The ACLU of Georgia and other plaintiffs filed this brief on September 24, 1996 elaborating their arguments for the unconstitutionality of a Georgia law that criminalizes use of pseudonym and anonymous messaging in online communications. According to plaintiffs, the law illegally restrains online and is unconstitutionally vague.

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

AMERICAN CIVIL LIBERTIES

UNION OF GEORGIA, et al.,

Plaintiffs,

vs.

ZELL MILLER, in his official capacity as Governor of the State of Georgia, et al.

Defendants.

FILE NO. _______

CIVIL ACTION

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, Hereinafter, "plaintiffs" will refer collectively to plaintiffs, 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).The Act provides two exceptions to its general application. The first provides that a "telecommunications company or Internet access provider" does not violate the law "solely as a result of carrying or transmitting such data for its customers." O.C.G.A. 16-9-93.1(a) (emphasis supplied). The second, not codified in the Official Code, provides that a "member of the General Assembly" does not violate the Act by displaying the state seal or flag "on a home page that is clearly identified with the name of the member as the home page of that member." Act No. 1029, 2, Ga. Laws 1996, at 1506 (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.All affidavits cited in this memorandum are attached as Exhibits A - N to plaintiffs' Motion for Preliminary Injunction. 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 right to anonymity is also protected by various provisions of the Georgia Constitution. See Ga. Const. Art. 1, 1, 1, 3, 5, & 9. See also Multimedia WMAZ, Inc. v. Kubach, 212 Ga. App. 707, 443 S.E.2d 491 (1994) (right of privacy under Georgia law protected AIDS patient's right to appear anonymously and with identity disguised on local television show).

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.

2. The Prohibition of the Use of Pseudonyms, Pen Names & Other Anonymous Online Speech Unconstitutionally Violates The Plaintiffs' Association and Privacy Rights

In addition to violating their rights to free expression, the Act's prohibition against the use of online pseudonyms violates the right of the plaintiffs and their members to associate with others over computer networks while protecting their anonymity. The prohibition of the use of pseudonyms in online communications effectively prohibits online users, including members of plaintiffs ACLU of Georgia, Electronic Frontiers Georgia, Electronic Frontiers Foundation, AIDS Survival Project, Atlanta Veterans Alliance, and Atlanta Freethought Society, from associating in discussion or chat groups online without publicly disclosing their identities to any other user on the network. It is therefore an even broader disclosure requirement than the statutes that required organizations to disclose their membership lists to the government, a practice the Supreme Court has repeatedly invalidated as an unconstitutional intrusion into the protected right of free association. See, e.g., Bates v. Little Rock, 361 U.S. 516, 527 (1960) (invalidating Little Rock ordinance requiring organizations to provide lists identifying their members and contributors); NAACP v. Alabama, 357 U.S. 449, 466 (1958) (reversing court order requiring NAACP to disclose Alabama membership list).

3. The Act Violates Plaintiffs' Right to Receive Information Anonymously

Similarly, the Act prohibits anonymity even to access information online. Just as an online user may "falsely identify" himself under the Act when sending messages or information anonymously or using a pseudonym, an online user may "falsely identify" himself when searching for and retrieving information anonymously.

Thus, the Act is analogous to the federal statute invalidated in Lamont v. Postmaster General, 381 U.S. 301 (1965), which prohibited anonymous access by traditional mail to communist political materials. The statute required recipients of such material affirmatively to request receipt by delivering a reply card to the post office, which the post office used to maintain a list of recipients of such material. See 381 U.S. at 307. Similarly, the Georgia Act would require people to identify themselves publicly, in a manner which would make this information available to the government and others, before they could receive information to which they are constitutionally entitled. Members of plaintiff Atlanta Veterans Alliance would have to identify themselves in order to retrieve information about gay and lesbian issues. Users of the Safer Sex Page, and members of the AIDS Survival Project, would have to identify themselves in order to gain access to potentially life-saving information. Such a requirement would chill protected expression and is clearly unconstitutional.

4. The Broad Restriction On The Use of Trade Names, Logos, Etc., Unconstitutionally Prohibits Protected Expression

The Act's broad restriction upon the use of trade names, logos, etc., in online communications also tramples upon the First Amendment. Like the "false name" prohibition, the restriction on the use of trade names and logos is a content-based restriction on speech and cannot withstand the strict scrutiny that applies to such restrictions.

