Victory against Internet censorship -- anti-spam law struck down

The Internet has been a great democratizing influence -- it gives all of us unprecedented opportunities to spread our ideas through emails, our own blogs, and vistor comments on blogs and websites. In contrast to the old ways of spreading ideas, spreading ideas by means of the Internet is fast, easy, and free or very cheap. Also, the Internet makes it easy to target messages to people who are interested in a particular subject. However, there are evil forces attempting to sabotage this democratizing influence, e.g.: (1)Visitors' comments on blogs and other websites are arbitrarily censored, including blogs and other websites that are authoritatively cited by court opinions, scholarly journal articles, and other authorities. (2) I have had on-topic links to my blog censored on the grounds that the links "advertise" or "peddle" my blog. (3) A crooked Electronic Frontier Foundation attorney, Kevin Bankston, threatened to block my emails to other EFF staffers. (4) And if you don't know about Wikipedia, I suggest that you see the articles under the Wikipedia post labels in the sidebar. (5) And Virginia has -- or more correctly, had -- a law against sending non-commercial spam emails. Fortunately this censorious law has just been struck down by the Supreme Court of Virginia. A news article says,
.

RICHMOND, Va. (Sept. 12) - The Virginia Supreme Court declared the state's anti-spam law unconstitutional Friday and reversed the conviction of a man once considered one of the world's most prolific spammers.

The court unanimously agreed with Jeremy Jaynes' argument that the law violates the free-speech protections of the First Amendment because it does not just restrict commercial e-mails — it restricts other unsolicited messages as well. Most other states also have anti-spam laws, and there is a federal CAN-SPAM Act as well, but those laws apply only to commercial e-mail pitches.

The Virginia law "is unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mails, including those containing political, religious or other speech protected by the First Amendment to the U.S. Constitution," Justice G. Steven Agee wrote.

Agee wrote that "were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute." Publius was the pseudonym used by Alexander Hamilton, James Madison and John Jay in essays urging ratification of the Constitution . . . .

Lawyers for the state had argued that the First Amendment doesn't apply because the Virginia law bars trespassing on privately owned e-mail servers through phony e-mail routing and transmission information. The court rejected that characterization of the law.

That argument is ridiculous -- by that line of reasoning, junk postal mailers are trespassing on private mail slots and private mailboxes.

Attorney General Bob McDonnell said he was "deeply disappointed" and vowed to take the issue to the U.S. Supreme Court.

You are going to be even more disappointed when your appeal to the U.S. Supreme Court fails, bozo -- this decision of the Virginia Supreme Court looks airtight to me.

John Levine, a board member of the Coalition Against Unsolicited Commercial E-mail and one of the state's expert witnesses in the Jaynes case, said he too was disappointed, but added that the ruling won't have broad repercussions because Virginia is the only state that prohibits noncommercial spam.

In 2004, Jaynes became the first person in the country to be convicted of a felony for sending unsolicited bulk e-mail. Authorities claimed Jaynes sent up to 10 million e-mails a day from his home in Raleigh, N.C. He was sentenced to nine years but is currently serving time in federal prison for an unrelated securities fraud conviction unrelated to the Virginia case, Wolf [Thomas M. Wolf, Jaynes' attorney] said.

Jaynes was charged in the spam case in Virginia because the e-mails went through an AOL server there. The Virginia Supreme Court last February affirmed Jaynes' conviction on several grounds but later agreed, without explanation, to reconsider the First Amendment issue. Jaynes was allowed to argue that the law unconstitutionally infringed on political and religious speech even though all his spam was commercial. Wolf said sending commercial spam is still illegal in Virginia under the federal CAN-SPAM Act. However, he said the federal law does not apply to Jaynes because it was adopted after he sent the e-mails that were the basis for the state charges.

There is a national do-not-call list for unsolicited telephone calls, but there is no national do-not-send list for junk postal mail. The reason for the do-not-call list is that unsolicited telephone calls are a real nuisance -- the phone can ring any time of day and you must either answer it or record a message. Junk snail-mail is much less of a nuisance but still needs to be sorted out and discarded. However, spam email is the least nuisance of all because it takes just an instant to delete it.

On AOL at least, those who want to block spam have several options, e..g., (1) a sender filter (e.g., allow email only from AOL members, allow email only from a custom sender list), (2) a words and phrases filter, (3) a content filter. Blocked emails can be automatically deleted immediately or be sent to a spam folder for review. There is simply no excuse for this stupid Virginia law. This stupid Virginia law could prevent people from receiving emails that they really want to receive.

A lot of people have the mistaken idea that this anti-spam law was justified by a supposedly unlimited right to "privacy" in one's own home. This email spam is a much smaller invasion of privacy than sending you to jail if kiddie porn is found in the privacy of your own home.

On the Internet, freedom of speech considerations should outweigh most other considerations. For example, I have proposed a blogging "fairness doctrine" law or custom which would prohibit or discourage arbitrary censorship of visitors' comments on blogs unless the blogger posts a prominent notice warning that visitors' comments are subject to arbitrary censorship. One of the reasons for this fairness doctrine is that comment space on blogs is unlimited and free, unlike comment space in newspapers, magazines, radio talk shows, etc.. Another reason is that blogs are often authoritatively cited by court opinions, scholarly journal articles, the established news media, etc., making accuracy and fairness of major importance.

I very rarely send unsolicited emails to that dunghill Eugene Volokh of the Volokh Conspiracy blog but he sent me an email asking me to remove him from my email list. He was too lazy to hit the delete button to remove my email but he wanted me to go to the trouble of removing his name from my list. I told the lousy bum to go to hell. If spam emails were a real problem for the jackass, he would not have wasted time responding to mine, which he almost never receives.

Seriously, folks, isn't an unrestricted right to send our ideas over the Internet worth the minor bother of deleting spam? The freedom-of-speech right that you save may be your own. Yes, I know a lot of you think now that you would never send unsolicited email messages, but you might want to someday or you might join an organization that sends them. With millions of other voices out there, it is hard enough to make our own voices heard even without these efforts to censor our speech on the Internet.

Those who send email spam should be courteous to the recipients: (1) use a consistent sending address and (2) use very descriptive subject lines -- e.g., don't just say something like "this is something that you really need to know." I immediately delete emails with messages like "hello" if I don't know the senders.

IMO this ruling is airtight and Virginia is going to lose if it appeals to the US Supreme Court. Spam emails are constitutional for the same reason that it is constitutional to shout "fire" in a crowded theatre when there is a fire -- the benefits of allowing it greatly outweigh the benefits of prohibiting it.
.