The State of Georgia, no stranger to broad efforts to regulate human events in ways that other states will not touch, has stepped into the fray in this arena as well. Earlier this year, the Georgia legislature enacted a law that attempts to regulate the use of the Internet, both in Georgia and in communications that pass through Georgia, in ways entirely unrelated to the transmission of pornographic or indecent material.[1] The Georgia law, instead, makes an effort to apply traditional concepts of fraud and copyright law to the transmission of material across the Internet. Unfortunately, while the law may have been enacted in good faith, the Georgia legislators appear to not have understood the nature of the medium they were attempting to regulate. This law is a plain violation of the First Amendment; it broadly infringes on the rights of freedom of speech and freedom of association, both in Georgia and elsewhere.
A coalition of plaintiffs, led by the American Civil Liberties Union and a civil liberties organization called Electronic Frontiers Georgia ("EFGA"), filed suit on September 24 to have the Georgia law overturned.[2] This lawsuit is one of the first legal challenges to a law regulating the Internet outside the context of indecency issues. It will be closely watched as the courts begin to struggle with regulation of what a federal court in Philadelphia aptly referred to, in striking down the CDA, as "the chaos and cacophony of the unfettered speech [on the Internet] the First Amendment protects."[3] It may even play an important role in shaping the Supreme Court's expected review of the constitutionality of the CDA.
The State of Georgia is apparently concerned that this information is being distributed in inappropriate ways. In order to prevent such misuse, it enacted a law that has two stated objectives:
The lawsuit against the Georgia law was filed by the ACLU, EFGA and twelve other parties. They contend that the statute is an infringement of their First Amendment rights, that it is vague, ambiguous and overbroad, and that it violates the Commerce Clause by attempting to regulate interstate communications.[5] The First Amendment challenges go to both aspects of the law, and relate to the protections found in the First Amendment for freedom of speech and freedom of association. The plaintiffs assert that their ability to use the Internet is severely hampered by this law. Accordingly, they have sought a preliminary injunction against its enforcement.
The first issue raised by the lawsuit concerns the prohibition on falsely identifying oneself in any form of Internet communication. According to the complaint and request for an injunction, the law would prohibit a person from using an e-mail address that did not fully identify her, as well as from transmitting any information anonymously. Yet it is in the very nature of the Internet to deliver information via e-mail addresses that are less than fully identifying. The largest online networks (America Online, Compuserve and Prodigy) routinely assign e-mail addresses to their customers using numbers and/or nicknames that in no way fully identify the user.[6] Moreover, many types of e-mail addresses don't identify the user due to the use of initials or other nicknames.[7]
The issue of using AOL nicknames or Compuserve numbers in an e-mail address, while suggesting that the Georgia statute sweeps too much within its reach, does not really raise any type of First Amendment concern. The crux of the constitutional problem here is in the statute's prohibition on the use of anonymous or deliberately non-identifying names when transmitting information across the Internet. The plaintiffs in the Georgia lawsuit describe various reasons why one might expressly want to avoid identification: the subject at issue may be embarrassing or politically incorrect, other participants in a discussion area might not speak freely if they had to identify themselves, or the participant might be someone well known who desires anonymity in order to participate more freely.
Moreover, the plaintiffs point out that certain persons may want to access (rather than send) information in an anonymous manner, due to the sensitive or controversial nature of the information. Access to information about drug abuse, sexual issues, and certain political issues present the kinds of areas where, properly or not, there is often a stigma associated with identifying oneself. The Supreme Court held in Lamont v. Postmaster General,[8] that persons are entitled to anonymously access communist political materials via the United States mail, yet here Georgia has prohibited such access via the Internet. The two modes of communication are no different for purposes of the protection of the First Amendment.
The Georgia law prohibits this type of activity. It makes such conduct a crime, despite the fact that the activities involved are constitutionally protected forms of speech and association.[9] There is, however, an extraordinarily long history in this country of the protection of anonymous conduct, particularly anonymous publication of information. The Federalist Papers were published under a pseudonym; so was Thomas Paine's famous pamphlet Common Sense. Both Mark Twain and O. Henry were pseudonyms used by those authors in numerous publications. Even the recent uproar over the identity of the author of the political work Primary Colors did not include any assertion that a crime had been committed because the book was published anonymously. In fact, no one would begin to suggest that publication of any type of work in print today either under a pseudonym or anonymously is illegal.