First, the restriction is again a shotgun assault on speech. The restriction is not confined to commercial use of trade names logos, etc., nor does the Act require intent to deceive or any actual deception. The potential breadth of this restriction is magnified by the new technological context of the Internet, because at least one commentator has already argued that the unique "linking" feature of the Web may "falsely imply" official sponsorship or permission to unsophisticated users simply because the links provide automatic connections between web pages. See Stuart D. Levi, Web-Site Hypertext Links Raise Issues of Control, Nat'l L.J., Aug. 12, 1996, at B12 (asserting that the mere link itself combined with the use of a distinctive logo to identify it "falsely impl[ies] formal relationships between the sites.").

The Act's language is so broad, therefore, that it appears to prohibit even clearly noncommercial use of names and logos to provide links in web pages in the absence of express permission from the corporations, organizations, or agencies to whom the links lead. Many of the plaintiffs use trade names or logos in this manner to create links for noncommercial purposes, and in many cases their use of these trade names or logos occurs in the context of political speech, religious speech, news and commentary, and other public interest and educational expression. See, e.g., Troyer Aff. 3-6, 10-11; Riley Aff. 4A-6; Wallace Aff. 8-11, 18-19; Nelson Aff. 3-5, 7-8; Costner Aff. 9-12; Steele Aff. 13; Leebow Aff. 5-10; Nadri Aff. 6-7. It would be practically impossible for plaintiffs and other web publishers to obtain permission for all the links in their web sites, and eliminating links would destroy the most useful and acclaimed feature of the World Wide Web.

That this broad restriction prohibits expression clearly protected by the First Amendment is perhaps best illustrated by the case of the web page published by plaintiff Mitchell Kaye and other members of the Conservative Policy Caucus of the Georgia House of Representatives. See Kaye Aff. 4-11. This web page provides extensive information of public interest on the activities of the Georgia House of Representatives and reflects core protected political speech. See Buckley v. Valeo, 424 U.S. 1, 14 (1976) ("The First Amendment affords the broadest protection to . . . political expression."). The web page has also been the subject of considerable controversy since its creation. It contains repeated disclaimers that it is not an official publication of the Georgia House of Representatives, but uses the Georgia State Seal and other symbols and has -- notwithstanding the disclaimers -- been misidentified by several third party computer network users as the "official" page of this body. Kaye Aff. 11-12, 16.Rep. Kaye has tried to correct these errors promptly whenever he learns of them. Kaye Aff. 16. Representative Don Parsons, the original drafter of the bill that became the Act at issue in this case, stated during house debates on the bill and to the press that he believed the bill would apply to and prohibit Mitchell Kaye's web page publication. Kaye Aff. 15.

While the State may have an interest in laws that legitimately secure intellectual property rights, the State may not suppress protected expression under the thin guise of protecting intellectual property. As one court noted, "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." L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 32 (1st Cir.), cert. denied, 483 U.S. 1013 (1987) (refusing to apply Maine trademark anti-dilution statute to enjoin parody using defendant's trademark); see also Stop the Olympic Prison v. U.S.O.C., 489 F. Supp. 1112 (S.D.N.Y. 1980) (federal statute protecting "Olympic" trademark could not constitutionally be used to enjoin use of the trademark in a political protest), cited with approval in San Francisco Arts & Athletics v. U.S.O.C., 483 U.S. 522, 536 n.14 (1987); Hustler Magazine v. Falwell, 485 U.S. 46 (1988) (First Amendment barred common law action against magazine for offensive parody using plaintiff's name and image).Similarly, Georgia may not defend the broad prohibitions of the Act by citing a need to prevent the misuse of official state symbols. A State cannot suppress protected expression through statutes that purport to prohibit the alleged misuse of official state symbols. See, e.g., Spence v. Washington, 418 U.S. 405 (1974) (Washington statute prohibiting certain uses of flag was unconstitutional as applied to student's display of flag upside down with peace symbol affixed to it). See also Texas v. Johnson, 491 U.S. 397 (1989) (Texas statute prohibiting desecration of U.S. flag could not be used to suppress political expression involving flag-burning).

