Trouble Stomaching the Virginia Supreme Court's Spam Decision

I've been sort of thinking about what I find so problematic about the Virginia Supreme Court's opinion in Jaynes (striking down Virginia's spam statute) for several days.  I don't think it will have much influence on other state spam laws or be persuasive in the context of CAN-SPAM (all of which regulate commercial speech), but I just was not sold on the decision.  (Maybe it's the court's activist way of telling us 9 years is too long of a sentence for spamming?)

I was amused to read prior posts of mine here and here, and surprised at how neutral I come off in those posts.  (Here are other reactions:  John Levine (largely "agree[s] with the legal analysis"); Volokh (earlier decision which this opinion replaced was "quite wrong"); Dozier ("Justice Steve Agee's authored opinion, got it right").)

The background (the two previous posts of mine are from different stages in the case and talk about the appeals court and first Va. S.Ct. decision) is that there was no dispute that Jeremy Jaynes who was prosecuted under Virginia's spam statute sent emails which violated the statute.  The dispute was over whether the statute was overbroad, and whether Jaynes could challenge it using an overbreadth argument.  The Virginia Supreme Court initially found that he could not raise this challenge.  Jaynes filed a petition for rehearing.  The court reheard the decision and basically reversed itself.  I was pretty surprised by the reversal. Here's why.

Orders Granting Rehearing:  First, the order granting rehearing didn't really focus on the First Amendment issues and the final opinion itself spends 1-2 pages on the substance of the issue.  I guess one could argue that all Justices agreed on the substantive First Amendment principles but just disagreed on standing so a reversal on standing/overbreadth pretty much resolved the case.  I don't buy this (the varying opinions disagreed on many different points). 

The court's initial order granting rehearing said this (April 2008):
1. In the context of a claim brought in a state court challenging a state statute under the First Amendment overbreadth doctrine, are state courts required to apply the same standing requirements as to that claimant that the claimant would be accorded in a federal court considering a similar First Amendment overbreadth claim?

2. Assuming, arguendo, that the first question is answered in the affirmative, has the Appellant (a) waived the argument presented in the Petition for Rehearing at pages 1 through 5 as not made in Appellant's briefs or on oral argument; and (b) is appellate consideration of the issue barred because Appellant approbated and reprobated (e.g., did Appellant agree in prior proceedings in this case that a state court may establish its own standing requirements but in its petition for rehearing contend that a state court must, at a minimum, apply federal standing requirements)?

3. Assuming, arguendo, that the first question is answered in [**2] the negative and a state court is not required to accord equivalent standing, as in a federal court, in a First Amendment overbreadth challenge to a Virginia statute involving commercial speech, what is the precedential effect of Wayside Restaurant, Inc. v. City of Virginia Beach, 215 Va. 231, 208 S.E.2d 51 (1974)?
No mention of the anonymous political speech issue.  The court then followed up with a clarification (May 2008):
By order dated April 28, 2008, the Court granted a petition for rehearing in the above-styled case limited Click for Enhanced Coverage Linking Searchesto three issues stated in the order. Resolution of these issues may require consideration of Appellant's assignment of error 2 claiming that Code ยง 18.2-152.3:1 abridges the First Amendment right to anonymous speech and that Jaynes has standing to raise this challenge. Therefore, the record, for purposes of this rehearing, will include all previously filed briefs, record and argument of counsel relevant to these issues in addition to the argument of counsel and briefs presented pursuant to the April 28 order. The parties, if they so desire, may address the First Amendment and standing issues in oral argument, in addition to the three issues stated in the April 28 order.
There's nothing procedurally wrong with this but it just seems like the First Amendment issues which ultimately resolved the case were not really hashed out - they seemed like afterthoughts.  So much so that they were not even mentioned in the court's initial order granting rehearing.

The Merits:  here's the dispute on the merits.  Jaynes was engaged in commercial speech that the court assumed (and I think he admitted) violated the statute.  The statute went beyond commercial speech and regulated political speech and this is what the court found troubling.  Specifically, the court found that the statute restricted the right to anonymous political speech which the US Supreme Court had recognized [link].

Here's the text of the Virginia statute - [a person is guilty of transmitting spam where the person]:

[u]ses 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.

I can't really see how it curbs the right to anonymous political speech.

Admittedly people may have the right to send out anonymous political email messages.  It's not at all clear that a person would necessarily violate the statute in the process.  It depends on the particular service people use and how you characterize it.  With respect to anonymizer services I think it's more accurate to say that a person who uses an anonymizer to send out a message is actually obscuring transmission information rather than falsifying it or forging it.  (The Washington spam statute actually has "obfuscation" or "obscuration" language in its statute.  It also covers the "point of origin" as well as "transmission information".  Two potentially relevant differences that the court could have discussed.)  It's also worth pointing out that the statute doesn't really limit the speech, just one particular means of disseminating it.  Again, you can freely host anonymous content on the web. 

Another way to look at it is that anyone can create a yahoo account or register a domain name with privacy protection and email away.  Are you actually revealing your identity by doing this?  Of course not.  Will someone have to issue a subpoena to obtain your identity.  Yes.  Will they be able to?  Probably not - see Doe v. 2The  This is an important point that the opinion does not address: you don't need to obscure the transmission information in your email message because the law has built in anonymity protection.  People cannot just identify you by your email or even your IP address. 

The only reason you would need to "falsify or forge" transmission information is if you are trying to trick someone into thinking you are someone that you are not.  And that's a key difference between the door knockers in Watchtower Bible & Tract Society and the anonymous political spammers protected by the court in Jaynes.  In the door to door context, at least the listener has the ability to look, evaluate the speaker, and decide whether he or she wants to hear more.  Or maybe let the speaker in and talk over a cup of coffee.  In the email context you don't have this luxury.  You rely on where the message is coming from.  When taken to the extreme the court's opinion could stand for the proposition that a political speaker has the right to spam you continuously, as long as no products are sold or pitched.  This sounds like a pretty absurd proposition.  (Here's a case that would have been worth discussing as well.)  There's a distinction between making political content available on the web and pushing it to your inbox anonymously.  I'm not sure it's clear what the First Amendment protects.

At the end of the day I think the court could have gone either way.  I guess I was most disappointed with the lack of in depth discussion of the issues.  I think Dozier is right, it probably make sense for the Virginia AG to approach this as a problem solver and go to the legislature to fix the statute.  That said, if I were him I may be tempted to put some energy into seeing if the US Supreme Court would take this one.

Either way, kudos to Jaynes's lawyers - big win for them.
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