Response to Defendants' Motion to Dismiss 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.




Plaintiffs respectfully oppose the defendants' motion to dismiss. The complaint states a claim for declaratory and injunctive relief under 42 U.S.C. § 1983 and the plaintiffs have standing to bring their claims, because O.C.G.A. § 16-9-93.1 (1996) threatens an immediate and irreparable denial of the plaintiffs' constitutional rights, and has already chilled the exercise of their rights to free expression and association. The defendants' motion that this Court abstain from exercising its jurisdiction should also be denied because the federal constitutional issues cannot be eliminated by any state court construction of the statute and abstention would simply delay an adjudication to protect the plaintiffs' rights.


Plaintiffs brought this action for declaratory and injunctive relief under 42 U.S.C. § 1983, seeking protection from the enforcement of O.C.G.A. § 16-9-93.1 in violation of their constitutional rights to free expression, association and privacy in online communications. As set forth in plaintiffs' briefs in support of their currently pending motion for preliminary injunction, this statute imposes two unconstitutional restrictions upon communications over computer networks: 


The first restriction prohibits communications over computer networks using a name that "falsely identifies" the user, and this restriction therefore bans among other things the use of online pseudonyms for the purpose of communicating and associating anonymously over computer networks. The second restriction in the statute bans the use of trade names and logos in a way that "would falsely state or imply" that the person using the name or logo has obtained permission to do so, and therefore appears potentially to restrict even protected, noncommercial use of trade names and logos in news, commentary, satire and parody. 

Each of the plaintiffs use or seek to use computer networks for protected online communications that are now prohibited by one or both of these restrictions. The details of the plaintiffs' online activities have previously been set forth for the Court at length in the plaintiffs' brief in support of their preliminary injunction motion and the affidavits filed by each of the plaintiffs in support of that motion. See Plaintiff's Motion for Preliminary Injunction, Exhs. A - N (plaintiffs' affidavits); Plaintiffs' Brief in Support of Preliminary Injunction ["Pl. Brief"] at 2-13; see also Complaint ¶¶ 4-17, 25-73, 86-171. For the purposes of this motion to dismiss, all of the allegations in the plaintiffs' complaint and the averments in their affidavits must be "accepted as true," and the motion to dismiss must be denied unless "it is clear that 'no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Jackson v. Okaloosa County, Fla. , 21 F.3d 1531, 1534 (11th Cir. 1994) (quoting Hishon v. King & Spalding , 467 U.S. 69, 73 (1984) (emphasis in original). See Church v. City of Huntsville , 30 F.3d 1332, 1336 (11th Cir. 1994) (motion to dismiss challenging standing). 






The first ground for defendants' motion to dismiss is their contention that the complaint fails to state a claim for relief. The sole basis for this contention is their argument that O.C.G.A. § 16-9-93.1 does not violate the plaintiffs' constitutional rights because it should be narrowly construed -- in fact, entirely rewritten -- to prohibit only "fraud and misrepresentation," or "the fraudulent practice of misappropriating someone else's identity or identifying mark or symbol." Defs. Brief at p. 5. For all the reasons set forth in the plaintiffs' reply brief in support of their preliminary injunction motion, this proposed construction of the statute contradicts its plain language and violates the rules of statutory interpretation, and it must be rejected. See Pls. Reply Brief at 2-22. For the same reason, the defendants' motion to dismiss for failure to state a claim must also be denied. 

Moreover, even if O.C.G.A. § 16-9-93.1 could be construed in the narrow and artificial way the defendants propose, that would not justify granting their motion to dismiss because the construction defendants' propose would not eliminate all of the statute's constitutional flaws. As set forth in plaintiffs' reply in support of their motion for preliminary injunction, the statute would remain unconstitutionally vague and overbroad and would still violate the Commerce Clause even if the Court rewrote it in the manner the defendants' suggest. 

Finally, the plain language of the statute does prohibit the plaintiffs' protected online expression. If the Court rejects the plaintiffs' objections to a radical rewriting of the statute and considers rewriting it according to one of the defendants' unnaturally narrow and restrictive constructions, plaintiffs still have clearly stated a cause of action for declaratory relief defining the scope of the rewritten statute and an injunction prohibiting any enforcement beyond that new construction. In addition to seeking declaratory and injunctive relief declaring the statute unconstitutional and preventing its enforcement, plaintiffs have prayed for "such other relief as the Court deems just and appropriate." Complaint, at 58. The defendants' motion to dismiss for failure to state a claim should therefore be denied. 



The defendants' motion to dismiss for lack of standing should also be denied. The allegations of the plaintiffs' complaint and the averments in their affidavits demonstrate the existence of a live controversy and establish that the plaintiffs are all proper parties with standing to bring their claims. 



