Virginia lawmakers probably will be able to draft a new version of the anti-spam law struck down by the Virginia Supreme Court without infringing on constitutional free-speech protections, two legal experts said.
The state’s high court delivered a unanimous ruling Friday that overturned the nine-year sentence of Jeremy Jaynes, the spam king who fraudulently used America Online servers to send tens of thousands of junk e-mails, also known as “spam,” from his Raleigh, N.C., home. Jaynes’ 2004 felony conviction was the first of its kind in the United States.
Virginia’s anti-spam law, the court ruled, overreached because it barred any anonymous and unsolicited mass e-mail, “including those containing political, religious or other speech” protected by the First Amendment. It noted that the Federalist Papers, a series of essays in support of the U.S. Constitution written under a pseudonym by three Founding Fathers, would have been illegal under the statutes had they been sent by e-mail.
“Since those [papers] were so important to the founding of the Republic, the First Amendment has always had a healthy appreciation for the right to deliver messages, particularly political messages, without revealing your identity,” said James Gibson, a University of Richmond law professor who specializes in computer law and intellectual property.
Both he and Washington and Lee School of Law Dean Rodney Smolla agree the statute can be successfully rewritten if it is done more carefully. Smolla pointed to other state and federal anti-spam laws that conform to the U.S. Constitution.
“Mr. Jaynes engaged in activity that very well might be illegal and not protected under a properly drawn law,” Smolla said. “It is not that what he did was OK, rather that the law he was prosecuted under was overly broad. A narrowly drawn law could probably penalize him for what he did.”
Friday’s ruling reverses both a Virginia Court of Appeals decision and ruling earlier this year by the Virginia Supreme Court, which later agreed to rehear the case. Virginia Attorney General Robert McDonnell said he would appeal the case to the U.S. Supreme Court.
