AOL List: Suit News

David Cassel (
Wed, 6 Nov 1996 00:33:56 -0800 (PST)

		     S e e   Y o u   I n   C o u r t


A Philadelphia judge ruled that CyberPromotions has no First Amendment
right to send AOL subscribers unsolicited e-mail, and "AOL, as a private
company, may block any attempts by Cyber to do so."

But there's more...

    [W]e will not, at this time, enter judgment on Count V of Cyber's 
    First Amended Complaint for declaratory relief. This is because 
    Cyber contends in its Reply brief that "many more issues ... have 
    to be addressed since there are numerous reasons beyond the First 
    Amendment which will permit Cyber to send e-mail to AOL members."  

    We will allow Cyber ten days from the date of this Memorandum 
    Opinion and Order to submit a list of the theories other than the 
    First Amendment it believes entitles it to send unsolicited e-mail 
    to members of AOL. 

"America Online has won the first round," the Philadelphia Daily News
wrote after noting the ten-day extension. "I think it's the right outcome
but the wrong reasoning," the EFF's Mike Godwin told C|Net, saying
CyberPromotions does have a first amendment right--to send the e-mail, if
not to have it delivered. 

But Judge Weiner didn't agree.  He wrote that "The United States Supreme
Court has recognized that 'the constitutional guarantee of free speech is
a guarantee only against abridgement by government, federal or state'" 
and offering "'no shield against merely private conduct.'"  The judge also
cited a stipulation of facts from the recent Communications Decency Act
decision, "ACLU v. Reno".  "'The Internet is...a unique and wholly new
medium of worldwide human communication...the content on the Internet is
as diverse as human thought.'"  And more to the point, "this Court
previously found that no single entity, including the State, administers
the Internet."  Which makes the First Amendment moot. 

But there's no question CyberPromotions was communicating--they sent
"literally millions of messages a day", the judge observed, and the court
received "a plethora of letters from disgruntled AOL members".  In a press
release AOL said thousands of complaints were arriving each month. 

There could be more legal action to come.  "If Cyber Promotions decides to
appeal this decision, we will continue to fight," AOL's attorney said,
"...and we are confident we will be successful." But even now, celebration
may be premature.  "The motion of America Online, Inc.  for partial
summary judgment on First Amendment issues is GRANTED in part and DENIED
in part,"Judge Weiner wrote.

This is an unusual case.  It probably marks the first time a judge used
the phrase "e-mail bomb", and he later quoted Cyber Promotions' word
"e-mag". Despite the high-minded arguments, the bench also took note of
the fact that "many of the ads include get-rich-quick ads, weight loss
ads, health aid promises and even phone sex services." 

But there may be more ominous twists. AOL's ten-count complaint included
"unfair competition", later adding "unjust enrichment".  The attorney for
CyberPromotions quickly claimed the high ground, telling the Philadelphia
Inquirer that AOL "doesn't think [its own on-screen ads] are worthy of
censorship, but anyone who competes with it for Internet advertising is." 
Meanwhile, CyberPromotions President Sanford Wallace told C|Net he would
use only one, block-able, domain name if AOL would stop blocking all mail
from spammer domains by default--leaving customers to choose blocking. 
Instead, his attorneys told the Inquirer, AOL had "appointed themselves
the Big Brother of Internet e-mail". 

They'll try to make that case in ten days; Judge Weiner has ruled only
that there's no right to send e-mail under First Amendment protections
from the state.  "AOL has not opened its property to the public by
performing any municipal power or essential public service and, therefore,
does not stand in the shoes of the State." 


AOL made available a transcript of Steve Case's investment community
conference call. In response to the question "Do you anticipate a time
when you can say that the performance on America Online is just as good as
going through a direct Internet service provider?," Case answered, "We
think that it will be superior to anybody providing Internet access,
because...we have the same starting point in terms of the Web softw" 

The transcript ends with the word "softw".

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