September 16, 2008

Free Speech Lesson From Va. Justices

Virginia knows James Madison, and spammer Jeremy Jaynes is no James Madison.

But Virginia's leaders should also have more than a passing familiarity with the First Amendment. A Virginia Supreme Court ruling last week makes it embarrassingly clear that state lawmakers need to wipe the dust off their constitutional law books and refresh their memory on that topic.

The seven justices unanimously concluded that the state's anti- spam law imposes such sweeping restrictions on free speech that it would have criminalized The Federalist Papers had Madison, Alexander Hamilton and John Jay used the Internet to circulate their ideas for forming a new government back in 1787 and 1788.

Jaynes is the first spammer to be convicted of a felony under the new law, so the high court ruling puts that verdict in doubt.

The only thing Jaynes has in common with Madison is the desire to remain anonymous. Jaynes used fake Internet addresses on his mass e- mails to conceal his identity. Madison and his companions adopted the pen name Publius when their writings were published in newspapers.

It should not be that difficult to craft a law that targets shysters peddling questionable get-rich-quick schemes without entangling the Founding Fathers. Other states with no bragging rights to the Father of the Constitution have managed to come up with anti-spam laws that restrict commercial e-mails without infringing on those with political or religious messages.

The state's top judges even provided a helpful list of properly drafted state laws in their opinion in an effort to point lawmakers in the right direction. The list includes Arizona, Arkansas, Florida and Maryland.

But Attorney General Bob McDonnell is vowing instead to charge ahead and defend Virginia's flawed law before the U.S. Supreme Court. That means taxpayers will be stuck with still more legal bills, and Jaynes' conviction will most likely still be overturned, just later rather than sooner.

State lawmakers were warned about the constitutional weaknesses of the law when they passed it in 2003. Justice Elizabeth Lacy provided fresh and pointed concerns this spring in a dissenting opinion. Now the state's high court is speaking with one voice, and the justices are telling the General Assembly it needs to fix this law. It's time for legislators to act.

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