AMERICAN CIVIL LIBERTIES UNION
OF GEORGIA v. ZELL MILLER - Right to Link
United States District Court,
Northern District of Georgia Atlanta Division
decided June 20, 1997
This action is before the Court
on plaintiffs' motion for preliminary injunction and defendants' motion to
dismiss. For the reasons stated below, the Court grants plaintiffs' motion and
denies defendant's motion.
Plaintiffs bring this action for
declaratory and injunctive relief challenging the constitutionality of Act No.
1029, Ga. Laws 1996, p. 1505, codified at O.C.G.A. § 16- 9-93.1 ("act"
or "statute"). The act makes it a crime for
any person . . . knowingly to
transmit any data through a compter 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 . . .
any person . . . knowingly to
transmit any data through a computer network . . . 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.
The parties vigorously dispute
the scope of the act. Plaintiffs, a group of individuals and organization
members who communicate over the internet, interpret it as imposing
unconstitutional content-based restrictions on their right to communicate
anonymously and pseudonymously over the internet, as well as on their right to
use trade names, logos, and other graphics in a manner held to be constitutional
in other contexts.
Plaintiffs argue that the act
has tremendous implications for internet users, many of whom "falsely
identify" themselves on a regular basis for the purpose of communicating
about sensitive topics without subjecting themselves to ostracism or
embarrassment. Plaintiffs further contend that the trade name and logo
restriction frustrates one of the internet's unique features -- the
"links"(1) that connect web pages on the World Wide
Web and enable users to browse easily from topic to topic through the computer
network system. Plaintiffs claim that the act's broad language is further
damaging in that it allows for selective prosecution of persons communicating
about controversial topics.
Defendants contend that the act
prohibits a much narrower class of communications. They interpret it as
forbidding only fraudulent transmissions or the appropriation of the identity of
another person or entity for some improper purpose. Defendants ask the Court to
abstain from exercising jurisdiction in this case in order to give the Georgia
Supreme Court an opportunity to definitively interpret the act.
In order to prevail on a
preliminary injunction motion, plaintiffs must establish 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
plaintiffs outweighs the harm an injunction may cause defendants; 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) . The Court concludes that plaintiffs
have satisfied each of these requirements and are thus entitled to injunctive
In their motion to dismiss,
defendants assert two affirmative defenses which, if persuasive, would make
plaintiffs' success on the merits unlikely. First, defendants argue that because
plaintiffs have not been prosecuted or threatened with prosecution under the act,
no live controversey exists and plaintiffs therefore lack standing to bring this
action. The Court concludes, hoewever, that plaintiffs do have standing because
"a credible threat of prosecution" exists. Graham v. Butterworth, 5 F.
3d 496, 499 (11th Cir. 1993). When plaintiffs filed this action "they
intended to engage in arguably protected conduct, which the statute seemed to
proscribe." Id. at 499. Furthermore, the rules of standing are relaxed in
the first amendment context where "the statute's alleged danger 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, 384 (1988).
Defendants also ask the Court to
abstain from excercising jurisdiction over this case on the grounds that the law
is ambiguous and in need of state court interpretation.(3)
However, abstention should rarely be invoked in cases involving facial
challenges to statutes allegedly violative of the first amendment. Dombroski v.
Pfister, 380 U.S. 479, 489-90 (1965) (holding abstention "inappropriate for
cases (where) . . . statutes are justifiably attacked on their face as abridging
free expression"). The reluctance to abstain in first amendment cases
recognizes that the delay abstention imposes has a further chilling effect on
speech. Zwickler v. Koota, 389 U.S. 241, 252 (1967).
The correct inquiry, when asked
to abstain in a case involving a facial statutory challenge, is whether the
statute is "fairly subject to an interpretation which will render
unnecessary or substantially modify the federal constitutional question."
