For those interested in following the progress of my appeal currently with the Georgia Supreme Court as well as learning the history of this case, I have presented a table of essential appellate court case documents here.
Oral Argument Videos: October 7, 2014 – Downtown Atlanta. (Oscar Michelen & Eugene Volokh arguing for Appellant Matthew Chan, Elizabeth W. (Betsy) McBride & Timothy B. McCormack for Appellee Linda Ellis)
A complete listing of all court documents including letters, pleadings, press releases, and other minor court documents can be found in the Matthew Chan v. Linda Ellis Georgia Appeal collection on Scribd.
Because the Georgia Supreme Court only allows public viewing of any oral argument video for 30-45 days, I made special arrangements to preserve and host the Chan v. Ellis Georgia Georgia Supreme Court Oral Argument video from October 7, 2014 at 2pm.
In attendance in support of Appellant (Matthew Chan) were: Oscar Michelen, Eugene Volokh, Darren Summerville. Unseen attendees in the audience were: Greg Troy, Robert Krausankas, April Brown, Matthew Chan, and Stinger.
In attendance in support of Appellee (Linda Ellis) were: Elizabeth W. (Betsy) McBride, Timothy B. McCormack. Unseen attendees in the audience were: Linda Ellis, John W. Jolin.
The Complete Uncut Oral Argument (41-minutes)
For those who prefer to watch each segment separately or specific segments, there are five videos representing each distinct presentation.
1. Opening & Oscar Michelen (10-minutes)
2. Eugene Volokh (8-minutes)
3. Elizabeth W. (Betsy) McBride (11-minutes)
4. Timothy B. McCormack (9-minutes)
5. Oscar Michelen Rebuttal & Adjournment (2-minutes)
One of the positive outcomes and prouder moments on the Chan v. Ellis appeal is having legal scholar, Eugene Volokh, join my legal team. Many of us were in shock and awe when, at my request, he agreed in July 2014 to look at my case. He offered his insights and expertise to my lead attorney, Oscar Michelen, which culminated with Eugene personally co-arguing with on behalf of my position in front of the Georgia Supreme Court in October 2014. Everyone was honored by his presence and participation. I am certainly proud of my association with him and happy to call him a friend.
Even before my appeal was decided, we knew that my case would make Georgia legal history due to the nature of the First Amendment and Section 230 CDA issues being argued. Win, lose, or draw, we knew the Chan v. Ellis case would ultimately be referred to at some point in the future. However, I didn’t realize that it would only be a few months later in August 24, 2015 when Eugene wrote in his blog, Volokh Conspiracy (hosted by the Washington Post), that he included a reference to Chan v. Ellis in another amicus brief filed in Massachusetts.
The emphasis and argument is that it is well within the First Amendment for anyone to speak ABOUT someone without fear of judicial recrimination. And that is something I and many others greatly value when we write and discuss controversial subjects, actions, and people. Preserving the right to report on others questionable actions is core to the freedom of the press that all bloggers enjoy in the U.S.
This is Part 6 of the “Cleaning Up the ‘Chan v. Ellis’ Mess” commentary series. If you have not read Parts 1, 2, 3, 4, and, 5, you should do that first and then come back here. Everything will make more sense to you.
Linda Ellis (Dash Poem author) and her lawyer, Elizabeth W. (Betsy) McBride, through their unwise choices wasted many people’s time, energy, and resources by forcing me and my team into the Georgia appellate process. Although many unintended benefits and priceless relationships were formed along the way through this two-year ordeal, none of this had to happen.
But the Chan v. Ellis appeal happened, it was ultimately decided by the Georgia Supreme Court Justices, and that case and decision is now part of Georgia legal history. Following the decision, one might think it is now resolved and all over. I was hoping it might but, unfortunately, the often-foolish Linda Ellis made certain declarations and took actions post-decision that were brought to my and my lawyer’s (Oscar Michelen) attention.
What people need to understand is that no matter how much Linda desperately tries to portray me in a “stalky” fashion, I can easily and objectively prove my claims and assertions all using the proper context. Linda is so foolish that she cannot see the havoc and collateral damage she has caused so many people in her efforts to smear me. She might have succeeded in creating some collateral damage for me and ELI but as time passes, she might one day see that she is being self-destructive and will have caused immeasurable harm to herself, her “employee” John W. Jolin, and her lawyer co-horts, Timothy B. McCormack and Elizabeth W. (Betsy) McBride and quite possibly even the law firm Betsy works for.
Oscar Michelen’s Cease-and-Desist Letter to Linda Ellis
But first things first. After a great deal of discussion and reflection, I am now publicly releasing Oscar Michelen’s Cease and Desist Letter (on behalf of Matthew Chan) to Linda Ellis. It was sent to Linda’s lawyer, Elizabeth W. (Betsy) McBride on April 13, 2015. We have no way of knowing for certain if or when Betsy received Oscar’s letter. He informed me that he had both emailed her and mailed a copy to her using the U.S. Postal service. As far as we know, Betsy still represents Linda in all matters between the legal dispute between me and Linda including matters following the Georgia Supreme Court decision. Hence, Oscar sent his letter to Betsy which should then be delivered or communicated to Linda.
Given that it has been two full business days with no acknowledgement of receipt or response by Betsy, I see no reason to further withhold Oscar Michelen’s Cease and Desist Letter to Linda Ellis from public viewing. It is our intention to settle once and for all the matter of her potentially defamatory language when she makes false statements of fact about me and the case. I believe Betsy is capable of clearly explaining to Linda that she is perfectly able to use the words “stalker” or “cyberstalker” in her vernacular. But as it relates to me, we now regard the style of her usage as potentially defamatory against me. Certainly, no one can make Linda do anything she does not want to but going forward she has been issued a formal, legal notice.
I have never issued a formal “cease and desist” letter through a lawyer before. This is my first time to do so. But only because Linda caused such a public, legal train-wreck that continues to cause collateral damage that I agreed to have a Cease & Desist letter written.
Cease & Desist Letter to Linda Ellis Was Not My Idea
I want it known that Oscar Michelen’s Cease and Desist Letter to Linda Ellis was not even my idea. I didn’t even push for it. Full credit goes to my friend and ELI supporter, Robert Krausankas. He read something that Linda posted online about me which irritated and bothered him. Robert then emailed me and Oscar and suggested that a “letter” needed to be sent to Betsy and Linda.
To Oscar’s credit, he quickly replied to Robert’s email and said he would get right on it. And yet, I was slow on the uptake and didn’t even understand what kind of “letter” Robert was referring to that Oscar immediately agreed to write. I had to call Robert and ask him what kind of “letter” he was referring to! And before I really had a chance to think and consider what verbiage might be in the letter, Oscar had quickly drafted and emailed me an early version of the current letter for my review. I was pleasantly surprised at what I read.
Many people seem to think I am the “instigator” of many controversial ideas. That is sometimes true. But in this case, Robert wholly initiated the idea and Oscar quickly acted upon the idea. Apparently, Oscar also became dismayed at what my supporters were emailing to Oscar. My friends and supporters were emailing him screenshots and links to webpages and videos of Linda using potentially defamatory language and making false statements of fact about me and the case. And what they emailed Oscar became a “hot mess” collection he viewed and sorted through.
Linda made factually incorrect public comments about me and actually encouraged her followers the dissemination of such false statements about me and the case. It was interesting to read her Facebook followers various responses suggesting she exercise her Second Amendment rights as well as luring me into range so that a gun might legally be used against me.
Meanwhile, I was taking a careful, methodical approach to evaluating the court exhibits and taking the time to write and directly acknowledge some of the crazy, paranoid assertions Linda made in the last two years. The Cease and Desist Letter Oscar wrote was modified several times because Linda kept adding to the list that my supporters were compiling on her about me and the case. Many of my friends and supporters wanted Oscar’s Cease and Desist letter to go out quickly. However, I felt I needed time to take careful inventory of how much and how far Linda would go during her online rampage and smear campaign of me. I asked Oscar to withhold sending the letter until I could get a good assessment of how far Linda was going to go. I also needed time to write and publish the first 5 parts of the “Cleaning Up the ‘Chan v. Ellis’ Mess” commentary series. I thought it would save Oscar a lot of time by simply having him and everyone else refer to those crucial blog posts. There was no need to recount the same explanations and discoveries more than once if it could be avoided.
While I do not want to put words into Oscar’s mouth, I think everyone plainly understands Oscar’s position (through his choice of words within the cease-and-desist letter) of this big, hot mess Linda started of which Betsy only made worse. Even when the matter has been decided and resolved, Linda continues to be a troublemaker and unnecessarily draws attention to Betsy McBride and her role of not vetting her client and her case more carefully and doing a horrendous job vetting her client’s exhibits. If Betsy is able to be objective enough and step back to look at what I uncovered with the cropped, obscured, modified, and altered exhibits contributing to the lower court’s wrong decision, she should realize Linda has caused a great deal of potential embarrassment to so many people. That list might include herself, Judge Frank Jordan, Muscogee County Superior Court, and Betsy’s law firm: Page, Scrantom, Sprouse, Tucker, Ford. Tangential to that list is the fact that Betsy’s husband, Gil McBride, is a Superior Court Judge for Muscogee County Superior Court who works alongside Judge Frank Jordan in hearing cases for the greater Columbus/Muscogee County area.
Can anyone else besides me see how this can become a big, hot embarrassing mess? Unfortunately, Linda is at Ground Zero! If I were Linda’s lawyer, I would tell her to just “shut the hell up and move on”. But I suppose that is why I could never be a lawyer because what I just proposed is “unlawyerly” behavior.
Even without regard to the embarrassment issue to Betsy herself, does Linda honestly think that Oscar (with whom I have worked with and fought so many battles against copyright extortionists for seven years) will continue to stay silent while one of his long-time business associate’s reputation gets pounded into dog-meat? Oscar absolutely hated that the 2013 PPO that was issued against me. He insisted that I appeal the order and he insisted that he be my lawyer. He didn’t want anyone else to handle my case. When my appeal was transferred to the Georgia Supreme Court in July 2014, Oscar insisted on flying down to Atlanta to do oral argument when I was simply content with the legal briefs. Smearing and damaging my reputation also indirectly damages Oscar’s business reputation. One day, Oscar may want to part ways with me. But for the here and now, does Linda really want to invite more “unhappiness” from Oscar, as well?