"The existence of a case or controversy is established where there is 'sufficient immediacy and reality' to warrant the issuance of a declaratory judgment." American Booksellers Assn, Inc., v. McAuliffe , 533 F. Supp. 50, 54 (N.D. Ga. 1981) (quoting Maryland Cas. Co. v. Pacific Coal & Oil Co. , 312 U.S. 270, 273 (1941)). The plaintiffs have standing to bring a pre-enforcement challenge to the constitutionality of O.C.G.A. § 16-9-93.1 if there is "a realistic danger of sustaining direct injury as a result of the statute's operation or enforcement." ACLU v. Florida Bar , 999 F.2d 1486, 1492 (11th Cir. 1993). "When a plaintiff has stated that he intends to engage in a specific course of conduct 'arguably affected with a constitutional interest,'...he does not have to expose himself to enforcement to be able to challenge the law." Id . To the contrary, plaintiffs have standing to bring a pre-enforcement challenge to the law if "there exists a credible threat of prosecution." Graham v. Butterworth , 5 F.3d 496, 499 (11th Cir. 1993), cert. denied , 114 S.Ct. 2136 (1994). See Jacobs v. Florida Bar , 50 F.3d 901, 904 (11th Cir. 1995); ACLU v. Florida Bar , 999 F.2d at 1492. The Eleventh Circuit has held that a credible threat of prosecution exists where " at the time the [plaintiffs] filed [the] action ... they intended to engage in arguably protected conduct, which the statute seemed to proscribe ." Graham v. Butterworth , 5 F.3d at 499. 

All of the plaintiffs therefore have standing in this case. Each of the plaintiffs or their members currently engage or seek to engage in online communications of the type banned by the plain language of O.C.G.A. § 16-9-93.1, and all of them are concerned that the law could be used to prosecute them or their members for engaging in these activities. See, e.g. , Steele Aff. ¶¶ 11-13; Wallace Aff. ¶¶ 7, 14,17, 19; Mirken Aff. ¶¶ 9-11; Kaye Aff. ¶¶ 17-18; Costner Aff. ¶¶ 12, 15-17; Parekh Aff. ¶¶ 10-11, 18-19, 25-26, 28; Graham Aff. ¶¶ 8, 11; Troyer Aff. ¶¶ 9, 11, 16-17; Van Pelt Aff. ¶ 6; Lyle-Wilson Aff. ¶¶ 6, 8; Nadri Aff. ¶¶ 5-7, 10; Riley Aff. ¶¶ 4, 6, 8; Nelson Aff. ¶¶ 11-12; Leebow Aff. ¶¶ 7-8A, 15. These averments and the allegations of the complaint, which must be taken as true for the purposes of this motion, are sufficient to establish standing. E.g. , Graham v. Butterworth , 5 F.3d at 496. 

One of the plaintiffs, Rep. Mitchell Kaye, has more particularized reasons for concern that the Act could be used to suppress his protected online expression. The web site he maintains on behalf of the Conservative Policy Caucus of the Georgia General Assembly has generated considerable controversy and been the subject of repeated efforts by the House leadership to suppress it. See Kaye Aff. ¶¶ 12-15. During floor debates on the bill ultimately enacted as O.C.G.A. § 16-9-93.1, the bill's sponsor described this web page as the sort of "situation" that the bill "would address": 


It just so happened this morning, that my wife and she didn't even know this was coming up today, but she'd asked me, she said one of the teachers at the school that she works at had asked her, was on the Internet, was going on the Internet and wanted to know, said he saw a couple different ones on there for the Georgia House of Representatives and wanted to know which one was the real one, and I told her - I - you'll - you'll just have to go in and look and see and try to determine which one really is the official home page of the Georgia House of Representatives. That is one of the, the situations that, that this bill would address. 

Supplemental Declaration of Mitchell Kaye ["Supp. Kaye Aff."] (attached as Exh. 1) ¶¶ 2-3 (transcription of audiotaped statements made by Rep. Parsons during floor debate on the bill); See Kaye Aff. ¶ 15. In contemporaneous press reports about the controversy, Rep. Parsons is reported to have said that "the bill would apply" to the Conservative Policy Caucus web page, stating "That's something that would come under what this bill was intended to address." Supp. Kaye Aff. ¶ 4 & Ex. A (copy of Lawmakers target Kaye's Web Site , Marietta Daily Journal, 

p. 1 & 7A (Feb. 8, 1996). Thus, Rep. Kaye clearly has standing to bring this pre-enforcement challenge to the law. Cf. Smith v. Meese , 821 F.2d 1484, 1493 (11th Cir. 1987) ("It is clear that a direct target of a discriminatory investigation or prosecution has standing to attack the violation."). 

