On September 12, the Virginia Supreme Court reversed the conviction of notorious spammer Jeremy Jaynes, who had been sentenced to nine years in prison following a 2004 trial. Jaynes v. Commonwealth, 2008 WL 4181177 (Va.). In doing so, the court also reversed itself, replacing a February 29 decision in which a 4-3 majority had affirmed the conviction.

This time, on reconsideration, a unanimous court ruled that Virginia's Computer Crimes Act, Code § 18.2-152.3:1, under which Jaynes was convicted, was unconstitutionally overbroad on its face by virtue of prohibiting speech protected by the First Amendment of the U.S. Constitution. Thus, the decision provides another example of the frequent tension between privacy laws and the First Amendment, as well as the consequent need for privacy statute drafters to consider carefully a proposal's implications for types of First Amendment-protected speech that are very different from the types of speech prompting the privacy legislation.

Trial Background

The conviction arose from Jaynes having sent spam from Raleigh, North Carolina, to America Online (AOL) subscribers. According to the court, on one day, he sent 12,197 pieces of unsolicited email with falsified routing and transmission information onto AOL's proprietary network. Similar transmissions were found on two other days. He was convicted under statutory language criminalizing using a computer network with the intent to forge routing information in connection with "the transmission of unsolicited bulk electronic mail through or into the computer network of an electronic mail service provider or its subscribers." Jaynes' conduct was a felony under the statute because his email attempted to reach more than 10,000 recipients in a 24-hour period. Jaynes was convicted on three felony counts and sentenced to three years imprisonment on each, to run consecutively.

Earlier "Standing" Ruling

On appeal, Jaynes' conviction was affirmed by the Virginia Court of Appeals. It also was affirmed initially by a bare majority of the Virginia Supreme Court. Jaynes sought to argue that the statute was overly broad within the meaning of the First Amendment, but the majority opinion, written by Justice Agee, concluded that Jaynes lacked standing to raise such arguments, and, consequently, the court would not consider the merits of those arguments.

That standing ruling reflected the court's perception that Virginia courts are free to define their own standing rules, rather than being bound to follow the standing rules that would apply if the same First Amendment arguments were made in a federal court. Here Jaynes did not argue that the First Amendment prohibited regulation of the misleading emails he had sent and thus also did not argue that "no set of circumstances exists under which the Act would be valid" (a pure facial challenge). Rather, he wanted to argue that he should be exonerated because the "statute could potentially reach the protected speech of a third party." The majority declined to recognize such standing, even though it would be recognized in federal court, declaring that such an "unrestricted invitation to apply for a 'Get Out of Jail Free' card by merely pleading a hypothetical First Amendment infringement upon a hypothetical person not charged with a crime" would fail "the test of common sense."

"Standing" Reconsidered

On reconsideration, the unanimous court, in an opinion also authored by Justice Agee (who retired this summer and has joined the U.S. Court of Appeals for the Fourth Circuit), withdrew the earlier standing ruling. This time it adopted Jaynes' argument that a state's discretion in defining standing rules for state court challenges may enable a state to allow more challenges than would be permitted in federal court, but a state court does not have the discretion to allow fewer challenges than would be allowed in federal court. Thus, because Jaynes would have standing to raise his overbreadth argument in federal court, under the 14th Amendment, the Virginia courts must recognize such standing also.

The Overbreadth Analysis

Turning to the question of whether § 18.2-152.3:1 is overbroad, the court first concluded that "because email transmission protocol requires entry of an IP address and domain name for the sender, the only way such a speaker can publish an anonymous email is to enter a false IP address or domain name." It recognized that the "right to engage in anonymous speech, particularly anonymous political or religious speech" is protected by the First Amendment. The trouble with the Virginia statutory language is that it encompasses "unsolicited bulk electronic mail" generally. It is not "limited to instances of commercial or fraudulent transmission of email, nor is it restricted to transmission of illegal or otherwise unprotected speech such as pornography or defamatory speech." Thus, while regulating commercial spam can advance a compelling government interest sufficient to meet First Amendment standards, the present statute is not "narrowly tailored" to do so.

Having concluded that the Virginia statute was overbroad, the court went on to consider whether it is "substantially overbroad," meaning that it punishes a substantial amount of protected speech, judged in relation to the statute's plainly legitimate sweep. The court determined that this "substantially overbroad" test was met, because the statute "would prohibit all bulk email containing anonymous political, religious, or other expressive speech."

Finally, the court considered whether there was a narrowing construction it could adopt that would save the statute. It rejected the Commonwealth's narrowing proposals on the ground that they would require the court to "rewrite" the statute, which it found to exceed its authority, being "within the province of the General Assembly, not the Courts."

Future Implications

Having found the statute unconstitutional, the court vacated Jaynes' conviction. That may not be the end of it, however, because Attorney General Robert F. McDonnell immediately announced his intention to seek review by the U.S. Supreme Court. In the absence of U.S. Supreme Court intervention, the message is clear. If you are advocating enactment of a privacy statute that restricts speech, make sure it is appropriately and narrowly drafted.