March 3rd, 2008
In close First Amendment case, Virginia court upholds spammer conviction
What do geeks hate more than free speech restrictions? Spammers! Thus, anti-spam laws are an interesting collision. Spamming is clearly speech — albeit commercial speech. So are antispam laws constitutional?
The Virginia Supreme Court took that matter up in the case of Jeremy Jaynes, a particularly obnoxious spammer who was convicted under Virginia’s antispam law. Late Friday, the court affirmed his conviction, but narrowly, by a 4-3 decision (PDF). The sole issue of contention: whether the state antispam law violates the First Amendment. Given the vehemence of the dissent and the closeness of the vote, it’s not unlikely this case could wind up on the Supreme Court docket.
The facts: On three dates in July, he sent between 12,000 and 24,000 pieces of spam from his home in Raleigh, NC, via AOL (thus, his prosecution in Virginia). When the cops raided his home they found 176 million email addresses and 1.3 billion user names on a collection of CDs.
He was charged under Virginia’s antispam statute, which creates a “Class 1″ misdemeanor for anyone who:
Uses a computer or computer network with the intent to falsify or forge electronic mail transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk electronic mail through or into the computer network of an electronic mail service provider or its subscribers . . .
The law makes spamming a felony for sending more than 10,000 spams within 24 hours and Jaynes was convicted of felony spamming. (How’d you like to do time with the other felons and have to tell them you’re in for spamming? “Hey, spam boy!”)
Jaynes’ First Amendment contention was that the state law is overbroad, in that it could unconstitutionally abridge someone’s protected speech rights, even though he conceded that his spamming was not protected speech.
Jaynes contends that because the statute could potentially reach the protected speech of a third party, a hypothetical person neither charged with a crime nor before this Court, he (Jaynes) is entitled to claim exoneration for his unprotected commercial speech because Code § 18.2-152.3:1 could encompass an unknown individual’s potentially protected speech.
The threshold question was whether Jaynes even has standing (sufficient connection with the claim) to raise the First Amendment objection. The majority held he did not, and didn’t address the merits of the claim.
Since Jaynes conceded his spamming was not protected commercial speech, he was not directly affected by any flaws in the statute. Under any other provision of the constitution, that would knock his claim out cold. But First Amendment law is different: The Supreme Court permits “attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.” Dombrowski v. Pfister, 380 U.S. 479, 486, 1965).
Ah, but the majority said, the Supreme Court’s holding in Virginia v. Hicks clarified that this First Amendment standing rule only applies to federal courts and that states can create their own rules in this area. Looking at a number of state cases, the majority ruled that First Amendment standing is not available where the litigant’s speech was misleading.
No Virginia standing should be accorded a person to assert an overbreadth challenge when that person’s conduct consists of misleading commercial speech that is entitled to no First Amendment protection on its own merits.11 If we were to rule otherwise, a criminal defendant whose misleading commercial activities are clearly a crime and otherwise unprotected by the First Amendment gets an unrestricted invitation to apply for a “Get Out of Jail Free” card by merely pleading a hypothetical First Amendment infringement upon a hypothetical person not charged with a crime.
There was a vigorous dissent, however, which was troubled by denying standing when Internet speech is involved.
The current use of the Internet as the marketplace for expressing political ideas, views and positions emphasizes the need for insuring that use of this medium not be chilled by the threat of criminal prosecution. Those persons wishing to use this medium should have the same ability to express their views anonymously as did Thomas Paine during the founding of our country.
While the court’s decision may appear to be limited to those engaging is misleading, unprotected commercial speech, the dissent charged it is an “exception that swallows the rule.”
As a result of this decision, those who wish to
distribute their political views anonymously via the Internet must do so do under the threat of criminal prosecution and those who seek to challenge this statute or similar constitutionally suspect statutes must turn to the federal courts.