It was precisely Congress' concerns about the interplay of the First Amendment and intellectual property rights that led it to limit expressly the scope of the new Federal Trademark Dilution Act. Congress made clear that the federal Act did not apply to the noncommercial "use" of trademarks, nor to use of such marks in news reporting or commentary, or fair use in comparative advertising. See 15 U.S.C. 1125(c)(4); H.R. No. 104-374 (1995), reprinted in 1995 U.S.C.C.A.N. 1029, 1031 & 1035 (explaining that these exemptions were included to "address[] legitimate First Amendment concerns espoused by the broadcasting industry and the media," and that the section was "designed to preclude the courts from enjoining speech that courts have recognized to be constitutionally protected."). The Act at issue in this case contains no such exemptions, and thus restricts protected expression.

Moreover, assuming the purpose of this vague prohibition is to protect the intellectual property of others, there are already numerous other less restrictive civil and criminal remedies to achieve this end. See, e.g., 15 U.S.C. 1125 (federal remedy for trademark infringement); O.C.G.A. 10-1-450 et seq. (1994) (Georgia remedy for trademark and trade name infringement); O.C.G.A. 10-1-453 (1994) (unauthorized and deceitful use of name or seal); O.C.G.A. 10-1-393 (Supp. 1996) (unfair and deceptive consumer trade practices); O.C.G.A. 10-1-372 (1994) (deceptive trade practices); Jellibeans, Inc. v. Skating Clubs of Georgia, Inc., 716 F.2d 833, 837 & n. 6 (11th Cir. 1983) (common law action for unfair competition). If the purpose of the restriction is to prevent fraud, then the statutory and common law remedies discussed in section I-A-1, supra, are already available for that purpose.

Thus, the Act's broad restriction upon the use of trade names, logos, etc. is not narrowly tailored to serve any compelling state interest, and is an unconstitutional content-based restriction upon protected expression.

B. The Act Is Substantially Overbroad

The Georgia Act is also substantially overbroad, and therefore facially unconstitutional, because it "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); see also Grayned v. City of Rockford, 408 U.S. 104, 114 (1972). In the First Amendment context, the overbreadth doctrine applies to invalidate statutes even where some applications of the statute are valid. See United States v. Salerno, 481 U.S. 739, 745 (1987); National Treasury Employees Union v. United States, 990 F.2d 1271, 1280 (D.C. Cir. 1993) (Randolph, J., concurring) (citing numerous cases), aff'd, 115 S. Ct. 1003 (1995). The rule is "based on an appreciation that the very existence of some broadly written laws has the potential to chill the expression of [persons] not before the court." Forsyth County v. Nationalist Movement, 505 U.S. 123, 129 (1992); see also Secretary of State of Maryland v. Munson, 467 U.S. 947 (1984); Broadrick v. Oklahoma, 413 U.S. 602, 612 (1973).

The Georgia Act is a classic example of a "substantially overbroad" law that was not written with anything like the precision required of statutes regulating speech. As discussed in section I-A, supra, the Act prohibits a wide range of constitutionally protected speech, including the use of pseudonyms and anonymity to avoid social ostracism, to prevent discrimination and harassment, and to protect privacy; and the use of trade names or logos in non-commercial educational speech, news and commentary, and even core political expression. Thus, even if the Georgia Act could constitutionally be applied to 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 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), Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634 (1980), and because it "criminalizes a substantial amount of constitutionally protected speech," City of Houston v. Hill, 482 U.S. 451, 466 (1987).

In addition, the Act's broad sweep has already chilled protected expression -- the very vice the overbreadth doctrine was designed to prevent. Forsyth County, 112 S. Ct. at 2401; Munson, 467 U.S. 947; Broadrick, 413 U.S. at 612. For example, the AIDS Survival Project has placed on hold its plans to publish a web page providing links to Internet resources on HIV and AIDS-related topics for fear of violating the statute. Graham Aff. 11. Similarly, Bonnie Nadri has altered the content of her web page for the same reason. Nadri Aff. 5. It is impossible to determine the extent to which this overbroad criminal statute may have chilled expression by the many thousands of other computer users potentially affected.

C. The Act Is Unconstitutionally Vague

O.C.G.A. 16-9-93.1 is also invalid because it fails to define clearly the conduct it renders criminal. "[T]he void-for- vagueness doctrine requires that a penal statute 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). The policies underlying the vagueness doctrine apply with special force where, as here, the statute at issue restricts constitutionally protected expression:

If the Government is going to intrude upon the sacred ground of the First Amendment and tell its citizens that their exercise of protected speech could land them in jail, the law imposing such a penalty must clearly define the prohibited speech not only for the potential offender but also for the potential enforcer."

