The Virginia Supreme Court overturned the state’s “anti-spam” law, enacted in 2003, to prevent the sending of masses of unwanted e-mail, because it violated the First Amendment right to freedom of speech.
The ruling, comes from the criminal prosecution of Jeremy Jaynes of Raleigh, N.C, who has been characterized as one of the world’s top 10 most prolific spammers.
Mr. Jaynes who was the first person ever tried and under the law, was convicted in 2004, of sending tens of thousands of e-mails through AOL servers which are located in Virgina.
Mr. Jaynes was sentenced to nine years in prison.
Virginia’s anti-spam law makes it a misdemeanor to send unsolicited bulk e-mail by using false transmission information, such as a phony domain name or Internet protocol address.
However the crime becomes a felony, if more than 10,000 recipients are mailed in a 24-hour period.
In overturning the law the court said:
“”in order to send an anonymous e-mail, the sender must enter a false IP address or domain name. The right to engage in anonymous speech, particularly anonymous political or religious speech, is an aspect of the freedom of speech protected by the First Amendment”.
“By prohibiting false routing information in the dissemination of e-mails… the Virginia law infringes on that protected right.”
“That statute is unconstitutionally overbroad on its face,” because it prohibits the anonymous transmission of all unsolicited bulk e-mails including those containing political, religious or other speech protected by the First Amendment to the United State Constitution.”
The court suggested that the law might have been upheld if it limited its restrictions on spam to commercial or fraudulent e-mail, or to unprotected speech such as pornography or defamation.
It’s an interesting yet confusing ruling.
The ruling is even more interesting because this same court upheld the law and the conviction by a 4-3 vote just six months ago. This ruling coming on a motion to reconsider, now was unanimous.
As someone who has been victimized by spammers faking headers of tons of spam with one or more of our domain names, or using our domains in the removal address of the fraudulent spam, I personally am not happy with the result.
Your thoughts
This can’t be good, and it’s a bad sign that laws (or decisions about them) become absurdities. How can spam be considered free speech? If I dump 20,000 pamphlets at someone’s doorstep or inside their mailbox, is that free speech too? Would the case have come out the same way if the judges had been ever been seriously spammed or had to clean up after spam? There’s legal and there’s stupid.
At first I thought it was insane (the ruling) but I think I get it now. They’re saying make the law better. It would work to cut down spam, but overly broad laws can have dangerous potentialities that my at first go unseen. I know it’s counter-intuitive to think of spam as free speech, but (as I read it) this ruling is saying that the law creates a precedent of banning anonymous electronic communications. In this case it’s spam, but the broad language may endanger other forms of anonymous electronic communication (blog comments?) that we are more fond of.
What irks me is, doesn’t this mean the spammer can’t be tried again for his actions? Free speech or no, he should get a kick in the balls at least.
Great response – Nice post
The Defense Appellate Brief must have been pretty damn convincing and have made a terrific argument as to the constitutionality of the Virginia law in order to get a state Supreme Court to reverse itself UNANIMOUSLY. Many laws, like the Patriot Act and others are so overly broad as to make them unconstitutional in their broad sweep in trying to correct a bad situation. That seems to be the case here.
I believe Howard is correct in that the law was too broad. The damage done by spammers also includes the transmission of that email which cost the owners of those servers billions of dollars each year to move them through the pipes. Through-put is costly and this is akin to someone using your stamps to send their letters. How Jeremy Jaynes was not charged with grand theft is beyond me.
Jeremy, I also agree with you on that it wouldn’t be beneficial to enact an overly broad law to address a specific issue. I guess there’s the issue of spam and there’s the issue of the hammer being too big. Oh well, I just hope spam has its day in court… hopefully sooner rather than later. Jaynes got lucky. Bring on the next spammer!