Kaye Affidavit







Plaintiffs, ) CIVIL ACTION


vs. )

) FILE NO. _______

ZELL MILLER, in his official )

capacity as Governor of the )

State of Georgia, et al. )


Defendants. )


County of Fulton )

State of Georgia )

1. My name is Mitchell Kaye. The facts set forth in this declaration are based upon my personal knowledge.

2. I currently serve as a Representative to the Georgia House of Representatives, representing the 37th District, in Cobb County Georgia. I was originally elected to this office in 1992. I am a member of the Republican Party.

3. I am also a member of the Conservative Policy Caucus. The Conservative Policy Caucus was organized in mid-1993, primarily by first-term conservative Republican members of the Georgia House of Representatives. The purpose of the Conservative Policy Caucus is to provide an association through which conservative Georgia legislators can actively promote policies through the legislative and political process, emphasizing fiscal responsibility, minimum government interference, traditional values, individual freedoms, high standards of ethical conduct, and utmost respect for the taxpayers of Georgia.

4. As a part of my activities in the Conservative Policy Caucus, I have been actively involved in the creation and publication of a web site on the Internet that provides extensive information to the general public on the activities of the Georgia House of Representatives. This web site can be accessed at http://www.gahouse.com/. This web site was originally created and placed on the Internet in December 1995.

5. The primary purpose of the web site is to provide information to the public about the activities of the Georgia House of Representatives, in the interest of open honest government. The Conservative Policy Caucus believes that the more the public is informed about government and the activities and voting records of their elected officials, the better and more responsive government will be. Thus, the web site currently publishes the voting records of all members of the Georgia House of Representatives on legislation acted upon by the legislature during approximately the first half of 1996 legislative session, and on key pieces of legislation considered during the 1995 session. We intend to continue providing voting record information in future legislative sessions. The web site also explains how members of the public can obtain audiotapes of floor debates in the House of Representatives, and provides links to the full text of all pending legislation and information on the status of bills under consideration during the session, which is published separately on the Internet by the Georgia Net Authority and other groups.

6. In addition, the web site publishes information to assist members of the public in contacting their elected representatives. The site publishes the names, addresses, telephone numbers, fax numbers, and e-mail addresses of all House members for whom this information is available. For Representatives with e-mail addresses, the site allows a viewer to send an e-mail directly to the Representative automatically simply by selecting a link on the web site and typing a message. For those Representatives who do not have e-mail addresses, the web site provides Internet users with the option of sending an e-mail to the Member in care of "webmaster@gahouse.com" and explains that e-mail sent to this address will be printed and hand delivered to the Member for whom it is intended.

7. In addition to voting records and information on pending legislation, the web site publishes information on a wide variety of related political and "good government" topics. The site provides a link to the entire Georgia Constitution on the Internet. It provides information on state audits, the size of the state debt, and the amount of additional debt being assumed by the state during the 1995-96 fiscal year. The site also includes several "Action Alerts," which include summaries and links to the full text of selected bills that have been stalled in committee, and tells interested members of the public how they can contact key committee members to urge action on the bills. The site also includes explanations of how members of the public can obtain refunds for certain sales tax payments, and publishes other information on tax-related subjects, including a recent Supreme Court decision invalidating an intangible tax similar to that enacted in Georgia.

8. The web site also provides a forum for political editorializing and commentary on issues of public interest. For example, one web page in the site publicizes and criticizes the passage of House Bill 1630, the internet speech restriction law currently codified O.C.G.A. 16-9-93.1, that is the subject of this lawsuit. I personally have authored most of the editorial material currently published on the web site, with input from other members of the Caucus. In addition, I have invited all legislators to contribute material for the site, regardless of their party affiliation or political viewpoint.

9. Finally, the web site provides a collection of links to other Internet sites on related political and governmental topics. Among other things, the web site provides links to a number of federal legislative information resources, links to a web site that provides the full text of historical and political documents, and links to the web pages of various political organizations (including both the Republican and Democratic parties, various liberal and conservative political action groups and associations, and the national Libertarian party site).

10. As of August 31, 1996, the Conservative Policy Caucus web page disseminating information about the Georgia House of Representatives had received over 200,000 "hits," which refers to the number of files accessed by users over the Internet. Users from more than 18 different countries have accessed the site. The web page invites comments and feedback from those who access it, and we have received extensive positive feedback from the public.

11. This web site prominently displays the seal of the State of Georgia at the top of the page, and below that identifies the page as "Information on the Georgia House of Representatives." Immediately below that, the page states that the information is "being disseminated by the Conservative Policy Caucus." The words "Conservative Policy Caucus" are in large bold letters, and are further emphasized by blinking on and off while the page is being viewed through a web browser. At the end of the page, the page states:

This WWW site is created and maintained by members of the Georgia House of Representatives who form a part of the Conservative Policy Caucus. Also helpful was our old friend Publius. The information or opinions expressed herein or at any of the sites linked from this location do not reflect official policy of the Georgia House of Representatives or of any individual members thereof.

The page also includes a link to a description of the Conservative Policy Caucus, including the complete mission statement of the group. Similar disclaimers have been included on the page since its inception in December 1995.

12. Notwithstanding these disclaimers, this web site has been the subject of considerable controversy since we originally created it, and other members of the House of Representatives have engaged in a series of efforts to shut the page down. They have claimed that the site creates a false impression that it is an "official" publication of the Georgia House of Representatives. There is in fact an "official" web page of the House of Representatives, which can be accessed at http://www.state.ga.us/House/. This "official" page, however, is almost devoid of content. It includes little more than photos of House members and their office addresses and telephone numbers. It provides no information on pending legislation, no links to other sources of this information, no links to other government resources or databases, and none of the other public interest material the Conservative Policy Caucus disseminates through its web page.

