Virginia Lawyers Weekly

It’s unusual for the Supreme Court of Virginia to take a second look at a decided case.

It’s highly unusual for the high court to switch from a 4-3 affirmance to a unanimous reversal of a criminal conviction. The high-profile subject is spammer Jeremy Jaynes, and the reversal stemmed from a second look at a recent First Amendment case from Virginia.

The key issue in Jaynes v. Commonwealth (VLW 008-6-095) was whether Jaynes, who was believed to be one of the top 10 spammers in the world when he was arrested in 2003, had standing to raise the argument that Virginia’s felony anti-spam statute was overbroad.

Jaynes could hardly contest the allegation that he distributed unsolicited bulk e-mails. Although prosecutors limited their case against him to 53,000 messages sent over three days in July 2003, he is believed to have been responsible for distributing 10 million e-mails a day in an enterprise that grossed up to $750,000 a month.

His appellate defense team lead by Richmond attorney Thomas M. Wolf contended, however, that the law violated the U.S. Supreme Court’s longstanding approval of anonymous speech, especially in political and religious contexts.

The law makes no distinction between commercial and non-commercial e-mail, Wolf argued. But Virginia’s statute is so broad that “were the Federalist Papers being published today via e-mail, that transmission by Publius would violate the statute,” according to an example offered by Wolf and cited in Justice G. Steven Agee’s Sept. 12 opinion.

Agee was appointed to the 4th U.S. Circuit Court of Appeals in the interim between the 4-3 opinion he wrote in February and the unanimous opinion he authored in September. He participated in the rehearing argument and wrote the later opinion while he was still on the Supreme Court, according to a footnote.

In the February opinion, Agee adopted an argument, pressed by the attorney general’s office, that states can place tighter restrictions on facial overbreadth challenges than the U.S. Constitution would permit. The office based the argument on language in Virginia v. Hicks, 539 U.S. 113 (2003).

In his petition for rehearing, Wolf argued the office had made just the opposite argument in Hicks, that federal law constrains state standing rules.

Agee agreed. The shift in the state’s argument “is an untenable position because the right to assert the protection of the First Amendment (by overbreadth or otherwise) can no more be restricted by a state rule of standing than the exclusionary rule applied to impermissible searches and seizures could be limited by state evidence law.”

Virginia Attorney General Robert F. McDonnell issued a strongly worded statement disagreeing with the court’s opinion.

“When the Virginia Anti-SPAM Act was passed by the General Assembly in 2003 it was understood that this was an innovative law that would break new ground in protecting citizens and would necessarily entail court challenges. In 2004 the Office of the Attorney General, under the direction of then Attorney General Jerry Kilgore, used Virginia’s new law to secure the first felony Spam conviction in the world,” McDonnell said.

“Today, the Supreme Court of Virginia has erroneously ruled that one has a right to deceptively enter somebody else’s private property for purposes of distributing his unsolicited fraudulent emails. I respectfully but fervently disagree,” he added.

“We will take this issue directly to the Supreme Court of the United States,” McDonnell said.

Wolf said McDonnell’s statement ignores the obvious problems with the law. In addition to the First Amendment difficulty, it makes a conviction possible without proof of fraud, he said.

“I would hope that rather than appeal the case they would focus on fixing the statute,” Wolf said.

Virginia’s anti-spam law is believed the first in the country and goes further than the federal CAN-SPAM statute in targeting non-commercial as well as commercial e-mails.

“This is a great victory for the First Amendment,” Wolf said. “I think it says a lot about our court and their commitment to get it right.”

Jaynes operated out of Raleigh, N.C., and was charged in Loudoun County because the spam was sent to customers of America Online over computer servers located in the county.

Jaynes had been under house arrest since his conviction in 2004 pending resolution of the appeal.

However, he was sentenced earlier this year to 52 months in prison as a result of a federal securities fraud conviction. He pleaded guilty to participating in a scheme between April 2003 and May 2006 to manipulate the stock prices of at least five publicly traded companies.

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