Blast Fax

Missouri v. American Blast Fax Does a Law Banning Unsolicited Fax Advertising Violate the Free Speech Clause? Blast Fax

On March 21, 2003 the 8th Circuit Court of Appeals issued an opinion which upheld the constitutionality of the fax advertising ban contained in the Telephone Consumer Protection Act of 1991. ( 74 U.S.C. Sec 227)

The Act bans unsolicited fax advertising providing that: "It shall be unlawful for any person within the United States to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine." 47 U.S.C. Sec. 227(b)(1)(C). The District Court had decided that the law violates the free speech clause of the United States Constitution.

In reversing the decision of the District Court, the 8th Circuit applied the commercial speech test in Central Hudson Gas and Electric Corp v. Public Service Commission (447 U.S. 557 ) According to that test the constitutionality of regulation banning lawful and accurate commerical speech is determined by applying a three part test. First, the legislation must address a substantial governmental interest. Next, the regulation must directly address the governmental interest asserted. Finally, the law must not be more extensive than is necessary to serve the governmental interest. If the law in question fails to generate an affirmative answer to each part of the test, it will be struck down as unconstitutional.

On the first point the court noted that the government did have a substantial interest in prohibiting unsolicited fax advertisement since the faxes in question use the recipient's ink and paper, and because they tie up the recipient's fax machine while the fax is being transmitted. Next the court decided that the law in question does directly advance the government's interest in preventing the harm of unsolicited fax advertising. The Court decided the law was rational and designed to advance its asserted goal, and distinguished the Act from others that have been found unconstitutional. In Rubin v. Coors Brewing Company the Supreme Court had stuck down a law preventing alcohol content from being displayed on bottle labels (in order to prevent alcohol content wars between brewers), finding that the law did not advance the government's interest because the law did not apply to other means of informing customers of alcohol content. The Court found the law did not contain those sorts of inconsistencies and that it was rationally related to the government's interest.

The decision in Blastfax may have implications for efforts by many to prohibit unsolicited, or junk, e-mail. A law banning unsolicited e-mail advertising would be analyzed under a similar commerical speech framework, but the differences in inconvenience to the recipient may merit a different result.