Jaynes v. Com.

Present:    Hassell, C.J., Koontz, Kinser, Lemons, Agee, 1 and
            Goodwyn, JJ., and Lacy, S.J.

JEREMY JAYNES
                                               OPINION BY
v. Record No. 062388                       JUSTICE G. STEVEN AGEE
                                              September 12, 2008 2
COMMONWEALTH OF VIRGINIA

                 FROM THE COURT OF APPEALS OF VIRGINIA
                Upon rehearing pursuant to orders dated
                     April 28, 2008 and May 19, 2008

     Jeremy Jaynes appeals from the judgment of the Court of

Appeals which affirmed his convictions in the Circuit Court of

Loudoun County for violations of Code § 18.2-152.3:1, the

unsolicited bulk electronic mail (e-mail) provision of the

Virginia Computer Crimes Act, Code §§ 18.2-152.1 through –

152.15.    For the reasons set forth below, we will reverse the

judgment of the Court of Appeals.

            I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

     From his home in Raleigh, North Carolina, Jaynes used

several computers, routers and servers to send over 10,000 e-

mails within a 24-hour period to subscribers of America Online,

Inc. (AOL) on each of three separate occasions.    On July 16,

2003, Jaynes sent 12,197 pieces of unsolicited e-mail with


     1
        Justice Agee participated in the hearing and decision of
this case prior to his retirement from the Court on June 30,
2008.
      2
        The prior opinion rendered February 29, 2008, reported at
275 Va. 341, 657 S.E.2d 478 (2008), was withdrawn by the Court
after a petition for rehearing was granted by Orders dated April
28, 2008 and May 19, 2008.


                                   1
falsified routing and transmission information onto AOL’s

proprietary network.   On July 19, 2003, he sent 24,172, and on

July 26, 2003, he sent 19,104.   None of the recipients of the e-

mails had requested any communication from Jaynes.    He

intentionally falsified the header information and sender domain

names before transmitting the e-mails to the recipients. 3

However, investigators used a sophisticated database search to

identify Jaynes as the sender of the e-mails. 4   Jaynes was

arrested and charged with violating Code § 18.2-152.3:1, which

provides in relevant part:

         A. Any person who:
         1. Uses a computer or computer network with
            the intent to falsify or forge electronic
            mail transmission information or other
            routing information in any manner in
            connection with the transmission of
            unsolicited bulk electronic mail through
            or into the computer network of an
            electronic mail service provider or its
            subscribers . . . is guilty of a Class 1
            misdemeanor.

         B. A person is guilty of a Class 6 felony if
             he commits a violation of subsection A
             and:
          1.    The volume of UBE transmitted exceeded
                10,000 attempted recipients in any 24-

     3
       Simple Mail Transfer Protocol (SMTP) is what an e-mail
server uses to transmit an e-mail message, and the SMTP requires
verification of the sender’s IP address and domain. Evidence at
trial demonstrated that Jaynes sent the e-mails with domain
names which did not correspond to the domain names assigned to
the sending IP addresses.
     4
       Computers may be identified by their unique IP address
number, which consists of blocks of numerals separated by
periods.


                                 2
                hour period, 100,000 attempted
                recipients in any 30-day time period,
                or one million attempted recipients in
                any one-year time period. . . .

     While executing a search of Jaynes’ home, police discovered

a cache of compact discs (CDs) containing over 176 million full

e-mail addresses and 1.3 billion e-mail user names.    The search

also led to the confiscation of storage discs which contained

AOL e-mail address information and other personal and private

account information for millions of AOL subscribers.     The AOL

user information had been stolen from AOL by a former employee

and was in Jaynes’ possession.   During trial, evidence

demonstrated that Jaynes knew that all of the more than 50,000

recipients of his unsolicited e-mails were subscribers to AOL,

in part, because the e-mail addresses of all recipients ended in

“@aol.com.” 5

     An expert witness testified that the e-mails sent by Jaynes

were not consistent with solicited bulk e-mail, but rather

constituted unsolicited bulk e-mail (sometimes referred to as

“spam” e-mail) because Jaynes had disguised the true sender and

header information and used multiple addresses to send the e-

mails.   Other evidence at trial demonstrated that all of AOL’s

     5
       Jaynes’ e-mails advertised one of three products: (1) a
FedEx refund claims product, (2) a “Penny Stock Picker,” and (3)
a “History Eraser” product. To purchase one of these products,
potential buyers would click on a hyperlink within the e-mail,
which redirected them outside the e-mail, where they could


                                 3
servers were located in Virginia, although some were located in

Loudoun County and others were located in Prince William County.

     Jaynes moved to dismiss the charges against him on the

grounds that the statute violated the dormant Commerce Clause,

was unconstitutionally vague, and violated the First Amendment.

