Present: Hassell, C.J., Koontz, Kinser, Lemons, Agee, 1 and
Goodwyn, JJ., and Lacy, S.J.
JEREMY JAYNES
OPINION BY
v. Record No. 062388 JUSTICE G. STEVEN AGEE
September 12, 2008 2
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Upon rehearing pursuant to orders dated
April 28, 2008 and May 19, 2008
Jeremy Jaynes appeals from the judgment of the Court of
Appeals which affirmed his convictions in the Circuit Court of
Loudoun County for violations of Code § 18.2-152.3:1, the
unsolicited bulk electronic mail (e-mail) provision of the
Virginia Computer Crimes Act, Code §§ 18.2-152.1 through –
152.15. For the reasons set forth below, we will reverse the
judgment of the Court of Appeals.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
From his home in Raleigh, North Carolina, Jaynes used
several computers, routers and servers to send over 10,000 e-
mails within a 24-hour period to subscribers of America Online,
Inc. (AOL) on each of three separate occasions. On July 16,
2003, Jaynes sent 12,197 pieces of unsolicited e-mail with
1
Justice Agee participated in the hearing and decision of
this case prior to his retirement from the Court on June 30,
2008.
2
The prior opinion rendered February 29, 2008, reported at
275 Va. 341, 657 S.E.2d 478 (2008), was withdrawn by the Court
after a petition for rehearing was granted by Orders dated April
28, 2008 and May 19, 2008.
1
falsified routing and transmission information onto AOL’s
proprietary network. On July 19, 2003, he sent 24,172, and on
July 26, 2003, he sent 19,104. None of the recipients of the e-
mails had requested any communication from Jaynes. He
intentionally falsified the header information and sender domain
names before transmitting the e-mails to the recipients. 3
However, investigators used a sophisticated database search to
identify Jaynes as the sender of the e-mails. 4 Jaynes was
arrested and charged with violating Code § 18.2-152.3:1, which
provides in relevant part:
A. Any person who:
1. Uses a computer or computer network with
the intent to falsify or forge electronic
mail transmission information or other
routing information in any manner in
connection with the transmission of
unsolicited bulk electronic mail through
or into the computer network of an
electronic mail service provider or its
subscribers . . . is guilty of a Class 1
misdemeanor.
B. A person is guilty of a Class 6 felony if
he commits a violation of subsection A
and:
1. The volume of UBE transmitted exceeded
10,000 attempted recipients in any 24-
3
Simple Mail Transfer Protocol (SMTP) is what an e-mail
server uses to transmit an e-mail message, and the SMTP requires
verification of the sender’s IP address and domain. Evidence at
trial demonstrated that Jaynes sent the e-mails with domain
names which did not correspond to the domain names assigned to
the sending IP addresses.
4
Computers may be identified by their unique IP address
number, which consists of blocks of numerals separated by
periods.
2
hour period, 100,000 attempted
recipients in any 30-day time period,
or one million attempted recipients in
any one-year time period. . . .
While executing a search of Jaynes’ home, police discovered
a cache of compact discs (CDs) containing over 176 million full
e-mail addresses and 1.3 billion e-mail user names. The search
also led to the confiscation of storage discs which contained
AOL e-mail address information and other personal and private
account information for millions of AOL subscribers. The AOL
user information had been stolen from AOL by a former employee
and was in Jaynes’ possession. During trial, evidence
demonstrated that Jaynes knew that all of the more than 50,000
recipients of his unsolicited e-mails were subscribers to AOL,
in part, because the e-mail addresses of all recipients ended in
“@aol.com.” 5
An expert witness testified that the e-mails sent by Jaynes
were not consistent with solicited bulk e-mail, but rather
constituted unsolicited bulk e-mail (sometimes referred to as
“spam” e-mail) because Jaynes had disguised the true sender and
header information and used multiple addresses to send the e-
mails. Other evidence at trial demonstrated that all of AOL’s
5
Jaynes’ e-mails advertised one of three products: (1) a
FedEx refund claims product, (2) a “Penny Stock Picker,” and (3)
a “History Eraser” product. To purchase one of these products,
potential buyers would click on a hyperlink within the e-mail,
which redirected them outside the e-mail, where they could
3
servers were located in Virginia, although some were located in
Loudoun County and others were located in Prince William County.
Jaynes moved to dismiss the charges against him on the
grounds that the statute violated the dormant Commerce Clause,
was unconstitutionally vague, and violated the First Amendment.
The circuit court denied that motion. Jaynes filed a separate
motion to strike in which he challenged the jurisdiction of the
circuit court. The court determined it had jurisdiction and
denied the motion to strike.
