The breaking news at the Dozier Internet Law offices this morning was our home state's Supreme Court Decision to overturn on constitutional grounds the conviction of Jeremy Jaynes and his NINE YEAR consecutive (not concurrent) sentence. I have to admit that the nine years, even coupled with alleged fraud, is a bit much. In fact, I remember a chief prosecutor in San Diego being astonished and telling me they often plead out murder cases to nine years. It just didn't seem fair.
And, the Supreme Court, in Justice Steve Agee's authored opinion, got it right. The statute is overly broad and restricts anonymous speech. It is poorly drafted. Not that unusual a thing when dealing with the law of the web.
The legal players are an interesting bunch. I have discussed this case over the years with most of the key lawyers involved in the trial, from the defense lawyers to the Attorney General prosecutor and the AOL lawyer who sat in the courtroom in support of the prosecution. And I first supported Justice Steve Agee when he was a member of the Virginia General Assembly and running for the Attorney General nomination years ago. He retired from the Supreme Court on June 30, 2008 as the decision notes. It doesn't point out, of course, that he did so and then assumed his position on the Fourth Circuit Court of Appeals. He is a conservative, pro-business Republican and this decision bodes well for his future. This is not a conservative, pro-business decision. He has authored an opinion that will be viewed, and rightfully so, by free speech advocates as a major victory. Good for him. It was the right thing to do, makes sense, and suggests that he is able to shed his political labels, affiliations, and personal beliefs and view a situation objectively. The 9th Circuit might take a lead from Judge Agee.
Now, from the political standpoint, the Virginia Attorney General, Bob McDonnell, pledges to appeal this anti-spam decision all the way to the Supreme Court. He is running for Governer as a conservative Republican in 2009. Bob and I have spent a fair amount of time together over the years, and we go back to his first term in the House of Delegates almost twenty years ago, and he is not only a very conservative, tough-on-crime and pro-business legislator, but a skilled lawyer also. He's not going to need a Supreme Court decision to address the constitutional deficiencies in this legislation. And here is why...
The Virginia General Assembly begins its annual two month session in January. It is over by early March. The Governor's Veto session follows shortly thereafter, and typically new laws are effective July 1 of that year. Governor Kaine (a pro-individual rights Democrat), Bob McDonnell, and key legislators should work this out so a new law will pass that will address the real problem of commercial email and survive a constitutional attack. In fact, all you have to do is read the opinion and briefs filed in the case to get a very clear roadmap on how to do this.
Before establishing Dozier Internet Law , I was a lobbyist at our Virginia General Assembly. I can tell you that in the early days of the web many of the legislators thought of AOL as "the Internet". AOL was involved in drafting, lobbying and passing this law and many others. The Supreme Court's decision is a big setback for AOL, and is really a wake up call to legislators that there is a balancing act involved when you legislate or regulate the web and the business of the web. We see it all around. My advice is for legislators to slow down, take a deep breath, and make really well considered decisions on passing laws impacting e-commerce. We see it on a lot of fronts today...local, state, and national legislators and governing authorities interjecting themselves into subjects they really do not understand.
So, for my friend Bob McDonnell...we understand that your job is to fight to uphold the laws of Virginia. But I suggest you solve this problem as a problem solver. Go back to the General Assembly, submit a new law with your crime package, and let the General Assembly pass it. Don't get bogged down in debates in January and February as to whether the law needs to be changed since the Supreme Court of the United States has not spoken.
The likelihood of success in appealing and overturning Judge Agee's opinion is very low, and as much as the public dislikes spammers, nine years in prison was grossly unfair in the first place. Sure, the sentence was set by a jury. But the jury was in AOL's backyard. Don't take a jury sentence of nine years as an indication of how the public realy feels. This is not a mandate to fight on to the US Supreme Court. But there is a mandate to get it right. Go fix the law now so that you can show a balanced perspective. Bob, you know Steve Agee. You guys share a lot in common. Read the decision. See how he got there. You should get there too. And, knowing you, you are probably already there!