Luigi brought the following to my attention:
Jeremy Jaynes of Raleigh, N.C., considered among the world’s top 10 spammers in 2003, was convicted of massive distribution of junk e-mail and sentenced to nine years in prison.
Almost all 50 states have anti-spamming laws. In the 4-3 ruling, the court rejected Jaynes’ claim that the state law violates both the First Amendment and the interstate commerce clause of the U.S. Constitution.
This is one of those strange situations where I find myself agreeing with both sides. For instance, one of the dissenting justices in the case wrote:
the law is “unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mail including those containing political, religious or other speech protected by the First Amendment to the United States Constitution.”
Since I haven’t read the law, I will simply take her word for it. That being the case, the law is out of line and should be overturned. Unfortunately, this case wasn’t the one to overturn it.
Jaynes allegedly used aliases and false Internet addresses to bombard Web users with junk e-mails peddling sham products and services. The court’s majority said misleading commercial speech is not entitled to First Amendment protection.
Well…yeah. I don’t see how it possibly could be. If a store is charged with false advertising with the intention of bilking its customers, how can the store owner possibly seek defense behind the First Amendment? Just as the First Amendment doesn’t protect things you say about another person knowing that they’re falsehoods, I do not see how it can protect attempts to bilk people over the internet. To say nothing of slamming e-mail boxes with thousands of spams. It’s no different than a neighbor blasting his stereo at ear-splitting decibel levels at 2 in the morning in violation of local ordnances and then claiming he has a First Amendment right to do so.
There may well be grounds for challenges to anti-spamming laws, but I don’t see this case as offering them.
PAD
• 
“Will the spammer continue to be held to his conviction if the law he broke is later ruled unconstitutional?”
It depends. If the law is ruled unconstitutional, in another case, by the U.S. Supreme Court, then the spammer could request habeas corpus relief from the federal courts. The trick is that not all constitutional rules are “retroactive.” For example, if the Supreme Court creates a new constitutional rule that is not dictated by its prior precedent, the rule is not retroactive: the spammer stays in jail. If the rule is retroactive — the result was dictated by prior precedent — then the federal courts will order the spammer to be released from jail.
There may be means of getting post-conviction relief in state court based on a later holding that the law was unconstitutional, but I’m not familiar enough with state law to know if the spammer would have an easier time there.
re: Dred Scott. All slaves were freed after passage of the 13th amendment. If Scott had lived that long, he too would have become free.
But if the constitutional rule used to render the spam law illegal is the 1st amendment, then — going by what you’ve presented — the spammer would be entitled to relief from his conviction.
Then the 13th amendment demonstrates what you said about new constitutional rules not being retroactive is not absolute, does it not? If the 1st amendment is cited to rule the spam law unconstitutional, then the retroactive implementation of the 13th amendment simply means the spammer would really, really be entitled to relief from his conviction, yes?
Now, if I can bring all of this home:
No one seems to disagree the anti-spam law reserves for itself the privilege of disregarding the 1st amendment beyond notions of fraud. But for some, fraudulent spamming is severe enough to justify its selective application. What offense then would Dred Scott need to have committed for his status as property to be upheld regardless of the constitutional prohibition against slavery?
bobb alfred is clearly talking out of his own ášš if he doesn’t recall that states can (and often do) refuse to entertain suits against them by citizens. I suspect he also is if he thinks one must have been demonstrably harmed before one can challenge an unconstitutional law. If the law stated “Armenians may not be admitted to the University of Pennsylvania,” the fact that an Armenian plaintiff had been accepted to Yale and had suffered no financial or social disadvantage by not being allowed into Penn would not prevent a lawsuit for that discrimination. The strict insistence that only an injured party may file suit would even lead to the extreme of barring attorneys acting for their clients – After all, a lawyer need not have been injured to argue that his client (who was, presumably) should collect from the respondent. Where does that guy get off concerning himself with things that don’t affect his own welfare, one might ask.
Posted by: bobb alfred at March 4, 2008 02:59 PM
“While Jeffrey’s New York example is outlandish, it’s not unheard of for a municipality to shield itself from countersuits in emminent domain cases. In this case, it’s not that PAD wouldn’t have standing, it’s that the court doesn’t have jurisdiction to hear the case.
Posted by: Jeffrey S. Frawley at March 4, 2008 11:33 PM
“bobb alfred is clearly talking out of his own ášš if he doesn’t recall that states can (and often do) refuse to entertain suits against them by citizens.”
Miss something there Jeff?
Beyond that…
Jeff, you can argue with us until you’re blue in the face. It won’t change how the world works.
Good Night.
Ben Stein voice: “Wow”
Mike, forget apples and oranges, you’re comparing apples and potatoes.
You’re example of Dred Scott’s freedom is not a good analogy. Slavery was legal, the Missouri Supreme Court ruled in a manner that was consistent with their view of the constitution at that time and then the Constitution itself was later changed. Even if the Missouri SC decided that their ruling still held firm, the United States Supreme Court would overrule that decision if challenged based on the fact that the Constitution now clearly and explicitly made slavery illegal.
Again, you have something going from legal to illegal due to constitutional amendments and, if it came to that, a federal ruling overturning a state ruling.
The case that PAD has presented involves a law that can have within it the ability to overreach itself and enter into unconstitutional areas. In the case that was presented however, it did not do this. You also have the legality of the issue unchanged and you have the Constitution un-amended.
We know that you have a pathological need to “win” every argument you get into and be “right” about everything no matter how thin you have to stretch your argument, but you’re heading out there a bit early even for you.
Beyond that, what I said to Jeff holds true for you as well.
