BY FRANK GREEN

Times-Dispatch Staff Writer

Arguing before the Supreme Court of Virginia, one of the world's worst spammers said today that he is entitled to challenge the state's tough, 2003 Anti-Spam Act as an unconstitutional violation of free speech rights.

Last February, the court ruled 4-3 to uphold the 2004 Loudoun County convictions of Jeremy D. Jaynes for violating the act, the first felony spam convictions in the country.

In April the state Supreme Court justices agreed to rehear the case on the issue of whether Jaynes could challenge the anti-spam law as unconstitutionally overly broad.

Jaynes contends that while Virginia's spam law might appropriately apply to commercial speech -- as it was against him -- it also improperly applies to protected forms of expression, such as religious or political speech.

Jaynes' lawyer, Thomas M. Wolf of Richmond, told the justices the case is "bigger than one criminal defendant, one state statute."

Wolf said that by failing to eliminate non-commercial speech from the act, the legislature crafted an unconstitutional law. "One does have the constitutional right to communicate anonymously," he added.

William E. Thro, the state solicitor general, argued that the law does not violate 1st amendment rights.

He said that Jaynes disguised his identity in order to get past the protections used by Internet service providers to block spam. "Deceptive speech, as opposed to anonymous speech, is not constitutionally protected," he argued.

Thro said Jaynes, "said he was somebody else to get past guards to use the private property of another."

Justice Elizabeth B. Lacy, however, asked Thro if that meant Thomas Paine could not have written anonymously or used a false name. She also pointed out that Jaynes could have been prosecuted for trespassing instead.

Thro agreed that Jaynes could have been prosecuted under state trespassing law. Wolf, however, told the justices that, 'this is not a trespassing statute."

While Jaynes lost his appeal last February, three of the court's justices joined a dissenting opinion contending that Jaynes had a right to argue that the state law was overly broad and violated free-speech rights.

"The current use of the Internet as the marketplace for expressing political ideas, views and positions emphasizes the need for ensuring that the use of this medium not be chilled by the threat of criminal prosecution," wrote Lacy.

Lacy wrote she would find the state spam law "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."

As a result, she said she would toss out Jaynes' convictions.

Jaynes, sentenced to nine years, is under house arrest in Loudoun.

It is not known when the Virginia court will rule.

Wolf said following the hearing today that if the justices invalidate the state's anti-spam statute, sending anonymous commercial spam will still be unlawful. He said a federal law prohibits the sending of anonymous commercial email.

However, he said, "it would not apply to Jaynes' actions, because it was adopted after he sent the emails which led to his arrest."

Jaynes was prosecuted in Virginia for sending almost 46,500 e-mails with falsified routing and transmission information through AOL's network during a three-day period in 2003. AOL's servers are in Loudoun.

Contact Frank Green at fgreen@timesdispatch.com