12/13/2008 05:12 am ET Updated May 25, 2011

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: