## Facts

- Jeremy Jaynes, operating from Raleigh, North Carolina, sent large volumes of unsolicited bulk email to AOL subscribers in Virginia.
- AOL subscriber addresses used by Jaynes had been unlawfully obtained from a former AOL employee.
- On three charged dates in July 2003, Jaynes sent more than 10,000 unsolicited emails within 24 hours: 12,197 (July 16), 24,172 (July 19), and 19,104 (July 26).
- The emails advertised various products and services, including penny stocks, refund claims, and a “history eraser” product.
- Jaynes intentionally falsified email header, sender domain, and routing information to disguise the source of the messages.
- Investigators identified Jaynes through database analysis linking transmissions to him.

## Issues

1. Whether Virginia Code § 18.2-152.3:1 is facially unconstitutional under the First Amendment because it criminalizes a substantial amount of protected anonymous, noncommercial speech sent in bulk email form.
2. Whether the statute should be treated as regulation of nonexpressive conduct (e.g., trespass or network abuse) rather than speech, reducing First Amendment concerns.
3. Whether the statute could be saved by a narrowing construction (such as limiting it to commercial or fraudulent messages) without judicial rewriting.

## Decision

- The Supreme Court of Virginia held § 18.2-152.3:1 facially unconstitutional as substantially overbroad under the First Amendment.
- The Court concluded the statute criminalized protected anonymous political, religious, and other noncommercial speech because it applied to “any person” transmitting unsolicited bulk email with falsified routing information, without limiting its reach to unprotected speech.
- The Court rejected the Commonwealth’s characterization of the law as mere regulation of trespass or network conduct, finding it directly targeted transmission of messages and thus implicated expression.
- The Court declined to adopt a limiting interpretation because adding a commercial-speech or fraud limitation would rewrite the statute rather than construe it.
- The Court reversed the Court of Appeals, vacated Jaynes’s three felony convictions, and set aside the resulting sentence.

## Legal Principles

- A statute regulating a medium of communication is subject to First Amendment scrutiny when it targets the transmission of messages and not solely nonexpressive conduct.
- Anonymous noncommercial speech, including political and religious advocacy, receives strong First Amendment protection even when distributed in bulk through email.
- Under overbreadth doctrine, a law is facially invalid if it prohibits a substantial amount of protected speech relative to its legitimate sweep.
- Courts may adopt narrowing constructions to avoid constitutional invalidation only when consistent with statutory text; courts may not cure overbreadth by effectively legislating new limitations.

## Conclusion

Virginia’s prohibition on sending unsolicited bulk email with falsified routing information was struck down as substantially overbroad because it encompassed significant protected anonymous, noncommercial speech, and Jaynes’s felony convictions under the statute were vacated.


Jaynes v. Commonwealth, 666 S.E.2d 303 (Va. 2008)