Virginia Top Court to Re-Hear Spammer's Conviction 216
arbitraryaardvark writes "Mega-spammer Jeremy Jaynes was convicted in Virginia of spamming in '05, sentenced to 9 years, and lost his appeal, 4-3, at the Virgina Supreme Court. But the court has just ordered a new hearing on whether the anti-spam statute is unconstitutional under the First Amendment. Slashdot previously covered the appeal and the conviction."
First Amendment covers ads? (Score:5, Interesting)
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Re:First Amendment covers ads? (Score:4, Informative)
The first amendment doesn't cover theft of resources, scamming, lies, shouting "fire" in a crowded theatre, etc.
The "theft of resources" was already dealt with by people who successfully sued for junk faxes. The first amendment doesn't apply.
The scamming and lies are covered by various legislation that requires truth in advertising.
The "shouting fire" was decided LONG ago ...
Hopefully, this is only going to appeal so that the guy wastes more $$$ and still gets the door slammed on his much-pounded-upon ass.
Re:First Amendment covers ads? (Score:5, Informative)
The appeal definitely won't go anywhere. Commercial speech is the least protected of all categories of speech and can be fairly thoroughly subjected to time, place, and manner restrictions. These, in turn, have a four-part test for their constitutionality:
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I once knew a spammer (by family, not by choice) and he would always claim it was protected speech under the 1st amendment despite my protests to the contrary.
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Yeah. The source is the semester of communications law and ethics I took in college. I'm a little fuzzy, though, and I'll willingly admit having to Google a bit to confirm the details before posting. The Wikipedia entry is pretty sparse on the subject. I'd kill for it to go into relevant case law on the various parts of the test and cite precedents where different things were and were not shown as protected.
If you want further info about the subject, though, google "time, place, and manner restriction
spam is unconstitutional (Score:2)
These spammers should be imprisoned for life.
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I'm usually a first amendment defender. But in this case, if the spammer wants societal protection from reprisals, they need to behave in a civilized fashion.
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The people sending that junk mail pay to have it designed, pay to have it printed, pay to have it sent through the mail. In fact, if there weren't any junk mail, first class postage rates would be higher. This is the exact opposite of the spammer who does their best to make sure other people pay for the advertisements they send out. This is why junk mail is legal and spam isn't.
snail mail and commercial ads (Score:2)
In fact, if there weren't any junk mail, first class postage rates would be higher.
Actually first class mail would be cheaper as those commercial flyers are mailed at a lower bulk rate. I used to mail them as part of a job I had as an assistant to a gallery curator. If I recall right we paid less than half the cost of a first class stamp.
And no we didn't send ads out to everyone. In the gallery we had a visitors' guest book which visitors could sign and provide an address if they wanted to be notifi
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Your logic is faulty. Just because the flyers go at a cheaper rate does not mean that without them first class prices would be higher. A large proportion of the mail costs are essentially fixed: the cost of delivering it from your local post office to your door. Flyers contribute to revenue without increasing this fixed cost.
In addition, don't you have to do some of the post office's work to get those
Your logic is faulty. (Score:2)
No I think yours is faulty.
Just because the flyers go at a cheaper rate does not mean that without them first class prices would be higher.
You're right, instead of being higher they'd be lower.
A large proportion of the mail costs are essentially fixed: the cost of delivering it from your local post office to your door. Flyers contribute to revenue without increasing this fixed cost.
Weight and volume are not fixed, and bulk mail increases both. As these increase either more tyme is needed to deliv
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The First Amendment is only a restriction on government power. It does not create any responsibilities on private citizens. The government may regulate postal junk mail, but there is no law regulating postal junk mail until the government writes one. Same for electronic spam: The First Amendment (probably) allows the government to regulate
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snail mail and commercial ads (Score:2)
Until they start locking up the directors of capital-one and other similar companies (that do snail mail spam), what right do they have to lock up email spammers? I hate spam as much as the next person, but it is no different.
