{"id":268,"date":"2014-09-18T04:47:52","date_gmt":"2014-09-18T08:47:52","guid":{"rendered":"https:\/\/defiantly.net\/?p=268"},"modified":"2025-05-18T14:58:09","modified_gmt":"2025-05-18T18:58:09","slug":"chan-v-ellis-text-of-ga-supreme-court-supplemental-brief-for-appellant","status":"publish","type":"post","link":"https:\/\/defiantly.net\/?p=268","title":{"rendered":"Chan v. Ellis: Text of GA Supreme Court Supplemental Brief for Appellant"},"content":{"rendered":"\n

IN THE SUPREME COURT OF THE STATE OF GEORGIA<\/strong><\/p>\n\n\n\n

Docket No.: S14A1652<\/a>
Lower Court No.: SU13DM409
Court of Appeals No.: A14A0014<\/a><\/p>\n\n\n\n

MATTHEW CHAN, Appellant<\/p>\n\n\n\n

-against-<\/p>\n\n\n\n

LINDA ELLIS, Appellee<\/p>\n\n\n\n

.<\/p>\n\n\n\n

SUPPLEMENTAL BRIEF OF APPELLANT MATTHEW CHAN<\/strong><\/p>\n\n\n\n

.<\/p>\n\n\n\n

Respectfully Submitted,<\/p>\n\n\n\n

Oscar Michelen
Georgia Bar No.: H10048
Cuomo LLC
Attorneys for Appellant
9 East 38th Street
Third Floor
New York, NY 10016<\/p>\n\n\n\n

William J. McKenney
Georgia Bar No.: 494725
McKenney & Froehlich
Attorneys for Appellant
50 Polk Street NW
Marietta, GA 30064<\/p>\n\n\n\n

.<\/p>\n\n\n\n

TABLE OF CONTENTS<\/strong><\/p>\n\n\n\n

1. Table of Authorities \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026………………. ii<\/p>\n\n\n\n

2. Preliminary Statement \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026 1<\/p>\n\n\n\n

3. Statement of Facts \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.. 1<\/p>\n\n\n\n

4. Argument \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.. 1<\/p>\n\n\n\n

POINT I<\/strong><\/span>
RECENT DECISIONS HAVE RECOGNIZED THAT THE FIRST AMENDMENT
AND THE COMMUNICATIONS DECENCY ACT PROVIDE BROAD PROTECTION TO INTERNET SPEECH THAT IS REPUGNANT EVEN IF IT IS DIRECTED AT OR IS ABOUT ONE PARTICULAR PERSON<\/p>\n\n\n\n

a. Virginia Federal Court holds Neo-Nazi\u2019s posting of attorney and wife\u2019s personal information and his posts mentioning possible attacks was protected speech and not subject to restraint or sanctions \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026 2<\/p>\n\n\n\n

b. Eleventh Circuit upholds conviction for threatening the President of the United States due to context and nature of defendant\u2019s Facebook posts \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.. 8<\/p>\n\n\n\n

c. Sixth Circuit holds that Section 230 of The Communications Decency Act protects a blog site owner from the defamatory posts of others \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026. 9<\/p>\n\n\n\n

 <\/p>\n\n\n\n

5. Conclusion \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026. 13<\/p>\n\n\n\n

6. Certificate of Service \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026. 14<\/p>\n\n\n\n

.<\/p>\n\n\n\n

TABLE OF AUTHORITIES<\/strong><\/p>\n\n\n\n

Cases<\/strong><\/p>\n\n\n\n

Bartnicki v. Vopper, 532 U.S. 514, 527\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.\u2026\u2026\u2026\u2026\u2026\u2026 6<\/p>\n\n\n\n

Fair Housing Council of San Fernando Valley v. Roomates.com LLC, 521 F.3d 1157 (9th Cir. 2008) ……….. 12<\/p>\n\n\n\n

