IN THE COURT OF APPEALS OF THE STATE OF GEORGIA
Docket No.: A14A0014
Lower Court No.: SU13DM409
MATTHEW CHAN, Appellant
-against-
LINDA ELLIS, Appellee
.
REPLY BRIEF OF APPELLANT MATTHEW CHAN
.
Respectfully Submitted,
Oscar Michelen
(Courtesy Admission)
NY State Bar No.: 2058477
CUOMO LLC
9 East 38th Street
New York, NY 10016
William J. McKenney
GA State Bar No.: 494725
MCKENNEY & FROEHLICH
50 Polk Street NW
Marietta, GA 30064
.
TABLE OF CONTENTS
Table of Citations ……………………………………………………….… ii
I. Preliminary Statement ………………………………………………….. 1
II. Reply Argument and Citation of Authorities ……………………..…… 5
A. THE CONDUCT COMPLAINED OF CANNOT CONSTITUTE STALKING AS A MATTER OF LAW UNDER OCGA §16-5-90(a)(1) ………………………………………………… 4
B. THE PETITION’S REFERENCE TO OCGA §16-5-94 DID NOT PROVIDE NOTICE THAT OCGA §16-5-90(a)(2) WAS AT ISSUE ……………………………………………..……….. 7
C. APPELLEE DOES NOT CONTEST THAT IT WAS ERROR FOR THE COURT TO ADMIT AN EX-PARTE AFFIDAVIT INTO EVIDENCE ………………………………………………… 8
D. THE ORDER’S BROAD RESTRICTIONS CANNOT SURVIVE STRICT SCRUTINY OR THE COMMUNICATIONS DECENCY ACT OF 1996 ……………………………..… 10
a. APPELLEE ADMITS THE UNDERLYING ORDER IS A CONTENT-BASED SPEECH RESTRICTION .………………………………………………………….. 10
b. APPELLEE ARGUES THE ORDER IS “NARROWLY TAILORED” DESPITE ITS BROAD SCOPE………………………………………………………………………….… 11
c. APPELLEE CITES THE POSTING OF PUBLIC INFORMATION AS VIOLATING THE COMMUNICATIONS DECENCY ACT OF 1996 ………………………………………………… 12
IV. Conclusion …………………………………………………………….. 15
TABLE OF CITATIONS
Cases
Bartnicki v. Vopper, 532 U.S. 514 (2001) ……………………………………………………….10
Batzel v. Smith,333 F.3d1018(9th Cir. 2003) ………………………………………………..14
Ben Ezra, Weinstein, & Co. v. America Online Inc., 206 F.3d 980, 985?86 (10th Cir.2000) ……………………………………………………………………………………………….15
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 494–96, (1975) ………………………..14
Culver v. State, 314 Ga.App. 492 (2012) ……………………………………………………….10
Daker v. Williams, 279 Ga. 782 (2005) ……………………………………………………………6
Estate of Love, 274Ga.App. 316, 318(2005) ………………………………………………….9
Fair Housing Council of San Fernando Valley v. Roomates.com, 521 F.3d 1157 (9th Cir. 2008) ……………………………………………………………12
Fletcher v. State,199 Ga.App. 756(1991) …………………………………………………….10
Ford v. Ford, 270Ga. 314,315(1998) …………………………………………………………….7
FTC v. Accusearch, Inc. 570 F.3d1187(10th Cir. 2009) …………………………………….12
Green v. America Online,318 F.3d 465, 470?71 (3d Cir.2003) …………………………..14
Griffin v. State, 123 Ga.App. 820 (1971) ………………………………………………………10
Johnson v. State 264 Ga. 590, 591?592 (1994) …………………………………………………5
Jones v. Dirty World Entertainment Recordings, LLC. 840 F. Supp 2d 1008 (ED Ky. 2012) …………………………………………………………12
Jones v. State,310 Ga. App. 705(2011) …………………………………………………………..5
Lanthripp v. Lang, 103Ga. App. 602(1961) …………………………………………………….9
Marks v. State,306 Ga. App.824 (2010) …………………………………………………………5
Owen v. Watts,307Ga. App. 493(2010) ………………………………………………………..5
Puckett v. U.S.,556 U.S. 129,135 (2009) ………………………………………………………10
Schenk v. United States,249 U.S. 47(1919) …………………………………………………..10
United States v. Playboy Entm’t Group, 529 U.S. 803,813 (2000)…………………….10
Zeran v. America Online, 129 F.3d 327, 328?29 (4thCir.1997)…………………………15
Statutes
OCGA §16?5?90 …………………………………………………………………………………………..5
OCGA §16?5?94 …………………………………………………………………………………………..8
OCGA §16?5?90(a)(1) ……………………………………………………………………………………5
OCGA §16?5?90(a)(2) ……………………………………………………………………………………8
I. PRELIMINARY STATEMENT
Appellee’s Statement of Facts contains several misstatements and mischaracterizations of the evidence addressed below.
