RICHMOND, Va.- The Virginia Supreme Court declared the state’s anti-spam law unconstitutional Friday and reversed the conviction of a man once considered one of the world’s most prolific spammers.

The court unanimously agreed with Jeremy Jaynes’ [pictured] argument that the law violates the free-speech protections of the First Amendment because it does not just restrict commercial e-mails — it restricts other unsolicited messages as well. Most other states also have anti-spam laws, and there is a federal CAN-SPAM Act as well, but those laws apply only to commercial e-mail pitches.

The Virginia law “is unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mails, including those containing political, religious or other speech protected by the First Amendment to the U.S. Constitution,” Justice G. Steven Agee wrote.

Agee wrote that “were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute.” Publius was the pseudonym used by Alexander Hamilton, James Madison and John Jay in essays urging ratification of the Constitution.

“In my view, the case was never about Jeremy Jaynes — it was about the First Amendment,” said Jaynes’ attorney, Thomas M. Wolf.

“The argument was never that there’s a constitutional right to send commercial spam. It was that the government cannot criminalize the sending of noncommercial e-mail for political and religious purposes, and that is what this statute did.”

Lawyers for the state had argued that the First Amendment doesn’t apply because the Virginia law bars trespassing on privately owned e-mail servers through phony e-mail routing and transmission information. The court rejected that characterization of the law.

Attorney General Bob McDonnell said he was “deeply disappointed” and vowed to take the issue to the U.S. Supreme Court.

“Jeremy Jaynes used the private property of Internet service providers to defraud individuals worldwide,” McDonnell said. “This was not a matter of free speech, it was fraud. Virginia acted appropriately to use this new law to put an end to this criminal behavior.”

John Levine, a board member of the Coalition Against Unsolicited Commercial E-mail and one of the state’s expert witnesses in the Jaynes case, said he too was disappointed, but added that the ruling won’t have broad repercussions because Virginia is the only state that prohibits noncommercial spam.

“I don’t see it as a fatal setback for anti-spam law,” Levine said.
In 2004, Jaynes became the first person in the country to be convicted of a felony for sending unsolicited bulk e-mail. Authorities claimed Jaynes sent up to 10 million e-mails a day from his home in Raleigh, N.C. He was sentenced to nine years but is currently serving time in federal prison for an unrelated securities fraud conviction unrelated to the Virginia case, Wolf said.

Jaynes was charged in the spam case in Virginia because the e-mails went through an AOL server there.

The Virginia Supreme Court last February affirmed Jaynes’ conviction on several grounds but later agreed, without explanation, to reconsider the First Amendment issue. Jaynes was allowed to argue that the law unconstitutionally infringed on political and religious speech even though all his spam was commercial.

Wolf said sending commercial spam is still illegal in Virginia under the federal CAN-SPAM Act. However, he said the federal law does not apply to Jaynes because it was adopted after he sent the e-mails that were the basis for the state charges.