One of the world's worst spammers argued yesterday that he is entitled to challenge Virginia's tough, 2003 Anti-Spam Act as an unconstitutional violation of free speech rights.

In a 4-3 ruling in February, the Supreme Court of Virginia upheld Jeremy D. Jaynes' 2004 Loudoun County convictions for violating the act, the first felony spam convictions in the country.

In April, however, the justices agreed to rehear the case on the issue of whether Jaynes could challenge the anti-spam law as being 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.

"This case, as we know, is bigger than one criminal defendant, one state statute," his attorney, Thomas M. Wolf of Richmond, told the justices yesterday.

"It would be so easy for the Virginia legislature . . . [to] carve out noncommercial speech. But the legislature failed to do that and that renders the statute overbroad," Wolf said. "One does have the constitutional right to communicate anonymously," he added.

But William E. Thro, the state solicitor general, argued that the law is constitutional and does not violate First Amendment rights.

"There is no right to use the private property of another for your speech," Thro said. He said that Jaynes disguised his identity 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.

Justice Elizabeth B. Lacy, however, asked Thro if that meant American Revolutionary patriot 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.

While Jaynes lost his appeal in 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," Lacy wrote.

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."

It is not known when the court will rule on the case argued yesterday. Jaynes, sentenced to nine years, remains under house arrest in Loudoun.

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 (804) 649-6340 or fgreen@timesdispatch.com.