{"id":273,"date":"2014-09-19T07:18:13","date_gmt":"2014-09-19T11:18:13","guid":{"rendered":"https:\/\/defiantly.net\/?p=273"},"modified":"2023-03-22T13:20:36","modified_gmt":"2023-03-22T17:20:36","slug":"chan-v-ellis-text-of-eff-volokh-amicus-brief-in-support-of-appellant","status":"publish","type":"post","link":"https:\/\/defiantly.net\/?p=273","title":{"rendered":"Chan v. Ellis: Text of EFF & Volokh Amicus Brief in Support of Appellant"},"content":{"rendered":"

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

Case No.: S14A1652<\/a>
\nCourt of Appeals <\/a><\/span>No.: A14A0014<\/a>
\nLower Court No.: SU13DM409<\/p>\n

MATTHEW CHAN, Appellant<\/p>\n

v.<\/p>\n

LINDA ELLIS, Appellee<\/p>\n

.<\/p>\n

BRIEF OF AMICI CURIAE OF THE ELECTRONIC FRONTIER <\/strong>FOUNDATION AND PROFESSOR AARON H. CAPLAN <\/strong>IN SUPPORT OF APPELLANT<\/strong><\/p>\n

.<\/p>\n

Eugene Volokh
\n(Pro hac vice admission pending)
\nCA State Bar No.: 194464
\nUCLA School of Law
\nFirst Amendment Amicus Brief Clinic
\n405 Hilgard Ave.
\nLos Angeles, CA 90095
\n(310) 206-3926
\nvolokh@law.ucla.edu<\/p>\n

Darren Summerville
\nGA State Bar No.: 691978
\nLeighton Moore
\nGA State Bar No. 520701
\nSummerville Moore, P.C.
\n400 Colony Square, Suite 2000
\n1201 Peachtree Street, NE
\nAtlanta, Georgia 30361
\n(770) 635-0030
\ndarren@summervillemoore.com
\nleighton@summervillemoore.com<\/p>\n

.<\/p>\n

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

INTEREST OF AMICI CURIAE …………………………………………………………………….1<\/p>\n

SUMMARY OF THE ARGUMENT ………………………………………………………………1<\/p>\n

ARGUMENT ……………………………………………………………………………………………. 3<\/p>\n

I.The First Amendment Broadly Protects the Right to Criticize People, Including Private Figures …………. 3<\/p>\n

II.The Trial Court Wrongly Concluded That the Speech About Ms. Ellis Violated OCGA \u00a7\u00a7 16-5-90 et seq. ………………………………………… 9<\/p>\n

A. To the Extent Section 16-5-90 Covers Speech, It Covers Only Speech to a Person, not Speech About a Person ……………… 9<\/p>\n

B. Section 16-5-90 Does Not Apply to Public Criticism of a Person, Because Such Criticism Qualifies as a \u201cLegitimate Purpose.\u201d ………………………………………………………………………….14<\/p>\n

C. The Injunction to Delete All References to Ms. Ellis Exceeds Statutory Authority and Is Unconstitutional for its Overbreadth and Because It Is A Prior Restraint ……………………18<\/p>\n

III. Mr. Chan May Not Be Held Liable for the Speech of Third-Party Content Creators Posting on His Forum, Nor May He Be Held Liable for Not Removing Such Content ……………………..19<\/p>\n

CONCLUSION …………………………………………………………………………………………. 24<\/p>\n

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

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

Ashwander v. Tennessee Valley Auth., 297 U.S. 288 (1936) …………………………….17<\/p>\n

Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 (W.D. Wash. 2012) ….. 21<\/p>\n

Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) ………………………………………………. 20<\/p>\n

Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998) ………………………………… 23<\/p>\n

Carafano v. Metrosplash.com Inc., 339 F.3d 1119 (9th Cir. 2003) ……………….. 22<\/p>\n

Carroll v. President & Comm\u2019rs of Princess Anne, 393 U.S. 175 (1968) ……..19<\/p>\n

Collins v. Bazan, 256 Ga. App. 164, 568 S.E.2d 72 (2002) …………………………..11<\/p>\n

Danforth v. Apple Inc., 294 Ga. 890, 757 S.E.2d 96 (2014) …………………………..19<\/p>\n

De Louis v. Sheppard, 277 Ga. App. 768, 627 S.E.2d 846 (2006) ……………….. 9<\/p>\n

Delfino v. Agilent Technologies, Inc., 145 Cal. App. 4th 790 (2006) ……………. 20<\/p>\n

Doe v. America Online, Inc., 783 So. 2d 1010 (Fla. 2001) ………………………….. 21<\/p>\n

Donato v. Moldow, 865 A.2d 711 (N.J. Super. Ct. App. Div. 2005) …………………. 23<\/p>\n

Eldred v. Ashcroft, 537 U.S. 186 (2003) …………………………………………………………. 7<\/p>\n

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) ………………………………17<\/p>\n

Florida Star v. B.J.F., 491 U.S. 524 (1989) ……………………………………………………..7<\/p>\n

Garnsey v. Buice, 306 Ga. App. 565, 703 S.E.2d 28 (2010) ………………………………. 9<\/p>\n

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) …………………………………………….. 4<\/p>\n

Giordano v. Romeo, 76 So. 3d 1100 (Fla. Ct. App. 2011) ……………………………….. 24<\/p>\n

Golan v. Holder, 132 S. Ct. 873 (2012) ………………………………………………………….. 7<\/p>\n

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) ……………………………… 5, 6, 7<\/p>\n

Internet Brands, Inc. v. Jape, 760 S.E.2d 1 (Ga. App. 2014) ……………………….19, 20<\/p>\n

Johnson v. State, 264 Ga. 590, 449 S.E.2d 94 (1994) ………………………………………11<\/p>\n

Jones v. Dirty World Entertainment Recordings, 755 F.3d 398 (6th Cir. 2014) …19, 20, 22<\/p>\n

Lansing v. Southwest Airlines Co., 980 N.E.2d 630 (App. Ct. Ill. 2012) ………. 21<\/p>\n

Marks v. State, 306 Ga. App. 824, 703 S.E.2d 379 (2010) ……………………………….13<\/p>\n

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)……………………… 4, 5, 6, 8<\/p>\n

Nemet Chevrolet v. Consumeraffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009) ……… 20<\/p>\n

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)………………………………………. 3<\/p>\n

Norman v. Doby, 321 Ga. App. 126, 741 S.E.2d 293 (2013)…………………………….14<\/p>\n

Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971) ………………….4, 6, 8<\/p>\n

People v. Bethea, 781 N.Y.S.2d 626 (Crim. Ct. 2004) …………………………………….15<\/p>\n

People v. Gourlay, 2009 WL 529216 (Mich. Ct. App. Mar. 3, 2009) ……………….. 21<\/p>\n