A jury convicted Jaynes of three counts of violating Code
§ 18.2-152.3:1, and the circuit court sentenced Jaynes to three
years in prison on each count, with the sentences to run
consecutively for an active term of imprisonment of nine years.
The Court of Appeals affirmed his convictions, Jaynes v.
Commonwealth, 48 Va. App. 673, 634 S.E.2d 357 (2006). We
awarded Jaynes an appeal.
II. ANALYSIS
Jaynes makes four assignments of error to the judgment of
the Court of Appeals. First, he assigns error to the
determination that the circuit court had jurisdiction over him
on the crimes charged. Second, Jaynes contends Code § 18.2-
152.3:1 “abridge[s] the First Amendment right to anonymous
speech,” and it was error not to reverse his convictions on that
consummate the purchase.
4
basis. Separately, Jaynes assigns as error the failure of the
Court of Appeals to hold that Code § 18.2-152.3:1 is void for
vagueness. Lastly, Jaynes posits that the statute violates the
Commerce Clause of the United States Constitution.
A. JURISDICTION
Jaynes asserts that the Court of Appeals erred in holding
that the circuit court had jurisdiction over him for violating
Code § 18.2-152.3:1 because he did not “use” a computer in
Virginia. He contends that a violation of that statute can occur
only in the location where the e-mail routing information is
falsified. Jaynes maintains that because he only used computers
to send the e-mails from his home in Raleigh, North Carolina, he
committed no crime in Virginia. Further, because he had no
control over the routing of the e-mails, he argues his actions
did not have an “immediate result” in Virginia, and under Moreno
v. Baskerville, 249 Va. 16, 452 S.E.2d 653 (1995), could not be
the basis for jurisdiction over him by Virginia courts.
Therefore, according to Jaynes, the circuit court had no
jurisdiction over him and his convictions are void.
To successfully prosecute a crime under Code § 18.2-
152.3:1(B), the Commonwealth must establish all the elements of
that crime. In addition to the element of the volume of
transmissions within a specific time period, the Commonwealth
must prove the sender used a computer and that such use was with
5
the intent of falsifying routing information. The Commonwealth
must also prove that the transmission of such false routing
information occurred in connection with the use of an e-mail
provider’s computer network for that transmission. Thus, the
crime is not complete until there is e-mail transmission passing
through or into the computer network of the e-mail provider or
subscriber containing the false routing information.
Jaynes argues that he “merely sent e-mails that happened to
be routed through AOL servers.” We disagree. As the evidence
established, all e-mail must flow through the recipient’s e-mail
server in order to reach the intended recipient. By selecting
AOL subscribers as his e-mail recipients, Jaynes knew and
intended that his e-mails would utilize AOL servers because he
clearly intended to send to users whose e-mails ended in
“@aol.com.” The evidence established that the AOL servers are
located in Virginia, and that the location of AOL’s servers was
information easily accessible to the general public. Applying
our standard of review to the evidence presented along with all
reasonable inferences therefrom, we conclude that the evidence
supports the conclusion that Jaynes knew and intended that the
e-mails he sent to AOL subscribers would utilize AOL’s servers
which are located in Virginia. Thus an intended and necessary
result of Jaynes’ action, the e-mail transmission through the
computer network, occurred in Virginia.
6
Furthermore, a state may exercise jurisdiction over
criminal acts that are committed outside the state, but are
intended to, and do in fact, produce harm within the state.
“ ‘It has long been a commonplace of criminal liability that a
person may be charged in the place where the evil results,
though he is beyond the jurisdiction when he starts the train of
events of which the evil is the fruit.’ ” Travelers Health
Ass'n v. Commonwealth, 188 Va. 877, 892, 51 S.E.2d 263, 269
(1949) (citing Strassheim v. Daily, 221 U.S. 280, 284-85
(1911)).
Jaynes, relying on Moreno, argues that this principle,
referred to as the “immediate result doctrine,” is not
applicable if third parties intervene between the out-of-state
conduct and the in-state harm. In Moreno, the defendant, while
in Arizona, arranged for delivery of drugs to an accomplice in
Arizona who, in turn, delivered the drugs to two other
accomplices who ultimately sold the drugs in Virginia. 249 Va.
at 17-18, 452 S.E.2d at 654. Noting that drug distribution is
not a continuing offense and that payment is not an element of
the crime of drug distribution, id. at 18-20, 452 S.E.2d at 654-
55, we concluded that the discrete crime of drug distribution
was committed by the defendant while in Arizona and that the
ultimate sale of the drugs in Virginia was not the “immediate
result” of the distribution of drugs in Arizona because the
7
subsequent distributions by Moreno’s accomplices intervened.
