Buffalos Can’t Roam Without Longhorn Students

White buffalos cannot roam with Texas Longhorns, at least on the University’s email system.

The Fifth Circuit upheld a decision denying an injunction to White Buffalo Ventures that sought to send commercial emails to University of Texas students. White Buffalo argues that the university could not block the emails because the action was contrary to the federal CAN-SPAM Act and its First Amendment rights.

White Buffalo operates a dating service. Pursuant to a freedom of information request, it obtained the email addresses of students at UT. White Buffalo sent emails to the students advertising its services. When some students complained, the university blocked White Buffalo’s emails. The company then sought an injunction to prevent its messages from being blocked. Both parties agreed that the messages were not false or fraudulent.

The court found that the CAN-SPAM Act allows Internet service providers to adopt policies that decline to transmit, route, relay, handle or store electronic mail messages, so the state university had the ability to adopt a policy blocking White Buffalos’ messages. Thus, the court did not have to determine if the CAN-SPAM Act preempts state agencies from adopting such policies. White Buffalo claimed that its First Amendment rights were violated as a result of the blocked emails and that UT should have used a less stringent method to stop unsolicited emails.

The court found there were two interests for which the government (UT) had an interest. One was to protect those receiving emails and the other was to protect UT’s servers. As to the users emails, the court found the policy protected the substantial interests of users in the least intrusive manner: “One can hardly image a more direct means of preventing commercial spam from appearing in account-holders’ inboxes and occupying server space than promulgating a policy that excludes such material from the email network,” the court wrote. However, as to protecting UT’s servers, the court was skeptical. “For the server efficiency rationale to pass muster under the fourth prong of Central Hudson, spam filters must block a set of spam that poses a legitimate threat to server efficiency,” the court observed. UT did not meet its burden of proof regarding server efficiency.

However, the appellate court upheld UT’s summary judgment based solely on the user interest. “The ITC policy survives First Amendment scrutiny despite its failure to justify that policy in relationship to the server efficiency interest,” the court concluded.

White Buffalo Ventures v. University of Texas at Austin, Fifth Cir. No. 04-50362, August 2, 2005.