People v. Marquan M., 2014 WL 2931482 (N.Y. 2014) ………………………………….16<\/p>\n

Pilcher v. Stribling, 282 Ga. 166, 647 S.E.2d 8 (2007) …………………………………….14<\/p>\n

Reit v. Yelp!, Inc., 907 N.Y.S.2d 411 (Sup. Ct. 2010) ……………………………………… 24<\/p>\n

Snyder v. Phelps, 131 S. Ct. 1207 (2011) …………………………………………………….. 5, 6<\/p>\n

State v. Fratzke, 446 N.W.2d 781 (Iowa 1989) ……………………………………………….15<\/p>\n

Thornton v. Hemphill, 300 Ga. App. 647, 686 S.E.2d 263 (2009) ……………………..13<\/p>\n

Time, Inc. v. Hill, 385 U.S. 374 (1967) …………………………………………………………… 7<\/p>\n

Tory v. Cochran, 544 U.S. 734 (2005) …………………………………………………………..19<\/p>\n

Trummel v. Mitchell, 131 P.3d 305 (Wash. 2006) ……………………………………………11<\/p>\n

Universal Commc\u2019n Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007) ………. 22<\/p>\n

Voicenet Communications, Inc. v. Corbett, 39 Communications Reg. (P&F) 430 (E.D. Pa. 2006) …………………………… 21<\/p>\n

Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) ……………………… 20, 22<\/p>\n

.<\/p>\n

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

47 U.S.C. \u00a7 230 ………………………………………………………………………………….. passim<\/p>\n

OCGA \u00a7 16-5-90 ………………………………………………………………………………… passim<\/p>\n

OCGA \u00a7 16-5-92 ………………………………………………………………………………. 3, 10, 17<\/p>\n

OCGA \u00a7 16-5-94 …………………………………………………………………………… 7, 9, 14, 18<\/p>\n

OCGA \u00a7 34-1-7 ………………………………………………………………………………………….18<\/p>\n

.<\/p>\n

Other Sources<\/strong><\/p>\n

Aaron H. Caplan, Free Speech and Civil Harassment Orders<\/em>, 64 Hastings L.J. 781 (2013) ………. passim<\/p>\n

Aaron H. Caplan, Public School Discipline for Creating Uncensored Anonymous Internet Forums<\/em>, 39 Willamette L. Rev. 93, 164-175 (2003)\u00a0 ………………………………….. 20<\/p>\n

Bob Audette, Lawsuit Against Vernon Company Dropped, refiled<\/em>, Battleboro (Vt.) Reformer, July 31, 2014, http:\/\/www.reformer.com\/localnews\/ci_26247454\/lawsuit-against\u00advernon-company-dropped-refiled …………………………………….16<\/p>\n

Cathie J. France, Crimes and Offenses Crimes Against the Person: Redefine Stalking<\/em>, 15 Ga. St. U. L. Rev. 62 (1998) ………………………………………11<\/p>\n

Christopher Zara, Getty Images Lawsuits: Enforcement or Trolling? Fear of Letters Dwindling, Stock-Photo Giant Hits Federal Courts<\/em>, Int\u2019l Bus. Times, Feb. 7, 2014, http:\/\/www.ibtimes.com\/getty\u00adimages-lawsuits-enforcement-or-trolling-fear-letters-dwindling\u00adstock-photo-giant-hits-federal ………………………………………………………………16<\/p>\n

Cory Doctorow, Copyright Troll Abuses DMCA in Bid to Censor His Previous Life as a Troll-Fighter, BoingBoing, Aug. 26, 2014, http:\/\/ boingboing.net\/2014\/08\/26\/copyright-troll-abuses-dmca-in.html …………………..16<\/p>\n

Eugene Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and \u201cCyberstalking,\u201d 107 Northwestern U. L. Rev. 731 (2013) ………………………………… 6, 17<\/p>\n

ExtortionLetterInfo.com, http:\/\/www.extortionletterinfo.com (accessed Aug. 2014) ………..15<\/p>\n

Jeff John Roberts, Copyright Trolls 2.0: Image Sites Embrace Righthaven Tactics<\/em>, Sept. 19, 2012, GigaOm, http:\/\/gigaom.com\/2012\/09\/19\/copyright-trolls-2-0-image-sites\u00adembrace-righthaven-tactics\/ ……………16<\/p>\n

Martin Redish, Money Talks: Speech, Economic Power, and the Values of Democracy<\/em> (2001) …………..17<\/p>\n

Mike Masnick, Copyright Trolling Lawyer Abusing DMCA To Try To Silence Critic<\/em>, TechDirt, Aug. 26, 2014; http:\/\/www.techdirt.com\/articles\/20140826\/05415528319\/copyright-trolling\u00adlawyer-abusing-dmca-to-try-to-silence-critics.shtmlt ……………………………………16<\/p>\n

PF Louis, Copyright Trolls, Image Bullies Exposed by ExtortionLetterInfo.com<\/em>, Natural News, June 16, 2013, http:\/\/www.naturalnews.com\/040800_copyright_trolls_lawsuits_intellectual_property.html ……………..16<\/p>\n

.<\/p>\n

INTEREST OF AMICI CURIAE<\/strong><\/p>\n

The Electronic Frontier Foundation (\u201cEFF\u201d) is a nonprofit public advocacy or\u00adganization that uses the skills of lawyers, policy analysts, activists, and technolo\u00adgists to promote Internet freedom, primarily through impact litigation in the Amer\u00adican legal system. From its founding in the nascent days of the modern Internet, EFF has been concerned about protecting online free speech and about stimulating debate on the proper role of copyright law (and copyright enforcement) in a free society. This case is thus of special interest to EFF because a court has issued a clearly unconstitutional speech-restrictive injunction, and in the process stifled speech about the alleged abuse of copyright law.<\/p>\n

Aaron H. Caplan is a professor of law at Loyola Law School, Los Angeles, where he teaches First Amendment law. His recent scholarship has focused on the First Amendment implications of civil restraining orders, such as the one in this case. See Aaron H. Caplan, Free Speech and Civil Harassment Orders, 64 Has\u00adtings L.J. 781 (2013).<\/p>\n

.<\/p>\n

SUMMARY OF ARGUMENT<\/strong><\/p>\n

1. The First Amendment protects the right to speak about people, so long as the speech does not fall into an established First Amendment exception (such as those for defamation or for true threats). This includes the right to speak about private figures, especially when they do something that others see\u2014rightly or wrongly\u2014 as unethical.<\/p>\n

Restraining orders and criminal stalking law may properly restrict unwanted speech to a person. But they may not restrict unwanted speech about a person, again unless the speech falls within a First Amendment exception. The trial court\u2019s order thus violates the First Amendment.<\/p>\n

