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Va. Ban On Spam Is Ruled Unlawful

E-Mail Restriction Called Violation of First Amendment

Jeremy Jaynes, left, with attorney David Oblon in April, 2005.
Jeremy Jaynes, left, with attorney David Oblon in April, 2005. (By Abigail Pheiffer -- Associated Press)
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By Tom Jackman
Washington Post Staff Writer
Saturday, September 13, 2008; Page B01

The Virginia Supreme Court yesterday ruled that the state's anti-spam law, designed to prevent the sending of masses of unwanted e-mail, violates the First Amendment right to freedom of speech.

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Virginia Attorney General Robert F. McDonnell (R) promptly said he would appeal the case to the U.S. Supreme Court. The law was one of the first enacted in the United States to stem the overwhelming tide of unwanted e-mail. The 2004 trial in Loudoun County of mass e-mailer Jeremy Jaynes resulted in the first felony conviction in the country for spamming.

But the state Supreme Court said the law doesn't make any distinction between types of e-mail or types of speech, and so it was unconstitutional. The ruling came on an appeal of Jaynes's conviction. Jaynes had sent the mass e-mails anonymously by using false Internet addresses, and the court said that speech is also protected by the First Amendment.

Justice G. Steven Agee, who has since moved to 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,' " Agee wrote, citing a 1995 U.S. Supreme Court case.

"By prohibiting false routing information in the dissemination of e-mails," the court ruled, Virginia's anti-spam law "infringes on that protected right."

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.

McDonnell called the law an innovative act that broke new ground in protecting citizens, and he noted that Jaynes was rated one of the most prolific spammers in the world. Loudoun Circuit Court Judge Thomas D. Horne sentenced Jaynes, of Raleigh, N.C., to nine years in prison but allowed Jaynes to remain free while his appeals were heard.

"The Supreme Court of Virginia," McDonnell said in a statement, "has erroneously ruled that one has a right to deceptively enter somebody else's private property for purposes of distributing his unsolicited fraudulent e-mails. . . . We will take this issue directly to the Supreme Court of the United States. The right of citizens to be free from unwanted fraudulent e-mails is one that I believe must be made secure."

The court's ruling was remarkable for another reason: It reversed its own ruling of six months ago, when the court upheld the anti-spam law by a 4 to 3 margin. But Jaynes's attorneys asked the court to reconsider, typically a long shot in appellate law, and the court not only reconsidered but changed its mind. Agee wrote both opinions.

"I think the decision is a sound one," said Rodney A. Smolla, dean of the Washington and Lee University Law School and a First Amendment scholar. "This is a case in which the spammer may have been doing things that a well-crafted law could make illegal. The problem with the Virginia law is it included e-mail communications that people have the right to make anonymously."

There was plenty of disagreement, particularly among those who provide Internet service or battle spam.


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