In re White, 2013 WL 5295652 (E.D.Va. Sept. 13, 2013) ……………………..  2<\/p>\n\n\n\n

Jones v. Dirty World Entertainment Recordings LLC, 755 F.3d 398 (6th Cir. June 16, 2014) ……………….. 9<\/p>\n\n\n\n

U.S. v. Castillo, 564 Fed. Appx. 500 (11th Cir. May 2, 2014) ………………….. 8<\/p>\n\n\n\n

U.S. v. Alaboud, 347 F.3d 1293, 1297 n. 3 (11th Cir.2003) ……………………..  5<\/p>\n\n\n\n

Watts v. United States, 394 U.S. 705 (1969) ……………………………………… 9<\/p>\n\n\n\n

.<\/p>\n\n\n\n

Statutes<\/strong><\/p>\n\n\n\n

O.C.G.A. \u00a7 16-5-92 \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026 13<\/p>\n\n\n\n

.<\/p>\n\n\n\n

 <\/p>\n\n\n\n

PRELIMINARY STATEMENT<\/strong><\/span><\/p>\n\n\n\n

This supplemental brief is submitted by Appellant Matthew Chan (\u201cAppellant\u201d) to discuss relevant cases that have been decided since the submission of the original briefs in this appeal.<\/p>\n\n\n\n

STATEMENT OF FACTS<\/strong><\/span><\/p>\n\n\n\n

The Appellant incorporates by reference the Statement of Facts set forth in Appellant\u2019s Brief.<\/p>\n\n\n\n

ARGUMENT<\/strong><\/span><\/p>\n\n\n\n

POINT I<\/strong><\/p>\n\n\n\n

RECENT DECISIONS HAVE <\/strong>RECOGNIZED THAT THE FIRST AMENDMENT <\/strong>
AND THE COMMUNICATIONS DECENCY ACT <\/strong>PROVIDE BROAD PROTECTION TO INTERNET <\/strong>SPEECH THAT IS REPUGNANT EVEN IF IT IS <\/strong>DIRECTED AT ONE PARTICULAR PERSON<\/strong><\/p>\n\n\n\n

Since the submission of briefs to the Georgia Court of Appeals in this case, several courts around the country have had the opportunity to analyze and balance the right of courts and individuals to address perceived wrongs over Internet language and the language\u2019s protection under the First Amendment and the Communications Decency Act of 1996 (\u201cCDA\u201d). These recent cases have reasserted the First Amendment\u2019s broad and sweeping protection and the distinction between protected speech and \u201ctrue threats.\u201d These cases also serve to reinforce that Appellant\u2019s conduct here was the type of freewheeling, robust speech common to the Internet and did not constitute actionable \u201ctrue threats\u201d or \u201cattempts to intimidate\u201d Appellee.<\/p>\n\n\n\n

a. Virginia Federal Court holds Neo-Nazi\u2019s posting of attorney and wife\u2019s personal information and his posts mentioning possible attacks was protected speech and not subject to restraint or sanctions<\/strong><\/p>\n\n\n\n

The Eastern District of Virginia was asked to sanction Neo-Nazi William White after White made a series of posts about Kevin W. Mottley of Troutman Sanders LLP (\u201cMottley\u201d) and his wife. In re White, 2013 WL 5295652 (E.D.Va. Sept. 13, 2013) (only citation presently available)1. Mottley was prosecuting a Fair Housing Discrimination action in the District surrounding allegations that a housing complex was discriminating against black residents based on their race. Id. at 2. White made numerous posts attacking the case and Mottley on various Internet forums including one to his white supremacist group\u2019s home page that published his wife\u2019s full name. The post then purportedly admonished his \u201ccomrades\u201d<\/p>\n\n\n\n

\u201cnot to go by the [Mottley] home at [Mottley’s home address], or call them at [Mottley’s phone number]. Do not open credit cards in their name, empty their bank accounts by Internet, hack their emails, or otherwise invade their privacy.\u201d<\/em><\/p>\n\n\n\n

Id at 14. This resulted in Mottley filing a motion for sanctions; the court then conducted an evidentiary hearing on the motion. Id.<\/p>\n\n\n\n

