Reply In Support Of Motion For Preliminary Injunction in ACLU v. Miller



FILE NO. 1:96-CV-2475-MHS
ZELL MILLER, in his official
capacity as Governor of the
State of Georgia, et al.






O.C.G.A. § 16-9-93.1 ("the Georgia Act") directly threatens speech on the Internet, one of the most important new mediums in the history of human communications. The Internet provides ordinary individuals with the ability to speak on issues of public concern to an audience of other individuals all over the world. The Georgia Act prohibits anonymous and pseudonymous speech on the Internet. It also interferes with the system of "links" that has made the World Wide Web (which represents one portion of the Internet) so successful. Plaintiffs submit this reply memorandum in further support of their motion for a preliminary injunction against the Georgia Act. 

Defendants make only a halfhearted attempt to defend the Act as written, arguing that it represents a constitutional response to the state's compelling interest in preventing fraud and deception. That interest, however, is not an issue in this case. What is at issue is the means that the state has chosen to advance its interest. The challenged Act can only be described as an anti-fraud statute if one completely ignores basic First Amendment rules regarding vagueness, overbreadth and narrow tailoring. 

Implicitly recognizing the weakness of their argument to support the Act as written, defendants attempt to rewrite the Act so that it covers only some ill-defined category of fraud and deception. This more narrow statute, they suggest, is constitutional. Defendants' proposal, however, conflicts with the plain language of the Act. Strikingly, none of the words defendants use to rewrite the statute appear in it. Moreover, their brief asserts inconsistent and sometimes conflicting interpretations of the statute which fail to cure its constitutional defects. Indeed, defendants' strained effort to rewrite the statute merely highlights the fact that the statute actually written by the legislature is vague and overbroad. Under these circumstances, the Court should not usurp the legislature's role by performing radical surgery to save the statute, but should instead issue a preliminary injunction against enforcement of the Act. 

Defendants also fail to address the applicable law, and the facts about the online medium, that lead the Georgia Act to violate the Commerce Clause. In addition, defendants' response raises a variety of factual disputes that make an evidentiary hearing necessary. 


The Georgia Act, as written and on its face, violates the First Amendment because it prohibits plaintiffs and others from using pseudonyms or communicating anonymously over computer networks, and unconstitutionally restricts the online "use" by plaintiffs of trade names, trademarks, and logos. See generally Plaintiffs' Brief in Support of Motion for Preliminary Injunction ("Pl. Brief"); Plaintiffs' Affidavits. In responding to plaintiffs' motion to enjoin the Act, defendants fail to meet their burden of establishing that the Act is narrowly tailored to address a compelling government interest. Moreover, defendants fundamentally misconstrue the doctrines of substantial overbreadth and vagueness, and wrongly assert that the Act does not regulate speech. 

A.The Georgia Act Regulates Speech and is Content Based.  

Defendants first argue that the Georgia Act as written does not regulate speech, but "conduct." That contention entirely ignores the plain language of the statute. The first provision prohibits "use [of] any individual name . . . to falsely identify the person." As the Supreme Court has explained, names -- including pseudonyms -- are protected speech because "the identity of the speaker is no different from other components of the document's content that the author is free to include or exclude." McIntyre v. Ohio Elections Comm., 115 S. Ct. 1511, 1519 (1995); see also Pl. Brief, at 14-17. The second provision prohibits use of a "trade name, registered trademark, logo [etc.] . . . [if such use would] falsely state or imply . . . permission . . . to use [it]." This provision, as written, also clearly encompasses speech, i.e., plaintiffs' and others' use of trade names and logos in their online communications. See generally Smolla & Nimmer on Freedom of Speech, § 12.05; L.L. Bean, Inc. v. Drake Publ., Inc., 811 F.2d 26, 32 (1st Cir.), cert. denied, 483 U.S. 1013 (1987). The fact that this speech occurs over computer networks rather than through print, broadcast or other media is irrelevant. See, e.g., ACLU v. Reno, 929 F. Supp. 824, 883 (E.D. Pa. 1996) ("As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion."). The Act's prohibitions are thus readily distinguishable from regulations of "expressive conduct" such as picketing, handbilling, flag-burning, and mask-wearing. 

