White Buffalo v. Univ TX Austin

United States Court of Appeals
Fifth Circuit
F I L E D
August 2, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-50362
_______________
WHITE BUFFALO VENTURES, LLC,
Plaintiff-Appellant,
VERSUS
UNIVERSITY OF TEXAS AT AUSTIN,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
______________________________

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Before DAVIS, SMITH, and DEMOSS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
This case involves the regulation of unsoli-
cited, commercial mass electronic messages
(“emails”) (a species belonging to the larger
communication genus often referred to as
“spam”).1 Plaintiff White Buffalo Ventures,
LLC (“White Buffalo”), operates several on-
line dating services, including longhornsin-
gles.com, which targets students at the Uni-
versity of Texas at Austin (“UT”). Pursuant to
its internal anti-solicitation policy,2 UT
blocked White Buffalo’s attempts to send un-
solicited bulk commercial email.
White Buffalo sought to enjoin UT from
excluding its incoming email. The district
court denied the injunction. On cross-motions
for summary judgment, the court granted UT’s
motion and denied White Buffalo’s. White
Buffalo appeals, challenging the ruling on the
grounds that federal law preempts UT’s
internal anti-spam policy (the “Regents’
Rules”)3 and that the policy violates the First
Amendment. Mindful that this case presents
several novel issues, the significance of which
will grow proportionally with heightened cul-
tural and economic reliance on the Internet, we
affirm.
We make two determinations. First, we de-
cide that the CAN-SPAM Act does not pre-
empt UT’s anti-spam policy. Second, we
1 Because the term “spam” is often thought of
pejoratively, it is important to note that although
that term necessarily implies that the email was
unsolicited, the more general meaning does not
(1) imply anything about the veracity of the in-
formation contained in the email; (2) require that
the entity sending it be properly identified or au-
thenticated; or (3) require that the email, even if
true, be commercial in character. There nonethe-
less appears to be no consensus as to the precise
meaning of the term “spam,” which is sometimes
used synonymously with unsolicited “bulk” email.
A set of spam messages sent out together is called
an email “blast.”
The term “spam” derives from a 1970 Monty
Python Flying Circus sketch in which a waitress
recites a menu containing “egg and spam; egg ba-
con and spam; egg bacon sausage and spam; spam
bacon sausage and spam; spam egg spam spam
bacon and spam; spam sausage spam spam bacon
spam tomato and spam . . . .” See Roger Allen
Ford, Comment, Preemption of State Spam Laws
by the Federal CAN-SPAM ACT, 72 U. CHI. L.
REV. 355, 355 n.1 (2005) (citing DAVID CRYSTAL,
LANGUAGE AND THE INTERNET 53 (Cambridge
2001)).
2 UT has a general policy against solicitation,
which it articulates in the Rules and Regulations of
the Board of Regents of the University of Texas
System (“the Regents”). Pursuant to that policy,
UT, with limited exceptions, prohibits solicitation
at and on its facilities and has promulgated specific
procedures dealing with unsolicited email commun-
ications, including commercial solicitations. Under
these procedures, when unsolicited email commun-
ications come to the attention of university network
administrators (by way of complaints, system
monitors, or other means), UT takes steps to block
or otherwise stop the transmission of such emails,
with or without notice to the sender, as cir-
cumstances permit or warrant.
3 Specifically, White Buffalo contends that
UT’s regulations are preempted by the Controlling
the Assault of Non-Solicited Pornography and
Marketings Act of 2003 (the “CAN-SPAM Act” or
the “Act”), 15 U.S.C. §§ 7701-7713, Pub. L. 108-
187, 117 Stat. 2619 (2003).

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3
determine that the policy is permissible under
our First Amendment commercial speech juris-
prudence, but we reserve judgment on whether
state university email servers constitute public
or private fora.
I.
A.
The parties do not dispute the facts. UT
provides, free of charge, Internet access and
email addresses to faculty, staff, and students
at the domain “utexas.edu.” Owners of
electronic mail accounts can access those
accounts either on-grounds (by means of
wireless connections or of wired, authenticated
clusters) or remotely (by means of some other
Internet access provider). An owner of a UT
user account may, for example, log on from
any third-party dial-up or broadband service
provider and check for email residing on one
of UT’s 178 email servers.
