On October 29, the U.S. Supreme Court declined to hear a challenge to Washington State’s law restricting unsolicited commercial e-mail ("Spam"), allowing to stand a ruling by the Washington Supreme Court that the 1998 law was constitutional.

Washington’s spam statute, one of only 18 in the country, prohibits commercial e-mail from containing misleading information in its subject line, from using a false return address and from misrepresenting the point of origin. The statute allows individuals receiving unlawful commercial e-mail to sue for damages in state court and the state may bring suit against violators under the Consumer Protection Act.

After receiving complaints from Washington state residents, Attorney General Christine Gregoire’s office sued Jason Heckel and his company, Natural Instincts, of Salem, Oregon in 1998.

The suit contends that Heckel sent messages advertising a package called "How to Profit from the Internet" with a deceptive message in the subject line ("Did I get the right e-mail address?") that might entice people into opening the e-mail. The suit also alleges that Heckel used false return addresses, prohibiting angered recipients from responding.

Heckel and his attorney charged that the state statute violated the Commerce Clause of the U.S. Constitution which forbids states from passing laws regulating interstate commerce. Superior Court Judge Palmer Robinson agreed, ruling that law was "unduly restrictive and burdensome" and would "subject someone like Mr. Heckel to potentially 50 different standards of conduct."

On appeal, the Washington Supreme Court unanimously reversed Judge Robinson’s decision, ruling that the law did not present a burden on interstate commerce because the cost to comply with the law was not excessive. The Court ruled that "the only burden the Act places on spammers is the requirement of truthfulness, a requirement that does not burden commerce at all but actually facilitates it by eliminating fraud and deception." The U.S. Supreme Court, in refusing to hear the case, allowed that ruling to stand.

We agree with the State Supreme Court’s decision and its rationale. While we generally encourage the development of technologies that can effectively empower consumers to protect themselves against spam and other intrusive practices, the requirement of truthful conduct is not overly restrictive legislation.