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Virginia Supreme Court Rejects First Amendment Challenge to Spam Statute

Venkat Balasubramani

Thanks to Prof. Goldman I see that the Virginia Supreme Court issued its opinion in Jaynes, the state-law criminal spam case that has wound its way through the courts there. It affirms the conviction and rejects the various challenges to Virginia's spam statute.

Access a copy of the Order here [PDF]. (As a side note I should say that it's not often one is actually excited to read an order in a case you're not involved with. This is definitely one of those instances where the excitement is palpable.) The news reports billed the case as the first felony conviction for sending spam. (Previous discussion here.)

After trial and conviction, Jaynes sought to challenge the statute on legal grounds. Jaynes brought several arguments in front of the Virginia Supreme Court, most of which were colorable. He argued that he was not subject to jurisdiction in the state of Virginia, the law violated the Commerce Clause, and most interestingly, the law had First Amendment problems. (The ACLU supported him by filing an amicus brief.)

Jurisdiction: The court easily disposes of Jaynes's jurisdiction arguments. It points to evidence in the record which showed that Jaynes routed a high volume of emails to AOL, whose servers are located in Virginia.

Commerce Clause: Jaynes actually had a creative argument on the commerce clause issue. He argued that the statute improperly regulated emails which only "passed through" servers in Virginia, which ultimately ended up elsewhere. Thus, he argued that in some instances the statute had a wholly extraterritorial effect. The court rejects this argument, applies a well established balancing test, and finds no commerce clause violation.

First Amendment: Finally, the First Amendment argument. Jaynes made several arguments under the First Amendment, including one which I thought was most colorable - the statute restricted the right to anonymous speech, since it prohibited anonymous emails. The statute was not expressly restricted to commercial speech. Thus it was well suited to an overbreadth argument. As the dissent recognizes, the Supreme Court has affirmed on more than one occasion that the First Amendment protects the right to engage in anonymous speech (at least, political speech). This statute arguably infringes on that right.

In resolving this issue against Jaynes, the majority delves into numerous First Amendment procedural issues and standards, ultimately concluding that Jaynes does not have the right to challenge the statute in the abstract. Unlike in the typical First Amendment context, the court rules that Jaynes can only challenge the statute if it actually infringes on his speech rights. You almost get the sense that the court would not hold up the statute against another challenger:

Jaynes does not contest that the bulk e-mails were an attempt by him to sell commercial products for his pecuniary gain and constitute, in this case, unprotected commercial speech for First Amendment purposes. In other words, he does not dispute the e-mails have no First Amendment protection in their own right, and that the statute is not unconstitutional as applied to him.

This is the court's way of setting the stage and letting us know up front that the result would be different if Jaynes was not a commercial speaker. Ultimately, the majority concludes that Jaynes lacks standing to challenge the statute on First Amendment grounds. I think conclusion is on shaky grounds for several reasons. The dissent does a good job of setting them out.

First, the opinion discusses the appropriate level of protection for commercial speech. It's unclear as to whether this is pivotal for the majority. As most people know, this is an area in which the law is not clear (see, e.g., Kasky). The U.S. Supreme Court has previously stated that commercial speech is entitled to a far less level of protection. The general forecast is that the Court has already, or will ultimately move away from this position. Second, the opinion goes into standing, and whether (regardless of the commercial speech / standard of review issue) Jaynes has the right to challenge the statute due to broader standing rules in the First Amendment context. (Typically in the First Amendment context, people are entitled to challenge laws, even if their conduct is appropriately proscribed under the statute. Courts have basically created a standing exception to the First Amendment.) I'm not familiar with the law in this area, but the majority seems to say that this depends on whether the challenge is brought in state or in federal court. This is fairly awkward and arbitrary.

Will there be a next step? Tough to say - I'll leave that to the experts. The Supreme Court is probably more receptive to giving commercial speech broader protection. On the other hand, it could be excited about limiting the standing rules in First Amendment cases. This case would not be a particularly appealing one factually to break this new ground on. In any event, both of these are fairly interesting issues. I have no idea whether this is a good candidate for further review, but the issues presented by the case are quite interesting.

[NB: John Levine testified as an expert in this case.]

By Venkat Balasubramani, Tech-Internet Lawyer at Focal PLLC. Follow Venkat on Twitter here.

Related topics: Cybercrime, Email, Law, Spam

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