UT has a policy of blocking many types of
incoming spam, irrespective of commercial
content or source authenticity. Under the Re-
gents’ Rules, the technology department (the
“ITC”) implements procedures (1) to block
incoming unsolicited, commercial emails and
(2) to stop the transmission of such emails.4
White Buffalo operates several online dat-
ing services, including one, called “longhorn-
singles.com,” that targets UT students. In
February 2003, White Buffalo submitted a
Public Information Act request seeking all
“non-confidential, non-exempt email address-
es” held by UT, which responded by disclosing
all qualifying email addresses. In April 2003,
White Buffalo began sending legal commercial
spam to targeted members of the UT
community.5
UT received several complaints regarding
unsolicited email blasts from White Buffalo.
UT investigated and determined that White
Buffalo had indeed sent unsolicited emails to
tens of thousands of UT email account-hold-
ers, at which point UT issued a cease and de-
sist letter. White Buffalo refused to comply
with that letter, so UT blocked all email in-
gress from the IP address6 that was the source
address for the unsolicited White Buffalo
spam. The filter blocked all email sent from
that IP address to addresses containing the
“@utexas.edu” string.
B.
White Buffalo obtained a temporary re-
straining order (“TRO”) in state court. UT re-
moved the cause to federal court on the basis
of federal question jurisdiction; there the TRO
was continued pending a hearing on the pre-
liminary injunction. After a hearing in May
2003, the district court denied the injunction.
The parties conducted discovery, and both
moved for summary judgment. The district
4 These procedures may or may not provide
notice to the sender, depending on the circum-
stances.
5 We presume the legality of these emails based
on this record, the parties’ agreement, and the
absence of any challenge.
6 An Internet Protocol (“IP”) address is a un-
ique 32-bit numeric address, written as numerals
separated by periods, identifying each sender or
receiver of information traveling across the In-
ternet. An IP address has two parts: the identifier
of a particular network on the Internet (say, the
first 24 bits) and an identifier of the particular de-
vice (which can be a server or a workstation) with-
in that network. In essence, an IP address
identifies a single computer; that computer might
be an entry point into an internal network, but that
is not important for our purposes.

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court granted UT’s summary judgment motion
and denied White Buffalo’s.
II.
A.
1.
This court reviews a summary judgment
grant de novo, in accordance with the FED R.
CIV. PROC. 56 analysis that guides the district
court. Ford Motor Co. v. Tex. Dep’t of
Transp., 264 F.3d 493, 498 (5th Cir. 2001).
The district court entered judgment for UT on
cross-motions for summary judgment. On re-
view, the motions are reviewed independently,
with evidence and inferences taken in the light
most favorable to the nonmoving party. See
id. We review a district court’s preemption
determinations de novo. See Baker v. Farmers
Elec. Coop., Inc., 34 F.3d 274, 278 (5th
Cir.1994).
2.
The doctrine of preemption stems from the
Supremacy Clause,7 which gives federal law
precedence over a conflicting state law. See
Cipollone v. Liggett Group, Inc., 505 U.S.
504, 516 (1992). CAN-SPAM’s preemption
of state law derives from an express provision
in the Act. See 15 U.S.C. § 7707(b).
Although a court should begin with the ex-
pression provided by Congress, it must also
“identify the domain expressly pre-empted.”8
The fact that Congress has expressly
preempted certain activity is plain, but the
scope of that express preemption is not. The
power to supplant state law is “an extra-
ordinary power in a federalist system.” Greg-
ory v. Ashcroft, 501 U.S. 452, 460 (1991).
Preemption radically alters the balance of state
and federal authority, so the Supreme Court
has historically refused to impose that altera-
tion interstitially. See id. The Court has ex-
pressed this principle as a presumption against
preemption of state law.9 Supremacy Clause
analysis is classic “tie goes to the state” juris-
prudence, and the existence of an express pre-
emption provision does not always plainly de-
marcate what the federal law expressly
preempts.
3.
