• by Liz Tascio , October 2, 2008

Here’s something no one saw coming in 1789: First Amendment protections extend to some types of spam. In September, the Virginia Supreme Court vacated the 2004 conviction of Jeremy Jaynes, a notorious spammer, because the state’s anti-spam law made no exceptions for political, religious or nonprofit groups. Instead, “it prohibits anonymous transmission of all unsolicited bulk e-mails,” making Virginia’s law “unconstitutionally overbroad,” wrote Justice G. Steven Agee.

The federal anti-spam law, which went into effect in 2004, specifically exempts those messages in the name of free speech. That’s why, in this election cycle, consumers will see a surge in politically themed spam, says MX Logic, an e-mail management and Web security firm.

As Election Day approaches, political campaigns will send more and more unsolicited e-mails, taking advantage of the political-speech exemption that mx Logic calls a “loophole” in federal law. Spammers will follow suit, sending a surge of election-themed spams to get consumers’ attention.

A trickle of messages in late September already showed signs of a theme. MX Logic’s Sam Masiello, vice president, information security, listed on his blog eight subject lines featuring Obama in racy “news” stories. “We have not yet seen any similar tactics targeting John McCain,” he added.

Jaynes was sending commercial spam, not political or religious messages, but his appeal attacked Virginia’s entire anti-spam law as unconstitutional. The state Supreme Court first issued a split ruling in February that upheld the conviction; September’s decision was unanimous.