April 21, 2008
Still Standing? Catching Up on the Jaynes Case
By Ethan Ackerman
Virginia's 1st-Amendment-deficient Spam law is still standing, but only because the Va. Supreme Court closely split over whether Jeremy Jaynes had standing to challenge it.
A cynic could dismiss the most recent ruling in this fairly well-covered and dissected criminal spamming case with the familiar legal adage - "bad facts make bad law." But cynics never read this blog...
So what happened?
Jeremy Jaynes was apparently quite the spammer, until he got caught in 2003 sending large volumes of commercial solicitations to AOL users via email messages with forged or misleading headers and From: addresses. As a result, he was charged with criminal violations of Virginia's spam laws. The initial appeal in this case was covered in an earlier post.
At the Va. Supreme Court, Jaynes brought up the same three primary challenges (lack of jurisdiction, Dormant Commerce Clause violations, and 1st Amendment overbreadth/vagueness violations) he raised at the Court of Appeals. He had the same unsatisfactory (for him) results. This previous post detailed where the Va. Court of Appeals' resulting opinion left things wanting on the First Amendment and jurisdiction front. If all was the same old-same old, however, I wouldn't be writing a separate post on the Va. Supreme Court's follow-up ruling. This opinion is a bit more rigorous, but runs into trouble (in my, and the 3 dissenters', minds) over First Amendment issues. As a result, this post is only going to focus on the First Amendment issues of the case. Spam law junkies looking for Dormant Commerce Clause, CAN-SPAM, or jurisdiction issues can read the next paragraph and then go here instead.
Hey wait? What about CAN-SPAM?
Astute readers may wonder where or if the federal anti-spam law comes into play here. The spamming in question took place in July 2003, before the passage of the effective date of the federal CAN-SPAM Act. While there's some question as to what degree this case, and other state laws on spam, could have been preempted by the federal anti-spam laws if it'd happened later, CAN-SPAM wasn't a retroactive law, and it didn't offer retroactive immunity.
On to the First Amendment (or outside it, in this case)
On appeal, Jaynes argued that the Virginia anti-spam statute swept overly broad in prohibiting some types of protected speech, in violation of the First Amendment. Virginia's particular prohibition on mislabeling or falsity in emails, commercial or otherwise, makes it particularly vulnerable to a First Amendment challenge. In fact, I'll come right out and say it: by not limiting itself to commercial emails, the law is almost certainly sweeping in emails that are protected under the First Amendment along with the unprotected fraudulent commercial speech that it can target.
There is vigorous First Amendment debate over each of the issues at play here. What degree of First Amendment protection does commercial speech have? Does commercial email get a different amount than other commercial speech? Does it matter if it's false? Misleading? Just in the headers, not in the content? Who decides? What if the emails are unsolicited, or sent in bulk? What if their headers are forged or altered? What if they're not commercial, but are still bulk? What if they're political? What if the 'altering' is just done to make the email effectively anonymous? Many spam cases at the state and federal level have turned on these distinctions. And the last issue - the scope of the First Amendment right to anonymous speech - drew a brief from the Virginia ACLU at each stage.
While the initial appellate opinion dealt unsatisfactorily with some of these issues, the Va. Supreme Court almost entirely sidestepped them. The Court found Jaynes' lacked 'standing' to even raise a First Amendment challenge to the law, and so declined to address the appeals court's findings on the merits of Jaynes' First Amendment claims. The funny thing is, in going out of its way to only decide standing and avoid a ruling on the merits, the Va. Supreme Court had to make almost all the legal and factual findings necessary to decide the merits.
A quick primer on Standing
'Standing' is a legal term of art that means it is proper for a particular person to be in court contesting something. Courts are vigilant about standing issues because most constitutions, state and federal, require that a particular person have it before they can challenge a law or bring a suit against another person. Standing decisions are also used to avoid deciding thorny issues before they're clearly at hand, or sometimes to avoid them altogether if the issue or law doesn't really apply to the person making the claim.
Take an animal lover in New York City, a wildlife watcher in Laramie, a commercial wildlife-watching guide operating in Yellowstone National Park, a wildlife biologist studying wolves at the University of Wyoming, and a wolf rancher operating a private free-range wolf farm outside of Cheyenne. Each of these people might be upset and allege harms related to a Wyoming statute that mandates the shooting of wolves. The law distinguishes between each of these categories by recognizing some and not others according to the principle of standing.
When someone is unfairly targeted by the way a law is enforced, or is actually prevented from doing something, or has been charged with committing a crime, they likely have standing to challenge the law - as it was applied to them. This is called an "as-applied" challenge to a law. It is a challenge only to the particular portion of the law applied to them in their particular facts and circumstances.