Appellee states the ELI forums contain many “profane personal insults;” “profane images;” “threats;” “numerous sexually explicit [posts];” “misogynistic imagery;” and “personal information obtained by stalking” (Appellee Brief, pg. 23)(hereafter referred to as “AB at pg.__”). In support of these statements, she references hearing Transcript page 13 lines 17-15 (sic) which contain no such content. (Future references to the hearing Transcript will be made as “T–page#”.)
While Appellee attempts to paint ELI as a website solely devoted to attacking Appellee, Appellee acknowledges that the ELI forum dedicated to Appellee contained over 1,900 posts about Appellee and that Appellee introduced only evidence of a handful of narrowly cropped posts, obscuring the full context of the larger discussion, that were allegedly objectionable (AB, pg. 3). In addition, Appellee acknowledges that the Appellant’s forum contains over 14,000 posts unrelated to Appellee (AB, pg. 3). The name of the forum is the “Linda Ellis/Linda’s Lyrics/Dash Poem Forum” (Packet, Memo of Law pg. 9). The Internet address of the forum is: (http://extortionlettterinfo.com/forum/linda-ellis-lindas-lyrics-dash-poem-letters-forum/). Within the address, it denotes Appellee as an individual (“linda-ellis”), her business (“lindas-lyrics”), her poem (“dashpoem”), and discussions of her copyright enforcement letters (“letters-forum”). (Packet, pg. 9, McCormack Exhibit B of ELI posts).
Appellee describes one of the few posts submitted in evidence as a “sexually explicit and derogatory picture “meme” with [Appellee’s] face shown over a naked body, her hands covering her private area with the caption “Ready, Aim, Fire”” (AB, pg. 3-4). She makes no mention of the exhibit page for the court to actually see the post (Packet, page 10). While the legs of the figures in the photos are bare, the image is not sexually explicit; the figures’ bodies are not naked. The meme also says “Never Get Caught With Your Pants Down,” clearly meant to be humorous, not threatening. It is a reference to British soldiers oppressing American Colonists. Appellant testified as much (T-37 line 22 to T-38 line 13). Appellee’s next statement that Appellant admitted the image was a “carryover of a threat” is erroneous and misleading. Appellant used the term “carry-on of a threat” in reference to a post where a forum user stated “Linda wanted to be right. Well she is “dead” right now.” (T-22 lines 7-14). Neither the foregoing comment nor the picture referenced were created or posted by Appellant and they are not threats.
Appellee then takes out of context portions of certain posts to make it sound as if they are threatening the safety of Appellee (AB pg. 4-5); a full reading of the posts reveal he was merely talking about publishing public information about Appellee and some family members. (Packet, pg. 4).
Appellee next makes much reference to a post on the ELI Forums about a visit by Appellant to Appellee’s hometown of Marietta and tries to make it appear as if he went there specifically to visit Appellee. By Appellee’s own admission, the discussion was not originated by Appellant (AB, pg. 6). The sole evidence on this issue was that he was in Marietta attending a social event on a date. (T-36 line 1).
