Constitutionally-Protected Spam

[ Posted Tuesday, March 31st, 2009 – 16:33 UTC ]

No, I am not getting an early jump on April Fool's Day -- you did read that headline correctly. The United States Supreme Court, by letting Virginia's ruling in Jaynes v. Virginia stand, has carved out a constitutional right to send anonymous emails, as long as the subject matter is politics or religion. To put it another way, no law can be passed to restrict (or even breach the anonymity) of such spam, because the law itself would be deemed unconstitutional.

That's a pretty serious precedent to set, but very few realize the full implications. The Washington Post, reporting on the Supreme Court's decision not to take up the case, didn't even mention any such repercussions at all. Or, for that matter, the subject of the constitutionality of anonymous political spam (which, legally, is the most interesting thing about the case).

The court case at the heart of the matter, Jeremy Jaynes v. Commonwealth of Virginia, deals with that state's anti-spam law, which was found to be unconstitutional by Virginia's Supreme Court. I have written about the case before (when the state ruling was handed down), if you'd like further details. I also followed this article up with a more in-depth discussion of the legal and practical issues involved, due to lively debate in the comments about the first article.

Back then, I wrote:

The Virginia court case itself is a little technical and legalistic, so allow me to summarize it here. It doesn't have anything to do with politics, it is a case of your ordinary garden-variety spammer. Spam (for those of you who are using a computer for the first time in your life today) is any unsolicited email sent anonymously, usually for the purpose of selling you something (and often a hook for illegal or fraudulent activity). Because it has gotten out of control, both the federal government and individual states have been passing laws to ban the practice, and hold spammers accountable. Virginia passed just such a law, but it turns out the Old Dominion lawmakers didn't word it very well. Other states which have passed anti-spam laws have specified in their text that what was being banned was specifically "commercial" email spam. Virginia didn't make this distinction. Meaning that the law applied to all unsolicited email, which makes it a free speech issue.

. . .

But in their written decision in Jaynes v. Virginia [full text available in PDF format], the Virginia Supreme Court appears to have set a wide-ranging precedent. One that (if allowed to stand) could in the very near future make John McCain getting slimed by push-polls suggesting he "fathered a black baby out of wedlock" and this year's "Obama is a Muslim" emails wind up looking by comparison like two schoolkids passing mash notes at a Sunday School picnic.

From the text of the Virginia court's ruling:

[Having a registered online identity would] "necessarily result in a surrender of [the spammer's] anonymity." The right to engage in anonymous speech, particularly anonymous political or religious speech, is "an aspect of the freedom of speech protected by the First Amendment." By prohibiting false routing information in the dissemination of e-mails, [the law Jaynes was found guilty of] infringes on that protected right. The Supreme Court has characterized regulations prohibiting such anonymous speech as "a direct regulation of the content of speech."

. . .

That statute 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 United States Constitution.

. . .

[The law that was overturned] would prohibit all bulk e-mail containing anonymous political, religious, or other expressive speech. For example, were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute."

Meaning spam -- as long as it is political or religious in nature -- is equivalent to the Federalist Papers. This is ridiculous on the face of it, but this ruling has now been allowed to stand by the Supreme Court, meaning this will now be cited as a precedent.

The Jaynes case is never going to be as well known as other famous court rulings among the public. But you can bet that political operatives will know the name in the future. Because by putting a constitutional imprimatur on spam, the floodgates will be open wide.

And while it can be argued that scurrilous "Obama is a secret Muslim" emails did not work (seeing as how he won anyway), there are an awful lot of people out there who took it as Gospel truth and still believe that our president is lying about his religion.

You can also argue that the technological medium doesn't matter, since this sort of "whispering campaign" has been around forever, whether via word-of-mouth, pamphlets, the mail, or telephones. Email is just a new bottle surrounding some very old wine, in other words.

But how long is it going to take before every election season in this country causes mail servers across the land to groan under the coming tidal wave of baseless rumors and slander? How long will it be before every national campaign (and even state and local campaigns) hires a "Spam Expert" to do their dirty work for them? How long before the spammers start making millions of dollars, in the same fashion that political consultants are now relied upon for television advertising?

Is this really the road we want to go down? Isn't there some way of corralling this before it gets out of hand by requiring campaign finance statements to disclose any money spent in this fashion (the same way it does for television ads)?

Virginia and the Supreme Court have now set the bar extremely high, by calling political (and religious, a separate issue) spam "protected speech." Because while garden-variety "free speech" can indeed be legally limited (as with libel and slander laws, and laws against "fighting words"), protected speech cannot.

The spam flood is coming, and (if I am right) it will arrive in a very short time. The presidential election of 2012 will undoubtedly be a high-water mark in this inundation. And not only is the spam constitutionally-protected, the anonymity is as well. Meaning that any technological innovations in email protocols which require a verified sender may ultimately be declared unconstitutional because of how they limit such political free speech.

Perhaps I am just being alarmist here. Perhaps I am wrong about all of this. Or perhaps we will look back at Jaynes in the future with horror, as our inboxes fill up with mudslinging about the candidates. I truly hope I am mistaken about this, and not prophetic.

Only time will tell, I suppose.


-- Chris Weigant


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