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All spam is not equal

Mass commercial e-mails can be barred, but not religious or political messages, a court rules.

September 22, 2008

Jaws dropped onto keyboards across the country last week when the Virginia Supreme Court, citing the 1st Amendment, overturned the conviction of a man accused of swamping computers with more than 10,000 spam e-mails in a single day. Fortunately, there's no need to worry that your inbox is about to be invaded: The reasoning of the decision doesn't affect anti-spam laws in other states, including California, that punish only unsolicited commercial messages.

Jeremy Jaynes was convicted of violating Virginia's Computer Crimes Act, which makes it a crime to send unsolicited bulk e-mail from a fraudulent address. Using files stolen from AOL, Jaynes used several computers, routers and servers to send e-mails to the Internet portal's subscribers seeking payment for imaginary products and services. He concealed his identity by altering header and sender domain information.

In voiding Jaynes' conviction and nine-year prison sentence, the court emphatically did not condone what Jaynes did. It focused not on the facts of his case but on what it said was a fatal flaw in the law: It punished not only anonymous commercial e-mail but also e-mail propounding a political or religious viewpoint. The 1st Amendment protects such speech, the court said, even when it is anonymous.

For most Americans, the mention of anonymous messages may suggest obscene telephone calls or poison-pen letters. But anonymous communications have a long and honorable history in political and religious debate. In a 1995 U.S. Supreme Court case cited by the Virginia justices, Justice John Paul Stevens noted that the Federalist Papers advocating ratification of the U.S. Constitution were published under fictitious names.

In ruling in Jaynes' favor, the Virginia Supreme Court noted that the protection for anonymity wouldn't apply in cases of mass commercial e-mail. It approvingly cited a federal anti-spam law and those of other states (including California) that govern only such e-mails.

That distinction makes practical and constitutional sense. No doubt some computer users are just as upset to find a missive in their inbox touting Barack Obama or John McCain as they are a sales pitch for "herbal Viagra" or a request to help a former African finance minister withdraw funds from a U.S. bank. But political -- and religious -- speech has always enjoyed special protection. The message of the Virginia ruling is that government must not classify such messages as spam.

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