And here I thought it was going to be a lazy Friday.  Thanks to Prof. Goldman I see that the Virginia Supreme Court issued its opinion in Jaynes, the state-law criminal spam case that has wound its way through the courts there.  It affirms the conviction and rejects the various challenges to Virginia's spam statute.

Access a copy of the Order here (pdf).  (As I side note I should say that it's not often one is actually excited to read an order in a case you're not involved with.  This is definitely one of those instances where the excitement is palpable.)  The news reports billed the case as the first felony conviction for sending spam.  (Previous discussions here.)

Defendant Jaynes brought several arguments in front of the VA Supreme Court, most of which were colorable.  He argued that he was not subject to jurisdiction in the state of Virginia, the law violated the Commerce Clause, and most interestingly, the law had First Amendment problems.  (I think the ACLU supported him by filing an amicus.)

Jurisdiction:  The court easily disposes of Jaynes's jurisdiction arguments.  It points to evidence in the record which showed that Jaynes routed a high volume of emails to AOL, whose servers are located in Virginia. 

Commerce Clause:  Jaynes actually had a creative argument on the commerce clause issue.  He argued that the statute improperly regulated emails which only "passed through" servers in Virginia, which ultimately ended up elsewhere.  Thus, he argued that in some instances the statute had a wholly extraterritorial effect.  The court rejects this argument, applies the Pike balancing test, and finds no commerce clause violation.

First Amendment:  Finally, the First Amendment argument.  Jaynes made several arguments under the First Amendment, including one which I thought was most interesting - the statute restricted the right to anonymous speech, since it prohibited anonymous emails.  The statute was not expressly restricted to commercial speech as I recall.  Thus it was well suited to an overbreadth argument.  As the dissent recognizes, the Supreme Court has affirmed on more than one occasion that the First Amendment protects the right to engage in anonymous speech (at least, political speech).  This statute potentially infringes on that right.

In resolving this issue against Jaynes, the majority delves into numerous First Amendment procedural issues and standards - I haven't had a chance to unpack the discussion yet.  But several statements in the majority opinion are well worth noting, including one statement which almost admits that the statute is subject to a challenge - by a different defendant:
  
Ultimately, the majority concludes that Jaynes lacks standing to challenge the statute on First Amendment grounds. 
I think conclusion is on shaky grounds for several reasons.  The dissent does a good job of setting them out.  First, the opinion discusses at length the appropriate level of protection for commercial speech.  As most people know, this is an area in which the law is not clear (see, e.g., Kasky).  Most watchers agree that the Supreme Court has already or would be willing to extend greater protection to commercial speech.  Second, the opinion goes into standing and whether (regardless of the commercial speech / std issue) Jaynes has the right to challenge the statute due to broader standing rules in the First Amendment context.  I'm not familiar with the law in this area, but the majority seems to say that this depends on whether the challenge is brought in state or in federal court.  This is fairly awkward (and arbitrary).  Finally, the court's conclusion that the email message itself was not subject to any First Amendment protection seems odd.

Will there be a next step?  Tough to say - I'll leave that to the experts.  The Supreme Court is probably more receptive to giving commercial speech broader protection.  On the other hand, it could be excited about limiting the standing rules in First Amendment cases.  Both of these are fairly interesting issues.  I have no idea whether this is a good candidate for further review, but the issues presented by the case are quite interesting.