Does Linda need to be reminded that around 1.5 years ago, Oscar sent a cease-and-desist letter addressed to her “employee”, John W. Jolin, for engaging in potentially defamatory behavior trying to tarnish Oscar’s name and reputation by slyly insinuating he contributed to my alleged (but now wholly disproven) “stalking”? Oscar doesn’t get riled up easily but John managed to get a serious rise out of Oscar because Oscar is very protective of his reputation. John must have thought we would never see the outrageous emails to his victims. But with special thanks to April Brown (author of “Poetic Justice“) and her special relationship with fellow Dash Poem extortion letter victims, she kept us informed. From what I can tell since then, John had the good sense to never engage in such despicable behavior where Oscar’s name was concerned.
However, I do have copies of John W. Jolin’s emails about ME that are pseudo-defamatory because John makes a veiled reference of Ari Hinnant’s (online scammer from 2009-2010) so-called “accusations” about me, who intentionally made seriously outrageous and OUTRIGHT DEFAMATORY statements about me. Timmy McCormack has tried a similar tactic of trying to make veiled references to Ari Hinnant without owning up to the fact that he knows they are entirely untrue and would be considered absolutely defamatory. It is a slippery slope that John and Timmy have walked. Time will tell if they want to try that again.
To be clear, Ari Hinnant’s statements about me weren’t pseudo-defamatory, they were PLAINLY DEFAMATORY. Ari Hinnant is the one person I have seriously considered filing a defamation lawsuit against. I did not do so because there was no meaningful money or assets to go after. No matter how I might feel about Linda, John, Timmy, or Betsy, I want there to be no confusion as to how I feel about Ari Hinnant. To give some basis of comparison of my contempt and disgust of Ari Hinnant, I would sooner become friends and allies with Linda, John, Timmy, and Betsy than deal with the scum known as Ari Hinnant. Objectively speaking, I know it’s hard to fathom, but in that hypothetical scenario, I believe Linda, John, Timmy, and Betsy are much better human beings than Ari Hinnant.
I give fair warning to anyone that if someone ever wants to go down the Ari Hinnant path and want to embrace her words and insinuations as truth, they can expect I will be calling in a LOT of favors to remedy the situation. I don’t often ask or call in favors but if I do, I promise it will become very unpleasant.
I rarely scream “defamation” as I know the general standards to meet the level of defamation. But “defamation” and “false statements of fact” are clear exceptions to the First Amendment. Linda Ellis is now being warned and put on legal notice to “cease-and-desist”.
I have to believe the irony is not going to be lost to my readers that the the Dash Poem extortionist who has issued so many legally-threatening letters is now on the receiving end of one.
In my last post (Part 1), I began the “Cleaning Up the ‘Chan v. Ellis’ Mess” commentary series. My legal adversary, Linda Ellis, has caused a mess for many people with her reckless, irresponsible choices which was supported by other poor choices by her lawyer, Elizabeth W. (Betsy) McBride.
After two years, I finally went back into the ELI Forums archive to find the original, unblemished version of the forum posts that Linda Ellis submitted as court exhibits. What I found was both distressing and upsetting to me. It showed not only how poor quality her court exhibits were but how much was left out altogether misleading the lower court. I believe it was an intentional act by Linda to shield certain facts that she did not want the lower court to see or know. Betsy did not did herself any favors by failing to vet her client’s so-called exhibits. She is going to get some blowback from what Linda did.
Through strategic concealing, cropping, obscuring, and altering the photocopies of the original forum posts, the true context of the forums posts were greatly skewed against me. Because I didn’t have access to my computer or the original posts in the courtroom, I was forced to make do with the poor quality, misleading, and deceptive Ellis exhibits.
In my last post (Part 1), I directly confronted and called out Linda’s false assertions within the WXIA TV interview. I am now continuing to directly challenge and refute the other false assertions she is making about me (out of context) on her Facebook page and other websites.
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The Truth About Me Allegedly Posting “Death Threats”
Linda has more than once accused me of making “death threats” against her. Her assertion largely comes from two poorly photocopied forum posts submitted as court exhibits. The first one is the “Hearse Song” Exhibit. It contains the “Hearse Song” YouTube video along with the print lyrics beside it. The title of the forum post is:“Ellis – Get Ready – WE ARE COMING AFTER YOU!”. It is the 7th post within an extended online discussion (I will come back to this later.)
“Hearse Song” exhibit post with lyrics overlay.
In the “Hearse Song” Exhibit that Linda provided, the first point I want to make is that I wasn’t the person that posted it. It was April Brown, author of “Poetic Justice”. This one simple point is clearly seen even in the modified court exhibit. Even if it had been a veiled “death threat” (which it wasn’t), I didn’t post it plain and simple.
The second point I want to make about this exhibit is that you see lyrics next to the YouTube screenshot. It implies that the original forum post contained visible lyrics, hence, conveying a written message of death. You will see below that the actual forum post was far less “threatening”.
Original “Hearse Song” post plus a follow-up post for context purposes.
The original, untouched forum post of the “Hearse Song” did not have any text or lyrics whatsoever. It contained no lyrics, text, or comment, only April’s lone post of the “Hearse Song” YouTube video. I included, in my screenshot, one of April’s follow-up posts to show the proper context. As you can see by April’s comments, April was angry that Linda was trying to go after the California author who had received the $100,000 demand letter.
“Linda Ellis and Johnny Boy – the gift that just keeps on giving. They just had to revisit the famous author. Just couldn’t drop it. They just had to try one more time to get him to pay their extortion demands. Had they left him alone, the A-Team might have just limped along waiting for another high profile person to get really pissed off and go public. Now, thanks to Linda and John our fight back campaign just got the boost of high octane we needed. Linda, you simply do not posses the ability, the cash or the integrity to go up against Mr. Big. Your history is so tainted, your words so revealing and your tactics so unscrupulous that now the world will finally hear the truth about Live Your Dash and You! little missy.”
April was certainly angry at Linda but at no point is April even hinting anything violent or physical against Linda, much less a “death threat”.
Another complaint Linda made was the title of the forum post “Ellis – Get Ready – WE ARE COMING AFTER YOU!” which was actually the 6th carryover title from the original first forum post.
Below is the first three posts of that forum discussion. I wish I had a copy of it at my original hearing but I didn’t know what Linda had as “evidence” beforehand. My team and I never imagined I would be dealing with highly modified, cropped, obscured, and incomplete screenshots. I naively assumed that any screenshot of forum posts presented to the lower court would have been reasonably clear and complete and that most of them would speak for themselves as NOT being physically dangerous. Again, I was quite naive.
As you can see, April was the originator of the discussion thread “Ellis – Get Ready – WE ARE COMING AFTER YOU!” and it was concerning Linda hiring Atlanta lawyers to issue a $100,000 demand letter to the California-based author. April expressed her anger by naming a forum topic the way she did. But if you read the first three posts and all the subsequent posts, the discussion is far tamer and largely surrounds others reactions to the $100,000 demand letter. No physical threats of any kind were express much less a “death threat”.
The next forum post relating to the “death threat” assertion is Linda’s Exhibit where I make a comment about Linda being “dead” right. As you see, the word “dead” is in quotes. It is a figure of speech being “dead” right.
.
Compare the exhibit version to this one, the uncropped version of that forum post.
Once again, you can see that Linda conveniently leaves off the quoted text written by April which my post was responding to.
“Just when I thought I might get a good night’s sleep.”
It had nothing do do with physical threat or violence much less a “death threat”. And yet, Linda considers all of these disparate forum posts as “death threats”.
As a final comment on Linda’s “death threat” assertions, Justice Keith Blackwell rather astutely observed that Linda’s poem is often associated with “death and a tombstone.” I need not say anything more regarding the issue of death as it relates to Linda.
https://vimeo.com/108666514
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The Truth About the “Cult Leader” Title
I find it both amusing and sad that Linda seems to think that calling me a “cult leader” might actually convince someone that I am one. It is true that I have referred to myself as a “cult leader”. Does it really need to be said that it is meant as a “tongue-in-cheek” title?
In any case, I did write a commentary on my “cult leader” status on January 11, 2015 titled “Can I Convince You I Might Be a ‘Cult Leader’?” However, what I left out is where it actually came from because I forgot when I first used that title. In looking through my computer files, I came across a rebuttal letter from June 2012 that I wrote to Seattle attorney Timothy B. McCormack in response to his unsolicited, unwelcome letter to me and Oscar Michelen regarding his views and remarks about my opinions of recording telephone conversations as a defense tool against overly aggressive collection calls from copyright extortionists.
As some might expect, I wrote Timmy an unhappy and snarky rebuttal letter to him in my own “unique style”. I disrespected him so much, I didn’t print the letter out to waste a perfectly good envelope and postage stamp to send the letter to him. I efaxed the letter to him and posted my rebuttal letter (from June 2012) online for everyone to see. The one paragraph, out of the 17-paragraph letter, that Linda really enjoys and shares with others:
“You should realize that creating and managing an online cult such as ELI is actually more challenging than one where you physically meet and interact with my followers. My dazzling, hypnotic, persuasive, and entrancing words and prose are somewhat masterful I must confess. I can convince the most intelligent, self-determined, and self-motivated person to blindly follow any public suggestion I might make.”
Although that whole communication between me and Timmy McCormack had NOTHING to do with her whatsoever, Linda has “adopted” this one paragraph from that 17-paragraph letter to share with others. She can knock herself out with it. In many ways, it would really be cool if it was true. Alas, I know my influence is relatively low. I am not delusional in that regard.
What is more important at this moment is that I call out and formally recognize and thank the anonymous blogger of RestrainingOrderAbuse.com for launching his website. It is an enormously, content-rich information resource. That website became a HUGE game changer for my side after we found out that the Georgia Court of Appeals was transferring my appeal to the Georgia Supreme Court on July 2, 2014. We were pleasantly surprised as we expected that the Georgia Court of Appeals would rule on the case. And if that didn’t go our way, we would then appeal to the Georgia Supreme Court. We never expected we would now go directly to the Georgia Supreme Court.
