The Volokh Conspiracy - Virginia Supreme Court Reverses Itself on Rehearing of First Amendment Spam Case:

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.

	[Eugene Volokh, September 12, 2008 at 3:48pm] Trackbacks Virginia Supreme Court Reverses Itself on Rehearing of First Amendment Spam Case: 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.