At the hearing, Mottley testified that, upon learning of the posting, he and his law firm took a number of steps designed to ensure his safety, including notifying local law enforcement (which resulted in increased safety patrols in his neighborhood) and hiring private security guards to surveil his home. Mottley explained that he \u201cperceived th[e] posting … to be a threat to [his] safety, not only [his] physical safety … but also the security of [his] financial accounts, [his] home, and most importantly, of [his] wife,\u201d who was not involved in the underlying case.  Mottley stated that he and his family suffered feelings of fear and intimidation as a result of White’s postings and that the postings caused him to question his continued representation of the plaintiffs in the underlying discrimination litigation. Id. at 24. Mottley also provided the court with various exhibits of White\u2019s prior writings which talked about killing people opposed to his views. Id.<\/p>\n\n\n\n

After the hearing, White again posted the Mottley\u2019s home address and phone number as well as the home address of a Justice Department lawyer participating in the case advising his \u201ccomrades\u201d to:<\/p>\n\n\n\n

Write to them. Call them. Tell them what you think. Do not threaten them. Do not harass them. Do not commit crimes against them, at this point in time or any other point in time. But, legally, contact them and share with them your point of view. You have a right to contact people who are in activities that draw public attention. They do not have a right to conduct their activities in secret or to hide from you. And if they do something irrational, like hire police bodyguards to protect them from \u201cthreats\u201d that exist wholly in their imagination, we are in now [sic] way responsible for that<\/em><\/p>\n\n\n\n

Id. at 19. He then posted this additional comment:<\/p>\n\n\n\n

I saw the movie \u201cFunny Games \u201d the other night, and it occurred to me:<\/em>
Civil Rights Attorney Kevin Mottley of Troutman Sanders and his wife would star perfectly in the role of \u201cthe family\u201d. [sic]Anyone think I’m off base on that?<\/em><\/p>\n\n\n\n

Id.at 36.  The court noted that \u201cFunny Games\u201d tells the story of \u201ca middle-class family [who] submits both physically and mentally to the torture, violence, and death foisted upon them by two young, unexpected white-gloved visitors at their vacation retreat near the lake.\u201d Id.
In addition to the commentary regarding the underlying litigation, Mottley offered other examples of White’s writings, including comments endorsing the murder of \u201cwhite people opposed to racism;\u201d postings hypothesizing about the effect on the 2008 presidential election were then-candidate Barack Obama to be assassinated; and White\u2019s postings calling for the murder of a Canadian civil rights\u2019 lawyer whose home address White had also published. Id. at 38. The court also highlighted:<\/p>\n\n\n\n

\u201c[o]ne particularly deplorable posting [that] detailed White’s exhibitionistic and self-serving view of his physical altercation with an African American \u2018crack dealer.\u2019 White authored the post . . . after he was acquitted of the resulting assault charge. In it, White lamented the state of his community and what he viewed as a failure to act on the part of law enforcement. Justifying his actions, White stated, \u201cI have additionally become convinced that the murder of wicked men, when conducted in a selfless manner, is a path to transcendence and to God. . . .White \u201crecommend[ed] to all reading this that they consider taking a wicked man\u2014a crack dealer, a pimp, an NAACP official defending black crime, or perhaps a newspaper writer supporting them\u2014and killing them with your bare hands as a test of what I have to say.\u201d <\/em>
Id.<\/em><\/p>\n\n\n\n

Despite all this violent rhetoric and despite the posting of this personal information about Mottley, the District Court upheld the hearing magistrate\u2019s finding that White\u2019s speech was protected by the First Amendment. In so doing, the court undertook an analysis of all the Federal Circuits to determine whether, in deciding if speech constituted a \u201ctrue threat,\u201d the court should apply a \u201clistener-based\u201d or \u201creasonable person- based\u201d approach. The court noted the Eleventh Circuit\u2019s position that such a distinction is irrelevant because \u201c[b]oth tests are basically a \u2018listener-based\u2019 test\u2019 in that, even under the [listener-based] approach \u2018the jury would have to decide how a reasonable listener would understand the communication in order to determine how a reasonable speaker would foresee the effect of his or her communication.\u2019\u201d In Re White\u00b8 2013 WL 5295652 at page 43 (citing United States v. Alaboud, 347 F.3d 1293, 1297 n. 3 (11th Cir.2003)).<\/p>\n\n\n\n