Yet Georgia has branded this very activity illegal if it occurs in an online communication. This prohibition cannot withstand legal scrutiny and is likely to be struck down. In a closely related context, for example, the Supreme Court recently upheld the right to anonymously distribute campaign literature. In McIntyre v. Ohio Elections Commission,[10] the Court held that anonymity in publications is protected by the Constitution:
The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.[11]
In McIntyre, the Court also determined that the right to publish anonymously reached well beyond the literary world. It noted, for example, that a political advocate who is personally unpopular might want to publish anonymously "to ensure that readers will not prejudge her message simply because they do not like its proponent."[12] It held that a prohibition on anonymous speech in the political arena was "content-based" regulation that was entitled to the strictest level of scrutiny, concluding that "the identity of the speaker is no different from other components of the document's content that the author is free to exclude or include."[13]
The right to publish anonymously does not go simply to the issue of freedom of speech. Parties may want to communicate with others of like-minded views, but may fear retribution for doing so. They therefore may choose to act anonymously or with e-mail addresses that do not fully identify them. This type of communication plainly implicates the constitutional protection for freedom of association. Yet again Georgia has outlawed this type of activity, otherwise constitutionally protected, if it occurs on the Internet.
As the plaintiffs in Georgia have pointed out, the law is not a narrowly tailored attempt to limit or prohibit fraudulent communications. It criminalizes anonymous speech, regardless of whether there is any attempt to deceive or defraud and, more importantly, regardless of whether the very reason why the sender is acting anonymously is itself constitutionally protected conduct. As such, the Georgia law is too broad and therefore constitutionally infirm.
Prohibition of the Use of Trade Names, Logos and Seals
The second challenge to the Georgia law rests on its prohibition against using trade names, logos and the like without explicit permission from the owner. Here the plaintiffs assert that the law is strikingly overbroad, since it prohibits even noncommercial use of such names and logos in hypertext links on Web pages. Anyone even remotely familiar with the Internet knows, however, that it is based on these types of links; were they to be prohibited unless the owner of every name to which a link is provided had granted consent, the World Wide Web would cease to function. Moreover, the plaintiffs correctly contend that the state may not use what are, admittedly, reasonable concerns about protecting intellectual property as a pretext for broad prohibitions of speech.
There can be little doubt that under the appropriate circumstances, the use of the intellectual property of others without consent is entitled to First Amendment protection. Indeed, no one would plausibly argue that intellectual property may never be used without consent. For example, the plaintiffs in Georgia rely upon L.L. Bean, Inc. v. Drake Publishers, Inc., in which a District Court refused to enjoin publication of a parody under Maine's anti-dilution statute, concluding that the intellectual property protections of the law could not be used to inhibit communications protected by the First Amendment.[14] In doing so, the court stated:
It offends the Constitution . . . to invoke [a state intellectual property statute] as a basis for enjoining the noncommercial use of a trademark by a defendant engaged in a protected form of expression.[15]This is the precise type of legal reasoning that ought to apply to the Georgia law, where the state is trying to broadly limit expression across the Internet in the name of a narrow interest in protecting intellectual property.
Here the State of Georgia has seemingly prohibited World Wide Web links to the Web sites of others where the latters' names or logos are trademarked or copyrighted and are used without permission. This is an extremely broad prohibition; it would criminalize even the most innocuous of references if the viewer could in any way believe that the party owning the logo or trademark had granted official permission for its use. As the plaintiffs in the Georgia action accurately state:
[E]ven if the statute could constitutionally be applied to persons whose commercial use of trade names and logos creates a substantial likelihood of confusion or the dilution of a famous mark, the Act is unconstitutional under the overbreadth doctrine because it operates unconstitutionally for "a substantial category" of the speakers it covers (indeed, almost every online user is potentially in violation of the statute), . . . and because it "criminalizes a substantial amount of constitutionally protected speech."[16]
The use of links on World Wide Web sites is critical to the very viability of the Web. By limiting their use even in a noncommercial, constitutionally protected sphere of activity, the Georgia law has gone too far.
