Brief in Support of Motion for Preliminary Injunction in ACLU v. Miller

September 24, 1996
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

AMERICAN CIVIL LIBERTIES
UNION OF GEORGIA, et al.,
Plaintiffs, CIVIL ACTION

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vs.

FILE NO. _______
ZELL MILLER, in his official
capacity as Governor of the
State of Georgia, et al.
Defendants.

BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 

 

Plaintiffs seek a preliminary injunction to prevent the enforcement of Act No. 1029, Ga. Laws 1996, p. 1505, codified at O.C.G.A. § 16-9-93.1 ("the Act"), a recently enacted Georgia statute that unconstitutionally restricts free expression over the Internet and other computer networks. Specifically, the Act unconstitutionally prohibits plaintiffs and others from using pseudonyms or communicating anonymously over computer networks. The Act also unconstitutionally restricts the "use" by plaintiffs and others of trade names, logos and certain other graphics over computer networks. Plaintiffs are individuals and organizations, and their members, users, and subscribers, who communicate over computer networks and who are fearful that the Act has made their protected expression a crime. 

 

The Act's enforcement should be enjoined for the following reasons: 

(1) The Act violates the plaintiffs' federal and state constitutional rights to free expression, association, and privacy; 

(2) The Act is substantially overbroad; 

(3) The Act is unconstitutionally vague; and 

(4) The Act violates the Commerce Clause of the United States Constitution because it regulates commerce occurring wholly outside the borders of the State of Georgia. 

 

FACTUAL BACKGROUND 

 

RESTRICTIONS IMPOSED BY THE ACT  

 

The Act imposes two content-based restrictions upon expression over computer networks, including the world-wide network known as the Internet. First, it prohibits communications over computer networks using a name that "falsely identifies" the speaker. Specifically, the Act makes it a crime for: 

 

any person . . . knowingly to transmit any data through a computer network . . . for the purpose of setting up, maintaining, operating, or exchanging data with an electronic mailbox, home page, or any other electronic information storage bank or point of access to electronic information if such data uses any individual name . . . to falsely identify the person . . . .

Second, the Act makes it a crime to publish information over computer networks if the information "uses" trade names, logos, and other symbols in certain ways. Specifically, the Act makes it a crime for: 

 

any person . . . knowingly to transmit any data through a computer network [for the purposes set forth above] if such data uses any . . . trade name, registered trademark, logo, legal or official seal, or copyrighted symbol . . . which would falsely state or imply that such person . . . has permission or is legally authorized to use [it] for such purpose when such permission or authorization has not been obtained.

 

O.C.G.A. § 16-9-93.1(a) (1996) (emphasis supplied).

TYPES OF COMMUNICATIONS AFFECTED BY THE ACT  

To understand the breadth of communications the Act censors, it is necessary to appreciate the unique nature of the online medium. The definition of "computer networks" in the Act encompasses any set of remotely connected computers over which communications can take place, including the Internet, commercial online services such as America Online, and local and national computer bulletin board systems. See O.C.G.A. § 16-9-92(2). The venue provisions of the statute provide that it applies to any communications that pass at any time through the wires or airspace of Georgia. See O.C.G.A. § 16-9-94(4). Because of the nature of the online medium, the restrictions upon expression imposed by the Act therefore apply to a wide variety of communications over thousands of different local, national and international computer networks, within and outside Georgia. 

Types of Computer Networks Affected 

Specifically, the Act affects communications over at least the following three types of computer networks: 

The Internet -- The Internet is the largest computer network in the world, linking together tens of thousands of smaller computer networks established by individuals, universities, governments, organizations, and businesses. Approximately 20-40 million users communicate and publish or receive information over this network. These include hundreds of thousands of users in Georgia, all of whom can communicate with or receive information from any other user on the network anywhere else in the world. Declaration of Shari Steele (Ex. A) ["Steele Aff."] ¶¶ 14-18. Much, if not most, of the communication over the Internet is non commercial in nature. 

The Commercial Online Services -- Communications over large national computer networks known as "commercial online services," including Prodigy, America Online and CompuServe, are also restricted by the Act. These services enable their customers to communicate with other customers, access the Internet, and access other proprietary information and services available only to subscribers. They have more than twelve million subscribers in the United States and overseas; all of the major providers have customers in Georgia and facilitate online communications into and out of this State. Steele Aff. ¶¶ 19-20.  

Local Bulletin Board Services ("BBSs") -- The Act also restricts expression on thousands of local computer networks known as Bulletin Board Systems, or "BBSs." A BBS can be established by anyone with a phone line, computer, modem, and proper software, to allow people with common interests to communicate with each other and share information. There are several hundred BBSs in Georgia, and thousands more outside the state that can be reached from Georgia through long distance telephone lines. Steele Aff. ¶ 21.  