Several of the other plaintiffs also have their own particular reasons for concern that their members may be targeted for prosecution for their online expression under this law, because their members express potentially controversial minority viewpoints more likely to trigger selective prosecution under this vague law. In addition to the risk of criminal prosecution by state authorities, these potentially controversial plaintiffs and others similarly situated also face the risk of harassing lawsuits under the statute by private individuals who claim to have been "injured" as a result of their conduct. O.C.G.A. § 16-9-93(g) provides a private right of action for any person who contends their "property or person is injured" by reason of a violation of the Georgia Computer Systems Protection Act, which includes O.C.G.A. § 16-9-93.1. 

Members of the Atlanta Freethought Society, for example, are often the subject of harassment and threats for their views of religion and the separation of church and state. Lyle-Wilson Aff. ¶¶ 5-6. Similarly, many of the members of the AIDS Survival Project and the Atlanta Veterans Alliance are gays and lesbians often subject to discrimination, harassment and persecution as a result of social prejudices against them. Graham Aff. ¶ 7; Van Pelt ¶ 5. Since the members of these groups and several of the other plaintiffs routinely use pseudonyms to communicate in online communications, their allegations establish the threshold requirement for standing under the controlling cases because they establish that the plaintiffs "intend[] to engage in arguably protected conduct, which the statute seem[s] to proscribe." Graham v. Butterworth , 5 F.3d at 499. See also Jacobs v. Florida Bar , 50 F.3d at 904; ACLU v. Florida Bar , 999 F.2d at 1492. 




Moreover, the "[r]ules of standing have been expanded in the area of First Amendment rights and special considerations are granted to litigants seeking to preserve rights of free expression." American Booksellers Ass'n v. McAuliffe , 533 F. Supp. at 55.


Even where a First Amendment challenge could be brought by one actually engaged in protected activity, there is a possibility that, rather than risk punishment for his conduct in challenging the statute, he will refrain from engaging further in the protected activity. Society as a whole then would be the loser. Thus, when there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society's interest in having the statute challenged. Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected expression.

Secretary of State of Maryland v. Joseph H. Munson Co. , 467 U.S. 947, 956-57 (citation omitted). In this context, "the alleged danger of [the] statute is, in large measure, one of self censorship; a harm that can be realized even without an actual prosecution." Virginia v. American Booksellers Ass'n , 484 U.S. 383, 394 (1988).  

Standing therefore exists for challenges to statutes restricting the exercise of First Amendment rights when the operation or potential enforcement of the challenged statute "interferes with the way the plaintiff would normally conduct his affairs." International Soc. for Krishna Consciousness v. Eaves , 601 F.2d 809, 819 (5th Cir. 1979). The former Fifth Circuit held, for example, that standing clearly existed where a religious organization had ceased disseminating its religious materials and seeking contributions at the Atlanta city airport to comply with a challenged ordinance. Id 

Where a plaintiff alleges that he desires to engage in expression apparently prohibited by the challenged statute but the plaintiff is deterred from doing so for fear of violating the statute, he has standing to bring the claim. Jacobs v. Florida Bar , 50 F.3d at 904-05 & n. 12 (collecting cases in which standing existed where plaintiffs asserted that but for challenged rule they would have engaged in allegedly prohibited expressive conduct). See also Virginia v. American Booksellers Ass'n , 484 U.S. at 392 (standing where plaintiffs would have to risk prosecution or significantly change their conduct if their interpretation of statute was correct); Meese v. Keene , 481 U.S. 465, 473-74 (1987) (standing where plaintiff suffered injury to reputation because statute labelled films he wanted to show as "political propaganda"). 

These expanded rules of standing in the First Amendment context clearly apply to this lawsuit, which challenges a law that restricts free expression and association over computer networks. The operation of O.C.G.A. § 16-9-93.1 risks a chilling of protected expression not just by the plaintiffs but by other persons not presently before the court. In fact, the complaint and affidavits provide concrete evidence of this chilling effect, and establish that the statute has already "interfere[d] with the way the plaintiff[s] would normally conduct [their] affairs." International Soc. for Krishna Consciousness v. Eaves , 601 F.2d at 819. 

