Virginia’s attorney general on Thursday asked the U.S. Supreme Court to overturn a lower court ruling declaring the state’s anti-spam law unconstitutional.
Virginia’s Supreme Court ruled in September that the law violates the U.S. Constitution’s guarantee of freedom of speech because it outlaws all anonymously sent bulk e-mail rather than just anonymous commercial e-mail.
The ruling also overturned the conviction of prolific spammer Jeremy Jaynes, who faced nine years in prison after being convicted in 2004 of violating Virginia’s anti-spam law.
In declaring the law unconstitutional, Virginia’s Supreme Court Justice G. Steven Agee said if the Federalist papers were written today and sent by e-mail, their authors would be guilty under Virginia’s anti-spam law.
Agee wrote Virginia’s anti-spam law is “unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mails, including those containing political, religious or other speech protected by the First Amendment of the United States Constitution.”
Virginia’s Anti-Spam Act prohibits the sending of unsolicited bulk e-mail by fraudulent means, such as changing the header or routing information to prevent recipients from contacting or determining the identity of the sender.
In calling for the law to be reinstated, Virginia attorney general Bob McDonnell’s office wrote that “the Virginia Supreme Court failed to determine whether the Virginia Act’s application to protected speech is substantial, not only in an absolute sense, but also relative to the law’s plainly legitimate applications. … Had it done so, it could not possibly have struck down the statute on its face.”
The Virginia attorney general argued that though the burden of proof of the law’s unconstitutionality was on Jaynes, “he failed to produce any evidence that persons actually falsify their identity to send political and religious e-mail spam.”
According to prosecutors, Jaynes in 2003 sent tens of thousands of unsolicited e-mails with false headers and return-address information to AOL subscribers advertising dubious products such as a Fedex refund-claim product, a penny stock picker and an Internet history eraser.
According to an AP report, though Jaynes’ spam conviction was overturned, he is currently serving time in federal prison for a securities fraud conviction unrelated to his spam case.
