Last week the Virginia Supreme Court decided in Jaynes v. Commonwealth to uphold the conviction of Jeremy Jaynes, a North Carolina man arrested for a major spam campaign in 2003. The case is the first felony conviction for spamming in the United States. Jaynes appealed the decision of the lower court (Fastcase subscription required), citing his right to anonymous free speech under the First Amendment and Interstate Commerce Clause of the U.S. Constitution (Jaynes committed his crime in North Carolina, but his spam was distributed through a server in Virginia).

But because Jaynes sent his spam e-mails from phony e-mail addresses in violation of the Federal CAN SPAM Act, and because the content of his e-mails was false and misleading, the court ruled that his actions were not protected speech. The decision was a close 4-3 split; several of the justices expressed concerns that the language of the Virginia anti-spam legislation may be “unconstitutionally overbroad.”