It takes some research but you can opt out of at least some of those offers. For instance OptOutPrescreen.com [optoutprescreen.com] let's you opt out of credit card offers.
FalconRe:First Amendment covers ads? (Score:4, Interesting)
The first amendment doesn't cover theft of resources, scamming, lies, shouting "fire" in a crowded theatre, etc.
The "theft of resources" was already dealt with by people who successfully sued for junk faxes. The first amendment doesn't apply.
The scamming and lies are covered by various legislation that requires truth in advertising.
The "shouting fire" was decided LONG ago
The first amendment does cover ads. see discussion below of central hudson, see also 44 liquormart.
But this case isn't about ads. The first amendment covers lots of dangerous speech, lots of communication about illegal activities, lots of bad ads.
This is a case about whether the statute he was charged under is constitutional. If it's not, it's void and isn't law, and he can't be kept in jail under it, no matter how much we don't like the guy.
The shouting fire case was indeed decided long ago, 1919, schenck v united states. Schenck was put in jail for passing out pamphlets claiming that the draft was unconstitutional under the 13th Amendment. Personally, I think he was right.
The case was overruled in 1968 or 69 in Brandenburg. The reason Schenck is still the first case taught in First Amendment classes is that it was wrong.
Sometimes the theater really is on fire.
It's hard to write a statute that does what you want but stays within the first amendment.
It's easy to write a statute that bans spam, but also accidentally bans slashdot.
- arbitrary aardvark
The first amendment does cover ads (Score:3, Informative)
No, the First doesn't cover ads, see Free speech v commercial speech [stayfreemagazine.org]. After 1971 Supreme Court rulings whittled away at the separation of commercial speech and free speech. Whereas SC rulings before then maintained the separation. If that isn't enough, for instance if you don't accept that website, then try Findlaw [findlaw.com]. Julie Hilden [findlaw.com] writes that commercial speech should have the same First Amendment rights, rights it didn't have in 2001.
Falcon
X-Prize for DEFINITION of spam (Score:2)
Heck, thanks to a certain odd couple McCain-Feingold, it does not even cover Free Speech and Freedom of Association [washingtonpost.com] any more...
But I digress... What we need is an acceptable definition of spamming, that's better than "I know it, when I see it", which is the current standard. Maybe, a cool and well publicized X-prize would result in somebody coming up with one?..
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What we need is an acceptable definition of spamming, that's better than "I know it, when I see it", which is the current standard. Maybe, a cool and well publicized X-prize would result in somebody coming up with one?..
That's easy, spam is unsolicited commercial e-mail [wikipedia.org]. I apply it to snail mail as well.
FalconRe: (Score:3, Insightful)
I don't mind spam as long as they stuck to not telling lies.
Most spam I see has one or more of the following lies:
1) False return address and sender (recently one of them used my email address as return address)
2) False Subject
3) False names
4) False content e.g. "Email me at xxxx@yyy only, because I am using my friend's email to write this"
When someone has to lie so much it should be pretty obvious they are doing something wrong, even they themselves kno
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No one has ever said that being free to say something means that you shouldn't be held to account if what you said caused damage.
The issue isn't what he said, but how he said it. The statute is content-neutral. (From TFA: "it prohibits anonymous unsolicited bulk e-mails including those containing political, religious or other speech.")
The First Amendment doesn't protect broadcasting through a loud public address system in a residential neighborhood at 3:00 in the morning, it doesn't protect hacking into somebody's cable to transmit your own content instead of the content transmitted by the cable company, it doesn't protect spray p
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See, the first amendment says that the government can't limit my speech. As a private property owner, however, you *can* limit my speech inasmuch as you have to pay for the forum. I'm free to buy my own house and spray-paint the side of it. But when I decide that someone else should foot the bill, that's not a free-speech issue.
Spammers cost other people millions of dollars, in aggregate. The only companies tha
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Being free to do something doesn't mean there are no consequences, it simply means you can choose to do something.
free speech (Score:2)
I'm free to buy my own house and spray-paint the side of it.
