In September 2008, the Virginia Supreme Court unanimously ruled that Virginia’s then-enacted anti-spam laws were per se unconstitutional on the grounds that they violated the First Amendment right of freedom of speech. At the time, Virginia’s anti-spam laws prohibited the sending of unwanted, unsolicited e-mails, both commercial and non-commercial.
The Virginia Supreme Court argued that since the law failed to make any distinction between the different types of emails a user could be sending, it would have prevented political, religious and other messages covered under the First Amendment, as well as general commercial solicitations. The court also noted that the statute failed to meet strict scrutiny, pointing out that similar anti-spam statutes had been enacted by several states, as well as by the federal government (which passed the CAN-SPAM Act in 2004), but all those statutes were narrowly tailored to target commercial spamming. Justice G. Steven Agee, who wrote the unanimous opinion for the court and cited a 1995 U.S. Supreme Court case, stated “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.’” Along with the State Supreme Court striking down this law, its decision reversed the conviction of Jeremy Jaynes, the first person in the United States convicted of a felony for sending unsolicited bulk-emails. Jaynes was once considered one of the world’s most prolific spammers, sending mass emails anonymously by using false Internet addresses.
Immediately following this ruling in 2008, Virginia Attorney General Robert F. McDonnell promptly announced that he would appeal the case to the United States Supreme Court. Earlier today, the U.S. Supreme Court elected not to consider reinstating Virginia’s anti-spam law.