At least two of the plaintiffs have testified that they changed their conduct and refrained from protected expression due to concerns about prosecution or other injury as a result of the statute. Plaintiff Bonnie Nadri removed a number of graphical logos and images from her web page for fear of prosecution under the law or civil action by private parties whose logos she uses. Nadri Aff. ¶¶ 5-7. Similarly, the AIDS Survival Project seeks to publish a web page using trade names to provide links to other web sites with information on AIDS and HIV, but has been deterred from doing so for fear that such links will violate the Act. Graham Aff. ¶ 11. These allegations clearly demonstrate sufficient injury to establish standing under the controlling Eleventh Circuit decisions. See Jacobs v. Florida Bar , 50 F.3d at 904-05 & n. 12; International Soc. for Krishna Consciousness v. Eaves , 601 F.2d at 819. See also Meese v. Keene , 481 U.S. 465, 473-74 (1987). 

The defendants reliance upon Renne v. Geary , 501 U.S. 312, 320-23 (1981) for the proposition that a plaintiffs' " previously adjust[ing] his conduct does not necessarily present a justiciable dispute", Defs. Brief at p. 6, is not on point. The result in Renne was based on mootness principles, and turned on the fact that the plaintiffs' alleged "adjusting" of their conduct had been in response to previous regulations no longer in force. They had not alleged that they intended to engage in any specific course of conduct alleged to violate any regulation currently in force. In contrast, plaintiffs in this case all either currently engage or seek to engage in protected online expression banned by the plain language of O.C.G.A. § 16-9-93.1. 

Similarly, the defendants' reliance upon Hallandale Professional Fire Fighters Local 2238 v. City of Hallandale , 922 F.2d 756 (11th Cir. 1991) is not on point. First, that case involved an employment rule regulating conduct by public employees, and the court was careful to distinguish that type of public employee regulation from laws of general application such as O.C.G.A. § 16-9-93.1. See 922 F.2d at 761 & n. 5 ("The realm of protected speech and conduct for public employees is much narrower than that for the general public."). Second, in contrast to the plaintiffs here, the employee union plaintiff in Fire Fighters did not allege that any of its members intended to engage in any conduct that would arguably violate the challenged policy. Id . at 762. 



Finally, defendants cannot eliminate the plaintiffs' standing simply by arguing now in their briefs for an artificially narrow construction of O.C.G.A. § 16-9-93.1. That was precisely the approach taken by the defendants in American Booksellers Ass'n, Inc. v. McAuliffe , who contended that the statute challenged in that case did not apply to the booksellers, librarians, and others plaintiffs because -- notwithstanding its much broader language -- the defendants argued the statute prohibited only "sexually explicit pornography.'" 533 F. Supp. at 58. The Court rejected the argument, holding that the "plaintiffs should not be forced to await prosecution on criminal charges before seeking a determination of the law's validity," and that " standing to seek declaratory relief is compelling in this situation ." Id . at 55 (emphasis added). 

Similarly, in ACLU v. Florida Bar , the Eleventh Circuit held the plaintiff had standing despite vigorous argument by the defendants that the challenged bar rule did not prohibit the judicial advertising he sought to broadcast. As the Eleventh Circuit observed, the defendants were not bound by their court briefs in any future enforcement decisions, and the ultimate arbiter of the meaning of the challenged rule was not the defendants but the state Supreme Court. 999 F.2d at 1494. The Court observed that the defendants' arguments would not impose any res judicata limitations on their "discretion to change [their] policy regarding the interpretation and enforcement" of the challenged statute as soon as the case were dismissed. 999 F.2d at 1494. Thus, the Court concluded that: 


a live dispute existed because (1) plaintiffs "wanted to pursue a specific course of action which they knew was at least arguably forbidden by the pertinent law"; and (2) "[a]ll that remained between the plaintiff and impending harm was the defendant's discretionary decision --which could be changed -- to withhold [enforcement]."

999 F.2d at 1494-5 (citations omitted). 

Similarly, in Solomon v. City of Gainesville , the Eleventh Circuit found that the plaintiff had standing to challenge a city ordinance banning signs containing "obscene, indecent or immoral" material, which arguably prohibited a sign above his restaurant that contained a modified version of Leonardo da Vinci's illustration "Proportions of the Human Figure." 763 F.2d 1212, 1213 (11th Cir. 1985). The Court held he had standing to challenge the statute despite the fact that prior to the suit the City Commission had passed a motion instructing the City Manager "to discontinue any and all prosecutorial action now and in the future with regard to the sign at issue." Id . at 1213. Because nothing prevented the city from reversing its position as soon as the suit was dismissed, however, the Court held that even this formal resolution against prosecuting the plaintiff did not eliminate standing or the existence of a live controversy appropriate for declaratory judgment. Id. at 1213 n. 1 (citing City of Mesquite v. Aladdin's Castle, Inc. , 455 U.S. 283 (1982)). See also Jager v. Douglas County School Dist. , 862 F.2d 824, 833 (11th Cir. 1989) ("Ordinarily, the defendant's voluntary cessation of a challenged practice will not moot an action because 'the defendant is free to return to his old ways.'"). 

