A Supreme Court defense of spam

Visitors to the home page of the U.S. Supreme Court will look in vain for instructions on how to e-mail the court. That’s fortunate for the justices, who otherwise might find their in-boxes jammed with angry reactions to their refusal last week to reinstate a tough anti-spam law. The court’s action is sure to be unpopular with computer users weary of junk e-mail, but it was the correct one.

The high court left in place a ruling by the Virginia Supreme Court overturning the conviction of Jeremy Jaynes, who sent tens of thousands of spam e-mails through AOL servers seeking payment for imaginary products and services. He concealed his identity by altering header and sender domain information.

Jaynes, who is serving time in federal prison for a different offense, was sentenced to nine years in prison for violating Virginia’s Computer Crimes Act. The state Supreme Court reversed his conviction not because of the facts of his case but because the law under which he was prosecuted was too sweeping. It didn’t stop at targeting commercial e-mails, as federal and California anti-spam laws do. It also made it a crime to send anonymous mass e-mails with a political message.

For many computer users, an anonymous e-mail about Iraq or the economy is as unwelcome as a sales pitch for an impotence cure or an appeal for funds from a phony African finance minister. But the courts often have accorded more protection to political speech than to commercial speech. That isn’t surprising, given what the Supreme Court once called “a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open.”

In 1995, the court, in striking down a law against anonymous leafleting about a tax referendum, ruled that the 1st Amendment protects anonymous political speech. Writing for the court, Justice John Paul Stevens noted that the authors of the Federalist Papers, which played a key role in the ratification of the U.S. Constitution, used fictitious names. He concluded: “Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent.” The same reasoning applies to the electronic communication of political ideas.

Fortunately, the bulk of anonymous junk e-mails can still be policed by the government, although the best protection against spam remains improved technology, not the threat of prosecution. As for unwelcome political messages that do penetrate a computer’s defenses, having to delete them is a small price to pay for a robust democracy.