Id. at 19, 452 S.E.2d at 655.
Jaynes argues that an e-mail could be routed through a
number of different mail handling networks before the e-mail
reaches its destination, and that an e-mail sender cannot
control the route used. Such routing, Jaynes contends, is the
same type of intervention which occurred in Moreno. Therefore,
according to Jaynes, the intervention of intermediate e-mail
routers and servers prior to arrival of the e-mails at the AOL
servers shows that the alleged harm through the AOL servers in
Virginia was not the “immediate result” of Jaynes’ actions in
North Carolina.
Jaynes’ reliance on Moreno fails because, as noted above,
Jaynes’ affirmative act of selecting AOL subscribers as
recipients of his e-mails insured the use of AOL’s computer
network to deliver the e-mails and such use was the “immediate
result” of Jaynes’ action, regardless of any intermediate routes
taken by the e-mails. Because the use of the computer network
of an e-mail service provider or its subscribers is an integral
part of the crime charged and because the use of AOL’s e-mail
servers was the “immediate result” of Jaynes’ acts, we hold that
Jaynes was amenable to prosecution in Virginia for a violation
of Code § 18.2-152.3:1. Accordingly, the circuit court had
jurisdiction over Jaynes.
8
B. FIRST AMENDMENT OVERBREADTH
Jaynes next contends that Code § 18.2-152.3:1 is
constitutionally deficient as overbroad under the First
Amendment and therefore the statute cannot be enforced. He
argues the Court of Appeals erred in affirming the circuit
court’s ruling denying his motion to dismiss on that basis.
The Court of Appeals assumed without deciding that Jaynes
had standing to raise a First Amendment challenge, but concluded
that Code § 18.2-152.3:1 was in the nature of a trespass
statute, thereby eliminating the need to address the First
Amendment issue. The Commonwealth, in addition to arguing that
the Court of Appeals correctly construed the statute as a
trespass statute, contends in an assignment of cross-error that
Jaynes lacks standing to raise a First Amendment challenge to
Code § 18.2-152.3:1 and therefore the First Amendment issues
raised by Jaynes should not be considered. We will begin by
addressing the issue of standing.
1. STANDING
Jaynes does not make a pure facial challenge to Code
§ 18.2-152.3:1 as he does not argue “that no set of
circumstances exists under which the Act would be valid.”
United States v. Salerno, 481 U.S. 739, 745 (1987). Similarly,
Jaynes does not make an “as-applied challenge” to the statute,
meaning he does not contend the application of the statute to
9
the actual acts for which he was convicted violates the First
Amendment. See Gonzales v. Carhart, 550 U.S. ___, ___, 127
S.Ct. 1610, 1638-39 (2007) (comparing facial and as-applied
challenges). Instead, Jaynes challenges the statute by claiming
it is unconstitutional as overbroad. See Virginia v. Hicks, 539
U.S. 113, 118-19 (2003) (“Hicks II”). 6 That is, Jaynes contends
that because the statute could potentially reach the protected
speech of a third party, he (Jaynes) is entitled to claim
exoneration for his otherwise unprotected speech. 7
The Commonwealth contends Jaynes has no standing to raise a
First Amendment overbreadth defense. Citing the decision of the
United States Supreme Court in Hicks II, the Commonwealth argues
there is no federal law obligation for state courts to
hear facial challenges alleging overbreadth. While
the question of whether a statute is overbroad is a
matter of federal constitutional law, the question of
who may bring a facial challenge alleging overbreadth
is a matter of state law.
6
Unlike a “facial” or “as-applied” challenge, an
overbreadth challenge “suffices to invalidate all enforcement of
that law” upon showing that the law “punishes a ‘substantial’
amount of protected free speech, ‘judged in relation to the
statute’s plainly legitimate sweep.’ ” Hicks II, 539 U.S. at
118-19 (2003)(quoting Broadrick v. Oklahoma, 413 U.S. 601, 615
(1973)).
7
The Commonwealth also argues that Jaynes did not preserve
this issue for appeal because he did not raise his overbreadth
challenge in the circuit court. This contention is without
merit. Jaynes raised it in his brief in support of his motion
to dismiss, the Commonwealth addressed a facial challenge in
response and the circuit court in its letter opinion labeled
Jaynes’ argument “a broad, general, facial First Amendment
challenge.”
10
. . . .
In other words, the fact that Jaynes could bring his
facial challenge alleging overbreadth in federal court
is irrelevant. The issue is whether Jaynes may bring
his facial challenge alleging overbreadth in the
Virginia state courts.
