Jon Katz at  Underdog posts about the Virginia anti-spam law that put Jeremy Jaynes in prison for 3 to 9 years on three counts (H/T Jon Katz for correcting me).  In Jeremy Jaynes v. Virginia, the state Supreme Court upheld the conviction in a 4-3 decision that should scare the daylights out of anyone concerned for the Constitution.

The problem, as I’ve personally learned, is that when the case involves spamming, otherwise right-thinking people find it impossible to separate their anger at spam (which I share) with the requirements of the 1st Amendment.  This leads to bad law, bad analysis and ultimately to the undermining of free speech in cases that don’t have anything to do with spamming as we think of it. 

This is how law goes wrong. It’s happening before our eyes, and we just can’t see it because our eyes are clouded by our disdain for the particular conduct in the particular case, rather than the longer view of what bad law means down the road.

Virginia Code, 18.2-152.3:1, contains a few different sections dealing with different evils.  It creates misdemeanors for using or selling computer technology that allows the sender to falsify or forge their email address.  I see no problem with this provision, since it has no connection to content and addresses the use of false identity.  There’s no protected interest in using a false identity, and it’s a bad thing to do.

The law next creates a felony for the following:

The volume of UBE transmitted exceeded 10,000 attempted recipients in any 24-hour period, 100,000 attempted recipients in any 30-day time period, or one million attempted recipients in any one-year time period.

This is the one that’s bad.  I understand UBE to mean unsolicited bulk email.  But nowhere does it limit the law to any particular content.  This is facially unconstitutional.  No, you scream at me, pounding the table to emphasize that my first amendment stops at your computer inbox! 

I agree with you.  To a point.  When the email is about enlarging a part of the male anatomy, or gaining access to certain prescription drugs, or viewing pornographic images of farm animals, or a very private offer from a close personal trustworthy friend in Nigeria, or a host of other commercial solicitations.  We all get them.  Most of us have a spam filter that makes them go away.  Some get through and we delete them.  An annoyance?  Absolutely. 

But consider bulk emailer, Tom Paine, who has some choice words for how his government should function.  Tom wants to spread the word to an unsuspecting public about how he believes he thinks government should work.  It’s important to Tom, because he is a very civic-minded individual and feels that far too many people know too little about their government and are complacent.  He wants to juice them up to become more knowledgeable and involved. 

So [email protected] sends out a bulk email.  Unsolicited.  He gets his hands on a huge list and emails it to everybody.  Now, Tom Paine is a felon in Virginia.  Do we really want Tom to do 9 years?  Do we really want to eliminate free speech unless it suits people’s convenience?  Has annoyance blinded us to why we have a 1st Amendment?

But as Jon points out in his post, the Virginia Supreme Court majority didn’t rule on the 1st Amendment overbreadth argument.  A little local quirk is that

No Virginia standing should be accorded a person to assert an overbreadth challenge when that person’s conduct consists of misleading commercial speech that is entitled to no First Amendment protection on its own merits.

Now that’s curious.  The defendant is precluded from challenging overbreadth when his alleged conduct falls outside the parameters of the overbroad prohibition. 

On the surface, this has some superficial appeal.  After all, why should this guy get the benefit of a law that’s unconstitutional only because of overbreadth when his conduct doesn’t come anywhere near the bad part.  This is particularly true with laws like this, that involves people that do things we love to hate.

The problem is that caselaw is developed through those who do things we love to hate.  Laws are upheld, as here, under their “worst-case scenario” and only later applied inappropriately, usually in a slow progression, inch by inch, until it covers protected speech.  But by then, there’s a body of caselaw upholding and supporting its application. Boom, another constitutional right down the drain.

When a law is bad, the solution is to fix it, not look for excuses to ignore its problems.  That’s how we end up with good laws, laws that adhere to the Constitution and court decisions that fulfill the judges’ oath to protect and defend the Constitution.  The Jaynes decision is a case study in how unconstitutional law is upheld.  Thanks to Jon for his efforts at rooting out this case and reminding us that unpopular cases are where it is most important for courts to demonstrate intellectual integrity.

And by the way, a sentence of 3-9 for spamming is ridiculous.  Just my opinion.