Stupid Legal Watch: Zany Spam Decision in Virginia

The Virginia Supreme Court’s recent declaration that the state's anti-spam law is unconstitutional was flat-out wrong.

However, it did one good thing. It erased a sentence completely out of proportion to the crime.

The decision reversed the conviction and nine-year prison sentence of a Jeremy Jaynes, a man once considered to be one of the world's most active spammers.

Is he bad news? Yes. Should he do time? Probably. But nine years? Anyone who says ‘yes’ should do just one night in the slammer.

The nine-year sentence was nuts.

But even nuttier was that in its latest decision, the court unanimously agreed with Jaynes’ argument that Virginia’s anti-spam law violates the First Amendment of the U.S. Constitution because it restricts non-commercial e-mail as well as commercial messages.

In rendering the court’s opinion, Justice G. Steven Agee wrote Virginia’s anti-spam law is “unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mails, including those containing political, religious or other speech protected by the First Amendment of the United States Constitution.”

Basically, as long as there’s no money involved, anyone with a cockamamie political idea or religious conviction can spam away and do it by any means possible.

Yes, the courts have long held that commercial speech does not enjoy the same constitutional protection as other forms of speech, which is also nonsense, but a debate for another day.

The problem with this ruling is spam is not now, nor has it ever been, a free-speech issue. This is a point where even the most anti-commercial anti-spam zealots are dead-on correct.

E-mail is unlike other media. The person doing the communicating does not bear the full cost of transmission. Inbox providers such as Google and Yahoo spend a great deal of time and money maintaining inboxes on their networks—the keyword in this statement being “their.”

It’s their network. They own it. Of course, property rights are not absolute. For example, just because someone owns a sidewalk doesn’t mean they can decide people of certain ethnicities are barred from walking on it.

But ISPs keeping their subscribers’ inboxes usable by blocking unsolicited and unwanted mail isn’t by definition an unreasonable, prejudicial act—at least not now that those who argue that there should be no commercial e-mail on the Internet have been thankfully drowned out of the debate.

There is no reasonable argument that ISPs should be forced to expend their own time and money processing spammers’ unwanted garbage, even political and religious unwanted garbage. Heck, people advocating causes are some of the worst spammers around. They think they’re on the side of righteousness, after all.

According to the Washington Post, Judge Agee said: "Were the 'Federalist Papers' just being published today via e-mail, that transmission by 'Publius' would violate the [Virginia] statute." Publius was the pen name for James Madison, Alexander Hamilton and John Jay.

Arguing that Madison, Hamilton and Jay would have the right to transmit the Federalist Papers anonymously and unsolicited via e-mail today is akin to arguing they should have had the right to force Ben Franklin to typeset, print and distribute them free in the late 1780’s.

The U.S. Constitutional guarantee of freedom of expression does not include the right to force others to use their property to transmit messages.