Methods of Online Communications Affected 

Computer users communicate with each other over computer networks in several similar ways. Because the restrictions imposed by the Act apply to the transmission of "any data through a computer network . . . for the purpose of . . . exchanging data with an electronic mailbox, home page, or any other electronic information storage bank or point of access to electronic information," the Act applies to virtually any communication over these networks that originates from, can be received in, or simply passes through the State of Georgia. O.C.G.A. § 93-9-93.1(a) (emphasis supplied); Steele Aff. ¶ 22. At a minimum, the Act applies to the following types of communications which are particularly relevant to this motion: 

E-mail -- E-mail is the basic method of communication over computer networks. It allows one user to send a message to any other user or users on the network. Because mass mailings via e mail are relatively easy and inexpensive, e-mail enables any user to publish and distribute information on any topic simply by compiling a mailing list of online users and sending the newsletter to everyone on the list. Steele Aff. ¶¶ 23-24.  

Discussion groups -- A second common method of communication over computer networks are "discussion groups," which allow users to post public messages onto a computerized bulletin board or to an electronic list, and to read and respond to messages posted by others. Computer discussion groups have been organized on many different computer networks on virtually every topic imaginable. They have created an entirely new public forum for the vigorous exchange, discussion and debate of ideas. These public discussion groups are one of the most popular uses of the Internet and other computer networks. Steele Aff. ¶¶ 25-26.  

Chat Groups -- Similar to discussion groups are "chat groups," which allow users to converse simultaneously with each other over computer networks by typing messages and reading messages typed by others participating in the "chat." Some chat groups are organized for social entertainment, and others are organized by a particular sponsor to provide a specific forum for discussion of a particular topic or set of issues. Steele Aff. ¶¶ 27-28.  

Publication & Access To Information -- Finally, computer networks provide a powerful new medium for publishing information and for accessing information published by others. The best known, most accessible, and potentially most powerful publishing medium over computer networks is the "World Wide Web" of the Internet. Anyone with access to the Internet and proper software can publish "web pages" on the Internet, which may contain text, images, sound and even video. Any Internet user anywhere in the world can view the web pages published by others, read their text, look at their images and video, and listen to their sounds. The World Wide Web therefore provides citizens of ordinary means with an extraordinary new power to publish ideas to the world and to access the ideas and information published by others. Steele Aff. ¶¶ 29-31.  

In addition, the World Wide Web provides the unique ability to "link" different web pages together to direct users to additional web pages known to the publisher on topics of interest. A "link" in a web page allows a user to move from one web site to another merely by "clicking" on specified text or graphics with a computer mouse; the software will then automatically transfer the user to a different location on the Internet. A link in a web page can lead to a different page within the same web site, or the link may transport the user to an entirely different web site published on an entirely different computer in a different part of the world. This linking ability makes the World Wide Web a unique and powerful publishing platform, in effect tying the entire World Wide Web together into a single interconnected body of knowledge made up of all the individually published web pages of millions of different users around the world. Steele Aff. ¶¶ 32-37. 

THE EFFECT OF THE ACT UPON THE PLAINTIFFS' 

COMMUNICATIONS OVER COMPUTER NETWORKS 

As set forth above, the Act imposes two restrictions upon communications over computer networks. The first prohibits communications using a name that "falsely identifies" the user. The second prohibits the use of trade names, logos, symbols etc. in a way that "would falsely state or imply" that the person using the name or logo has obtained permission to do so. Plaintiffs use or seek to use computer networks for protected communications prohibited by either or both of these restrictions. See Exhibits A - N, attached to Plaintiff's Motion for Preliminary Injunction (plaintiffs' affidavits). 

The Use of Pseudonyms and Other Anonymous 

Communications That "Falsely Identify" Online Users 

Plaintiffs and many other online users communicate over computer networks in a way that they fear may "falsely identify" them within the meaning of the Act. Specifically, almost every online user is identified when they communicate online by an "e mail address" that is not their full legal name. For example, one of plaintiff Jonathan Wallace's e-mail addresses is "jw@bway.net." Declaration of Jonathan Wallace (Ex. B) ["Wallace Aff."] ¶ 4. Similarly, plaintiff Bruce Mirken uses the screen name "Bmirk" when communicating on America Online. Declaration of Bruce Mirken (Ex. C) ["Mirken Aff."] ¶ 4. Although these e-mail addresses and screen names bear some relationship to their user's real name, they do not identify their users with specificity and therefore may "falsely identify" their users within the meaning of the Act. It would be technologically impossible on many computer networks to include a user's full name in their e-mail address. 

