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, 20082

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 emails 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275 Va. 341, 657 S.E.2d 478 (2008), was withdrawn by the Court 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 emails 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 emails. 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 asapplied 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 as16 
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 emails: 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 emails. 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 email 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 
28 

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 

Jaynes’ convictions of violations of Code § 18.2-152.3:1. 13

Reversed and final judgment.

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

assignments of error.