My recent article on the Virginia Supreme Court's decision to turn over the state's antispam law drew some interesting comments:

“They should have charged him with littering and charged him $1,000 per piece. That’s what he's really doing - throwing his trash on my lawn. Unlike junk snail mail, he isn't even using 'Current Resident' to get his e-mail to an individual. He’s just using up everyone’s bandwidth and resources by spraying garbage through the system in hopes that some lands in the correct place. It’s reminiscent of dumping propaganda leaflets by airplane.”

Another reader commented:

“I don’t see how anyone could disagree with the Virginia Supreme Court ruling; the law is pretty straightforward that overbroad laws are illegal. They should have been more careful in drafting the statute. What they were trying to do was fine, they just wrote it without exempting protected speech.”

I agree with the first reader, but must respectfully disagree with the second based on what I perceive to be “protected” speech. For example, expressing an opinion is protected speech; spray-painting that opinion on the side of your neighbor’s house is not. I contend that spamming is more akin to the latter than the former.

When a spammer sends you an e-mail, they consume storage space on your e-mail server, they consume bandwidth in your networks, they consume storage space on your hard disk, and they obligate you to do something with that message – review it in a quarantine, delete it, etc. As I see it, when the Founders codified the legal concept of protected speech, they meant that the government was obligated to protect it, they didn’t mean that you had the obligation to fund it.

I believe that the Virginia law will be rewritten more narrowly to exempt “protected” speech. On balance, however, most spammers couldn’t care less about the law, so the new law will have little impact anyway.

Michael Osterman is principal analyst of Osterman Research.