Court Doesn't Like Spam, But Will Defend Right To E-Mail It

Anti-spam legislation around the country could face significant challenges on First Amendment grounds following a ruling issued Friday by the Virginia Supreme Court to strike down the state's anti-spam law.

After hearing a second appeal by Jeremy Jaynes, who was convicted under the state's anti-spam law in 2004, a decision that was upheld by the state's Supreme Court six months ago, the court on Friday reversed its earlier ruling. In striking down the anti-spam law, Justice G. Steven Agee wrote that the law "infringes on that protected right" to "engage in anonymous speech, particularly anonymous political or religious speech" that is enshrined in the First Amendment of the United States Constitution.

The law, which defines both misdemeanor and felony spamming, was enacted in 2003. In 2004, Jaynes became the first person to be tried under the law and was convicted of felony spamming for sending unsolicited e-mails in a 24-hour period to more than 10,000 recipients using false transmission information.

Jaynes used American Online servers based in Virginia's Loudoun County as part of his bulk e-mail operation. While that practice violated the anti-spam law's prohibition against using false transmission information, the court ruled that sending anonymous e-mails was protected under the First Amendment and further, deemed it functionally impossible to do so without using a false IP address or domain name.

The court, besides noting that Virginia's anti-spam law could not stand as currently written, further ruled that the statute could not be rewritten so as to make it constitutional.

"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 States Constitution," the ruling stated.

Agee's opinion also made a comparison to anonymously written political speech that helped shape the legal structure of the U.S. at its founding, suggesting that "were the 'Federalist Papers' just being published today via e-mail, that transmission by Publius would violate the statute."

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