For more than three decades, the state of Georgia has charged anyone who wants to see its official state law hundreds of dollars for that privilege. Now the state is suing the non-profit website that purchased a copy of that official compilation and put it on the internet for the public to see.
The problem with all of this? Knowing the law is a right, not a privilege.
We are in court today to argue that a state cannot put a copyright paywall between you and the law that governs you. Georgia takes the troubling position that it can claim a private property right in its entire legal code. The state concedes that it cannot claim a copyright in its statutory language or the text of court opinions. But it somehow believes that because the “Official Code of Georgia Annotated” — which it considers its official law — combines those two sources of public law, it can copyright the result and charge the public a hefty price to see it.
In 2013, a nonprofit called Public Resource paid for the OCGA and posted it online to make Georgia’s state law freely available to the public. In response, the state sued Public Resource. The ACLU, along with a number of other groups, filed an amicus brief in the 11th Circuit Court of Appeals defending the public’s right to access its own laws.
The OCGA is the law that the Georgia Legislature editorially controls and publishes. It is the law that the state’s executive agencies enforce. And it is the official state law that courts apply and interpret. Most fundamentally, it is the law that an individual must read to know what behavior is legal and what isn’t. While an unannotated version of the code is available online for free, that version does not constitute the law as enforced today. For example, a person reading the free version might believe that an “offense of sodomy” is punishable by one to 20 years in prison. That individual would also be led to believe that private possession of pornography is illegal. Only by paying more than $400 would she learn that courts have held both of those statutes to be unconstitutional, and the state enforces neither.
In our view, Georgia’s attempt to profit by limiting public access to the law harms at least three fundamental constitutional principles. First, it ignores the public’s role as the true author of the law. Second, without free access to the law, you lack the ability to figure out what is legal and what isn’t. Finally, you have a fundamental First Amendment right to see what your government is up to.
Georgia asserts that such knowledge is a privilege for which people should pay. We believe it is a constitutional right. We hope the court agrees.