White Buffalo Ventures LLC v. Univ. of Texas at Austin, 420 F.3d 366 (5th Cir. 2005)

U.S. Supreme Court Lets Stand 5th Circuit's
Holding in White Buffalo Spam Case

Federal Appeals Court Had Ruled that UT May Censor
Commercial Bulk Email - U.S. Supreme Court Declines to
Revisit the Issue January 9, 2006

W hite Buffalo Venture s, LLC v. Univ ersity of Texas at Austin, 420 F.3d 366
(5th Cir. 2005).

BY WOLFGANG HIRCZY DE MINO, PH.D.

Whether university's email system is a public forum remains an
open question

In addressing what it called "an issue of very, very first impression," a
three-judge panel of the Fifth Circuit Court of Appeals on August 2, 2005
upheld the University of Texas policy of blocking companies from
delivering bulk email ("spam") to students and staff through the
University's e-mail servers.

In 2003 a private firm, White Buffalo Ventures, LLC, started to promote an
electronic dating service to students at the University of Texas at Austin,
using their utexas.edu email addresses, which it had obtained under the
Public Information Act (Open Record Act). In response to complaints, UT
blocked out all incoming email traffic from White Buffalo's IP address.

Buffalo sued, and sought an injunction against UT. The federal District
Court in Austin granted judgment in favor of UT, however, and Buffalo
appealed to the Fifth Circuit in New Orleans. See UT"s Motion for
Summary Judgment.
In an opinion written by Judge Jerry E. Smith, the panel acknowledges
that there are widely divergent view as to what constitutes "spam." In this
case, however, no one disputed that White Buffalo's messages were
commercial in nature. The parties also agreed that White Buffalo's
e-mails were in compliance with federal legislation passed by Congress
in 2003 to curb the most egregious abuses on the Internet. Nick-named
CAN-SPAM Act, it prohibits fraudulent, abusive, and deceptive commercial
e-mail. The moniker stands for "Controlling the Assault of Non-Solicited
Pornographic And Marketing Act of 1993."

Federal v. state law

The University and White Buffalo disagreed, however, on which law
controlled. Buffalo argued that CAN-SPAM preempted state law under the
Supremacy Clause of the U.S. Constitution to the effect that UT could not
fashion its own, more restrictive, policy on distribution of bulk email. UT
countered that its anti-spam policy was part and parcel of a general policy
which prohibits commercial solicitation on campus, and that it was
simply exercising its lawful authority in properly and efficiently operating
the University's IT systems.

The appellate court resolved the question in UT's favor, stating that the
federal law did not preclude UT form using technological devices to
conserve server space and safeguard the time and resources of its
employees, students, and faculty. It also held that the Regents' policy did
not violate Buffalo's first amendment rights because the speech at issue
was commercial, UT had a legitimate interest in protecting its servers
and subscribers, and had not employed unreasonable means to protect
its users. Although the court was more skeptical about the argument that
blocking was necessary to protect server integrity, it upheld the
challenged policy.

Nature of forum question remains open

A question which the opinion calls "dicey but admittedly important" was
left unanswered: Whether a public university's e-mail system constitutes
a public forum under the First Amendment. If so, a state university's
restrictions on speech must meet much more stringent requirements to
avoid being struck down as contrary to the First Amendment. Nor did
White Buffalo give the court an opportunity to rule on regulation impinging
on political speech, as opposed to purely commercial speech, in campus
cyberspace.

The Fifth Circuit's ruling on the applicability of CAN-SPAM to state
universities is one of the first in the nation. But the court resolved only one
or two of many novel issues, "the significance of which will grow
proportionally with heightened cultural and economic reliance on the
Internet."

Writing for the court, Justice Smith acknowledges that future litigation will
define the perimeters of first amendment protection in
government-controlled electronic forums. Other cases testing these
issues are already in the pipeline.

Implications for political and public interest "spam" unclear

In a First Amendment case brought on behalf of adjunct faculty, U.S
District Judge Lee H. Rosenthal recently held that the University of
Houston Downtown did not create a public forum by providing its faculty
and staff with an e-mail system, and that the plaintiffs' rights were not
violated by various access and usage restrictions imposed on them.

Unlike the commercial solicitation at issue in the suit involving UT, our
case in Houston involves speech "on matters of public concern." Such
speech has traditionally enjoyed greater protection under the Supreme
Court's First Amendment jurisprudence than commercial speech. The
Houston case also presents claims of viewpoint discrimination, and of
restriction of access based on the identity and status of the speakers.

As disputes over Internet access and regulation of speech in online
communities are litigated with increasing frequency in the lower courts,
the Fifth Circuit may soon have occasion to add new chapters to its
evolving Internet jurisprudence.
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White Buffalo Ventures, L.L.C., v. University of Texas. No. 04-50362 (5th
Cir. August 2, 2005). U.S. Court of Appeals for the Fifth Circuit.
Cite for Fifth Circuit Opinion: White Buffalo Ventures, LLC v. Univ. of Texas
at Austin, 420 F.3d 366 (5th Cir. 2005).
Trial court opinion: White Buffalo Ventures LLC v. The University of Texas
at Austin, No. A:03-CA-296 JN (United States District Court, Western
District, Austin, TX)(Honorable Sam Sparks, United States District Judge).
White Buffalo Ventures, LLC v. University of Texas at Austin, 2004 U.S.
Dist. LEXIS 19152, 2004 WL 1854168 (W.D. Tex. Mar. 22, 2004)

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Faculty Rights Coalition v. Hossein Shahrokhi. No. 04-02127 (S.D. Tex.
July 13, 2005). U.S. District Court for the Southern District of Texas -
Houston Division (Honorable Lee H. Rosenthal, United States District
Judge). Appeal pending in the Fifth Circuit; Docket No. 05-21098
Cite: Faculty Rights Coalition v. Shahrokhi, Slip Opinion,
2005 WL 1657116, 177 L.R.R.M. (BNA) 3194, S.D.Tx., Jul 13, 2005

Update: Faculty Rights Coalition v. Shahrokhi, (5th Cir. (Tex.) Nov. 2, 2006)