First Amendment: Email Spam
Virginia Code § 18.2-152.3:1(A) prohibits an individual from falsifying his identity to circumvent e-mail security measures and send unsolicited bulk e-mail. Although the statute is constitutional as applied to commercial e-mail spam, the Supreme Court of Virginia found that it was unconstitutional as applied to hypothetical political and religious e-mail spam. Without comparing the constitutional applications to the unconstitutional applications, Virginia’s highest court declared that the statute was substantially overbroad and, thus, facially unconstitutional. The question presented is:
When confronted with a claim that a statute is substantially overbroad and, thus, facially unconstitutional, is a court required to compare the statute’s constitutional applications to the statute’s actual unconstitutional applications?
In the opposition to certiorari, assisted by Paul Levy of Public Citizen, Jaynes argued that Virginia failed to preserve the issue, and the Supreme Court denied cert.