Venkat Balasubramani has a post speculating on whether the U.S. Supreme Court will grant certiorari to review the Virginia Supreme Court's ruling that the state's unsolicited bulk e-mail law violates the First Amendment. He thinks the high court will take the case of Commonwealth v. Jaynes. Nobody can really know what the court will do. Just for fun, I'll argue that the court will not take the case.
First, the Supreme Court has a rule setting out the grounds for granting a certiorari petition. The court is pretty good about following its own rules. Rule 10 provides:
Rule 10. Considerations Governing Review on Writ of Certiorari
Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers:
(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power; (b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals; (c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.
A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.
I don't see where the Jaynes case presents any of these grounds for granting the writ. There are no other federal or state decisions on the same issues presented in Jaynes, namely, whether a statute criminalizing the transmission of bulk e-mail with false header information violates the First Amendment right to anonymous speech. None. Rule 10 makes clear that the Supreme Court is not in the business of correcting errors. The Virginia Supreme Court might have gotten the Jaynes decision wrong. Way wrong, even. But that's not the kind of case that interests the high court.
Second, only a handful of states (3?) regulate bulk e-mail. All the others regulate commercial e-mail -- speech that is analyzed under an entirely different set of First Amendment rules. It is hard to believe that the Supreme Court would take a case that has such small national significance.
Third, Virginia is in the process of turning its unsolicited bulk e-mail statute into an unsolicited commercial e-mail law, thereby eliminating the problems identified by the state supreme court. H.B. 1396 passed the Senate on Feb. 25 and is now ready for the governor's signature. Granting cert in this case wouldn't even have much of an impact in Virginia.
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