Spam and the First Amendment

• First Ever Felony Conviction for Spam Upheld Against First Amendment Challenge. Jaynes v. Commonwealth, 2008 WL 539744 (Va. Feb. 29, 2008)

Once recognized as the eighth worst spammer in the world, Jeremy Jaynes was the first man convicted of a felony for spamming. His was arrested under the Virginia Computer Crimes Act for sending over 55,000 spam letters in three days. He appealed his conviction on both First Amendment and Dormant Commerce Clause grounds, among others, and the Virginia Supreme Court narrowly (4-3) affirmed the conviction. As the Virginia law served as a model for both CAN-SPAM and most state anti-spam laws, this would seem to be quite an important and precedential victory.

A closer look, however, suggests that this victory may well be Pyrrhic. First, Jaynes did not challenge Virginia’s law on the ground that it was pre-empted by the CAN-SPAM act, a challenge which the Fourth Circuit’s decision in Omega World Travel v. Mummagraphics, Inc., 469 F.3d 348 (2006), suggests might have been successful. Secondly, the First Amendment challenge to the law was not rejected on the merits, but rather because the court found that Jaynes lacked standing to challenge the law, as a matter of Virginia standing law. See Slip Op. at *21 (“[I]t would appear that Virginia does not accord standing to a person, such as Jaynes, whose actions involve only otherwise unprotected commercial speech, to assert the First Amendment rights of those who engage in noncommercial speech.”). Thus, any victory against spammers would seem limited to this state.

The three dissenting Justices strongly criticized this view of First Amendment standing both as a matter of federal and state law. These are the only Justices to consider the merits of Jaynes’s First Amendment overbreadth claims; they found the statute overbroad and without any reasonable limiting construction to save it. The provisions of the law which forbid the falsification of IP addresses or domain names were also found to be unconstitutional by the dissenters. They reasoned that such falsification is the only possible way to achieve anonymity on the internet, and anonymous speech is a protected right in itself. Cf. Watchtower Bible & Tract Society v. Village of Stratton, 536 U.S. 150 (2002).

While this is certainly not my area of expertise, a quick bit of searching suggests that this may be the first case directly discussing the constitutionality (rather than the preemption) of the criminalization of anonymous SPAM, as opposed to private regulation thereof (e.g. White Buffalo). The paucity of such cases, however, could stem from the fact that both the FTC’s regulations concerning CAN-SPAM and several state laws are limited solely to commercial speech, reducing any overbreadth concerns. The Virginia statute was not limited to commercial emails, but would have applied to any type of speech, including core political speech. If anyone knows of other cases, please feel free to mention them in comments.