2. OCGA \u00a7 16-5-90 complies with these principles, because the speech that it bans is limited to \u201ccontact[ing] another person at or about a place or places with\u00adout the consent of the other person for the purpose of harassing and intimidating the other person\u201d (emphasis added). This is properly interpreted to refer just to speech communicated specifically to the target\u2014not speech said to the public at large, such as in a newspaper or on a Web page. Moreover, \u00a7 16-5-90 specifically excludes speech that has any \u201clegitimate purpose.\u201d<\/p>\n

Yet the trial court misinterpreted \u00a7 16-5-90 as also criminalizing speech about people, including speech that has the legitimate purpose of public criticism. As read by the trial court, \u00a7 16-5-90 violates the First Amendment. Read properly, \u00a7 16-5-90 does not violate the First Amendment, but also does not cover Matthew Chan\u2019s speech.<\/p>\n

3. Title 47 U.S.C. \u00a7 230 also protects website operators from being held civilly or criminally liable for speech by their users, and bars injunctions ordering website operators to remove such speech. This is what prohibits, for instance, criminal or civil liability for newspaper websites based on the speech of their online comment\u00aders, though the sites likewise \u201cha[ve] the ability to remove posts in [their] capacity as the moderator[s],\u201d Final Permanent Protective Order, T. 121.<\/p>\n

Yet the trial court took the view that Mr. Chan had the legal duty to remove posts written by users, and expressly ordered Mr. Chan to do so. Indeed, the order suggests that Mr. Chan is required to continue to remove such posts in the future. The order therefore violates \u00a7 230.<\/p>\n

.<\/p>\n

ARGUMENT AND CITATION TO AUTHORITIES<\/strong><\/p>\n

I. \u00a0\u00a0 \u00a0The First Amendment Broadly Protects the Right to Criticize People, Including Private Figures.<\/strong><\/p>\n

By its own terms, Georgia\u2019s stalking statute \u201cshall not apply to persons engaged in activities protected by the Constitution of the United States or of this state.\u201d OCGA \u00a7 16-5-92. Criticism of people is generally constitutionally protected, un\u00adless it falls within the narrow existing First Amendment exceptions, such as for defamation and threats.1 This extends to speech about private individuals as well as to speech about public figures.<\/p>\n

Footnote [1]: Defamation cases are, of course, substantially constrained by the First Amendment. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). Defamation is included here as a First Amendment exception simply in the sense that properly limited defamation stat\u00adutes that comply with the rules set forth in Sullivan, Gertz, and related cases are constitutional.<\/em><\/p>\n

Thus, for instance, in Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), activists who disapproved of a real estate agent\u2019s (apparently lawful) be\u00adhavior repeatedly leafleted near where the agent lived and went to church, demand\u00ading that he change his practices. Indeed, \u201c[t]wo of the leaflets requested recipients to call respondent at his home phone number and urge him to sign the \u2018no solicita\u00adtion\u2019 agreement.\u201d Id. at 417. Yet the Court struck down an injunction against such leafleting, reasoning that<\/p>\n

[n]o prior decisions support the claim that the interest of an individual in be\u00ading free from public criticism of his business practices in pamphlets or leaf\u00adlets warrants use of the injunctive power of a court. Designating the conduct as an invasion of privacy, the apparent basis for the injunction here, is not sufficient to support an injunction against peaceful distribution of informa\u00adtional literature of the nature revealed by this record.<\/em><\/p>\n

Id. at 419-20.<\/p>\n

Likewise, in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), the or\u00adganizers of a boycott of white-owned stores demanded that black customers stop shopping at those stores. The organizers stationed \u201cstore watchers\u201d outside the stores to take down the names of black shoppers who were not complying with the boycott. Those names were then read aloud in local churches, and printed in leaf\u00adlets that were distributed to other black residents. Some of the noncomplying shop\u00adpers were physically attacked for refusing to go along with the boycott. Id. at 894.<\/p>\n

The Supreme Court held that these activities were protected by the First Amendment, despite the backdrop of violence and the attempt to use social ostra\u00adcism to pressure black shoppers to forgo their legal rights to shop at white-owned stores. Though \u201c[p]etitioners admittedly sought to persuade others to join the boy\u00adcott through social pressure and the \u2018threat\u2019 of social ostracism,\u201d the Court held, \u201c[s]peech does not lose its protected character . . . simply because it may embarrass others or coerce them into action.\u201d Id. at 909-10. Even financial liability for such speech was unconstitutional, the Court concluded. Id. at 921. By nature, then, an injunction against such speech would be even more clearly impermissible.<\/p>\n

Similarly, Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), upheld Hus\u00adtler Magazine\u2019s right to criticize Jerry Falwell, even in a harsh and vulgar way; and though Falwell was a public figure, Snyder v. Phelps, 131 S. Ct. 1207 (2011), made clear that Hustler applies to all speech on matters of public concern, even if that speech mentions wholly private figures. Snyder (an intentional infliction of emotional distress case) held that defendants\u2019 speech condemning American legal and military policy was constitutionally protected even when it included severely emotionally distressing statements about an individual fallen soldier. In Snyder, the private person involved was entirely a victim, rather than someone who allegedly behaved unethically (as in Keefe, Claiborne, Hustler, and this case), but the First Amendment protected the speech nonetheless. See Caplan, Free Speech and Civil Harassment Orders, 64 Hastings L.J. at 823-24 (discussing the relevance of Snyder to civil harassment cases).<\/p>\n

To be sure, courts have allowed some restrictions on harmful speech said to an unwilling listener through a one-to-one medium of communication (such as tele\u00adphone or e-mail), when that speech was seen as constituting harassment or stalk\u00ading. But such restrictions on speech to a particular unwilling listener leave speakers entirely free to speak to willing listeners, and to try to persuade those willing lis\u00adteners that the subject of the speech is behaving improperly. As the cases cited above demonstrate, restrictions on such speech about an unwilling subject cannot be justified by the propriety of restrictions on speech to the person. See Eugene Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and \u201cCyberstalking,\u201d 107 Northwestern U. L. Rev. 731, 745-46 (2013) (discussing the constitutional distinction between speech about people and speech to people).<\/p>\n