Appellee next makes the wholly unsupported statement that Appellant “accidentally admitted to conducting surveillance” (AB, pg. 7), completely twisting Appellant’s questioning. A full reading of the questioning establishes that Appellant was taking Appellee through the three elements of stalking as defined by the statute – following, placing under surveillance, or contacting – by asking her if she was ever followed by him (T-63 lines 14-15) and contacted by him (T-63 lines 1-2). Then he says “On surveillance, okay, have you ever seen me drive by your house.” (T-63 lines 20-24). Appellee then admits that the only proof she has of “surveillance” is the one post where Appellant mentions he was in Marietta and another where Appellant merely “boasts” he is going to go by her home with cameras. (T-63 line 20 to T-64 line 13). Appellee’s own response to the question shows that it was not an “accidental admission.” Appellee next states that Appellant “made many statements at the hearing that were ultimately proven to be false.” (AB, pg. 7). Appellee, however, only cites one statement that was allegedly proven false: Appellant’s denial of a cell phone call to Appellee’s employee’s fiancée (AB, pg. 7). He merely denied calling and thought that his number was “spoofed.” (T-101 line 9 to T-102 line 25).
Appellee confirms that the sum total of direct conduct attributable to Appellant was five sporadic posts on ELI between June 2012 and February 2013. The balance of the proof was three posts made by others and the cell call issue. There was no proof of an actual threat of harm or an imminent danger to her.
II. REPLY ARGUMENT AND CITATION OF AUTHORITIES
A. THE CONDUCT COMPLAINED OF CANNOT CONSTITUTE STALKING AS A MATTER OF LAW UNDER OCGA §16-5-90(a)(1)
Appellee had to skew the proof to portray the required pattern of conduct. “Harassing and intimidating” is defined as a knowing and willful course of conduct directed at a specific person that causes emotional distress by placing such person in reasonable fear of death or bodily harm “and which serves no legitimate purpose.” Johnson v. State 264 Ga. 590, 591-592 (1994) (emphasis in original). The evidence at the hearing did not reach the level required by the statute. In Marks v. State, 306 Ga. App.824 (2010) this court specifically held that posting on the internet about someone does not constitute “contact” under the statute.
Appellee makes no mention of Marks or Johnson but instead curiously relies on Jones v. State, 310 Ga. App. 705 (2011) to prove that there was sufficient evidence of surveillance. But the Jones court defined “surveillance” as a “close watch kept over someone or something.” Jones, at page 708. There was simply no evidence that Appellant kept a “close watch” over Appellee.
Appellee then relies upon but completely misstates the holding of Owen v. Watts, 307 Ga. App. 493 (2010) by claiming the case held that internet searches plus third party observations of a person’s home constituted surveillance sufficient to support a finding of stalking. (AB pg. 17). In Owens, however, the defendant had others “excessively and consistently” reporting upon the behavior and goings-on of the complainant such that the defendant knew what the complainant was searching for on the internet in complainant’s own home; had monitored various internet databases to keep track of those entering the complainant’s house; engaged in conduct that “could also be fairly described as obsessive and intrusive even of Watts’ residence”; and made several false complaints of child abuse resulting in at least two intrusive and groundless investigations by a child abuse agency. Owens, supra, at pg. 497-498. The defendant had argued that the trial court ruled that her computer research on the internet alone constituted stalking. Id. at pg. 498. This court disagreed, stating that it was the sum total of the conduct described above that constituted stalking and that “the trial court did not rule that internet research, in and of itself, and irrespective of the other elements required to establish the crime, constituted misdemeanor stalking.” Id. No conduct anywhere near that alleged in Owens was shown here. Owens, in fact supports Appellant’s position.