The Commonwealth concludes that based on Hicks II “except where
there is no set of circumstances where the statute is
constitutional, or where a litigant is engaged in non-commercial
speech, this Court, as a matter of state law, should entertain
only as-applied challenges.” (citation omitted).
Jaynes responds that Hicks II does not support the rule on
standing advocated by the Commonwealth. He contends “[a]lthough
Hicks [II] permits state courts to allow more facial challenges
than federal law would permit, it does not authorize state
courts to accept fewer facial challenges.” Citing New York v.
Ferber, 458 U.S. 747, 767 (1982), Jaynes maintains that the
overbreadth doctrine is a “constitutional exception to state and
federal rules of standing, which ordinarily limit parties to as-
applied challenges to statutes.” 8
8
Jaynes’ arguments as to the effect of Hicks II and
response to the Commonwealth’s position that states can set
whatever standing rules they choose for First Amendment
overbreadth claims were not made until his petition for
rehearing and brief on rehearing. Even though Jaynes failed in
his opening or reply briefs to address the standing issue as
presented by the Commonwealth, that issue is properly before us
and we address it because the issue was raised and placed before
the Court by the Commonwealth.
11
The Commonwealth bases its position on the following
discussion of standing in the Hicks II opinion:
[O]ur standing rules limit only the federal courts’
jurisdiction over certain claims. State courts are not
bound by the limitations of a case or controversy or
other federal rules of justiciability even when they
address issues of federal law. Whether Virginia’s
courts should have entertained this overbreadth
challenge is entirely a matter of state law.
Hicks II, 539 U.S. at 120 (citation omitted) (emphasis added).
On its face, and without context, this passage from Hicks
II appears to support the rule of standing advocated by the
Commonwealth. In a nutshell, that rule would be that state
courts are not required to apply the same standing requirements
to a claimant who raises a First Amendment overbreadth challenge
to a state statute in a state court as would be accorded that
claimant in a federal court considering a similar First
Amendment overbreadth claim. However, when viewed in the
context of the standing issue actually presented in Hicks II,
and the longstanding Fourteenth Amendment jurisprudence by which
First Amendment rights are made applicable in state court
proceedings, we disagree with the Commonwealth’s arguments.
In Commonwealth v. Hicks, 264 Va. 48, 563 S.E.2d 674 (2002)
(“Hicks I”) this Court accorded standing to that defendant to
raise a First Amendment overbreadth challenge to certain
policies of the Richmond Redevelopment and Housing Authority
(RRHA). 264 Va. at 55-56, 563 S.E.2d at 678-79. Hicks had been
12
banned from RRHA property because of prior trespass and property
damage offenses, but continued to trespass on RRHA property.
Id. at 52-53, 563 S.E.2d at 676-77. Upon his subsequent
trespass arrest and conviction, Hicks asserted that he had a
right to assert that the RRHA policies determining which persons
would be barred from access to its properties were overbroad
under the First Amendment and thus his conviction was invalid.
Id. at 54, 563 S.E.2d at 677-78. Although Hicks did not contend
that he had engaged in any expressive conduct or that the
trespass statute under which he was convicted was invalid, this
Court in Hicks I reversed his conviction because it concluded
the RRHA trespass policy “also prohibits speech and conduct that
are clearly protected by the First Amendment.” Id. at 58, 563
S.E.2d at 680.
Upon appeal to the United States Supreme Court, the
Commonwealth did “not ask the Court to abolish the overbreadth
doctrine, only to place meaningful limits on its use.” Brief of
Petitioner, Virginia v. Hicks, No. 02-371, at 18 (Mar. 7, 2003).
The Commonwealth argued on brief that “the Supreme Court of
Virginia treated the [overbreadth] doctrine as if it were
virtually unbounded,” id. at 19, and consequently Hicks I
“represents a radical expansion of the overbreadth doctrine.”
Id. (emphasis added). This was so, the Commonwealth argued,
because the Hicks I view of overbreadth standing “has no
13
precedent in this Court’s jurisprudence,” id. at 21, and urged
the Court to limit First Amendment overbreadth standing to
persons who “at least show (1) that his own conduct involved
some sort of expressive activity, and (2) that his conduct falls
within the particular prohibition he challenges as overbroad.”
Id. at 25. Because Hicks conceded his trespass was not
expressive activity and he did not challenge the trespass
statute under which he was convicted as overbroad, the
Commonwealth’s position before the United States Supreme Court
in Hicks II was that Hicks’ conduct failed to meet its proposed
overbreadth standing rule. At no point, on brief or in oral
argument before the Supreme Court, did the Commonwealth argue
the standing rule it now posits: that state courts are free to
set their own standing rules in cases involving First Amendment
overbreadth claims. In point of fact, as the foregoing
illustrates, the Commonwealth argued the polar opposite: that
state court standing rules should be constrained.