The court held that the various postings did not amount to \u201ctrue threats\u201d to inflict violence upon Mottley and his wife. Id. at 51. The court also said the \u201cFunny Games\u201d post was similarly protected because it \u201cat most conveyed a serious desire that [Mottley] be harmed by others\u201d and not \u201ca serious expression of [White’s] intent to do harm from the perspective of a reasonable recipient.\u201d Id. at 52 (emphasis in original). The court added \u201cThus, although the Court finds the republication of Mottley’s personal, identifying information repugnant, based on the language of the postings it was not apparently unlawful. Id. at 53 (citing, among other cases, Bartnicki v. Vopper, 532 U.S. 514, 527(2001)) (\u201cDefendant cites no authority for the proposition that truthful lawfully-obtained, publicly-available personal identifying information constitutes a mode of constitutionally prescribable speech. Rather, disclosing and publishing information obtained elsewhere is precisely the kind of speech that the First Amendment protects.\u201d)<\/p>\n\n\n\n

More importantly for the present issue before this Court\u00b8 the White court then analyzed and stressed the importance of the context in which the statements were made. While first noting that Internet speech is entitled to no greater or lesser protection under the First Amendment, the court stated that the Internet provides a \u201cdynamic, multifaceted category of communication [that] includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real-time dialogue.\u201d Id. at 55. It found that White\u2019s postings on Internet forums as opposed to private direct communications to the Mottley weighed in favor of First Amendment protection; this was especially true, the court stated, when the objectionable posts were taken in context with all of White\u2019s other myriad posts:<\/p>\n\n\n\n

White, indeed, is a prolific writer who regularly publishes to the Internet his criticisms of people and groups with whom he disagrees. This fact is relevant to the Court’s determination of whether a subset of such writings constitute \u201ctrue threats,\u201d because it speaks to White’s intent in authoring the postings at issue here. Specifically, the fact that White regularly publishes his social and political views on the Internet suggests that, when he expressed similar views concerning the underlying litigation, generally, and Mottley, specifically, he did so with the intent to engage in similar political or social discourse.<\/em><\/p>\n\n\n\n

Id. at 56. The court also said it was important that the posts were available to the general public and not just privately transmitted to White\u2019s Neo Nazi followers. Id. The court acknowledged that the speech did cause Mr. Mottley to be in fear and take action to protect himself and his family and that two early morning hang-up calls were made to the Mottley\u2019s home phone. This evidence was not dispositive however, merely \u201ccorroborative\u201d that the postings were true threats. Rather, the court stated, it was more important that there was no evidence that the many posts of White were ever directly attributed to any acts of violence.<\/p>\n\n\n\n

In concluding that it would not sanction or restrain White, the court stated that \u201c[a]lthough the court is sympathetic to Mottley\u2019s plight and the very real fear that White\u2019s postings inflicted on him and his family\u201d sanctioning White for his Constitutionally-protected speech would not be an appropriate exercise of discretion. Id.<\/p>\n\n\n\n

Appellant\u2019s posts come nowhere near the language used by White; his prior writings do not propose to incite anyone and did not incite anyone to violence; the evidence about Appellee\u2019s fears caused by the post pales in comparison to the Mottley\u2019s evidence; the extensive history and breadth of Appellant\u2019s writings offline (as an author and publisher of several books, ebooks, and audio programs) and online (as a blogger, web publisher, forum administrator, and online community leader), and the thousands of other substantive posts on the ELI Forums show that the postings were not true threats but rather done \u201cwith the intent to engage in similar political or social discourse.\u201d and were therefore protected speech.<\/p>\n\n\n\n

b. Eleventh Circuit upholds conviction for threatening the President of the United States due to context and nature of defendant\u2019s Facebook posts<\/strong><\/p>\n\n\n\n