The district court granted summary judg-
ment to UT on White Buffalo’s claim that the
CAN-SPAM Act preempts ITC’s anti-spam
regulations. The court premised its holding on
four propositions: (1) that the “purposes” of
CAN-SPAM, as determined by reference to
the statute and the accompanying Senate Re-
port, suggest that Congress did not mean to
preempt technological approaches to combat-
ing spam; (2) that § 7707(c) specifically ex-
empts UT from the scope of express preemp-
tion; (3) that § 7707(b)(2), which states that
“[s]tate laws not specific to electronic mail,
including State trespass, contract, or tort law”
are not preempted, exempts UT’s anti-spam
policy because that policy is part of a larger set
of anti-solicitation rules; and (4) that UT’s ITS
policy is not a “statute, regulation, or rule of a
State or political subdivision of a state” and is
7 “This Constitution, and the Laws of the Unit-
ed States which shall be made in Pursuance there-
of; . . . shall be the supreme Law of the Land . . . .”
U.S. CONST. art. VI, cl. 2.
8 Cipollone, 505 U.S. at 517; see also Med-
tronic, Inc. v. Lohr, 518 U.S. 470, 484 (1996).
9 See Cipollone, 505 U.S. at 517-18; see also
Bldg. & Constr. Trades Council v. Associated
Builders & Contractors, 507 U.S. 218, 224 (1993)
(“We are reluctant to infer preemption . . . .”);
Maryland v. Louisiana, 451 U.S. 725, 746 (1981)
(“Consideration under the Supremacy Clause starts
with the basic assumption that Congress did not
intend to displace state law.”).

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therefore not preempted by § 7707(b)(1). We
do not organize our discussion around these
four propositions (because the appellate
briefing renders an alternate organization more
desirable), but we discuss each in its
appropriate context.
To our knowledge, no Fifth Circuit panel
has scrutinized any portion of CAN-SPAM,
and no court in this country has considered the
legislation’s preemption clause. This is there-
fore an issue of very, very first impression.
In part, CAN-SPAM prohibits fraudulent,
abusive and deceptive commercial email, 15
U.S.C. §§ 7703, 7704; provides for enforce-
ment of the Act by federal agencies, states, and
Internet service providers (“ISPs”), id. § 7706;
and provides for the issuance of regulations to
implement the purposes of the Act, id. § 7711.
The parties have agreed, in the district court
and on appeal, that White Buffalo complied
with the requirements of the CAN-SPAM Act.
Its email blasts were not unlawful.
Most relevant to White Buffalo’s claim is
CAN-SPAM’S preemption clause:
This chapter supersedes any statute, regu-
lation, or rule of a State or political subdi-
vision of a State that expressly regulates the
use of electronic mail to send commercial
messages, except to the extent that any
such statute, regulation, or rule prohibits
falsity or deception in any portion of a
commercial electronic mail message or in-
formation attached thereto.
§ 7707(b)(1).
White Buffalo argues that this preemption
clause prevents UT from promulgating regula-
tions to impede the ingress of longhornsin-
gles.com emails to utexas.edu users. Accord-
ing to White Buffalo, because UT is a state
actor and has conceded that White Buffalo’s
spam is not false or fraudulent, CAN-SPAM
preempts the Regents’ Rules authorizing the
email filters. White Buffalo provides no au-
thority beyond § 7707(b)(1) in support of this
position.
Matters become more complicated because,
in addition to setting forth the preemption
clause, § 7707 carves out a set of entities to be
exempt from any possible preemptive effect.
It states that “[n]othing in this chapter shall be
construed to have any effect on the lawfulness
or unlawfulness . . . of the adoption, imple-
mentation, or enforcement by a provider of In-
ternet access service of a policy of declining to
transmit, route, relay, handle, or store certain
types of electronic mail messages.” § 7707(c).
The district court held that CAN-SPAM
does not preempt UT’s anti-solicitation policy.
It noted that § 7707(c) permits Internet service
providers to employ protection measures, and
it held that UT belongs to that set of service
providers. The court also relied on Congress’s
acknowledgment of “the problems associated
with the rapid growth and abuse of unsolicited
commercial email [that] cannot be solved by
Federal legislation alone” but that will also
require the “development and adoption of
technological approaches” to serve the goals
of the Act. See 15 U.S.C. § 7701(a)(12). The
court found that “[t]he Act . . . does not pre-
clude a state entity like UT from using techno-
logical devices [such as] spam-filters to con-
serve server space and safeguard the time and
resources of its employees, students, and fac-
ulty.” White Buffalo Ventures, LLC v. Univ.
of Tex. at Austin, No. A-03-CA-296-SS, 2004
WL 1854168, at *4 (W.D. Tex. Mar. 22,
2004).