The circuit court denied that motion. Jaynes filed a separate

motion to strike in which he challenged the jurisdiction of the

circuit court.   The court determined it had jurisdiction and

denied the motion to strike.

     A jury convicted Jaynes of three counts of violating Code

§ 18.2-152.3:1, and the circuit court sentenced Jaynes to three

years in prison on each count, with the sentences to run

consecutively for an active term of imprisonment of nine years.

The Court of Appeals affirmed his convictions, Jaynes v.

Commonwealth, 48 Va. App. 673, 634 S.E.2d 357 (2006).     We

awarded Jaynes an appeal.

                            II.   ANALYSIS

     Jaynes makes four assignments of error to the judgment of

the Court of Appeals.    First, he assigns error to the

determination that the circuit court had jurisdiction over him

on the crimes charged.   Second, Jaynes contends Code § 18.2-

152.3:1 “abridge[s] the First Amendment right to anonymous

speech,” and it was error not to reverse his convictions on that


consummate the purchase.

                                   4
basis.   Separately, Jaynes assigns as error the failure of the

Court of Appeals to hold that Code § 18.2-152.3:1 is void for

vagueness.    Lastly, Jaynes posits that the statute violates the

Commerce Clause of the United States Constitution.

                           A. JURISDICTION

     Jaynes asserts that the Court of Appeals erred in holding

that the circuit court had jurisdiction over him for violating

Code § 18.2-152.3:1 because he did not “use” a computer in

Virginia.    He contends that a violation of that statute can occur

only in the location where the e-mail routing information is

falsified.    Jaynes maintains that because he only used computers

to send the e-mails from his home in Raleigh, North Carolina, he

committed no crime in Virginia.   Further, because he had no

control over the routing of the e-mails, he argues his actions

did not have an “immediate result” in Virginia, and under Moreno

v. Baskerville, 249 Va. 16, 452 S.E.2d 653 (1995), could not be

the basis for jurisdiction over him by Virginia courts.

Therefore, according to Jaynes, the circuit court had no

jurisdiction over him and his convictions are void.

     To successfully prosecute a crime under Code § 18.2-

152.3:1(B), the Commonwealth must establish all the elements of

that crime.    In addition to the element of the volume of

transmissions within a specific time period, the Commonwealth

must prove the sender used a computer and that such use was with


                                  5
the intent of falsifying routing information.    The Commonwealth

must also prove that the transmission of such false routing

information occurred in connection with the use of an e-mail

provider’s computer network for that transmission.   Thus, the

crime is not complete until there is e-mail transmission passing

through or into the computer network of the e-mail provider or

subscriber containing the false routing information.

     Jaynes argues that he “merely sent e-mails that happened to

be routed through AOL servers.”   We disagree.   As the evidence

established, all e-mail must flow through the recipient’s e-mail

server in order to reach the intended recipient.   By selecting

AOL subscribers as his e-mail recipients, Jaynes knew and

intended that his e-mails would utilize AOL servers because he

clearly intended to send to users whose e-mails ended in

“@aol.com.”   The evidence established that the AOL servers are

located in Virginia, and that the location of AOL’s servers was

information easily accessible to the general public.   Applying

our standard of review to the evidence presented along with all

reasonable inferences therefrom, we conclude that the evidence

supports the conclusion that Jaynes knew and intended that the

e-mails he sent to AOL subscribers would utilize AOL’s servers

which are located in Virginia.    Thus an intended and necessary

result of Jaynes’ action, the e-mail transmission through the

computer network, occurred in Virginia.


                                  6
     Furthermore, a state may exercise jurisdiction over

criminal acts that are committed outside the state, but are

intended to, and do in fact, produce harm within the state.

“ ‘It has long been a commonplace of criminal liability that a

person may be charged in the place where the evil results,

though he is beyond the jurisdiction when he starts the train of

events of which the evil is the fruit.’ ”   Travelers Health

Ass'n v. Commonwealth, 188 Va. 877, 892, 51 S.E.2d 263, 269

(1949) (citing Strassheim v. Daily, 221 U.S. 280, 284-85

(1911)).

     Jaynes, relying on Moreno, argues that this principle,

referred to as the “immediate result doctrine,” is not

applicable if third parties intervene between the out-of-state

conduct and the in-state harm.   In Moreno, the defendant, while

in Arizona, arranged for delivery of drugs to an accomplice in

Arizona who, in turn, delivered the drugs to two other

accomplices who ultimately sold the drugs in Virginia.   249 Va.

at 17-18, 452 S.E.2d at 654.   Noting that drug distribution is

not a continuing offense and that payment is not an element of

the crime of drug distribution, id. at 18-20, 452 S.E.2d at 654-

55, we concluded that the discrete crime of drug distribution

was committed by the defendant while in Arizona and that the

ultimate sale of the drugs in Virginia was not the “immediate

result” of the distribution of drugs in Arizona because the


                                 7
subsequent distributions by Moreno’s accomplices intervened.