Moreover, plaintiffs and many other online users use so called "screen names," "handles," pen names, or other online pseudonyms that purposefully bear no resemblance to their real name when they communicate online. For example, Mitchell Kaye, a Georgia legislator, occasionally uses the pen name "publius;" staff members of the Electronic Frontier Foundation use handles such as "mnemonic" and "mech;" and members of Electronic Frontiers Georgia use handles including "decius," "soth" and "pooh." Declaration of Mitchell Kaye (Ex. D) ["Kaye Aff."] ¶ 18; Steele Aff. ¶ 11; Declaration of Robert Costner (Ex. E) ["Costner Aff."] ¶ 14. Some computer users also use "anonymous remailers" and "anonymizers," which strip the identifying information from a particular message or communication. Declaration of Sameer Parekh (Ex. F) ["Parekh Aff."] ¶¶ 5-7; 12-16; 20-23. 

Plaintiffs and other online users communicate anonymously for a variety of reasons. For example, several of the plaintiffs use screen names or pseudonyms so that they can participate anonymously in online discussions or chats on topics that are sensitive, embarrassing, or might subject them to social ostracism. Members of the AIDS Survival Project use pseudonyms to participate in online chat groups that offer therapeutic support to persons with AIDS and HIV. Declaration of Jeff Graham (Ex. G) ["Graham Aff."] ¶¶ 6-8. The Safer Sex Web Page hosts online discussions on sex education topics, in which many participants use pseudonyms to protect their anonymity. Declaration of John Troyer (Ex. H) ["Troyer Aff."] ¶¶ 12-14. 

Certain plaintiffs speak anonymously online because they fear retaliation for expressing unpopular or controversial views. The members of Atlanta Veterans Alliance, an organization that serves the needs of gay, lesbian and bisexual veterans, use the Internet anonymously not only to avoid harassment and discrimination, but also to protect their careers since those in active military service would face discharge if their identities were disclosed. Declaration of Eric Van Pelt (Ex. I) ["Van Pelt Aff."] ¶¶ 3,5. Members of the Atlanta Freethought Society participate in online discussions anonymously because their views advocating the separation of church and state often engender resentment and threats from others. Declaration of Kimberly Lyle-Wilson (Ex. J) ["Lyle-Wilson Aff."] ¶¶ 3-6. Plaintiff Bruce Mirken, a journalist who writes frequently about gay issues, obtains information for his stories from gay youth online; these youth would be unwilling to speak to Mirken if they could not use pseudonyms to protect their identity. Mirken Aff. ¶¶ 4-9. 

Certain plaintiffs use pseudonyms so that other online users cannot find their phone number or address to contact and potentially harass them. For example, Bonnie Nadri, a single mother, uses a pseudonym in chat and discussion groups on local BBSs because she does not want strangers on the network to obtain her real name. Declaration of Bonnie Nadri (Ex. K) ["Nadri Aff."] ¶¶ 7-9. Josh Riley uses screen names in communications over America Online to avoid receiving harassing or unwanted phone calls or messages. Declaration of Josh Riley (Ex. L) ["Riley Aff."] ¶ 7. Similarly, many online users, including Members of Electronic Frontiers Georgia, the Electronic Frontier Foundation, and the ACLU of Georgia, engage in anonymous online speech simply to protect their privacy. Costner Aff. ¶ 14; Steele Aff. ¶ 11; Declaration of Teresa Nelson (Ex. M) ["Nelson Aff."] ¶¶ 9-11. 

Three plaintiffs publish online newsletters or web pages on topics of public interest using "pen names," i.e., pseudonyms. Jonathan Wallace, a software executive and also a recognized author, publishes a newsletter on the Web under the pen name Jonathan Blumen to distinguish his business identity from his personal views. Wallace Aff. ¶¶ 8-14. Ken Leebow publishes a newsletter under the pen name "Norman, The Ultimate Business Surfer" as a whimsical and successful marketing strategy. Declaration of Kenneth Leebow (Ex. N) ["Leebow Aff."] ¶¶ 3-14. Similarly, Mitchell Kaye is a Georgia legislator who occasionally uses the pseudonym "Publius" in e-mail and in connection with a web page he publishes providing information on the activities of the Georgia House of Representatives. Kaye Aff. ¶¶ 4-10; 18. 

