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?

[Awptimus Prime]

Does the first amendment apply in this case? The man is sending mail from overseas servers that have no intent other than selling something. I know that the first amendment doesn't cover dangerous communication, or communication about illegal acts, but does it cover bad, mass advertising that costs the end user money and that they can't really opt out of?

I'd like to think it does.

Re:First Amendment covers ads?

[eln]

I would think that the first amendment definitely covers advertisements. If we decide the first amendment covers all speech except for the speech we find annoying, it isn't very useful.

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.

Re:First Amendment covers ads?

[Grokmoo]

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.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:First Amendment covers ads?

[Anonymous Coward]

The guys suggesting this is covered under 1st amendment should be sentenced to hearing a guy yell in their ear after every 2 minutes. It is allowed to use cotton.

Re:First Amendment covers ads?

[theoneandonlyed]

That's exactly it. No one is questioning the spammer's right to say something, or to sell his product. He can sell it on the streetcorner, in a shop, wherever. He can advertise it on TV, on billboards, on the Internet. What is, or should be, illegal, is sending it to the private e-mail accounts of people who don't want it, at the expense of their service providers. If that action is covered by free speech, then I should be able to throw a brick through your front window, step inside, and start hawking my wares to your family during your dinner hour. "Hey, just exercising my right to free speech!" The disturbing thing here is that any U.S. court would even entertain such a patently ridiculous argument.

The law seems fine to me

[SparkleMotion88]

I don't think the law [spamlaws.com] infringes on anybody's right to expression. The law is only related to falsifying e-mail transmission info. So if the guy bought a domain name and set up a smtp server and spammed from his domain and his server using a connection that he pays for, he wouldn't be breaking the law. It is reasonable to have laws like this to protect the defrauded service providers who were essentially duped into sending this guy's spam.

Re:First Amendment covers ads?

[hedwards]

It's not even a little bit strange. You don't find many here that support false advertising, not slightly misleading or mistaken either, but full on fraudulent adverts for items. Nor do you find many people here that think that a person has a right to an audience. If nobody wants to here what it is that you have to say there is no right to force them to listen.

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 falsely advertise products and forcing your way into people's mailboxes without any way of opting out.

Re:First Amendment covers ads?

[Trailer Trash]

You're right, it does. I'll be over later to spray-paint a message on the side of your house.

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 that any one spammer costs a bunch of money are the large AOL/Google/Hotmail/Yahoo types. However, they still cost everybody. People who own and operate mail servers should not have to pay for spam delivery, yet they do.

I'm mystified as to why a court would think the first amendment means that someone should have to pay for someone else's speech.

Re:First Amendment covers ads?

[Sancho]

Free speech generally applies to public forums and areas. My inbox is not a public forum or area, no matter how much the NSA might wish that it were.

Re:First Amendment covers ads?

[plantman-the-womb-st]

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.

Re:First Amendment covers ads?

[WaltBusterkeys]

The First Amendment doesn't require that the government force catalog companies to allow you to opt-out. Rather, the First Amendment allows the government to do that.

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 electronic spam, but there is no law about it until the government writes one.

As it happens, you can opt-out of postal mailings and the government will enforce your rights to do so. To get off a lot of junk mail lists, go here [privacyrights.org] Or you can remove your name some of the lists that become junk mail lists [myprivacy.com] for a fee.

Remember, the First Amendment is a restriction on government not on individual actors. To use the cliche example, the First Amendment doesn't make it illegal to yell "fire" in a crowded theater. Instead, the First Amendment has been interpreted to mean that a state legislature is allowed to write a law making it illegal to yell "fire" in a crowded theater.

Re:X-Prize for DEFINITION of spam

[TheLink]

"What we need is an acceptable definition of spamming"

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 know they are doing something wrong (otherwise why use someone else's email address instead of their own?).

They just lie to themselves and others that they aren't doing something wrong.

I believe fraud is lying for personal gain.

I doubt fraud is protected speech yet.

I suppose we don't normally categorize political campaign speeches as fraud, but they do seem to fit :).