Id. at 19, 452 S.E.2d at 655.

     Jaynes argues that an e-mail could be routed through a

number of different mail handling networks before the e-mail

reaches its destination, and that an e-mail sender cannot

control the route used.   Such routing, Jaynes contends, is the

same type of intervention which occurred in Moreno.   Therefore,

according to Jaynes, the intervention of intermediate e-mail

routers and servers prior to arrival of the e-mails at the AOL

servers shows that the alleged harm through the AOL servers in

Virginia was not the “immediate result” of Jaynes’ actions in

North Carolina.

     Jaynes’ reliance on Moreno fails because, as noted above,

Jaynes’ affirmative act of selecting AOL subscribers as

recipients of his e-mails insured the use of AOL’s computer

network to deliver the e-mails and such use was the “immediate

result” of Jaynes’ action, regardless of any intermediate routes

taken by the e-mails.   Because the use of the computer network

of an e-mail service provider or its subscribers is an integral

part of the crime charged and because the use of AOL’s e-mail

servers was the “immediate result” of Jaynes’ acts, we hold that

Jaynes was amenable to prosecution in Virginia for a violation

of Code § 18.2-152.3:1.   Accordingly, the circuit court had

jurisdiction over Jaynes.


                                 8
                   B. FIRST AMENDMENT OVERBREADTH

     Jaynes next contends that Code § 18.2-152.3:1 is

constitutionally deficient as overbroad under the First

Amendment and therefore the statute cannot be enforced.    He

argues the Court of Appeals erred in affirming the circuit

court’s ruling denying his motion to dismiss on that basis.

     The Court of Appeals assumed without deciding that Jaynes

had standing to raise a First Amendment challenge, but concluded

that Code § 18.2-152.3:1 was in the nature of a trespass

statute, thereby eliminating the need to address the First

Amendment issue.   The Commonwealth, in addition to arguing that

the Court of Appeals correctly construed the statute as a

trespass statute, contends in an assignment of cross-error that

Jaynes lacks standing to raise a First Amendment challenge to

Code § 18.2-152.3:1 and therefore the First Amendment issues

raised by Jaynes should not be considered.   We will begin by

addressing the issue of standing.

                            1.   STANDING

     Jaynes does not make a pure facial challenge to Code

§ 18.2-152.3:1 as he does not argue “that no set of

circumstances exists under which the Act would be valid.”

United States v. Salerno, 481 U.S. 739, 745 (1987).     Similarly,

Jaynes does not make an “as-applied challenge” to the statute,

meaning he does not contend the application of the statute to


                                  9
the actual acts for which he was convicted violates the First

Amendment.     See Gonzales v. Carhart, 550 U.S. ___, ___, 127

S.Ct. 1610, 1638-39 (2007) (comparing facial and as-applied

challenges).    Instead, Jaynes challenges the statute by claiming

it is unconstitutional as overbroad.      See Virginia v. Hicks, 539

U.S. 113, 118-19 (2003) (“Hicks II”). 6    That is, Jaynes contends

that because the statute could potentially reach the protected

speech of a third party, he (Jaynes) is entitled to claim

exoneration for his otherwise unprotected speech. 7

     The Commonwealth contends Jaynes has no standing to raise a

First Amendment overbreadth defense.      Citing the decision of the

United States Supreme Court in Hicks II, the Commonwealth argues

     there is no federal law obligation for state courts to
     hear facial challenges alleging overbreadth. While
     the question of whether a statute is overbroad is a
     matter of federal constitutional law, the question of
     who may bring a facial challenge alleging overbreadth
     is a matter of state law.


     6
       Unlike a “facial” or “as-applied” challenge, an
overbreadth challenge “suffices to invalidate all enforcement of
that law” upon showing that the law “punishes a ‘substantial’
amount of protected free speech, ‘judged in relation to the
statute’s plainly legitimate sweep.’ ” Hicks II, 539 U.S. at
118-19 (2003)(quoting Broadrick v. Oklahoma, 413 U.S. 601, 615
(1973)).
     7
       The Commonwealth also argues that Jaynes did not preserve
this issue for appeal because he did not raise his overbreadth
challenge in the circuit court. This contention is without
merit. Jaynes raised it in his brief in support of his motion
to dismiss, the Commonwealth addressed a facial challenge in
response and the circuit court in its letter opinion labeled
Jaynes’ argument “a broad, general, facial First Amendment
challenge.”


                                  10
                              . . . .

