Virginia Top Court to Re-Hear Spammer's Conviction

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."

Re:First Amendment covers ads?

[trolltalk.com]

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.

Headline not quite accurate

[swordgeek]

Here's an excerpt from the article:

"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.

Commercial Speech

[StormReaver]

According to http://www.lawpublish.com/amend1.html [lawpublish.com], commercial speech is protected by the 1st amendment, but to a lesser degree than non-commercial speech:

"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.

Re:First Amendment covers ads?

[tompaulco]

Spammers can advertise all they want, I have no problem with that. Nowhere in the first amendment does it say that the citizens of this country have to pay for a megaphone for every crackpot that has something to say.
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 their opinions in a public forum and I will come listen if I feel like it. The electronic equivalent to this is that the spammer has a website which I can visit if I choose. He can even pay to advertise it on other websites I might visit. If he wants to advertise it in my e-mail, that is fine as well, but he needs to pay me for that privilege.

Re:First Amendment covers ads?

[dgatwood]

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:

• Is the restriction content-neutral? It passes this test because it applies to all commercial speech, not just ads for certain types of products.
• Does the regulation support a significant governmental interest? Yes. It is designed to reduce the severe burden that processing this junk mail causes to the citizens of the country as a whole.
• Is it narrowly tailored? It passes this test because it is carefully crafted specifically to limit the harmful effects of the speech--specifically, the electronic equivalent of littering--without preventing legitimate communication between a company and its clients (with explicit opt-in and real opt-out).
• Does it leave open ample alternative channels of communication? It passes this test because again, it allows this communication, but only with consent.

Re:First Amendment covers ads?

[frankie]

"Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit.
"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

Re:First Amendment covers ads?

[eln]

I don't see that as relevant because nothing compels you to open spam either. You can set up filters to automatically remove it, unlike postal mail. However, also unlike postal mail, even if the spam is caught and removed by your spam filter, you have still incurred some cost by the time it gets that far. The spammer has used your bandwidth and your CPU cycles, even if you never see the message.

Missing link from story as submitted

[arbitraryaardvark]

In editing the submission, scuttlemonkey took out the link to TFA. [law.com]
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

Re:His First Amendment rights end...

[Registered Coward v2]

...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.

The first amendment does cover ads

[falconwolf]

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