It turns out the Georgia Court of Appeals felt my appeal dealt with “significant” constitutional issues and that the Georgia Supreme Court was the most appropriate venue to rule on my appeal. When that occurred, I realized that “someone” in higher court understood some of the arguments I made that failed in the lower court. I was reenergized by the unexpected ruling. It was unexpected because I was not optimistic that the appellate judges understood the context of how Internet discussion forums worked, that the Internet wasn’t just one “location”, and how free speech issues translated to the Internet. When I filed my appeal, I felt it would be an uphill battle because this was Internet-related case and the fact that most appeals are rarely overturned.
Although, I am encouraged by recent events, I still take very little for granted. I exercise cautious confidence. I am still of the belief that court appeals are always an uphill battle because I believe appellate judges simply don’t like to overturn lower court decisions unless they really have to. Nevertheless, I think my legal team and my supporters have done an excellent job supporting me in this legal fight. There is not much more I can ask that I did not receive. It is now out of my hands and the with the Justices of the Georgia Supreme Court.
The reason I explain all this is that there was a CRUCIAL piece that was missing when Oscar Michelen and I worked on my appeal. We worked very hard on the briefs, combing through the very limited exhibits we had and the court transcript. He combed through relevant Georgia and federal laws. It appeared that Oscar raised all the legal questions and challenges that needed to be raised. But in my non-lawyer mind, something always seemed to be “missing” but I didn’t know what. One night, I sat in front of the Google website and began some random searches regarding stalking law, protective orders, the First Amendment, and various phrases I thought related to my case and argument. I was looking for any nugget, idea, or case that might help boost my position and argument now that my case was going to the Georgia Supreme Court.
It then occurred to me to Google search with a COMBINATION of phrases “protective orders First Amendment”. I do not recall the exact search combination I used but it led to my “Ah-ha!” moment when I saw the website name RestrainingOrderAbuse.com!
That website name perfectly described what happened to me. The DOMESTIC stalking protective order I received was an ABUSE of the legal system intended to protect people from potentially threatening or dangerous (ex) spouses, ex (significant others), ex (friends), ex (relatives), and other situations where people knew each other, had relationships with one another, and interacted with one another. I had never met, spoke, phoned, emailed, faxed, or communicated with the Dash Poet and yet here I was at the receiving end of a DOMESTIC protective order that forbade me or any of my users and readers from posting about the Dash Poet and washed away over 1,900 posted messages. The missing piece that nagged at me for months was suddenly clear to me. It was the Dash Poet’s ABUSE of the legal protective order system. And as it turns out, there is an epidemic of it going on flying under the radar in lower local courts throughout the U.S. where it is used to silence critics.
The sudden realization of protective order ABUSE drove me to search deeper but it was the website, RestrainingOrderAbuse.com that directly connected me to Legal Scholar Aaron H. Caplan’s legal paper on Civil Harassment Order abuse and Legal Scholar Eugene Volokh’s legal paper on Criminal Harassment Laws & “Cyberstalking”.
I devoured both of those legal papers in the middle of the night pouring over the cases and reading their arguments. I reached out to both legal scholars and shared the facts of my case with them and explained how my case was one they described in their legal papers and it was now going to be tried in the highest court of Georgia. Each of them graciously responded to my email and reached out to Oscar Michelen to ascertain the current state of my case. The very talented and resourceful lawyer that he is, Oscar quickly jumped to bring our legal scholars up to speed which ultimately led to the EFF to sponsor an amicus brief supporting my position and Eugene Volokh personally representing them both in legal brief and in oral argument!
None of this could have happened had it not been for the incredible wealth of information compiled by the anonymous blogger on RestrainingOrderAbuse.com. He connected the dots for me. What happened to me was happening to others throughout the U.S. I was so grateful to him that I made a Paypal contribution to him with a short note of gratitude. Win, lose, or draw, the ROA website expanded our network of contacts, legal expertise, and awareness of the issue of restraining order abuse.
I cannot thank the blogger of ROA enough for his important contribution to my appeal.
The Georgia Supreme Court website has posted the oral argument video for public viewing. I am currently reserving personal commentary for the time being. But believe me, LOTS of personal commentary by me and my supporters will be trickling out in the weeks and months to come. Although I continue to maintain my presence and periodically post on ExtortionLetterInfo.com, my best and most brutally frank commentaries will be found here on Defiantly.
Pay close attention to Justices David Nahmias, Harold Melton, and Keith Blackwell in the last 20 minutes. You will find their questioning and comments quite insightful and perhaps even entertaining. Also note their voice inflections and facial expressions.
Please note that this video will only be up for one month for public viewing on the Georgia Supreme Court website. I am in the process of having a copy and transcript of this video made and the video hosted elsewhere for ongoing reference and viewing after the removal of the video from the Georgia Supreme Court website.
UPDATE (November 16, 2014): I have since purchased the DVD video of the Chan v. Ellis Oral Argument from the Georgia Supreme Court. The videos have since been posted on my YouTube and Vimeo accounts. Please visit this post to get access the oral argument videos.
On a letter dated January 21, 2014, Seattle Attorney Timothy B. McCormack (Timmy) attempted to intimidate and threaten me with his annoying, ludicrous, and quite laughable “Infringement / Defamation / Harassment Letter“. He sent this letter while I was in an indefinite self-imposed exile from my own website, ExtortionLetterInfo.com (ELI) and The ELI Forums.
It apparently wasn’t enough for him that I chose to withdraw from posting and participating from my own website. I had been silent and uninvolved for 10-months letting ELI volunteers continue running and overseeing ELI. Timmy must have been delusional and figured that I was humiliated and beaten into submission over the bogus March 2013 Permanent Protective Order (PPO) in favor of the “The Dash” Poem Copyright Extortionist Extraordinaire, Linda Ellis. My case was under appeal with the Georgia Court of Appeals (now transferred to the Georgia Supreme Court) and I saw no reason to waste anytime on ELI while that was going on. Most of the Linda Ellis / Dash Poem victims were cowards and I saw no reason to stand up for them anymore. (However, April Brown is THE PERSON to contact for all things relating to fighting Dash Poem copyright extortion. (Google “April Brown Linda Ellis” and you will see what I mean.) The Linda Ellis victims have taught me that it is stupid to try to advocate for victims too frightened to even speak out. The Getty Images (among others) victims were well-represented and I wasn’t needed in the day-to-day operation any more.
Timmy apparently decided it was time for him to push on me and otherwise intimidate me while I was in self-imposed exile with his “threatening” letter. Unlike many of his victims, I am not so easily intimidated nor do I back down so easily. It was his letter that triggered me to come back to ELI in full force. He probably saw my absence as a sign of weakness. Since I made my fair share of enemies (nearly all whom are either lawyers working as or for copyright trolls and copyright extortionists), the only way to show that I wasn’t defeated was to come back in a very public way. I was only lying dormant, not defeated.
I wrote a few versions of my response letter to Seattle Attorney Timothy B. McCormack before I settled on the one I ultimately sent out on March 2, 2014. The text of that letter is provided below:
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March 2, 2014
Tim McCormack
c/o McCormack Intellectual Property Law PS
617 Lee St.
Seattle, WA 98109
FAX: (206) 381-1988
Via FAX & First-Class Mail
Tim,
This letter is my “formal response” to the frivolous and baseless form letter you sent me in January 2014 regarding the supposed infringement of your copyrighted headshot photo. Honestly, this letter is an exercise of repetition because you have shown that you are an avid reader and follower of the ELI website and the ELI Forums. The majority of the content and points of this letter has already been publicly posted and discussed on ELI. But I don’t want it said that I am incapable of being professional as challenging as it may be for me in this case.
Understandably, you have a high level of interest in any posts that may reference your name or business. I surmise you follow ELI daily to the degree you have shown an extensive screen-capture inventory of ELI posts in this and other communiques. Given this, I find your letter to be entirely frivolous, reckless, irresponsible, and unbecoming of a lawyer of your supposed stature and qualifications.
Your form letter included screenshots from July 26, 2012. However, we are now in 2014! It literally takes less than 30 seconds to verify that ALL your screenshots to those posts are outdated and obsolete. In fact, no user-posted images are currently displayed in the ELI Forums. This has been the case since March 2013. You should know this from your self-serving involvement in the Ellis case and the subsequent appeal. The ability to automatically display images (and other media) in the ELI Forums was deactivated to help prevent exactly the frivolous accusations such as the ones you are now making of me and ELI.
While it may not have been immediately apparent prior to March 2013, all ELI Forum user-posted images, memes, and videos were only “hot-links”. As you appear to be technically-unsavvy based on your baseless claims, I want to inform you that you can easily “right-click” any image or hyperlink from any contemporary web browser and you can easily determine where an object is actually hosted. Just because an image is displayed on a website does not automatically mean that website actually hosts it. To the best of my knowledge and my research, ELI has never hosted any image containing your headshot.
Considering that you insist on a formal reply from me when you could have done the necessary research yourself, I make the following additional points:
1. None of the posts you complain about was caused or posted by me. Hence, I cannot be harassing or defaming you. In fact, one of the posts you complain about doesn’t even exist anymore and was voluntarily deleted by the original poster in March 2013. I recommend you consult Section 230 of the Communications Decency Act. ELI hosts discussions and posts of other users. And while I certainly do participate and post on ELI, I am only responsible for those posts I make, not other users’ posts.
2. None of the alleged copyright infringed images have been displayed on ELI since March 2013. Even if they were displayed, that does not automatically constitute copyright infringement on any ELI users’ part. They were hot-linked images and memes hosted elsewhere from ELI. I recommend consulting the case of “Perfect 10 vs. Amazon”.
3. In two of your screenshots, your headshot photo is clearly part of screenshots of Google searches. I suggest that if you don’t want your image showing up on a Google search, then maybe you should consider removing your image from your own websites so it won’t show up on anyone’s screenshot of a Google search. FYI, screenshots for commentary purposes are perfectly allowed under “fair use” and that is exactly what it was used for in that post.
4. None of the messaging on the complained about memes are even remotely close to meeting the standard of defamation or harassment. Most reasonable people know by its simple appearance and messaging they are meant as parody, satire, or negative commentary. The fact that people are making negative commentary about you doesn’t automatically make it defamation or harassment.