     In other words, the fact that Jaynes could bring his
     facial challenge alleging overbreadth in federal court
     is irrelevant. The issue is whether Jaynes may bring
     his facial challenge alleging overbreadth in the
     Virginia state courts.

The Commonwealth concludes that based on Hicks II “except where

there is no set of circumstances where the statute is

constitutional, or where a litigant is engaged in non-commercial

speech, this Court, as a matter of state law, should entertain

only as-applied challenges.” (citation omitted).

     Jaynes responds that Hicks II does not support the rule on

standing advocated by the Commonwealth.   He contends “[a]lthough

Hicks [II] permits state courts to allow more facial challenges

than federal law would permit, it does not authorize state

courts to accept fewer facial challenges.”   Citing New York v.

Ferber, 458 U.S. 747, 767 (1982), Jaynes maintains that the

overbreadth doctrine is a “constitutional exception to state and

federal rules of standing, which ordinarily limit parties to as-

applied challenges to statutes.” 8




     8
       Jaynes’ arguments as to the effect of Hicks II and
response to the Commonwealth’s position that states can set
whatever standing rules they choose for First Amendment
overbreadth claims were not made until his petition for
rehearing and brief on rehearing. Even though Jaynes failed in
his opening or reply briefs to address the standing issue as
presented by the Commonwealth, that issue is properly before us
and we address it because the issue was raised and placed before
the Court by the Commonwealth.


                                11
     The Commonwealth bases its position on the following

discussion of standing in the Hicks II opinion:

     [O]ur standing rules limit only the federal courts’
     jurisdiction over certain claims. State courts are not
     bound by the limitations of a case or controversy or
     other federal rules of justiciability even when they
     address issues of federal law. Whether Virginia’s
     courts should have entertained this overbreadth
     challenge is entirely a matter of state law.

Hicks II, 539 U.S. at 120 (citation omitted) (emphasis added).

     On its face, and without context, this passage from Hicks

II appears to support the rule of standing advocated by the

Commonwealth.   In a nutshell, that rule would be that state

courts are not required to apply the same standing requirements

to a claimant who raises a First Amendment overbreadth challenge

to a state statute in a state court as would be accorded that

claimant in a federal court considering a similar First

Amendment overbreadth claim.   However, when viewed in the

context of the standing issue actually presented in Hicks II,

and the longstanding Fourteenth Amendment jurisprudence by which

First Amendment rights are made applicable in state court

proceedings, we disagree with the Commonwealth’s arguments.

     In Commonwealth v. Hicks, 264 Va. 48, 563 S.E.2d 674 (2002)

(“Hicks I”) this Court accorded standing to that defendant to

raise a First Amendment overbreadth challenge to certain

policies of the Richmond Redevelopment and Housing Authority

(RRHA).   264 Va. at 55-56, 563 S.E.2d at 678-79.   Hicks had been


                                12
banned from RRHA property because of prior trespass and property

damage offenses, but continued to trespass on RRHA property.

Id. at 52-53, 563 S.E.2d at 676-77.    Upon his subsequent

trespass arrest and conviction, Hicks asserted that he had a

right to assert that the RRHA policies determining which persons

would be barred from access to its properties were overbroad

under the First Amendment and thus his conviction was invalid.

Id. at 54, 563 S.E.2d at 677-78.     Although Hicks did not contend

that he had engaged in any expressive conduct or that the

trespass statute under which he was convicted was invalid, this

Court in Hicks I reversed his conviction because it concluded

the RRHA trespass policy “also prohibits speech and conduct that

are clearly protected by the First Amendment.”     Id. at 58, 563

S.E.2d at 680.

     Upon appeal to the United States Supreme Court, the

Commonwealth did “not ask the Court to abolish the overbreadth

doctrine, only to place meaningful limits on its use.”    Brief of

Petitioner, Virginia v. Hicks, No. 02-371, at 18 (Mar. 7, 2003).

The Commonwealth argued on brief that “the Supreme Court of

Virginia treated the [overbreadth] doctrine as if it were

virtually unbounded,” id. at 19, and consequently Hicks I

“represents a radical expansion of the overbreadth doctrine.”

Id. (emphasis added).   This was so, the Commonwealth argued,

because the Hicks I view of overbreadth standing “has no


                                13
precedent in this Court’s jurisprudence,” id. at 21, and urged

the Court to limit First Amendment overbreadth standing to

persons who “at least show (1) that his own conduct involved

some sort of expressive activity, and (2) that his conduct falls

within the particular prohibition he challenges as overbroad.”