Similarly unavailing to Appellee is Daker v. Williams, 279 Ga. 782 (2005), the final case relied upon by her on this issue. Appellee states the case holds “a defendant who contacted a victim twice in one week engaged in a pattern of behavior within the meaning of the stalking statute.” (AB, pg. 17). But a close reading of the case shows that the defendant apparently engaged in multiple actions on at least one of the two dates in the indictment. Daker, supra, at page 783 (“Count Two relates to actions taken on [second date])(emphasis added). The decision however does not state what the specific actions were but it does state that the defendant had been told to stay away from the complainant’s home as a condition of his pre-trial release. Id. Any contact whatsoever (and certainly multiple visits to her home in one week) would violate the order and likely instill fear; it would also be a pattern of behavior that violated the stalking statute.
Appellee complained of five (5) Internet posts over a period of eight (8) months with no post occurring in four of those months; an insufficient number of acts to constitute a pattern of harassing behavior. The cases cited by Appellee only support Appellant’s argument and reversal of the order of the trial court.
B. THE PETITION’S REFERENCE TO OCGA §16-5-94 DID NOT PROVIDE NOTICE THAT OCGA §16-5-90(a)(2) WAS AT ISSUE
Appellee gives short shrift to this point and relies entirely on the argument that her initial petition referenced OCGA §16-5-94 which authorizes Temporary Protective Orders (TPO) if either OCGA §16-5-90(a)(1) or (a)(2) are met. But §16-5-94 only references §16-5-90 without mentioning its subdivisions. The notice given to a party of the conduct being examined and the applicable statute must be “reasonably calculated,” to apprise parties of the statute at issue and the conduct being examined. Ford v. Ford, 270 Ga. 314, 315 (1998). Appellee does not dispute that at the time the petition was served on Appellant, only OCGA §16-5-90(a)(1) could have been applicable. Therefore at the hearing Appellant’s conduct under that statute is all that should have been at issue.
In the court’s recitation of the reasons why it ordered the PPO, the court specifically recited the language of §90(a)(2). (T-121 line 8 to T-122 line 5). The posting of public information can only be stalking if it occurs when a TPO is already in place and only under OCGA §16-5-90(a)(2). Secondly, Appellee’s counsel throughout the proceeding attacked Appellant for not taking down the allegedly offensive posts, trying to build up a case of a violation under OCGA §165-90(a)(2). (T-36 line 23 and T-32 line 24).
Appellant, with no notice that this section was at issue, and relying that all information posted about Appellee on ELI by others was public information, did not try to seriously address these accusations. Even if Appellee’s argument that the Petition provided Appellant notice to remove the allegedly threatening posts (AB, pg. 19), the Petition did not specify which of the 1,900 posts relating to Appellee needed to be removed. While Appellee may try and distinguish Ford v. Ford, 270 Ga. 314 (1998) on its facts, Appellee does not distinguish and cannot refute the court’s holding or the language of the law: No notice means no due process.
C. APPELLEE DOES NOT CONTEST THAT IT WAS ERROR FOR THE COURT TO ADMIT AN EX-PARTE AFFIDAVIT INTO EVIDENCE
Georgia courts have held that admission of ex-parte affidavits constitutes reversible error even if there was otherwise sufficient evidence to meet the burden of proof. Lanthripp v. Lang, 103 Ga. App. 602 (1961). Because the law is so fundamentally clear, Appellee is left only to argue that the Appellant did not properly preserve the objection and to mischaracterize this court’s holding in Estate of Love, 274 Ga. App. 316, 318 (2005). While the Love court did say that whether to admit evidence is in the trial court’s discretion, it was addressing whether it was an abuse of discretion for the court below to admit certified medical records into evidence to prove a party’s marital status. Id. at 319. The court was not dealing with an ex parte affidavit. Courts do not review the admission of an ex parte affidavit under an abuse of discretion standard. As the many cases Appellant cited in its main brief establish, it is per se reversible error to admit an ex parte affidavit into evidence at a testimonial hearing. Lanthripp, supra, at p.602.