The oral argument in Hicks II makes this conclusion
unmistakable and reflects the Commonwealth’s clear
acknowledgement of a First Amendment overbreadth rule that is
directly contrary to the position it now advances in the case at
bar. In discussing the Virginia Supreme Court’s resolution of
standing in Hicks I, the following colloquy took place between
members of the Court and counsel for the Commonwealth:
14
QUESTION: The issue is whether – whether
[Virginia] adopted a broader interpretation under
State law than Federal law would require.
. . . .
[ANSWER]: That is correct. A – a State may well
be able to adopt a broader interpretation of standing
than this Court requires, but it cannot adopt a
narrower interpretation. It cannot disregard this
Court’s direction that you give overbreadth standing
according to the Federal constitutional
standards. . . .
QUESTION: And if they were correct about what our
standing rules are, they would have to follow those
standing rules, wouldn’t they? They could not apply a
narrower . . . basis for standing, could they?
[ANSWER]: That is absolutely correct, Your Honor.
The State supreme court has no discretion to disregard
this Court’s application of the First Amendment
through its overbreadth doctrine.
Oral Arg. Tr., Virginia v. Hicks, No. 02-371, at 5 (Apr. 30,
2003) (emphasis added).
It is thus clear that the opinion of the United States
Supreme Court in Hicks II addressed the issue of First Amendment
standing only in the context by which that issue was placed
before the Court: whether a state’s expansion of First Amendment
standing was subject to review by federal courts. When the
Hicks II opinion states “[w]hether Virginia’s courts should have
entertained this overbreadth challenge is entirely a matter of
state law,” Hicks II, 539 U.S. at 120, the term “this” plainly
limits the standing issue to what was before the Court in that
case: an expansion, not a restriction, of state court standing.
15
Thus, read in context, the seemingly broad language about
standing in the Hicks II opinion cannot have the meaning now
espoused by the Commonwealth. This view is amply verified by
decades of Fourteenth Amendment jurisprudence that establishes
First Amendment rights, among others, as applicable in state
court proceedings. In 1925, the United States Supreme Court
enunciated the principle “that freedom of speech and of the
press – which are protected by the First Amendment from
abridgement by Congress – are among the fundamental personal
rights and ‘liberties’ protected by the due process clause of
the Fourteenth Amendment from impairment by the States.” Gitlow
v. New York, 268 U.S. 652, 666 (1925); accord Stromberg v.
California, 283 U.S. 359, 368 (1931) (“the conception of liberty
under the due process clause of the Fourteenth Amendment
embraces the right of free speech”).
The Supreme Court has also recognized that the assertion of
a First Amendment overbreadth claim is not the application of a
procedural rule, but a substantive part of the First Amendment.
“[O]verbreadth is a function of substantive First Amendment
law.” Sabri v. United States, 541 U.S. 600, 610 (2004) (citing
Henry P. Monaghan, Overbreadth, 1981 S.Ct. Rev. 1, 24). As a
matter of substantive law, the First Amendment overbreadth
doctrine is a constitutional exception to state and federal
rules of standing that would otherwise limit a party to an as-
16
applied challenge to a statute. Thus, “[a] state court is not
free to avoid a proper facial attack on federal constitutional
grounds.” New York v. Ferber, 458 U.S. 747, 767 (1982).
To accept the Commonwealth’s view of Hicks II would permit,
under the guise of standing, a state court to ignore the
substantive constitutional rights of citizens in contravention
of the Fourteenth Amendment. That is an untenable position
because the right to assert the protection of the First
Amendment (by overbreadth or otherwise) can no more be
restricted by a state rule of standing than the exclusionary
rule applied to impermissible searches and seizures could be
limited by state evidence law.
Thus, read in context, Hicks II does not support the
argument on standing advanced by the Commonwealth. To the
contrary, as the Commonwealth expressly admitted before the
United States Supreme Court, a state supreme court has no
discretion to disregard the United States Supreme Court’s
application of the First Amendment through its overbreadth
doctrine because it cannot disregard the Court’s direction that
overbreadth standing be given according to the Federal
constitutional standards. Oral Arg. Tr., Virginia v. Hicks, No.
