---------- Forwarded message ---------- Date: Fri, 31 Jan 1997 08:33:44 -0800 (PST) From: Declan McCullagh <declan@well.com> To: fight-censorship@vorlon.mit.edu Subject: Georgia court hears testimony, future of free speech, from TNNN The Netly News Network http://netlynews.com/ Brick By Brick by Declan McCullagh (declan@well.com) January 31, 1997 ATLANTA, Ga.-- A federal judge heard testimony yesterday in a landmark case challenging a Georgia law that forbids anonymity online. The ACLU filed the lawsuit -- the first-ever challenge to a state Net-censorship statute -- last September on behalf of 14 plaintiffs, arguing that the statute is unconstitutional. The law also criminalizes the "unauthorized" use of company names online. It is so broadly written, the ACLU claims, that America Online screen names could be considered illegal. Yesterday's 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. The Georgia challenge seems straightforward, but in truth is a key part of the ACLU's strategy to cement a foundation of legal precedents that will build on one another, brick by statutory brick, and solidify into a framework for free speech on the Internet. The most fierce battlefield, however, will be in state capitols and courtrooms like these. More than 20 states already have launched various offensives against the Net, but the ACLU is choosing its battles carefully. Depending on how Judge Shoob rules, near-perfect anonymous speech may, for the first time in history, be completely legal -- at least in one federal district. In a move that could derail congressional attempts to rehabilitate the CDA 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 yesterday: "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 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 Georgia's Speaker of the House and found him in his office. He leaned back in his chair and chewed on a cigar. A 72-year old Democrat, Thomas Murphy has reigned over the state House of Representatives for 24 years from an office studded with stuffed rabbits and bobcats and conveniently adjacent to the House floor. Yesterday, he declined to discuss the measure. "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. 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. Dem leaders are 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, www.gahouse.com, which he uses to post legislation, contact information and some partisan pages for his conservative caucus. It proved popular, drawing thousands of visitors a week -- and the wrath of lawmakers such as Speaker Murphy, longtime veterans of traditional machine politics. 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." ###