Actually that depends on where you live. In some neighborhoods the Home owner's association [sandlakehills.com] has bylaws that prevent people from painting the exterior of their homes however they want. Here's what Copper Creek Association [coppercreek.net] has to say.
Falcon
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So, I can shout at the top of my lungs in front of your house praising the FSM, and you would have no objection?
Its an old saying, but Freedom of Speech means you can say whatever you want, but it does not mean anyone has to listen to you, or to help you say it.
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Re:First Amendment covers ads? (Score:4, Insightful)
However, in the case of spam, the spammer is forcing the recipient to pay for his speech without consent. That is why spam should be illegal, not because it's trying to sell something.
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Re:First Amendment covers ads? (Score:5, Informative)
"We therefore categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even 'good' ideas on an unwilling recipient. That we are often 'captives' outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere. The asserted right of a mailer, we repeat, stops at the outer boundary of every person's domain."
- Chief Justice Warren Burger, US Supreme Court, Rowan v US Post Office
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It would appear it has already been adequately covered by the SCOTUS, and the Virginia court is wasting everyone's time and money with yet another hearing.
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I am sorry for your inconvenience, but I think free speech is a little bit more important than that.
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Even aside from the monetary argument, someone else's right to free speech does not mean that I am required to listen, only that I don't have the right to gag him. No one has the right to come to my home , stand on my doorstep and shout out their opinions. Instead, they can feel free to shout
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And likewise in this case, you're combining those things to make something which is ultra offensive to many. You're using other people's resources to
Re:First Amendment covers ads? (Score:4, Insightful)
Comment removed (Score:5, Interesting)
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It seems strange to me that so many people on slashdot (and more generally on the internet at large) seem so gung ho free speech, yet at the same time are ready to burn spammers at the stake.
I am sorry for your inconvenience, but I think free speech is a little bit more important than that.
While Free Speech is important commercial speech [wikipedia.org] is not nearly as important. In Kasky v. Nike [findlaw.com] California's Supreme Court set up a 3 part test on "when a court must decide whether particular speech may be subjected
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MOD PARENT UP (Score:2)
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Why can't I horde my mod points for things that need it?
too bad it doesn't apply to Congressmen (Score:2)
Was nice of them to give themselves exceptions to most related laws.
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Every time they allow something like this it EXACTLY as if they are allowed to come up to your house, open the door, and sit next to you on the couch and say, "Hi, my name is Joe Blow and I would to screw, uhhhh, represent you in government".
If it is wrong for a telemarketer, and it is wrong for a spammer, then it is wrong for a congressmen. The whole theory behind it being that it serves the public interest to be forcibly made aware of just who is runn
Re:Doesn't matter if it's ads. (Score:5, Interesting)
Note that I said I wouldn't *mind* spam in these conditions. I'd be even happier to receive no ads, period, but as long as they have to pay their own way and not hide their identity then I figure it's not AS bad as what they do now. I *would* accept an inbox full of junk mail if it meant that acres of trees didn't have to die to keep my physical mailbox full of junk. I don't disagree with people who say "you have no right to be in my inbox, period"--I just don't personally feel as strongly. Marketing assholes will be marketing assholes until they're all exterminated; so we may as well give them a less-wasteful outlet for their bullshit.
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But it does let you place it on people's car windshield, mailbox, and front doors. Spammers aren't breaking into your account to get you information, they are placing
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Someone sending spam *entirely* with their own equipment (NOT using botnets, hacked servers, open relays, etc.) is within their rights. They may be a PITA but so are streetcorner preachers hollering over the town square -- the venue is different but the effect is the same: annoying, but still "free speech", as free to the spammer or preacher as it is to everyone else. H
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Hm, sounds like AT&T/Verizon/Comcast. I'll remember that next time net neutrality laws come up and everyone is talking about how the Internet should be unfettered by business interests.
