I've blogged a bunch about Jaynes, the Virginia spam case where the Supreme Court of Virginia struck down Virginia's anti-spam statute and overturned a 9 year sentence imposed on Jeremy Jaynes.  (See, e.g., ("Beating the Dead First Amendment Horse, Not Quite"); ("Va High Court Hears Free Speech Challenge to Spam Law"); ("VA to Revisit Rejection of First Amendment Challenge to Criminal Spam Law"); ("Va Supreme Ct.: Spam Law Violates First Amendment"); ("Trouble Stomaching the Virgina Supreme Court's Spam Decision").) 

Jeremy Jaynes filed his opposition to Virginia's petition to the Supreme Court to take the case.  You can access a copy of Jaynes's brief here [pdf], and the State of Virginia's brief at SpamSuite.com here.

There is no dispute that the law is overbroad.  Whether Jaynes violated the statute is also not an issue before the Court.  The critical issue is whether Jaynes can challenge the law since the law doesn't apply to him in an unconstitutional manner (he was not engaged in the political speech that the statute unconstitutionally restricts). 

I've gone back and forth on the case.  My first impression was that First Amendment challenges to spam statutes are typically a bust, but if there was ever a case where one was colorable, this was it [link]:

I agree with the prevailing wisdom that it’s folly to use a First Amendment argument in a spam case.  This case is the exception. 

By the time the Virginia Supreme Court invalidated the statute, I wasn't so convinced Jaynes's position was correct [link]:

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.

What now?  I liked Jaynes's brief, and thought it was the more persuasive of the two.  My personal sympathies lie with Jaynes.  However, I think there's a chance the Court will choose to hear the case.  With the disclaimers that I don't have any particular insight into the factors which influence whether the Court chooses to hear a case, and more importantly, I'm unfamiliar the unwritten dynamics of how the process works, I think there's a chance the Court will hear it. 

The dispute deals with a standing issue which always seems to be a hot-button issue.  The dispute also presents a procedural rule involving the First Amendment.  Another juicy topic.  This blog's money is on the Court taking the case. 

Other links:  Jon Katz ("First Amendment slays spam conviction"); Legal Satyricon ("Virginia Spam Case Commentary"); John Levine ("Virginia court throws out spam law; one spammer gets away with it"). 

NB:  Levine is quoted in Jaynes's filing at page 15.
   
More:  Tom O'Toole from BNA's TechLaw disagrees [link] (emphasis added):

I don't see where the Jaynes case presents any of these grounds for granting the writ. There are no other federal or state decisions on the same issues presented in Jaynes, namely, whether a statute criminalizing the transmission of bulk e-mail with false header information violates the First Amendment right to anonymous speech. None. Rule 10 makes clear that the Supreme Court is not in the business of correcting errors. The Virginia Supreme Court might have gotten the Jaynes decision wrong. Way wrong, even. But that's not the kind of case that interests the high court.

Second, only a handful of states (3?) regulate bulk e-mail. All the others regulate commercial e-mail -- speech that is analyzed under an entirely different set of First Amendment rules. It is hard to believe that the Supreme Court would take a case that has such small national significance.

Third, Virginia is in the process of turning its unsolicited bulk e-mail statute into an unsolicited commercial e-mail law, thereby eliminating the problems identified by the state supreme court. H.B. 1396 passed the Senate on Feb. 25 and is now ready for the governor's signature. Granting cert in this case wouldn't even have much of an impact in Virginia.

The beauty of the blogosphere!  People quickly point out when you may be wrong.  I have to admit, I'm not sure why Virginia is seeking review if it is amending the statute.