By Jerry Markon
Washington Post Staff Writer
Tuesday, March 31, 2009
The U.S. Supreme Court yesterday declined to consider reinstating Virginia's tough anti-spam law, leaving in place a lower court ruling that threw out the measure as unconstitutional.
The high court's decision ends the legal odyssey of the 2003 anti-spam law, one of the nation's first, which was intended to crack down on people who send masses of unwanted e-mail. The Virginia Supreme Court in September ruled that the law violated the First Amendment right to freedom of speech.
Robert F. McDonnell, a Republican candidate for governor who was then the Virginia attorney general, pushed to appeal the case to the Supreme Court, calling the law an innovative act that broke ground in protecting citizens. Internet service providers have estimated that 90 percent of e-mail is spam.
But First Amendment scholars said the state court's decision was legally sound. In addition, Internet law experts said it is not likely to increase spam in Virginia because federal law also prohibits spam, spam filters screen out much of it and expert spammers often are out of the country. The Supreme Court, as is its custom, did not give a reason for declining to take the case.
McDonnell's successor, Virginia Attorney General Bill Mims, said he was "disappointed" by the high court's decision but respects it. He vowed to draft a new anti-spam law for the General Assembly to consider that "addresses any potential constitutional concerns. We are dedicated to protecting all Virginians from unscrupulous spammers who fraudulently send millions of unsolicited garbage e-mail messages."
The law made it a misdemeanor to send unsolicited bulk e-mail by using false transmission information, such as a phony domain name or Internet protocol address. The crime became a felony if more than 10,000 recipients were mailed in a 24-hour period, and the 2004 trial in Loudoun County of mass e-mailer Jeremy Jaynes resulted in the nation's first felony conviction for spamming.
The Virginia Supreme Court ruling overturned the conviction of Jaynes, who was sentenced to nine years in prison, but he is serving time in federal prison on an unrelated conviction. An attorney for Jaynes, Joseph Rainsbury, said the U.S. Supreme Court's decision not to take the case is "a victory not only for Jeremy but for the First Amendment.''