Next, defendants incorrectly state that even if the Act regulates "speech," it is not a content-based regulation of speech but only a time, place, and manner regulation. Defs. Brief at 21. A time, place, or manner regulation regulates not "'what' is said, but merely such matters as 'when,' where,' and 'how loud.'" Smolla and Nimmer on Freedom of Speech, §3.02[3][a]. The Georgia Act's ban on the use of certain names that "falsely identify" their users or that "falsely imply" permission to use them does not regulate time, place, or manner but directly regulates the content of speech. McIntyre, 115 S.Ct. at 1516 ("[A]n author's decision to remain anonymous, like other decisions concerning the omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment."); Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (regulations are content-based when they are grounded in the government's "disagreement with the message [the speech] conveys"). Because the Georgia Act is content-based, it is subject not to the relaxed scrutiny appropriate for time, place, and manner regulations, but rather to the strictest constitutional scrutiny. 

B. The Georgia Act Fails Strict Constitutional Scrutiny.  

The Georgia Act is far from a narrowly tailored means of addressing a compelling government interest. See Sable Communications v. FCC, 492 U.S. 115, 126 (1989); R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992). Defendants attempt to meet their burden of establishing that the Act meets strict constitutional scrutiny by asserting a compelling interest in preventing "fraud and deception" in the context of computer communications. Defs. Brief at 28. But defendants' argument is implausible. Other laws already exist that address defendants' purported interest. See Pl. Brief at 17-18, 23-24. Indeed, the Georgia General Assembly has already extended the scope of some fraud and deception laws specifically to the online context. Defendants' various arguments as to the insufficiency of existing laws are unpersuasive. Even if the Act prevents some ill-defined category of fraud and deception that is not covered by existing laws, defendants fail to explain why they would have a compelling interest in preventing this conduct on the Internet but yet have done nothing to prevent the same non-commercial deceptive practices in the print medium. Denver Area Educ. Television Consortium v. FCC, 116 S. Ct. 2374, 2416 (1996) (Kennedy, J., concurring) ("Partial service of a compelling interest is not narrow tailoring.") 

Finally, even if defendants' asserted interest is found to be compelling, they have not met their burden of establishing that the Act is a narrowly tailored means of addressing that interest. Indeed, the Act does not even contain the words that defendants use to describe this interest -- i.e., "fraud and deception." Instead, the Act uses words that criminalize a broad range of constitutionally protected speech -- which is far from a narrowly tailored way to address fraud and deception. See Pl. Brief at 14 18; ACLU v. Reno, 929 F. Supp. at 855-56 ("[I]t is difficult to characterize a criminal statute that hovers over each content provider, like the proverbial sword of Damocles, as a narrow tailoring.") See also McIntyre, 115 S.Ct. at 1520-22 (ban on anonymous speech not narrowly tailored to prevent fraud). 


C.The Georgia Act is Substantially Overbroad.
For similar reasons, the Georgia Act must be enjoined because it is substantially overbroad. See Pl. Brief at 24-26. Courts must examine a statute that criminalizes speech with particular care to ensure that it does not sweep protected speech within its reach. See Houston v. Hill, 482 U.S. 451, 458 (1987); Kolender v. Lawson, 462 U.S. 352, 359 (1983); Winters v. New York, 333 U.S. 507, 515 (1948). It is no defense to a First Amendment overbreadth challenge that the government can conceive of some circumstance in which speech encompassed by the Act could constitutionally be punished -- for example, if the Act's prohibition on speech that "falsely identifies" were applied to harmfully fraudulent speech. The overbreadth doctrine is specifically designed to protect against the chilling effect on protected speech that results when overbroad laws provide prosecutors with unfettered discretion. See, e.g., Hill, 482 U.S. at 465, and cases cited at n.15.

D. The Act Is Unconstitutionally Vague.  

Defendants' assertion that the Georgia Act, as written, is not unconstitutionally vague is contradicted by both the language of the statute itself and defendants' inability to describe the Act's coverage with any clarity. See infra Section II; Pl. Brief at I.C. None of the cases cited by defendants as examples of laws that survived vagueness challenges involved language identical or even similar to the language of the Georgia Act. See Defs. Brief at 35-36. The Georgia Act, on its face, lacks the high level of exactness required to "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983). Because the Act bans protected speech, a particularly stringent vagueness test should apply. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). 