Id. at 25.   Because Hicks conceded his trespass was not

expressive activity and he did not challenge the trespass

statute under which he was convicted as overbroad, the

Commonwealth’s position before the United States Supreme Court

in Hicks II was that Hicks’ conduct failed to meet its proposed

overbreadth standing rule.   At no point, on brief or in oral

argument before the Supreme Court, did the Commonwealth argue

the standing rule it now posits: that state courts are free to

set their own standing rules in cases involving First Amendment

overbreadth claims.   In point of fact, as the foregoing

illustrates, the Commonwealth argued the polar opposite: that

state court standing rules should be constrained.

       The oral argument in Hicks II makes this conclusion

unmistakable and reflects the Commonwealth’s clear

acknowledgement of a First Amendment overbreadth rule that is

directly contrary to the position it now advances in the case at

bar.   In discussing the Virginia Supreme Court’s resolution of

standing in Hicks I, the following colloquy took place between

members of the Court and counsel for the Commonwealth:


                                 14
          QUESTION: The issue is whether – whether
     [Virginia] adopted a broader interpretation under
     State law than Federal law would require.

                          . . . .

          [ANSWER]: That is correct. A – a State may well
     be able to adopt a broader interpretation of standing
     than this Court requires, but it cannot adopt a
     narrower interpretation. It cannot disregard this
     Court’s direction that you give overbreadth standing
     according to the Federal constitutional
     standards. . . .

          QUESTION: And if they were correct about what our
     standing rules are, they would have to follow those
     standing rules, wouldn’t they? They could not apply a
     narrower . . . basis for standing, could they?

          [ANSWER]: That is absolutely correct, Your Honor.
     The State supreme court has no discretion to disregard
     this Court’s application of the First Amendment
     through its overbreadth doctrine.

Oral Arg. Tr., Virginia v. Hicks, No. 02-371, at 5 (Apr. 30,

2003) (emphasis added).

     It is thus clear that the opinion of the United States

Supreme Court in Hicks II addressed the issue of First Amendment

standing only in the context by which that issue was placed

before the Court: whether a state’s expansion of First Amendment

standing was subject to review by federal courts.   When the

Hicks II opinion states “[w]hether Virginia’s courts should have

entertained this overbreadth challenge is entirely a matter of

state law,” Hicks II, 539 U.S. at 120, the term “this” plainly

limits the standing issue to what was before the Court in that

case: an expansion, not a restriction, of state court standing.



                               15
        Thus, read in context, the seemingly broad language about

standing in the Hicks II opinion cannot have the meaning now

espoused by the Commonwealth.    This view is amply verified by

decades of Fourteenth Amendment jurisprudence that establishes

First Amendment rights, among others, as applicable in state

court proceedings.    In 1925, the United States Supreme Court

enunciated the principle “that freedom of speech and of the

press – which are protected by the First Amendment from

abridgement by Congress – are among the fundamental personal

rights and ‘liberties’ protected by the due process clause of

the Fourteenth Amendment from impairment by the States.”     Gitlow

v. New York, 268 U.S. 652, 666 (1925); accord Stromberg v.

California, 283 U.S. 359, 368 (1931) (“the conception of liberty

under the due process clause of the Fourteenth Amendment

embraces the right of free speech”).

        The Supreme Court has also recognized that the assertion of

a First Amendment overbreadth claim is not the application of a

procedural rule, but a substantive part of the First Amendment.

“[O]verbreadth is a function of substantive First Amendment

law.”     Sabri v. United States, 541 U.S. 600, 610 (2004) (citing

Henry P. Monaghan, Overbreadth, 1981 S.Ct. Rev. 1, 24).     As a

matter of substantive law, the First Amendment overbreadth

doctrine is a constitutional exception to state and federal

rules of standing that would otherwise limit a party to an as-


                                  16
applied challenge to a statute.    Thus, “[a] state court is not

free to avoid a proper facial attack on federal constitutional

grounds.”   New York v. Ferber, 458 U.S. 747, 767 (1982).

     To accept the Commonwealth’s view of Hicks II would permit,

under the guise of standing, a state court to ignore the

substantive constitutional rights of citizens in contravention

of the Fourteenth Amendment.   That is an untenable position

because the right to assert the protection of the First

Amendment (by overbreadth or otherwise) can no more be

restricted by a state rule of standing than the exclusionary

rule applied to impermissible searches and seizures could be

limited by state evidence law.

     Thus, read in context, Hicks II does not support the

argument on standing advanced by the Commonwealth.   To the

contrary, as the Commonwealth expressly admitted before the

United States Supreme Court, a state supreme court has no

discretion to disregard the United States Supreme Court’s

application of the First Amendment through its overbreadth

doctrine because it cannot disregard the Court’s direction that

overbreadth standing be given according to the Federal

constitutional standards.   Oral Arg. Tr., Virginia v. Hicks, No.




