Virginia Supreme Court rules spam doesn't qualify as free speech

Upholding the conviction of one of the world’s most notorious spammers, a tight 4-3 ruling in Virginia’s Supreme Court determined that spam is not a form of protected free speech.

Jeremy Jaynes, a resident of Raleigh, N.C., had previously been listed by spam-tracking firm Spamhaus as the “8th most prolific spammer in the world,” and was arrested in December 2003 on charges of violating a new Virginia anti-spam law, enacted the previous June.

At the time, prosecutors said that in a period of just one month, Jaynes and a partner sent over 100,000 e-mails to AOL users that were in turn reported as spam, with untold more going to other ISPs. Using a T1 line, Jaynes used fake names and return addresses to peddle everything from bad stocks to work-at-home schemes. One such scheme saw 10,000 $39.95 orders for a “FedEx refund processor,” which supposedly paid $75 an hour.

Jaynes’ 2004 conviction – the first of its kind in the nation – earned him nine years in prison, with a jury finding him guilty of three counts of using deceptive routing information to send unsolicited bulk commercial e-mail. His out-of-state location did not save him: Virginia’s antispam statute is enforced against any mail passing through the state, and Jayne’s main targets (AOL and its upstream provider, MCI) both had offices in Virginia.

In his appeal, Jaynes argued that Virginia’s anti-spam statute was a violation of the First Amendment and the interstate commerce clauses of the U.S. Constitution, claims which were rejected by both the Virginia Court of Appeals and the Virginia Supreme Court.