## Facts

- Jason Heckel, an Oregon resident doing business as “Natural Instincts,” marketed a 46-page online booklet, “How to Profit from the Internet,” priced at $39.95.
- From June to October 1998, Heckel sent between 100,000 and 1,000,000 unsolicited commercial emails per week.
- The emails used subject lines such as “Did I get the right e-mail address?” and “For your review–HANDS OFF!” while the body promoted the booklet.
- Complaints asserted that the subject lines were unrelated to the advertised product and that the emails used misleading routing information and/or unauthorized third-party domain names.
- Washington’s Commercial Electronic Mail Act (CEMA) targets misrepresentation in the subject line or transmission path of unsolicited commercial email and unauthorized use of another’s domain name; it applies when sent from Washington or to an address the sender knows or has reason to know is held by a Washington resident.
- The Washington Attorney General notified Heckel of CEMA’s requirements by letter and follow-up communication, but he continued sending the messages.
- Heckel made sales to Washington residents, including cashing at least one check from a Washington address in response to the emails.
- After the Washington Supreme Court upheld CEMA against a facial dormant Commerce Clause challenge and remanded, the trial court granted the State partial summary judgment, entered an injunction, assessed civil penalties, and awarded attorney’s fees and costs.

## Issues

1. Whether the State established, for summary judgment purposes, that Heckel knew or had reason to know his emails were sent to addresses held by Washington residents as required by CEMA.
2. Whether applying CEMA to Heckel’s conduct violated the dormant Commerce Clause as applied.
3. Whether CEMA’s restrictions on Heckel’s subject lines and routing/domain practices violated the First Amendment protection for commercial speech or presented factual disputes precluding summary judgment.

## Decision

- The Court of Appeals affirmed the summary judgment and decree for the State.
- The court held the record showed Heckel had reason to know Washington residents received his emails, satisfying CEMA’s Washington-recipient nexus.
- The court rejected the dormant Commerce Clause as-applied challenge because CEMA regulates deceptive email practices and imposes at most minimal burdens on interstate commerce.
- The court rejected the First Amendment challenge, concluding the challenged subject lines and transmission-path/domain practices were misleading commercial speech and therefore unprotected.

## Legal Principles

- A statute may impose liability for unsolicited commercial email sent to an address the sender “knows or has reason to know” is held by an in-state resident; “reason to know” may be shown by objective evidence, including notice from state enforcement authorities, recipient complaints, and sales to residents.
- State regulation directed at deceptive practices in commercial email (misleading subject lines, falsified routing information, or unauthorized third-party domain use) may be applied without violating the dormant Commerce Clause when the law is non-discriminatory and compliance does not require state-by-state tailoring beyond avoiding deception.
- Misleading commercial speech is not protected by the First Amendment; subject lines and routing/domain information that misrepresent the nature or source of an advertisement may be prohibited, and such determinations may be resolved on summary judgment when the material facts are undisputed.

## Conclusion

The court upheld Washington’s enforcement of CEMA against a bulk email marketer, finding adequate proof that he had reason to know Washington residents received the messages and holding that regulation of deceptive subject lines and routing/domain misrepresentations neither unduly burdened interstate commerce nor triggered First Amendment protection for misleading commercial speech.


State v. Heckel, 122 Wash. App. 60 (Wash. Ct. App. 2004)