Monday, March 03, 2008

On the need for weaker medicine

I've been mulling over the 53 pages of the Virginia Supreme Court's decision in Jaynes v. Com.

There were two opinions. The majority opinion written by Justice Agee concluded that the spammer's conviction should be affirmed, for reasons including his lack of standing to complain about the potential overbreadth of the criminal statute. The dissent by Senior Justice Lacy concluded not only that the spammer could assert the First Amendment rights of others, but also that the statute was overbroad and unconstitutional as applied to those rights of others.

I think that the dissent makes some good points about standing, and that the majority's commercial/non-commercial distinction seems somewhat poorly-reasoned. Even so, the taboo against representational standing is much stronger across the board in Virginia jurisprudence than in federal court, and the majority's conclusion strikes me as consistent with that approach.

Moreover, the merits of the case strike me as indistinguishable from the Hicks case, where the U.S. Supreme Court held that "the Virginia Supreme Court should not have used the 'strong medicine' of overbreadth to invalidate the entire RRHA trespass policy." The dissent in the spam case would overprescribe the strong medicine once again.

Justice Lacy tries to wrap the flag around her First Amendment argument, pointing out that the Internet needs to be wide open because people use it for the classic kinds of political speech. Yeah, but spam strangles that speech. Half the unsolicited political e-mails I get are trapped by the spam filters, with the Viagra ads and the Nigerian investment offers.

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