17
02-371, at 5. Accordingly, we hold Jaynes has standing to raise
the First Amendment overbreadth claim. 9
2. TRESPASS
The Commonwealth argues, in the alternative, that if Jaynes
has standing to raise a First Amendment overbreadth claim, that
claim is not proper for consideration because his conduct was a
form of trespass and thus not entitled to First Amendment
protection. Code § 18.2-152.3:1, in the Commonwealth’s view, is
like a trespass statute, prohibiting trespassing on the
privately owned e-mail servers through the intentional use of
false information and that no First Amendment protection is
afforded in that circumstance. The Court of Appeals adopted
this position and held Jaynes’ First Amendment argument was “not
relevant.” Jaynes v. Commonwealth, 48 Va. App. 673, 693, 634
S.E.2d 357, 367 (2006). Concluding that Code § 18.2-152.3:1
“prohibits lying to commit a trespass,” id. at 693, 634 S.E.2d
at 366, the Court of Appeals determined the “statute proscribes
intentional falsity as a machination to make massive,
uncompensated use of the private property of an ISP. Therefore,
the statute cannot be overbroad because no protected speech
9
The Commonwealth also argues an alternate standing rule:
that standing in First Amendment overbreadth cases not extend to
persons who engage only in commercial speech. That rule was
previously rejected in Bigelow v. Virginia, 421 U.S. 809, 817
(1975); see also Virginia State Bd. of Pharmacy v. Virginia
18
whatsoever falls within its purview.” Id. at 693, 634 S.E.2d at
367. We disagree.
Trespass is the unauthorized use of or entry onto another’s
property. See e.g., Vines v. Branch, 244 Va. 185, 190, 418
S.E.2d 890, 894 (1992) (“Where a person has illegally seized the
personal property of another and converted it to his own use,
the owner may bring an action in trespass, trover, detinue, or
assumpsit.”) (emphasis added); Code § 18.2-119, -125, -128, -
132.
Significantly, Code § 18.2-152.3:1 does not prohibit the
unauthorized use of privately owned e-mail servers. The statute
only prohibits the intentional use of false routing information
in connection with sending certain e-mail through such servers.
Thus, even if an e-mail service provider specifically allowed
persons using false IP addresses and domain names to use its
server, the sender could be prosecuted under Code § 18.2-152.3:1
although there was no unauthorized use or trespass. Therefore,
Code § 18.2-152.3:1 is not a trespass statute.
The Commonwealth’s argument that there is no First
Amendment right to use false identification to gain access to
private property is inapposite. First, in making this argument
the Commonwealth uses the terms “false” and “fraudulent”
Citizens Consumer Council, 425 U.S. 748, 770 (1976) (“commercial
speech, like other varieties, is protected”).
19
interchangeably. Those concepts are not synonymous. 10 At issue
here is the statute’s prohibition of “false” routing
information. Second, the cases upon which the Commonwealth
relies are civil cases between Internet service providers and
the entities engaged in sending commercial unsolicited bulk e-
mails: CompuServe, Inc. v. Cyber Promotions, Inc., 962 F.Supp.
1015 (S.D. Ohio 1997), Cyber Promotions, Inc. v. America Online,
Inc., 948 F.Supp. 436 (E.D. Pa. 1996), and America Online, Inc.
v. IMS, 24 F.Supp.2d 548 (E.D. Va. 1998). In litigation between
these private parties, the courts have held that the
unauthorized use of the Internet service providers’ property
constituted common law trespass and that a First Amendment claim
could not be raised against the owner of private property.
These cases have no relevance here because this is not a
trespass action by a private property owner and the First
Amendment right is not being asserted against the owner of
private property, but against government action impacting the
claimed First Amendment right. Accordingly, we reject the
Commonwealth’s argument and hold the Court of Appeals erred in
this regard.
10
Fraud involves a false representation of a material fact,
made intentionally, which induces reliance on that false
representation, and resulting damage. Klaiber v. Freemason
Assocs., 266 Va. 478, 485, 587 S.E.2d 555, 558 (2003).
20
3. CONSTITUTIONALITY OF CODE § 18.2-152.3:1
We now turn to Jaynes’ contention that Code § 18.2-152.3:1
is unconstitutionally overbroad. To address this challenge, we
first review certain technical aspects of the transmission of e-
mails. In transmitting and receiving e-mails, the e-mail
servers use a protocol which prescribes what information one
computer must send to another. 11 This SMTP requires that the
routing information contain an IP address and a domain name for
the sender and recipient of each e-mail. Domain names and IP
addresses are assigned to Internet servers by private
organizations through a registration process. To obtain an IP
address or domain name, the registrant pays a fee and provides
identifying contact information to the registering organization.
The domain names and IP addresses are contained in a searchable
database which can associate the domain name with an IP address
and vice versa.