In U.S. v. Castillo, 564 Fed. Appx. 500 (11th Cir. May 2, 2014), the defendant was convicted in the District Court for the Middle District of Florida of making a threat to injure or kill the President of the United States.<\/p>\n\n\n\n

When someone posted a picture of President Barack Obama on Facebook, Castillo commented, \u201c[T]hat’s the last straw. If he gets re-elected, I’m going to hunt him down and kill him and watch the life disappear from his eyes.\u201d When another Facebook poster informed Castillo that threatening the President was a federal offense and that the Secret Service tracked down people who posted threats on social media, Castillo responded, \u201cI wouldn’t call it a threat but more of a promise. Let them come after me. Be more than happy to take a few of them with me.\u201d Id. at 503.<\/p>\n\n\n\n

In upholding his conviction, the Eleventh Circuit distinguished the case from Watts v. United States, 394 U.S. 705 (1969) where during a protest against the Vietnam War a protester stated \u201cIf they ever make me carry a rifle the first man I want to get in my sights is L.B.J.\u201d The other protesters in Watts laughed at the comment, leading the Supreme Court to conclude that it was not a true threat. U.S. v. Castillo, 564 Fed. Appx. at 503.
Because the defendant in Castillo reiterated his intention after being advised of the criminal nature of it, the court held that it rose to more than the \u201cvehement, caustic and sometimes unpleasantly sharp attacks\u201d on politicians\u201d protected by the First Amendment. Id.<\/p>\n\n\n\n

Here, the context of Appellant\u2019s posts and the reaction of the readers of it is similar to the Watts case and reflects that there was no intention to inflict harm on Appellee in the manner of the true threat in Castillo.<\/p>\n\n\n\n

c. Sixth Circuit holds that Section 230 of The Communications Decency Act protects a blog site owner from the defamatory posts of others<\/strong><\/p>\n\n\n\n

In Jones v. Dirty World Entertainment Recordings LLC, 755 F.3d 398 (6th Cir. June 16, 2014), a cheerleader for the Cincinnati Bengals brought an action asserting state-law defamation claims against operators of TheDirty.com, a user-generated, online tabloid. After judgment was entered on a jury verdict in the cheerleader’s favor, the defendants appealed. The Sixth Circuit Court of Appeals held that the defendants had immunity under the CDA from plaintiff’s claims even though the defendants made comments about the derogatory posts.<\/p>\n\n\n\n

The plaintiff in Jones was the subject of several negative, anonymous, submissions on TheDirty.com. For example, after a visitor to the site posted a photograph of plaintiff and speculated that she had two sexually transmitted diseases, one of the operators of the site commented \u201cWhy are all high school teachers freaks in the sack?\u201d Jones, 755 F.3d at 403. After the site refused to take the content down, even after plaintiff sent twenty-seven emails asking for the content to be taken down, plaintiff filed suit in Federal District Court. The suit garnered national attention which led to even more harsh posts about plaintiff specifically and the Bengals cheerleading squad in general. Those posts were again commented upon by the site operator who complimented \u201cThe Dirty Army\u201d for the posts by posting \u201cNote to self: Never try to battle the DIRTY ARMY\u201d and \u201cI love how the DIRTY ARMY has a war mentality.\u201d Id. at 404.<\/p>\n\n\n\n

In reversing the judgment and dismissing the action, the Sixth Circuit noted that the CDA provides \u201cbroad federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.\u201d Id. The court also noted that, via the CDA, Congress intended to treat the Internet differently in that, pre-CDA and in situations outside the Internet, publishers could be held responsible for the defamatory content of articles written by others. The court acknowledged that \u201cclose cases … must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged\u2014or at least tacitly assented to\u2014the illegality of third parties.\u201d Id. at 409.<\/p>\n\n\n\n