Mike, you can argue with us until you’re blue in the face. It won’t change how the world works.
Good Night.
Why are people arguing with Mike? Why are people even reading his comments at all?
Who?
Well, I was reading BTWilders’ comments and the two kinds go together. My post, in this case, was just my being amazed that Mike starting going into planet M mode this quickly. I didn’t see that coming for at least another day.
But, yeah, time to stop kicking the cripple and all that.
I’m not arguing with anyone, because I’m literally not asking anyone to take my word on anything:
Saying the spammer only engaged in unprotected speech is not saying the opinion Peter quoted is wrong. The 2 are not interchangeable, he-who-accepts-a-salary-for-enforcing-the-law. One is an apple, and one is a wax apple (they have those, you know).
As such, my question can be framed in the standard SAT format:
What did you get on your SATs, zero?
I’ve been saying all along it’s a wonder anyone feels the need to challenge anything I say.
Jeffrey, please read more carefully. You’re making yourself look worse.
As for “If the law stated “Armenians may not be admitted to the University of Pennsylvania,” the fact that an Armenian plaintiff had been accepted to Yale and had suffered no financial or social disadvantage by not being allowed into Penn would not prevent a lawsuit for that discrimination.” Actually, under those facts alone, yes it would. If the student had in fact not applied to Penn, no act of discrimination would have occurred. Bear this in mind: Rules don’t exist of their own accord…they have to be enforced. In order to have an action, you need an actual harm, and just having some words written on a paper that say “this here is a rule” usually doesn’t harm anyone. If someone reads those words, and then enforces some action to follow the rule, harm may result.
In your Armenian student case, in order to file suit, the student would have needed to applied to Penn and been denied entrance under the “No Armenian Students” policy. A court might allow suit if the student could show that he wanted to apply, but was deterred from doing so because of Penn’s very public practice of denying Armenian applications, but that would be a tenuous case, and the student would need to show that he took substantial steps to work on an application before deciding to no apply.
“The strict insistence that only an injured party may file suit would even lead to the extreme of barring attorneys acting for their clients”
Once again, this is making you look foolish. Attorneys represent their clients, not themselves (at least the smart attorneys don’t represent themselves in court). I don’t know how you connect the issue of standing to barring someone from hiring a legal professional to represent them as their agent…which is what you do when you hire an attorney…in a matter of law and court.
“But if the constitutional rule used to render the spam law illegal is the 1st amendment, then — going by what you’ve presented — the spammer would be entitled to relief from his conviction.”
Mike, I’m too far removed from law school and legal scholarship to remember the term, but when a court strikes down a law, it will do so in the most conservative manner possible. Meaning, if it’s possible to strike down only a portion of a law, leaving the remaining portions in effect, it will. Using an above example where higher penalties were applied to minority speeders, a court would declare the additional penatlies unconstitutional, but would not remove the general ban against speeding. Where possible, the court will use a scalpel to remove only the offending part.
In this case, if the court can determine that portions of the law are constitutional, and those parts can stand and have effect removed from the offending portions, it will remove only the offending part. Which very well could result in a future SCOTUS opinion ruling portions of this law overbroad and unconstitutional, while still finding that prior convictions under the permissible part remain in effect. Since the court has previously found that the speech used by the defendant in this case was not protected, it’s likely that he’ll stay in jail even if this law is later struck down.
I don’t see how this doesn’t settle the issue. Thank you.
“Right. Let me rephrase: Will the spammer continue to be held to his conviction if the law he broke is later ruled unconstitutional?”
Under this fact pattern, maybe not. If the law he broke…the specific part of the law he was convicted under…is later overturned, he’ll have a good shot at getting his conviction overturned. Then again, there are cases where such reversals were not made retroactive.
“That should be: If that dissent turns into a majority on a case revisiting the law, will the spammer be forced to complete his sentence for breaking a law ruled illegal?”
This is a slightly different question, as the dissent appears to have been willing to overturn the entire law. Then again, the dissent went into that opinion knowing it was the dissenting voice, and could very well have been written only to serve as a warning to the Executive and Legislature that this law, if pushed too far, will be overturned. But, again, under the fact pattern as presented by Mike, it’s likely that the convicted would be able to get his conviction overturned or voided.
I’m not familiar with the specifics of the Scott question, beyond what’s been presented here. However, the later invalidation of slavery would likely have been held to supercede the prior court’s validation of Scott’s slavery status, because the prior decision was made when the Constitution did not prevent slavery. It’s not quite a good analogy to the anti-spam case, because no one anticipates the Consitution to be changed to explicitly exclude spam from the protections of the First Amendment. SCOTUS opinion, like all court decions, are subject to periodic review and reversal based on whoever is sitting at the time.
Well, if courts have the discretion to selectively strike down portions of laws — to line-item veto laws, so to speak — then the majority simply left striking down the violations of the first amendment it referred to to the discretion of some other court. Unless you’re some kind of pinko, encouraging local fixes for local problems sounds like a good idea.
Do you all see? I make Bobb articulate the discretion the courts have to line-item-veto laws, and we are all smarter for it.
Just for the record, Mike’s not pulling my strings. But I did think that he asked a good question that wasn’t getting a response. If I’ve helped any learn something new, I’ve fulfilled my Cookie Monster role for the day.
All I ask is to be the instrument on which Bobb plays.
“Just for the record, Mike’s not pulling my strings.”
bobb alfred, for the record, such a thing never occurred to me. I doubt it occurred to anyone who is even a little familiar with you.
I fully believe in disclaimers.
…and your disclaimer does not deny we are all smarter for my participation here.
good site dude