These cases also establish that Mr. Chan\u2019s speech is constitutionally protected. Ms. Ellis engaged in behavior that many people view as unethical, and indeed as an attempt to suppress others\u2019 statutorily and even constitutionally protected fair use rights. Golan v. Holder, 132 S. Ct. 873 (2012) (describing the right to fair use of copyrighted materials as a \u201c\u2018built-in First Amendment accommodation[]\u2019, quot\u00ading Eldred v. Ashcroft, 537 U.S. 186, 190 (2003)). Discussion of such behavior \u201cconcern[s] \u2018a matter of public significance,\u201d which is defined as requiring only that the posts \u201cgenerally, as opposed to the specific identity contained within [them], involve[] a matter of paramount public import,\u201d Florida Star v. B.J.F., 491 U.S. 524, 536-37 (1989)\u2014the matter here being whether copyright enforcement is being used in an unethical and speech-stifling matter.<\/p>\n

Mr. Chan criticized Ms. Ellis\u2019s business practices, and Ms. Ellis may have viewed some of that criticism as untrue; but any legal action Ms. Ellis takes in re\u00adsponse to alleged falsehoods must abide by the constitutionally required limitations on the defamation tort. See Hustler, 485 U.S. at 56 (applying First Amendment limits on defamation law to intentional infliction of emotional distress claim); Time, Inc. v. Hill, 385 U.S. 374, 387-88 (1967) (applying First Amendment limits on defamation law to false light invasion of privacy claim). The abbreviated and expedited procedures that OCGA \u00a7 16-5-94 envisions for genuine cases of stalking are not designed to resolve the legal questions involved in a defamation action. \u201cA petitioner should not be able to evade the limits on defamation law (many of them constitutionally mandated) by redesignating the claim as civil harassment.\u201d Caplan, Free Speech and Civil Harassment Orders<\/em>, 64 Hastings L.J. at 821; see also id. at 837, 849.<\/p>\n

Ms. Ellis also claims that the website contains true threats against her. Mr. Chan criticized Ms. Ellis, and provided a forum in which others criticized her as well. Even if some of the material posted on the forum is properly viewed as physically threatening\u2014and amici think that it is not\u2014the injunction goes very far beyond threatening speech, and covers all the material posted about Ms. Ellis. Likewise, that Mr. Chan posted the name of Ms. Ellis\u2019s husband and the subdivision in which Ms. Ellis lived cannot justify an injunction, just as the posting of Mr. Keefe\u2019s actu\u00adal home telephone number could not justify an injunction in Keefe.<\/p>\n

Indeed, the only possible justification for the remarkable breadth of the injunc\u00adtion in this case (\u201cRespondent is hereby ORDERED to remove all posts relating to Ms. Ellis,\u201d Final Permanent Protective Order, T. 121) would be a conclusion that Ms. Ellis is entitled not to be sharply criticized online at all. The injunction is not limited to threatening statements or even to statements that discuss Ms. Ellis\u2019s hus\u00adband or the area in which Ms. Ellis lives (though, again, such statements may well be protected given Keefe); instead, it applies to all speech about Ms. Ellis. Yet, un\u00adder the First Amendment, no such entitlement to be free from criticism can exist.<\/p>\n

.<\/p>\n

II. \u00a0\u00a0 \u00a0The Trial Court Wrongly Concluded That the Speech About Ms. Ellis Violated OCGA \u00a7\u00a7 16-5-90 et seq.<\/strong><\/p>\n

Georgia\u2019s stalking statute is designed to advance public safety in cases where an obsessed person threatens the physical safety and privacy of others, in a manner resembling that which occurs in cases of domestic violence. See generally Caplan, Free Speech and Civil Harassment Orders, 64 Hastings L.J. at 790-95 (tracing the history of civil harassment statutes). Such statutorily-forbidden stalking can be seen in cases like Garnsey v. Buice, 306 Ga. App. 565, 565, 703 S.E.2d 28, 29 (2010), or De Louis v. Sheppard, 277 Ga. App. 768, 769, 627 S.E.2d 846, 847 (2006), where the defendants, standing near their victims, made obscene gestures, yelled obscenities, shot firearms into the air, ran noisy leaf blowers in the middle of the night, blocked access to driveways, shone spotlights into bedroom windows, and attempted to run cars off the road. This case presents an entirely different sce\u00adnario, which does not involve the sort of conduct the Georgia legislature properly sought to restrain.<\/p>\n

A. To the Extent Section 16-5-90 Covers Speech, It Covers Only Speech to a Person, not Speech About a Person.<\/strong><\/p>\n

The trial court erred in interpreting Georgia\u2019s civil and criminal stalking provi\u00adsions. OCGA \u00a7 16-5-94 authorizes a restraining order only upon proof of \u201cconduct constituting stalking\u201d as defined in \u00a7 16-5-90. Under \u00a7 16-5-90(a)(1), a person commits the offense of stalking when \u201che or she follows, places under surveil\u00adlance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.\u201d \u201c[H]arassing and intimidating\u201d is further defined in OCGA \u00a7 16-5-90 as a \u201cknow\u00ading and willful course of conduct directed at a specific person which causes emo\u00adtional distress by placing such person in reasonable fear for such person\u2019s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior and which serves no legitimate purpose.\u201d The statute is further limited by OCGA \u00a7 16-5-92, which says 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

By their plain language, these provisions require \u201cconduct\u201d or \u201cbehavior\u201d that amounts to \u201cfollowing\u201d or \u201csurveillance\u201d or \u201ccontact at or about a place,\u201d all of which must be for the purpose of \u201charassing and intimidating\u201d a victim. \u201cHarassing and intimidating\u201d is a term of art that requires far more than proof that a defendant criticized someone so strongly that it caused emotional distress. To be \u201charassing and intimidating,\u201d defendant\u2019s \u201ccontact at or about a place\u201d with the victim must be \u201cdirected at a specific person\u201d (not at the public at large), and must give rise to \u201creasonable fear\u201d for one\u2019s safety. The chief sponsor of the Act\u2019s 1998 amend\u00adments included language requiring a pattern of severe misconduct \u201cto help avoid abuse of the [judicial] system by people who overreact or become vindictive.\u201d Cathie J. France, Crimes and Offenses Crimes Against the Person: Redefine Stalk\u00ading, 15 Ga. St. U. L. Rev. 62, 66 (1998).<\/p>\n

Writing about a person is not equivalent to \u201cfollowing\u201d or \u201csurveillance.\u201d See Trummel v. Mitchell, 131 P.3d 305 (Wash. 2006) (holding that trial court abused its discretion by concluding that posting a story on the Internet, based on lawfully-obtained information, constituted \u201csurveillance\u201d). Similarly, posts on a discussion site about a person do not constitute \u201ccontact\u201d with that person. \u201cContact\u201d is de\u00adfined in \u00a7 16-5-90 to mean \u201ccommunication.\u201d This is consistent with earlier inter\u00adpretations of \u201ccontact\u201d as meaning \u201cto get in touch with; communicate with,\u201d Johnson v. State, 264 Ga. 590, 591, 449 S.E.2d 94 (1994) (quoting American Her\u00aditage Dictionary (3d ed. 1992)). These terms connote an active attempt to convey a message directly to an identified listener, and not dissemination of a message that reaches the public at large.<\/p>\n