ACLU v. Reno, 929 F. Supp. 824, 860 (E.D.Pa. 1996) (Buckwalter, J.) (enjoining enforcement of federal statute prohibiting "indecent" speech over computer networks). There are three basic policies underlying the vagueness doctrine, all of which are violated by the statute at issue in this case: (1) the Act does not give fair notice as to the scope of conduct it proscribes, (2) the Act provides wide leeway for arbitrary enforcement, and (3) the Act infringes upon and has already chilled the exercise of free expression by the plaintiffs. Grayned v. City of Rockford, 408 U.S. at 108-09.

1. The "False Identification" Restriction Fails To Give Adequate Notice of What Conduct is Prohibited

The Act makes it a crime to use names that "falsely identify" their user, but never defines the phrase "falsely identify" and provides no guidance or standards by which the phrase is to be defined. The Act, for example, contains no requirement of specific intent to deceive by the use of a false name, nor any requirement that actual deception be proved. This prohibition therefore fails to meet its constitutionally required burden of allowing "ordinary people [to] understand what conduct is prohibited." Kolender, 461 U.S. at 357.

Specifically, as set forth in section I-A, supra, plaintiffs have no intent to deceive anyone by their anonymous communications, and in fact have many legitimate and important reasons for communicating anonymously. Yet plaintiffs cannot determine whether their anonymous or pseudonymous online communications are prohibited by the Act. E.g., Costner Aff. 15-16; Graham Aff. 8; Kaye Aff. 18; Leebow Aff. 15; Lyle-Wilson Aff. 6; Mirken Aff. 10; Nadri Aff. 10; Nelson Aff. 11; Riley Aff. 8; Steele Aff. 12; Van Pelt Aff. 6; Wallace Aff. 7. Do pseudonyms, screen names and pen names such as those used by the plaintiffs "falsely identify" their users? Does the user of an anonymous remailer or an anonymizer violate the Act because it "falsely identifies" the user? Does the Act require everyone communicating online to use their full legal names (a requirement that is not technically feasible on many networks) or to use names from which their true identities can be ascertained? The Act provides no answers to these questions and is therefore void for vagueness because it fails to give a "person of ordinary intelligence" notice as to the scope of the conduct it prohibits. Grayned, 408 U.S. at 108.

2. The Restriction on the Use Of Trade Names, Logos, etc., Fails To Give Adequate Notice of What Conduct is Prohibited

Similarly, the Act provides no guidance as to the meanings of the terms "use" or "falsely imply" in its restriction on the use of trade names and logos. This distinguishes the Act from other statutory protections for trademarks and similar intellectual property under Georgia or federal law, which expressly limit the definition of "use" to "use" in a commercial context. See, e.g., 15 U.S.C. 1125 (federal trademark infringement); O.C.G.A. 10-1- 440(b) (1994) (defining "use" for purposes of Georgia trademark and trade name infringement); O.C.G.A. 10-1-450 (1994) (Georgia trademark & trade name infringement); O.C.G.A. 10-1-453 (1994) (unauthorized and deceitful use of name or seal). Similarly, these other protections of intellectual property are typically limited to "use" of a mark that creates a substantial likelihood of confusion as to origin of products or services, or that creates a risk of dilution of a famous mark. See, e.g., 15 U.S.C. 1125; O.C.G.A. 10-1-450 (1994). In contrast, the only limitation upon the "use" proscribed by this Georgia statutes is that the "use" must "falsely imply" that permission has been obtained to use the name or symbol.

This limitation provides little if any guidance given the unique "linking" feature of the Web."In statutes that break into relatively new areas, such as this one, the need for definition of terms is greater, because even commonly understood terms may have different connotations or parameters in this new context." Reno, 929 F. Supp. at 865 (Buckwalter, J.) (striking down federal statute restricting "indecent" expression over computer networks). As noted above, at least one commentator has already argued that the mere use of a logo to create a link is sufficient to "falsely imply formal relationship between the sites." Levi, supra, at B12. Many of the plaintiffs in this case "use" trade names or logos in this way in their protected expression, with no intention whatsoever to deceive or mislead anyone. See, e.g., Costner Aff. 12; Leebow Aff. 13; Nadri Aff. 5; Riley Aff. 4&6; Steele Aff. 13; Troyer Aff. 10-11; Wallace Aff. 18-19. Is this alone sufficient to violate the law? The Act provides no answer to this question.

