Georgia Internet Regulation: ACLU Embraces Dormant Commerce Clause
 

Declan McCullagh*

Georgia's speaker of the house leans back in his chair and chews on a cigar in an office studded with stuffed rabbits and bobcats. The 72-year old Democrat championed a state law that bans anonymous communications on the Internet and some forms of unauthorized web linking, legislation that he now declines to discuss. "I can't tell you anything about it because I don't know anything about it or computers or the Internet or anything like that," he said.

Across town, a Federal judge is hearing testimony in a lawsuit challenging the law. The ACLU filed the suit--the first-ever challenge to a state Net-censorship statute--last September on behalf of 14 plaintiffs, arguing that the statute is unconstitutional. It is so broadly written, the ACLU claims, that abbreviated America Online screen names could be considered illegal. The law also criminalizes the "unauthorized" use of company names online.

The January 31, 1996, hearing was designed to educate U.S. District Court Judge Marvin Shoob about the Net, in much the same way that lawyers educated a three-judge panel that struck down the Communications Decency Act in Philadelphia in June 1996. It began with a Georgia Tech professor who painstakingly demonstrated how the Internet works. "This pointing device in the middle of the screen is the cursor," he said.

The lawsuit is one of many that will shape the future of free expression in cyberspace--and new media. More than 20 states already have launched various offensives against the Net. The ACLU's strategy is to attack these statutes one-by-one, cementing a foundation of legal precedents that will build on one another, brick by statutory brick, and solidify into a framework for speech on the Internet.

Depending on how Judge Shoob rules, anonymity online could be protected--at least in one federal district. In a move that could derail congressional attempts to rehabilitate the CDA with a new legal standard if the high court strikes it down, the ACLU assailed a New York State law banning sexual images that are "harmful to minors." The organization also is planning to sue in Virginia, Florida and California, highlighting a different legal point in each case.

True, the decisions won't be binding on other courts--unlike, say, a U.S. Supreme Court ruling--but in such a new area of the law, judges will grasp at even district court precedents. "You can't underestimate the importance," said ACLU attorney Chris Hansen. "The law works through precedent. Each case builds on the one before it."

Key to the strategy is the argument that states can't regulate speech on the Internet at all. It's a nuclear bomb of a legal theory, which relies on the Constitution's commerce clause and on Supreme Court cases that bar states from controlling "commerce that takes place wholly outside of the state's borders." The coalition's brief offers Usenet newsgroups as an example: "The posting of this message in California, therefore, may subject the California author to prosecution in Georgia under the Act."

The state countered that local standards should always apply. Daniel Formby, Georgia's deputy attorney general, said: "You do not have to enter a state to violate its laws."

Free-speech victories in states such as Georgia would permit netizens to bypass the strict controls on television and radio that ban the transmission of "indecent" words or images. When the Internet starts carrying movies and soaps, the stronger free-speech standards of cyberspace will extend to those broadcasts. "We gain stronger First Amendment rights for other media when they converge, as the Internet absorbs other technologies," said ACLU attorney Ann Beeson.

Sitting quietly in the rear of the Atlanta courtroom throughout the hearing was State Rep. Don Parsons, who with the Democratic leadership introduced the Georgia law last spring. Parsons insists the ACLU's challenge is wrongheaded. Does the law ban anonymous speech? "Certainly not! Absolutely not!" he claimed. So what was the purpose behind the law? To prevent fraud, said Parsons.

But that's not what I found. The genesis of the bizarre Georgia law lies not in policies as much as in rank statehouse politics. I went looking for Speaker Tom Murphy and found him in his office, conveniently adjacent to the House floor Democrats have ruled for decades. He readily admits that he doesn't know much about cyberspace.

But he knows politics, and his enemies, especially Rep. Mitchell Kaye, a fellow who fancies himself the Newt Gingrich of the Georgia legislature. Like Gingrich, Kaye is a technocratic Republican hailing from bluenose Cobb County, and like pre-1994 Gingrich, he sees himself as waging guerrilla warfare against a corrupt and entrenched Democratic majority. The majority leadership is equally uncomplimentary. "None of us likes Mr.

Kaye. . . . No manners towards anyone. He tries to cause all the confusion he can," Speaker Murphy grumbled.

Indeed, the whole statutory mess began shortly after Kaye created his own web site, http://www.gahouse.com, which he uses to post legislation, contact information and partisan pages for his conservative caucus. It proved popular, drawing thousands of visitors a week--and the wrath of lawmakers such as Speaker Murphy. It was Kaye's use of the state seal on his site--even with appropriate disclaimers--that handed Democrats a way to muzzle him through the law the ACLU has challenged.

The irony is, of course, that the Georgia Democrats never intended to ban all anonymous and pseudonymous discussions. They never believed they'd be attacked in court by a team of New York City lawyers. But by punishing anyone who "uses any individual name . . . to falsely identify the person"--even without intent to deceive--their law censors not just Mitchell Kaye, but netizens as well.

"The last thing they want is sunshine on this case," said the upstart Republican, who joined the suit as one of the plaintiffs. "They pass a lot of unconstitutional legislation around here."

* Declan McCullagh writes the "Afterword" column for The Netly News. He may be reached at declan@well.com. A version of this article originally appeared in Time Inc.'s The Netly News, at http://netlynews.com/. Copyright (c) 1997 by Time Inc./The Netly News Network.

   

2001 The Federalist Society