A Virginia antispam law is now officially unconstitutional.
The U.S. Supreme Court declined to hear an appeal of a Virginia Supreme Court decision that invalidated a state law that makes illegal all high-volume anonymous email communications.
I wrote about the case back in September, noting:
The fundamental question was whether this law was unconstitutionally overbroad in violation of the First Amendment. The problem is really quite simple. The law does not limit its effect to commerical speech (spam, as we have come to know and love it); it includes all anonymous, mailed email.
The right to anonymous speech is fundamental to free speech, the court said. Anonymous speech is “an aspect of the freedom of speech protected by the First Amendment.” (McIntyre v. Ohio Elections Comm’n, 514 US 334, 342 (1995.)) Prohibiting anonymous, protected speech is “a direct regulation of the content of speech,” the Supreme Court said in that case.
The Virginia court said the state could have prohibited anonymous, high-volume, commercial spam but including all anonymous, high-volume emails went too far.
Last fall, most readers were outraged that Jeremey Jaynes (above, who sent 12,197 spams on 7/16/03, 24,172 on 7/19/03 and 19,104 on 7/26/03) would go free.
That court is flat-out wrong. Spam has nothing to do with the First Amendment. No one has any "right" to put their email on any server, period. It has ZERO to do with content.
But the Supreme Court found no reason to re-hear the Virginia decision. My words back then prove on-target:
In the age of the Patriot Act, NSA surveillance, etc., legitimate public speech may require anonymous messaging to people who didn’t ask to receive messages. Imagine a law that said no political speech that can’t be traced. Consider the UN proposal to make anonymity impossible. Do we really want to remove the right to anonymous speech online?
Clearly not. And we don’t need to. The Virginia assembly just needs to fix this law by inserting the word “commercial.” This is just a case of shoddy draftsmanship. First Amendment protected. Unfortunately, Jaynes can’t be prosecuted under the current law. But he can be under a new law.