American Civil Liberties Union v. Miller

Plaintiffs
American Civil Liberties Union of Georgia (ACLU), The AIDS Survival Project,The Atlanta Free Thought Society, Atlanta Veterans Alliance, Community ConneXion, Electronic Frontier Foundation, Electronic Frontiers Georgia, Representative Mitchell Kaye, Ken Leebow, Bruce Mirken, Bonnie L. Nadri, Josh Riley, John Troyer, and Jonathan Wallace
Defendants
Zell Miller, Governor of Georgia, and Michael Bowers, Georgia State AttorneyGeneral
Plaintiffs' Claim
That Georgia's Computer Systems Protection Act is vague and overbroad violating the First and Fourteenth amendments' rights to free expression and association, the Fifth Amendment's right to privacy, and the Commerce Clause.
Chief Lawyer for Plaintiffs
Ann Beeson
Chief Defense Lawyer
David A. Runion
Judge
Marvin H. Shoob
Place
Atlanta, Georgia
Date of Decision
7 August 1997
Decision
Ruled in favor of the ACLU and granted a preliminary injunction against enforcement of the Georgia Interstate Fraud Statute.
Significance
The ruling posed a wide impact on the way legislators could craft laws regulating the Internet. The decision upheld the right of constitutionally-protected free speech over the Internet and, in doing so, this judgment carried important implications. Pointing out that similar restrictions were not applied toprint publications, the court underscored both the inappropriateness of suchcensorship and the parallel nature of print and Internet media.
The Internet began in the late sixties as a military experiment linking various computer networks. By the 1990s commercial use by private business had mushroomed reaching millions of people globally. The expansive use brought extensive concerns over protection of its users from crime, obscenity, and defamation. During 1996, in the wake of the U.S. Congress' passage of the Communications Decency Act, states considered legislation to regulate online speech. Georgia state legislators approached Internet regulation differently by crafting an act preventing online users from using false names or pseudonyms. That statute, voted into law by the state legislature on 1 July 1996, called for criminal sanctions of up to 12 months in jail and/or up to $1,000 fine for violations.
Legal Action Created Politically Diverse Group of Plaintiffs
Among those objecting to Georgia's legislation were the ACLU, Electronic Frontiers Georgia, Electronic Founders Foundations, as well as politically conservative Georgia State Representative, Mitchell Kaye. The diversity of co-plaintiffs was highlighted by the participation of the Atlanta Veterans Alliance--a Georgia-based organization for gay, lesbian, bisexual, and transgendered veterans. Although politically opposites, the various parties nonetheless agreed that the statute was unconstitutionally vague and overbroad because it barred online users from using pseudonyms or communicating anonymously over the Internet. At a joint press conference held by the plaintiffs in Atlanta, Rep.Kaye explained he became involved after his private web site came under attack by some members of the Georgia House of Representatives. Kaye maintained they felt threatened because his site featured voting records along with political commentary not always flattering. At the conference, Teresa Nelson, executive director of the ACLU of Georgia, announced the ACLU would take the leadin filing a complaint requesting a preliminary injunction to prevent enforcement of Georgia's newly-passed Internet fraud statute.
The complaint filed by the ACLU in September of 1996, claimed that, "The lawmakes it a crime to use a name that `falsely' identifies a speaker on the Internet, without distinguishing whether the person communicating had any intentto deceive or defraud or simply wanted to keep his or her identity unknown."The ACLU argued the act did not define important terms like "use" nor was the statute clear about using trade names, logos, or other trademark symbols commonly used to link web sites to one another.
The ACLU stressed the importance of anonymous Internet communications explaining that false names or pseudonyms eliminated the potential for discrimination and harassment according to gender or ethnicity. The ACLU argued, "It is anecessary security measure. The personal safety of human rights dissidents, domestic violence victims, and whistle-blowers would be compromised if they could not communicate anonymously."
On 30 January 1997, the case was argued before Marvin H. Shoob, Senior Judgeof the U.S. District Court for the Northern District of Georgia. The crux ofthe state's argument was that, as written, the statute was meant to be interpreted to only forbid fraudulent transmissions over the Internet. The intent of the statute was to prevent misappropriation of the identity of another person or entity for improper purposes.
The State of Georgia argued a motion to dismiss for two reasons. First, sinceno one individual or organization named as plaintiffs had been prosecuted oreven threatened with prosecution, no "live controversy" actually existed. For that reason, Georgia argued, the plaintiffs had no legal grounds to bring suit. The state further argued that the court should refrain from exercising its jurisdiction because of the claim that the law was ambiguous. Because of that claim, Georgia contended the Georgia Supreme Court should have the opportunity to issue an interpretative ruling in order to clarify the law.
Conversely, in their motion for the court to issue a preliminary injunction against enforcement of the Georgia statute, the ACLU focused arguments in twodirections. As written, the broad and nonspecific language of the act would impose unconstitutional restrictions on the content of speech. First, the language of the law prohibited any communications using names that would "falselyidentify" a user. The ACLU contended such a restriction would prevent the widespread and common practice over the Internet of using anonymous names or pseudonyms in discussion groups, email, and the publishing of Internet documents. Secondly, the ACLU argued that the act prohibited communications using trade names, logos, and other images without permission. They maintained such arestriction effectively precluded the use of hyperlinks between web pages, the primary means by which Internet users easily navigate the World Wide Web and access information from Internet sites.
Jurisdiction a Question of Precedent
