Anonymity Of "Obama Is A Muslim" Emails Constitutionally-Protected?

One of the more scurrilous 2008 campaign tactics (in a campaign seemingly full of them) had to have been those insidious "Have you heard... Barack Obama is a secret Muslim?!?" emails. These bounced hither and yon on the internet almost from the beginning of the campaign itself (or at the very least, since when it looked like Obama had a chance at the nomination). This sort of activity would likely fall into most people's "there ought to be a law" list -- a list of things worth changing in our election process. Unfortunately, the state Supreme Court of Virginia handed down a ruling in the midst of the campaign which may ultimately make any sort of limits on this sort of anonymous political (and technological) mudslinging actually unconstitutional. Meaning it would be impossible to pass any sort of laws against the practice at all.

This has enormous and chilling implications. Emails saying absolutely anything about a candidate (whether true, false, or viciously slanderous) could not only be sent anonymously, but whoever sends them would actually be allowed to break any sort of anti-spam laws to do so. Robocalls could be made with untraceable phone numbers, and untraceable accountability -- and lawmakers could not ban such practices, or even seek to regulate them. No matter what technologies arise in the future, security protocols with the intended purpose of verifying user identity may actually be unconstitutional as well. This would, no doubt, lead to an absolute avalanche of such messages in future campaigns; funded anonymously, sent anonymously, and with no accountability whatsoever.

The Virginia court case itself is a little technical and legalistic, so allow me to summarize it here. It doesn't have anything to do with politics, it is a case of your ordinary garden-variety spammer. Spam (for those of you who are using a computer for the first time in your life today) is any unsolicited email sent anonymously, usually for the purpose of selling you something (and often a hook for illegal or fraudulent activity). Because it has gotten out of control, both the federal government and individual states have been passing laws to ban the practice, and hold spammers accountable. Virginia passed just such a law, but it turns out the Old Dominion lawmakers didn't word it very well. Other states which have passed anti-spam laws have specified in their text that what was being banned was specifically "commercial" email spam. Virginia didn't make this distinction. Meaning that the law applied to all unsolicited email, which makes it a free speech issue.

The first person convicted under the law was Jeremy Jaynes, who was convicted of sending out tens of thousands of unsolicited emails per day, and who received a nine-year prison sentence for doing so. The spam he sent out was entirely commercial, but when he appealed to Virginia's Supreme Court they agreed to examine not just his case, but the constitutionality of the law itself. The court found that the law was overbroad, threw out the law, and by doing so also overturned Jaynes' conviction.

But in their written decision in Jaynes v. Virginia [full text available in PDF format], the Virginia Supreme Court appears to have set a wide-ranging precedent. One that (if allowed to stand) could in the very near future make John McCain getting slimed by push-polls suggesting he "fathered a black baby out of wedlock" and this year's "Obama is a Muslim" emails wind up looking by comparison like two schoolkids passing mash notes at a Sunday School picnic.

The Jaynes v. Virginia ruling has a few passages that directly address this in no uncertain terms. The Justices go into technical detail as to how spammers hide their identities online, and then conclude that such tricks are not merely legal, but actually the spammers' constitutional right.

From the text of Jaynes v. Virginia:

[Having a registered online identity would] "necessarily result in a surrender of [the spammer's] anonymity." 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." By prohibiting false routing information in the dissemination of e-mails, [the law Jaynes was found guilty of] infringes on that protected right. The Supreme Court has characterized regulations prohibiting such anonymous speech as "a direct regulation of the content of speech."

It then goes on to declare the law Jaynes was convicted of unconstitutional:

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.

The court was quite specific in its reasoning. It even elevated "Barack is a Muslim" to the level of our Founding Fathers debating the ratification of the Constitution anonymously. Again, from the ruling:

[The law that was overturned] 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."

Leaving aside the possibility of a future flood of spam from every religion, sect, schism, or cult (which would also be constitutionally protected), this means that any technology which reveals the sender's identity for any type of communication that is political in nature is an inherent infringement of the sender's constitutional right to anonymous political free speech. And, therefore, anything that the sender did to technologically mask their identity -- even if it broke other laws on the books -- is not just legal, but the laws themselves which prevent this from happening would hence be illegal.

Because when some activity is said to be protected free speech, then the First Amendment trumps any legal attempt to infringe on that right. And if anonymous political speech -- no matter how scurrilous -- is such a protected right, then the government (at any level) simply cannot pass any law limiting it. For any technology. For any reason.

