Groups Challenge Georgia Law Restricting Free Speech in Cyberspace

September 24, 1996 12:00 am

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ATLANTA–The American Civil Liberties Union, Electronic Frontiers Georgia, Georgia State Representative Mitchell Kaye and others today filed a lawsuit seeking a preliminary injunction against a Georgia statute restricting free speech in cyberspace.

At a news conference here, the groups said that the law is unconstitutionally vague and overbroad because it bars online users from using pseudonyms or communicating anonymously over the Internet. The Act also unconstitutionally restricts the use of links on the World Wide Web, which allow users to connect to other sites.

“Fundamental civil liberties are as important in cyberspace as they are in traditional contexts,” said Ann Beeson, an ACLU national staff attorney specializing in cyber-rights. “The right to speak and publish using a virtual ?nom de plume’ has its roots in a long tradition dating back to the very founding of democracy in this country.”

The lawsuit is the first such challenge to state cybercensorship laws, the ACLU said. The ACLU said it has been monitoring state regulation of the Internet and that currently, over 20 states have considered such laws.

“This is the first challenge that we know of to a state statute that has tried to regulate national — indeed, international — communications,” said attorney Beeson. “The nature of the Internet makes state regulation extremely problematical, because it forces everyone in the country to comply with one state’s law. If fifty states pass fifty contradictory laws, Internet users will be virtually paralyzed for fear of violating one or more of those laws.”

The complaint includes the assertion that the Commerce Clause of the United States Constitution bars state regulation of the Internet because it is an interstate communications medium.

The suit was filed in U.S. Northern District Court of Georgia Federal Court, challenging the state law on behalf of 14 plaintiffs (note: see attached for a list of plaintiffs). The lawsuit names Governor Zell Miller and state Attorney General Michael Bowers as defendants.

The Act was passed by the Georgia General Assembly and became effective on July 1 of this year. The law provides criminal sanctions of up to 12 months in jail and/or up to a $1,000 fine for violations.

Two of the plaintiffs, Electronic Frontiers Georgia and Georgia State Representative Mitchell Kaye (R-Marietta), lobbied against the law before its passage, and solicited help from the ACLU and others to mount a legal challenge after it was enacted.

Electronic Frontiers Georgia (EFGA), a Georgia-based cyber-liberties organization, said that the group had supported a letter written by the co-counsel in the case to state Attorney General Michael Bowers asking him to clarify the law so that any debate about its meaning could be settled without litigation.

“It’s clear that no one would want to pass a law that says what this law says, that simply linking from web site to web site or using a pseudonym is illegal in Georgia and therefore throughout the Internet,” said Robert Costner of EFGA.

Rep. Kaye said he became involved in the battle against the law when members of the House attacked him for maintaining a private web site that they said might be mistaken for the “official” web site of the Georgia House of Representatives. The web site is maintained by the Conservative Policy Caucus and contains prominent disclaimers that it is not an official government site.

“House leaders felt threatened that their voting records were being published along with political commentary that was not always flattering,” said Rep. Kaye, a member of the Conservative Policy Caucus. “Sunshine is the best government disinfectant, and freedom of speech is a not a partisan issue.”

Teresa Nelson, executive director of the ACLU of Georgia, said that ACLU was acting as a plaintiff as well as a litigant in the case in order to protect visitors to its web site who may wish to access or discuss sensitive information anonymously or using a pseudonym.

“These concerns were addressed in the letter to Attorney General Michael Bowers, requesting a very narrow interpretation of the law. Unfortunately, he chose to ignore our request and we have been forced to litigate to protect confidentiality on the Internet,” Nelson said.

The national ACLU, serving as co-counsel in the Georgia case, is also a litigant in ACLU v. Reno, its challenge to Internet censorship provisions of the federal Communications Decency Act.

In June of this year, a federal three-judge panel in Philadelphia granted an injunction against the CDA, saying that, “as the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion.” The government has appealed that ruling and the case is now on its way to the U.S. Supreme Court.