City of Houston v. Hill, 482 U.S. 451, 468 (1987). "if the statute is not
obviously susceptible of a limiting construction, then even if the statute has
never (been) interpreted by a state court tribunal . . . it is the duty of the
federal court to excercise its properly invoked jurisdiction." Id. The
Court finds, as set forth below, that O.C.G.A. § 16-9-93.1 is not fairly
subject to a limiting construction whic would obviate its constitutional
problems. Moreover, absention would impose great costs on plaintiffs by further
chilling their expression while they wait for an interpretation of the act by
the Georgia Supreme Court or by forcing them to risk prosecution if they choose
not to wait. Therefore, the Court finds that abstention is inappropriate in this
Having addressed defendants'
affirmative defenses, the Court concludes that plaintiffs are likely to prevail
on the merits of their claim. It appears from the record that plaintiffs are
likely to prove that the statute imposes content-based restrictions which are
not narrowly tailored to achieve the state's purported compelling interest.
Furthermore, plaintiffs are likely to show that the statute is overbroad and
void for vagueness.
First, because "the
identity of the speaker is no different from other components of (a) document's
contents that the author is free to include or exclude, "McIntyre v. Ohio
Elections Comm'n, 115 S. Ct. 1511, 1516 (1995), the statute's prohibition of
internet transmissions which "falsely identify" the sender constitutes
a presumptively invalid content-based restriction. See R.A.V. v. St. Paul, 505
U.S. 377, 382 (1992). The state may impose content- based restrictions only to
promote a "compelling state interest" and only through use of "the
least restrictive means to further the articulated interest." Sable
Communications of California, Inc. v. FCC, 492 U.S, 115,126 (1989). Thus, in
order to overcome the presumption of invalidity, defendants must demonstrate
that the statute furthers a compelling state interest and is narrowly tailored
to acvhieve it.
Defendants allege that the
statute's purpose is fraud prevention, which the Court agrees is a compelling
state interest. However, the statute is not narrowly tailored to achieve that
end and instead sweeps innocent, protected speech within its scope. Specifically,
by its plain language the criminal prohibition applies regardless of whether a
speaker has any intent to deceive or whether deception actually occurs.
Therefore, it could apply to a wide range of transmissions which "falsly
identify" the sender, but are not "fraudulent" within the
specific meaning of the criminal code.
Defendants respond that the act
does not mean what it says and that, instead, a variety of limiting concepts
should be engrafted onto it. First, defendants propose to add an element of
fraud, or a specific intent requirement of "intent to defraud" or
"intent to deceive" to the act.(4) None of these
terms or phrases appears in the statute, however, although they are expressly
included in other Georgia criminal statues which require proof of specific
intent. See, e.g., O.C.G.A.. §§ 10-1-453, 16-9-1(a), 16-9-2, and 16-8-3.
Second, defendants contend that
the act applies only to persons who misappropriate the identity of another
specific entity or person. Again, there is nothing in the language of the act
from which a reasonable person would infer such a requirement, and the General
Assembly has specifically included analogous elements when it meant to do so.
See O.C.G.A. § 10-1-453.
Third, defendants seek to limit
the restriction on use of trade names, marks, and seals by collapsing the act's
two clauses--suggesting that "use" of a mark is prohibited only when
it would "falsely identify" the user. Without explanation, this
construction borrows the "false identification" portion of the first
clause and applies it to the second. In addition to not making sense
grammatically, the interpretation also imports into the second clause all of the
previously discussed interpretive problems with the phrase "falsely
In construing a statute, the
Court must "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 (1990) (citing Department of Trans. v. City of Atlanta, 255 Ga. 124,
137 (1985)). Only if a statute is "readily susceptible to a narrowing
construction" may such an interpretation be applied to save a questionable
law. American Booksellers Ass'n, 484 U.S. at 397. The words and phrases
defendants seek to add to the act appear nowhere in it. Moreover, defendants'
attempt to interpret the act is so confusing and contradictory that it could not
possibly constitute grounds for rejecting the act's plain language. Even if the
Court could impose a limiting construction on the act, defendants' brief
provides no real guidance on what the construction should be, but instead offers
a variety of very different possible interpretations in hopes that the Court
will select one. The Court concludes, therefore, that the act is not readily
susceptible to a limiting construction and that its plain language is not
narrowly tailored to promote a compelling state interest.
For similar reasons, plaintiffs
are likely to succeed on their overbreadth claim because the statute "sweeps
protected activity within its proscription." M.S. News Co. v. Casado, 721
F. 2d 1281, 1287 (10th Ciir. 1983) (citing Erznoznik v. City of Jacksonville,
422 U.S. 205, 212-13 (1975)). In the first amendment context, the overbreadth
doctrine, which invalidates overbroad statutes even when some of their
applications are valid, United States v. Salerno, 481 U.S. 739, 745 (1987), is
based on the recognition that "the very existence of some broadly written
laws has the potential to chill the expressive activity of others not before the
Court." Forsythe County v. Nationalist Movement, 505 U.S. 123, 129 (1992).
