Environmentalists Who Spoofed Koch Industries Did Not Break Law, Should Not Be Identified, Public Citizen Tells Court

A group of anonymous environmentalists who participated in an
elaborate prank to highlight Koch Industries' controversial role in
bankrolling climate change denial did not infringe on Koch's trademark
and should not be identified, Public Citizen lawyers argued in papers
filed late Wednesday in federal district court in Salt Lake City.

Koch's lawsuit against the anonymous activists does not justify
unmasking their identities, Public Citizen said, and doing so would have
a chilling effect on free speech.

The anonymous members of Youth for Climate Truth issued a satirical
press release on Dec. 10, posing as leading industrial company Koch
Industries and announcing that the company had reversed its position on
climate change. The press release announced that Koch would withdraw
funding from groups "whose positions on climate change could jeopardize
America's continued global competitiveness in the energy and chemical
sectors and Koch Industries' ability to provide high-quality products
and services to the American people." The press release was also posted
on a spoof website (www.koch-inc.com) designed to look like Koch's (www.kochind.com).

That position contradicts Koch's very public position on climate
change policy. Koch Industries - which produces, transports and trades
oil, coal and chemicals - has spent millions of dollars funding
politicians, think tanks, foundations and political groups that have
sought to either make the public doubt climate change or oppose climate
change legislation directly. Koch has often been described as one of the
country's largest polluters.

The spoof Koch website was live only for a few hours, and not a
single reporter was fooled by the joke. Given the company's outspoken
views on climate change, reporters covering the press release
immediately recognized that the company's purported change in position
was a hoax. The New York Times accurately described the site as a
"spoof" and The Hill recognized it as "phony."

Koch, however, was not amused. The company complained to the
website's host, Utah-based Bluehost.com, and the site was taken offline
within hours of the issuance of the press release. Then, 18 days later,
Koch filed a lawsuit in U.S. District Court for the District of Utah in
Salt Lake City against the anonymous authors of the press release,
alleging that they were guilty of trademark infringement,
cybersquatting, unfair competition and violating the Computer Fraud and
Abuse Act, a criminal statute that penalizes those who hack into
protected governmental and private computer systems. The company sought
to identify the activists by sending subpoenas to Bluehost and
FastDomain, which registered the spoof website. The bulk of Koch's
allegations apply only to commercial speech or activity, which this was
not, Public Citizen's brief said.

"Although this case arises out of a harmless prank, it raises
serious constitutional issues," said Deepak Gupta, one of the Public
Citizen attorneys defending the activists. "The First Amendment protects
the right to engage in anonymous speech, especially political speech.
Koch should not be able to unmask its political critics just because it
can hire lawyers and file a lawsuit. The court should put a stop to
Koch's intimidation tactics."

Public Citizen's papers ask the court to quash the subpoenas, forbid
any use or disclosure of information that would identify the speakers
and dismiss the lawsuit.

To read the documents filed Wednesday, please visit https://www.citizen.org/documents/Koch_v_Does_Memo_Support_Motion_Quash.pdf and https://www.citizen.org/documents/Koch_v_Does_Motion_to_Quash_Subpoenas.pdf.

For more information about Public Citizen's work to protect First Amendment rights on the Internet, go to https://www.citizen.org/Page.aspx?pid=388.