Virginia Supreme Court Says Anti-Spamming Law Not A Free Speech Violation

from the speak-freely,-just-don't-spam dept

Jeremy Jaynes, considered one of the biggest spammers in the US was sentenced to nine years in prison for violating a Virginia anti-spam law. As part of his appeal, Jaynes claimed that the anti-spam law itself was unconstitutional, as it violated his right to free speech. It would appear that argument hasn’t worked out, as a somewhat divided Virginia Supreme Court has ruled against him, upholding the conviction. It does raise some interesting first amendment questions — but most spamming activity involves so many other things that could be considered illegal (such as computer trespass, identity fraud, false advertising, etc., etc., etc.) that you would think spammers could be convicted on charges that have little to do with free speech issues.

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Comments on “Virginia Supreme Court Says Anti-Spamming Law Not A Free Speech Violation”

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38 Comments
J.E.Chapman says:

Spam

As bad as I dislike spam,I do not agree with the verdict,if the internet were ran by the U.S. government,I would say yes,just as it is illegal for a person other than the box holder or postal worker to go in a mail box,then it would be illegal to spam,but thats not the case,though I hardly see it as a freedom of speech issue,when did we start locking people up for being a pain in the ass?If we are going to do that lets start with CNN for their coverage of the suck ass choices we have for president.

Anonymous Coward says:

Re: Spam

The point to them overturning the ruling has nothing do with anything but the grounds for appeal. The moron chose to claim that spam (eg, junk mail) is protected by the First Amendment.

While that would make various credit card companies that apparently want me happy, it’s still damn annoying.

Also the law itself was pretty clearly violated. You don’t like it, don’t live in Virgnia or lobby to have it changed.

That’s one thing people forget. The United States are somewhat supposed to be akin to the European Union, just more inline with one another. States are supposed to be their own little kingdoms that all obey a common set of rules and fund a common military. That’s about it.

charlie potatoes (profile) says:

Re: Re: Spam

“The United States ARE somewhat supposed to be akin to the European Union, just more inline with one another. States are supposed to be their own little kingdoms that all obey a common set of rules and fund a common military.”

That little misconception was settled in 1865 when the guy in the gray suit gave the guy in the blue suit his sword. And the correct verb is now IS, not ARE… “The United States ‘IS'”–not “The United States ‘ARE'”. There effectively have been no ‘States’Rights’ since the court ruled in favor of the ‘commerce clauses’. They own us, bubba.

Anonymous Coward says:

Re: Re:

Let me guess, you use hotmail or some other equally crappy free mail service?

He already has 9 years in prison. I know 9 years might not seem like a lot of time to you, but in reality, it’s a big portion of your life. That’s more than some murderers or rapists get.

How about those advertising companies that pound your snail mail box with flyers and coupons every other day? They don’t even HAVE an address on them! Talk about spam, lol.

What about the mail order catalogs? You order one thing from their online store, pretty soon you get a thick wasteful catalog mailed to you weekly. Save some friking trees already.

I could care less about the spam in my email. I use gmail, which has a REALLY good spam filter. So, I only get about 1-4 actual spams in my inbox. The rest are appropriately sent to the spam box.

When you say “put this bum in jail for as long as he lives”, well that just sounds pretty damn stupid, doesn’t it?

ehrichweiss says:

Re: Re: Re:

“When you say “put this bum in jail for as long as he lives”, well that just sounds pretty damn stupid, doesn’t it?”

Not to some of us. You see, most people have this hope that there will be some form of rehab that will change this guy’s life but the real truth is that prison changes people for the worse not better(80% of the people released from prison are back in prison within 5 years, I think is the statistic) and this guy didn’t have a very good attitude to begin with so when he gets out he will be a fine tuned criminal instead of a reformed spammer.