Given the weakness of their response to the constitutionality of the Act as written, defendants attempt to rewrite the Act to cure its constitutional defects. Defendants' efforts should not distract the Court from the actual terms of the law. Under the "'golden rule' of statutory construction," the Court is required "to follow the literal language of the statute 'unless it produces contradiction, absurdity or such an inconvenience as to insure that the legislature meant something else.'" Telecom*USA, Inc. v. Collins, 260 Ga. 362, 363, 393 S.E.2d 235, 237 (1990); see also Griffin v. Kraft General Foods, Inc., 62 F.3d 368, 372 (11th Cir. 1995) ("Statutory construction begins with the words of the statute itself."). Thus, as the Supreme Court made clear in Virginia v. American Booksellers Assoc., 484 U.S. 383, 397 (1988), it is only if a statute is "'readily susceptible' to a narrowing construction" that such an interpretation will be applied to save an otherwise questionable law. 

Specifically, defendants contend at various points throughout their brief that the Act prohibits a narrower scope of activity than that encompassed in the actual language of the Act. They describe this scope variously as: 

?"fraud and deception, i.e., ...the transmission of misleading data via computer networks, through the knowing false identification of oneself as another, including by misappropriating another's registered trade name, trademark, logo, or seal to falsely identify oneself as someone else." Defs. Brief at 6. 

?"computer fraud by persons or organizations misidentifying themselves as someone else, and basically stealing someone else's name or identity for use in that environment." Id

?"fraudulently using someone else's name." Id. at 7. 

?"set[ting] up or maintain[ing] a fraudulent home page." Id

?"knowingly lying and committing fraud about one's name, trade name, registered trademark logo, or seal." Id

?intentionally commit the specific fraudulent act of transmitting data which falsely identifies oneself as another person or entity. Id. at 14.  

?"fraudulent transmission of data over computer." Id. at 22.  

?fraud and deception through the transmission of knowingly and intentionally false data which misappropriates someone else's identity or identifying mark" Id. at 27. 

?"sites which misidentify the person . . . by falsely stating or implying that the person has permission or is authorized to use the trade names and logos . . . when the person has no such permission or authorization." Id. at 39. 

?"fraud or misrepresentation . . . knowing and intentional misappropriation." Id. at 40.  

As these examples illustrate, the defendants propose a construction of O.C.G.A. § 16-9-93.1 that differs in at least three ways from the plain language of the statute itself: 

(1) They add an ill-defined element of "fraud," or an ill defined specific intent requirement of "intent to defraud," or "intent to deceive;" 

(2) They add a requirement of misappropriation of the identity of another specific entity or person; and 

(3) They offer two conflicting, interpretations of the Act's second restriction, which prohibits "use" of a "trade name, registered trademark, logo, legal or official seal, or copyrighted symbol" in a way that falsely implies permission: 

(a) They suggest the elimination of the second restriction imposed by the statute by contending that this "use" is prohibited only when the name or logo is used to "falsely identify" the user. 

(b) They imply that the second provision could in some circumstances reach the creation on a Web site of a link using trade names or logos if the creator does not obtain permission, but they fail to define those circumstances. 

As discussed in detail below, this radical re-drafting must be rejected because it conflicts with the plain language of the Georgia Act. Moreover, defendants' proposal is as confusing as the language of the Act itself, and fails to remedy the Act's vagueness and overbreadth. 

A.Defendants' Attempt To Add An Ill-Defined "Fraud" or "Specific Intent" Element Should Be Rejected. 

First, defendants contend that the Georgia Act prohibits "false identification" in online communications only when it constitutes "fraud," or is undertaken with some ill-defined specific intent the defendants variously describe as "fraudulent" intent, "intent to deceive," or "intent to defraud." 

1.The Defendants' Specific Intent Argument Simply Adds to the Vagueness Problem. 


The various terms the defendants use to describe this alleged additional element of the crime -- such as "fraud," "intent to defraud" and "intent to deceive" -- are not synonymous. E.g., United States v. Godwin, 566 F.2d 975, 976 (5th Cir. 1978). "[I]ntent to defraud," for example, means a specific intent to "deprive [a victim] of some right, interest or property by deceit." Id. United States v. Godwin, 566 F.2d 975, 976 (5th Cir. 1978). The phrase "fraudulent intent" is sometimes used by Georgia courts interchangeably with "intent to defraud." See, e.g., Bivens v. State, 153 Ga. App. 631, 632, 266 S.E.2d 304,305 (1980). On the other hand, "intent to deceive" means a specific intent to "cause [a victim] to believe the false or to mislead." 566 F.2d at 976. And in contrast to both of these, "fraud" encompasses not just knowledge of falsity and a specific intent to deceive, but actual reliance by the victim, and resulting injury. See, e.g., Georgia -Pacific Corp. v. Lieberam, 959 F.2d 901, 907 (11th Cir. 1992); Guernsey Petroleum v. Data General Corp., 183 Ga. App. 790, 793, 359 S.E.2d 920, 923 (1987). 

