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Anonymous Speech in Email Upheld in Spammer Case - Updated

By Pamela Jones et al.

I wanted to highlight for you in a ruling in a spammer case, Jeremy Jaynes v. Commonwealth of Virginia just decided by the Virginia Supreme Court, which struck down Virginia's anti-spam law as unconstitutional. Since the headlines about this story, such as this one in the Washington Post, Virginia AntiSpam Law Overturned, Spammer Walks, naturally point out that a notorious spammer has avoided jail time as a result, I wanted to make sure you understood the why of it.

You can read the entire decision here. I'll highlight the part that matters most. It's a matter of free speech, not because the law should allow spamming, but because the law in Virginia, unlike federal and other state laws, was found to be overbroad, since it blocked religious and political speech too. Virginia's legislature can fix that problem, but a judge can't substantively rewrite laws to make them constitutional. At issue in the case was false headers in emails, and the court significantly decided that the way email works, providing IP addresses and domain name information makes anonymous email impossible, so banning false routing information without narrowing the scope would end up banning constitutionally protected speech as well:

For example, were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute.

Full post as published by Groklaw on September 13, 2008 (boomark / email).