3. The Act's Failure to Define A "Point of Access To Electronic Information" Renders It Impermissibly Vague

Moreover, the Act is vaguer still because it applies not just to communications over computer networks but also to the transmission of "any data . . . over the transmission facilities or through the network facilities of a local telephone network for the purpose of . . . exchanging data with . . . [any] point of access to electronic information." O.C.G.A. 16-9-93.1 (1996) (emphasis supplied). There is no definition of the term "point of access to electronic information," a phrase so vague it could include not just any computer or modem, but also every telephone, fax machine, answering machine, voicemail system, pager, and a whole host of other similar electronic devices that might be connected to telephone network facilities. Does the Act therefore prohibit anonymity and restrict the use of trade names in fax and telephone communications? Does it prohibit anonymity in communications with voicemail, answering machines, and pagers? Again, the Act provides no answer to these questions.

Persons of ordinary intelligence therefore cannot determine from this Act whether their conduct is prohibited, and the statute is impermissibly vague.

4. The Vague Restrictions In The Act Create A Risk of Arbitrary And Discriminatory Enforcement

The Act is void not only because it fails to give potential defendants notice of what conduct is prohibited, but equally importantly because it fails to give that notice to potential enforcers of the law. As Chief Judge Sloviter of the Third Circuit wrote of the void-for-vagueness doctrine,

[T]he bottom line is that the First Amendment should not be interpreted to require us to entrust the protection it affords to the judgment of prosecutors. Prosecutors come and go. Even federal judges are limited to life tenure. The First Amendment remains to give protection to future generations as well.

ACLU v. Reno, 929 F. Supp. at 857. See, e.g., Kolender v. Lawson, 461 U.S. 352, 358 (1983) (striking down California statute that required loiterers to provide "credible and reliable" identification when requested by the police because it "vest[ed] virtually complete discretion in the hands of the police to determine whether the suspect ha[d] satisfied the statute."). See also Smith v. Goguen, 415 U.S. 566, 576 (1974) ("Where inherently vague statutory language permits such selective law enforcement, there is a denial of due process.").

Because the Act fails to provide adequate guidelines for law enforcement officials, it gives local prosecutors and police wide leeway for selective prosecution of speech by individuals and organizations -- like some of the plaintiffs in this case -- who express minority or potentially unpopular social, political, or religious views. See, e.g., Graham Aff. 7-8 (information on AIDS/HIV); Lyle-Wilson Aff. 5-6 (separation of church and state); Wallace Aff. 10-14; (controversial political views); Van Pelt Aff. 3&5 (gay veterans); Kaye Aff. 3-15 (members of minority party in Georgia House of Representatives). This possibility for selective enforcement renders the Act unconstitutional.

5. The Statute's Vagueness Is Particularly Impermissible Because It Chills Protected Expression

Finally, the vagueness doctrine applies with particular rigor in this case because the Act is a regulation of protected expression. "If . . . the law interferes with the right of free speech or association, a more stringent vagueness test should apply." Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982) (footnote omitted); Grayned, 408 U.S. at 109 ("Uncertain meanings inevitably lead citizens to '"steer far wider of the unlawful zone" . . . than if the boundaries of forbidden areas were clearly marked.'"); Goguen, 415 U.S. at 573; Kolender, 461 U.S. at 358. As discussed in section I-B, supra, the Act at issue in this case has indeed "'operate[d] to inhibit the exercise of [plaintiffs' First Amendment] freedoms,'" Grayned, 408 U.S. at 109, by deterring valuable and protected expression from the online medium. E.g., Nadri Aff. 5; Graham Aff. 11. For all these reasons, the Act's restrictions are impermissibly vague and unconstitutional.

D. The Act Violates the Commerce Clause of the United States Constitution

Finally, the Act violates the Commerce Clause of the United States Constitution (U.S. Const, Art. I, 8, cl. 3)The Supreme Court has long recognized that the commerce clause encompasses an implicit or "dormant" limitation on the authority of the States to enact legislation affecting interstate commerce. Healy, 491 U.S. at 326 n.1; Hughes v. Oklahoma, 441 U.S. 322, 326 and n. 2 (1979). because the Act restricts online communications occurring entirely outside the State of Georgia. See Healy v. Beer Institute, 491 U.S. 324, 336 (1989) (reaffirming that the "'Commerce Clause . . . precludes the application of a state statute to commerce that takes place wholly outside of the State's borders'") (quoting Edgar v. MITE Corp., 457 U.S. 624, 642-43 (1982)).

