When I heard that the Virginia Supreme Court had overturned notorious AOL spammer Jeremy Jaynes’ 2003 conviction for violating the state’s spam law, my first reaction was, “What were those judges thinking?” But I also knew I needed to dig deeper to find out why they had a change of heart.
It turns out Jaynes was convicted under Virginia law before the federal CAN-SPAM law went into effect nationwide in January 2004. The court found that the Virginia anti-spam law was too broad—it applied to both commercial and non-commercial speech, unlike CAN-SPAM, and it also covered anonymous speech, which is protected under the First Amendment to the U.S. Constitution.
CNET columnist Declan McCullagh has an excellent analysis of the reasons behind the reversal here in his article, Why Virginia is right to overturn spam conviction.
The Virginia ruling shouldn’t have any effect on email marketers who are subject to CAN-SPAM. If anything, it emphasizes why a uniform federal law like CAN-SPAM, despite its imperfections and detractors, is still a better legal weapon in the war on spam than a state-by-state patchwork of conflicting and contradictory laws.
The CAN-SPAM Act doesn’t have the same broad reach and First Amendment issues that the Virginia law has, so enforcement across state lines is more uniform. States can still have their own anti-spam laws, but they can’t be more restrictive than the U.S. law.
Fighting spam is a complicated and messy business but needs to be done without creating additional challenges for legitimate marketers.
