Va. Supreme Court Declares Anti-Spam Law Unconstitutional

RICHMOND, Va. - The Virginia State Supreme Court on Friday struck down a state anti-spam law as unconstitutional, reversing the conviction of a notorious junk e-mailer.

The court ruled that the anti-spam law violated the First Amendment and its guarantee of free and anonymous speech. The decision was noteworthy because the same court just six months ago upheld the same law by a 4-3 vote. The reversal came after Jeremy Jaynes - the first person tried under the state law - asked the court to reconsider its initial decision.

Jaynes, a North Carolina resident, was convicted in 2004 of sending tens of thousands of emails through America Online servers in Loudon, Va., and sentenced to nine years in prison.

John Levine, president of the Coalition Against Unsolicited Commercial Email told the Washington Post the court overturned the law because it sought to outlaw all forms of unsolicited email, not just commercial junk mail. In contrast, he said, the federal CAN-SPAM Act limits the restriction to messages used to promote a business or other financial gain.

The Virginia law "is unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk emails, including those containing political, religious or other speech protected by the First Amendment to the U.S. Constitution," Justice G. Steven Agee wrote.

Jon Praed, an attorney with the Arlington, Va., based Internet Law Group who has sued his share of spammers, lambasted the court's decision, told the Washington Post it was akin to giving burglars the constitutional right to break into Virginia homes as long as they recite the Gettysburg Address while crossing the threshold.

"Every kindergartner learns the idea of keeping your hands to yourself," Praed said to reporters. "Does the Constitution really requires us all to post 'No Trespassing' signs on our homes -- or our mail servers -- to remind the world the dwelling isn't open to the public and the mail server is not a soapbox to be used and abused by anyone who thinks they have something to say?"

Levin said state lawmakers could easily fix the law simply by restricting the statute to commercial e-mail.

"In my view, the case was never about Jeremy Jaynes - it was about the First Amendment,"  Jaynes' attorney, Thomas M. Wolf, told reporters. "The argument was never that there's a constitutional right to send commercial spam. It was that the government cannot criminalize the sending of noncommercial e-mail for political and religious purposes, and that is what this statute did."

Attorney General Bob McDonnell intends to appeal the case to the U.S. Supreme Court.