On the preservation issue, Appellant did object and specified that McCormack was not in Georgia and had no independent knowledge of the facts. (T-48 line 17 to T-49 line 1). The pro se Appellant did much more in framing his objection than the attorneys in Fletcher v. State, 199 Ga. App. 756 (1991) and Griffin v. State, 123 Ga. App. 820 (1971) who merely stated “I object.”
Georgia courts and the United States Supreme Court allow appellate courts to review unpreserved errors if the errors are “plain errors.” Puckett v. U.S., 556 U.S. 129, 135 (2009); Culver v. State, 314 Ga. App. 492 (2012) as this is. In her brief, Appellee did not address the “plain error” argument at all.
D. THE ORDER’S BROAD RESTRICTIONS CANNOT SURVIVE STRICT SCRUTINY OR THE COMMUNICATIONS DECENCY ACT OF 1996
a. Appellee admits the underlying order is a content-based speech restriction.
Appellee does not dispute that the court below made a content-based restriction on Appellant’s speech (AB, page 23). As such, it is subject to strict scrutiny. United States v. Playboy Entm’t Group, 529 U.S. 803,813 (2000). Appellee only argues that the speech is not protected because it constitutes threats of violence. Appellee completely ignores the “imminence” requirement detailed in Appellant’s brief. The reason for an imminence requirement derives from the notion that the means to deter unlawful conduct is to punish the actor rather than the advocate. Bartnicki v. Vopper, 532 U.S. 514 (2001). To that end, Appellee only cites Schenk v. United States, 249 U.S. 47 (1919) which established that threatening language must present a “clear and present danger” of actual violence before it can be restricted. Appellee takes the offending language here out of context but it is clear from looking at the posts that Appellant, at worst, only threatened to post public information about Appellee, not to act violently towards her or her family; there was no imminent threat. Certainly, there was no evidence below of a “clear and present danger” to Appellee.
b. Appellee argues the order is “narrowly tailored” despite its broad scope.
The court below did not just require the Appellant to remove the few offending posts that Appellee placed in the record; it forced him to remove all 1,900 posts on ELI related to Appellee and her business practices and it forced him to do so forever (T-124 lines 10-28). Nevertheless, Appellee calls it “narrow.”
Appellee then tries to support that it is reasonably limited by calling it a “time, place and manner” restriction. To support that argument, Appellee then argues that the restriction was content-neutral, even though she acknowledged on the preceding page of her Brief that the restriction was content-based (AB, pg. 25). This order is, by its own language, content-based. It was a far broader and more expansive restraint on speech than the law allows. It is even broader than the relief the Appellee was seeking. In open court, Appellee’s counsel acknowledged that protective orders should be “very limited in scope” and stated that Appellee was “not trying to do anything to his website or to stop his work” and was only looking to make Appellant “stop making threats towards [Appellee] (T-86 line 6 to T-87 line 15). The petition also only sought a one-year PPO yet the court awarded a lifetime protective order.
Appellee makes no argument that substantiates its claim in its Brief that the Order protected the public from “direct, immediate or irreparable damage.” (AB, pg. 26). It makes no argument to refute Point D in our brief.
c. Appellee cites the posting of public information as violating the Communications Decency Act of 1996
On the issue of the Communications Decency Act of 1996 (CDA), Appellee correctly states that the CDA does not protect the publishing of defamatory material or displays or encourages “highly offensive or illegal” content, citing FTC v. Accusearch, Inc. 570 F.3d 1187 (10th Cir. 2009), Fair Housing Council of San Fernando Valley v. Roomates.com, 521 F.3d 1157 (9th Cir. 2008) and Jones v. Dirty World Entertainment Recordings, LLC. 840 F. Supp 2d 1008 (ED Ky. 2012). But an examination of the facts of those cases shows that they are in no way applicable to the conduct involved in this case.