Speech directed to third parties other than the victim, including speech pub\u00adlished to the world at large, is not \u201ccontact\u201d with the victim. Just as \u201c[p]ublishing or discussing a person\u2019s medical condition with others obviously does not consti\u00adtute following, placing under surveillance, or contacting that person,\u201d Collins v. Bazan, 256 Ga. App. 164, 165, 568 S.E.2d 72, 73 (2002) (reversing portion of a protective order under \u00a7 16-5-94), so publishing or discussing a person\u2019s threats to litigate likewise does not qualify as following, placing under surveillance, or con\u00adtacting that person.<\/p>\n

Writing for a general audience about a person is not the same as contacting that person. We would not say, for instance, that the Washington Post contacted Presi\u00addent Obama by publishing a comment critical of him in the newspaper. And we certainly would not say that the Washington Post contacted President Obama by failing to remove a critical website comment from a reader.<\/p>\n

Even an open letter published on the Post site, or a column written as a state\u00adment to the President (\u201cDear President Obama …\u201d), would not properly be seen as contacting the President, including when the author hopes or intends that the Presi\u00addent would be among the readers. Rather, such communications are speech to the readership of the publication at large, even when the speech criticizes a particular person who may (like the rest of the public) encounter the criticism.<\/p>\n

The same principles apply when the communications occur over the Internet:<\/p>\n

Emails, texts, instant messages, and similar messages sent to a unique ad\u00address of the petitioner may legitimately be considered contacts, just as a phone call would be. But writings on social media sites, blogs, or other web-related venues that have larger audiences are speech about the petitioner, ra\u00adther than speech to the petitioner. They are no more \u201cdirected at\u201d the peti\u00adtioner within the meaning of [civil harassment] statutes than is the publica\u00adtion of a book or newspaper.<\/em><\/p>\n

Caplan, Free Speech and Civil Harassment Orders<\/em>, 64 Hastings L.J. at 849.<\/p>\n

Indeed, in Marks v. State, 306 Ga. App. 824, 825, 703 S.E.2d 379 (2010), the court held that a web posting discussing a third party \u201cobviously does not consti\u00adtute . . . contacting that person.\u201d Even posting falsehoods about someone on several websites and e-mailing these postings to several people, the court held, is not \u201ccon\u00adtact\u201d or even \u201cindirect contact.\u201d Id. Because the messages were never sent to the alleged victim, the court found that \u201cno evidence was presented suggesting that Marks authored the web postings in order to get in touch with or communicate with his ex-wife.\u201d Id.<\/p>\n

This was so even though it was doubtless likely that the statements about the ex-wife would eventually be communicated by someone to her (even if just by a friend who wanted her to be aware of what was being said about her), and even if the defendant may have wanted the ex-wife, in common with the rest of the world, to see them. Similarly, the posts on the ExtortionLetterInfo.com website were nev\u00ader sent by Mr. Chan to Ms. Ellis, and thus do not constitute \u201ccontact[ing]\u201d Ms. El\u00adlis. Cf. Thornton v. Hemphill, 300 Ga. App. 647, 686 S.E.2d 263 (2009) (upholding a restraining order premised in part on \u201ccontact\u201d using the Internet, where the elec\u00adtronic contact involved e-mails sent to the target, not speech to the public about the target).<\/p>\n

Finally, even if some items posted by Mr. Chan personally could be seen as at\u00adtempts to \u201ccontact\u201d Ms. Ellis, on the theory that Mr. Chan was hoping that Ms. El\u00adlis would read the materials, the great bulk of the material that the trial court or\u00addered removed\u2014\u201call posts relating to Ms. Ellis\u201d\u2014(1) would not qualify as \u201ccon\u00adtact[ing]\u201d Ms. Ellis even under such a theory, or (2) were not written by Mr. Chan.<\/p>\n

B. Section 16-5-90 Does Not Apply to Public Criticism of a Person, Because Such Criticism Qualifies as a \u201cLegitimate Purpose.\u201d<\/strong><\/p>\n

Section 16-5-90 also expressly excludes any speech said with a \u201clegitimate pur\u00adpose.\u201d Georgia courts rightly take a broad view of \u201clegitimate purpose.\u201d In Pilcher v. Stribling, 282 Ga. 166, 647 S.E.2d 8 (2007), for instance, a group of firefighters sought a protective order against their chief under \u00a7 16-5-94, providing evidence that he had physically assaulted them \u201cduring basketball games conducted as part of their required physical training.\u201d This Court, though, concluded that the conduct was done \u201cfor the legitimate purpose of physical training,\u201d and was thus not cov\u00adered by \u00a7 16-5-94. Likewise, in Norman v. Doby, 321 Ga. App. 126, 741 S.E.2d 293 (2013), an ex-husband made over 50 phone calls and sent over 20 text messag\u00ades to his ex-wife in one weekend, but the Court of Appeals held that the protective order was rightly denied because there was sufficient evidence that the conduct was for the legitimate purpose of getting messages to his children.<\/p>\n

The legitimate purpose in Mr. Chan\u2019s posts is even clearer. The posts about Ms. Ellis informed the public about Ms. Ellis\u2019 attempts to collect large sums of money for what she claimed were copyright infringements, and criticized those attempts. Criticism of what the speaker perceives (rightly or wrongly) as extortionate and le\u00adgally unfounded threats of litigation is a legitimate purpose. See, e.g., People v. Bethea, 781 N.Y.S.2d 626 (Crim. Ct. 2004) (a \u201cpurpose . . . to criticize, denounce and humiliate Mr. Williams because defendant believes he has been a poor father to their child\u201d \u201cis lawful and legitimate because Americans are, after all, free to criticize one another\u201d); State v. Fratzke, 446 N.W.2d 781 (Iowa 1989) (concluding that even \u201cthe use of offensive language\u201d does not \u201cnegate (and thereby criminal\u00adize) the otherwise legitimate purpose of protesting governmental action\u201d).<\/p>\n

Indeed, such criticism of allegedly unethical behavior was precisely the purpose involved in Keefe and Hustler, and in large measure the purpose in Claiborne Hardware (though there the purpose of criticizing blacks who patronized white-owned stores was a means towards the end of furthering the boycott of those stores). And such criticism is part of the purpose of ExtortionLetterInfo.com, which was created to \u201cdiscover, report, and comment\u201d on certain copyright en\u00adforcement practices\u2014practices that the founder views as \u201ctechnically legal but eth\u00adically and morally questionable\u201d because they \u201cbull[y] and prey[] upon the legal ignorance of the letter recipients.\u201d Mission Statement, http:\/\/www. extortionletterinfo.com (last accessed Sept. 5, 2014). Indeed, ExtortionLetter\u00adInfo.com and its founder are regularly mentioned by other news sources on pre\u00adcisely such matters.2<\/p>\n

