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Virginia Supreme Court Reverses Itself on Rehearing of First Amendment Spam Case:

In this morning's Jaynes v. Commonwealth decision, the Virginia Supreme Court unanimously struck down as overbroad a Virginia law that banned

[using] 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 ....

The court concluded that the law was substantially overbroad because it covered not just commercial spam advertising (such as the material that Jaynes was distributing) but also a substantial amount of innocent anonymous and pseudonymous noncommercial e-mail: "[W]ere the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute."

The court also rejected the state's argument that the statute should be read narrowly to cover only commercial advertising: "Nothing in the statute suggests the limited applications advanced by the Commonwealth. If we adopted the Commonwealth’s suggested construction we would be rewriting Code § 18.2-152.3:1 in a material and substantive way. Such a task lies within the province of the General Assembly, not the courts."

In late February, the same court held by a 4-3 vote that the First Amendment overbreadth doctrine applied only to federal courts, and not to state courts, a decision that struck me as quite wrong given the Supreme Court's overbreadth precedents. A petition for rehearing, however, prompted four Justices to change their minds.

Thanks to How Appealing for the pointer.

J. Aldridge:
This mean the First Amendment can exempt one from penalties of committing crime?
9.12.2008 4:54pm
fullerene:
I think a bit more explanation is needed as to why the Court ruled as it did. Central to its concern is that the fact that the statute prevented persons from falsifying header information as a means of protecting their anonymity when they spoke. To the Court, this was akin to outlawing anonymous speech.

I don't think it is technically true that transmission of the Federalist Papers by a person who signs off as Publius would violate the statute. One would have to forge the header. Instead, the court analogizes the forged header to the use of a pen name.
9.12.2008 5:01pm
one of many:
but Fullerene the court pointed out that the header is the same as a name, at least so far as protecting anonymity is concerned. To be anonymous one must be able to actually conceal one's identity, not just make part of it only discoverable indirectly.
9.12.2008 5:07pm
fullerene:

but Fullerene the court pointed out that the header is the same as a name, at least so far as protecting anonymity is concerned. To be anonymous one must be able to actually conceal one's identity, not just make part of it only discoverable indirectly.


How far can you take this analogy? Jaynes was caught even though he used forged headers. What other means to protect one's identity are constitutionally protected?
9.12.2008 5:15pm
Eugene Volokh (www):
J. Aldridge: Could you please stop the mystifying one-liners? If you have a specific argument to make it, please make it in a way that people can grasp. I assume, from having read a bunch of your past arguments, that you think the First Amendment should be interpreted according to its original meaning, and you think the original meaning extends only to banning prior restraints and not to banning subsequent punishments. Of course, the court has for over 70 years held the contrary, but you think all those precedents are illegitimate and should be reversed. Fine, but if I'm reading your argument right, please make that argument expressly. Don't just take up space with a question that to the average reader (one who is unacquainted with your hobby-horses) seems to call for an obvious "yes," given that this is what the Supreme Court has been holding -- with no dissents on the underlying question of coverage of subsequent punishments as well as prior restraints -- for over 70 years.

Incidentally, it seems to me that even under the view that the First Amendment should be read as covering only prior restraints, it would exempt one from the penalties for committing a crime -- for instance, a hypothetical crime of printing a book without a license from the censors.
9.12.2008 5:20pm
one of many:
How far can you take this analogy? Jaynes was caught even though he used forged headers. What other means to protect one's identity are constitutionally protected?

I believe that the secret ballot has been ruled as constitutionally protected through the 14th amendment, but I cannot for the life of me recall any case law on the issue. The word "means" is misleading, as is the argument about effectiveness, what is important is that statute as written prohibits any attempt (as well as Jayne's ineffective one) to make anonymous mass e-mailings, regardless of whether or not it is effective.
9.12.2008 5:21pm
Bill Poser (mail) (www):
A question for critics of "judicial activism". In this case the Virginia Supreme Court struck down the entire law as overbroad rather than restricting its scope on the grounds that restricting its scope would be legislating. Is it more "activist" to strike down an entire law as in this case, or to restrict its scope, which may be "legislating from the bench", but arguably comes closer to preserving the original intent of the legislature?
9.12.2008 5:55pm
one of many:
Depends M. Poser on what your philosophical underpinning for being opposed to Judicial Activism(tm) is. If you're a precedent and stability kinda gal then this isn't judicial activism (in accord with standing SC precedent in the area) while if you are a judicial restraint kinda guy it is pure judicial activism.
9.12.2008 6:07pm
Opher Banarie (mail) (www):
Is there a public interest in preventing anonymous messaging on the Internet? Email is essentially free to the sender. The recipient of bulk email, however, carries the expense of sifting the junk from the desired content.

