Deliver this constitutionally flawed junk-mail bill to the trash bin
We all experience the annoyance of grabbing the day’s mail only to find stacks of unwanted grocery store flyers, unsolicited magazines, prize drawings and offers for credit cards or home-equity loans. Junk mail must appeal to some consumers, or companies wouldn’t spend millions of dollars sending it to our mailboxes. But many people are fed up with the endless reams of unwanted paper.
So it’s easy to understand the motivation behind Assembly Bill 2021 by Republican Assemblyman Marc Steinorth of Rancho Cucamonga. The bill, which would require the state government to create a “do not contact” list, presumably would reduce this mail-sorting hassle. It may also be good for the environment, as it would reduce the amount of paper products that instantly go into household trash or recycle bins.
Nevertheless, not every one of life’s minor inconveniences require a legislative response – especially responses so ill-conceived that they are likely to be mired in years of federal lawsuits. Ads for new air-conditioning systems might not be what the Founding Fathers had in mind when they crafted the First Amendment, but any law that puts limits on who may send what to whom undoubtedly raises free-speech concerns.
Then there’s the issue of interstate commerce. The Commerce Clause grants Congress the right to “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The bill makes no distinctions between mail coming from California and from elsewhere, so enforcement of junk-mail rules would almost certainly fall afoul of this precept. It’s hard to imagine a California law stopping the U.S. Postal Service from delivering advertisements from out-of-state mailers without erecting some barrier to trade between states.
AB 2021’s carve-outs for local small businesses only make interstate commerce-conflicts more prominent because the bill preferences California mailers over those from other states that don’t get the same exemption. Yuma, Ariz., mailers will face different rules than their peers in the Imperial Valley. Administering and policing who may and may not advertise in which places could prove challenging at best and arbitrary at worst.
Moreover, private individuals already can take steps to cut down on the amount of unwanted mail they receive without the creation of a new government body. For instance, those who receive unwanted mail may refuse it by simply scrawling on it, “Refused: return to sender” and leaving it for their mail carrier. Businesses don’t want to waste money sending unwanted materials, so the first step to cutting down on these letters is telling the mailers one doesn’t value their product. Those truly bothered by unwanted catalogs or credit-card offers can typically opt out with simple website visits or by calling or writing the companies that send them.
The bill will also likely trigger some unwanted consequences. It might stop much of the perceived junk mail – at least until advertisers find a way around the rules – but some consumers could miss out on potentially valuable offers. Important mail pieces may never arrive after they are mistakenly tagged as unwanted. Whatever the practical concerns, however, the constitutional ones are pre-eminent. It’s just not worth opening this can of worms.
Junk mail is not a uniform, all-encompassing product. Mail that is unwanted and deemed “junk” to some may be valuable to others. Commercial speech, like mail advertisements, helps consumers make informed decisions about which products to buy, when and from whom. A “do not contact” list for mailers has great potential to get in the way of otherwise-protected commercial speech. Whether this crosses any constitutional line would be up to the courts, but it’s unwise to pass a bill that would almost certainly lead to extensive litigation.
The best way forward on junk mail and most other commerce issues is to allow consumers and the industry to work out the problem without state intervention. In this case, the best approach is to simply throw unwanted mailers in the trash or use it to line the bird cage – which just happens to be the same place this bill should go.
