No, Virginia, spam isn't free speech

Sorry, spammers: It appears the First Amendment won't protect you in court, at least not as long as you're using fake return addresses and selling Viagra.

Ars Technica reports that the first U.S. felony conviction for spamming was just upheld by Virginia's Supreme Court, and a North Carolina man is facing nine years in the clink for sending untold millions of spam messages.

Lawyers for convicted spammer Jeremy Jaynes, who was originally convicted in 2005 under the Virginia Computer Crimes Act, had tried to get their client off the hook by arguing that the spam was "anonymous speech" protected by the First Amendment.

However, in a 4-3 verdict, the Virginia Supreme Court upheld Jaynes' conviction, noting that the spammer had used phony return e-mail addresses and was trying to sell iffy products and services in his junk mail.

But as Ars Technica points out, Virginia's Supreme Court judges were clearly split on the issue, with Justice Elizabeth Lacy arguing that Virginia's Computer Crimes Act goes too far because it bars "all unsolicited bulk e-mail including those containing political, religious or other speech" protected by the First Amendment.

Incidentally, prosecutors alleged that Jaynes sent more than 10 million bulk-mail messages a day during a two-month stretch in 2003—and that's actually small potatoes in today's terms.

So, what do you think: Is spam still spam, even if it comes with a real return address and worthwhile content? Or should the First Amendment protections extend to "legit" bulk e-mail?

Related:
First spam felony conviction upheld: no free speech to spam [Ars Technica]