On September 12, 2008, the Virginia Supreme Court struck down the state’s anti-spam law as unconstitutional, holding that the law was an overly broad restriction of free speech protected by the First Amendment. In doing so, the court overturned the conviction of 34-year-old Jeremy Jaynes, who had been convicted on three counts of violating Virginia’s Computer Crimes Act in 2004, and sentenced to nine years in prison. At the time, Jaynes was rated the world’s eighth most prolific spammer by the Register of Known Spam Operations, which collects information and evidence on known professional spam operations. Jaynes was the first person in the U.S. to be convicted of a felony for sending unsolicited bulk email, and was accused of sending up to 10 million email messages a day from his home.

Although Jaynes’ emails were commercial in nature, he successfully argued on appeal that the law itself was unconstitutional because it restricted all unsolicited email, including political and religious speech protected by the First Amendment. The statute also prohibited the falsification of email transmission or routing information which could hide a sender’s identity. Such a prohibition effectively restricts anonymous speech, which is also protected by the First Amendment.

In its decision, the Virginia Supreme Court applied strict scrutiny review when examining the validity of the state statute. The court considered the statute to be one that restricts “core political speech,” and thus was presumptively invalid. The court emphasized that the law was not “limited to commercial or instances of fraudulent transmission of e-mail, nor is it restricted to transmission of illegal or otherwise unprotected speech such as pornography or defamation speech.”

The court also noted that while many states have passed laws restricting the transmission of spam, all states besides Virginia only restrict commercial messages. Similarly, the federal CAN-SPAM Act of 2003, which includes penalties for unsolicited bulk email, is limited in scope to commercial messages or advertisements. While the transmission of commercial emails is still illegal in Virginia under the CAN-SPAM Act, the statute does not apply to Jaynes because it was adopted after he sent the emails that were the basis for the charges.

Virginia Attorney General Bob McDonnell was “deeply disappointed” by the ruling, and vowed to take the issue to the U.S. Supreme Court. Lawyers for the state argued that the First Amendment was inapplicable, and that the issue was not about free speech but instead about fraud. They insisted that Jaynes’ conviction should be affirmed as a violation of state trespass laws because of his abuse of privately owned email servers.

This case presents the question of whether free (non-commercial) speech in the form of spam would ever be prohibited. Though free speech is a revered right in American society, ownership and possession of private property is an equally fundamental tenet. When free speech goes to the extent of invading private property, such as your computer, it is at least arguable that sometimes the property, rather than the speech, should be protected. However, until the U.S. Supreme Court issues such a ruling, it seems that courts will continue to focus on the First Amendment issues at stake.

Rachel Friedman

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