In issuing his decision, Judge Shoob, first needed to establish whether it was appropriate for the U.S. District Court to make a ruling. In that regard, Shoob pointed out that in cases addressing First Amendment issues, the rules of standing are relaxed, especially if citizens might engage in self-censorship under threat of potential prosecution. Quoting from Virginia v. AmericanBooksellers Association (1988), Judge Shoob noted, "The statute's alleged danger is, in large measure, one of self-censorship; a harm that can be realized even without an actual prosecution." Further, Shoob expressed that if he failed to make a ruling, the delay might impose "a chilling effect" on First Amendment-protected free speech. The concept of "chilling effect" relates to individuals deciding not to put forth views for fear of criminal prosecution. Because of these pressing constitutional issues, the court should hear thecase.
By specifically upholding the right of the plaintiffs to bring suit, the court directly addressed the heart of Georgia's motion to dismiss. In their initial complaint, the ACLU pointed out that many intended to continue engaging inwhat they considered constitutionally protected conduct which the law seemedto prohibit. Thus, citing Graham v. Butterworth (1993) as precedence,Shoob ruled that individuals, indeed, faced a credible threat of prosecutioneven though they had not yet been prosecuted or threatened with prosecution.
Shoob cited four reasons why ACLU would likely succeed on the merits of theirclaim. First, Shoob did not agree with Georgia's argument that because language of the act was imprecise, the case therefore warranted dismissal so a ruling could be sought from a state court. Instead, Shoob found that the plaintiffs' complaint succeeded precisely because the statute addressed content-based restrictions that were "not narrowly tailored to achieve the state's purported compelling interest" to restrict Internet communications. Specifically, Shoob cited language of the act which he maintained only generally defined asillegal "transmissions which `falsely identify' the sender but were not `fraudulent' within the specific meaning of the (Georgia) criminal code." Shoob held that, "The statute was not drafted with the precision necessary for laws regulating speech" and was, therefore, constitutionally invalid.
While the state maintained that the law only applied to individuals who misappropriated the identity of another entity or person, ACLU argued that the language of the act did not specifically state that intent. Shoob agreed with ACLU noting that, by law, the court must only follow the literal language of the statute. The language of the act, therefore, contained nothing "from whicha reasonable person would infer such a requirement."
A Question of First Amendment Rights
As written, the overly-broad wording of the act did not only apply to peoplewho misappropriated the identity of another person. The ACLU argued persuasively that the statute prohibited protected free speech such as the use of a pseudonym for protection from discrimination, harassment, or invasion of privacy. Moreover, under the Federal Trademark Dilution Act, Congress provided forthe non-commercial use of trade names and logos (such as education, news, orcommentary). The language of the Georgia statute, however, prohibited such use.
Judge Shoob feared the act could lead to selective prosecution of minoritiesor unpopular opinions. Lastly, he found that the act infringed on free expression because some individuals in their confusion, may have altered their conduct and behavior over the Internet in spite of the belief that such activities were inherently legal, in a form of self-censorship. For that reason, Shoobbelieved their constitutionally protected free speech under the First Amendment had been abridged.
In summarizing his decision, Judge Shoob disagreed with the state of Georgiathat specific legislation was needed to specifically prevent Internet fraud.Instead, he cited several Georgia statutes already in place that not only addressed fraud and deception but were less restrictive measures. Moreover, besides failing to adequately define what constituted a specific category of Internet-based fraud or deception, the judge noted that Georgia's legislation hadnot addressed similar practices in print media. Thus, Judge Shoob issued hispreliminary injunction enjoining the state of Georgia from enforcing the Georgia law. This temporary injunction became final on 7 August 1997 since the state of Georgia failed to refile their case or appeal the federal court's decision.
Impact
The court ruling in essence established a right to communicate on the Internet and underscored the complexity of balancing trademark rights and freedom ofspeech. While Judge Shoob narrowed his ruling to specifically focus on the protection of the Internet under First Amendment free speech rights, his ruling had the effect of stemming the rush among state legislatures in the UnitedStates to regulate Internet activity. The ruling specifically relied on existing legislation that was initially crafted to address fraud and deception inprint; in so doing, the similar nature of publishing and communications in both print and Internet media was established.
However, the Internet holds some very unique qualities as well, not seen in other media. The system is neither owned nor controlled by a government or anyprivate organization. In essence, those who use it actually control the content and guidelines for use. Despite public pressures to regulate cyberspace,courts initially demonstrated a great reluctance to impose limitations. The Miller decision appeared to recognize these differences in that trademark restrictions may not apply as fully on the Internet as elsewhere. Therefore, the ability of trademark owners to control their use on the Internet is limited. Over 130 bills were before Congress by the end of 1997 and each statewas evaluating how to follow the lead of the short-lived Communications Decency Act that the Supreme Court largely ruled invalid in Reno v. American Civil Liberties Union (1997). Proposals for state legislation assigning some liability to Internet service providers were developed that would establishprocedures for plaintiffs to follow in proving harm.
The ability of states to regulate Internet activity was further questioned inAmerican Libraries Association v. Pataki (1997) striking down a New York law due to the burden it placed on interstate commerce through cyberspace. The court held that development of the Internet should not be paralyzed byinconsistent legislation from various states. The Miller and Reno cases combined provide a strong constitutional protection to activities over the Internet and limit states abilities to impose restrictions.
Related Cases

