Final Victory For Anti-Spam Entrepreneur

Spammers beware: IJ client and anti-junk-mail crusader Jay Fink is back in business—for good. 

For more than a decade, Jay helped Californians declutter their inboxes and hold deceptive email spammers accountable. He accomplished this by sorting through mountains of his clients’ virtual junk mail and identifying misleading messages that might violate the law. 

California should have commended Jay for helping consumers. Instead, it shut his business down. Why? Because, according to state bureaucrats, only licensed private investigators could hunt for deceptive spam in other people’s email accounts. To get a PI license, Jay would have had to spend 6,000 hours training in fields like arson investigation, law enforcement, or insurance adjustment—none of which has the least bit to do with identifying spurious junk mail.

Jay knows it doesn’t take three years of full-time training as a private investigator to do his job. So, with a little help from IJ, he challenged the licensing requirement in federal court. We also asked the court to issue a preliminary injunction—an order that prevents the government from enforcing a challenged law while the case is ongoing. 

In March, the judge granted the injunction so Jay could continue working. This was, to put it lightly, a big deal. To issue the injunction, the judge had to find that Jay was likely to succeed in proving that California’s licensing requirement violated his constitutional rights. But because the court determined that the licensing requirement is an economic regulation, it reviewed the law under the painfully deferential “rational basis” test. 

IJ has fought (and won) a variety of cases under the rational basis test, but one thing never changes: The government always argues that the test is just a rubber stamp for even the most blatantly absurd and protectionist regulations. Unfortunately, courts often take the bait.   

In Jay’s case, however, the judge saw through California’s paper-thin attempts to justify this licensing law. She instead ruled that there was likely no constitutional justification for forcing Jay to endure 6,000 hours of irrelevant training before he could read his clients’ emails. 

Once the court held that the licensing requirement likely violated Jay’s right to earn a living, something unbelievable happened: California agreed. Just months after the court issued its preliminary injunction, California and IJ jointly petitioned the court to make the injunction permanent and enter final judgment in Jay’s favor. 

In other words, after Jay’s first-round victory, California saw the writing on the wall and asked the court to rule against it. And in July, the court obliged, permanently barring California from enforcing its private investigator laws against Jay for cataloguing his clients’ emails.

Preliminary injunctions in rational basis cases are rare. Joint motions with the government to make those injunctions permanent are almost unheard of. Now other people burdened by senseless economic regulations can point to Jay’s victory to help protect their own right to earn an honest living.

IJ will continue to fight irrational licensing laws across the country. The government won’t always throw in the towel—but we won’t give up either. As Jay’s case shows, regulators can’t force people to undergo thousands of hours of unnecessary training just to pursue their vocation of choice.

Dylan Moore is an IJ attorney.