September 14th, 2008
Va. decision knocking down antispam law strikes blow for First Amendment
The comments so far on the Virginia Supreme Court’s invalidation of a state antispam law have been uniformly negative. One commenter, for instance, advocated spamming the opinion’s author, Justice G. Steven Agee (now on the federal bench).
If he gets enough spam maybe he will see this in a different light. Then again he probably is a non computer user and has no email. Seems like most who try to decide the fate of new technology have no idea of what they are ruling on and do it randomly. Until they are affected by it and learn the effects on the public they are unable to effectively make a ruling that is correct.
Folks, as unpleasant as spam is – and as unpleasant as it is to see Jeremy Jaynes escape punishment (he sent 12,197 spams on 7/16/03, 24,172 on 7/19/03 and 19.104 on 7/26/03) – simply put, the First Amendment is more important. So let me walk through the decision to put this is perspective.
The lower court avoided the First Amendment issue by finding that the statute, which makes it a misdemeanor to “falsify or forge electronic mail transmission … in connection with the transmission of unsolicited bulk electronic mail …” Doing so to 10,000 or more recipients in a 24-hour period makes it a felony.
Moving past the standing issue, the fundamental question was whether this law was unconstitutionally overbroad in violation of the First Amendment. The problem is really quite simple. The law does not limit its effect to commerical speech (spam, as we have come to know and love it); it includes all anonymous, mailed email.
The right to anonymous speech is fundamental to free speech, the court said. Anonymous speech is “an aspect of the freedom of speech protected by the First Amendment.” (McIntyre v. Ohio Elections Comm’n, 514 US 334, 342 (1995.)) Prohibiting anonymous, protected speech is “a direct regulation of the content of speech,” the Supreme Court said in that case.
It’s not enough, though, that there be some potential protected speech. The Supreme Court has held there must be “substantial overbreadth” to invalidate the statute. The state supreme court found it clear that the violation would be substantial:
[The statute] would prohibit all bulk email containing anonymous political, religious or other expressive speech. For example, were the Federalist Papers just being published today via email, that transmission would violate the statute….
I’m not quite sure about this analogy (unless it were mailed out to thousands of people who didn’t request it) but the point is that there are myriad instances where anonymous speech is crucial to free speech. In the age of the Patriot Act, NSA surveillance, etc., legitimate public speech may require anonymous messaging to people who didn’t ask to receive messages. Imagine a law that said no political speech that can’t be traced. Consider the UN proposal to make anonymity impossible. Do we really want to remove the right to anonymous speech online?
Clearly not. And we don’t need to. The Virginia assembly just needs to fix this law by inserting the word “commercial.” This is just a case of shoddy draftsmanship. First Amendment protected. Unfortunately, Jaynes can’t be prosecuted under the current law. But he can be under a new law.
Unless the U.S. Supreme Court feels differently.
