The Supreme Court of Virginia changed its collective mind in a big way in ruling today the state’s felony anti-spam law unconstitutional.
In March, the court rejected an overbreadth challenge to Virginia Code § 18.2-152.3:1 on a 4-3 vote but subsequently granted a rehearing in the case.
Today, Jaynes v. Commonwealth, the last opinion by the court by former Justice G. Steven Agee, was unanimous. Agee wrote the opinion and the court adopted it before he was appointed to the 4th U.S. Circuit Court of Appeals and left the court, according to a footnote.
Agee had written the majority opinion in March but, in effect, adopted the argument of the dissent today.
Agee noted that the Virginia law goes further than the federal CAN-SPAM law and the laws of other states in banning all unsolicited bulk e-mail, not just commercial e-mail. In doing so, the law infringes on the constitutional right to engage in anonymous speech, Agee said. That right is especially pertinent to political and religious and goes to the core of the First Amendment, he said.
As an example, he said, “were the Federalist Papers being published today via e-mail, that transmission by Publius would violate the statute.”
The defendant, Jeremy Jaynes of Raleigh, N.C., was considered among the top 10 spammers in the world when he was arrested in 2003, shortly after the anti-spam law went into effect. He was convicted in Loudoun County Circuit Court of three counts of violating the law and sentenced to nine years in prison.
By Alan Cooper