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

First Amendment covers ads?

[moderatorrater]

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?

Re:First Amendment covers ads?

[Anonymous Coward]

"Free" Speech doesn't mean you don't have to pay for the newspaper space - or the postage stamps - or the broadcast time.

Free Speech means you won't get locked up for standing in the park talking to anyone who will listen.

Please try to understand the difference.

Re:First Amendment covers ads?

[arbitraryaardvark]

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?

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

Re:First Amendment covers ads?

[hairyfeet]

Because many of the guys here are network admins and have seen the real costs associated with spam? I know we have probably had way too many analogies here already,but what the hell,let me throw in my own-

A few years back I took a temp job for a law office with a network from hell(actually set up by a gamer,shudder!) and everyday I would walk to lunch. As I would walk to lunch there would be this guy on the street corner saying we would all go to hell if we didn't repent,and reading furiously passages out of his bible. Even though I am an agnostic I have absolutely no problem with him being there and would even put money in his cup,simply because he never touched anyone and I supported his right to speak his beliefs. What I would NOT have supported is him walking into my backroom every morning,plopping his ass down in fron of my monitor and FORCING me to deal with his crap every day.

Because in a very real sense that is EXACTLY what the spammer does. While I have never had the misfortune to be the email admin,I have known enough guys who were,and have seen first hand how much time they waste every damned day on garbage that flows like a sewer into their email servers. That is time they could be helping there fellow employees with problems,doing backups and upgrades,etc. Not to mention the bandwidth and the amount of money his employers spend on dealing with this junk. I have no problem with the spammer advertising his wares.I DO have a problem when he forces us all into unwanted expenses for the sake of his easy profits. And NO you can't say they "pay for their bandwidth" as most spam comes from botnets designed to force someone ELSE to fit the bill. That is why spam is so damned popular with scumbags. Somebody else gets the bills and the spammer gets the checks.

So while I am all for free speech I'm afraid that just like the *.A.A doesn't have the "right" to permanent profits neither IMO do spammers have the "right" to force their crap on me. But that is my 02c and you are free to ignore it. You also don't have to worry about me stuffing it in your mailbox if you do either,LOL!

Unintentional Humor???

[Kiralan]

Does anyone else find it funny/ironic that the one of the sidebar 'Related Links' is to '* Compare prices on Spam Software' ??? K

First Amendment?

[LocutusMIT]

Let's see. Hundreds of emails each day, with no way to make them stop? Sounds an awful lot like harassment. I don't think the First Amendment covers that.

Perhaps he should be tried for several hundred thousand counts of harassment if he's successful here.

Re:Doesn't matter if it's ads.

[sootman]

I wouldn't mind getting spam if every piece of it came from a company's own servers and with a legitimate return address. But when spammers a) steal resources (via botnets and trojaned machines) to send their mail and then b) they forge the From: header so you can't possibly respond, I think it's pretty clear from part B that they know that what they're doing--part A--is wrong.

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. :-)

Spamming is a major crime, treat it that way.

[farbles]

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.