13. Among other efforts to suppress the web site, House Speaker Thomas Murphy threatened to sue me personally in February 1996 if I did not remove the site as it currently existed from the Internet. His objection, according to his statements reported in the press at the time, was that my use of the state seal on this web page created the false impression that this was an "official" web page of the House of Representatives, which it was not. In response, I sent an open letter to him and other members of the Democratic leadership of the House offering to remove this web site if the House would itself publish the voting records of its members and other similar legislative information free of charge to the public through the Internet. A copy of the letter I sent has been posted on the Internet and can be accessed at http://www.gahouse.com/docs/whatsnew/murphy.htm. The House leadership did not respond to this letter.

14. Shortly thereafter, several members of the Democratic leadership of the Georgia House of Representatives, including Speaker Thomas Murphy, sponsored the introduction of House Bill 1609, which would have amended O.C.G.A. 50-3-32 to make it a misdemeanor for a Representative to use the official seal of the state of Georgia in campaign material or "any attempt to influence the public with respect to political issues." Campaign material was specifically defined in the bill to include material in "electronic form." Speaker Murphy's statements reported in the press at the time indicate that this bill was introduced specifically in response to and in an effort to suppress the web page published by the Conservative Policy Caucus. See Lawmakers target Kaye's Web Site, Marietta Daily Journal, p. 1, (Feb. 8, 1996). This bill was never enacted. A complete copy of House Bill 1609 with a summary of its legislative history can be accessed at http://www.ganet.state.ga.us/incoming/hb1609.htm.

15. Shortly after the introduction of House Bill 1609, Representative Don Parsons introduced House Bill 1630, which was eventually enacted into law and is the statute at issue in this litigation. Representative Parsons, the author of House Bill 1630, stated at the time that the prohibitions of this bill would apply to our web page and would therefore criminalize our political expression and dissemination of public information through this medium. See Lawmakers target Kaye's Web Site, Marietta Daily Journal, p. 1, (Feb. 8, 1996). He made similar statements during floor debates on the bill. An actual audio copy of these statements can be listened to over the Internet from our web page at the URL address http://www.gahouse.com/docs/audio/1630a.ram, using Real Audio software, a program that is also available for free over the Internet. This bill was signed by the Governor on April 18, 1996, and enacted into law as Act No. 1029, Ga. Laws 1996, p. 1505, now codified at O.C.G.A. 16-9-93.1.

16. I have never intended to deceive anyone into believing that our web page was an official publication of the Georgia House of Representatives. My purpose has always been to publish truthful information of public interest about the activities of the Georgia legislature and related matters, and to provide a forum for the publication of political speech and commentary on the Internet. The web page has always included clear, specific disclaimers that it was a publication of the Conservative Policy Caucus, and that the information and opinions expressed on the page did not reflect the official policy of the Georgia House of Representatives or any individual members of that body. Despite these disclaimers, publishers of other web pages on the Internet (over which we have no control) have occasionally mistakenly identified our page as the official Georgia House of Representatives page and provided links to our page as a public service. Whenever I have learned of mistakes like these, I have tried to contact the person linking to our page and tried to correct the error. In addition, I have made changes to the page to make it clearer that the page was not an official publication of the Georgia House of Representatives. For example, the page was originally titled "Georgia House of Representatives," and I have changed this title to "Information on the Georgia House of Representatives."

17. Nonetheless, I continue to prominently display the state seal on this web page, and to use this and other symbols (such as the flag of the United States) and the name of the Georgia House of Representatives and other organizations on my page. I have no idea whether my use of these symbols and names falsely implies that I have obtained permission to use them despite my disclaimers, but in light of previous efforts to force me to stop publishing this information over the Internet I am fearful that an official who wanted to suppress my political speech and the public interest information the Conservative Policy Caucus disseminates through this web page might try to prosecute me under the newly enacted O.C.G.A. 16-9-93.1, especially in view of the fact that my page has always included clear disclaimers and yet the author of the bill himself has stated publicly that he thinks this law would apply to my page. My concerns are heightened by the fact that members of the Democratic leadership of the House of Representatives have gone to such lengths to suppress my efforts to publish this information about their activities.

18. In addition, as an expression of protest against this statute, I occasionally use the e-mail address "publius@gahouse.com" for online communications and expression. I use this pseudonym "Publius" to draw attention to efforts of the State of Georgia to suppress free speech over computer networks using assumed names or pseudonyms by contrasting these efforts to suppress speech with the long tradition in the United States that has encouraged and protected this sort of expression under pen names and pseudonyms in, for example, the Federalist Papers published during the original constitutional debates. I have no idea whether my use of the pseudonym "Publius" for online communications "falsely identifies" me as that term is used in O.C.G.A. 16-9-93.1, and therefore I have no idea whether this statute could be used to prosecute me for engaging in this political commentary and protest using this assumed name and therefore I am concerned that my use of this pseudonym for these purposes subjects me to the risk of prosecution under the statute for what I believe is constitutionally protected expression. Nonetheless, I desire to continue using this pseudonym for political expression, protest and commentary on these issues because I believe I have a constitutional right to do so. I do not, however, want to violate a valid law and that is why I have brought this lawsuit to seek the guidance of the Court as to the constitutionality of the law.

I, Mitchell Kaye, declare under penalty of perjury that the foregoing is true and correct.

Executed this ______ day of ____________, 1996.