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?

[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

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!

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.

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.