In postal mail, the sender has the burden of paying for delivery and so may desire to pay the cost in order to be anonymous.
9.12.2008 6:10pm
Roger Schlafly (www):
I would not want Publius to be spamming me with forged headers either.
9.12.2008 6:11pm
one of many:
Is there a public interest in preventing anonymous messaging on the Internet?

But this is an overbreadth case, so the question has to be "is there a compelling public interest in preventing everyone from using anonymous messaging on the internet?" Your argument makes sense, but that darn overbreadth doctrine makes a hash of it. Of course if you could find that the statute isn't overbroad....
9.12.2008 6:26pm
Opher Banarie (mail) (www):
OK, I'll bite: I think there is a compelling public interest in preventing everyone from using anonymous messaging on the Internet.

There are tracking sites that report anywhere from 60% to 90% of all email is spam. If it were not possible for headers to be forged it would be harder to run various scams, as well as defeat much of the spread of virus and malware attachments.

Where do we sign?
9.12.2008 7:01pm
whit:

A question for critics of "judicial activism". In this case the Virginia Supreme Court struck down the entire law as overbroad rather than restricting its scope on the grounds that restricting its scope would be legislating. Is it more "activist" to strike down an entire law as in this case, or to restrict its scope, which may be "legislating from the bench", but arguably comes closer to preserving the original intent of the legislature?



It's more activist to do the latter. A law is either constitutionally valid, or it's not. and whether or not it is constitutionally valid is 100% unrelated to whether it's a GOOD law, as a matter of policy.

judicial activism seeks to ignore or reverse law that is "bad" as a matter of policy. judicial review should ignore whether the law is good policy or not and concentrate on whether or not it is consistent with the constitution. this means that the courts are NOT a check on bad law (bad, as a matter of policy) and the result is that very very bad law can be constitutional, and very good law can be unconstitutional. and that's ok.

There is no middle ground. Regardless of the original intent, the text comes first. The text is inarguable, the "original intent" isn't. If the text means the law is unconstitutional (in this case - overbroad, etc.), then the law is bad. The courts shouldn't "salvage" the law by "fixing" it. that IS writing legislation, and is simply NOT their place.

if the legislature is too stupid (as they often are) to write laws that are actually constitutional, then the law should be struck down. period. that is not judicial activism.
9.12.2008 7:05pm
Whole Truth (mail):
In my opinion the First Amendment has been subverted. It
guarantees Freedom of SPEECH - the assumption was you can
walk away from a speaker if you do not wish to listen.

Spam requires you read the message before deleting and leaves
open a tremendous amount of physical exercise daily, versus
a once or twice a week exposure to Speech you do not wish to hear and therefore walk away or close off the chatter.
9.12.2008 7:21pm
Fub:
If I'm reading the case right, it appears that the legislature could cure the overbreadth by amending the statute to something like:
[using] 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 [which solicits commercial action or contains constitutionally unprotected speech]....
That might not be a difficult thing to convince a legislature to enact. It would allow spamming with false routing information for otherwise lawful purposes (Ugh!) but it might be better than nothing. Commercial speech can be limited by time, place and manner.

Spammers are thieves. They steal far more than the time, effort and CPU cycles of intended recipients. They steal time, effort, CPU cycles and bandwidth of every carrier, SMTP server and relay. The total cost is enormous.

Sometimes I'd be happy to see a statute that made "he was sending UCE" an affirmative defense to Murder, mayhem or any other crime against the person.
9.12.2008 7:24pm
one of many:

OK, I'll bite: I think there is a compelling public interest in preventing everyone from using anonymous messaging on the Internet.

There are tracking sites that report anywhere from 60% to 90% of all email is spam. If it were not possible for headers to be forged it would be harder to run various scams, as well as defeat much of the spread of virus and malware attachments.

Where do we sign?

Hmmm, let me see if I can make it even clearer (dang I was hoping not have to do this, never a law professor around when you need one). A compelling interest is one which is compelling; national security will be destroyed without the law, enumerated constituional rights will be violated willie nillie without the law, without the law cats &dogs will be living together in the streets - these sort of things are interests compelling enough to willing to sacrifice a little liberty. No bright line test has been devised but we can be sure from previous decisions that making already criminal acts harder is not a compelling interest, nor is preventing people from being inconvenienced, in terms of being compelling enough to justify violating people's first amendment speech rights.
9.13.2008 12:33am