Right to Anonymous Internet Speech, Commonwealth v. Jaynes (amicus)
Virginia has what is touted as the nation's toughest anti-SPAM law. The statute makes it a felony to "[u]se a computer or computer network with the intent to falsify or forge electronic mail transmission information or other routing information in any manner 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." In November, Jeremy Jaynes became first person ever to be convicted under the statute. He allegedly sent huge amounts of unsolicited, commerical e-mails and falsified their origin. He was sentenced to 9 years in prison. On appeal, we filed an amicus brief in support of the defendant. Without defending the defendant's conduct, we argued that the SPAM statute is unconstitutional on its face because it would also prevent anonymous political speech in violation of the First Amendment. Oral arguments in the case were heard on March 7 in Alexandria. The Virginia Court of Appeals upheld the conviction on September 5, 2006 holding that the law is constitutional because it does not reach non-fraudulent speech.
On April 24, 2007, the Virginia Supreme Court agreed to hear the case, and we submitted an amicus brief to that court in June. Oral arguments were held on September 12, 2007. On February 29, 2008, the Virginia Supreme Court upheld the defendant's conviction, holding that he did not have standing to raise a first amendment overbreadth challenge. On April 28, the court granted rehearing on the standing issue, and we filed another amicus brief on May 8. On September 12, 2008, the Virginia Supreme Court ruled that Jaynes has standing to raise a first amendment challenge, and that in fact, the Virginia law is unconstitutional. The law is overly broad, criminalizing not only commercial SPAM but also anonymous non-commercial bulk emails containing political and religious messages. The state filed a petition for cert in the U.S. Supreme Court, which was denied on March 30, 2009.