The Supreme Court may get to decide whether an antispam law that bans emails with false routing information violates the First Amendment (yes, I misspelled "unconstitutional" in the headline; my apologies.) The Virginia Supreme Court said the conviction of super-spammer Jeremy Jaynes is unconstitutional (PDF), The Washington Post reports.
Justice G. Steven Agee, who has since moved to the U.S. Court of Appeals for the 4th Circuit, wrote the unanimous opinion for the court. "The right to engage in anonymous speech, particularly anonymous political or religious speech, is 'an aspect of the freedom of speech protected by the First Amendment,' " Agee wrote, citing a 1995 U.S. Supreme Court case.
"By prohibiting false routing information in the dissemination of e-mails," the court ruled, Virginia's anti-spam law "infringes on that protected right."
Agee noted that "were the 'Federalist Papers' just being published today via e-mail, that transmission by 'Publius' would violate the [Virginia] statute." Publius was the pen name for James Madison, Alexander Hamilton and John Jay.
The law did not distinguish between different kinds of email; it simply made it a crime to send email with falsified headers. Virginia Attorney General Robert McDonnell said the state would appeal to the U.S. Supreme Court.
ISPs were outraged.
"Horrendous," said Jon Praed of the Internet Law Group, which has represented America Online, Verizon and other Internet providers. "The idea that someone can intrude on someone else's mail server, because they might be reciting the Gettysburg Address? I guess a burglar can break into your home as long as they are reciting the Gettysburg Address."
But the decision, even if upheld by the Supreme Court, may not have far-reaching effects. Most states, and the federal CAN-SPAM law, finger only commercial emails.