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There are two competing interpretations,
both rooted firmly in the text of the Act, of the
degree of authority state actors may wield in
response to commercial spam. Under the first,
state entities may not regulate commercial
speech except where that regulation relates to
the authenticity of the speech’s source and
content. Under the second, state entities may
implement a variety of non-authenticity related
commercial speech restrictions, provided the
state entity implementing them is an “Internet
access provider.”
As a result of Congress’s apparent failure
to contemplate this question, we must not infer
preemption. The textual ambiguity triggers
the strong presumption against such a finding,
and we cannot be sure whether UT’s
regulations fall within the ambit of the express
preemption clause. UT may therefore imple-
ment the Regents’ Rules without violating the
Supremacy Clause.
B.
1.
UT argues that CAN-SPAM does not pre-
empt the ITC policy (1) because the Act does
not displace the state’s ability to supplement
federal law and (2) because CAN-SPAM pre-
empts state rules that relate to the sending,
rather than the receipt, of unsolicited commer-
cial emails. Section 7707(b)(1) carefully spe-
cifies state political subdivisions as falling
within the scope of its preemption, and UT is
a public school.10
In a vacuum, the provision is explicit about
the types of policies CAN-SPAM preempts.
In layman’s terms, state entities may not
regulate the use of electronic mail to send
commercial spam except where those rules
relate to source and content authenticity. UT
emphasizes Congress’s choice to use the word
“send” in the statute. As a result, UT argues,
CAN-SPAM does not preempt its regulation
of “received” emails. We decline to imbue the
word “send” with the particular significance
UT urges.11
2.
CAN-SPAM does not preempt the Reg-
ents’ Rules, because § 7701(b)(1) is in tension
with plain text found elsewhere in the Act, and
that tension triggers the presumption against
preemption. The district court properly
sought to interpret § 7707(c), which reads,
“Nothing in this Act shall be construed to have
any effect on the lawfulness or unlawfulness
. . . of 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.” In finding no
express preemption, the court both (1) averred
that the ITC policy may not constitute a
10 UT argues that ITS is not a political subdi-
vision of the state. This argument is meritless, as
we explain in part II.B.3, infra.
11 UT posits that CAN-SPAM regulates not the
“receipt” of email, but the “sending” of it. UT then
contends that the Regents’ Rules control the
“receipt” of email. Section 7707(b)(1) preempts
state law regulating “the use of electronic mail to
send commercial messages.” All email (and all
“snail mail,” for that matter) is both “sent” and
“received.”
The event triggering preemption is that the
email was sent, not the particular identity of the
entity sending it. We do not mean to say that
“send” and “receive” never have more specialized
meanings in the statute, but only that the gram-
matical construction of this particular provision
suggests emphasis should not be placed on that
distinction here.

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“statute, regulation, or rule of a State or pol-
itical subdivision of a state,” § 7707(b)(1), and
(2) noted that UT is a “provider of Internet
access.” Any suggestion along the lines of
(1)—that an ITC policy does not constitute a
policy of a state subdivision—is incorrect and
requires little explanation. ITC implements the
directives of, and operates pursuant to the
authority of, the Board of Regents; its policies
therefore constitute rules of a state
subdivision.12
We therefore confine ourselves primarily to
the discussion of (2). The district court stated
that “UT is certainly a provider of Internet ac-
cess service to its students, if not to its em-
ployees and faculty, so it is expressly author-
ized under the statute to implement policies
declining to transmit, route, relay, handle or
store spam.”
The district court says “certainly” without
any reference to the definition provided in the
statute. Congress, in fact, imports that defini-
tion wholesale from a statutory predecessor,
the Internet Tax Freedom Act: “[A] service
that enables users to access content, informa-
tion, electronic mail, or other services offered
over the Internet, and may also include access
to proprietary content, information, and other
services as a part of a package of services
offered to consumers.” 47 U.S.C. § 151.
We doubt that those legislators responsible
for passing the Internet Tax Freedom Act gave
serious consideration to the situation the in-
stant facts present. UT indeed provides Inter-
net Access Service—any time somebody sits
down at a computer terminal on campus—but
users need not check their UT email from UT
network computers, because they can access
the email server remotely. Nonetheless, status
as an “Internet Access Provider” does not ap-
pear to turn on the fraction of access conduct-
ed remotely, and we are hard-pressed to find
that providing email accounts and email access
does not bring UT within the statutory de-
finition borrowed from the Internet Tax Free-
dom Act.13 We therefore decide that UT falls
within the ambit of § 7707(c).