                                  17
02-371, at 5.   Accordingly, we hold Jaynes has standing to raise

the First Amendment overbreadth claim. 9

                            2.   TRESPASS

     The Commonwealth argues, in the alternative, that if Jaynes

has standing to raise a First Amendment overbreadth claim, that

claim is not proper for consideration because his conduct was a

form of trespass and thus not entitled to First Amendment

protection.   Code § 18.2-152.3:1, in the Commonwealth’s view, is

like a trespass statute, prohibiting trespassing on the

privately owned e-mail servers through the intentional use of

false information and that no First Amendment protection is

afforded in that circumstance.    The Court of Appeals adopted

this position and held Jaynes’ First Amendment argument was “not

relevant.”    Jaynes v. Commonwealth, 48 Va. App. 673, 693, 634

S.E.2d 357, 367 (2006).   Concluding that Code § 18.2-152.3:1

“prohibits lying to commit a trespass,” id. at 693, 634 S.E.2d

at 366, the Court of Appeals determined the “statute proscribes

intentional falsity as a machination to make massive,

uncompensated use of the private property of an ISP. Therefore,

the statute cannot be overbroad because no protected speech

     9
       The Commonwealth also argues an alternate standing rule:
that standing in First Amendment overbreadth cases not extend to
persons who engage only in commercial speech. That rule was
previously rejected in Bigelow v. Virginia, 421 U.S. 809, 817
(1975); see also Virginia State Bd. of Pharmacy v. Virginia



                                  18
whatsoever falls within its purview.”    Id. at 693, 634 S.E.2d at

367.   We disagree.

       Trespass is the unauthorized use of or entry onto another’s

property.    See e.g., Vines v. Branch, 244 Va. 185, 190, 418

S.E.2d 890, 894 (1992) (“Where a person has illegally seized the

personal property of another and converted it to his own use,

the owner may bring an action in trespass, trover, detinue, or

assumpsit.”) (emphasis added); Code § 18.2-119, -125, -128, -

132.

       Significantly, Code § 18.2-152.3:1 does not prohibit the

unauthorized use of privately owned e-mail servers.    The statute

only prohibits the intentional use of false routing information

in connection with sending certain e-mail through such servers.

Thus, even if an e-mail service provider specifically allowed

persons using false IP addresses and domain names to use its

server, the sender could be prosecuted under Code § 18.2-152.3:1

although there was no unauthorized use or trespass.   Therefore,

Code § 18.2-152.3:1 is not a trespass statute.

       The Commonwealth’s argument that there is no First

Amendment right to use false identification to gain access to

private property is inapposite.    First, in making this argument

the Commonwealth uses the terms “false” and “fraudulent”



Citizens Consumer Council, 425 U.S. 748, 770 (1976) (“commercial
speech, like other varieties, is protected”).


                                  19
interchangeably.   Those concepts are not synonymous. 10   At issue

here is the statute’s prohibition of “false” routing

information.   Second, the cases upon which the Commonwealth

relies are civil cases between Internet service providers and

the entities engaged in sending commercial unsolicited bulk e-

mails: CompuServe, Inc. v. Cyber Promotions, Inc., 962 F.Supp.

1015 (S.D. Ohio 1997), Cyber Promotions, Inc. v. America Online,

Inc., 948 F.Supp. 436 (E.D. Pa. 1996), and America Online, Inc.

v. IMS, 24 F.Supp.2d 548 (E.D. Va. 1998).    In litigation between

these private parties, the courts have held that the

unauthorized use of the Internet service providers’ property

constituted common law trespass and that a First Amendment claim

could not be raised against the owner of private property.

These cases have no relevance here because this is not a

trespass action by a private property owner and the First

Amendment right is not being asserted against the owner of

private property, but against government action impacting the

claimed First Amendment right.   Accordingly, we reject the

Commonwealth’s argument and hold the Court of Appeals erred in

this regard.




     10
       Fraud involves a false representation of a material fact,
made intentionally, which induces reliance on that false
representation, and resulting damage. Klaiber v. Freemason
Assocs., 266 Va. 478, 485, 587 S.E.2d 555, 558 (2003).


                                 20
               3. CONSTITUTIONALITY OF CODE § 18.2-152.3:1

     We now turn to Jaynes’ contention that Code § 18.2-152.3:1

is unconstitutionally overbroad.         To address this challenge, we

first review certain technical aspects of the transmission of e-

mails.    In transmitting and receiving e-mails, the e-mail

servers use a protocol which prescribes what information one

computer must send to another. 11    This SMTP requires that the

routing information contain an IP address and a domain name for

the sender and recipient of each e-mail.        Domain names and IP

addresses are assigned to Internet servers by private

organizations through a registration process.        To obtain an IP

address or domain name, the registrant pays a fee and provides

identifying contact information to the registering organization.

The domain names and IP addresses are contained in a searchable

database which can associate the domain name with an IP address

and vice versa.

