Update (September 5, 2014): The court denied our motion for leave to file an amicus brief.
It’s election season across the country, and candidates and their supporters are angling for attention in races big and small. Political speech is particularly important in a democracy, and EFF recently weighed in on an important case that demonstrates how over-broad anti-impersonation laws can wrongfully silence vigorous online debate and discussion.
In this case, EFF wrote an amicus brief in support of Chris Korpi, who was sued by Julie Collier after Korpi registered the domain name www.juliecollier.com. Korpi and Collier were on opposites sides of a political debate over a California local school board election. Collier sued, alleging that Korpi registered the domain name because he believed Collier was going to run for school board, and after she decided not to run he directed the domain to the site of candidates he—but not Collier—supported. Collier further claimed she was being criminally impersonated and that Korpi intended to confuse website visitors.
Korpi moved to strike the lawsuit using the California anti-SLAPP statute. SLAPP stands for “strategic lawsuits against public participation,” and anti-SLAPP laws were passed to shut down lawsuits that are aimed at silencing criticism and other constitutionally protected free speech. Under the anti-SLAPP law, if Korpi could prove that he was being sued because he exercised his First Amendment rights with respect to a public issue, Collier would then have to prove that her claims had some minimal merit before the suit could continue.
The trial judge, however, found that Korpi had not exercised his First Amendment rights because he did not comment on any of the candidate’s qualifications. Korpi appealed the denial of his SLAPP motion, and that’s when EFF decided to weigh in, because of the important speech issues at stake.
Our amicus brief points out that the act of registering and directing a domain name is pure speech. By registering and directing the domains, Korpi claims he was saying “Hey Julie Collier supporters! Consider these candidates instead!” In contrast, Collier alleges Korpi’s message was “Julie Collier supports these candidates.” Either way, Korpi was communicating a political message. In an offline context, everyone would immediately recognize Korpi’s actions as an exercise of First Amendment rights.
EFF also argued in its brief that the state’s e-impersonation statutes are unconstitutional because they are vague, overbroad and content-based restrictions on speech that fail to meet strict scrutiny. They don’t even require that anyone have suffered any significant harm because of the impersonation. Of course, there are many important and valid uses of impersonation, and many of these uses require that the audience be at least temporarily deceived as to the speaker’s identity.
A hearing date has not yet been set, but we hope that the appeals court understands the important First Amendment issues raised in this case.