Nevertheless, state legislators and the Congress undoubtedly will continue
to attempt to regulate the Internet in ways that cannot pass constitutional
muster.[18] The State of New York, for example, has just passed its own
version of the CDA, a law that goes into effect on November 1, 1996.[19]
It remains to be seen whether this law will survive a constitutional challenge.
The key question in all of these cases, however, is whether the courts
can fashion clear rules in this area that will guide lawmakers as they
struggle with their desire to protect their constituents while at the same
time they seek to grasp the nature of this new medium that is becoming
more and more a part of our everyday lives. The Georgia case presents one
opportunity for such guidance; the Supreme Court's review of the CDA presents
another. In these and other cases, the courts must step in to protect First
Amendment freedoms or the legislators may seriously damage the free flow
of ideas and information across the Internet.
2. ACLU of Georgia et al. v. Miller, U. S. District Court for the Northern District of Georgia.
3. ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996).
4. The statute also has an interesting, and somewhat controversial, background. It was introduced by a Georgia State Representative whose full-time employer is BellSouth, one of the seven RBOCs. BellSouth is locked in a litigation battle with a small company that uses the Internet address of "www.realpages.com." In its lawsuit, BellSouth alleges that its trademark on the name "The Real Yellow Pages" somehow entitles it to the Internet address of "www.realpages.com." The Representative and BellSouth have denied numerous allegations that his introduction of this statute had anything to do with BellSouth or its litigation.
5. The Commerce Clause challenge is an interesting one in the context of the Internet, because it raises the question of what authority the states have to regulate the Internet at all. That issue, however, is beyond the scope of the First Amendment issues discussed in this article.
6. The author's e-mail address on Prodigy is wtkx75a@prodigy.com. His address at work, by way of contrast is more identifying (joefaber@dwt.com).
7. Even when the service provider does not assign a numerical or random e-mail address, it is common for individuals to choose e-mail addresses that are less than identifying, e.g., smgf@well.com or sleepy@aol.com.
8. 381 U.S. 301 (1965).
9. The Georgia law imposes a fine of up to $1,000 and imprisonment for up to one year as penalties for its violation.
10. 115 S. Ct. 1511 (1995). The McIntyre decision relied in part on the case of Talley v. California, 362 U.S. 60 (1960), which had similarly struck down a state law that prohibited the distribution of anonymous handbills.
11. Id. at 1516 (footnotes omitted).
12. Id. at 1517.
13. Id. at 1519. Interestingly, the State of Ohio attempted to uphold its law on the ground that it was aimed at preventing fraud and libel. That argument failed in McIntyre, for there are less restrictive means of achieving these goals. It must fail here for the same reason.
14. 811 F.2d 26 (1st Cir.), cert denied, 483 U.S. 1013 (1987).
15. 811 F.2d at 32.
16. Brief in Support of Motion for Preliminary Injunction, filed September 24, 1996 in ACLU of Georgia, et al. v. Miller, U.S. District Court for the Northern District of Georgia (citations omitted).
17. In fact, efforts are currently being led in Congress by Representative Rick White (R-WA) to more fully inform the members about the nature of the Internet, so that their future lawmaking efforts will be based in reality.
18. Are legislators going to stop passing these laws just because the laws appear to be unconstitutional? Such a result seems unlikely; there was, for example, a broad consensus that the Communications Decency Act was unconstitutional before it was voted upon, but it passed the Congress by a huge majority.
19. S210, signed into law Sept. 4, 1996.
This article is presented by CyberLaw (tm), an educational service on conputerlaw for computer users. For more information on CyberLaw contact Jonathan Rosenoer at cyberlaw@cyberlaw.com. Questions and comments may be posted at the CyberLaw Internet site (http://www.cyberlaw.com/). CyberLaw is a trademark of Jonathan Rosenoer. Copyright © 1996 Jonathan Rosenoer; All Rights Reserved.
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