See the guy on the left? Remember his face. Throw darts at it. Deface it with a felt pen by drawing horns on his head, or perhaps a little Hitler moustache, or, maybe, Joseph Goebels glasses. That's "Super Spammer", Jeremy Jayne.He's a free man today, because the First Amendment to the US Constitution guarantees the right to "anonymous" free speech.
Ok... for those of you who don't follow this sort of stuff, here's some background. Way back in December 2003, the State of Virginia filed felony charges against this scumbucket under anti-spam laws that make it a criminal offence to falsify email header information. In other words, it was against the law to send out an email that you pretend is from someone else. That's SOP (Standard Operating Procedure) for spammers, who hide like cowards behind the complexities of the web by faking return addresses and originating server information on their junk emails.
Sadly, this week, the Virginia Supreme Court overturned the conviction, deciding unanimously that the law was in breach of the US First Amendment right to free speech. The court actually went further, deciding that free speech really meant "anonymous" free speech, citing the example of the one of the key triggers for the American Revolution, the "Federalist Papers", published anonymously under the pen name "Publius". They were actually written by US founding fathers James Madison, Alexander Hamilton and John Jay.
In its ruling, the court found that, had email been around in 1776, the Federalist Papers may well have been sent by anonymous email. It therefore concluded that protecting the right to send such emails and to falsify their origin to attain anonimity was entirely consistent with the spirit of the First Amendment.
Hmmm. I have to admit to very mixed feelings on this.
On one hand, I'm a passionate advocate of free speech, and I'm a great admirer of America's founding fathers whose collective intellect in framing the Declaration of Independence and the Constitution of the United States laid the foundation for a world of unprecedented wealth, comfort and freedom.
However, there is a line in the sand with this, and the challenge is to have the wisdom to draw that line in the right place. For example, we have Racial Villification laws in Australia that make it an offence to denegrate anyone based merely on their race, religion or sexual preference. I support that, even though it impinges the right to free speech we enjoy.
We also have laws which amke it a criminal offence to incite a riot, and I'm not so excited about that. Inciting a riot is, after all, the first step toward revolution, and while government would have have to be exponentially worse than it is now, I still want to retain the right to chuck it out.
But defining spam as free speech? Nah. I don't think Americas founding fathers would have considered the ability to send email flogging fake Viagra as a "right" worthy of protection under the Constitution.
I also don't think the court thought this through. The principal difference is that spam in my mailbox costs me money. If you don't understand how, CLICK HERE for a post I wrote way back about another Super Spammer, Robert Solway.
What the court has decided is, in effect, that the US Constitution mandates that I pay for the delivery of the message when someone who I don't know, and who has never ask my permission, seeks to exercise his right to free speech. In a perverse kind of way, that's taxation without representation, the very notion that started the whole shebang in 1776 in the first place.
It is clear that the judges sitting on the Virginia Supreme Court do not understand just how much, in real dollars, spam costs their economy.
I am expecting the Virginia decision to be overturned in the US Supreme Court soon.
3 comments:
Let us hope, pray and rally for it to be so!
I think it was a Supreme Court judge who said the right of free speech doesn't give anyone the right to yell "fire" in a crowded theatre. It would be bizarre if it gave someone the right to spam "fire" to twenty million people.
I hope the US Supremes overturn this decision also. The unfortunate thing is that if the law is written in a way that is unconstitutional then it'll be the law that will have to be re-written. This happens a lot with anything that deals with First Amendment -- for example, the laws criminalizing child porn manufacturers and distributors went through a bunch of passes before the most recent version was passed.
The underlying issue in those laws wasn't that people have a constitutional right to child porn, but that the law as written criminalized a whole host of legal and protected conduct. Therefore, it had to go.
It may be, and I don't know because I have not read the opinion, that the VA law was chucked out for similar reasons. Under First Amendment law, you do not have the right to fraudulent speech, and if you falsely identify yourself it is not the same as not identifying yourself. In other words, you have a right not to identify yourself, but you do not have a right to lie about who you are.
Part of the problem with legal reporting is often that whoever reports is not an attorney (or a good attorney), does not have familiarity with First Amendment law (very complex), and sometimes has an interest in a whizz bang article with a good sound bite.
All of that to say that it sucks that this guy has (so far) gotten away with his shit, but legislators will keep redrafting the laws until they stick. And maybe the Supremes will be of a different mind (which is quite possible because I read a lot of court opinions that clearly reflect a poor understanding of First Amendment law -- I don't pretend to be an expert, but I do a ton of First Amendment work so I have an inkling).
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