Virginia Supreme Court Says Anti-Spamming Law Not A Free Speech Violation

from the speak-freely,-just-don't-spam dept

Fri, Feb 29th 2008 7:53pm — Mike Masnick

Jeremy Jaynes, considered one of the biggest spammers in the US was sentenced to nine years in prison for violating a Virginia anti-spam law. As part of his appeal, Jaynes claimed that the anti-spam law itself was unconstitutional, as it violated his right to free speech. It would appear that argument hasn't worked out, as a somewhat divided Virginia Supreme Court has ruled against him, upholding the conviction. It does raise some interesting first amendment questions -- but most spamming activity involves so many other things that could be considered illegal (such as computer trespass, identity fraud, false advertising, etc., etc., etc.) that you would think spammers could be convicted on charges that have little to do with free speech issues.

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Filed Under: free speech, jeremy jaynes, spam

38 Comments

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Overcast, 29 Feb 2008 @ 8:48pm

Free speech doesn't include unsolicited email and telemarketing calls. The web is there, if you have something to say or a product to advertise - do it.

As far as I see it - someone's email inbox is private property anyway. So you are really 'littering' on private property.
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J.E.Chapman, 29 Feb 2008 @ 9:27pm

Spam
As bad as I dislike spam,I do not agree with the verdict,if the internet were ran by the U.S. government,I would say yes,just as it is illegal for a person other than the box holder or postal worker to go in a mail box,then it would be illegal to spam,but thats not the case,though I hardly see it as a freedom of speech issue,when did we start locking people up for being a pain in the ass?If we are going to do that lets start with CNN for their coverage of the suck ass choices we have for president.
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spam, 29 Feb 2008 @ 10:05pm

put this bum in jail for as long as he lives he should have got 10 years for every spam he sent
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Anonymous Coward, 29 Feb 2008 @ 10:26pm

Re: Spam
The point to them overturning the ruling has nothing do with anything but the grounds for appeal. The moron chose to claim that spam (eg, junk mail) is protected by the First Amendment.

While that would make various credit card companies that apparently want me happy, it's still damn annoying.

Also the law itself was pretty clearly violated. You don't like it, don't live in Virgnia or lobby to have it changed.

That's one thing people forget. The United States are somewhat supposed to be akin to the European Union, just more inline with one another. States are supposed to be their own little kingdoms that all obey a common set of rules and fund a common military. That's about it.
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Lawrence D'Oliveiro, 29 Feb 2008 @ 10:33pm

Protected Speech vs Commercial Speech
As I recall, previous verdicts along the same lines have distinguished between "protected speech" (protected by the First Amendment) and "commercial speech", which enjoys no such protection. Spam is "commercial speech", therefore anti-spam laws are not unconstitutional.
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Anonymous Coward, 1 Mar 2008 @ 3:52am

Freedom of speech protects your right to state your opinion. Not your right to advertise and yell to the ends of the earth.

Spam is a form of e-litter. Now, if he honestly has something to say to a specific person, that's fine, but spam is never to a specific person, and rarely has any opinions in it, his freedom to state his opinion has not been violated. So the intent of the right to freedom of speech is unharmed by this verdict.
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John Duncan Yoyo, 1 Mar 2008 @ 4:55am

I think you are right. The real violations here are when the spammers falsely use other email addresses, rent botnet armies and lie about what they are selling. These are already illegal and carry higher penalties than the spam laws in many cases.

Yet another case where the law already exists to lock up the miscreants. If some would just do something simple like extend the mail fraud laws to spam it would make enforcement easier.
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petemc, 1 Mar 2008 @ 4:57am

not a first ammendment issue
anti-spam laws are not a free speech issue. freedom of expression does not govern the communication of sales pitches. 1st ammendment rights protect what and how we communicate our own ideas. advertising is not protected by this in our personal affairs, effects, or home. email falls within this protected area and spam is a personal intrusion. on a similar note, disturbance of the peace is not protected by the 1st ammendment.
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Anonymous Coward, 1 Mar 2008 @ 6:13am

Re:
Let me guess, you use hotmail or some other equally crappy free mail service?