1. The Act Regulates Commerce Occurring Wholly Outside the Borders of the State of Georgia

The Georgia Act's venue provision authorizes prosecutions in any Georgia county "from which, to which, or through which any use of a computer or computer network was made." O.C.G.A. 16-9-94(4) (1996). Viewed in context, this means the Act's restrictions extend to a wide range of communications that occur entirely outside this State.

First, the Act restricts virtually all online communications that take place around the world in public discussion groups and chat rooms on the Internet, commercial online services and many BBSs, because public messages posted to these public fora from anywhere in the world can be accessed by users in Georgia. Steele Aff. 26. If, for example, a member of plaintiff EFF in California posts a message to an Internet discussion group using a pseudonym, that message may be accessed and read by a reader in Georgia. The posting of this message in California, therefore, may subject the California author to prosecution in Georgia under the Act. Moreover, online technology provides no means for the poster to determine whether anyone from Georgia will actually read his message. Thus, to avoid the risk of prosecution, the author of the message must refrain from using a pseudonym when he posts to the discussion group -- regardless of whether anyone in Georgia ever actually reads any of his messages.

Second, the Act affects direct communications between persons entirely outside of Georgia. That is because any message sent over the Internet can travel any number of different paths to get to its destination. The sender of a message cannot control the route it takes, and any message sent over the Internet may pass through the wires of some county in Georgia. Steele Aff. 17. For example, if plaintiff Jonathan Wallace, who resides in New York, uses his pseudonym to send an e-mail message to a California resident, his message could travel through the state of Georgia and place him at risk of prosecution under the Act. Thus, a nonresident user like plaintiff Wallace cannot use a pseudonym in any online messages sent over the Internet without exposing himself to a risk of prosecution under the Act -- even if his messages are sent to other nonresidents of Georgia.

Third, the Act affects the ability of any online user, regardless of whether they reside in Georgia, to access the World Wide Web anonymously. It is, for all practical purposes, impossible to determine with specificity the geographic location of the vast majority of sites on the World Wide Web. Every web site is identified only by an address: e.g., the Safer Sex Page is located at http://www.safersex.org; EFF's web site is located at http://www.eff.org; one of plaintiff Riley's web sites is located at http://www.worship.com; and plaintiff EFGA's web site is located at http://www.efga.org. Nothing in these addresses reveals the geographic location of the sites, two of which are maintained in Georgia and two of which are maintained outside this state. Troyer Aff. 1; Steele Aff. 2-4; Riley Aff. 2&4A; Costner Aff. 8. Thus, if a member of EFF who resides in California accesses any web site like these anonymously, he places himself at risk of prosecution under the Act if the web site he accesses turns out to be located in Georgia. To avoid the risk, he must refrain from anonymous access to any web page on the World Wide Web, regardless of whether any web site he actually visits is located in Georgia.

Finally, the Act affects the ability of any online user to publish a web page on the Web, regardless of whether the web site he publishes is located in Georgia. There is no way for a web publisher to prevent Internet users from Georgia from accessing web sites published on the Internet. Thus, any web publisher anywhere in the world -- including all of the nonresident web publishers who are plaintiffs in this case -- must comply with the restrictions imposed by the Georgia statute, or risk prosecution under the Act.

2. The Act Is Therefore Per Se Invalid as a Direct Regulation of Interstate Commerce

Where, like the Georgia Act, a state statute directly regulates interstate commerce, the Supreme Court has generally "struck down the statute without further inquiry." Brown- Forman Distiller's Corp. v. New York State Liquor Auth., 476 U.S. 573, 579 (1986); see also Healy, 491 U.S. at 336; Edgar v. MITE Corp., 457 U.S. 624, 643 (1982); Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 521 (1935). That is the appropriate result in this case, because the statute's broad venue provision makes clear that it applies even to interstate communications that simply pass through Georgia, and the law has the practical effect of regulating a substantial amount of activity occurring entirely outside the State.