The Court concludes that the
statute was not drafted with the precision necessary for laws regulating speech.
On its face, the act prohibits such protected speech as the use of false
identification to avoid social ostracism, to prevent discrimination and
harassment, and to protect privacy, as well as the use of trade names or logos
in non- commercial educational speech, news, and commentary--a prohibition with
well-recognized first amendment problems.(6) Therefore, even
if the statute could constitutionally be used to prosecute persons who
intentionally "falsely identify" themselves in order to deceive or
defraud the public, or to persons whose commercial use of trade names and logos
creates a substantial likelihood of confusion or the dilution of a famous mark,
the statute is nevertheless overbroad because it operates unconstitutionally for
a substantial category of the speakers it covers. Village of Schaumburg v.
Citizens for a Better Environment, 444 U.S. 620, 634, (1980).
Finally, plaintiffs are likely
to succeed on their claim that the statute is unconstitutionally vague. The
void-for-vaguness doctrine requires a criminal statute 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). Like the overbreadth doctrine, the policies underlying the
vagueness rule apply with special force where the statute at issue restricts
speech. ACLU v. Reno, 929 F. Supp. 824, 860 (E.D. Pa. 1996). The Court concludes
that plaintiffs are likely to prove that the statute is void for vagueness
because it 1) does not give fair notice of the scope of the conduct it
proscribes; 2) is conducive to arbitrary enforcement; and 3) infringes upon
plaintiffs' free expression. See Grayned v. City of Rockford, 408 U.S. 104,
First, the act fails to give
fair notice of proscribed conduct to computer network users by failing to define
the following terms and phrases: "falsely identify", "use",
:falsely imply", and "point of access to electronic information."
These undefined terms provide inadequate notice of the scope of proscribed
conduct to persons of ordinary intelligence and thus void the act for vagueness.
The statute criminalizes
computer transmissions which "falsely identify" the sender, yet fails
to state whether or not proof of specific intent to deceive, or proof of actual
deception, is required. Plaintiffs' affidavits demonstrate that, although they
have no intent to deceive when sending transmissions which may "falsely
identify" them and, indeed, have many legitimate and important reasons for
concealing their identity, they cannot determine whether or not their conduct
violates the act.
Similarly, the portion of the
act relating to trade names and logos fails to define or adequately limit the
word "use". Other statutes protecting intellectual property expressly
limit the definition of "use" to use in a commercial context. See, e.g.,
15 U.S.C. § 1125 (federal trademark infringement law); O.C.G.A. § 10-1-440 (b)
(1994) (defining "use" within the meaning of Georgia trademark
infringement laws) ; O.C.G.A. § 10-1-450 (1994) (Georgia trademark infringement
law). In contrast, the only limiting concept of "use" in the act is
that such use must "falsely imply" that permission to use the mark has
been obtained. This restriction, which is also undefined and suffers from the
same vagueness problems as the term "falsely identify", fails to
provide sufficiently specific notice of proscribed conduct.
Finally, the act fails to
explain the phrase "any data . . . over the transmission facilities or
through the network facilities of a local telephone network for th purpose of .
. . ecxhanging data with . . . a point of access to electronic information."
Plaintiffs contend that this phrase could mean that the act applies not only to
computer transmissions per se, but also to transmissions by telephone, fax
machine, answering machine, voice mail system, pager, or any other electronic
device which might be connected to computer network facilities. The act provides
no guidance about these potential applications.
Second, the act's vague
provisions create a risk of arbitrary and discriminatory enforcement. As
plaintiffs point out, not only does the act fail to notify potential defendants
of proscribed conduct, but it also fails to notify law enforcement officials of
what exactly is prohibited. The act's failure to specifically articulate
proscribed conduct affords prosecuters and police officers substantial room for
selective prosecution of persons who express minority viewpoints.
