Thursday, August 16, 2007

In Which It Is Asked, Is It Possible to be Online and Not Be “Commercial”? Aitken v. Communications Workers of America

Pop quiz: What does the word “commercial” mean on the Internet? Chose one:

[A] Whatever a judge chooses it to mean – neither more nor less.

[B] The sale of goods or services.

[C] A link to someone elses’s website, with whom you have no relationship, which happens to sell t-shirts.

[D] A protest by a Union against a corporation where the Union impersonates officers of the corporation.

According to the CAN SPAM ACT, the definition of commercial, in terms of commercial emails, is those emails “the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).” 15 U.S.C. § 7702(2)(A).

Before we unpack the full extent of the word “commercial,” let’s go to the way-back machine to a time when words – as Humpty Dumpty informed Alice – mean exactly and precisely what Humpty Dumpty chooses them to mean, nothing more and nothing less.

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master -- that's all.'

- Alice in Wonderland

We find ourselves in 1998, in a litigation known as Jews for Jesus v. Brodsky, 993 F.Supp. 282 (D.N.J.), aff'd 159 F.3d 1351 (3rd Cir. 1998). In this case, the defendant registered a website where the defendant made arguments antithetical to the mission of the group Jews For Jesus. The question before the court was whether the defendant had infringed on plaintiff’s trademark by registering and using the domain name In order to find that defendant was guilty of nefarious doings, the court would have to find that defendant had used plaintiff’s trademark in commerce. The court found that requirement was satisfied by the fact that defendant Brodsky linked to a third party’s website that sold t-shirts. I believe this constitutes a “Wow! That’s so cool! Who’d a thunk that linking to someone else’s website that sells shirts magically transforms your website, where you sell nothin’ a t’all, into a commercial website.” Apparently, in the Third Circuit, the word “commercial” meant exactly and precisely nothing at all.

Now we come to this month’s exploration of the word “commercial.” But wait, before we manage to depart from 1998, we recall Senator Dan Coats who was still recovering from his sponsored legislation, the Communications Decency Act, being unanimously declared unconstitutional. Sen. Coats’ solution was to listen to the Supreme Court and come back with a new law, the Children’s Online Protection Act (COPA), which comported with the views of the Supreme Court. One of the reasons that COPA was a solution to the perceived problem was that COPA would only be aimed at “commercial” websites. This was good because now “non-profit” websites would be outside of the cross-hairs of the censors at the Department of Justice. Of course, here “non-profit” is taken to mean exactly and precisely “not commercial.” Funny thing is, the defendant in this month’s case will make exactly the same argument.

This month’s case involves a squabble between Verizon and the Communications Workers of America (CWA). Aitken v. Communications Works of America, No. 1:06cv1161 (EDVA July 12, 2007) PDF. Some members of the CWA got a cute idea – they created free Yahoo! email accounts using the names of some Verizon officers and sent out a batch of fake emails that “disparaged Verizon.” The question before the court is whether the falsified email headers constitute a violation of the relatively new CAN SPAM Act. As the CAN SPAM Act only covers commercial speech, the court must find that the emails in question were “commercial.”

First, how exactly did the members of the CWA impersonating Verizon officials “disparage” Verizon in these emails? They did this by telling the recipients of the benefits of union membership, attempting to convince these non-union members to sign up.

Now that MCI has been purchased by Verizon, the company is doing all it can to

keep you and other former MCI employees from gaining Union benefits and

wages that your co-workers at Verizon receive.

Unionized Verizon workers are members of CWA or IBEW and:

• earn a lot more money

• have a better health plan and pay less for it

• have an excellent defined benefits pension plan and 401(k) plan

• have excellent job security

. . .

It doesn’t have to be this way for former MCI employees. CWA is committed to helping former MCI employees gain the respect and dignity you deserve. When we join together, we can win.

It may sound to you like the union was engaged in a commercial solicitation, attempting to persuade individuals to pay union membership dues in exchange for union representation. But according to the CWA this is not exactly and precisely what “commercial” means. Defendant’s argue that (a) unions are non-profits and therefore do not engage in commercial activity, and (b) the emails did not attempt to solicit union membership (they just proclaimed how wonderful union membership is).

As to the first, the court clarifies that defendants have confused “commercial” and “profit.”

[W]ell-established First Amendment law makes clear that the commercial status of speech is not determined by the speaker’s profit motive. See Board of Trustees of State University of New York v. Fox, 492 U.S. 469, 482 (1989) (“[S]ome of our most valued forms of fully protected speech are uttered for a profit.”); Rubin v. Coors Brewing Co., 514 U.S. 476, 494(1995) (Stevens, J., dissenting) (“[E]conomic motivation or impact alone cannot make speech less deserving of constitutional protection, or else all authors or artists who sell their works would be correspondingly disadvantaged.”); Adventure Communications, Inc. v. Kentucky Registry of Election Finance, 191 F.3d 429, 440-442 (4th Cir. 1999) (“In and of itself, profit motive on the speaker’s part does not transform noncommerical speech into commercial speech.”) (internal citations omitted). In sum, speech is neither per se commercial merely because of the presence of a profit motive, nor per se noncommercial merely because the speaker does not intend to make a profit. . . . Instead, whether speech is commercial depends on whether it “proposes a commercial transaction” or promotes specific products or services.

The CWA proposed a commercial transaction of exchanging union representation for union dues.

The response of the CWA to this was, “did not!” To which the court responded, “did!” CWA’s argument was that these were merely preliminary emails that informed of the benefit of union membership without a primary purpose of soliciting employees to join. To this the Court rejoined,

[A] communication need not be an attempt to consummate a transaction immediately in order to be commercial in nature; advocating the benefits of the speaker’s commercial product or service in hopes of later “sealing the deal” is sufficient. See, e.g., Rushman v. City of Milwaukee, 959 F. Supp. 1040, 1043 (E.D. Wis. 1997) (“[S]tatements encouraging a future economic transaction” are commercial speech). Thus, given that CWA representation is a commercial service, defendants’ promotion of CWA representation in the emails is not excluded from the Act merely because it did not seek to enroll the email recipients immediately.


Let’s spin the Wheel-of-Morality in order to find out the lesson to today’s post [Whirrrrrl, click, click, click]. And today’s lesson -- “Humpty Dumpty was pushed!”