I highly object to the ongoing abuse of your privilege as a licensed attorney to try to lie, mislead, and intimidate laypeople such as myself. I may not be a lawyer but, fortunately, I am aware of my rights and responsibilities as a discussion forum host and website host. You and your office have a track record of writing misleading extortion letters designed to trip up and mislead the legally ignorant and the legally spineless. I am not one of those people.
With regard to the other information you are asking for, I outright refuse to provide them to you as you have no legitimate basis or authority to do so. Regarding information on ELI’s traffic, consider visiting Alexa.com, for example.
Regarding how much income ELI generates for me, I will gladly provide you that information in exchange for how much the Getty Images copyright enforcement business generates for you. I consider that a fair trade. Absent that, you have no legitimate basis or authority to get that information from me.
As I have now acknowledged the relevant issues of your complaints, I am going to take the opportunity to make a few points of my own. You have demonstrated this past year your hatred of me, Oscar Michelen, and ELI, in general. Your ongoing attack campaign against everything ELI is self-evident. You have done everything within your power to attack, threaten, discredit, disparage, and damage me, in particular. You somehow continue to blame me for the ills of your so-called copyright enforcement business. Perhaps if alleged infringers weren’t treated as criminals trying to squeeze disproportionate amounts of money for what amounts to be a “speeding ticket” on the Internet, your professional life would be easier. Perhaps if you weren’t so sloppy professionally and didn’t behave like a hack lawyer, you would get a bit more respect.
You continue to blame me for everything other ELI community members have posted about you when, in fact, they are intelligent, independent thinkers and passionate, self-motivated contributors of the ELI Forums. Any perceived influence I might have over them is due to the intense disdain and hatred for Getty Images and your role and behavior as their collections lawyer. It is because of you and Getty Images’ ongoing “copyright enforcement” efforts in particular, that ELI, the ELI Forums, and the ELI community came into existence.
You and Getty Images’ relentless, merciless, and duplicitous pursuit of revenues-at-all-costs (under the guise of copyright enforcement activities) continues to generate more disdain and hatred towards yourself and Getty Images with every passing day. Can you not plainly see this? Can you not plainly see that Getty Images is using you as a pawn while your corporate counter-parts within Getty Images Corporate Counsel department remain comfortably in hiding while you take all the arrows and bullets? Have you never wondered why no one within Getty Images Corporate Counsel has ever publicly spoken out on your behalf? They are cowards hiding within the womb of their corporate mommy.
In closing, the next time you decide to send a complaint letter to me, do your research and get your facts straight. Just because you want to write to me making frivolous and baseless claims does not automatically mean I am legally obligated to respond to you.
Onward and upward,
Matthew Chan
On behalf of ExtortionLetterInfo.com
==============
ELI Legal Advisor Oscar Michelen was also sent a copy of the letter I received, presumably so that Oscar might exert his influence over me (as “Daddy Oscar”) to “cooperate” with Timmy’s request. Oscar was not happy about this and wrote a stern response back to Timmy.
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January 29, 2014
Mr. Timothy B. McCormack
617 Lee Street
Seattle WA 98109
Re: Cease and Desist Letters
Dear Mr. McCormack:
This letter is sent to respond to two cease and desist letters recently issued by you. The first letter was issued to www.copyright-trolls.com; the second was issued to me personally and to www.extortionletterinfo.com and its owner Matthew Chan. I will address them one at a time.
Please be advised that I represent this site with respect to your claim regarding the use of an image purportedly owned and copyrighted by you. Please direct all future correspondence on this matter to me and not my client.
In an exercise of caution and to not to have to have continued correspondence with you on this matter, the site has complied with your cease and desist request and removed any display of your picture. The rest of your demands will not be complied with however. As to any purported claim of “defamation” I remind you that the First Amendment greatly protects speech, parody and comedy. In fact, last week or so, the Ninth Circuit (which covers Washington State), in Obsidian Finance Group v. Cox, ruled that bloggers and the public have the same First Amendment protections as journalists when sued for defamation: If the issue is of public concern, plaintiffs have to prove malice (if they are public figures) or negligence (if it is a matter of public concern regardless of their status) to win damages. The Court further reiterated the public’s right to post opinions, even if they are nasty and crude. It stated it looks at three factors to distinguish between “fact” and “opinion” as follows:
“(1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact, (2) whether the defendant used figurative or hyperbolic language that negates that impression, and (3) whether the statement in question is susceptible of being proved true or false.”
All three of those factors point to the obvious: that any statements or references to you in the posts to which you object are at best statements of opinion and are not defamatory. There was no false fact contained in any of the post of which you complain. They are merely jokes or expressions of opinion that amount to parody. No one believes that the posts are actually saying you are actually a “turd;” that is just an opinion and an attempt at humor. Particularly when aimed at someone who is a public figure like yourself, these types of sarcastic, even negative, parodies and commentaries are protected.
Moreover, your continued use of boilerplate, threatening letters on behalf of digital image warehouse companies, while likely lucrative to you, naturally exposes you to being the target of scorn and commentary. You cannot pretend to ignore the numerous sites, bloggers and journalists who have decried “copyright-trolling” as a scourge of the Internet. That places the subject matter and those who engage in it in the public eye and open to expression of opinion contrary to their pursuits. Far be it for me to tell another lawyer how to run his practice, but I would venture to guess that the more you continue in this method of practice, the more you will continue to be criticized by third parties. Copyright-trolls.com has no less right to express negative opinions and make negative comments on what you and others do than the Washington Post or the NY Times. Accordingly, I hope and expect that this communication ends this issue.
Much more troublesome is your communication to me regarding ELI. First of all, I do not practice out of my home; I am a partner in a litigation law firm with two offices – one in Manhattan and one on Long Island. While in the past you have unsuccessfully tried to embarrass me by writing my partner Matthew Cuomo at our Manhattan office which he manages, I ask that you direct all future correspondence to me at our Long Island office, which I manage. There is no reason for you to communicate with me at my home; any further communication about a client or potential client of mine that is directed to me at my home will be taken as harassment and reported to your State Bar.
Next, your letter refers to ELI as “your [meaning my] website” and asserts that you are writing to me so that I may use my “ownership” of the site to influence compliance with your demands. Too many times to mention it has been made clear to you that I do not own ELI in whole or in part. Your participation in the Linda Ellis matter also served to further instruct and advise you that Matthew Chan is sole owner of ELI. Your continued assertion that I am an owner of ELI is frivolous, baseless and beyond explanation – you clearly do not care that you are making a wrong and insupportable accusation.
You then also reference me as “opposing counsel.” On what matter am I opposing counsel to you with respect to ELI? Are you writing me as ELI’s lawyer or as ELI’s owner? Or both? Currently, I am in fact neither. Matthew Chan will likely want to respond to your letter directly himself. If I am going to respond on behalf of ELI, I will lead my letter with a sentence advising you that I am acting as ELI’s attorney. (See the section above dealing with copyright-trolls.com. as an example). You then intimate that I am somehow behaving in violation of Rule 8.4 of the Rules of Professional Conduct while at the same time asking me for “professional courtesy.” This request for courtesy is laughable, coming from an attorney who:
(a) made a completely frivolous and baseless multi-page complaint against me with the Grievance Committee of my State Bar; (b) included it as an exhibit in the improper affidavit submitted in the Linda Ellis matter so that the complaint is now also a matter of public record in the Georgia Court system; (c) who wrote to my law firm partner, as if writing to scold a child to his parent; (d) who writes me repeatedly at home over business issues; and (e) who continually and falsely claims that I own a website I have no ownership in. In my 27 years of practice as a litigator in one of the most litigious States in the Union, I can recall only one or two attorneys that I have less respect for than you Mr. McCormack. So before you ask me for “professional courtesy,” I suggest you find the nearest mirror. While I always extend professional courtesy to my adversaries, it is a two-way street and I will afford you precisely as much courtesy and respect as you seem to afford me.
To that end, let’s look at Rule 8.4 which you cite:
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
Of course, like most of your demand letters, you provide no factual basis or explanation as to why any of these sections should apply to my conduct. I ask that you send me a detailed explanation of which of these sections I may have violated (or will violate) and the facts you rely upon to support such claim. Otherwise I will deem this part of your letter to constitute yet another frivolous and baseless accusation against me.
With respect to the substantive matters addressed in the letter to Mr. Chan, I expect he will respond to you himself. But, as usual, this looks like a boilerplate copy of the letter you sent my client at copyright-trolls.com, so the same arguments would apply.
In conclusion, address all future correspondence on the copyright-trolls.com matter to my attention at my Long Island Office. Furthermore, cease and desist from making baseless and frivolous allegations about my professional conduct and my practice of law.
Oscar Michelen Georgia Bar No.: H10048 Cuomo LLC Attorneys for Appellant 9 East 38th Street Third Floor New York, NY 10016
William J. McKenney Georgia Bar No.: 494725 McKenney & Froehlich Attorneys for Appellant 50 Polk Street NW Marietta, GA 30064
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TABLE OF CONTENTS
1. Table of Authorities ………………………………………. ii
2. Preliminary Statement ………………………………… 1
3. Statement of Facts …………………………………….. 1
4. Argument …………………………………………….. 1
POINT I 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
a. Virginia Federal Court holds Neo-Nazi’s posting of attorney and wife’s personal information and his posts mentioning possible attacks was protected speech and not subject to restraint or sanctions …………………………… 2
b. Eleventh Circuit upholds conviction for threatening the President of the United States due to context and nature of defendant’s Facebook posts ………………………….. 8
c. Sixth Circuit holds that Section 230 of The Communications Decency Act protects a blog site owner from the defamatory posts of others ……………………………. 9
5. Conclusion ………………………………………………. 13
6. Certificate of Service ……………………………………. 14
.
TABLE OF AUTHORITIES
Cases
Bartnicki v. Vopper, 532 U.S. 514, 527………………………….……………… 6
Fair Housing Council of San Fernando Valley v. Roomates.com LLC, 521 F.3d 1157 (9th Cir. 2008) ……….. 12
In re White, 2013 WL 5295652 (E.D.Va. Sept. 13, 2013) …………………….. 2
Jones v. Dirty World Entertainment Recordings LLC, 755 F.3d 398 (6th Cir. June 16, 2014) ……………….. 9
U.S. v. Castillo, 564 Fed. Appx. 500 (11th Cir. May 2, 2014) ………………….. 8
U.S. v. Alaboud, 347 F.3d 1293, 1297 n. 3 (11th Cir.2003) …………………….. 5
Watts v. United States, 394 U.S. 705 (1969) ……………………………………… 9
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Statutes
O.C.G.A. § 16-5-92 ……………………………………………………………… 13
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PRELIMINARY STATEMENT
This supplemental brief is submitted by Appellant Matthew Chan (“Appellant”) to discuss relevant cases that have been decided since the submission of the original briefs in this appeal.