When a skateboarding youth contests her citation for loitering at the public park every time she joins up with her friends for a some skating, she's probably not alleging that the entire loitering statute is unconstitutional, or that the police can never issue a loitering ticket, but that a particular biased police officer is unfairly targeting her in a certain way that violates her First Amendment associational rights. This is an example of an "as applied" challenge.
On the other hand, in some cases a suit can be brought challenging a law outright, outside of a criminal or enforcement action. This particular head-on challenge is called a "facial" challenge to a law, and means that the law, as it is written, violates some other law or Constitutional principle. Facial challenges to a law are much less frequent precisely because many times standing is lacking. If Rosa Parks had sued Alabama over its bus segregation laws before she had ever been sent to the back of the bus, she would have had to allege that the law was unconstitutional "on its face," since it hadn't yet been "applied" to her.
Related to a facial challenge is an "overbreadth" challenge. It alleges that a partially acceptable law sweeps 'overly broad,' catching protected activities up along with those that may legitimately be restricted. A "no leafleting without a name and address on the leaflet" law might be constitutional when enforced against a commercial door-to-door vendor, but not when enforced against a political pamphleteer. These different types of challenges matter because many times whether or not a person has standing depends on what type of challenge - facial, as-applied, or overbreadth - they are bringing.
A breath-taking run through the First Amendment 'overbreadth' exception to standing rules.
As succinctly admitted by the Va. Supreme Court in Jaynes, a litigant may have standing to raise an 'overbreadth' claim against a statute even if they did not have standing to raise a facial or as applied challenge, because "the United States Supreme Court has recognized an exception to the ordinary rules of standing when Constitutional claims involve the First Amendment."
Why relax the otherwise good and useful principle of standing? If it works, it works, right? In general yes, but when it comes to speech, extra protection is a good thing, and chilling speech, even potentially, is a bad thing according to the Supreme Court. Better an occasional court case that is somewhat hypothetical than a wide-sweeping law that makes people reluctant to speak because they might step afoul of it. As the US Supreme court explained in Broadrick v. Oklahoma,
Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.
So the First Amendment "overbreadth" exception to standing serves to protect against laws that may chill speech. It's clearly a First Amendment protection device, and it's also clearly a procedural exception developed by courts. But which of those is it more like? That seemingly odd question turns out to make all the difference for Jeremy Jaynes' conviction.
A (not Constitutional?) means to a Constitutional End
If the overbreadth exception is an element of federal Constitutional law arising from the First Amendment, state (and federal) courts generally must follow it. Further, any prior Supreme Court rulings on the issue are binding on state courts as well. However, if it is just a rule of standing, albeit one that happens to protect important First Amendment interests, then state courts are generally free to apply it or reject it according to the laws of their own state. Much like setting filing fee prices, or specifying the number of days in which a motion must be filed, or whether a particular state recognizes "psychotherapist-client" privilege, standing rules can and do vary from state to state.
So is the overbreadth exception required by the First Amendment, or is it just a procedural rule that can be varied by pretty much any court or a state legislature? This kind of distinction - where a remedy or process guards a Constitutional right but (is or) isn't mandated by the Constitution - pops up in quite a few important Constitutional cases. Shockingly enough, reasonable people disagree, both in the US and in other countries with free speech laws facing similar questions.
Perhaps the most obvious US example of this distinction, and a helpful analogy, is the status of several procedural protections under the Fourth Amendment prohibition on warrantless searches. If police violate (or just plain don't get) a warrant but search a suspect or her premises anyway, does the Constitution require that any evidence seized be suppressed? Can the victim of the illegal search sue the police? The Supreme Court goes several ways depending on the question. In at least some cases, the Constitution itself provides a "Constitutional" right to sue, in other cases the suppression "remedy" or standing to sue turn on statutes or standing rules that may vary from state to state to federal law.
These types of inconsistencies seem to be creeping into overbreadth doctrine as well, with some legal scholars warning against the trend away from a Constitutional view and toward a 'mere' procedural standing view. The same challenge seems to be facing other common-law countries with free speech rights as well.
OK, OK, the answer already...
It turns out that the US Supreme Court may have already answered this particular question - or at least suggested a likely answer. In Virginia v. Hicks, even though the Court was ruling on the question of the degree to which enforcer discretion rendered a 'no loitering' statute overbroad, the Court also stated that state court standing rules, not the First Amendment or any other Constitutional considerations, determined whether the Virginia court even had to hear Hicks' overbreadth challenge. According to a brief paragraph in the unanimous majority opinion written by Justice Scalia, "Whether Virginia’s courts should have entertained this overbreadth challenge is entirely a matter of state law." The Virginia Supreme court says this answer is good enough - Virginia courts can choose whether to hear an overbreadth challenge.