     The IP address and domain name do not directly identify the

sender, but if the IP address or domain name is acquired from a

registering organization, a database search of the address or

domain name can eventually lead to the contact information on

file with the registration organizations.        A sender’s IP address

or domain name which is not registered will not prevent the


     11
       The protocol is the product of private collaboration and
not established by a governmental entity.


                                    21
transmission of the e-mail; however, the identity of the sender

may not be discoverable through a database search and use of

registration contact information. 12

     As shown by the record, because e-mail transmission

protocol requires entry of an IP address and domain name for the

sender, the only way such a speaker can publish an anonymous e-

mail is to enter a false IP address or domain name.    Therefore,

like the registration record on file in the mayor’s office

identifying persons who chose to canvass private neighborhoods

in Watchtower Bible & Tract Society v. Village of Stratton, 536

U.S. 150 (2002), registered IP addresses and domain names

discoverable through searchable data bases and registration

documents “necessarily result[] in a surrender of [the

speaker’s] anonymity.”   536 U.S. at 166.   The right to engage in

anonymous speech, particularly anonymous political or religious

speech, is “an aspect of the freedom of speech protected by the

First Amendment.”    McIntyre v. Ohio Elections Comm’n, 514 U.S.

334, 342 (1995).    By prohibiting false routing information in

the dissemination of e-mails, Code § 18.2-152.3:1 infringes on

that protected right.    The Supreme Court has characterized

regulations prohibiting such anonymous speech as “a direct

regulation of the content of speech.”    Id. at 345.


     12
       In this case Jaynes used registered IP addresses,
although the domain names were false.


                                 22
     State statutes that burden “core political speech,” as this

statute does, are presumptively invalid and subject to a strict

scrutiny test.   Under that test a statute will be deemed

constitutional only if it is narrowly drawn to further a

compelling state interest.   Id. at 347.   In applying this test,

we must also consider that state statutes are presumed

constitutional, City Council v. Newsome, 226 Va. 518, 523, 311

S.E.2d 761, 764 (1984), and any reasonable doubt regarding

constitutionality must be resolved in favor of validity.     In re

Phillips, 265 Va. 81, 85-86, 574 S.E.2d 270, 272 (2003).

     There is no dispute that Code § 18.2-152.3:1 was enacted to

control the transmission of unsolicited commercial bulk e-mail,

generally referred to as SPAM.   In enacting the federal CAN-SPAM

Act, Congress stated that commercial bulk e-mail threatened the

efficiency and convenience of e-mail.   15 U.S.C. § 7701(a)(2).

Many other states have regulated unsolicited bulk e-mail but,

unlike Virginia, have restricted such regulation to commercial

e-mails.   See e.g., Ariz. Rev. Stat. § 44-1372.01; Ark. Code

Ann. § 4-88-603; Cal. Bus. & Prof. Code § 17538.45; Fla. Stat.

§ 668.603; Idaho Code § 48-603E; Ill. Comp. Stat., tit. 815

§ 511/10; Ind. Code § 24-5-22-7; Kan. Stat. Ann. § 50-6, Md.

Code Ann., Commercial Law § 14-3002.    There is nothing in the

record or arguments of the parties, however, suggesting that

unsolicited non-commercial bulk e-mails were the target of this


                                 23
legislation, caused increased costs to the Internet service

providers, or were otherwise a focus of the problem sought to be

addressed by the General Assembly through its enactment of Code

§ 18.2-152.3:1.

     Jaynes does not contest the Commonwealth’s interest in

controlling unsolicited commercial bulk e-mail as well as

fraudulent or otherwise illegal e-mail.    Nevertheless, Code

§ 18.2-152.3:1 is not limited to instances of commercial or

fraudulent transmission of e-mail, nor is it restricted to

transmission of illegal or otherwise unprotected speech such as

pornography or defamation speech.     Therefore, viewed under the

strict scrutiny standard, Code § 18.2-152.3:1 is not narrowly

tailored to protect the compelling interests advanced by the

Commonwealth.

                     4. SUBSTANTIAL OVERBREADTH

     The Commonwealth argues that we should not preclude

enforcement of Code § 18.2-152.3:1 because, even if

unconstitutionally overbroad, that remedy is limited to those

statutes that are substantially overbroad.    The concept of

substantial overbreadth is not a test of the constitutionality

of a statute, but a policy related to the remedy flowing from a

successful facial challenge.   A successful facial overbreadth

challenge precludes the application of the affected statute in

all circumstances.   Recognizing the sweep of this remedy, the


                                 24
United States Supreme Court has stated that it will not impose

such an expansive result where the chilling effect of an

overbroad statute on constitutionally protected rights cannot

justify prohibiting all enforcement of the law.   “For there are

substantial social costs created by the overbreadth doctrine

when it blocks application of a law to constitutionally

unprotected speech. . . .”   Hicks II, 539 U.S. at 119.    Thus a

statute should be declared facially overbroad and

unconstitutional only if the statute “punishes a ‘substantial’

amount of protected free speech, ‘judged in relation to the

statute’s plainly legitimate sweep.’ ”   Id. at 118-19 (citing

Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)).