Footnote [2]: See, e.g., Mike Masnick, Copyright Trolling Lawyer Abusing DMCA To Try To Silence Critic, TechDirt, Aug. 26, 2014; http:\/\/www.techdirt.com\/articles\/ 20140826\/05415528319\/copyright-trolling-lawyer-abusing-dmca-to-try-to-silence\u00adcritics.shtmlt; Cory Doctorow, Copyright Troll Abuses DMCA in Bid to Censor His Previous Life as a Troll-Fighter, BoingBoing, Aug. 26, 2014, http:\/\/boingboing. net\/2014\/08\/26\/copyright-troll-abuses-dmca-in.html; Bob Audette, Lawsuit Against Vernon Company Dropped, refiled, Battleboro (Vt.) Reformer, July 31, 2014, http:\/\/www.reformer.com\/localnews\/ci_26247454\/lawsuit-against-vernon\u00adcompany-dropped-refiled; Christopher Zara, Getty Images Lawsuits: Enforcement or Trolling? Fear of Letters Dwindling, Stock-Photo Giant Hits Federal Courts, Int\u2019l Bus. Times, Feb. 7, 2014, http:\/\/www.ibtimes.com\/getty-images-lawsuits\u00adenforcement-or-trolling-fear-letters-dwindling-stock-photo-giant-hits-federal; PF Louis, Copyright Trolls, Image Bullies Exposed by ExtortionLetterInfo.com, Natu\u00adral News, June 16, 2013, http:\/\/www.naturalnews.com\/040800_copyright_trolls_ lawsuits_intellectual_property.html; Jeff John Roberts, Copyright Trolls 2.0: Im\u00adage Sites Embrace Righthaven Tactics, Sept. 19, 2012, GigaOm, http:\/\/gigaom. com\/2012\/09\/19\/copyright-trolls-2-0-image-sites-embrace-righthaven-tactics\/.<\/em><\/p>\n

New York\u2019s high court recently struck down a criminal harassment statute that contained a \u201cno legitimate purpose\u201d clause, in part on the grounds that \u201cthe First Amendment forbids the government from deciding whether protected speech quali\u00adfies as \u2018legitimate.\u2019\u201d People v. Marquan M., Case No. 139, 2014 N.Y. LEXIS 1527, 2014 WL 2931482 (N.Y. 2014). Amici agree with Marquan M. that speech about a person that does not fall within a First Amendment exception constitutes \u201cprotected speech\u201d under the First Amendment, and thus cannot be barred based on inferences about the speaker\u2019s supposedly improper purpose. \u201c\u2018[U]nder well-accepted First Amendment doctrine, a speaker\u2019s motivation is entirely irrelevant to the question of constitutional protection.\u2019\u201d FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 468 (2007) (quoting Martin Redish, Money Talks: Speech, Economic Power, and the Values of Democracy 91 (2001)); see also Caplan, Free Speech and Civil Harassment Orders, 64 Hastings L.J. at 814-15 (arguing that the \u201cno le\u00adgitimate purpose\u201d elements in civil harassment statutes may be unconstitutionally vague); Volokh, One-to One Speech vs. One-to-Many Speech, 107 Northwestern U. L. Rev. at 776-80 (likewise). But even if some otherwise protected speech could be barred on the grounds that it has \u201cno legitimate purpose,\u201d the purpose of public\u00adly criticizing someone who was allegedly misusing the threat of litigation is emi\u00adnently legitimate. And for the reasons described in Part I, Mr. Chan was \u201cengaged in activities protected by the Constitution of the United States\u201d when he managed his website, which means that the stalking statute \u201cshall not apply\u201d to him at all. \u00a7 16-5-92.<\/p>\n

Indeed, to the extent that there is any constitutional doubt here, \u00a7 16-5-90 should be interpreted to avoid such doubt. Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). And such an interpretation would simply involve reading the statute the most natural way\u2014as prohibiting speech that \u201ccontact[s]\u201d a person in the sense of being speech said specifically to a person, and as excluding speech that is said about a person to a large audience (or speech that has the legitimate purpose of public criticism).<\/p>\n

C. The Injunction to Delete All References to Ms. Ellis Exceeds Statutory Authority and Is Unconstitutional for its Overbreadth and Because It Is A Prior Restraint.<\/strong><\/p>\n

In those cases where \u201cconduct constituting stalking\u201d is shown by a preponder\u00adance of the evidence, \u00a7 16-5-94(d)(1) authorizes an injunction to \u201cdirect a party to refrain from such conduct\u201d (emphasis added). But in this case, the trial court or\u00addered Mr. Chan to \u201cto remove all posts relating to Ms. Ellis\u201d (emphasis added), no matter what they said or who wrote them.<\/p>\n

The order thus exceeds the scope of the statute, because it eliminates not merely \u201cconduct constituting stalking\u201d (if any is found to exist), but also other conduct. The order would require Mr. Chan to remove truthful statements about Ms. Ellis, expressions of opinion about Ms. Ellis, defenses of Ms. Ellis posted by her sup\u00adporters, or any other statement, no matter how constitutionally protected.<\/p>\n

A no-contact order is aimed at preventing statutorily forbidden surveillance, fol\u00adlowing, and contact. An order mandating the removal of speech on an entire sub\u00adject (anything about Ms. Ellis) goes far beyond the statutory prohibition. Indeed, this Court recently held\u2014dealing with OCGA \u00a7 34-1-7, the workplace violence re\u00adstraining order statute\u2014that a protective order \u201cmay extend only as far as\u201d the un\u00adderlying statutory prohibition on improper contact, and therefore \u201cvacate[d] the in\u00adjunction and remand[ed] the case to the trial court for the entry of a new injunction that is fully consistent with OCGA \u00a7 34-1-7(e).\u201d Danforth v. Apple Inc., 294 Ga. 890, 897-98, 757 S.E.2d 96, 101-02 (2014).<\/p>\n

The overbreadth of the injunction also makes it an unconstitutional prior re\u00adstraint. See Tory v. Cochran, 544 U.S. 734, 738 (2005) (vacating an overbroad in\u00adjunction on the grounds that it \u201camounts to an overly broad prior restraint upon speech, lacking plausible justification\u201d). An \u201corder\u201d issued in \u201cthe area of First Amendment rights\u201d must be \u201cprecis[e]\u201d and narrowly \u201ctailored\u201d to achieve the \u201cpin-pointed objective\u201d of the \u201cneeds of the case.\u201d Carroll v. President & Comm\u2019rs of Princess Anne, 393 U.S. 175, 183-84 (1968); Caplan, Free Speech and Civil Harassment Orders, 64 Hastings L.J. at 817-24 (discussing the First Amend\u00adment problems with overbroad injunctions). And the injunction violates 47 U.S.C. \u00a7 230, for the reasons explained below.<\/p>\n