He already has 9 years in prison. I know 9 years might not seem like a lot of time to you, but in reality, it's a big portion of your life. That's more than some murderers or rapists get.

How about those advertising companies that pound your snail mail box with flyers and coupons every other day? They don't even HAVE an address on them! Talk about spam, lol.

What about the mail order catalogs? You order one thing from their online store, pretty soon you get a thick wasteful catalog mailed to you weekly. Save some friking trees already.

I could care less about the spam in my email. I use gmail, which has a REALLY good spam filter. So, I only get about 1-4 actual spams in my inbox. The rest are appropriately sent to the spam box.

When you say "put this bum in jail for as long as he lives", well that just sounds pretty damn stupid, doesn't it?
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Bruce Barnett, 1 Mar 2008 @ 6:23am

Free Speech ends when it interferes with one's rig
Free Speech does not grant one the right to FORCE other people to listen to them. Yes, people have a right to free speech. But people also have a right to not listen to it as well. Both rights should be EQUALLY protected.
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BTR1701, 1 Mar 2008 @ 7:59am

Re: Protected Speech vs Commercial Speech
> As I recall, previous verdicts along the same lines have distinguished
> between "protected speech" (protected by the First Amendment)
> and "commercial speech", which enjoys no such protection.
> Spam is "commercial speech", therefore anti-spam laws are
> not unconstitutional.

That's just flat wrong.

Commercial speech does indeed enjoy 1st Amendment protection, just at a lesser level. The Supreme Court rulings hold that if speech is purely commercial in nature, it is subject to greater regulation by the government than pure speech but it cannot be outright banned or regulated so heavily that it's effectively banned.

The only type of speech that has no 1st Amendment protection whatsoever is obscenity.
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BTR1701, 1 Mar 2008 @ 8:03am

Re: Jurisdiction
The real question here is how effective a state spam law can really be. Virginia only has authority over Virginia. If a person sends out spam from California or Alaska or Japan or Russia, Virginia has no way of enforcing its laws against the spammer, even though the spam landed in the inboxes of Virginia citizens who are physically in Virginia.

I live in Virginia and about 60% of the spam I get is full of Japanese characters and is unreadable by me, even if were interested in whatever product they are trying to sell. How does Virginia's spam law help with that? It's not like they can extradite someone from Japan to answer for it even if they could find them.
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jes4120, 1 Mar 2008 @ 8:06am

Re: Re: Protected Speech vs Commercial Speech
I think the point is that commercial speech can be regulated where as political speech is fully protected by the U.S.constitution.
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Tommy Jordan, 1 Mar 2008 @ 8:19am

Lock 'em up!
From the standpoint of a business professional, I have to agree that spam should be enforced MUCH more stringently than it is now. Send 'em ALL to jail!

There are thousands of people out there like me, hundreds of thousands actually, who run multiple domains for clients, for myself, for non-profit organizations, etc. In addition to MY spam, I have to receive all their spam, deal with spam targeted at obtaining their idendities, or with getting their credit information. Its damned aggravating and should be penalized WAY harder than it is now.

Between my domains and a couple dozen clients I have to filter through 400-600 spam emails on a good day, in addition to the ones caught by spam filters. No one can possibly spend enough time blacklisting fake domains to make that a viable solution.

This is not a first amendment violation and they should be locked up to rot! ( And personally, I think they should share a cell with the mail-order companies too!)
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Overcast, 1 Mar 2008 @ 9:47am

But - again - free speech assumes in 'public', right?

My inbox is not public. If I pay for email service, or even if it's free - to a degree, and depending on the terms of use I guess, it could be considered my property. Just like a car would be considered my property, even if I'm leasing it.

At least to the degree if you scratch it, I can seek damages, etc.

So if they want to create web pages on the public internet - fine. That's free speech.

Sending unsolicited email to MY inbox isn't free speech. It's intrusion.

If you agree that spam is 'free speech' - is it ok if I put up signs in your front yard advertising products to you?

The viewpoint that it's free speech ignores 'property rights' altogether.
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charlie potatoes, 1 Mar 2008 @ 9:53am

Re: Re: Spam
"The United States ARE somewhat supposed to be akin to the European Union, just more inline with one another. States are supposed to be their own little kingdoms that all obey a common set of rules and fund a common military."

