- The Washington Times - Friday, September 12, 2008

The nation’s strictest anti-spam law is unconstitutional because it blocks unsolicited political and religious bulk e-mail as well as commercial messages, the Virginia Supreme Court said Friday.

The state’s highest court in a rare rehearing reversed its February decision upholding the felony conviction of Jeremy Jaynescq, who once led what authorities believed to be the eighth-biggest spamming operation in the world. In a unanimous opinion, the court sided with Mr. Jaynes, saying that Virginia’s interest in preventing spam fails to justify the law’s curtailment of free speech.

Virginia’s statute would prohibit all bulk e-mail containing anonymous political, religious, or other expressive speech, Justice G. Steven Agee wrote in the court’s opinion. For example, were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute.

Mr. Jaynes used several computers in his Raleigh, N.C., home to send 53,000 e-mails over three days in July 2003. He was convicted the following year in Loudoun County Circuit Court chosen because the e-mails traveled through an AOL server in Sterling and sentenced to nine years in prison.

The Virginia Anti-Spam Act was enacted in 2003 and was the first in the country to make sending spam a felony. The court’s ruling elicited disappointment from Attorney General Robert F. McDonnell, a Republican expected to run for governor next year.

Mr. McDonnell said the bill’s passage five years ago by the General Assembly came with the understanding that it would necessarily entail court challenges. He promised to appeal the court’s ruling to the U.S. Supreme Court.

The right of citizens to be free from unwanted fraudulent e-mails is one that I believe must be made secure, Mr. McDonnell said. Virginia has been the worldwide leader in the fight against spam and online crime, and we will continue to lead in the years ahead.

Mr. Jaynes’ lawyer, Thomas M. Wolf, said the state would be better off rewriting the statute to cover only unsolicited, bulk commercial e-mail rather than appeal to the nation’s highest court.

This case was never about Jeremy Jaynes or about whether the government can regulate commercial spam. The case was about whether in the zeal to regulate commercial spam, the government will respect the First Amendment, said Mr. Wolf of Richmond-based LeClairRyancq.

Mr. Jaynes has spent the past three years under house arrest, Mr. Wolf said.

The Virginia Supreme Court in February upheld Mr. Jaynes’ conviction by a vote of 4-3, but later agreed to reconsider his First Amendment arguments against barring noncommercial spam, even though his messages were commercial in nature.

Many other states have laws outlawing spam, but Virginia’s was the only one in the country that criminalized noncommercial messages a move that Justice Agee said subjects it to strict judicial scrutiny, meaning that it must be narrowly tailored so as to advance a compelling state interest.

But the law 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, he wrote.

The federal CAN-SPAM Act outlaws commercial spam but was adopted after Mr. Jaynes sent his e-mail.