For the same reasons, the defendants' arguments in their briefs cannot eliminate the plaintiffs' standing. If this case were dismissed, nothing would stop the defendants from reversing their position. Their pleadings in this case would not bind their prosecutorial discretion in any way, nor would their arguments have any effect on the discretion of their successors in office or the dozens of individual county district attorneys throughout the state with independent authority to bring prosecutions under the statute. Nor would the defendants' statutory construction arguments in their briefs in this case bind the state courts of Georgia in their interpretation of the statute. See, e.g. , Williams v. State , 162 Ga. Ap. 415 (1982) (even formal official opinions of Attorney General are not binding on state courts who would try prosecutions). Plaintiffs certainly have no assurances against prosecution so formal as the resolution adopted by the City Commission in Solomon v. City of Gainesville , and the Eleventh Circuit held that even that resolution was insufficient to undermine the plaintiff's standing. 763 F.2d at 1213. 

The plaintiffs' allegations and affidavits clearly establish that they "'want[] to pursue a specific course of action which they knew [is] at least arguably forbidden by the pertinent law'" and that "[a]ll that remain[s] between the plaintiff and impending harm [is] the defendant's discretionary decision --which could be changed -- to withhold [enforcement].'" ACLU v. Florida Bar , 999 F.2d at 1494-5. Under Solomon , ACLU v. Florida Bar , and American Booksellers Ass'n v. McAuliffe , supra , therefore, the defendants' motion to dismiss must be denied. 



Finally, the defendants' request that the Court abstain from exercising its jurisdiction in this matter should also be denied. A. ABSTENTION IS AN EXTRAORDINARY REMEDY THAT SHOULD RARELY BE INVOKED BY A FEDERAL COURT


Abstention is "an extraordinary and narrow exception to the duty of a [federal] court to adjudicate a controversy properly before it." Allegheny County v. Frank Mashuda Co. , 360 U.S. 185, 188 (1959). Accord Turner Entertainment v. Degato Film , 25 F.3d 1512, 1518 (11th Cir. 1994); Fields v. Rockdale Cty., Georgia , 785 F.2d 1558, 1560 (11th Cir.), cert. denied , 479 U.S. 984 (186). 

Abstention should rarely be invoked because the federal courts have a "virtually unflagging obligation ... to exercise the jurisdiction given them." Colorado River Water Conservation Dist. v. United States , 424 U.S. 800, 817 (1976). As this Circuit has explained: 


Congress has deliberately afforded the section 1983 plaintiff an alternative federal forum. It is not for the courts to withdraw that jurisdiction which Congress expressly granted under section 1983 where such a withdrawal is contrary to the purpose of Congress in extending the alternative forum.

Duke v. James , 713 F.2d 1506, 1510 (11th Cir. 1983) (footnote omitted); O'Hair v. White , 675 F.2d 680, 692 (5th Cir. 1982) ("Despite the many occasions in which questions concerning state law arise, '[a]bstention from the exercise of federal jurisdiction is the exception, not the rule'") (citations omitted). 




In facial free speech challenges, abstention is particularly inappropriate. Dombrowski v. Pfister , 380 U.S. 479, 489-90 (1965) (abstention "inappropriate for cases [where] ... statutes are justifiably attacked on their face as abridging free expression"); City of Houston v. Hill , 482 U.S. 451, 467 (1987) ("we have been particularly reluctant to abstain in cases involving facial challenges based on the First Amendment"); Cate v. Oldham , 707 F.2d 1176, 1184 (11th Cir. 1983) ("Abstention is to be invoked sparingly in actions involving alleged deprivations of First Amendment rights"). 

The reluctance to abstain in free speech challenges is grounded in a recognition that further delay itself has a chilling effect. Zwickler v. Koota , 389 U.S. 241, 252 (1967) ("to force the plaintiff who has commenced a [free expression challenge] to suffer the delay of state court proceedings might itself effect the impermissible chilling effect of the very constitutional right he seeks to protect"); Procunier v. Martinez , 416 U.S. 396, 404 (1974) ("we are mindful of the high cost of abstention when the federal constitutional challenge concerns facial repugnance to the First Amendment"). 



While the defendants have repeatedly stated that O.C.G.A. § 16-9-93.1 is "amply clear on its face," their abstention claim is grounded in the opposite proposition: that the statute is ambiguous and in need of "State court interpretation."

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