On The Front Lines
TRI Attorneys Ask Va. Appeals Court to Declare Anti-Spamming Law Unconstitutional
RICHMOND, Va.-- Attorneys for The Rutherford Institute have asked the Virginia Court of Appeals to determine whether Virginia's anti-spam law infringes on the right to anonymity on the Internet. In their "friend of the court" brief, Institute attorneys argue that the Virginia law, which restricts the transmission of unsolicited bulk email, is unconstitutionally overbroad, has a chilling effect on protected speech such as political, religious and artistic speech, and criminalizes speech that occurs outside of Virginia and is not intentionally sent to individuals living in Virginia. A copy of the brief is available here."A proper balance needs to be struck between preventing unlawful fraud over email and respecting the free speech rights of all individuals, as guaranteed by the First Amendment," stated John W. Whitehead, president of The Rutherford Institute. "However, the right to free speech includes the right to speak with anonymity."
In an effort to limit "spam," the Virginia legislature passed an anti-spam law that criminalizes the transmission of bulk emails that hide or disguise the identity of the sender. Unlike other state and federal anti-spam laws, however, the Virginia law applies to all unsolicited bulk emails where the sender is anonymous or pseudonymous as opposed to only those with commercial, deceptive or fraudulent content. Institute attorneys argue that by failing to differentiate among emails, the law effectively criminalizes all anonymous speech, including the anonymous dissemination of political speech, religious speech, personal opinions, artistic expression, unpopular ideas that may be considered dangerous by the current regime and whistleblowing speech. Institute attorneys point out that the Virginia law infringes on the free speech rights of individuals with a legitimate reason to mask the origin of email, including political dissidents living under repressive regimes. The Institute's brief, which calls on the Virginia Court of Appeals to protect anonymous speech, cites the U.S. Supreme Court's ruling in Talley v. California, in which the Court invalidated an ordinance prohibiting the dissemination of handbills without identification of the individual(s) who printed them and the individual(s) who caused them to be printed. The Court stated, "Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.... It is plain that anonymity has sometimes been assumed for the most constructive purposes." Noting that the Internet contains "vast democratic forums" for the expression of all manner of speech, Institute attorneys insist that conduct which is not prohibited in the physical world should not be subject to prosecution merely because it occurs in the virtual world of the Internet and cyberspace. "Anonymity on the Internet can provide valuable societal benefits, as well as facilitate fraud and deception. What ought to be prohibited is not anonymity, per se, but the use of anonymity to perpetrate fraud and other harmful conduct."
Founded in 1982 by constitutional attorney and author John W. Whitehead, The Rutherford Institute is an international, nonprofit civil liberties organization committed to defending constitutional and human rights.
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