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?

[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.

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.

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.

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?

[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?

[Ethanol-fueled]

they should also have to pay for a servant to cover their ears when the yeller is yellin'.

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?

[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?

[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?

[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?

[techno-vampire]

Meanwhile my snail-mail box will continue to overflow with junk mail everyday? Something is amiss.

The people sending that junk mail pay to have it designed, pay to have it printed, pay to have it sent through the mail. In fact, if there weren't any junk mail, first class postage rates would be higher. This is the exact opposite of the spammer who does their best to make sure other people pay for the advertisements they send out. This is why junk mail is legal and spam isn't.

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 Or you can remove your name some of the lists that become junk mail lists 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: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!

Re:SLASHDOT SUX0RZ

[Anonymous Coward]

Come on guys, you are abridging the previous AC's freedom of speech by modding him Troll! Who cares if what he is doing has a direct, negative effect on the people who use this service! His rights to free speech are more important than your rights!

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

Doesn't matter if it's ads.

[jcr]

This isn't a first amendment issue, it's a property rights issue. The spammer's got a right to say whatever he wants to say, but that right doesn't include a right to use other people's property to do so.

Basically, he got sent up the river for a hell of a lot of instances of extremely petty theft, which is as it should be. Let the fucker rot.

-jcr

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. :-)

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.

The law seems fine to me

[SparkleMotion88]

I don't think the law 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.

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.

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.

Missing link from story as submitted

[arbitraryaardvark]

In editing the submission, scuttlemonkey took out the link to TFA.
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

A Better Solution

[hyades1]

Never mind courts and jail and all that crap. Can't we just beat the son-of-a-bitch to death with our G1ANT PEEN1SES?

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.

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.

The first amendment does cover ads

[falconwolf]

No, the First doesn't cover ads, see Free speech v commercial speech. 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. Julie Hilden writes that commercial speech should have the same First Amendment rights, rights it didn't have in 2001.

Falcon

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 :).