That little misconception was settled in 1865 when the guy in the gray suit gave the guy in the blue suit his sword. And the correct verb is now IS, not ARE... "The United States 'IS'"--not "The United States 'ARE'". There effectively have been no 'States'Rights' since the court ruled in favor of the 'commerce clauses'. They own us, bubba.
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Anonymous Coward, 1 Mar 2008 @ 12:06pm

Re: Re:
Parse the law any way you want, but he is a dick and deserves to rot in prison.
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zcat, 1 Mar 2008 @ 12:29pm

Laws not required
Legitimate businesses don't spam; even if they did they would quickly find their mail servers blacklisted.

There probably should be a law that makes it clear that compiling and/or using blacklists are completely legal in all cases; they're only a suggestion of who not to accept mail from, and if I own the server I have no obligation to accept mail from all senders.

There doesn't need to be laws 'against spam'. The vast majority of spam comes through already-illegal zombie windows machines and already-illegal hacked servers. There needs to be a serious effort to enforce existing laws before we consider creating any more of them. Subpoena companies that are advertised in spam and demand that they reveal who they employed to send it. Track down the malware authors and bot-herders that make the current spam situation possible, and put them out of business.
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Anonymous Coward, 1 Mar 2008 @ 3:47pm

Re: Free Speech ends when it interferes with one's
interfering with one's rig... lol

its not hard to see which email is spam or real in your inbox. is it your first day online or something?
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Rob, 1 Mar 2008 @ 4:16pm

Re: Re: Free Speech ends when it interferes with o
I shouldn't have to sort through a hundred emails a day for the two that belong to me, just because I can.

Mail spam is bad enough, but then you take email spam and it becomes an issue. Mail spam is usually just a couple or a few a day. If that. Email spam multiplies day by day.
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John (profile), 1 Mar 2008 @ 4:39pm

Good lawyers
Good lawyers will do everything they can to get their client free. If this guy was charged with an anti-spam crime, then it's up to the lawyer to argue that the crime is unconstitutional.

Why didn't the state of Virginia charge the guy with all the other crimes (mail fraud, identity theft, false advertising, etc)? Or did they and the lawyer is trying the old strategy of "if one charge is unconstitutional, then my client should go free".

Most of the other crimes would probably "stick" because they've been around for a while. Yet Virginia is spending its tax money on the Supreme Court so they can hear a case on whether spamming is protected by free speech.

And what happens next? Does the guy (and his lawyer) appeal to a higher court? Should this case go all the way to the US Supreme Court, where the *US* taxpayers will have to pay for the time it takes the judges to hear the case?
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James, 1 Mar 2008 @ 8:31pm

Thank god for some common sense
While nearly anyone (but a stupid spammer) who has used email will be very, very pleased with this ruling.. I'm still in favor of public stonings for spammers.
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Anonymous Coward, 2 Mar 2008 @ 6:56am

Re: Spam
The U.S. Govt. has the role of protecting U.S. Citizens. The internet just happens to be the medium by which people get victimized.
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ehrichweiss, 2 Mar 2008 @ 1:11pm

Re: Re: Re: Spam
Are you talking about things related to common law and/or the Uniform Commercial Code?
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ehrichweiss, 2 Mar 2008 @ 2:18pm

Re: Re:
"When you say "put this bum in jail for as long as he lives", well that just sounds pretty damn stupid, doesn't it?"

