In this morning's Jaynes v. Commonwealth decision, the Virginia Supreme Court unanimously struck down as overbroad a Virginia law that banned
[using] a computer or computer network with the intent to falsify or forge electronic mail transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk electronic mail ....
The court concluded that the law was substantially overbroad because it covered not just commercial spam advertising (such as the material that Jaynes was distributing) but also a substantial amount of innocent anonymous and pseudonymous noncommercial e-mail: "[W]ere the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute."
The court also rejected the state's argument that the statute should be read narrowly to cover only commercial advertising: "Nothing in the statute suggests the limited applications advanced by the Commonwealth. If we adopted the Commonwealth’s suggested construction we would be rewriting Code § 18.2-152.3:1 in a material and substantive way. Such a task lies within the province of the General Assembly, not the courts."
In late February, the same court held by a 4-3 vote that the First Amendment overbreadth doctrine applied only to federal courts, and not to state courts, a decision that struck me as quite wrong given the Supreme Court's overbreadth precedents. A petition for rehearing, however, prompted four Justices to change their minds.
Thanks to How Appealing for the pointer.
I don't think it is technically true that transmission of the Federalist Papers by a person who signs off as Publius would violate the statute. One would have to forge the header. Instead, the court analogizes the forged header to the use of a pen name.
How far can you take this analogy? Jaynes was caught even though he used forged headers. What other means to protect one's identity are constitutionally protected?
Incidentally, it seems to me that even under the view that the First Amendment should be read as covering only prior restraints, it would exempt one from the penalties for committing a crime -- for instance, a hypothetical crime of printing a book without a license from the censors.
In postal mail, the sender has the burden of paying for delivery and so may desire to pay the cost in order to be anonymous.
There are tracking sites that report anywhere from 60% to 90% of all email is spam. If it were not possible for headers to be forged it would be harder to run various scams, as well as defeat much of the spread of virus and malware attachments.
Where do we sign?
It's more activist to do the latter. A law is either constitutionally valid, or it's not. and whether or not it is constitutionally valid is 100% unrelated to whether it's a GOOD law, as a matter of policy.
judicial activism seeks to ignore or reverse law that is "bad" as a matter of policy. judicial review should ignore whether the law is good policy or not and concentrate on whether or not it is consistent with the constitution. this means that the courts are NOT a check on bad law (bad, as a matter of policy) and the result is that very very bad law can be constitutional, and very good law can be unconstitutional. and that's ok.
There is no middle ground. Regardless of the original intent, the text comes first. The text is inarguable, the "original intent" isn't. If the text means the law is unconstitutional (in this case - overbroad, etc.), then the law is bad. The courts shouldn't "salvage" the law by "fixing" it. that IS writing legislation, and is simply NOT their place.
if the legislature is too stupid (as they often are) to write laws that are actually constitutional, then the law should be struck down. period. that is not judicial activism.
guarantees Freedom of SPEECH - the assumption was you can
walk away from a speaker if you do not wish to listen.
Spam requires you read the message before deleting and leaves
open a tremendous amount of physical exercise daily, versus
a once or twice a week exposure to Speech you do not wish to hear and therefore walk away or close off the chatter.
Spammers are thieves. They steal far more than the time, effort and CPU cycles of intended recipients. They steal time, effort, CPU cycles and bandwidth of every carrier, SMTP server and relay. The total cost is enormous.
Sometimes I'd be happy to see a statute that made "he was sending UCE" an affirmative defense to Murder, mayhem or any other crime against the person.
Hmmm, let me see if I can make it even clearer (dang I was hoping not have to do this, never a law professor around when you need one). A compelling interest is one which is compelling; national security will be destroyed without the law, enumerated constituional rights will be violated willie nillie without the law, without the law cats &dogs will be living together in the streets - these sort of things are interests compelling enough to willing to sacrifice a little liberty. No bright line test has been devised but we can be sure from previous decisions that making already criminal acts harder is not a compelling interest, nor is preventing people from being inconvenienced, in terms of being compelling enough to justify violating people's first amendment speech rights.