First Amendment No Excuse For Misleading Spam, Court Rules

Dennis Faas's picture

A North Carolina man has become the first person jailed in the US for spamming, despite his attempts to cite the First Amendment. The Virginia Supreme Court upheld a nine year sentence given to Jeremy Jaynes, though only by a 4-3 margin.

It's thought he sent ten million spam messages in July and August of 2003 alone, though the original prosecutors only presented evidence of 53,000 messages sent over a three-day period (it's a felony crime to send more than 10,000 spams a day). He was found guilty on three counts, and given a three year-sentence for each. Jaybes was prosecuted in Virginia, where the AOL servers he used were housed.

Though sending unsolicited messages isn't illegal in itself, Jaynes was charged under the 2003 CAN-SPAM act. This requires senders to include a method for recipients to contact them and request they send no further emails. Jaynes did not do this, and used fake email addresses to send the spams.

He claimed the laws were unconstitutional because they breached the First Amendment's guarantee of anonymous free speech. He also argued that they illegally restricted his ability to carry out trade across state borders. (Source:

Jaynes' appeal was dismissed because the state's Supreme Court judges ruled that, although the laws could arguably be seen as so broad they unfairly restrict free speech, this didn't apply to purely commercial messages like the ones Jaynes was sending, particularly as some of the content was misleading.

They said that to overturn Jaynes' conviction would risk allowing anyone found guilty of misleading commercial activity to use the First Amendment as a get-out clause. Jaynes may now appeal to the national Supreme Court in Washington, DC. (Source:

It's a complicated case, particularly because Jaynes' appeal was largely based on hypothetical arguments. But the main message the judges seem to have given is that free speech laws are no excuse for illegally misleading communication, and that principle still applies online -- to US citizens at least.

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