The defendants never explain which of these distinct elements they propose to engraft onto the statute. This lack of clarity makes defendants construction implausible. In addition, their construction remains unconstitutionally vague because it fails to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). 

2.The Construction Conflicts With The Plain Language of the Statute.  

Moreover, their attempt to add a specific intent element conflicts with the statute's plain language. Neither "fraud," "fraudulent," "intent to defraud" "fraudulent intent," nor "intent to deceive" appear anywhere in the language of the Georgia Act. In contrast, other Georgia criminal statutes which include similar specific intent elements do so expressly. For example, the forgery statute makes it illegal to make, alter or possess a "writing in a fictitious name . . . with intent to defraud." O.C.G.A. § 16-9-1(a). Similarly, O.C.G.A. § 10-1-453 makes it illegal to use the name of another "with intent to deceive the public.". See also O.C.G.A. § 16-9-2 (creation or possession of forged document, requiring "intent to defraud"); O.C.G.A. § 16-8-3 (theft by deception, requiring intent to deceive). 

"Where [the legislature] knows how to say something but chooses not to, its silence is controlling." In re Haas, 48 F.3d 1153, 1156 (11th Cir. 1995). Accord BFP v. Resolution Trust Co., 114 S. Ct. 1757, 1761 (1994) ("[I]t is generally presumed that [the legislature] acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another."). The fact that the General Assembly has routinely included language expressly adding the elements of fraud, intent to defraud, or intent to deceive in other criminal statutes but chose not to include similar language in the Act at issue in this case demonstrates that defendants' proposed rewrite does not comport with the legislature's intent. 

Defendants' contention that the term "falsely" in the Georgia Act should by itself be construed to incorporate this amorphous specific intent element into the statute conflicts with the plain and ordinary sense of this word: in its ordinary sense, "falsely" means simply "wrongly," "incorrectly," or "not truthfully." E.g., Webster's Third New Int'l Dictionary 819 (1976); see, e.g., Salmon v. Commercial Union Ins. Co., 154 Ga. App. 8, 8, 267 S.E.2d 273, 274 (1980) (Webster's New Int'l Dictionary used to establish the plain meaning of words); Sabel v. State, 24 Ga. 10, 12, 282 S.E.2d 61, 64, cert. denied, 454 U.S. 973 (1981) ("Where a word is not defined in a statute, it generally will be given its ordinary meaning."). The defendants' strained interpretation of this term also contradicts the definition adopted in Laughlin v. Bon Air Hotel


"[T]he word "false" has two distinct and well-recognized meanings. [It signifies] intentionally or knowingly, or negligently untrue, [and] untrue by mistake, accident or honestly after the exercise of reasonable care.

85 Ga. App. 43, 46, 68 S.E.2d 186, 189 (1951). Construed even in the stricter of these two ordinary senses, the Georgia Act is clearly broad enough to ban the knowing use of fictitious names of any kind and for any purpose in online communications, including the use of pseudonyms to protect privacy and anonymity. 

3.The General Rule Requiring General Criminal Intent Does Not Support Defendants' Construction. 

The rule requiring proof of general criminal intent is simply a requirement that an offender "intend[] the consequences of his physical actions." Holloway v. McElroy, 632 F.2d 605, 618 n. 26 (5th Cir. 1980) ("General intent is an essential element of all crimes under Georgia law (except those involving criminal negligence)."); see O.C.G.A. § 16-2-1. In the case of the Georgia Act, the requisite general intent is stated in the statute, which requires a "knowing" violation. This means only that to violate the law a person transmitting data over a computer network must know he is doing so, and know he using a name that falsely identifies himself. See United States v. Smith, 523 F.2d 771, 774 (5th Cir. 1975) ("'Knowingly' requires only that the defendant acted 'with knowledge.'"). The Tidwell v. State decision, relied upon by the defendants, simply stands for this same proposition. See 216 Ga. App. 8, 12, 453 S.E.2d 64, 67 (1994). 

General intent is distinct, however, from "specific intent," which refers to a specific culpable mental state included as an independent additional element of certain crimes. See, e.g., Holloway, 632 F.2d at 618 n. 26 (murder includes specific intent element of premeditation). "Intent to defraud" and "intent to deceive" are specific intent elements of the crimes to which they apply. See, e.g., Lewis v. State, 180 Ga. App. 890, 891, 351 S.E.2d 100, 102 (1986) (intent to defraud is "specific intent [which is] an essential element" of forgery under Georgia law); United States v. Lichenstein, 610 F.2d 1272, 1276-77 (5th Cir. 1980) ("intent to deceive" a specific intent element of federal false statement statute). As set forth above, criminal statutes incorporating these elements contain express language adding them. No such language appears in the Georgia Act. 