The IP address and domain name do not directly identify the
sender, but if the IP address or domain name is acquired from a
registering organization, a database search of the address or
domain name can eventually lead to the contact information on
file with the registration organizations. A sender’s IP address
or domain name which is not registered will not prevent the
11
The protocol is the product of private collaboration and
not established by a governmental entity.
21
transmission of the e-mail; however, the identity of the sender
may not be discoverable through a database search and use of
registration contact information. 12
As shown by the record, because e-mail transmission
protocol requires entry of an IP address and domain name for the
sender, the only way such a speaker can publish an anonymous e-
mail is to enter a false IP address or domain name. Therefore,
like the registration record on file in the mayor’s office
identifying persons who chose to canvass private neighborhoods
in Watchtower Bible & Tract Society v. Village of Stratton, 536
U.S. 150 (2002), registered IP addresses and domain names
discoverable through searchable data bases and registration
documents “necessarily result[] in a surrender of [the
speaker’s] anonymity.” 536 U.S. at 166. The right to engage in
anonymous speech, particularly anonymous political or religious
speech, is “an aspect of the freedom of speech protected by the
First Amendment.” McIntyre v. Ohio Elections Comm’n, 514 U.S.
334, 342 (1995). By prohibiting false routing information in
the dissemination of e-mails, Code § 18.2-152.3:1 infringes on
that protected right. The Supreme Court has characterized
regulations prohibiting such anonymous speech as “a direct
regulation of the content of speech.” Id. at 345.
12
In this case Jaynes used registered IP addresses,
although the domain names were false.
22
State statutes that burden “core political speech,” as this
statute does, are presumptively invalid and subject to a strict
scrutiny test. Under that test a statute will be deemed
constitutional only if it is narrowly drawn to further a
compelling state interest. Id. at 347. In applying this test,
we must also consider that state statutes are presumed
constitutional, City Council v. Newsome, 226 Va. 518, 523, 311
S.E.2d 761, 764 (1984), and any reasonable doubt regarding
constitutionality must be resolved in favor of validity. In re
Phillips, 265 Va. 81, 85-86, 574 S.E.2d 270, 272 (2003).
There is no dispute that Code § 18.2-152.3:1 was enacted to
control the transmission of unsolicited commercial bulk e-mail,
generally referred to as SPAM. In enacting the federal CAN-SPAM
Act, Congress stated that commercial bulk e-mail threatened the
efficiency and convenience of e-mail. 15 U.S.C. § 7701(a)(2).
Many other states have regulated unsolicited bulk e-mail but,
unlike Virginia, have restricted such regulation to commercial
e-mails. See e.g., Ariz. Rev. Stat. § 44-1372.01; Ark. Code
Ann. § 4-88-603; Cal. Bus. & Prof. Code § 17538.45; Fla. Stat.
§ 668.603; Idaho Code § 48-603E; Ill. Comp. Stat., tit. 815
§ 511/10; Ind. Code § 24-5-22-7; Kan. Stat. Ann. § 50-6, Md.
Code Ann., Commercial Law § 14-3002. There is nothing in the
record or arguments of the parties, however, suggesting that
unsolicited non-commercial bulk e-mails were the target of this
23
legislation, caused increased costs to the Internet service
providers, or were otherwise a focus of the problem sought to be
addressed by the General Assembly through its enactment of Code
§ 18.2-152.3:1.
Jaynes does not contest the Commonwealth’s interest in
controlling unsolicited commercial bulk e-mail as well as
fraudulent or otherwise illegal e-mail. Nevertheless, Code
§ 18.2-152.3:1 is not limited to instances of commercial or
fraudulent transmission of e-mail, nor is it restricted to
transmission of illegal or otherwise unprotected speech such as
pornography or defamation speech. Therefore, viewed under the
strict scrutiny standard, Code § 18.2-152.3:1 is not narrowly
tailored to protect the compelling interests advanced by the
Commonwealth.
4. SUBSTANTIAL OVERBREADTH
The Commonwealth argues that we should not preclude
enforcement of Code § 18.2-152.3:1 because, even if
unconstitutionally overbroad, that remedy is limited to those
statutes that are substantially overbroad. The concept of
substantial overbreadth is not a test of the constitutionality
of a statute, but a policy related to the remedy flowing from a
successful facial challenge. A successful facial overbreadth
challenge precludes the application of the affected statute in
all circumstances. Recognizing the sweep of this remedy, the
24
United States Supreme Court has stated that it will not impose
such an expansive result where the chilling effect of an
overbroad statute on constitutionally protected rights cannot
justify prohibiting all enforcement of the law. “For there are
substantial social costs created by the overbreadth doctrine
when it blocks application of a law to constitutionally
unprotected speech. . . .” Hicks II, 539 U.S. at 119. Thus a
statute should be declared facially overbroad and
unconstitutional only if the statute “punishes a ‘substantial’
amount of protected free speech, ‘judged in relation to the
statute’s plainly legitimate sweep.’ ” Id. at 118-19 (citing
Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)).