Just as many plaintiffs and other online users desire anonymity for themselves when communicating to others, many plaintiffs believe it is important for members and users who wish to obtain sensitive or controversial information to be able to access that information anonymously. See, e.g., Graham Aff. ¶¶ 8 10 (information about AIDS/HIV); Van Pelt Aff. ¶ 5 (gay and lesbian issues); Troyer Aff. ¶¶ 6-9 (safer sex information); Wallace Aff. ¶¶ 15-17 (controversial political issues). 

Finally, certain plaintiffs facilitate and encourage the responsible use of anonymous communications by computer users in order to protect their privacy. For example, Community ConneXion is an Internet Service Provider that operates an "anonymous remailer," which enables any Internet user to send particular messages anonymously over the Internet. Parekh Aff. ¶¶ 12-19. Community ConneXion also operates a service known as the Anonymizer, which enables any Internet user to browse and to retrieve documents from the Internet anonymously. Parekh Aff. ¶¶ 20-26. Plaintiff Electronic Frontier Foundation encourages the responsible use of anonymous remailers to protect their members' privacy, and provides links to anonymous remailers available on the Internet for use by the public. Steele Aff. ¶ 9. Similarly, Electronic Frontiers Georgia plans to offer an anonymous remailer for public use from its Internet domain in Georgia. Costner Aff. ¶ 13. 

The Use of Trade Names and Logos Online 

Plaintiffs and other online users also make use of "trade name[s], registered trademark[s], logo[s], legal or official seal[s], or copyrighted symbol[s]" in their online expression, and are fearful that their legitimate and constitutionally protected use of these names and logos are now prohibited by the Act. Several of the plaintiffs publish web pages that use the trade names, symbols or logos of others to refer or to provide links on the World Wide Web to the organizations whose trade names, logos, or symbols they use. Plaintiffs Leebow, Nadri, Riley, Troyer, and Wallace, for example, all use names, logos or symbols in this way to direct their users to other web pages on the Internet. Leebow Aff. ¶¶ 7-8A; Nadri Aff. ¶¶ 3-7; Riley Aff. ¶¶ 3-6; Troyer Aff. ¶¶ 2-3, 10-11; Wallace Aff. ¶¶ 8, 18-19. Some of the plaintiffs -- for example, Mitchell Kaye and Electronic Frontiers Georgia -- use the seals or symbols of Georgia or the United States as a part of their political and educational speech published over the World Wide Web. Kaye Aff. ¶¶ 4-11; Costner Aff. ¶¶ 8-11. All of these plaintiffs are concerned that their use of these trade names, logos, or symbols is now prohibited by the Act, and plaintiff Nadri has removed certain logos and images from her web page for fear of prosecution under the law. Costner Aff. ¶ 12; Kaye Aff. ¶¶ 12-17; Leebow Aff. ¶ 15; Nadri Aff. ¶¶ 5-7; Riley Aff. ¶¶ 4 & 6; Troyer Aff. ¶ 11; Wallace Aff. ¶ 19. 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. 

 

ARGUMENT AND CITATION OF AUTHORITIES

 

Plaintiffs seek preliminary injunctive relief barring enforcement of the Act because it is an unconstitutional restriction upon the right to free expression over computer networks. A preliminary injunction is appropriate when the movant establishes: "(1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction [is] not granted; (3) that the threatened injury to the plaintiff[s] outweighs the harm an injunction may cause the defendant[s]; and (4) that granting the injunction would not disserve the public interest." Teper v. Miller, 82 F.3d 989, 992 93 n.3 (11th Cir. 1996). Plaintiffs satisfy each of these requirements. 

 

I.PLAINTIFFS HAVE A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS 

 

The Act is facially unconstitutional for at least four reasons. First, the Act prohibits anonymous expression over computer networks, in violation of the rights of free expression, association and privacy protected by the United States and Georgia Constitutions. Second, the Act is substantially overbroad. Third, the Act is impermissibly vague. Finally, the Act violates the Commerce Clause of the United States Constitution because it regulates commerce occurring wholly outside the borders of the State of Georgia. 

A.The Act Restricts Anonymous Speech In Violation of Plaintiffs' Constitutional Rights 

The Act is an unconstitutional content-based restriction on plaintiffs and other online users' rights of free expression, association and privacy. These fundamental civil liberties are at least as important in cyberspace as they are in traditional contexts. "The Internet is a far more speech-enhancing medium than print, the village green, or the mails." ACLU v. Reno, 929 F. Supp. 824, 882 (E.D. Pa. 1996) (Dalzell, J.). "As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion." Id. at 883. 