The defendants reliance upon United States v. Lichenstein, 610 F.2d 1272, as support for the claim that a specific intent requirement should be read into the Act is not on point. Unlike the Georgia Act, which requires only a "knowing" violation, the federal false statement act at issue in Lichenstein expressly requires proof of a "knowing and willful" violation. It is the willfulness requirement that courts have interpreted to require a "specific intent" to deceive. See, e.g., United States v. Markee, 425 F.2d 1043, 1046 (9th Cir. 1970); see United States v. Smith, 523 F.2d 771, 774 (5th Cir. 1975). Even with this willfulness element, the courts have held that 18 U.S.C. § 1001 does not require proof of a specific intent to defraud. E.g.,610 F.2d at 1276-77. These cases therefore do not support the defendants' proposed construction of the Georgia Act. 

B.The Georgia Act Also Omits Any "Misappropriation of the Identity of Another" Element 

Similarly, there is no support in the Act for the defendants' second proposed additional element, a requirement that an offender misappropriate the identity of another specific entity or person, rather than simply to "falsely identify" himself with a fictional name or pseudonym. Words like "misappropriate" or "steal" or any similar language requiring identification as a specific other person or entity are again conspicuously absent from the Georgia Act, which by its plain terms is broad enough to encompass false identification of the offender by the use of a pen name or pseudonym as well. 

In contrast, where the General Assembly intends to include such an element, it knows how to do so expressly. O.C.G.A. § 10 1-453, for example, makes it illegal to "use the name or seal of any other person, firm, corporation, or association . . . with intent to deceive the public."). Thus, the legislature's omission of this language from the Georgia Act is controlling on the question of construction and the Court should not engraft onto this plain language the additional "misappropriation of identity" element the defendants propose. 


C.Defendants' Rewrite of The Second Restriction Must Also Be Rejected.

Finally, the defendants' construction of the second prohibition in the Georgia Act -- i.e., the prohibition against the "use" of a "trade name, registered trademark, logo, legal or official seal, or copyrighted symbol" in a way that falsely implies permission -- fails to cure the Act's constitutional defects. Defendants appear to propose two conflicting interpretations of this provision. First, they claim that the statute as a whole prohibits only "falsely identify[ing] oneself by misappropriating another's identity or identifying mark without permission or authority." Defs. Brief at 14. This suggests that the "false identification" requirement in the first clause should be engrafted onto the second as well, merging these separate clauses into a single prohibition against false identification in online communication. Once again, their construction finds no support in the statutory language. The second restriction does not require "false identification" at all, but rather simply prohibits the "use" of any trade name or logo in online communications if the use "would falsely state or imply that [the user] has permission or is legally authorized to use [it]." O.C.G.A. § 16-9-93.1. 

Moreover, it violates the rule that a statute must be interpreted "to give effect to each of its provisions; any interpretation which renders parts or words in a statute inoperative or superfluous is to be avoided." United States v. Brame, 997 F.2d at 1428; see also United States v. Phipps, 81 F.3d 1056, 1060 (11th Cir. 1996). Thus, once again, their proposed construction both contradicts the statutory language and violates the rules of statutory construction, and must be rejected. 

Second, defendants' brief contains language that lends support to the argument that the plain language of the second provision prohibits the use of trade names and logos to create links on the World Wide Web. See Pl. Brief at 28-29. For example, defendants assert that the second provision prohibits "sites . . . which misidentify the person by . . . falsely stating or implying that the person has permission or is authorized to use the trade names and logos . . . when the person has no such permission or authorization." Defs. Brief at 39. Later, defendants write: 


The hypertext links commonly used on the World Wide Web are, without the injection of fraud or misrepresentation, merely references to the computer site and computer address of another person or entity on the Internet or Web. Without the injection of the knowing and intentional misappropriation of another's identity or identifying mark into such situation, the statute poses no obstacle to innocent links.
Defs. Brief at 40. Neither of these statements resolves the question of whether maintenance of a site on the World Wide Web that uses a trade name or logo to create a link to another site would be a violation of the Act because it "falsely implies" permission to create the link or because it "misappropriat[es] another's .

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