The Jones court said the only issue to be determined was whether by the comments made to the posts and the encouragement of discussion about the plaintiff, the site operators \u201cdeveloped\u201d the information about plaintiff therefore acting as content generators and not just service providers. Id. The court held that merely commenting and even editing the post would not amount to \u201cdevelopment\u201d of the material unless it materially contributed to the illegal content of the posts. Id. at 411-412.<\/p>\n\n\n\n

The court also held that the site could not be responsible for the content merely by refusing to take down the post and by continuing to display them. To do so would render the CDA\u2019s immunity \u201cmeaningless as a practical matter.\u201d Id. at 412 (citing Fair Housing Council of San Fernando Valley v. Roomates.com LLC, 521 F.3d 1157 (9th Cir. 2008). Finally, the court also held that \u201ca website operator cannot be responsible for what makes another party’s statement actionable by commenting on that statement post hoc.\u201d Jones, 755 F.3d at 415.<\/p>\n\n\n\n

Here, the court below held Appellant responsible for the content on ELI posted by others and for refusing to take that content down at the time of the hearing. Appellant was constantly berated by opposing counsel for not taking down posts admittedly placed on ELI by others. Unlike the defendants in Jones, however, Appellant was never asked to take any of the posts down and none of the posts contain defamatory material. Jones establishes that Appellant had no obligation to take down any third party\u2019s posts and that he cannot be held responsible for any of the content generated and uploaded by third parties due to the broad immunity provided by the CDA.<\/p>\n\n\n\n

CONCLUSION<\/strong><\/span><\/p>\n\n\n\n

All of the recently decided cases cited in this brief support the reversal of the judgment below because they establish that Appellant\u2019s conduct is protected by the First Amendment and the Communications Decency Act of 1996. Additionally, since all of Appellant\u2019s conduct is legal and protected it cannot amount to \u201cstalking\u201d or \u201charassment\u201d under Georgia\u2019s stalking statute which is limited by O.C.G.A. \u00a7 16-5-92, which states that the stalking law \u201cshall not apply to persons engaged in activities protected by the Constitution of the United States or of this state.\u201d<\/p>\n\n\n\n

Respectfully Submitted,<\/p>\n\n\n\n

\/s\/ Oscar Michelen<\/span>
Oscar Michelen
Georgia Bar No.: H10048
Cuomo LLC
Attorneys for Appellant
9 East 38th Street
Third Floor
New York, NY 10016
(212) 448-9933<\/p>\n\n\n\n

 \/s\/ William J. McKenney<\/span>
William J. McKenney
Georgia Bar No.: 494725
McKenney & Froehlich
Attorneys for Appellant
50 Polk Street NW
Marietta, GA 30064
(678) 354-4700
wjm@wjmlaw.org<\/p>\n\n\n\n

.<\/p>\n\n\n\n

CERTIFICATE OF SERVICE<\/strong> <\/span><\/p>\n\n\n\n

This is to certify that in accordance with Georgia Supreme Court Rule 14, I have on this day served this Supplemental Brief and Exhibit before filing with the Court by mailing a copy of same to the opposing counsel listed below in a properly addressed envelope with adequate postage:<\/p>\n\n\n\n

Page, Scrantom, Sprouse, Tucker, Ford
Attorneys for Appellee
1111 Bay Avenue
Third Floor
Columbus, GA 31901<\/p>\n\n\n\n

Mr. Timothy B. McCormack
Amicus Filer on Behalf of Appellee
167 Lee Street
Seattle, WA 98109<\/p>\n\n\n\n

This 5th day of September 2014<\/p>\n\n\n\n

\/s\/ Oscar Michelen
Oscar Michelen
Georgia Bar No.: H10048
Cuomo LLC
Attorneys for Appellant
9 East 38th Street
Third Floor
New York, NY 10016
(212) 448-9933<\/p>\n\n\n\n

 <\/p>\n\n\n\n

Footnote [1]: Since there is no official or LEXIS citation, I have attached a copy of this case as an exhibit to this Brief.<\/em><\/p>\n\n\n\n

.<\/p>\n\n\n