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."

Comments

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, 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?

[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