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In the first review of a federal law meant to regulate unsolicited fraudulent commercial e-mail, the 5th U.S. Circuit Court of Appeals ruled on Tuesday that the CAN-SPAM Act does not pre-empt a University of Texas policy that blocks unsolicited commercial e-mail. White Buffalo Ventures, a company that operates Longhorn Singles, an online dating service aimed at students of University of Texas, sued the university after it blocked the business from sending unsolicited e-mails, or spam, to people through the school’s e-mail system in 2003. In White Buffalo Ventures v. University of Texas at Austin, the company claimed that the university’s action violated its free speech rights and that the school’s policy of forbidding spam on its e-mail server was pre-empted by the CAN-SPAM Act. The company says it complied with the act. CAN-SPAM specifically forbids the distribution of fraudulent commercial e-mail, and the university conceded that the company’s e-mails were not fraudulent, according to the opinion. But Judge Jerry Smith, who was joined by Judges Eugene Davis and Harold DeMoss, wrote that the school’s policy was not pre-empted by the act, which specifically states that the law should not interfere with “the adoption, implementation, or enforcement by a provider of Internet Access service of a policy of declining to transmit, route, relay, handle or store certain types of electronic mail messages.” The 5th Circuit also had no trouble squaring the university’s policy with the 1st Amendment. “We have little problem affirming the proposition that, to keep community members from wasting time identifying, deleting, and blocking unwanted spam, UT may block lawful commercial spam (as long as the blocks are content and viewpoint neutral),” Smith wrote. Sean Jordan, an assistant solicitor general who represented the University of Texas in the case, applauded the ruling. There are “two things that the court made clear,” Jordan says. “One is that the CAN-SPAM Act does not pre-empt UT’s spam policy, and the court determined that the policy is permissible and does not pre-empt the First Amendment.” Brad Armstrong, an Austin, Texas, lawyer who is also the chief executive officer of White Buffalo, did not return a call for comment.

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