09/17/2008 04:55 pm ET Updated May 25, 2011

Under Anti-Spam Laws, the Founding Fathers Would Be Criminals Today

The Internet, one of the great wonders of modern technology, has become the primary source of news and information for many people. Even more important, it may be the only place where many citizens have the opportunity to speak their minds and exercise their First Amendment rights. However, in recent years, federal and state governments have been attempting to gain control of the Internet and censor it. One of the more disturbing developments involves a law in Virginia.

Under Virginia's five-year-old anti-spam law, anyone who sends out high volumes of spam email--either 10,000 messages within a 24-hour period or 100,000 in a 30-day period--and uses a fictitious name could be arrested and charged with a criminal felony.

The anti-spam law was used to prosecute Jeremy Jaynes, a prolific spammer from North Carolina. Convicted of using a false identity to send junk email and advertise penny stocks or a new career as a FedEx refund processor, Jaynes was sentenced to nine years in jail.

If Jaynes is in fact guilty of bilking people out of their hard-earned money, then he should be punished. But he wasn't prosecuted for perpetrating fraud on unsuspecting Americans. Instead, Jaynes was targeted for sending out mass amounts of unsolicited email under an assumed name.

This is where the threat to the average citizen comes in. And it's where this spam legislation, which could have done some good in eliminating Internet scams, runs afoul of the First Amendment.

According to the anti-spam law, individuals who send out unsolicited bulk emails without providing their true identity could face misdemeanor charges, including up to twelve months in jail and a $2500 fine. But since the law does not define what "bulk" email is, presumably two or three emails would qualify.

For instance, let's say your next-door neighbor sends out an email to members of your community expressing his concerns about a local zoning ordinance. Fearing retaliation from local government officials, he decides to send the email under the pseudonym "John Doe." This simple act of exercising his right to freely speak and criticize the government under an assumed name is enough to get him fined and thrown in jail.

Finally, after years of wrangling in the courts, the Virginia Supreme Court recently held that the anti-spam law violates Jaynes' right to engage in anonymous speech. According to the court, this "is an aspect of the freedom of speech protected by the First Amendment." Although this is an important ruling, the Virginia Attorney General, who has vigorously pursued Jaynes, will most likely appeal the decision to the U.S. Supreme Court.

The U.S. Supreme Court, however, has recognized the importance of ensuring that average citizens have the right to use false names and publish anonymously. In its 1960 decision in Talley v. California, the Supreme Court ruled that a law forbidding individuals from distributing handbills without identifying their identity unconstitutionally infringed on the First Amendment's guarantee to free speech. The Court declared:

Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. . . . Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts. . . . It is plain that anonymity has sometimes been assumed for the most constructive purposes.

Many of America's founding fathers used false names when publishing their ideas about the future of American democracy. In fact, James Madison, Alexander Hamilton and John Jay used the name "Publius" when writing the Federalist Papers, a series of articles in support of the ratification of the recently drafted Constitution.

The right to free speech includes the right to speak with anonymity. And nowhere is free speech exercised more prolifically than on the worldwide web. The Internet has become a critical forum for individuals to freely share information and express their ideas. Like the historical public square, which has slowly been crowded out by shopping malls and parking lots, the Internet is an open forum that provides its users with a worldwide stage. It not only allows "John Doe" to express his disfavor with a local zoning ordinance, it also allows people all over the nation and the world to have a voice.

Of course, spam is a nuisance and an inconvenience. No one likes junk email. Yet nowhere in the U.S. Constitution does it say that we have a right to be free from annoying speech.

Consider this: If James Madison, Alexander Hamilton and John Jay were alive and publishing under the false name "Publius" today, they would be prime candidates for prosecution under Virginia's anti-spam law. And they would most likely be using the Internet to get their message out to as many fellow citizens as possible. As a result, they could very well be arrested for speaking their minds on important issues of the day. Had that happened, Jay might never have become the first Chief Justice of the U.S. Supreme Court. Hamilton might never have been a major force in setting economic policy for the U.S. And Madison, considered the Father of the Constitution, might never have written the First Amendment, which to this day guarantees our right to free speech.