Lawrence D'Oliveiro says:

Protected Speech vs Commercial Speech

As I recall, previous verdicts along the same lines have distinguished between “protected speech” (protected by the First Amendment) and “commercial speech”, which enjoys no such protection. Spam is “commercial speech”, therefore anti-spam laws are not unconstitutional.

BTR1701 (profile) says:

Re: Protected Speech vs Commercial Speech

> As I recall, previous verdicts along the same lines have distinguished
> between “protected speech” (protected by the First Amendment)
> and “commercial speech”, which enjoys no such protection.
> Spam is “commercial speech”, therefore anti-spam laws are
> not unconstitutional.

That’s just flat wrong.

Commercial speech does indeed enjoy 1st Amendment protection, just at a lesser level. The Supreme Court rulings hold that if speech is purely commercial in nature, it is subject to greater regulation by the government than pure speech but it cannot be outright banned or regulated so heavily that it’s effectively banned.

The only type of speech that has no 1st Amendment protection whatsoever is obscenity.

Anonymous Coward says:

Freedom of speech protects your right to state your opinion. Not your right to advertise and yell to the ends of the earth.

Spam is a form of e-litter. Now, if he honestly has something to say to a specific person, that’s fine, but spam is never to a specific person, and rarely has any opinions in it, his freedom to state his opinion has not been violated. So the intent of the right to freedom of speech is unharmed by this verdict.

BTR1701 (profile) says:

Re: Jurisdiction

The real question here is how effective a state spam law can really be. Virginia only has authority over Virginia. If a person sends out spam from California or Alaska or Japan or Russia, Virginia has no way of enforcing its laws against the spammer, even though the spam landed in the inboxes of Virginia citizens who are physically in Virginia.

I live in Virginia and about 60% of the spam I get is full of Japanese characters and is unreadable by me, even if were interested in whatever product they are trying to sell. How does Virginia’s spam law help with that? It’s not like they can extradite someone from Japan to answer for it even if they could find them.

John Duncan Yoyo (profile) says:

I think you are right. The real violations here are when the spammers falsely use other email addresses, rent botnet armies and lie about what they are selling. These are already illegal and carry higher penalties than the spam laws in many cases.

Yet another case where the law already exists to lock up the miscreants. If some would just do something simple like extend the mail fraud laws to spam it would make enforcement easier.

petemc says:

not a first ammendment issue

anti-spam laws are not a free speech issue. freedom of expression does not govern the communication of sales pitches. 1st ammendment rights protect what and how we communicate our own ideas. advertising is not protected by this in our personal affairs, effects, or home. email falls within this protected area and spam is a personal intrusion. on a similar note, disturbance of the peace is not protected by the 1st ammendment.

Rob says:

Re: Re: Free Speech ends when it interferes with o

I shouldn’t have to sort through a hundred emails a day for the two that belong to me, just because I can.

Mail spam is bad enough, but then you take email spam and it becomes an issue. Mail spam is usually just a couple or a few a day. If that. Email spam multiplies day by day.

Tommy Jordan (user link) says:

Lock 'em up!

From the standpoint of a business professional, I have to agree that spam should be enforced MUCH more stringently than it is now. Send ’em ALL to jail!

There are thousands of people out there like me, hundreds of thousands actually, who run multiple domains for clients, for myself, for non-profit organizations, etc. In addition to MY spam, I have to receive all their spam, deal with spam targeted at obtaining their idendities, or with getting their credit information. Its damned aggravating and should be penalized WAY harder than it is now.

Between my domains and a couple dozen clients I have to filter through 400-600 spam emails on a good day, in addition to the ones caught by spam filters. No one can possibly spend enough time blacklisting fake domains to make that a viable solution.

This is not a first amendment violation and they should be locked up to rot! ( And personally, I think they should share a cell with the mail-order companies too!)

Overcast says:

But – again – free speech assumes in ‘public’, right?

My inbox is not public. If I pay for email service, or even if it’s free – to a degree, and depending on the terms of use I guess, it could be considered my property. Just like a car would be considered my property, even if I’m leasing it.

At least to the degree if you scratch it, I can seek damages, etc.

So if they want to create web pages on the public internet – fine. That’s free speech.

Sending unsolicited email to MY inbox isn’t free speech. It’s intrusion.

If you agree that spam is ‘free speech’ – is it ok if I put up signs in your front yard advertising products to you?

The viewpoint that it’s free speech ignores ‘property rights’ altogether.

zcat says:

Laws not required

Legitimate businesses don’t spam; even if they did they would quickly find their mail servers blacklisted.

There probably should be a law that makes it clear that compiling and/or using blacklists are completely legal in all cases; they’re only a suggestion of who not to accept mail from, and if I own the server I have no obligation to accept mail from all senders.

There doesn’t need to be laws ‘against spam’. The vast majority of spam comes through already-illegal zombie windows machines and already-illegal hacked servers. There needs to be a serious effort to enforce existing laws before we consider creating any more of them. Subpoena companies that are advertised in spam and demand that they reveal who they employed to send it. Track down the malware authors and bot-herders that make the current spam situation possible, and put them out of business.

John (profile) says:

Good lawyers

Good lawyers will do everything they can to get their client free. If this guy was charged with an anti-spam crime, then it’s up to the lawyer to argue that the crime is unconstitutional.

Why didn’t the state of Virginia charge the guy with all the other crimes (mail fraud, identity theft, false advertising, etc)? Or did they and the lawyer is trying the old strategy of “if one charge is unconstitutional, then my client should go free”.

Most of the other crimes would probably “stick” because they’ve been around for a while. Yet Virginia is spending its tax money on the Supreme Court so they can hear a case on whether spamming is protected by free speech.

And what happens next? Does the guy (and his lawyer) appeal to a higher court? Should this case go all the way to the US Supreme Court, where the *US* taxpayers will have to pay for the time it takes the judges to hear the case?

Tony says:

Spammers in jail

From the President on down. People who do not believe in free speech want billboard free highways. Signless and hidden businesses, no door knocks, phone rings or emails except from people they know, like and trust.
Capitalist solution = filters, content blockers, peep holes and caller id with answering machines.
Socialist solution = make it illegal to voice an opinion, support a candidate, post a flyer, send an email, call to help people know a fact, opinion or be oposed to something or somebody.
People do not want bothered until they need that product, service, or idea then with the new laws it will be too late. The USSR legacy lives io in Washington and each state capitol.
Be careful what you vote for, you just might get it and more you do not want.

James says:

Re: Spammers in jail

Tony your analogies fail. Billboards and business signs and even tv ads, while sometimes intrusive, generally serve a purpose (such as paying for the tv show you are enjoying) and also generally do not ruin a product or service you are trying to use.

Spam on the other hand is intrusive, invasive, unwanted and makes proper use of a spammed email address nearly impossible. It effectively ruins email, and the nature of the spam and the spammer is often, if not always, illegal.

Once a “supposed” company does something that steps on your toes its crossed the line. This is why spammers will never be respected, because they do not respect the email recipient. There is little to no responsible use for spam, therefore spam does not warrant the use or respect that other forms of advertising (even when someone might not want them) do.

Anonymous Coward says:

Whimps. Hit the delete. BFD. First off, unless you pay for your email service by email received, it causes you no harm. If you use a free service, too bad. No harm. Privacy? How does receiving a email violate your privacy? How? Are you forced to open it? Does it steal information from you? STFU. You want to make it easy for terrorists but throw a spammer in jail for life? Get some perspective and get a life.

jonnyq says:

“computer trespass, identity fraud, false advertising,”

computer trespass? I don’t think sending someone an unwanted email is computer trespass.

Identity fraud? Did he pretend to be someone else?

False advertising? Was there really V1AGrA or c1al1s available for the prices offered?

I fail to see any of those, but I fail to see a free speech issue, either.

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