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No, I'm not trying to make the world safe for spam.
No, I don't think there is a First Amendment right to e-mail ads for male sexual enhancement products.
Yes, I do believe in private property and in everyone's right to control access to his own e-mail inbox.
Yes, I accept that spam can and should be regulated, even by imposing severe penalties.
And no, despite the rash of abuse I have received from friends, acquaintances and strangers -- none of these statements is the least bit inconsistent with my trying to invalidate Virginia's anti-spam statute in the Virginia Supreme Court appeal of Jeremy Jaynes, the so-called Megaspammer.
The U.S. Supreme Court has long recognized that, at least with noncommercial speech, the First Amendment protects the right to speak anonymously. Are you not then a little bothered by a state statute that criminalizes sending anonymous political e-mail to Congress? Or one that subjects someone in Australia to felony prosecution in Virginia for sending anonymous religious e-mails to Malaysia? Before I explain, let me tell you about the charges against Jeremy Jaynes.
On three different days in the very first month Virginia's anti-spam statute went into effect, Jaynes sent 10,000-plus e-mails from his home in North Carolina to AOL customers. He was advertising legal products, but disguised his identifying information in the e-mails. Each e-mail looked to be coming from a different computer, a technique often used by spammers to evade spam filters.
Jaynes was arrested in North Carolina and charged with felony violation of Virginia's statute because his e-mails went through AOL's servers in Northern Virginia. There was no evidence that Jaynes knew that the servers were in Virginia, that any of the e-mail addressees were in Virginia, or that Jaynes intended his e-mails to touch Virginia in any way. After extradition, Jaynes was tried before a jury, found guilty and sentenced to nine years in prison. He appears to be the only person in the world ever charged with, much less convicted of, a felony for sending e-mail, when the message of the e-mail is not itself illegal (e.g., fraudulent or obscene).
Virginia's anti-spam statute criminalizes the sending of "unsolicited bulk electronic mail" if the sender "falsif[ies] or forge[s] transmission information or other routing information." Although the statute contains no definitions (how many of us know what "transmission information or other routing information" refers to?), the attorney general says it prohibits changing self-identifying information in the headers of mass e-mails. Send any such e-mail and it's a misdemeanor; more than 10,000 in a day, and it's a felony punishable by up to five years of prison per violation.
While Virginia, like other states, can regulate spam, it is prohibited from trampling the Constitution in the process. Virginia's statute chills free speech, in violation of the First Amendment, by threatening to imprison anyone sending anonymous mass e-mails, even of a political or religious nature. Care to e-mail all members of Congress about the Iraq War, disguising your identifying information in the e-mail headers because you fear governmental retaliation? That's a misdemeanor. Add all congressional staff to put your e-mail total over 10,000, and you've committed a felony.
By threatening criminal charges against everyone who sends anonymous mass e-mails that, intentionally or not, pass though Virginia, the statute effectively legislates for the entire world, in violation of the Commerce Clause of the Constitution. Send those e-mails to Congress from Hawaii or Guam instead of Virginia, and you're still subject to felony prosecution in Virginia because the e-mails would probably pass through servers here on their way to Congress. Indeed, because no sender can control the path that any e-mail will take, no one sending e-mail from anywhere in the world to anywhere can be certain it will not pass through Virginia.
And the statute's application is not limited to instances of gumming up the servers of the recipients of your anonymous e-mails. Suppose you engage in electronic missionary work to Muslim countries from your home in Idaho. For safety, you send your e-mails anonymously. Even if your Internet service provider (ISP) is happy for you to do it, and each of your 10,000 daily e-mails goes to a separate ISP overseas that welcomes it, you are subject to felony prosecution in Virginia because your e-mails would probably pass through this state.
(Think hard before you say that there is some "effect" in Virginia whenever e-mails pass through an ISP network located here. If 10 years from now all of the world's ISP servers are located in India, should Virginians sending e-mail to other Virginians be subject to prosecution in India?)
Virginia obviously has no interest, much less a compelling one, in regulating religious e-mails sent overseas from another state. Why then did the General Assembly pass this statute? Because the author of the statute, then-Attorney General Jerry Kilgore, was running for governor and wanted to be able to say that he had passed the "toughest" anti-spam law in the land. He pushed it through the General Assembly just before passage of the federal anti-spam statute (the CAN-SPAM Act). In its haste to help Kilgore, the General Assembly rejected an amendment that would have limited the statute, like those of other states, to commercial e-mail that is sent from, or intentionally sent into, the state. The legislators forgot about the Constitution.
The First Amendment "Congress
shall make no law ... prohibiting ... the freedom of speech" embodies the fundamental freedom of our country. It reflects a profound faith in freedom of thought and expression. In the "marketplace of ideas," the government is not the arbiter. It cannot and should not decide which ideas are offered for public consumption. The free exchange of ideas is critical to making the government responsive to the people, to advancing the pursuit of truth and knowledge, and to achieving individual fulfillment (the "pursuit of happiness"). Communication is the soul and engine of democracy so much so that we allow anyone, even bad actors, whose speech is regulated by a statute to challenge that statute based on the First Amendment rights of those not before the court.
Anonymous communication is vital to democracy. There are many valid reasons for anonymity to protect the speaker's privacy, to avoid retaliation by the government or others, or to prevent rejection of an idea simply because of the identity of the speaker. Had they not been able to disguise themselves as "Publius," James Madison and Alexander Hamilton may not have written the Federalist Papers. Restricting anonymity in noncommercial speech means restricting free speech.
Everybody hates spam, and understandably so. But trying to regulate it the way Virginia has done is, in Justice Frankfurter's memorable phrase, "burning down the house to roast the pig." We can regulate spam without torching the Constitution.Thomas M. Wolf, an attorney at LeClairRyan, represents Jeremy Jaynes in the appeal of his conviction to the Virginia Supreme Court.
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