Free speech vs. spam

[debgeisler]

Ars Technica reports that the first felony spam conviction has been upheld in Virginia, but by a fairly narrow margin.

Virginia's Supreme Court on Friday upheld the first US felony conviction for spamming. The spammer will serve nine years in prison for sending what authorities believe to be millions of messages over a two-month period in 2003.

Jeremy Jaynes is the man who will make history. A Raleigh, North Carolina, resident who made Spamhaus' top 10 list of spammers, Jaynes was arrested in 2003 even before the CAN SPAM act was passed by Congress. Jaynes was convicted in 2005, but his lawyers appealed the conviction. This past Friday, the Virginia Supreme Court upheld that conviction, but the vote was a narrow 4-3.

[...]

While defending Jaynes, his lawyers attempted to argue that a provision of the Virginia Computer Crimes Act violates constitutional First Amendment rights to "anonymous speech," as well as the interstate commerce clause of the US Constitution. The court rejected these claims due to Jaynes' use of fake e-mail addresses, which breaks the US CAN SPAM law's condition of giving recipients a means of contacting the sender. The court also stated that his peddling of scam products and services excludes him from First Amendment rights. In effect, the court said that you can't scam people and then cry "free speech!" when hooked by the law.

One hopes Jaynes asks the SCotUS for a writ of certiorari...because I'll be fascinated to see how the Court finds.

Comments

[stevemb.livejournal.com]

(IANAL disclaimer)

In general, "freedom of speech" arguments haven't gotten very far against time-place-and-manner restrictions designed to prevent significant costs or inconveniences from being imposed on bystanders. Unless he can make a plausible case that his speech as such, rather than simply a specific mechanism that creates a nuisance, has been curtailed, I don't think he's going to get anywhere.

[debgeisler.livejournal.com]

There are a bunch of issues here, including the one highlighted by the Virginia Supreme: that the anonymity was used to send spam that communicated a "scam," that there were no "opt out" measures, and so on.

TPM restrictions are not valid if the focus on message content...but measures designed to control communication which would lead to criminal acts (like fraud) is.

As I said, I really want SCotUS to review. And it will be interesting to discuss this case in my Media Law class -- see what the students have to say about spam and legality. :-)