How do you "steal" bandwidth anyway? Is that like "stealing" an mp3?
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Does the first amendment apply in this case? (Score:2)
No, the First Amendment doesn't apply in this case. In this case the speech used is commercial speech and it's only been recently that commercial speech has even been considered. The phrase "commercial speech" [stayfreemagazine.org] first appears in a Supreme Court ruling in 1971. Prior to then the First was never applied to commercial advertizing.
FalconRe: (Score:2)
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False advertising is not a first amendment is
Unintentional Humor??? (Score:2, Interesting)
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*eyes closed* "Thaaaanks!"
You see what you did with your gay little browser?
I'm afraid Slashdot has disappeared completely... up its own asshole.
Two Words (Score:2, Flamebait)
Headline not quite accurate (Score:5, Informative)
"Yesterday, however, the justices agreed to hear arguments on whether Jaynes could challenge the anti-spam law as unconstitutional in general, even if it was constitutionally applied to him." (Emphasis mine)
So that means that he gets to present arguments that would support his ability to appeal on constitutionality. Pretty circuitous.
Also, I think it's great. Spam is clearly theft of services, and the sooner that gets legally solidified, the sooner the dirtbag spammers will quit being able to whinge about free speech.
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And I'm wondering, what kind of arguments can to disallow someone from appealing the constitutionality of a law? If the constitutionality of a law is in question, then disallowing someone from appealing leads to the possibility of someone being held unconstitutionally but having no recourse. On the other hand, if the constitutionality of a law i
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So that means that he gets to present arguments that would support his ability to appeal on constitutionality. Pretty circuitous.
The Supreme Court isn't required to review every case that is appealed; they can look at the previous decision and decide that there is nothing to be considered differently. In order for the Supreme Court to review a case, they must first grant what's called a "Writ of Certiorari," which requires that 4 out of 9 judges deem it worthy of appeal.
First Amendment isn't relevant (Score:2)
The law seems fine to me (Score:4, Insightful)
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He could argue that abridging the right to publish anonymously is unconstitutional, even if the law itself was applied in a legal manner.
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BTW I've received anonymous spam that promoted unpopular political viewpoints; imagine if this were, say, China and such spam might be your only way of learning about western democracy.
Commercial Speech (Score:5, Informative)
"In Central Hudson, the Supreme Court set out the important four-part test for assessing government restrictions on commercial speech:
'[First] . . . [the commercial speech] at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.'"
Almost all spammers will fail the first test, including the waste of skin from the article. There is no such thing as a legitimate spammer.
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By this standard, virtually all commercial speech should be prohibited. Admittedly, this might lead to a gigantic leap in the quality of products and servic
Spam/advertizing should NOT be protected by th 1st (Score:2)
I don't see this as any different than him having the ability to legally breaking into my property to hand me an advert. According to his thinking, I don't have to read the advert, but he has a right to force his way into my property to give me the advert while trying to disguise himself, and lying about who/what he is to get past any defenses.
Shouldn't I have to invite him in?
*d
Re:Spam/advertizing should NOT be protected by th (Score:2)
First Amendment? (Score:2, Interesting)
Perhaps he should be tried for several hundred thousand counts of harassment if he's successful here.
You know whos being left out here (Score:2)
Wow, nine years? (Score:2)
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Missing link from story as submitted (Score:3, Informative)
Howard wrote:
"Va. Supreme Court to revisit divisive spam case; It upheld convictions but will consider constitutional issue": The Richmond Times-Dispatch today contains an article that begins, "The Supreme Court of Virginia yesterday agreed to a limited rehearing of its closely divided decision upholding the first felony spam convictions in the country."
My earlier coverage of the Supreme Court of Virginia's original 4-3 ruling in this case, issued February 29, 2008, appears here and here.
Yesterday's order granting rehearing on specified issues can be accessed at this link.