STATEMENT OF FACTS
The Appellant incorporates by reference the Statement of Facts set forth in Appellant’s Brief.
ARGUMENT
POINT I
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 ONE PARTICULAR PERSON
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’s protection under the First Amendment and the Communications Decency Act of 1996 (“CDA”). These recent cases have reasserted the First Amendment’s broad and sweeping protection and the distinction between protected speech and “true threats.” These cases also serve to reinforce that Appellant’s conduct here was the type of freewheeling, robust speech common to the Internet and did not constitute actionable “true threats” or “attempts to intimidate” Appellee.
a. Virginia Federal Court holds Neo-Nazi’s posting of attorney and wife’s personal information and his posts mentioning possible attacks was protected speech and not subject to restraint or sanctions
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 (“Mottley”) 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’s home page that published his wife’s full name. The post then purportedly admonished his “comrades”
“not 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.”
Id at 14. This resulted in Mottley filing a motion for sanctions; the court then conducted an evidentiary hearing on the motion. Id.
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 “perceived 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,” 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’s prior writings which talked about killing people opposed to his views. Id.
After the hearing, White again posted the Mottley’s home address and phone number as well as the home address of a Justice Department lawyer participating in the case advising his “comrades” to:
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 “threats” that exist wholly in their imagination, we are in now [sic] way responsible for that
Id. at 19. He then posted this additional comment:
I saw the movie “Funny Games ” the other night, and it occurred to me: Civil Rights Attorney Kevin Mottley of Troutman Sanders and his wife would star perfectly in the role of “the family”. [sic]Anyone think I’m off base on that?
Id.at 36. The court noted that “Funny Games” tells the story of “a 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.” Id. In addition to the commentary regarding the underlying litigation, Mottley offered other examples of White’s writings, including comments endorsing the murder of “white people opposed to racism;” postings hypothesizing about the effect on the 2008 presidential election were then-candidate Barack Obama to be assassinated; and White’s postings calling for the murder of a Canadian civil rights’ lawyer whose home address White had also published. Id. at 38. The court also highlighted:
“[o]ne particularly deplorable posting [that] detailed White’s exhibitionistic and self-serving view of his physical altercation with an African American ‘crack dealer.’ 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, “I 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 “recommend[ed] to all reading this that they consider taking a wicked man—a crack dealer, a pimp, an NAACP official defending black crime, or perhaps a newspaper writer supporting them—and killing them with your bare hands as a test of what I have to say.” Id.
Despite all this violent rhetoric and despite the posting of this personal information about Mottley, the District Court upheld the hearing magistrate’s finding that White’s 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 “true threat,” the court should apply a “listener-based” or “reasonable person- based” approach. The court noted the Eleventh Circuit’s position that such a distinction is irrelevant because “[b]oth tests are basically a ‘listener-based’ test’ in that, even under the [listener-based] approach ‘the 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.’” In Re White¸ 2013 WL 5295652 at page 43 (citing United States v. Alaboud, 347 F.3d 1293, 1297 n. 3 (11th Cir.2003)).
The court held that the various postings did not amount to “true threats” to inflict violence upon Mottley and his wife. Id. at 51. The court also said the “Funny Games” post was similarly protected because it “at most conveyed a serious desire that [Mottley] be harmed by others” and not “a serious expression of [White’s] intent to do harm from the perspective of a reasonable recipient.” Id. at 52 (emphasis in original). The court added “Thus, 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)) (“Defendant 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.”)
More importantly for the present issue before this Court¸ 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 “dynamic, 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.” Id. at 55. It found that White’s 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’s other myriad posts:
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 “true threats,” 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.
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’s 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’s home phone. This evidence was not dispositive however, merely “corroborative” 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.
In concluding that it would not sanction or restrain White, the court stated that “[a]lthough the court is sympathetic to Mottley’s plight and the very real fear that White’s postings inflicted on him and his family” sanctioning White for his Constitutionally-protected speech would not be an appropriate exercise of discretion. Id.
Appellant’s 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’s fears caused by the post pales in comparison to the Mottley’s evidence; the extensive history and breadth of Appellant’s 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 “with the intent to engage in similar political or social discourse.” and were therefore protected speech.
b. Eleventh Circuit upholds conviction for threatening the President of the United States due to context and nature of defendant’s Facebook posts
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.
When someone posted a picture of President Barack Obama on Facebook, Castillo commented, “[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.” 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, “I 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.” Id. at 503.
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 “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” 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 “vehement, caustic and sometimes unpleasantly sharp attacks” on politicians” protected by the First Amendment. Id.
Here, the context of Appellant’s 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.
c. Sixth Circuit holds that Section 230 of The Communications Decency Act protects a blog site owner from the defamatory posts of others
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.
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 “Why are all high school teachers freaks in the sack?” 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 “The Dirty Army” for the posts by posting “Note to self: Never try to battle the DIRTY ARMY” and “I love how the DIRTY ARMY has a war mentality.” Id. at 404.
In reversing the judgment and dismissing the action, the Sixth Circuit noted that the CDA provides “broad federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” 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 “close 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—or at least tacitly assented to—the illegality of third parties.” Id. at 409.
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 “developed” 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 “development” of the material unless it materially contributed to the illegal content of the posts. Id. at 411-412.
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’s immunity “meaningless as a practical matter.” 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 “a website operator cannot be responsible for what makes another party’s statement actionable by commenting on that statement post hoc.” Jones, 755 F.3d at 415.
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’s 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.
CONCLUSION
All of the recently decided cases cited in this brief support the reversal of the judgment below because they establish that Appellant’s conduct is protected by the First Amendment and the Communications Decency Act of 1996. Additionally, since all of Appellant’s conduct is legal and protected it cannot amount to “stalking” or “harassment” under Georgia’s stalking statute which is limited by O.C.G.A. § 16-5-92, which states that the stalking law “shall not apply to persons engaged in activities protected by the Constitution of the United States or of this state.”
Respectfully Submitted,
/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
/s/ William J. McKenney 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
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CERTIFICATE OF SERVICE
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:
Page, Scrantom, Sprouse, Tucker, Ford Attorneys for Appellee 1111 Bay Avenue Third Floor Columbus, GA 31901
Mr. Timothy B. McCormack Amicus Filer on Behalf of Appellee 167 Lee Street Seattle, WA 98109
This 5th day of September 2014
/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
Footnote [1]: Since there is no official or LEXIS citation, I have attached a copy of this case as an exhibit to this Brief.
I am an attorney of record for the Appellant Matthew Chan in the case of Chan v. Ellis, Docket No. S14A1652. The Court has temporarily docketed this case for October 20, 2014. Yet, the Supreme Court’s Docket does not include two briefs that were submitted to the Court of Appeals: Appellant’s Reply Brief and the amicus brief of Timothy B. McCormack filed in support of Appellee.
When I called your office in Mid-July upon the case’s transfer from the Court of Appeals, I noted that these two briefs were missing and I was told that I must reach out to the Clerk’s Office for the Court of Appeals to advise them of the missing briefs. I have now done so twice and although I was assured by that office that the missing briefs would be sent to the Supreme Court, apparently they have not been sent.
In addition to my calling, the Appellant Matthew Chan called the Court on July 16, 2014 (prior to my admission pro hac vice in this case) and actually physically visited the Supreme Court Clerk’s Office on August 6, 2014, to see if the missing briefs had arrived; they had not.
I am therefore taking the liberty to upload at this time both the Appellant’s Reply Brief and the Amicus Brief in Support of Appellee. Appellee’s counsel is already in receipt of these two documents as they were part of the full Court of Appeals’ record below.
Thank you for your attention in this matter.
Sincerely,
OSCAR MICHELEN Georgia Bar#:H10048
OM:sjk cc: Elizabeth McBride – Page Scrantom; Timothy B. McCormack
APPELLANT’S OBJECTION TO AMENDED APPLICATION OF TIMOTHY B. MCCORMACK FOR PRO HAC VICE APPEARANCE
Initially, Appellant wants to make clear to this Court that Appellant has no objection to the pro hac vice admission of attorney Timothy B. McCormack or to his being given leave to file an amicus curiae brief and orally argue the points in that brief on behalf of Appellee. Mr. McCormack was so admitted and given such leave in the Georgia Court of Appeals and had already filed his amicus curiae brief with the Georgia Court of Appeals at the time of this case’s transfer to the Supreme Court of Georgia. 1
Footnote [1] For some reason, that brief and Appellant’s Reply Brief did not get docketed with the case when it was transferred and I have been in communication with the Court of Appeals’ clerk’s office a few times to have those briefs sent to the Supreme Court for docketing.
Appellant does object to the amended application in that it is unclear if it seeks to expand the scope of Mr. McCormack’s appearance and role in the case; it also apparently seeks to introduce new facts and arguments not addressed in the trial court. While attorney for Appellee states that the application has a “limited purpose,” the application asks for leave to allow Mr. McCormack to:
(a) make oral argument;
(b) file supplemental brief(s) on behalf of Appellee;
(c) file responsive brief(s) on behalf of Appellee;
(d) file supplemental brief(s) on behalf of unknown third parties who may wish to remain anonymous;
(e) file responsive brief(s) on behalf of unknown third parties who may wish to remain anonymous;
(f) appear pro hac vice on behalf of himself and his law firm because he has an interest in the outcome of this litigation.
This hardly seems like a “limited purpose” but in fact seems like a request for admission pro hac vice for leave to appear as an additional attorney of record for Appellee because an amicus would not be allowed to file supplemental and responsive briefs on behalf of a party.