.<\/p>\n

III. \u00a0\u00a0 \u00a0Mr. Chan May Not Be Held Liable for the Speech of Third-Party Content Creators Posting on His Forum, Nor May He Be Held Liable for Not Removing Such Content.<\/strong><\/p>\n

\u201c[C]ourts have \u2018consistently held that \u00a7 230 provides a \u2018robust\u2019 immunity, and that all doubts must be resolved in favor of immunity.\u2019\u201d Internet Brands, Inc. v. Jape, 760 S.E.2d 1, 4 (Ga. App. June 24, 2014); see also Jones v. Dirty World En\u00adtertainment Recordings, 755 F.3d 398 (6th Cir. 2014); Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003); Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). Someone who operates an online forum cannot be held liable for \u201ccon\u00adtent [that] was \u2018independently created or developed by third-party users.\u2019\u201d Internet Brands, 760 S.E.2d at 4.3 \u201cState-law plaintiffs may hold liable the person who cre\u00adates or develops unlawful content, but not the interactive computer service provid\u00ader who merely enables that content to be posted online.\u201d Id. at 2-3 (quoting Nemet Chevrolet v. Consumeraffairs.com, Inc., 591 F.3d 250, 252 (4th Cir. 2009)).<\/p>\n

The trial court thus erred in holding that Mr. Chan\u2019s \u201cability to remove posts in his capacity as the moderator,\u201d coupled with his \u201ccho[osing] not to remove posts that were personally directed at Ms. Ellis,\u201d4 meant that Mr. Chan had violated \u00a7 16-5-90. A website moderator is not liable for defamation simply because he al\u00adlows people to post allegedly defamatory posts, Internet Brands, 760 S.E.2d at 2-3, or chooses not to remove allegedly defamatory posts, Jones, 755 F.3d at 416; Ze\u00adran, 129 F.3d at 330. Likewise, such a moderator\u2019s choice not to remove allegedly threatening posts does not make him guilty of stalking. See, e.g., Delfino v. Agilent Technologies, Inc., 145 Cal. App. 4th 790, 807-08 (2006) (applying \u00a7 230 immuni\u00adty to shield company from liability for threatening messages sent using its comput\u00ader services); Lansing v. Southwest Airlines Co., 980 N.E.2d 630, 637 (App. Ct. Ill. 2012) (same); Doe v. America Online, Inc., 783 So. 2d 1010, 1018 (Fla. 2001) (ap\u00adplying \u00a7 230 immunity to shield company from liability for child pornography that featured plaintiff\u2019s son and that was distributed by user of the company\u2019s computer services).5<\/p>\n

Footnote [3]: See also Aaron H. Caplan, Public School Discipline for Creating Uncensored Anonymous Internet Forums, 39 Willamette L. Rev. 93, 164-175 (2003) (discuss\u00ading applicability of \u00a7 230(c) to online bulletin board and chat room operators). <\/em><\/p>\n

Footnote [4]: Final Permanent Protective Order, T. 121.<\/em><\/p>\n

Footnote [5]: Section 230 provides immunity against state criminal laws as well as against civil liability. See Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1274\u00ad75 (W.D. Wash. 2012); Voicenet Communications, Inc. v. Corbett, 39 Communica\u00adtions Reg. (P&F) 430 at 3 (E.D. Pa. 2006); People v. Gourlay, 2009 WL 529216, *3 (Mich. Ct. App. Mar. 3, 2009). Section 230(e)(3) expressly states, \u201cNo cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section\u201d (emphasis added), and \u00a7 230(e)(1) ex\u00adpressly exempts \u201cFederal criminal statute[s]\u201d; state criminal statutes are thus cov\u00adered.<\/em><\/p>\n

The trial court also \u201cenjoined and restrained\u201d Mr. Chan from \u201cany act constitut\u00ading a violation of OCGA \u00a7\u00a7 16-5-90 et seq. and . . . harassing, interfering, or intim\u00adidating the Petitioner or Petitioner\u2019s immediate family.\u201d Final Permanent Protec\u00adtive Order, T. 121. Given the trial court\u2019s earlier conclusion that Mr. Chan\u2019s allow\u00ading various posts about Ms. Ellis on his site constituted a violation of \u00a7 16-5-90, the court was presumably ordering Mr. Chan not to allow such posts on his site in the future. That, too, violates 47 U.S.C. \u00a7 230, because it likewise holds him re\u00adsponsible for policing the speech of the site\u2019s users.<\/p>\n

In enacting 47 U.S.C. \u00a7 230, Congress recognized that online speech would be jeopardized if Internet service and content providers were held liable for policing the speech of their users. \u201cThe specter of tort liability in an area of such prolific speech [i.e., the Internet] would have an obvious chilling effect.\u201d Zeran, 129 F.3d at 331. Congress therefore made it unnecessary for such providers to moderate posted material, either in general or even when someone gave the provider notice that certain material was allegedly actionable. \u201cIt is, by now, well established that notice of the unlawful nature of the information provided is not enough to make it the service provider\u2019s own speech.\u201d Universal Commc\u2019n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 420 (1st Cir. 2007); see also, e.g., Carafano v. Metrosplash.com Inc., 339 F.3d 1119, 1124 (9th Cir. 2003); Jones, 755 F.3d at 407.<\/p>\n

As the Zeran court found, even a regime of notice-based liability would com\u00adpromise the \u201crobust nature of Internet communication.\u201d Zeran, 129 F.3d at 330, 332-33. Under such a regime, websites that distribute third party content\u2014political discussion sites, restaurant review sites, and so on\u2014would tend to play it safe, and try to avoid liability by censoring any speech that might be seen by its subject as objectionable, even if it is in fact nonactionable. After all, taking down something that would ultimately be found to be nondefamatory and nonthreatening would merely risk alienating a few customers, and most website operators would have lit\u00adtle economic incentive to defend those customers\u2019 interests through litigation. On the other hand, not removing the material would risk criminal punishment, massive civil liability, or huge legal expenses even if the post would have eventually been found to be constitutionally protected.<\/p>\n