D.
We analyze this issue using a Venn dia-
gram,14 the intersecting area of which Con-
gress did not anticipate—where the state entity
is itself the provider of Internet access. In that
area resides activity that Congress has both
expressly preempted and expressly excepted
from preemption analysis. Such tension,
created by the text of the statute, leaves us
unwilling to overrule the strong presumption
against preemption. The Regents Rules are
valid under the Supremacy Clause.
III.
A.
White Buffalo contends that the district
court erred in granting summary judgment on
12 In a related passage, the district court stated
that “the Board of [Regents] Rules governing so-
licitation using university facilities cannot be said
to be specific to electronic mail since it regulates
all forms of solicitation.” We need not decide this
issue, because we have alternate grounds of making
our preemption decision.
13 It would be an unusual policy to allow pri-
vate, but not public, educational institutions to act
as custodians for the interests of its online com-
munity. The prudence of the policy, however, does
not drive our determination that UT should be
considered an Internet Access Provider under the
Act.
14 A Venn diagram uses circles to represent sets,
with the position and overlap of the circles in-
dicating the relationships between the sets.

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its First Amendment claim. Whether UT has
violated White Buffalo’s First Amendment
rights turns on the resolution of the four-part
commercial speech test in Central Hudson Gas
& Electric Corp. v. Public Service Com-
mission, 447 U.S. 557 (1980). We review
First Amendment determinations under the
commercial speech doctrine de novo. See
Moore v. Morales, 63 F.3d 358, 361 (5th Cir.
1995). Resolving this issue in favor of UT, we
decline to reach the issue of whether UT’s
email servers constitute public fora.15
B.
Commercial speech is “expression related
solely to the economic interests of the speaker
and its audience.” Central Hudson, 447 U.S.
at 561. No one seriously disputes the com-
mercial character of the speech at issue here.
In Central Hudson, the Court invalidated
portions of state regulations banning commer-
cial advertising that promoted the use of elec-
tricity. See id. at 572. The Court determined
that the government’s action was more exten-
sive than necessary to promote the state’s sub-
stantial interest in energy conservation. Id. at
569-70. In so doing, the Court announced a
four-part test to evaluate the legality of com-
mercial speech regulation: (1) whether the
speech is unlawful or misleading; (2) whether
the government’s expressed interest is sub-
stantial; (3) whether the state action directly
promotes that interest; and (4) whether the
state action is more extensive than necessary
to promote that interest. See id. at 566.
1.
Under the first Central Hudson prong, we
must determine whether the speech is unlawful
or misleading. See id. Both parties agree that
White Buffalo’s commercial solicitations are
legal and that they contain factually accurate
information.
2.
Under the second Central Hudson prong
we must assess the “substantiality” of the gov-
ernment’s proffered interests. See id. UT ad-
vances two primary interests: (1) safeguarding
the time and interests of those with UT email
accounts (“user efficiency”) and (2) protecting
the efficiency of its networks and servers
(“server efficiency”). We distinguish between
the two interests for reasons that are important
under the fourth prong of the Central Hudson
analysis.
For purposes of evaluating the summary
judgment, we acknowledge as substantial the
government’s gatekeeping interest in protect-
ing users of its email network from the hassle
associated with unwanted spam. Also substan-
tial is the “server efficiency” interest, but it
must independently satisfy a “goodness of fit”
inquiry under the fourth prong of Central
Hudson. “Suffer the servers” is among the
most chronically over-used and under-substan-
tiated interests asserted by parties (both
government and private ones)16 involved in
15 In other words, we consider two hypothetical
situations: one in which the UT servers are public
fora, and one in which they are not. If the servers
are not, then the First Amendment question is eas-
ily resolved—if a server is a private forum, the
government may regulate the speech so long as it is
viewpoint-neutral. In the alternative, if a server is
a public forum, we apply Central Hudson. If we
determine that this particular regulation would
satisfy either situation, we need not resolve the
dicey but admittedly important question of the pub-
lic versus private forum status of public university
email servers.
16 The opinion in eBay, Inc. v. Bidder’s Edge,
(continued...)

