Virginia Anti-Spam Statute Found Unconstitutional

The Virginia Supreme Court has reversed itself as well as the conviction of a spammer, finding the state’s anti-spam law overly-broad and therefore unconstitutional.

In February, 2008, the Virginia Supreme Court upheld the conviction of Jeremy Jaynes for violating provisions of Virginia’s anti-spam statute that prohibited falsifying or forging electronic mail transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk electronic mail.

From his residence in Raleigh, North Carolina, Jaynes sent over 10,000 e-mails within a 24-hour period to subscribers of America Online on three separate occasions. The unsolicited e-mails contained falsified routing and transmission information. He was convicted of three counts under the Virginia statute and sentenced to three years in prison for each count consecutively.

Jaynes argued that the statute violated the First Amendment because it denied e-mail senders of the right to engage in anonymous speech. The court found that by prohibiting false routing information, the statute infringes on the protected right to anonymous speech. “For example, were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute,” the Virginia Supreme Court found.

The problem, the court observed, was that the statute applied to all e-mail, not just unsolicited commercial e-mail. “Many other states have regulated unsolicited bulk e-mail, but, unlike Virginia, have restricted such regulation to commercial e-mails,” the court wrote. The Virginia statute “is not limited to instances of commercial or fraudulent transmission of e-mail, nor is it restricted to transmission of illegal or otherwise unprotected speech such as pornography or defamation speech,” the opinion states. Therefore, viewed under the strict scrutiny standard, the statute “is not narrowly tailored to protect the compelling interests advanced by the Commonwealth.”

Jeremy Jaynes v. Commonwealth of Virginia, Virginia Sup. Court No. 062388, issued September 12, 2008.

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