American Civil Liberties Union of Georgia v. Miller

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 controversy exists and plaintiffs therefore lack standing to bring this action. The Court concludes, however, 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 exercising jurisdiction over this case on the grounds that the law is ambiguous and in need of state court interpretation.n3 However, abstention should rarely be invoked in cases involving facial challenges to statutes allegedly violative of the first amendment. The reluctance to abstain in first amendment cases recognizes that the delay abstention imposes has a further chilling effect on speech.

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 exercise 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 which would obviate its constitutional problems. Moreover, abstention 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 case.

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 achieve 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 "falsely 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.n4 None of these terms or phrases appears in the statute, however, although they are expressly included in other Georgia criminal statutes which require proof of specific intent.

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 [in other statutes] when it meant to do so.

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 identify."n5

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 that 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 Cir. 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, 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." Forsyth 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.n6 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.

Finally, plaintiffs are likely to succeed on their claim that the statute is unconstitutionally vague. The void-for-vagueness 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 conduct it proscribes; 2) is conducive to arbitrary enforcement; and 3) infringes upon plaintiffs' free expression.

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. 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 the purpose of . . . exchanging 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 prosecutors and police officers substantial room for selective prosecution of persons who express minority viewpoints.

Third, the act's vagueness is particularly 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 claim that the act is void for vagueness, overbroad, and not narrowly tailored to promote a compelling state interest.

2. Substantial threat of irreparable injury