The Complaint

According to the complaint, the law makes it a crime to use a name that “falsely identifies” a speaker on the Internet, without distinguishing whether the person communicating had any intent to deceive or defraud or simply wanted to keep his or her identity unknown.

“In some cases, anonymity is a necessary security measure,” said ACLU attorney Beeson. “The personal safety of human rights dissidents, domestic abuse victims, and whistle-blowers would be compromised if they could not communicate anonymously.”

Use of pseudonyms or anonymous identities also eliminates the potential for discrimination and harassment according to gender or ethnicity, Beeson said, and allows users to access controversial, embarrassing, or sensitive information without revealing their identity. She added that in some cases an online “handle” or pseudonym is assigned automatically by a commercial online service such as Prodigy or Compuserve.

The complaint also states that the law may prohibit web links by making it a crime to publish information “using” trade names, logos or other symbols, again without regard to the nature of the use, and without any definition of what constitutes “use” on a computer network.

According to Robert Costner of Electronic Frontiers Georgia, many web sites include links using trade names or logos as a means of providing information.

The EFGA site, he noted, provides a link to the BellSouth web page to assist other Internet users in contacting BellSouth about a recent rate increase request for ISDN telephone service. Given the new technological context of the Internet and the unique “linking” feature of web pages, Costner explained, even this type of grass roots news advisory over the Internet could now be illegal in Georgia.

The Plaintiffs

The 14 plaintiffs and organizations named in the suit all expressed concern that the law would prohibit them — at risk of jail or fines — from using pseudonyms to protect their privacy, communicate sensitive information and defend themselves against harassment if their identities were known on the Net.

For instance, the Atlanta Veterans Alliance, a Georgia-based organization for gay, lesbian, bisexual and transgendered veterans, said the law would risk disclosure of the identity of AVA members who remain in active military service. Such disclosure would likely end their military careers.

Another plaintiff, Josh Riley, an Atlanta-based realtor, operates two Internet web sites that contain many links to other web sites of interest, often using corporate logos and trademarks without specific permission. His award-winning web page,, contains information on the Negro Baseball Leagues, including links to a site on an HBO movie, “Soul of the Game.”

Mr. Riley said he believes it would be impossible as a practical matter to obtain permission for every link in his site, even though he is confident that all of the companies and organizations would give permission if they were asked.

Certain plaintiffs also expressed concern that loss of anonymity would put them and others at risk. Plaintiff Community ConneXion, an Internet Service Provider, specializes in providing the highest level of privacy to online users. The group recently developed a service known as the Anonymizer, which enables any Internet user to browse and retrieve documents anonymously.

Sameer Parekh, President of Community ConneXion, said that organizations and individuals around the world use their services to protect them from oppressive governments, invasive marketing databases and harassment online. He said the Georgia law may force the group to choose between shutting down its services or risking prosecution.

Lawyers representing the 14 plaintiffs are: J. Scott McClain (as volunteer attorney) of the Atlanta firm of Bondurant, Mixson and Elmore; Ann Beeson and Christopher Hansen of the national American Civil Liberties Union; and Gerald Weber, staff attorney with the ACLU of Georgia.

Note to Editors: For more information on ACLU of Georgia et al. v. Miller et al., visit these online sites: EFGA – (EFGA will be providing RealAudio of the news conference.)

ACLU OF GEORGIA ET AL., vs. MILLER ET AL.Real Audio The joint press conference will be broadcast live on the internet. To listen to the press cobference, see Case Materials – to come ACLU v. Miller complaint Plaintiff’s Brief ACLU v. Reno Case Materials Plaintiff Links and Statements American Civil Liberties Union of Georgia The AIDS Survival Project The Atlanta Freethought Society Atlanta Veterans Alliance Community ConneXion Electronic Frontier Foundation Electronic Frontiers Georgia Rep. Mitchell Kaye Kenneth Leebow Bruce Mirken Bonnie Nadri Josh Riley John Troyer Jonathan Wallace

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