The Commonwealth argues that Code § 18.2-152.3:1 is not
substantially overbroad because it does not impose any
restrictions on the content of the e-mail and “most”
applications of its provisions would be constitutional, citing
its application to unsolicited bulk commercial e-mail,
unsolicited bulk e-mail that proposes a criminal transaction,
and unsolicited bulk e-mail that is defamatory or contains
obscene images. According to the Commonwealth an “imagine[d]
hypothetical situation where the Act might be unconstitutional
as applied does not render the Act substantially overbroad.”
25
The United States Supreme Court recently reviewed the First
Amendment overbreadth doctrine in United States v. Williams, 553
U.S. ___, 128 S.Ct. 1830 (2008). The Court noted
[i]n order to maintain an appropriate balance, we have
vigorously enforced the requirement that a statute’s
overbreadth be substantial, not only in an absolute
sense, but also relative to the statute’s plainly
legitimate sweep.
. . . [I]t is impossible to determine whether a
statute reaches too far without first knowing what the
statute covers.
553 U.S. at ___, 128 S.Ct. at 1838. Applying that inquiry under
Williams in this case is relatively straightforward as Code
§ 18.2-152.3:1 would prohibit all bulk e-mail containing
anonymous political, religious, or other expressive speech. For
example, were the Federalist Papers just being published today
via e-mail, that transmission by Publius would violate the
statute. Such an expansive scope of unconstitutional coverage
is not what the Court in Williams referenced “as the tendency of
our overbreadth doctrine to summon forth an endless stream of
fanciful hypotheticals.” 553 U.S. at ___, 128 S.Ct. at 1843.
We thus reject the Commonwealth’s argument that Jaynes’ facial
challenge to Code § 18.2-152.3:1 must fail because the statute
is not “substantially overbroad.”
5. NARROWING CONSTRUCTION
Lastly, the Commonwealth asserts that we need not declare
Code § 18.2-152.3:1 unconstitutional because a limiting
26
construction can be adopted by this Court that would prevent
invalidating the statute. Such a construction according to the
Commonwealth would be a declaration that the statute does not
apply to “unsolicited bulk non-commercial e-mail that does not
involve criminal activity, defamation or obscene materials.”
Alternatively the Commonwealth suggests that we hold the statute
applies only in instances where the receiving Internet service
provider “actually objects to the bulk e-mail.”
Our jurisprudence requires us to interpret a statute to
avoid a constitutional infirmity. Burns v. Warden, 268 Va. 1,
2, 597 S.E.2d 195, 196 (2004). Nevertheless, construing
statutes to cure constitutional deficiencies is allowed only
when such construction is reasonable. Virginia Soc’y for Human
Life v. Caldwell, 256 Va. 151, 157, 500 S.E.2d 814, 816-17
(1998). A statute cannot be rewritten to bring it within
constitutional requirements. Reno v. ACLU, 521 U.S. 844, 884-85
& nn.49-50 (1997); Virginia v. American Booksellers Ass’n, 484
U.S. 383, 397 (1988). The construction urged by the
Commonwealth is not a reasonable construction of the statute.
Nothing in the statute suggests the limited applications
advanced by the Commonwealth. If we adopted the Commonwealth’s
suggested construction we would be rewriting Code § 18.2-152.3:1
in a material and substantive way. Such a task lies within the
province of the General Assembly, not the courts. Jackson v.
27
Fidelity & Deposit Co., 269 Va. 303, 313, 608 S.E.2d 901, 906
(2005) (“Where the General Assembly has expressed its intent in
clear and unequivocal terms, it is not the province of the
judiciary to add words to the statute or alter its plain
meaning.”).
III. CONCLUSION
For the foregoing reasons, we hold that the circuit court
properly had jurisdiction over Jaynes. We also hold that Jaynes
has standing to raise a First Amendment overbreadth claim as to
Code § 18.2-152.3:1. That statute is unconstitutionally
overbroad on its face because it prohibits the anonymous
transmission of all unsolicited bulk e-mails including those
containing political, religious or other speech protected by the
First Amendment to the United States Constitution. Accordingly,
we will reverse the judgment of the Court of Appeals and vacate
13
Jaynes’ convictions of violations of Code § 18.2-152.3:1.
Reversed and final judgment.
13
In light of this holding, we do not address Jaynes’ other
assignments of error.
28