In the Accusearch and Roomates.com cases, the defendants were held responsible for content they themselves posted not that which was posted entirely by third parties; therefore the CDA was held not to apply. FTC v. Accusearch, Inc. 570 F.3d at pg. 1198-1199 (website that sold expressly confidential information not immune under CDA); Fair Housing Council, 521 F.3d at pg. 1167 (by specifically posting questions regarding sex and other criteria and requiring users to answer those questions, website violated Fair Housing Act and was not immune under CDA). Here, Appellant did not post the Google Street View photo of Appellee’s house; did not post the “Hearse” YouTube video; and did not post the “Ready, Aim, Fire” cartoon .Third parties posted that content entirely on their own. The CDA therefore protects Appellant from being held responsible for this content.
Similarly, the content Appellee complains of is nothing like the content prohibited by the Kentucky Federal Court in Jones. First, the website encouraged and sought out the posting of libelous information. Id. at 1012. Second, the content posted was per se defamatory and libelous because it imputed false and immoral sexual activity onto plaintiff. Jones, supra, 840 F.Supp.2d at pg. 1011-1012. More importantly, the website refused to take the content down even after requested to do so by the plaintiff. Id. That alone takes away the protection of the CDA.
Here, not only was Appellant never asked by Appellee to take down any of the content she now states is offensive to her, the content itself is not per se defamatory or libelous. Her own description of the content shows its innocuous and legal nature (AB, pg. 28). She describes the “illegal activity” of Appellant as having turned “virtually unknown information as [Appellee’s] home address, family names and daughters’ workplace into public information even having done so for profit with the intent of motivating [Appellee] to settle.” While there was no proof that Appellant “sold the public information for profit” as alleged, even that would not be illegal. The Supreme Court has long held that there is nothing actionable about the posting of publicly available information. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 494–96, (1975) (no claim can be based on a fact open to public inspection in government records; “We are reluctant to embark on a course that would make public records generally available to the media but forbid their publication if offensive to the sensibilities of the supposed reasonable man.”).
Appellee does not distinguish or refute the many cases Appellant cites that supports the CDA’s protection of the Appellant’s activities herein. See, e.g. Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003); Green v. America Online,318 F.3d 465, 470-71 (3d Cir.2003) (upholding immunity for the transmission of defamatory messages and a program designed to disrupt the recipient’s computer); Ben Ezra, Weinstein, & Co. v. America Online Inc., 206 F.3d 980, 985-86 (10th Cir.2000) (upholding immunity for the on-line provision of false stock information). Appellant simply cannot be held liable for the posts of others and cannot be held responsible for failing to take down the post of others. Zeran v. America Online, 129 F.3d 327, 328-29 (4th Cir.1997) (upholding immunity for both initial publication and delay in removal of false messages connecting offensive tee-shirts to the plaintiff’s name and home telephone number).
IV. CONCLUSION
Appellee did not put forth any factual or legal argument to support the affirmance of the order below or to refute the analysis and argument of Appellant’s Brief. The order must therefore be reversed.
Dated: November 8, 2013
/S/ Oscar Michelen
OSCAR MICHELEN
N.Y. State Bar No.: 2058477
CUOMO LLC
9 East 38th Street
New York, NY 10016
/S/ William J. McKenney
William J. McKenney
GA State Bar No.: 494725
MCKENNEY & FROEHLICH
50 Polk Street NW
Marietta, GA 30064
CERTIFICATE OF SERVICE
This is to certify that I have on this day served counsel for the opposing party a copy of this REPLY BRIEF OF APPELLANT MATTHEW CHAN before sending a copy of the REPLY BRIEF OF APPELLANT MATTHEW CHAN to the below listed opposing counsel by United States Mail in a properly addressed envelope with adequate postage addressed to:
Elizabeth W. McBride, Esq.
Page, Scrantom, Sprouse, Tucker & Ford
1111 Bay Avenue Third Floor
Post Office Box 1199
Columbus, Georgia 31902
This 8th day of November, 2013.
/S/ Oscar Michelen
OSCAR MICHELEN
CUOMO LLC
Courtesy Admission
N.Y. State Bar No.: 2058477
9 East 38th Street
New York, NY 10016
(212) 448-9933
