Virginia high court finds anti-spam law unconstitutional

[JURIST] The Virginia Supreme Court [official website] has struck down [opinion, PDF] as unconstitutional a state law [text] criminalizing the production of falsified, unsolicited bulk e-mail. The court on Friday vacated the conviction of prominent spammer Jeremy Jaynes, and held that the statute is substantially overbroad because it "prohibits the anonymous transmission of all unsolicited bulk e-mails including those containing political, religious or other speech," in addition to commercial messages. The court analyzed the anti-spam law using strict scrutiny after rejecting a lower court's characterization [JURIST report] of it as a trespass statute, to which First Amendment [text and ALA materials] protections would not apply:

As shown by the record, because e-mail transmission protocol requires entry of an IP address and domain name for the sender, the only way such a speaker can publish an anonymous e-mail is to enter a false IP address or domain name. Therefore, like the registration record on file in the mayor’s office identifying persons who chose to canvass private neighborhoods in Watchtower Bible & Tract Society v. Village of Stratton ... registered IP addresses and domain names discoverable through searchable data bases and registration documents “necessarily result[] in a surrender of [the speaker’s] anonymity." ... 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, Code § 18.2-152.3:1 infringes on that protected right. The [U.S.] Supreme Court has characterized regulations prohibiting such anonymous speech as "a direct regulation of the content of speech."
The court noted that "were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute." AP has more. The Washington Post has additional coverage.

Jaynes was convicted in 2004 and sentenced [JURIST report] to nine years in prison after sending more than 10,000 e-mails over a 24-hour period to subscribers of America Online (AOL) [corporate website], which is headquartered in Virginia [JURIST news archive]. He was the first person in the United States convicted of a felony for spamming [JURIST news archive]. The Virginia Court of Appeals [official website] rejected his arguments that the statute was unconstitutionally vague and that it violated the so-called Dormant Commerce Clause. The Virginia Supreme Court upheld his conviction [opinion, PDF; JURIST report], finding the statute was not unconstitutional as applied to Jaynes, but later withdrew its opinion [order, PDF] and granted Jaynes' petition for rehearing, allowing him to challenge the statute on its face.

 

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