In the Court of Appeals, Appellee initially moved to have Mr. McCormack admitted pro hac vice as both amicus curiae and associate counsel. Appellant filed an objection on various grounds and Appellee then filed an amended application stating that it was “in error” to request Mr. McCormack’s admission as associate counsel and that the admission was to be only as amicus curiae. The Court of Appeals granted only the amended application and admitted Mr. McCormack for the purpose of allowing him to submit an amicus curiae brief. Now in the Supreme Court the reverse has happened: Appellee originally filed an application for Mr. McCormack’s admission solely as amicus curiae, which Appellant has not opposed, and now has filed another amended application to change the nature of Mr. McCormack’s admission to seemingly act as amicus and associate counsel.
Appellant would not object to Mr. McCormack’s admission pro hac vice as an additional attorney of record for Appellee but it is respectfully submitted that he cannot do both – serve as amicus curiae and as an attorney of record for a party. Appellant objects to this request to serve this dual role.
Appellant also objects to the application’s reference to anonymous individuals and entities that allege “victimization” and allege to have “fear of retaliation” from the “tactics and positions” taken by Appellant. While Appellant is confident that this Court will see that those “tactics and positions” are merely “speech,” Appellee’s application needlessly tries to taint the Court’s view of Appellant before it has read the briefs or heard oral argument.
Appellee or Mr. McCormack could have just as easily have applied for leave to allow Mr. McCormack to appear as amicus curiae, as he did in the court below, without making these references or at least have waited to see if any entity or individual would lend their name in support of Appellee’s (or apparently Mr. McCormack’s) positions.2
Finally, the application, by making those references, seeks to bring new issues and new facts before this Court that were not presented to the trial court and which are not part of the trial court record. An amicus curiae “has no control over the litigation and . . . must accept the case before the court with the issue made by the parties.” Fulton County v. Bartenfeld, 257 Ga. 766 (1988). Additionally, evidence which is only contained in an amicus curiae brief should not be reviewed or used by the court. Collier v. Evans, 199 Ga.App. 763 (1993).
Footnote [2] It should be noted that one of the points raised in Appellant’s Brief is that the trial court allowed into evidence a lengthy affidavit from Mr. McCormack which Appellee submitted as part of her case in chief. Mr. McCormack therefore has also served as an evidentiary witness in this matter.
The Appellant therefore asks that the Court grant the application only to the extent of allowing Mr. McCormack to appear and orally argue pro hac vice as either an additional attorney of record for Appellee or as an amicus curiae but not both. Regardless of Mr. McCormack’s role in this case, it is also respectfully requested that any briefs submitted be limited by the evidentiary record already created in the trial court.
Respectfully Submitted, this 13th day of August, 2014,
Respectfully,
/s/ Oscar Michelen
Oscar Michelen
Counsel for Appellant
Georgia Bar No.: H10048
Cuomo LLC
200 Old Country Road
Suite 2 South
Mineola, NY 11501
516-741-3222
omichelen@cuomollc.com
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
Oscar Michelen
(Courtesy Admission)
NY State Bar No.: 2058477
CUOMO LLC
9 East 38th Street
New York,NY10016
William J. McKenney
State Bar No.: 494725
MCKENNEY & FROEHLICH
50 Polk Street NW
Marietta, GA 30064
.
TABLE OF CONTENTS
Table of Citations ……………………………………………………………..…..…… ii
I. Preliminary Statement ……………………………………………..……………….. 1
A. Nature of Matter and Order Appealed …………………..…………………………. 1
B. Jurisdiction …………………………………………………..……………………..… 1
C. Statement of Facts ……………………………………….…………………………. 1
II. Enumeration of Errors …………………………………..……….………………..… 11
A. Jurisdiction ………………………………………………..…………………………… 11
B. Errors Below ……………………………………….……….………………………….. 11
III. Argument and Citation of Authorities ………………………….…………………. 12
A. THE FEW INTERNET POSTS MADE BY APPELLANT DO NOT ESTABLISH
THE ELEMENTS OF OCGA 16-5-90(a)(1) ………………………………….……………. 12
B. APPELLANT WAS DEPRIVED OF DUE PROCESS WHEN COURT RULED ON EVIDENCE OF CONDUCT WHICH WOULD ONLY VIOLATE OCGA 16-5-90(a)(2) WITH WHICH APPELLANT WAS NOT CHARGED ………18
C. THE COURT IMPROPERLY ADMITTED AN EX-PARTE AFFIDAVIT INTO EVIDENCE ………………… 21
D. THE FIRST AMENDMENT PROTECTS APPELLANT’S SPEECH AND THE COMMUNICATIONS DECENCY ACT OF 1996 PROTECTS A PERSON FROM BEING HELD RESPONSIBLE FOR OTHER’S POSTS ………………. 22
E. THE ORDER WAS OVERLY BROAD AND BANNED ALL SPEECH ABOUT APPELLEE ………………………. 29
IV. Conclusion ……………………………………………………………………………….……… 30
.
TABLE OF CITATIONS
Cases
Adkins v. Hutchings, 79 Ga. 260 (1888) ……………………………………………………….. 21
Autry v. State, 306 Ga.App. 125 (2010) ………………………………………………………….. 16
Bartnicki v. Vopper, 532 U.S. 514 (2001) ………………………………………………………… 23
The Communications Decency Act of 1996. …………………………………………………..12
.
Treatises
American Heritage Dictionary (3d ed. 1992) ……………………………………………………………….14
Review of Selected 1998 Georgia Legislation, 15 Ga. St. U. L. Rev. 62 (Fall 1998) ……17
.
Constitutional Provisions
Article VI, Section VI, Paragraphs II and III of the Constitution of the State Georgia ……… 1
First Amendment of the United States Constitution …………………………………………………….. 1
I. PRELIMINARY STATEMENT
A. Nature of Matter and Order Appealed
Appellant Matthew Chan (“Appellant”) brings this appeal of an Order of the Honorable Frank J. Jordan of the Superior Court of Muscogee County entered March 6, 2013, which granted Appellee Linda Ellis (“Appellee”) a final Stalking Permanent Protective Order pursuant to OCGA §16-5-94 (e) and 19-13-4 (c) (hereinafter referred to as “the Order”).
B. Jurisdiction
This case raises Federal and State constitutional issues and while Appellant filed his initial notice of appeal pro se in this court, Appellant’s counsel on September 23, 2013, filed a motion to transfer the matter to the Supreme Court of the State of Georgia. This subject matter is reserved to the Supreme Court of Georgia under Article VI, Section VI, Paragraphs II and III of the Constitution of the State Georgia. This argument was raised in the court below in Appellant’s Memorandum of Law at pages 32-37. See Court Exhibit Packet at pages 92-97 (future references to this packet will be made as “Packet at pg ___”).
C. Statement of Facts
Appellee brought a petition pursuant to OCGA § 16-5-90 et seq. seeking a stalking protective order against Appellant due to certain posts made on a website owned by Appellant known as “ExtortionLetterInfo.com.” (hereinafter referred to as “ELI”). See, Transcript of Motion Hearing, held on February 28, 2013 at pages 3 and 10. (Future references to this transcript will be made as “T-#”).
At the hearing, it was not disputed that Appellant (who appeared pro se) and Appellee have never met; have never had any form of personal relationship; have never corresponded with each other; and have never even so much as spoken over the phone with each other. T-62. The petition was brought solely because of Internet discussion forum posts on ELI which were critical of Appellee’s attempts and methods to enforce her copyright in a poem she wrote called “The Dash.” T- 64 line 16. When Appellee’s lawyer began her presentation of evidence, the court admonished her to focus not on all the posts on the website, but on those that are the subject of the stalking complaint, especially because the court “had limited time.” T-19 lines 13-19.
Appellee began with a post written by Appellant eight months earlier, on June 23 2012, where he refers to a post made by a third party, April Brown, who posted a series of emails she exchanged with Appellee over her copyright enforcement methods. In the post, Appellant refers to Appellee wishing to be “right” and states “well she is ‘dead’ right now.” Packet at page 3.
When Appellant responded that this was a figure of speech and not a threat, Appellee then moved on to another Internet post by Appellant from June 11, 2012. Appellee carefully parsed out snippets from the lengthy post that, taken out of context, sounded vaguely threatening – (“So maybe she will understand potential consequences to her personally” or “I will pull that trigger much quicker if need be”). When read in context of the entire post, however, the comments clearly referred to Appellant’s intent to publicly expose Appellee’s methods and not to inflict harm or physical injury upon her. T – 23-24; Packet at pg. 4. Appellee then moved on to engage in the same form of selective editing with respect to a third post made by Appellant on December 12, 2012, after Appellant was hired as a public relations consultant by a person threatened with being sued by Appellee for $100,000. T – 28-32; Packet at pages 5-6. In that post, Appellant posted the name of Appellee’s husband and the subdivision in which she lived. T – 28-32. Appellant testified that while he was in some way communicating to Appellee through this post, it was also directed at the open forum to discuss again the business dispute between Appellant’s public relations client and the Appellee. T – 30 line 13 to 32 line 15. Appellee then begins the first in a great number of questions throughout the examination of Appellant about whether Appellant had deleted any of the posts complained of. T- 32 line 24. Appellant repeatedly stated he did not delete any posts because he wanted all the evidence to be before the court. T – 32 line 21 to 33 line 5; 37 lines 8-16; 57 lines 18-24. Appellant also tried to explain to the court that the forum contains between 19,000- 20,000 posts and therefore all of these posts must be taken in the proper context. T-39 lines 13-22.
The next item discussed was a cartoon of five people in Revolutionary War dress (who are all engaged in sending out threatening letters in efforts to enforce copyright claims), with Appellee in the middle. The cartoon shows them with their pants down and their hands over their crotches and is captioned “Ready, Aim, Fire.” T-37 line 22 to 38 line 22; Packet at page 10. No evidence was presented as to who created or posted this cartoon or when it was posted. The next post discussed at the hearing was a video where Appellant is having a conversation about Appellee with a third party, Robert Krausankas. The video was not offered into evidence on the record and no transcript was made of it.T-41 line 20 to 43 line 10. While the record shows that Appellee played only a small portion of the video, Appellant advised the court that the entire conversation was part of a thirty minute broadcast of an Internet TV show on the Vimeo website called “The ELI Factor.”T-42 lines 4-23.
