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Is Email Spam Illegal? Court Says it Is, No Jail Time for Defendant

By: Gerri L. Elder

Do you hate spam? Not the canned meat, the e-mail variety?

Of course you do. We all do. Everyone hates spam – except perhaps the justices of the Virginia Supreme Court.

Get ready for more spam in your inbox, as the Virginia Supreme Court has decided to strike down the state’s anti-spam law.

First Amendment: Right to Spam?

The court decided that the Virginia anti-spam statute violated the First Amendment right to free and anonymous speech.

This decision has effectively overturned the conviction of a North Carolina man who has been described as one of the nation’s most prolific spammers and will allow him to walk.


He may walk – or run – to the nearest computer and begin filling your e-mail inbox with spam. Remember, the Virginia Supreme Court says that it is his constitutional right to do so.

The Washington Post reported that in the case of Jeremy Jaynes, the decision of the Virginia Supreme Court was remarkable because the court actually reversed itself.

Six months prior to this decision, the same court had upheld the same anti-spam law with a 4-3 vote.

The Court Changed Its Decision

When Jaynes’ attorney asked the court to reconsider its decision, it inexplicably changed its decision.

This is fairly unheard of – even asking the Court to reconsider its own opinion was a long shot, last-ditch effort.

In 2004, Jaynes was convicted of sending tens of thousands of spam e-mails through America Online servers in Loudoun County, Virginia.

He was the first person to be tried under the then-new anti-spam law that had been passed in 2003.

After his conviction, Circuit Court Judge Thomas D. Horne sentenced him to nine spam-free years behind bars.

According to John Levine, president of the Coalition Against Unsolicited Commercial E-mail (CAUCE), the court overturned the anti-spam law because it outlawed all forms of unsolicited e-mail, not just those with a commercial purpose.

How the Federal CAN-SPAM Law Works

Levine says that the federal CAN-SPAM Act specifically outlaws spam used to promote a business or other financial gain.

So a flaw in Virginia’s anti-spam law is to blame for Jayne’s criminal conviction being overturned.

The First Amendment protects all people, even mass spammers.

Approximately 38 states now have laws to regulate spam e-mails, according to the National Conference of State Legislatures.

Anti-spam activists generally prefer to sue spammers under state laws because the federal CAN-SPAM Act includes a clause that requires the plaintiff to pay the defendant’s legal fees if the spammer is successful in having the case thrown out or decided in their favor.


This clause makes it a potentially expensive proposition to sue a spammer under federal law.

There is generally less financial risk under state anti-spam laws. However, as we see in Virginia, the state laws can be fatally flawed.

A federal spam lawsuit brought against e-mail marketer Virtumundo by anti-spam crusader James Gordon was dismissed last year and Gordon was ordered to pay Virtumundo $111,000 in legal and court costs.

Crusading against spammers is not for the faint of heart, nor the financially strapped.

Levin says that the anti-spam law in Virginia can be easily repaired if lawmakers will make the effort to word the law so that it only restricts unsolicited e-mails for commercial gain.

In the meantime, Virginia Attorney General Bob McDonnell has vowed to appeal the case to the U.S. Supreme Court.