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9
Internet litigation, and rules imposed pursuant
to such interests require more than a judicial
rubber-stamp, for reasons we explain in part
III.B.4.b, infra.
3.
Pursuant to the third Central Hudson
prong, we must next determine whether the
UT policy directly advances both proffered
substantial interests: (1) UT’s interest in sani-
tizing the network for its email account-hold-
ers (user efficiency) and (2) its interest in
preserving the operating efficiency of its serv-
ers (server efficiency). See id. at 569. Again,
there can be no serious dispute that UT’s anti-
spam policy, which blocks specific incoming
commercial spam after account-holders have
complained about it, directly advances both in-
terests. One can hardly imagine a more direct
means of preventing commercial spam from
appearing in account-holders’ inboxes and
occupying server space than promulgating a
policy that excludes such material from the
email network.17
4.
Having resolved the first three Central
Hudson questions in UT’s favor, we must
finally conduct the most difficult in-
quiry—whether the ITC policy is no more ex-
tensive than necessary to achieve at least one
of the two substantial state interests. See id. at
569-70.18 White Buffalo contends that UT’s
anti-spam policy fails to meet this final re-
quirement, although White Buffalo’s precise
objection is hard to discern. It appears to pro-
test the over-restrictiveness of the policy on
the ground that it is impossible to articulate
precisely what the UT regulation is.
To the contrary, UT (relying on the district
court’s disposition of the issue) reasons that
the policy is narrowly and specifically drawn to
protect the system and users from only those
unsolicited, commercial emails that have been
identified as problematic by complaint, system
monitors, or other means. The restriction is
tailored by blocking only those emails from
specifically identified ISP addresses. Although
we may not agree with all of UT’s char-
acterizations of its policy, we are aware of
what that policy is. White Buffalo’s objection
in this regard is without merit.
a.
With respect to the first proffered substan-
tial state interest, which is promoting user ef-
ficiency,19 the ITC policy is no more extensive
than necessary. We have little problem affirm-
ing the proposition that, to keep community
16(...continued)
Inc., 100 F. Supp. 2d 1058 (N.D. Cal.2000), is one
of the first and perhaps the most conspicuous in-
stance of this rationale. The eBay court held, on a
trespass to chattels theory, that if the defendants
crawling “activity is allowed to continue un-
checked, it would encourage other auction aggre-
gators to engage in similar recursive searching of
the eBay system such that eBay would suffer ir-
reparable harm from reduced system performance,
system unavailability, or data losses.” Id. at 1066.
See also note 25, infra.
17 Neither party provides caselaw in support of
its position on the question of substantial interest.
The district court relied on extensive comments in
the Senate Report offered in support of the
CAN-SPAM Act.
18 For an explanation as to why only one sub-
stantial interest need be satisfied, see part III.C,
infra.
19 By “user efficiency” we mean the ability of
UT email account holders to go about their daily
business without constantly having to identify and
delete unwanted commercial spam.

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10
members from wasting time identifying,
deleting, and blocking unwanted spam, UT
may block otherwise lawful commercial spam
(as long as the blocks are content- and
viewpoint-neutral).20
b.
We reject, however, the proposition that
the ITC policy is no more extensive than nec-
essary to secure the state’s second substantial
interest, which is the efficiency of its servers.21
One might persuasively present evidence that
that spam, taken in its entirety, affects the
efficiency of email servers; indeed, that
appears to be what UT has proffered; it sub-
mits a list of between 1,500 and 2,000 blocked
IP addresses.22 Updegrove testified at the May
2003 Preliminary Injunction hearing that UT’s
“system” would not be able to function with-
out these blocks. Such testimony is common
where server efficiency is offered as a state or
private interest in Internet litigation.
We must nonetheless consider the evidence
in the light most favorable to the nonmovant.
See Ford Motor Co., 264 F.3d at 498. More-
over, the challenged regulation should indicate
that its proponent “carefully calculated the
costs and benefits associated with the burden
on speech imposed by its prohibition.” Cin-
20 UT Vice President of Information Technology
Daniel Updegrove testified at the May 20, 2003,
preliminary injunction hearing:
[A]t a minimum there’s the time it takes to
configure an e-mail filter, running the risk that
legitimate messages will be filtered erroneously
or one by one deleting the offending messages.
And there’s an ongoing question of how much
of this message you have to actually encounter
in order to decide that it’s spam.
