Tennessee Legislature passes bill regulating junk e-mail

Thursday, June 3, 1999

The Tennessee General Assembly has passed a bill designed to limit the sending of unsolicited commercial e-mail, or spam.

Similar measures were introduced in the House and Senate in January. The House passed its version in March. The Senate passed its version — which included three amendments to the House bill — in early May.

Because the House and Senate versions included different amendments, both measures were sent to a joint conference committee to iron out the differences. On May 26, the House approved the measure, which came out of the conference committee. The next day, the Senate followed suit. The bill now heads to the governor, who has 10 days to sign the measure once it reaches his desk. If the governor takes no action, the bill automatically becomes law.

The bill provides that no person or business conducting business in Tennessee shall fax or e-mail “unsolicited advertising material” unless that person establishes a valid toll-free telephone number or return e-mail address which a recipient can use to notify the sender not to send any more faxes or e-mails.

Senders of unsolicited commercial e-mail would be required to include the term “ADV:” in the subject line. Another part of the measure provides that unsolicited commercial e-mail of an adult nature must include the term “ADV:ADLT” in the subject line.

Violators of the measure could be fined $10 for each e-mail, up to $5,000 a day.

The measure exempts “constitutionally protected communications to and from citizens and their elected representatives.”

At least one commercial-speech expert says provisions in the measure raise constitutional questions. Robert O'Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression, says requiring the labeling of messages with “ADV:” and “ADV:ADLT” presents First Amendment issues.

“The question, particularly with respect to the “ADV:ADLT” language, is whether this will be considered simply mere disclosure or whether it is seen as the compelling of some type of pejorative labeling,” he said. “The next question, if it is seen as a form of compelled speech, would be whether the speech can be compelled.”

O'Neil says that the “ADV:ADLT” labeling “involves a different kind of judgment because it is much more difficult to define and analyze whether material is of an adult nature, rather that if it is unsolicited advertising.”

At least four other states — including Nevada, Washington, California and Virginia — have passed laws regulating spam. The Connecticut House recently passed a similar measure.

The U.S. Senate is also considering measures to regulate junk e-mail.

O'Neil predicts that more and more legislative proposals to restrict spam will be discussed. “There is substantial and growing pressure in this area,” he said. “The pressure to regulate spam is something that a lot of legislators have heard from many constituents.

“In my view, it is a lot easier to keep unsolicited advertising out of electronic mailboxes than physical mailboxes, but that issue tends to be ignored,” he said.