3. Alternatively, The Act Is Invalid Because the Burdens It Imposes Upon Interstate Commerce Exceed Any Local Benefit

Even if the statute were not a per se violation of the Commerce Clause, however, the law would still be an invalid state regulation because the burdens it imposes upon interstate commerce clearly exceed any local benefits. Brown-Forman, 476 U.S. at 579; Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). As set forth above, the Georgia Act affects a wide range of out-of-state and protected communications which Georgia clearly has no legitimate interest in regulating. Moreover, the Act's restrictions create a risk of inconsistent state regulations. If each of the fifty states imposed its own different regulations on the use of trade names, logos, etc. over computer networks, every web site operator would be subject to conflicting standards because a web site is accessible from any state in the nation. CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 88 (1987); Healy, 491 U.S. at 339-40. The practical effect of the combination of fifty different conflicting state laws regulating the Internet would "create just the kind of competing and interlocking local economic regulation that the Commerce Clause was meant to preclude." Healy, 491 U.S. at 337.

Arguably, therefore, the dormant Commerce Clause precludes the entire field of online communications from state regulation because "lack of national uniformity would impede the flow of interstate goods." Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 128 (1978); Wabash St. L & P. Ry. Co. v. Illinois, 118 U.S. 557 (1886) (railroad rates exempt from state regulation); Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945) (length of train cars exempt from state regulation). In any case, Georgia's attempt to regulate this interstate (and international) telecommunications system is an invalid exercise of State power.

II. A SUBSTANTIAL THREAT OF IRREPARABLE INJURY EXISTS IF THE INJUNCTION IS NOT GRANTED

Plaintiffs have no adequate remedy at law for the Act's deprivation of their due process rights and rights of free expression, association and privacy. As the Supreme Court has stated, "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976) (affirming order directing district court to enter preliminary injunctive relief where "First Amendment interests were either threatened or in fact being impaired at the time relief was sought"). See also Reno, 929 F.Supp. at 851 ("Subjecting speakers to criminal penalties for speech that is constitutionally protected in itself raises the spectre of irreparable harm.").

As set forth above, plaintiffs all use the online medium to transmit data using pseudonyms or using trade names or logos in ways that fall within the vague and overbroad sweep of the Act. The Act's passage has already led some of the plaintiffs to self- censor their speech, and forces all plaintiffs to place themselves in jeopardy of criminal prosecution as the price of exercising their constitutional rights. Thus, the statute "unquestionably constitutes irreparable injury" under the controlling law. E.g., Elrod, 427 U.S. at 373. III. THE BALANCE OF HARDSHIPS WEIGHS IN PLAINTIFFS' FAVOR

If the Act is not enjoined, plaintiffs, their members, and other online users will be forced to choose between censoring their own protected expression over computer networks or placing themselves at the risk of arbitrary and discriminatory enforcement of this vague law according to the whim of local prosecutors, police and other enforcement authorities. The protected speech at issue includes material with substantial educational, political, medical, artistic and social value. Some of the speech that has already been self-censored -- the information that plaintiff AIDS Survival Project intended to publish on its planned web page -- could literally save the lives of those who are or may be affected by this disease. By contrast, defendants could suffer no injury as a result of an injunction barring enforcement of this unconstitutional law.

IV. A PRELIMINARY INJUNCTION WOULD PROMOTE THE PUBLIC INTEREST

Finally, for all the reasons set forth above, the entry of a preliminary injunction would promote, not disserve, the public interest. As the court observed in Reno, "[n]o 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." 929 F. Supp. at 851 (Sloviter, Chief Circuit Judge); see Turner Broadcasting System v. FCC, 114 S.Ct. 2445, 2458 (1994).

CONCLUSION

For the foregoing reasons plaintiffs urge the Court to grant their Motion for Preliminary Injunction.

This ______ day of September, 1996.

_________________________

J. Scott McClain
Georgia Bar No. 482725
BONDURANT, MIXSON & ELMORE, LLP
39th Floor, One Atlantic Center
1201 West Peachtree Street, N.W.
Atlanta, Georgia 30309
(404) 881-4100

Gerald R. Weber
Georgia Bar No. 744878
AMERICAN CIVIL LIBERTIES
FOUNDATION OF GEORGIA
142 Mitchell Street, S.W.,
Suite 301
Atlanta, Georgia 30303
(404) 523-6201

_________________________

Ann Beeson
Christopher A. Hansen
Steven R. Shapiro
AMERICAN CIVIL LIBERTIES UNION
132 West 43rd Street
New York, New York 10036
(212) 944-9800