Friedman Legal Solutions, PLLC

Criminal Appellate & Post-Conviction Services

Virginia Supreme Court Finds Constitutional Right to Spam

We all hate those pesky e-mails we get hawking copy watches, Viagra, and get rich quick schemes. They often come from forged e-mail addresses, sent from hijacked machines, containing forged i.p. addresses. After deleting two hundred such pieces of e-mail in a single day, even this ACLU liberal type wants to say that there is no First Amendment right to spam, but think about it. Our founding fathers often wrote under aliases, leafleted to unwanting recipients, and had a message that half the country (the loyalists) found deeply offensive, and even blasphemous. Are spammers really different from the Hare Krishna that ten years ago we worked so hard to avoid on a city street? Yesterday, the Virginia Supreme Court said “no” reversing its own six month old ruling to the contrary. Jaynes v Commonwealth, Virginia Supreme Court No. 06-2388.

Jeremey Jaynes was convicted in 2004 of sending over 50,000e-mails through America Online servers in Loudoun, Virginia. The e-mails were sent from Mr. Jayne’s computers in his home in Raleigh North Carolina. According to the Supreme Court’s ruling, these emails “intentionally falsified the header information and sender domain names before transmitting the e-mails to the recipients.” The decision also noted that the subscriber lists that Mr. Jaynes was using had been stolen from AOL by a corrupt employee. Mr. Jaynes was the first person tried under a 2003 Virginia anti-spam law. A Loudoun Circuit Court judge sentenced Mr. Jaynes to nine years in prison.

Justice G. Steven Agee (now on the U.S. Court of Appeals for the 4th Circuit) wrote the unanimous opinion for the court. "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,' "By prohibiting false routing information in the dissemination of e-mails," the court ruled, Virginia's anti-spam law "infringes on that protected right."

Justice Agee noted that "were the 'Federalist Papers' just being published today via e-mail, that transmission by 'Publius' would violate the [Virginia] statute." Publius was the pen name for James Madison, Alexander Hamilton and John Jay.

The court determined that the law does not limit its restrictions on spam to commercial or fraudulent e-mail or to such unprotected speech as obscenity or defamation. Many other states and the federal government drafted anti-spam laws after Virginia, but often specifically restricted the regulations to commercial e-mails, the court found. The ruling affects only the Virginia statute.

In addition to the First Amendment ruling, the Virginia Supreme Court’s ruling has several interesting discussions which make the decision a must read for any criminal practitioner. The first question is jurisdiction in internet crime cases. Mr. Jaynes resided in North Carolina and most of the e-mails he sent were destined for third states or foreign countries, but the use of AOL’s servers in Virginia was sufficient to confer appelllate jurisdiction. Also interesting is the way that the Court distinguished Virginia v. Hicks, 539 U.S. 113, 118-19 (2003). The Commonwealth had lifted a passage that supported the narrow standing rule that they were arguing (that Mr. Haynes could only challenge the law as applied). The Court looked at the Commonwealth’s brief to the U.S. Supreme Court and its oral arguments in the Supreme Court to find that this passage was being read out of context. The Court noted the concessions that Virginia had made and refused to read the Court’s opinion in the manner that Virginia was now arguing

The Federal CAN Spam Act is restricted to commercial speeches and could be distinguished on those grounds. The Virginia Attorney General has vowed to appeal the ruling to the US Supreme Court.