Now, this is merely one state's Supreme Court. It is not the law of the land... yet. And the Jaynes case will likely not be appealed all the way to the United States Supreme Court, for a few reasons. First, the Virginia legislature will (one would assume) go back and pass a better law -- this time specifying it only applies to commercial speech. They probably know by now they wrote the law badly -- and that there is a "right way" to rewrite it. Which they will likely do, rather than take their chances appealing the old law on the federal level. Jaynes himself will go free (because you can't pass ex post facto laws), but future commercial spammers will be legally and constitutionally convicted, which is going to have to be "good enough" for Virginia. Jaynes, of course, won the case, so there is no reason he would want to appeal it further.

But what this means is that since Jaynes v. Virginia will probably not appear before the Supreme Court, the Jaynes decision will remain on the books for other courts to cite as a precedent. Sooner or later, a case will be appealed up the federal court ladder, and we will get a ruling on the core issue.

But members of Congress should look into this before that happens. Legislation should be written carefully which defines bulk campaign email as a financial contribution to the campaign, which would bring it under the purview of the campaign finance laws. Where anonymity is not allowed. This may not even be enough -- no matter how carefully such a law is written, it may wind up losing before the courts as well. But Congress should at least make the attempt.

Because if Congress fails to act, then the Lee Atwaters and Karl Roves of the political world are going to eventually notice Jaynes. And when they do, look for spam traffic to break all previous records. And since spam is by its very nature anonymous (and since that anonymity is now constitutionally-protected), this means they can say anything under the sun and get away with it. Which they will. By the millions and millions of emails, text messages, and whatever other new whizzy communications media exist by that point.

 

[Nota Bene: I am not a constitutional lawyer (although I enjoy playing one on the web), so any legal beagles out there feel free to contradict me if I get any of this wrong.]

[Cowardly admission: I noticed this during the 2008 campaign itself, but held the story back because I didn't want the political operatives to notice it before Congress had a chance to act. Call me a craven excuse for a journalist, but I saw what the "Obama is a Muslim" email did, and did not want to encourage more of the same.]

 

Chris Weigant blogs at: ChrisWeigant.com

 

Comments

[feyangel]

One comment I must make is about how VIOLATED I felt receiving the hideous emails and robocalls sent out by Republicans this election. I felt assaulted by the tone and intent of the communications-- but I did due diligence research on all accusations the first time I received the information. Unfortunately-- I continued to received these assaultive-- really emotionally VIOLENT-- communiqués for weeks and weeks and weeks after I knew they were not accurate/true. I really would kinda love to sue RNC for the effects these emails and calls had on my psyche. I think, even now, I suffer from post-traumatic stress syndrome as a result of being surrounded by the war zone this election became as a result of the gutter politics Palin and McCain resorted to in their attempt to win. Definitely there should be some kind of political DO NOT CALL OR EMAIL list we can subscribe to during elections-- and perhaps the truly nasty stuff should be eliminated. The TRUTH itself can do enough damage sometimes-- we need to know the TRUTH about our candidates-- but smear campaigns-- I think those are just confusing the issues-- and should really be beneath our elected leaders-- before, during and after campaigns.

ALSO-- I can't believe the media is continuing to assault us with Palin's one- track NEGATIVE VIOLENT communications, even though CLEARLY she lost and the public made a definite electoral statement they did not want to hear more of what she has to say.

[Chris Weigant - Huffpost Blogger]

To all -

Your comments have been interesting and thought-provoking. They have raised several issues which I did not fully think through or explain in the above article. So I am going to revisit the topic, and attempt to address all of your questions and critiques later today on my blog, in today's column. Look for it in two or three hours from now, at:

http://www.chrisweigant.com

Just to let everyone know that I am not ignoring your points, but rather the opposite -- I am considering and thinking about them, and want to answer them in full, rather than piecemeal here in the comments. Because you folks have raised some interesting and important issues worth addressing.

-CW

[nypoet22]

campaign finance laws? i think it makes more sense to consider it a form of terrorism and monitor it under the new FISA.

[sdskelton03]

Chris

I always look forward to your well thought out and reasoned posts.

"Legislation should be written carefully which defines bulk campaign email as a financial contribution to the campaign, which would bring it under the purview of the campaign finance laws."

I have a couple of issues with this. The first is, a whole list of confusing questions. If I send out an email to my address book (or just flat out spam addresses) stating my position on a candidate, have I really made a contribution to a candidate? If my email points out the congressman x supported a handgun ban, did I contribute to congressman x's opponent or to a pac supporting gun rights? Which Pac did I contribute to? If congressman x is still in a primary contest, did I contribute to x's primary opponent or to his/her general election opponent? Are the candidates required to keep track of my emails?

Secondly, and most importantly, the answer to speech we don't like is more speech, not less. I instinctivly cringe at attempts to limit what others can say. If people want to say Obama is a muslim or that 9-11 was an inside job and Bush ordered down the towers, let them do it. We must just be sure to speak ourselves.