Third, the act's vagueness is
particulary harmful because it chills protected expression. Plaintiffs'
affidavits indicate that they have already altered what they believe to be
innocent and legitimate behavior because of their inability to discern what
exactly the act proscribes. Without court intervention, this self-censorship
will continue until the act is amended, revoked, or definitively interpreted by
the state supreme court.
For all of these reasons, the
Court concludes that plaintiffs are likely to succeed on their clain that the
act is void for vagueness, overbroad, and not narrowly tailored to promote a
compelling state interest.
threat of irreparable injury
Plaintiffs have also
demonstrated a substantial threat of irreparable injury in the absence of a
preliminary injunction. The Supreme Court has held that "(t)he loss of
First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976).
As described above, the the act has already induced self-censorship. The Court
concludes, therefore, that failure to enjoin enforcement of the act will force
plaintiffs either to continue self- censorship or to risk criminal prosecution.
Thus, plaintiffs have demonstrated a substantial threat of irreparable injury
unless a preliminary injunction is issued.
3. Balance of
The balance of hardships weighs
heavily in plaintiffs' favor. As stated above, plaintiffs will suffer
irreparable injury if prosecution under the statute is not enjoined. In contrast,
Georgia already has in place many less restrictive means to address fraud and
misrepresentation--the interests defendants claim the act at issue promotes.
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). Defendants contend that these
statutes do not fully reach problematic behavior over the internet, but they
fail adequately to explain why. If the act prevents some ill-defined category of
fraud or deception not covered by existing laws, defendants do not articulate
why they have a compelling interest in preventing that conduct on the internet
but have done nothing to prevent the same practices in the print media.
Therefore, the Court concludes that plaintiffs face substantially greater harms
if the act is allowed to stand than defendants face if its enforcement is
of the Public Interest
Finally, for all the reasons set
forth above, a preliminary injunction will advance the public interest. "No
long string of citations is necessary to find that the public interest weighs in
favor of having access to a free flow of constitutionally protected speech."
Reno, 929 F. Supp. at 851.
For the foregoing reasons, the
Court DENIES defendants' motion to dismiss [#11-1], GRANTS plaintiffs' motion
for preliminary injunction [#3-1], and enjoins defendants from enforcing O.C.G.A.
§ 16-9-93.1 pending a final determination on the merits of plaintiffs'
IT IS SO ORDERED, this 20th
day of June, 1997
Marvin H. Shoob,
Senior Judge United States District Court Northern District of
1. Links are often graphics or logos
which, if "clicked on" by the user with a computer mouse, will
transport the user to a different web page covering a new topic of information
2. In this section of the order, the
Court will also address arguments advanced in defendants' motion to dismiss.
3. Significantly, this argument
contradicts defendants' contention that the statute is sufficiently clear to
avoid vagueness and overbreadth challenges.
4. The terms "fraud", "intent
to defraud," and "intent to deceive", although used
interchangeably by defendants, are not synonomous in the criminal code. See, e.g.,
United States v. Godwin, 566 F. 2d 975, 976 (5th Cir. 1978). Each term requires
proof of different elements, and by using the terms interchangeably, defendants
fail to explain which of the distinct elements should be applied to the statute.
Also, the term "falsely"--the only term which
actually does appear in the statute--is synonomous with none of the the above
terms defendants seek to add. "Falsely" means merely "wrongly",
"incorrectly", or "not truthfully". Webster's Third New
Int'l Dictionary 819 (1976).
5. To further confuse the matter,
defendants suggest elsewhere in their brief that the second clause actually does
mean what it says and prohibits all uses of marks which would imply permission
for that use which has not been obtained. A fair reading of the clause, as
written, is that it prohibits the current use of web page links. The linking
function requires publishers of web pages to include symbols designating other
web pages which may be of interest to a user. This means that an entity or
person's seal may appear on hundreds or thousands of other web pages, just for
the purpose of enabling the linking system. The appearance of the seal, although
completely innocuous, would would definitely "imply" to many users
that permission for use had been obtained. Defendants have articulated no
compelling state interest that would be furthered by restricting the linking
function in this way.
6. Congress acknowledged the first
amendment problems with banning non-commercial use of trademarks by limiting the
scope of the new Federal Trademark Dilution Act to apply to commercial use only.
See 15 U.S.C. § 1125 (c) (4); H.R. No. 104-374 (1995)