Thursday, 11 March 2004
FTC "primary purpose" spam rule is a chance to revisit Central Hudson
Yesterday the Federal Trade Commission (FTC) announced that it would begin hearing public comments today on a rule that the CAN-SPAM Act requires it to propound — a definition that permits a determination whether an email's "primary purpose" is commercial. (Click here to read the proposed rule and here to submit a comment.)
The statute applies to commercial messages, so someone has to define precisely what commercial means. Naturally, Congress passed that buck to the FTC. The U.S. Supreme Court has grappled with the definition of "commercial speech" since it first recognized the concept in 1976, in Virginia Pharmacy (abstract). I rarely agree with Clarence Thomas, but I find his logic on commercial speech unassailable. There is simply no articulable definition that captures all commerciality without also capturing noncommercial elements. Likewise, there is no articulable definition that avoids capturing noncommercial speech without missing large swaths of the commercial sector. To borrow two terms from another line of constitutional jurisprudence, all definitions of "commercial speech" that have ever been suggested have been overinclusive or underinclusive. How can we justify regulating a class of speech that we cannot even define?
Since 1995, Justice Thomas has consistently railed against the commercial-speech doctrine of Central Hudson. In the last few years, the Court seems to have been moving slowly, reluctantly towards his position in 44 Liquormart, Ruben, and Glickman. Although he lost the Glickman fight, it was a 5-4 decision, and the commercial speech issue was not squarely implicated. With a challenge to the FTC's "primary purpose" rule propounded under CAN-SPAM — no matter what the final rule actually says — there will be no room for the Court to dodge the underlying First Amendment question. One can only hope the case rises that far.