From: Declan McCullagh <declan@well.com>
Date: Fri, 31 Jan 1997 08:41:39 -0800 (PST)
To: cypherpunks@toad.com
Subject: Georgia court hears testimony in anonymity case, from TNNN
Message-ID: <Pine.GSO.3.95.970131084041.23219L-100000@well.com>
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---------- 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."
   
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