Finally, with respect to anything posted by Appellant, the last piece of evidence was a comment he made on ELI on February 9, 2013, about his having visited Marietta, Georgia, the Appellee’s hometown, and having been near her subdivision. T-35 lines 16-21; Packet at pg 7. The post was written after Robert Krausankas had posted a Google Street View image of Appellee’s house on December 14, 2012, and after Appellant had been to Marietta for a date. T-35 line 16 to 36 line 19; 37 lines 1-4. When asked if he thought it was “okay to post a picture of her house on your website” Appellant responded that he was neutral about it as he did not post it and as it was a Google Street View image. T-36 lines 17-22. Again, he was asked whether he could have deleted the post and again he stated he was neutral about it. T-36 lines 23-25.
Appellee then testified on her own behalf and the only additional evidence presented was a post made by April Brown, dated December 4, 2012, which was under a forum topic labeled “Re: Ellis – Get ready – We are coming after you!”. The post was the seventh reply to the initial post and was a link to a YouTube video clip of a song called “The Hearse Song.” T-54, line 1 to 57, line 14; Packet at page 58. The original post did not contain the song’s lyrics as shown in the court exhibit; the lyrics were added to the exhibit by Appellee. Appellant again explained that he did not post it on ELI and again, Appellee raised that Appellant had not deleted this post after service of the temporary protective order. T- 57 lines1-14.Appellee, on cross-examination, conceded that Appellant and she had never met (T-62 line 4); had never emailed each other (T-62 line 8); that Appellant had never even tried to telephone her (T-62 lines 9-12); Appellant never texted her T-62 line 25); Appellee never saw Appellant come to her house (T-63 line 13); and that Appellant never followed her (T-63 line 15). Appellee also acknowledged that she was aware “The Hearse Song” video and the Google Street image of her home were posted by others and not Appellant. T-61 lines 10-24.
The final witness for Appellee was John Jolin, an employee of Appellee, who testified on rebuttal that on January 6, 2013, his girlfriend noticed she received a call from a number owned by Appellant. No conversation was had; no voicemail was left; no evidence was submitted as to who made the call. T-103 line 9 to104 line 1; Packet at page 59-60. Appellant denied making the call and stated it was likely a call made to his cell phone number using Google Voice and that he was very skeptical about it as he did not make the call. T-106 line 12 to 108 line 22. That ended Appellee’s evidence of the conduct complained of. All the “conduct” evidence presented by Appellee is summarized below:
The sum total of direct conduct attributable to Appellant was therefore five (5) sporadic posts that he posted on ELI between June 11, 2012 and February 9, 2013 (counting the video conversation). The balance of the evidence wasthree (3) posts made by others and proof that a phone number belonging to Appellant showed up on the cell phone of a girlfriend of Appellee’s employee.
Appellee, however, did present one other piece of evidence against the Appellant: a five-page ex-parte affidavit of Timothy McCormack, a Seattle, Washington attorney, containing approximately thirty-nine pages of exhibits mostly wholly unrelated to the case before the court, including petitions and orders for injunctions from cases in Washington State. Over Appellant’s objection, Appellee read from the affidavit and Appellant was forced to answer questions about comments, opinions and statements of fact made by McCormack in the affidavit. T-44 line 19 to 48 line 6.The bulky affidavit contained McCormack’s outlandish and unsupported opinion that he “believe[s] [Appellant] is a danger both to himself and to others” and that he “believe[s] Mr. Chan is likelyto follow through on his threats of physical retaliation against [Appellee]” Packet at pg.13 (emphasis in original).
When it was Appellant’s turn to present his case, he submitted a lengthy Memorandum of Law which was admitted into evidence. Packet at page 61. Appellant made a motion to dismiss the petition based on the memorandum of law, Georgia Law and the First Amendment of the United States Constitution, which the court reserved decision until the conclusion of evidence.T-76-80. He then testified in his own behalf. He testified he was forty-six years old; had no prior criminal record; and was a landlord in Georgia, having lived in Columbus for the past fourteen years. He explained that he is also a publisher, broadcaster and reporter writing about the phenomenon of “copyright trolling” on ELI. He stated that the Appellee and her family were never in any physical danger and he never threatened their physical safety; rather, the dispute between the parties arose out of a business dispute. T-81 line 25 to 83 line 3.
Appellant went onto explain that the subject petition was just the latest in a series of attempts by Appellee to stop ELI from discussing Appellee’s methods of copyright enforcement. T-84 line 9 to 89 line 24. He put into evidence the infringement letter and complaint Appellee brought against his public relations client. Packet at pg. 103, 118. Interestingly, during Appellant’s enumeration of the various ways that Appellee has tried to stifle the speech on ELI relating to Appellee’s program, Appellee’s counsel objected, stating that the business dispute bore no relation to the complaint. Appellee’s counsel stated in open court:
[W]e are not here to resolve the business dispute, we just want him to stay away and stop harassing her and making threats. We are not trying to do anything to his website or to stop his work in that fashion ….in other words, the stalking protective orders are very limited in their scope, in the sense of making him have to stay away, and making him stop making threats towards her and her family via any communications, Internet or otherwise. . . .We are not here to resolve the business dispute, we just want him to stay away and stop harassing her and making threats. We are not trying to do anything to his website or to stop his work in that fashion . . .. and we’re not trying to shut his website down. T-86 line 6 to pg. 87 line 15.
The Appellant then moved on to try and put the posts complained of into context by explaining ELI to the court. T-90 line 5 to 93 line 5. He pointed out that ELI has various discussion forums on numerous topics where individuals are free to post comments on their own, including putting into evidence a chart showing the various parts of ELI. T-90 line 20; Packet at pg 119. He talked about the boisterous, sarcastic and humorous language used and which is sometimes accompanied with venting of emotion using military tactical language. T-91 line 16-25; 92 lines 1-17. He also noted to the court, that due to the number of different areas on ELI, a user has to voluntarily click on a particular forum, then a particular topic and then a particular post to find a post; you cannot accidentally come across a forum post as it requires several “mouse clicks.” T-90 line 21 to 91 line 3. He described that the ELI Forums related to Appellee’s business have over 1,900 posts on 180 different sub-topics and that ELI has over 14,200 posts other posts across 740 topic threads in total. T-96 line 18-24.
Appellant’s testimony was uncontested by Appellee and rebutted only by the testimony of Appellee’s employee, John Jolin, regarding the phone number on his girlfriend’s phone, described above.
When the parties summed up, Appellant briefly summarized what he had just testified to. T-109 line 16. Appellee’s counsel, in her summation, not only set forth the elements of O.C.G.A. 16-5-90 (a)(1), but also argued that the Appellant, by not removing the allegedly offending posts, violated the temporary protective order even though that issue was not before the court via the petition. T-111 line 14 to 112 line 20.
The court, without taking any recess to thoroughly read all of the exhibits and Appellant’s memorandum of law,1 granted the petition for a protective order but in doing so found that Appellant not only violated the elements of OCGA § 165-90 (a)(1) (T-120 line to 121 line 7) but also the elements of (a)(2) which only applies to persons who are already subject to an order of protection. This was not before the court via the petition and could not be before the court because when the petition was filed, no order was in effect against Appellant. T-121 lines 8-19. The court issued an expansive order, more far-reaching than Appellee had even requested as per her attorney’s statements, which required Appellant to delete from ELI all posts referring to Appellee. It is from this order that Appellant appeals.
Footnote1: The record shows that the court was very pressed for time and even took short breaks in the case to hear from other lawyers with cases pending for that date. See Tr. at pgs. 22 line18, 41 line 12, 52 line 6, 122 line 9.
II. Enumeration of Errors
A. Jurisdiction: The Court’s jurisdiction is set forth in paragraph I(b) on p.1 infra
B. Errors Below:
1. The court below improperly found that the Appellee’s evidence constituted “contact” by the Appellant with the Appellee and a “willful course of conduct” under OCGA § 16-5-90(A)(1) so as to amount to “stalking” under the statute. Appellant’s Memorandum of Law, dated February 27, 2013 raises this issue at p. 24-38; Packet at 64-98.
2. The court below improperly penalized Appellant for conduct that only constitutes stalking under (A)(2) when Appellant was never made aware that this section of the statute was at issue at the hearing and the issue was not covered by the petition. This issue was not preserved by Appellant as he was unaware it was being argued. The error constitutes plain error, see p.19 infra;
3. The court below improperly admitted into evidence an ex-parte affidavit. Preserved by Appellant’s objection at T-48-49;
4. The application of this statute against the Appellant for this conduct violated the Appellant’s First Amendment rights and the Communications Decency Act of 1996.Appellant raised this issue on the record at T-76-80; T- 96 lines 9-12. It was also raised in Appellant’s Memorandum of Law at p.32-37; Packet at 92-97.
5. Were this Court to find that a protective order was proper under the statute, the order issued by the court below was overbroad, unduly burdensome and overly restrictive and even exceeded the relief demanded by Appellee below. This issue was not preserved by Appellant. The error constitutes plain error, see page 19 infra.
.
III. ARGUMENT AND CITATION OF AUTHORITIES
A. THE FEW INTERNET POSTS MADE BY APPELLANT DO NOT ESTABLISH THE ELEMENTS OF OCGA § 16-5-90(a)(1)
OCGA § 16-5-90(a)(1) prohibits very specific conduct only and does not reach conduct that is not listed in the statute. Under OCGA § 16-5-90(a)(1) A person commits the offense of stalking when:
“he or she follows, places under surveillance, 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.”
Nearly every element of this statute was not met by the evidence below. It was undisputed below that the Appellant never followed or placed Appellee under surveillance. The only method of “contact” found by the court was the use of a computer to broadcast posts about Appellee. T-120 lines 12-22. Both OCGA § 16-5-90 and 16-5-91 require, in relevant part, that the proscribed act of making non-consensual contact with another person be ‘for the purpose of harassing and intimidating the other person.’ ”Johnson v. State 264 Ga. 590, 591(1994). There was no proof that this was the purpose behind the posts complained of; instead Appellant repeatedly testified and his posts revealed that his intent was to expose Appellee’s business practices and to show the hypocrisy between her poem’s message and how she conducted her business. The court below, in issuing its decision, highlighted a section of Appellant’s Trial Memorandum that stated “This again establishes that Respondent and ELI are trying to get Petitioner to see the errors of her ways to stop extorting people for their use of The Dash.”T-122 lines 18-22. The court found this was an admission that Appellant meant to intimidate Appellee. That is not supported by the record, as described above, and Appellee admitted she filed the petition in part because of her reputation and as ELI was now in second position on an Internet search of her product. T-72 lines 11-14.