He furthered affirmed that if UT “wasn’t allowed
to block or was somehow required under the Con-
stitution to unblock these 1700 some odd sites, that
it would severely degrade an employee’s ability to
do their job[.]”
21 This “poor fit” could be rephrased as an ob-
jection under several other Central Hudson prongs.
For example, the Supreme Court has made a
similar analysis under the third prong. In Greater
New Orleans Broadcasting Ass’n, Inc. v. United
States, 527 U.S. 173, 188 (1999), the Court stated:
The third part of the Central Hudson test
asks whether the speech restriction directly and
materially advances the asserted governmental
interest. This burden is not satisfied by mere
speculation or conjecture; rather, a govern-
mental body seeking to sustain a restriction on
commercial speech must demonstrate that the
(continued...)
21(...continued)
harms it recites are real and that its restriction
will in fact alleviate them to a material degree.
Consequently, the regulation may not be
susta ined if it provides only ineffective or
remote support for the government’s purpose.
We have observed that this requirement is
critical; otherwise, a State could with ease re-
strict commercial speech in the service of other
objectives that could not themselves justify a
burden on commercial expression.
(Internal citations and quotation marks omitted.)
The prong under which we make our observations
matters little for Central Hudson analysis, how-
ever, because the Supreme Court has stated that
“[a]ll are important and, to a certain extent, inter-
related: Each raises a relevant question that may
not be dispositive to the First Amendment inquiry,
but the answer to which may inform a judgment
concerning the other three.” Id. at 183.
22 This information is contained in Exhibit 4.
There are two constituent lists—one of blocks by
host address and one of blocks by IP address.

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11
cinnati v. Discovery Network, Inc., 507 U.S.
410, 417 (1993) (internal citations and quo-
tations omitted).
There is record testimony that White Buf-
falo can send a restricted volume of email at
off-peak times, so as not to impede server
efficiency. Moreover, UT’s list of blocked IP
addresses does not make any of the types of
distinctions that Congress obviously thought
important—distinctions between, say,
(1) truthful commercial messages and obscene
images, (2) commercial messages with an un-
subscribe feature and commercial messages
without one, (3) emails sent during peak traffic
times and those that are not, and (4) email that
originates from an authentic source and email
that does not. The rub is that although the
record demonstrates that unblocking all spam
might compromise network efficiency, it says
nothing about the effects of allowing lawful
time- and volume-restricted commercial spam
to enter UT’s email network.
An exchange at the preliminary injunction
hearing between UT’s attorney and Updegrove
most vividly illustrates the poor fit between
UT’s restrictions and the substantial interest in
server efficiency:
Q: Well, [White Buffalo’s attorney] is say-
ing, well, “Hey, I can send this at night
when the employees aren’t there. I won’t
send too many at one time. It won’t affect
your system that much because of that.
Now, is there a reason why that’s not an
acceptable proposition.”
A: Well, if something is wrong, just be-
cause there’s a little bit of it doesn’t make
it right. If a university makes resources
available, misusing a little bit of those re-
sources isn’t correct.
For the server efficiency rationale to pass mus-
ter under the fourth prong of Central Hudson,
spam filters must block a set of spam that
poses a legitimate threat to server efficiency.
This is not to say that UT need draw gran-
ular distinctions between types of spam where
drawing them renders filtering economically
infeasible.23 It, however, is to say that where
UT may easily use certain types of fil-
ters—e.g., time of day and volume filters—UT
should use them rather than categorically
exclude all unsolicited commercial bulk email.
If those types of filters are economically
infeasible, that evidence should be in the
summary judgment record. The current record
reflects only that UT does not employ such
filters because legal spammers are subjectively
“misusing” the system, not because they are
overburdening it.
Our conclusion that, for summary judgment
purposes, there is an insufficient fit between
the ITC policy and the asserted interest in
server efficiency is of little moment in the
spam context. The server efficiency interest is
almost always coextensive with the user ef-
ficiency interest, and the fit is sufficient for the
latter; but declaring server integrity to be a
substantial interest without evidentiary sub-
stantiation might have unforseen and unde-
sirable ramifications in other online contexts.24
23 For example, as Updegrove testifies, it would
be impossible to filter spam based on whether the
originator of the email was a legitimate business.
The email filters could not automate this task.
