

After receiving complaints about the e-mails, the school issued a cease and desist letter to White Buffalo, but the company refused to comply and the university subsequently blocked the company’s IP address from being able to send e-mails to university accounts, according to court documents.

-By Sean Hill

CASE: White Buffalo Ventures, LLC, v. University of Texas at Austin, No. m04-50362 (5th Cir., Aug. 2, 2005)