The Prosecution of Jeremy Jaynes by the Counselor Russell McGuire
The Internet has long been described as the "Wild West" with regard to the application of law. We disagree with this characterization in that many laws applying to traditional media are generally applicable to the Internet as well, but for the sake of a good analogy, we’ll note that one of the most notorious "virtual" outlaws in recent years is one Jeremy Jaynes. On September 12, 2008, Mr. Jaynes’s conviction for violating Virginia’s Anti-Spam law was overturned by that state’s Supreme Court, thereby saving him from nine years in a very real jail.
For nearly a decade, Mr. Jaynes rode through cyberspace leaving a trail of mayhem in his wake. As prolific as he was evasive, he is believed to have sent hundreds of thousands of unsolicited Emails or "SPAM" a day from his home in Raleigh, North Carolina. In three particularly active days in July 2003, he used falsified header information and sender domain names to transmit 12,197, 24,172, and 19,104 E-mails to unwilling recipients, thereby violating Virginia Code Section 18.2-152.3:1, in which the good people of Virginia have declared the sending of email from false domain names to be criminal offense – and a felony if more than 10,000 E-mails are sent in a single day.
When he was cornered and captured by the men with badges, compact discs found in Mr. Jaynes’s home showed that he was in possession of more than 176 million E-mail addresses and more than 1.3 billion E-mail names (and you thought your E-mail accounts were becoming unmanageable). Many of these were subscribers to America Online ("AOL").
Because AOL’s servers are located in Virginia’s Loudon and Prince William Counties, enter Assistant Attorney General Russell McGuire, who led the prosecution against Mr. Jaynes in Loudon County. Jaynes moved to dismiss the charges on four bases: (1) as a North Carolina resident, he was not subject to the jurisdiction of Virginia Courts; (2) the Virginia statute violated the First Amendment to the United States Constitution; (3) the statute was unconstitutionally vague; and (4) the statute violated the "Dormant Commerce Clause" that permits commerce among the various states.
The trial judge wasn’t buying what he was selling, and neither was a jury of his peers, which found him guilty of three counts of violating Section 18.2-152.3:1. He was sentenced to three years in jail on each felony count, each of which was to run concurrently, so it looked like the outlaw Jeremy Jaynes would be doing his spamming from jailhouse computers for the next nine years. However, he was allowed to remain free on bail pending his appeals.
He stayed out in bail pending his appeals, which initially were unsuccessful, with even the Virginia Supreme Court declaring the law constitutional in April, 2008. However, an outlaw reaches legendary status only when he escapes the unescapable. With seemingly no legal route left, Mr. Jaynes’s attorneys filed a last-ditch, long-shot motion asking the Virginia Supreme Court to reconsider its own decision. It agreed to do so, and he walked.
On reconsideration, the Court reviewed the four arguments originally put forth by Mr. Jaynes. The most interesting legal analysis concerned Mr. Jaynes’s claim that his First Amendment rights were violated. Virginia’s attorneys argued that spamming was not speech, but a form of physical trespass that did not merit First Amendment protection. Though lower courts agreed, the Virginia Supreme Court noted that the Anti-SPAM statute does not prohibit the unauthorized use of another’s computer servers (the act required to effect the spamming operation) but rather the falsifying of sender and header information – actions designed to make oneself anonymous. And, while anonymous speech on the Internet may not carry the highest degree of credibility, it is consistent with protections offered for over 200 years, dating back to the anonymous pamphleteers who helped us gain independence.
In other words, Jeremy Jaynes is less Jesse James and more James Madison. Because the Virginia statute carries no exception allowing for a political message to be sent anonymously, it effectively criminalizes political speech meriting First Amendment protection. Virginia failed to do what at least nine other states were smart enough to accomplish: limit its Anti-Spam statue to commercial messages only. . .
The Virginia Supreme Court reversed Mr. Jaynes’s conviction. Our take, as much as we hate SPAM, is that the decision is the right one. It correctly assigns a higher priority to political speech. While we may hate spammers, we have made a judgment to protect speech on matters of public concern at almost any cost, including letting some falsehoods be uttered and heard — and subjecting ourselves to the occasional spam Email. This is basic, first year constitutional law stuff from New York Times v. Sullivan (a case in which the Supreme Court not only addressed the commercial speech/political speech distinction but held that the newspaper advertisement in question was less commercial than political).
In this case, the Court’s decision should make it reasonably easy for the Virginia legislature to correct the law’s constitutional infirmity. We’d be surprised if other legislatures aren’t already drawing up statutes for the relatively easy fix to their laws as well. Any legislators who don’t take heed deserve to have their banks "robbed" by an international businessman promising untold riches if you’ll just help him obtain his rightful inheritance.