24 This is no more than a cautionary note, the
importance of which has become more plain as a
result of our increasing familiarity with litigation
involving the Internet. For example, in the many of
the “digital trespass” cases, where a plaintiff bases
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12
C.
A governmental entity may assert that a
statute serves multiple interests, and only one
of those need be substantial. See Bolger v.
Youngs Drug Prods. Corp., 463 U.S. 60,
71-73 (1983). The ITC policy survives First
Amendment scrutiny despite its failure to jus-
tify that policy in relationship to the server
efficiency interest. We therefore decide that
24(...continued)
a trespass to chattels theory on a defendant’s
unauthorized use of a network/computer system,
the court will merely conclude, without evidence or
explanation, that the allegedly unauthorized use
burdened the system.
One of the most prominent such statements
occurs in Compuserve v. Cyber Promotions, Inc.,
962 F. Supp. 1015, 1022 (S.D. Ohio 1997) (“To
the extent that defendants’ multitudinous electronic
mailings demand the disk space and drain the
processing power of plaintiff’s computer
equipment, those resources are not available to
serve CompuServe subscribers. Therefore, the
value of that equipment to CompuServe is dimin-
ished even though it is not physically damaged by
defendants' conduct.”). Many courts mention sys-
tem degradation and perfunctorily cite Compu-
serve, but focus primarily on things such as decline
in customer goodwill, worker productivity, and the
like. See, e.g., Am. Online, Inc. v. IMS, 24 F.
Supp. 2d 548, 550 (E.D. Va. 1998) (“[Plaintiff’s]
contact with [Defendant’s] computer network was
unauthorized; and [Plaintiff’s] contact with
[Defendant’s] computer network injured [De-
fendant’s] business goodwill and diminished the
value of its possessory interest in its computer
network.”); Am. Online, Inc. v. LCGM, Inc., 46 F.
Supp. 2d 444, 452 (E.D. Va. 1998) (citing Compu-
serve language).
Since eBay was issued, however, courts have
become a little more circumspect about using the
“slippery slope” argument. See Ticketmaster
Corp. v. Tickets.com, Inc., 2003 WL 21406289
(C.D. Cal. Mar. 7, 2003) (“Since the spider does
not cause physical injury to the chattel, there must
be some evidence that the use or utility of the com-
puter (or computer network) being ‘spiderized’ is
adversely affected by the use of the spider. No
such evidence is presented here. This court re-
spectfully disagrees with other district courts’ find-
ing that mere use of a spider to enter a publicly
(continued...)
24(...continued)
available web site to gather information, without
more, is sufficient to fulfill the harm requirement
for trespass to chattels.”).
This rationale, with little to no evidentiary sub-
stantiation, has likewise justified claims under the
Computer Fraud and Abuse Act (“CFAA”), 18
U.S.C. § 1030. See, e.g., Hotmail Corp. v. Van$
Money Pie, Inc., 1998 WL 388389, ¶ 34 (N.D.
Cal. Apr. 16, 1998) (unpublished) (“The evidence
supports a finding that plaintiff will likely prevail
on its [CFAA] claim and that there are at least
serious questions going to the merits of this claim
in that plaintiff [including] that defendants took
such actions [utilizing system capacity] knowing
the risks caused thereby to Hotmail’s computer
system and online services, which include risks that
Hotmail would be forced to withhold or delay the
use of computer services to its legitimate sub-
scribers; that defendants’ actions caused damage to
Hotmail; and that such actions were done by
defendants without Hotmail’s authorization.”). In-
terestingly, the court conducting the most thorough
inquiry into actual system damage did so in the
process of declaring the issue to be one of triable
fact, precluding summary review. See Am. Online,
Inc. v. Nat’l Health Care Discount, Inc., 121 F.
Supp. 2d 1255, 1275 (N.D. Iowa 2000). Even in
the CFAA context, however, courts rely on the
“loss” rather than the “damage” language in the
statute. See, e.g. EF Cultural Travel BV v.
Explorica, Inc., 274 F.3d 577, 585 (1st Cir. 2001),
a maneuver that almost mirrors courts’ tendency to
favor the server efficiency interest in name but the
user efficiency interest in substance.

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13
UT’s anti-spam policy is constitutionally per-
missible under Central Hudson. Because we
so decide, we need not address what type of
First Amendment forum a public university
email network constitutes.
The summary judgment is AFFIRMED.

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