     The Commonwealth argues that Code § 18.2-152.3:1 is not

substantially overbroad because it does not impose any

restrictions on the content of the e-mail and “most”

applications of its provisions would be constitutional, citing

its application to unsolicited bulk commercial e-mail,

unsolicited bulk e-mail that proposes a criminal transaction,

and unsolicited bulk e-mail that is defamatory or contains

obscene images.   According to the Commonwealth an “imagine[d]

hypothetical situation where the Act might be unconstitutional

as applied does not render the Act substantially overbroad.”




                                25
     The United States Supreme Court recently reviewed the First

Amendment overbreadth doctrine in United States v. Williams, 553

U.S. ___, 128 S.Ct. 1830 (2008).     The Court noted

     [i]n order to maintain an appropriate balance, we have
     vigorously enforced the requirement that a statute’s
     overbreadth be substantial, not only in an absolute
     sense, but also relative to the statute’s plainly
     legitimate sweep.

          . . . [I]t is impossible to determine whether a
     statute reaches too far without first knowing what the
     statute covers.

553 U.S. at ___, 128 S.Ct. at 1838.    Applying that inquiry under

Williams in this case is relatively straightforward as Code

§ 18.2-152.3:1 would prohibit all bulk e-mail containing

anonymous political, religious, or other expressive speech.   For

example, were the Federalist Papers just being published today

via e-mail, that transmission by Publius would violate the

statute.   Such an expansive scope of unconstitutional coverage

is not what the Court in Williams referenced “as the tendency of

our overbreadth doctrine to summon forth an endless stream of

fanciful hypotheticals.”   553 U.S. at ___, 128 S.Ct. at 1843.

We thus reject the Commonwealth’s argument that Jaynes’ facial

challenge to Code § 18.2-152.3:1 must fail because the statute

is not “substantially overbroad.”

                       5. NARROWING CONSTRUCTION

     Lastly, the Commonwealth asserts that we need not declare

Code § 18.2-152.3:1 unconstitutional because a limiting



                                26
construction can be adopted by this Court that would prevent

invalidating the statute.   Such a construction according to the

Commonwealth would be a declaration that the statute does not

apply to “unsolicited bulk non-commercial e-mail that does not

involve criminal activity, defamation or obscene materials.”

Alternatively the Commonwealth suggests that we hold the statute

applies only in instances where the receiving Internet service

provider “actually objects to the bulk e-mail.”

     Our jurisprudence requires us to interpret a statute to

avoid a constitutional infirmity.      Burns v. Warden, 268 Va. 1,

2, 597 S.E.2d 195, 196 (2004).    Nevertheless, construing

statutes to cure constitutional deficiencies is allowed only

when such construction is reasonable.      Virginia Soc’y for Human

Life v. Caldwell, 256 Va. 151, 157, 500 S.E.2d 814, 816-17

(1998).   A statute cannot be rewritten to bring it within

constitutional requirements.     Reno v. ACLU, 521 U.S. 844, 884-85

& nn.49-50 (1997); Virginia v. American Booksellers Ass’n, 484

U.S. 383, 397 (1988).   The construction urged by the

Commonwealth is not a reasonable construction of the statute.

Nothing in the statute suggests the limited applications

advanced by the Commonwealth.    If we adopted the Commonwealth’s

suggested construction we would be rewriting Code § 18.2-152.3:1

in a material and substantive way.     Such a task lies within the

province of the General Assembly, not the courts.      Jackson v.


                                  27
Fidelity & Deposit Co., 269 Va. 303, 313, 608 S.E.2d 901, 906

(2005) (“Where the General Assembly has expressed its intent in

clear and unequivocal terms, it is not the province of the

judiciary to add words to the statute or alter its plain

meaning.”).

                            III.    CONCLUSION

     For the foregoing reasons, we hold that the circuit court

properly had jurisdiction over Jaynes.    We also hold that Jaynes

has standing to raise a First Amendment overbreadth claim as to

Code § 18.2-152.3:1.   That statute is 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 to the United States Constitution.    Accordingly,

we will reverse the judgment of the Court of Appeals and vacate
                                                            13
Jaynes’ convictions of violations of Code § 18.2-152.3:1.

                                        Reversed and final judgment.




     13
       In light of this holding, we do not address Jaynes’ other
assignments of error.


                                   28