 

1.The Act's Restriction on the Use of Pseudonyms, Pen Names & Screen Names Unconstitutionally Prohibits Protected Expression

The right to speak and publish anonymously is a fundamental right that has its roots in a long tradition that dates to the very founding of democracy in this country. As one commentator has noted, "At the time the first amendment was adopted, the device of anonymous political authorship was well known, and utilized by many of the founding fathers." "The Right to Anonymity," 70 Yale L.J. 1084, 1085 (1961). The Federalist Papers, published during the original constitutional debates, were published anonymously. Thomas Paine wrote the famous pamphlet "Common Sense" under a pseudonym. Just last year, the Supreme Court reaffirmed the long-recognized constitutional right to anonymity in McIntyre v. Ohio Elections Comm'n, 115 S.Ct. 1511 (1995) (striking down Ohio statute prohibiting anonymous distribution of campaign literature). The Court observed that "'[a]nonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.... Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.'" Id. at 1516 (quoting Talley v. California, 362 U.S. 60, 64 (1960) (declaring unconstitutional a California ordinance that prohibited the distribution of anonymous handbills))(citations omitted). 

The Court has explained that a law prohibiting anonymity is a content-based regulation 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." 115 S. Ct. at 1519. Moreover, "content-based regulations are presumptively invalid." R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992) (emphasis supplied). The government may regulate the content of protected speech only to promote a "compelling interest" and only "if it chooses the least restrictive means to further the articulated interest." Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989). Thus, the Court has consistently held that prohibitions against anonymous speech are subject to "'exacting scrutiny'" and can be upheld "only if . . . narrowly tailored to serve an overriding state interest." 115 S. Ct. at 1519 (emphasis supplied). 

The Supreme Court struck down statutes prohibiting anonymous expression in both McIntyre and Talley, supra, because the statutes at issue in both of those cases failed this exacting level of scrutiny. See McIntyre, 115 S.Ct. at 1524; Talley, 362 U.S. at 65. As the McIntyre Court observed, neither the "interest in preventing fraudulent and libelous statements" nor the "interest in providing the electorate with relevant information" was "sufficiently compelling to justify the anonymous speech ban," particularly because the restriction captured within its net expression that was not false or misleading. Id. at 1519-22. In the absence of a compelling interest, the Talley Court noted that "[t]here can be no doubt that . . . an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression." 362 U.S. at 64. 

Like the statutes invalidated in McIntyre and Talley, the prohibition in the Georgia Act encompassing anonymous online communications is an invalid content-based restriction upon speech that cannot withstand strict scrutiny. When First Amendment rights are at stake, courts must make an independent inquiry to assess whether the record supports the government's asserted interests. Sable, 492 U.S. at 129; Landmark Comm., Inc. v. Virginia, 435 U.S. 829, 843 (1978). The Georgia legislature identified no compelling interest requiring its passage. Even assuming that the "false names" prohibition was intended to address a perceived problem of online fraud or misrepresentation, the prohibition is a blunderbuss attack on speech and not in any sense narrowly tailored to achieve its ends. The prohibition applies regardless of whether a speaker has any intent to deceive and regardless of whether any actual deception occurs. The criminal restriction therefore applies even when -- as in the case of all of the plaintiffs in this case -- online pseudonyms are used not to deceive but to protect privacy (see Nadri Aff. ¶¶ 8-9; Riley Aff. ¶ 7; Costner Aff. ¶ 14; Steel Aff. ¶ 11), or as creative expression (see Leebow Aff. ¶ 13), or as "a shield from the tyranny of the majority, . . . to protect unpopular individuals from retaliation -- and their ideas from suppression - at the hand of an intolerant society." 115 S.Ct. at 1524. See Graham Aff. ¶¶ 7-8(AIDS Survival Project); Lyle-Wilson Aff. ¶ 6 (Atlanta Freethought Society); Van Pelt Aff. ¶ 5 (Atlanta Veterans Alliance). 

Second, as in McIntyre, Georgia has numerous less restrictive means to address intentional fraud and misrepresentation, in the form of a variety of specific criminal and civil sanctions under Georgia law. See, e.g., O.C.G.A. § 16-8-3 (1996)(theft by deception); O.C.G.A. § 16-9-93(a)(2) (1996) (computer theft by deception); O.C.G.A. § 10-1-453 (1994) (unauthorized and deceitful use of name or seal of another); O.C.G.A. § 10-1-393 (Supp. 1996) (unfair and deceptive consumer trade practices); Georgia-Pacific Corp. v. Lieberam, 959 F.2d 901, 907 (11th Cir. 1992) (common law action for fraud). The Act's sweeping prohibition of all anonymous expression over computer networks therefore is not narrowly tailored to achieve any compelling state purpose, and the Act is an unconstitutional restriction upon speech. 

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