E-Mail Urging Workers to Join Union Is "Commercial" Message Under CAN-SPAM Act

Verizon management didn't like it much when a handful of union organizers created fake e-mail accounts bearing the names of Verizon officials and proceeded to send hundreds of e-mail messages urging its employees to join the Communications Workers of America.

The telecom company sued the union officials under the CAN-SPAM Act, alleging that the messages were unsolicited, contained false and misleading information, and failed to include a means to opt-out of future communications. The union officials' first line of defense were claims that the e-mails were protected under the First Amendment and were beyond CAN-SPAM's reach because they were not commercial in nature.

A good defense one would think, but not good enough for Judge T.S. Ellis III, who tossed it aside somewhat summarily. The judge held that the e-mails were commercial under CAN-SPAM and that union representation is a "commercial service." The CAN-SPAM Act is intended to regulate only commercial speech.

"To the extent that the Act is applied only to fraudulent or misleading speech, it poses no First Amendment questions, as unions can claim no special privilege to engage in misleading representations of fact," the judge wrote. "First Amendment jurisprudence does not compel the conclusion that union organizing speech is per se non-commercial, nor prohibit application of the CAN-SPAM Act to misleading speech by labor unions."

In explaining that union representation is a "commercial service," the court remarked that the CWA performs economically valuable services such as providing representation in workplace disputes, and bargaining for workers' interests in wages and conditions and hours of work. These services are typically performed for a fee by unions and by competing providers such as lawyers and mediators, the court wrote.

It appears that the union officials, thus shorn of any First Amendment protections, now face an uphill battle. The identity of the sender of the e-mails was admittedly faked, and the message body--which enumerated the benefits of union membership and urged the recipient to call the CWA--did not contain the sender's physical address nor a ready means for opting-out of future mailings.

The case is Aitken v. Communications Workers of America, No. 1:06cv1161 (E.D. Va., July 12, 2007).