And because service providers would be understandably concerned about po\u00adtential liability (civil and criminal), complaining parties would gain the power to suppress even speech that they know is not actually illegal or actionable\u2014but is merely offensive to them\u2014because they would know that most website operators will err on the side of caution. \u201cIf notice could defeat immunity, anyone in any way \u2018displeased\u2019 with posted materials could utilize notice as a \u2018no-cost\u2019 means to cre\u00adate the basis for future lawsuits.\u201d Donato v. Moldow, 865 A.2d 711, 726 (N.J. Su\u00adper. Ct. App. Div. 2005). \u201cWhile Congress could have made a different policy choice, it opted not to hold interactive computer services liable for their failure to edit, withhold or restrict access to offensive material disseminated through their medium.\u201d Blumenthal v. Drudge, 992 F. Supp. 44, 49 (D.D.C. 1998).<\/p>\n

The trial court also ordered Mr. Chan \u201cto remove all posts relating to Ms. Ellis.\u201d Final Permanent Protective Order, T. 121. Such an order, besides being vastly overbroad and inconsistent both with the First Amendment (see Part I) and \u00a7 16-5\u00ad90 (see Part II), also violates 47 U.S.C. \u00a7 230. A website operator may not be or\u00addered to remove allegedly actionable third-party content, just as it may not be held liable for hosting such contact. See Giordano v. Romeo, 76 So. 3d 1100, 1102 (Fla. Ct. App. 2011) (refusing to order defendant to remove material from its site, be\u00adcause, under 47 U.S.C. \u00a7 230, the defendant \u201cenjoys complete immunity from any action brought against it as a result of the postings of third party users of its web-site\u201d); Reit v. Yelp!, Inc., 907 N.Y.S.2d 411, 412 (Sup. Ct. 2010) (relying on 47 U.S.C. \u00a7 230 in refusing to \u201corder[] Yelp to delete from Yelp.com all references to him and his dental practice\u201d).<\/p>\n

To be sure, Ms. Ellis is free to sue any person who created specific content about her (including Mr. Chan, if he was the author) to recover damages if that content is found to be constitutionally unprotected and tortious (e.g., defamatory or threatening). She just may not hold Mr. Chan liable for others\u2019 speech, or get an in\u00adjunction ordering the removal of all speech about her, including speech that does not fall within any First Amendment exception.<\/p>\n

.<\/p>\n

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

For these reasons, the amicus curiae respectfully requests that this Court vacate the lower court\u2019s injunction, and order the lower court to enter judgment in favor of Mr. Chan.
\nRespectfully submitted, this 5th day of September, 2014.<\/p>\n

\/s\/ Darren Summerville<\/span><\/p>\n

Eugene Volokh
\n(Pro hac vice admission pending)
\nCA State Bar No.: 194464
\nUCLA School of Law First Amendment Amicus Brief Clinic
\n405 Hilgard Ave. Los Angeles, CA 90095
\n(310) 206-3926
\nvolokh@law.ucla.edu<\/p>\n

Darren Summerville
\nGA State Bar No.: 691978
\nLeighton Moore GA State Bar No. 520701
\nSummerville Moore, P.C.
\n400 Colony Square, Suite 2000
\n1201 Peachtree Street, NE
\nAtlanta, Georgia 30361
\n(770) 635-0030
\ndarren@summervillemoore.com<\/p>\n

Co-counsel for Amici<\/strong><\/p>\n

.<\/p>\n

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

I hereby certify that I have delivered the attached Brief of Amici The Electronic Frontier Foundation and Professor Aaron Caplan<\/strong> to all counsel either by first class mail or by email service in PDF format, if a written agreement between counsel regarding such service. Service was made to:<\/p>\n

William J. McKenny
\nMcKenny & Froelich
\n50 Polk Street, NW
\nMarietta, GA 30064<\/p>\n

Oscar Michelen
\nCuomo LLC
\n200 Old Country Road
\nSuite 2 South
\nMineola, NY 11501<\/p>\n

Elizabeth Wagner McBride
\nPage, Scranton, Sprouse, Tucker & Ford, P.C.
\nP.O. Box 1199
\nColumbus, GA 31902<\/p>\n

Timothy B. McCormack
\nMcCormack Intellectual Property Business Law P.S.
\n617 Lee Street
\nSeattle, WA 98109<\/p>\n

I have also filed the foregoing document with the Supreme Court\u2019s e-file system, which will cause an electronic copy of the attached to be delivered to all counsel.<\/p>\n

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

\/s\/ Darren Summerville<\/span>
\nDarren Summerville
\nGA Bar No. 691978<\/p>\n

\n","protected":false},"excerpt":{"rendered":"

IN THE SUPREME COURT FOR THE STATE OF GEORGIA Case No.: S14A1652 Court of Appeals No.: A14A0014 Lower Court No.: SU13DM409 MATTHEW CHAN, Appellant v. LINDA ELLIS, Appellee . BRIEF OF AMICI CURIAE OF THE ELECTRONIC FRONTIER FOUNDATION AND PROFESSOR AARON H. CAPLAN IN SUPPORT OF APPELLANT . Eugene Volokh (Pro hac vice admission pending) […]<\/p>\n","protected":false},"author":1,"featured_media":1072,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[67],"tags":[33,44,48,35,36,37,31,68,64,49,143,136,29,21,72,47,62,135],"class_list":["post-273","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-chan-v-ellis-appeal","tag-aaron-h-caplan","tag-amicus-brief","tag-communications-decency-act","tag-darren-summerville","tag-eff","tag-electronic-frontier-foundation","tag-eugene-volokh","tag-first-amendment-2","tag-first-amendment-amicus-brief-clinic","tag-georgia-supreme-court","tag-internet-free-speech","tag-legitimate-purpose","tag-linda-ellis","tag-matthew-chan","tag-prior-restraint-abuse","tag-section-230","tag-summerville-moore","tag-true-threats","has-post-title","has-post-date","has-post-category","has-post-tag","has-post-comment","has-post-author",""],"jetpack_publicize_connections":[],"jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p4xEap-4p","builder_content":"","jetpack_featured_media_url":"https:\/\/defiantly.net\/wp-content\/uploads\/2014\/09\/eff-logo-plain-72.jpg","_links":{"self":[{"href":"https:\/\/defiantly.net\/index.php?rest_route=\/wp\/v2\/posts\/273","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/defiantly.net\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/defiantly.net\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/defiantly.net\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/defiantly.net\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=273"}],"version-history":[{"count":1,"href":"https:\/\/defiantly.net\/index.php?rest_route=\/wp\/v2\/posts\/273\/revisions"}],"predecessor-version":[{"id":2719,"href":"https:\/\/defiantly.net\/index.php?rest_route=\/wp\/v2\/posts\/273\/revisions\/2719"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/defiantly.net\/index.php?rest_route=\/wp\/v2\/media\/1072"}],"wp:attachment":[{"href":"https:\/\/defiantly.net\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=273"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/defiantly.net\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=273"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/defiantly.net\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=273"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}