But is this the full answer? Hicks is admittedly an on-point ruling on an overbreadth challenge. But is this really the best way to take Justice Scalia's preliminary (precatory?) statement? Concluding that state court protections of 1st Amendment rights are optional makes no sense. See Amendment 14, U.S. Constitution. Perhaps a better reading is that in Hicks, Scalia was saying that the Virginia court was free to choose whether to step above the federal constitutional overbreadth 'floor' and choose or decline to hear Hicks' overbreadth challenge because then-existing overbreadth doctrine didn't cover Hick's challenge. This 'overbreadth doctrine standing is a floor, not a ceiling' argument is perhaps the better reading.
To the State law, then...
In Jaynes, the Va. Supreme Court seized on the Hicks language in an effort to avoid admitting the Virginia spam statue is overbroad and infringes on the First Amendment. But how?
In a word, narrowly. 4-3, the state Supreme Court declined to hear Jaynes' First Amendment claims by holding that Virginia state law only required that overbreadth standing be granted to someone actually able to allege the statute in question was unconstitutional 'as applied' to them - effectively collapsing overbreadth challenges in state court into an 'as applied' challenge - at least in commercial speech cases. Of course the majority didn't couch its opinion like that, taking pains to state that the opinion preserved overbreadth standing in most cases but only denied it to those commercial actors whose speech was clearly outside of the protections the First Amendment grants commercial speech.
Wait, I thought they weren't going to decide the First Amendment issue?
There are several shortcomings with the Jaynes majority opinion. The most glaring inconsistency is the choice to decide that Jaynes' commercial speech, by virtue of its falsity or tendency to mislead, isn't the type of commercial speech entitled to First Amendment protection. The court says:
Jaynes’ commercial speech would fail the initial requirement for First Amendment review under Central Hudson Gas and Fox because it is “misleading” on its face. In that circumstance, it is reasonable not to accord the speaker of such misleading commercial speech, admittedly unprotected in its own right, standing to vicariously raise the First Amendment claims of others.
At first glance, this seems reasonable - it is, after all, a correct statement of First Amendment law under the so-called Central Hudson test. The Supreme Court's various First Amendment commercial speech tests all use truthfulness and non-deceptiveness as an initial threshold, one of the more certain principles in this somewhat varying field. Jaynes' commercial spamming rather clearly fell on the false/misleading/illegal side of the First Amendment line.
That non-controversial decision was a decision on the underlying First Amendment issue in the case, however. It is exactly what the Virginia Supreme Court majority was saying couldn't be made because Jaynes lacked standing. Jaynes petitioned the court to address the First Amendment issue of overbreadth. The Virginia Supreme Court declined, concluding "Because we hold the standing issue is dispositive, we do not address the [First Amendment merits] analysis." In other words, Jaynes lacked standing to raise a First Amendment issue, and so it would be inappropriate to rule on that First Amendment issue. But to come to that standing conclusion, the Court decided the First Amendment issue of whether Jaynes' speech was the type of speech entitled to First Amendment protection.
So what else is wrong?
The three member dissenting opinion of the Virginia Supreme Court (from p. 33 on) takes issue with the majority ruling. It does so not on the tangential issue of its internal inconsistency I raised, but head on. To paraphrase the dissent, 'you've got it wrong, there's a reason every other court, state and federal, does it the other way.' The dissent delves into the important First Amendment principle of avoiding laws with a chilling effect on speech. It reiterates that this vital principle is the reason for an exception to the general standing doctrines. The dissent emphasizes the inconsistency between state and federal law on this issue. The dissent notes, and wisely the majority previously conceded, that in federal court Jaynes would have had standing. That's not just inconsistent, the dissent notes, but it will push cases construing Virginia statutes out of Virginia courts (where they now can't be brought) and into federal courts. It's Virgina's courts' job to construe these laws, the dissent please, and Virginia courts' job to remedy them if needed.
As noted last time, Jaynes is out of any mandatory appeals. This Virginia Supreme Court case was a discretionary review. Any US Supreme Court case would also be discretionary. As other bloggers have noted, this case splits the general Supreme Court trends on First Amendment issues, furthering the Supremes' trend of narrowing standing, but also offering less First Amendment protection to commercial speech than the likely-more-protective current Supreme Court might.
After granting a discretionary re-hearing, the Supreme Court of the State of Virginia reversed its earlier opinion, and Jaynes' coviction, and held the Virginia anti-spam statute unconstitutionally violates the 1st Amendment. Since the statute covers non-commercial as well as commercial speech, the Court ruled it is unconstitutionally broad. In doing so, the court concluded that its initial reading of Hicks was problematically narrow, and Jaynes properly had overbreadth standing.
Posted by Ethan Ackerman at April 21, 2008 09:44 AM | Spam
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