• Virginia v. American Booksellers Association, 484 U.S. 383 (1988).
  
• American Libraries Association v. Pataki, 969 F.Supp. 160 (1997).
  
• Reno v. American Civil Liberties Union, 512 U.S. 844 (1997).

Should Copyright Law Apply to the Internet?
Copyrights protect the original creative expression of authors, movie makers,and songwriters. Copyrights give authors exclusive rights to reproduce and distribute their work for financial gain. However, an estimated $2 billion inroyalty fees were lost in 1997 through internet transmissions. Should copyright laws apply to this new electronic international medium? Most agree they should, but the debate focuses on who is responsible for preventing such violations.
The authors, or "content providers" as known in the computer age, argue "access providers," including commercial online services such as America Online and internet browsers, should be held responsible for the transmission of copyrighted materials. Those actually doing the pirating are often hobbyists withlittle money or live in foreign countries out of reach of U.S. authorities.
Access providers claim little capability to prevent copyright infringements before their occurrence. They contend a requirement to inform their users of copyright laws and remove copywritten materials from their systems as soon asidentified should be their basic responsibilities. Like video recorder distributors of the 1980s, they should not be held responsible for how someone usestheir hardware and software. Such restrictions would stifle creativity and threaten privacy. Congress passed the Online Copyright Infringement LiabilityLimitation Act of 1998 to begin addressing these concerns.
Sources
Patents, Trademarks, Copyrights: Intellectual Property in a Global EconomyCongressional Digest, vol. 75. Washington, DC: Congressional Digest Corp., December 1996.