Not to some of us. You see, most people have this hope that there will be some form of rehab that will change this guy's life but the real truth is that prison changes people for the worse not better(80% of the people released from prison are back in prison within 5 years, I think is the statistic) and this guy didn't have a very good attitude to begin with so when he gets out he will be a fine tuned criminal instead of a reformed spammer.
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Tony, 2 Mar 2008 @ 2:47pm

Spammers in jail
From the President on down. People who do not believe in free speech want billboard free highways. Signless and hidden businesses, no door knocks, phone rings or emails except from people they know, like and trust.
Capitalist solution = filters, content blockers, peep holes and caller id with answering machines.
Socialist solution = make it illegal to voice an opinion, support a candidate, post a flyer, send an email, call to help people know a fact, opinion or be oposed to something or somebody.
People do not want bothered until they need that product, service, or idea then with the new laws it will be too late. The USSR legacy lives io in Washington and each state capitol.
Be careful what you vote for, you just might get it and more you do not want.
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John, 2 Mar 2008 @ 5:54pm

Free speech
I may have a right to free speech, but I don't have the right to make YOU have to pay to hear what I have to say. That's what spam and unsolicited faxes are.
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Haapi, 2 Mar 2008 @ 7:04pm

Re: Laws not required
Indeed, blacklists are stating an opinion on who not to received mail from, and that is as much protected speech as the spam sources it prevents.
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Haapi, 2 Mar 2008 @ 7:07pm

Re: Free speech
Yah, that's what I was thinking. 1st Amendment rights allow a newspaper or any vehicle to publish what they want (obscenity, etc, notwithstanding) without government interference. It does not force me to by such newspapers, etc. Spam forces a price I have to pay, and that should be illegal.
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Anonymous Coward, 2 Mar 2008 @ 9:05pm

Whimps. Hit the delete. BFD. First off, unless you pay for your email service by email received, it causes you no harm. If you use a free service, too bad. No harm. Privacy? How does receiving a email violate your privacy? How? Are you forced to open it? Does it steal information from you? STFU. You want to make it easy for terrorists but throw a spammer in jail for life? Get some perspective and get a life.
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Rich Kulawiec, 3 Mar 2008 @ 5:55am

Spam is not speech
And is thus undeserving of any First Amendment protections. It's abuse. We've known this for 30 years, but apparently some of newbies haven't caught up yet.
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jonnyq, 3 Mar 2008 @ 6:27am

"computer trespass, identity fraud, false advertising,"

computer trespass? I don't think sending someone an unwanted email is computer trespass.

Identity fraud? Did he pretend to be someone else?

False advertising? Was there really V1AGrA or c1al1s available for the prices offered?

I fail to see any of those, but I fail to see a free speech issue, either.
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sonofdot, 3 Mar 2008 @ 7:55am

Re: Spammers in jail
What planet are you from? Put your tin foil hat back on, your brain is beginning to leak out.
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sonofdot, 3 Mar 2008 @ 7:59am

Re:
We can only surmise that you're a spammer, or the asexual parent of one. Plus, you have absolutely no friends, therefore spam is the only email you actually receive. Enjoy.
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James, 3 Mar 2008 @ 8:49am

Re: Spammers in jail
Tony your analogies fail. Billboards and business signs and even tv ads, while sometimes intrusive, generally serve a purpose (such as paying for the tv show you are enjoying) and also generally do not ruin a product or service you are trying to use.

Spam on the other hand is intrusive, invasive, unwanted and makes proper use of a spammed email address nearly impossible. It effectively ruins email, and the nature of the spam and the spammer is often, if not always, illegal.

Once a "supposed" company does something that steps on your toes its crossed the line. This is why spammers will never be respected, because they do not respect the email recipient. There is little to no responsible use for spam, therefore spam does not warrant the use or respect that other forms of advertising (even when someone might not want them) do.
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michael, 7 Mar 2008 @ 8:09pm

what if
If I started up a company that was to fight against the anti spamming law, lets say it took donations to fund the hiring of lawyers, and we used the internet to come up with a petition and violated this law in doing so, what would happen?

Just wondering.
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Bob Johnson, 10 Apr 2008 @ 11:45am

Spam
Calling spam a 1st Amendment right is ridiculous. The people who say that obviously have never been spammed. Spammers hide their identity and give no return address. A person is robbed of their right to tell that person to go away. The freedom of speech nutcase flagwavers are stupid, or are spammers themselves.
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francisco, 18 Feb 2010 @ 11:02pm

hey i like this....
Hey friends i like all of this...
but i have a problem... Im from mexico we dont have any antispamming laws in here so i want to write about it.
but i dont know if anybody can helpme find the antispamming laws in the us... thanx
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