Va. high court to reconsider state’s anti-spam law

By Larry O'Dell
Associated Press
Published: June 3, 2008

RICHMOND, Va. (AP) — Super-spammer Jeremy Jaynes doesn’t dispute that the millions of commercial e-mails he dumped on unsuspecting recipients are not entitled to First Amendment protection.

But what about folks spreading a religious or political message? Surely a Virginia anti-spam law that prohibits unsolicited bulk e-mail of that nature is unconstitutional, Jaynes argues.

The Virginia Supreme Court on Wednesday will reconsider whether Jaynes, once considered one of the world’s top 10 spammers, can essentially stand in as a crusader for the free speech rights of others. The court ruled 4-3 in February that Jaynes had no such standing.

At issue is Virginia’s anti-spam law, widely considered one of the nation’s toughest. Jaynes in 2004 became the first person in the nation convicted of a felony for sending unsolicited bulk e-mail, or spam. He was sentenced to nine years in prison but has been under house arrest while he appeals the conviction.

According to prosecutors, Jaynes used aliases and false Internet addresses to bombard Web users with junk e-mails peddling sham products and services. They presented evidence of 53,000 illegal e-mails Jaynes sent over three days in July 2003, but authorities believe he sent 10 million e-mails a day in an enterprise that grossed up to $750,000 per month.

Jaynes was charged in Virginia because the e-mails went through an AOL server in Loudoun County, where America Online is based.

Jaynes claims the Virginia law should be overturned because it restricts constitutionally protected speech as well as the profit-seeking e-mails he churned out from his home in Raleigh, N.C. The state Supreme Court ruled Jaynes had no legal right to make that claim because his own e-mails were not protected by the First Amendment, so the statute was clearly constitutional as it applied to him.

``Virginia does not accord standing to a person, such as Jaynes, whose actions involve only otherwise unprotected commercial speech, to assert the First Amendment rights of those who engage in noncommercial speech,‘’ Justice G. Steven Agee wrote in the majority opinion.

The court agreed without explanation to revisit that issue. If the justices reverse their position, they will then consider the merits of Jaynes’ claim that the law is too broad to pass constitutional muster.

``Virginia’s anti-spam statute is the only one in the country to make it a felony to send anonymous, bulk, unsolicited e-mail of a political or religious nature,‘’ said Jaynes’ attorney, Thomas M. Wolf. ``Since the statute is a direct regulation of speech, it has to be as narrow as possible to achieve a compelling state interest. And since the problem of spam is with commercial e-mail, this statute flunks the test.‘’

David Clementson, a spokesman for state Attorney General Bob McDonnell, said the law is a crucial tool for protecting Virginians against e-mails sent by fraudulent means, such as changing the header or routing information to prevent recipients from determining the identity of the sender.

But Wolf said the First Amendment is of such paramount importance that even a defendant whose speech can be regulated can seek to enforce the free-speech rights of others.