[Michale32086]

}}}}
Secondly, and most importantly, the answer to speech we don't like is more speech, not less.
{{{{

Spot on...

Which is why I can't understand Democrats who are in favor of the so-called "FAIRNESS DOCTRINE" which is anything BUT fair...

Michale......

[1dogs2]

Do you have access to the addresses to which these e-mails were sent? I certainly don't. So how are we to counter such speech? The problem is compounded when you consider the inflammatory and patently false speech that spews from talk-radio and Fox "News," for which until very recently there was virtually no equivalent counter-speech. The very small number of corporations that own and therefore control the content of radio and television outlets, together with the lax enforcement of whatever "public service" requirements there used to be to retain their licenses, has led to an environment in which the opportunity for counter-speech is severely limited. The "more speech" antidote and the "shouting 'fire' in a crowded theater" criterion appear rather inadequate in the present political, corporate and technological environment. Yet the Fairness Doctrine has problems of its own. Solutions to these problems will be difficult and slow, but will require at the very least some serious, non-ideological re-thinking by the Supreme Court of some aspects of First Amendment law and some serious trust-busting of the corporate media.

[littleblackcat]

This is what happens when something gets rushed through without being thoroughly checked out. "Vetted", if you will! Trying to zoom something through the channels to protect someone is often the trapdoor for allowing something terrible to enjoy the same protections, when that was never the intention. I think we're seeing some of the same with this bailout mess. If only there was a pill for common sense, we'd see far less of the foolishness that has become part of daily living. I hope that with an honest administration and a decent President, we will be able to return to being a law-abiding nation that doesn't put the rights of the criminal before the rights of the victims and people in general.

[Michale32086]

So, let me get this straight..

It's DEMOCRATS who are leading the charge against what could be construed as a FREE SPEECH issue!!????

OHMIGOD!!! STOP THE WORLD!!! I WANT TO GET OFF!!!!!

:D

Seriously, this is becoming Kafka-esque... Democrats are screaming, "TO HELL WITH THE CRIMINAL'S RIGHTS!! THINK OF THE VICTIM!!!"

Who woulda thunked it...

Too bad that Dems can't garner up the courage to have this attitude on things that REALLY matter..

But, baby steps.. baby steps....

Michale.....

Crossposted to www.chrisweigant.com

[ThirdSection]

One important thing I noted was that Jaynes v. Virginia took place in a state supreme court, and it overturned a state law concerning unsolicited emails. Legally, this only applies to spammers who base themselves in Virginia, and if we note the interstate commerce clause of the U.S. Constitution, it only applies to those who send spam from Virginia to other Virginians.

When spamming (or anything else) is perpetrated across state lines, it becomes a federal matter. It is on these grounds that we have the Interstate Highway System, the FCC, and the Do Not Call List. Ultimately, the legal definition of "spam" rests upon Congress, not state legislatures.

So, if you want to stop this sort of thing from happening in the future, the best place to start is with your congressperson and your senator.

[Chris Weigant - Huffpost Blogger]

ThirdSection -

Yes and no. There is a federal law, the "Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003" (or CAN SPAM Act, a misnomer if there ever was one) dealing with this.

But the VA Supremes ruled (on page 5 and 6 of the PDF file) that it was enough that the recipient's email server be in Virginia. Jaynes argued (unsuccessfully) that he sent the spam from North Carolina, but the court ruled that because he was spamming AOL subscribers, he should have known that AOL's headquarters is in VA.

But you're right, with the interstate nature of the internet, federal laws should be considered the best avenue to attack this sort of thing.

-CW

[Skepticat]

Once upon a time there was a legal principle that the accused could actually face their accusers, and that the accusers had to be truthful or face consequences. The protection of anonymous free smears
that defame, debase, and incite hatred doesn't sound like something in the publick goode that should be encouraged. I fear that it's only a matter of time before some jurist opines that yelling fire in a crowded theatre is quite acceptable provided it is done anonymously.

[1dogs2]

Unfortunately, the libel laws are of little use to public figures under Supreme Court law. This is especially true for political figures. Imagine Obama suing for libel on the ground that he is in fact NOT a Muslim. He would have to prove, among other things, that the allegation was false, that the source of the allegation knew that it was false, that it was made for the purpose of damaging Obama, and that it did in fact damage him in some objectively measurable way. Not the least of the problems with such a suit would be the implication that there is something wrong with being a Muslim. It's not like Carol Burnett suing a tabloid for publishing a piece saying that she was a drunk, since it is generally agreed that being a drunk is a bad thing.

I'm wondering whether there is such an animal as fraud on the public, and if so, how it would intersect with constitutional law. At the very least, one would have to be able to identify the source of the fraudulent statements to bring suit.