Va. Supreme Court Strikes Down State's Anti-Spam Law

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The Virginia Supreme Court today invalidated the state's "anti-spam" law, designed to prevent the sending of masses of unwanted e-mail, by saying the law broadly violated the First Amendment right to freedom of speech, in particular anonymous speech.
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The ruling, arising from the Loudoun County criminal prosecution of Jeremy Jaynes of Raleigh, N.C., was also remarkable because the Supreme Court reversed itself: Just six months ago, the same court upheld the anti-spam law by a 4-3 margin. But Jaynes's attorneys asked the court to reconsider, typically a long shot in appellate law, and the court not only reconsidered but changed its mind.

Jaynes was convicted in 2004 of sending tens of thousands of e-mails through America Online servers in Loudoun. He was the first person tried under the law, enacted in 2003, and Loudoun Circuit Court Judge Thomas D. Horne sentenced him to nine years in prison.

But Horne allowed Jaynes to remain free, even as his appeals were heard first by the state Court of Appeals, which rejected them, and then by the state Supreme Court.

Today's ruling was written by Justice G. Steven Agee, who participated in the rehearing but has since retired. There were no dissenters.

Virginia's anti-spam law makes it a misdemeanor to send unsolicited bulk e-mail by using false transmission information, such as a phony domain name or Internet protocol address. The domain name is the name of the Internet host or account, such as "aol.com." The Internet protocol is a series of numbers, separated by periods, assigned to specific computers.

The crime becomes a felony if more than 10,000 recipients are mailed in a 24-hour period.

Agee noted that in order to send an anonymous e-mail, the sender must "enter a false IP address or domain name." And "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," Agee wrote, citing a 1995 U.S. Supreme Court opinion.
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"By prohibiting false routing information in the dissemination of e-mails," Agee wrote, the Virginia law "infringes on that protected right."

The court noted that "were the 'Federalist Papers' just being published today via e-mail, that transmission by Publius would violate the [current Virginia] statute."

The court suggested that the law does not limit its restrictions on spam to commercial or fraudulent e-mail, or to unprotected speech such as pornography or defamation. And when the state suggested that the court merely tailor a restriction to the law within its opinion, the court declined.

"A statute cannot be rewritten to bring it within constitutional requirements," Agee wrote.

"That statute is unconstitutionally overbroad on its face," the ruling concludes, "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 State Constitution."

Jaynes's e-mails were advertising products to help pick stocks, erase one's Internet search history and obtain refunds from FedEx, and contained hyperlinks within the e-mail redirecting the recipient to those businesses. He has been characterized as one of the world's most prolific spammers.