Posted at 08:04 PM by Howard Bashman
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Standing briefs tend to be a bit dry for non-lawyers.
If he wins this round, he can go on to try to win the next round, that the statute is unconstitutional and can't be applied to anyone, even him.
Jeremy Jaynes, Appellant,
against Record No. 062388
Court of Appeals No. 10
A Better Solution (Score:3, Funny)
Never mind courts and jail and all that crap. Can't we just beat the son-of-a-bitch to death with our G1ANT PEEN1SES?
Its constitutional (Score:2)
Spamming is a major crime, treat it that way. (Score:3, Interesting)
My mail server gets 1.2 million spams a day compared to about 5,000 messages a day of legitimate traffic. My business has suffered from lost customers and lost business from mail delays caused by spam storms, much ill-will from customers has been caused and much time and money has been spent on anti-spam resources, not to mention all the lost technical time which could have gone into research and development of innovative products which instead gets wasted fighting spam storm related issues.
Spamming is not a first amendment issue, it is basic fraud and theft. Mega-jail sentences should be applied because the damage being done is major. It's not just a waste of bandwidth and people's time to delete the messages, it is real dollars and cents damage to the point where it is helping to drive my business under.
If one of my family members were a spammer, they'd be lucky to just have a busted nose and broken limbs. I'd go berzerker on their sorry ass. No mercy for spammers. None.
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Forgot to mention, spam has tripled in the last eight weeks after doubling twice in the six months before that.
Victimless crime, my Aunt Fanny. Death is too good for the spammers.
Forgive me, Cowboy Neal, for I have sinned! (Score:2)
How to make Gmail the spam target of absolute last resort.
The goal of this s
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Emails that use forged information are not that difficult to identify, and sanctioning individuals and businesses that do it would have no effect on genuine exercises of free speech.
Emails that lack a meaningful way of opting out, disregard instructions to drop the address or mislead the reader about who sent it and why, are likewise not protected free speech.
It's just not as nebulous as a lot of people would
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1. If someone who is not me sends out mail from my computers, they are indirectly stealing from me through the extra costs involved in having and disinfecting a subverted machine:
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...where my SMTP server and email accounts begin. The Do Not Call registry, as well as the laws banning unsolicited faxes and telemarketing calls to mobile phones also operate on this principle.
That's the key - snail mail senders are paying the cost of sending the email; here you are covering its cost.
On a related note, I wish those principles applied to my snail mailbox, I'm tired of dealing with all the junk mail. I'm about ready to go truly paperless and just take the darn thing down, because the postal service is only concerned about the money they make from bulk mailers and not whether I want that trash, which I have to dispose of. It takes far more effort and potential expense to deal with trash mail than spam, even. It's of course the USPS' choice, since they own the system and think it's fine and dandy. I treat it the same way, though, I don't even CONSIDER unsolicited commercial mail from anyone, it goes right into the trash. I don't even open them to sort out recyclable content.
The USPS has a form - 1500 Application for Listing and / or Prohibitory Order - that allows you to stop being sent pornographic material. You need to fill it out for each sender; what is explicit or pornographic is your call. So, if you find coupon mailers pornographic or explicit, well, to each his own.
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You are aware, are you not, that somewhere between 80 and 95% of all mail is spam, and spam takes way more servers and bandwidth than ALL other uses of the internet combined?
You pay for that, I pay for that. It costs ME money. Some users pay bandwidth by the byte. It costs them even more.
What would your connection cost if spam was once and for all eliminated? What could you ISP save in bandwidth and servers, and pass on to you in lower fees?
Its not JUST an irritation, its theft of services.
Nic
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> government intervention belongs.
Oh, please, lets not add more government.
If you offer a GOOD email protocol which solves the major problems with SMTP, and put up a few demonstration servers and give the code away free (like sendmail, qmail, postfix etc) it would take off by itself, with no need of government intervention.
Witness any number of today's wildly popular protocols, web applications, chat clients, Voip clients. No government needed.
Someday