VA To Revisit Rejection of First Amendment Challenge to Criminal Spam Statute


Ethan's post links to the order granting rehearing on the narrow issue of standing.  Wow.  Of course, the court could reaffirm its previous ruling, but it definitely means that they'll think again about the issue.

Ethan has a previous post that thoroughly recaps the court's decision here.

Added:  the US Supreme Court issued a couple of First Amendment decisions this term in somewhat different contexts that could nevertheless be relevant to Jaynes.  Both decisions somewhat limited the types of First Amendment challenges which could be brought.  The first (Washington State Grange v. Washington Republican Party, et al.) involved a challenge to Washington State's top two primary system.  The system had not yet been implemented, but the state republican party challenged the system saying the system would infringe on its First Amendment rights.  The Court rejected the challenge saying that the implementation of the system could solve some of the hypothetical problems identified by the challenger and that it was not apparent people (voters) would be confused about party affiliation.  (Access a link to the opinions here.)  The second involved a challenge to Indiana's voter identification law (Crawford, et al. v. Marion County Election Board, et al.).  The challengers again brought a facial challenge, arguing that regardless of the particular implementations, the law imposed a unique burden on a particular class of voters with no countervailing justification.  While the Court was split, the Court applied the principles of Washington State Grange in ruling that hypothetical challenges to laws are disfavored.  The Court (again, which was split) found that there was insufficient evidence of an actual burden to a particular class of voters to strike down the voter identification law.  (Access a link to the opinions here.)

These cases obviously differ from Jaynes in a few respects.  However, they are similar in the sense that they turn on the procedural issue of whether the court is going to evaluate the particular application of the law based on the evidence before it, or whether it would look to other circumstances.  Jaynes's argument if I recall correctly somewhat depends on him being able to argue that although the law properly proscribed his conduct it was still overbroad and there were other innocent folks who could get swept up in the law.  And a corollary to the Supreme Court decisions from this recent term may be that these innocent folks should bring their own challenge - it's not appropriate for Jaynes to mount that challenge.  The narrow issue in Jaynes is whether federal or state standing rules apply. This could turn on state law and Virginia cases for the most part, unless US Supreme Court precedent has broad standing rules in place which allow people to bring First Amendment challenges.  Here there's a stronger argument to be made that the states should respect these federal standing rules.  On the other hand, to the extent the standing rules in federal court narrow the types of cases that can be brought and the types of First Amendment challenges, states are probably freer to impose their own standing rules.

It's tough to say how all of these decisions fit together (and the precise question reviewed again in Jaynes is whether state or federal standing rules apply in light of several specific cases) but it's still interesting to note a potential trend in the US Supreme Court to narrow the classes of cases where First Amendment challenges could effectively be brought.
 
 
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