The term “harassing and intimidating” is further defined in OCGA § 16-590 as a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear of death or bodily harm to himself or herself or to a member of his or her immediate family, and which serves no legitimate purpose.” Johnson v. State 264 Ga. at pages 591-592. (emphasis in original) There is no proof that Appellant engaged in a willful course of conduct with no legitimate purpose with the intent to place Appellee in fear of physical harm to herself or her family.
“To ‘contact’ is readily understood by people of ordinary intelligence as meaning ‘[t]o get in touch with; communicate with.’ American Heritage Dictionary (3d ed. 1992).” Johnson v. State 264 Ga. at page 591. In the case of Marks v. State, 306 Ga. App.824 (2010) the Georgia Court of Appeals specifically held that posting on the internet about someone does not constitute “contact” under the statute. In Marks, a defendant’s conviction for stalking and violating an order of protection was reversed because the court found that his posting on the internet of several untrue statements about his ex-wife on several websites and his having emailed links to the postings to several people was not “contact” under the statute. Id. at 826.Here, the court below distinguished Marks only by stating that in Marks “the court specifically found that no evidence was presented suggesting that the boyfriend actually authored the web postings.” T-119 line 20. But that is incorrect. In Marks, the court treated as undisputed that the boyfriend wrote the posts complained of. The court below also ignored that the two posts Appellee complained of the most vociferously — “The Hearse Song” and the Google Street View image of her house — were posted by others. The court also did not apparently take into account that no evidence was presented as to who posted the cartoon; or who, if anyone made the call to Appellee’s employee’s girlfriend. Similarly, the court ignored that in order to view the posts, Appellee had to make several mouse clicks into the discussion forum. T-90 line 21 to 91 line 3.
That Appellee had to access the posts voluntarily and repeatedly also means that the “place or places” element was not met. In Pilcher v. Stribling, 278 Ga. App. 889 (2006), the Georgia Court of Appeals held that the term “place or places” shall include any public or private property occupied by the victim other than the residence of the defendant. The law only applies therefore to contact made at a public or private piece of property occupied by the person – so while emails repetitively sent to someone’s home would qualify, general posts about the person on the Internet would not meet the definition of “place or places.”
There is similarly no proof that Appellant engaged in a willful course of conduct with no legitimate purpose, another statutory requirement. See, Johnson v. State 264 Ga. 590, 591-592 (1994). In Daker v. Williams, the Supreme Court of Georgia instructed that a “‘course of conduct’ refers to a series of successive actions, and, as such, is equivalent to a ‘pattern of behavior.’ ” 279 Ga. 782,785 (2005). Accordingly, in State v. Burke,267 Ga. 377 (2010), where there was only a single act at issue, one violation of a protective order, the Georgia Supreme Court held that the evidence “ simply [did] not establish ‘a pattern of harassing and intimidating behavior.’ ” 267 Ga. at 379. Indeed, in Burke, the Court reiterated that the “ ‘harassing and intimidating’ conduct must be established by, among other things, ‘a pattern of harassing and intimidating behavior.’ ”Id.(internal citation omitted; emphasis in original). So that it is clear that not only must there be a pattern, but it must be a pattern of harassing and intimidating behavior. Id. See also Krepps v. State, 301Ga.App. 328, 330(2), (2009) (noting that a conviction for stalking requires the state to prove, as part of establishing the element of “harassing and intimidating” behavior, a pattern or a course of conduct). Appellee complained of five posts over a period of eight months with no post occurring in four of those months; an insufficient number of acts to constitute a pattern of harassing behavior. In contrast to the Internet activities that Appellee complained of here, the serious nature and deep extent of the pattern necessary to reach the intent of the statute is shown by the Georgia Court of Appeals’ decision in Autry v. State, 306 Ga.App. 125 (2010),(cert. denied February 28, 2011). In that case, a defendant was charged under OCGA §16-5-90(a)(1) and was convicted after a jury trial. In appealing his case to the Georgia Court of Appeals, he argued that the evidence presented against him did not amount to “a course of conduct.” The appellate court agreed that a sufficient pattern was not shown even though there was evidence that the defendant had repeatedly followed the complainant at a series of destinations over the course of a day and the victim testified she was in fear for her safety. See, Autry v. State, 306 Ga. App at 125-128.
The Georgia General Assembly in 1998 specifically added the requirement that the victim’s emotional distress must be established by “a pattern of harassing and intimidating behavior.” This requirement was added “to help avoid abuse of the system by people who overreact or become vindictive.” Review of Selected 1998 Georgia Legislation, 15 Ga. St. U. L. Rev. 62 (Fall 1998).Appellee has overreacted and the statute was explicitly amended to avoid this abuse of the system by requiring a significant pattern of harassing behavior not shown here.
At best, Appellant operated an Internet discussion forum where Appellee and her business practices were discussed by Appellant and others. The only post that comes close to resembling a threat is a post mentioning Appellee in a forum topic entitled “Re: Ellis – Get Ready -We are coming after you!” Appellant was not the person who posted this topic or the post in question. Also, when taken in context, it is clear that the poster is not threatening violence. What is meant is that the poster and others will scrutinize and alert the public to Appellee’s doings regarding her copyright infringement scheme. That post was also made over seven months before the hearing date and is merely a link to a video on YouTube.
Because Georgia courts have specifically ruled that Internet posts do not constitute “contact” under this statute and because Appellant has not engaged in any other conduct governed by the statute as defined by the Georgia Supreme Court and because Appellee did not make out her burden that Appellant’s conduct met each and every element of the statute, including engaging in a pattern of harassing and intimidating behavior, the order must be reversed.
.
B. APPELLANT WAS DEPRIVED OF DUE PROCESS WHEN COURT RULED ON EVIDENCE OF CONDUCT WHICH WOULD ONLY VIOLATE OCGA § 16-5-90(a)(2) WITH WHICH APPELLANT WAS NOT CHARGED
Throughout the hearing, Appellee’s counsel repeatedly questioned Appellant about his leaving up the allegedly offending posts, including the Google Street View Image of her house despite his having been served with a temporary protective order as a result of the filing of the petition. See, e.g. T-36 lines 2325;T-32, line 24. Appellant repeatedly told the court he left the posts up after service of the order to allow the court to see all the evidence and not appear to be hiding anything. T-32, 37 line 8-16; 57 line 18. Appellant did not realize that Appellee’s counsel was baiting the Appellant into admitting conduct that would constitute a violation of OCGA §16-5-90(a)(2), which only governs conduct occurring after service of a temporary protective order and which was obviously not part of the petition the hearing was addressing as at the time of the filing of the petition as no protective order was then in place.
Unfortunately, the court below took the bait. In its ruling, the court specifically quoted from OCGA §16-5-90(a)(2)’s language by finding that the mere broadcasting of Appellee’s home address constituted “stalking.” T-121 lines 8-19.
Appellant had no notice that he would be judged and have to defend against section (a)(2)’s more stringent prohibition. ‘[R]easonable notice of a charge and an opportunity to be heard in defense before punishment is imposed are “basic in our system of jurisprudence.” Ford v. Ford, 270 Ga. 314 (1998) quoting Taylor v. Hayes, 418 U.S. 488, 498(1974). See also Dowdy v. Palmour, 251 Ga. 135(2), (1983). To comport with due process, notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Ford, supra at 315.The notice must be of such nature as reasonably to convey the required information. Id. In Ford, an action to collect sums due under a divorce decree, the appellee’s lawyer had written the court that appellant had not met his financial obligations and asked that the court impose sanctions. The court responded that it would hold a telephone conference to discuss “this matter.” After the conference, the court found appellant in contempt and appellant appealed. In reversing the contempt finding, the Georgia Supreme Court found that the notice received by appellant from the trial court was not reasonable because it failed to adequately inform appellant of the charge against him so that he would have the opportunity to defend himself against the charge at the specified time and place for the hearing. Id. at 315. The court stated that because appellant voluntarily appeared and defended at the hearing did not excuse the failure to comport with due process. Id. In a nearly identical situation here, appellant had absolutely no notice that he would be facing a hearing on OCGA §16-5-90(a)(2), had no opportunity to prepare for a defense under this section and yet was found by the trial court to be in violation of its language. T-121 lines 8-19.
Because appellant had no notice and did not understand what he was being charged with, he did not raise this issue below. Both 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). This court set a four-prong test to determine if an issue amounts to plain error, all of which are applicable here:
First, there must be an error or defect—some sort of deviation from a legal rule— that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error – discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
State v. Kelly, 290 Ga. 29 (2011).
The order must be reversed as Appellant did not intentionally waive this issue; the error is clear; the error affected his substantial rights to due process; and failing to correct it would be fundamentally unfair and would affect the integrity and public reputation of judicial proceedings.
.
C. THE COURT IMPROPERLY ADMITTED AN EX-PARTE AFFIDAVIT INTO EVIDENCE
The court below admitted into evidence a lengthy affidavit of Timothy McCormack, a Seattle-based attorney. The affidavit contained inflammatory, unsupported allegations and theories against Appellant and offered McCormack’s opinion on the alleged “dangerousness” of Appellant. Packet at pg.12.
This Court has long held that it is reversible error to allow ex-parte affidavits into the record as they deprive the adversary of an opportunity to cross-examine the affiant. Young v. Young, 209 Ga. 711 (1953) citing Adkins v. Hutchings, 79 Ga. 260 (1888). In Young, a divorce action, the affidavits stated matters that were highly detrimental to the plaintiff, and most of them related to matters based upon pure rumor or conjecture similar to the statements in McCormack’s affidavit. This error alone warrants reversal. Hartley v.Caldwell, 223 Ga. 333(1967)(admission of ex-parte affidavit on material issues in case was material rendering further proceedings nugatory);Tamiami Trail Tours, Inc. v. Georgia Public Service Commission, 213Ga. 418 (1957).
Georgia courts have also 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).
.
D. THE FIRST AMENDMENT PROTECTS APPELLANT’SSPEECH AND THE COMMUNICATIONS DECENCY ACT OF 1996 PROTECTS A PERSON FROM BEING HELD RESPONSIBLE FOR OTHER’S POSTS
OCGA § 16-5-92 of the statute (“Applicability”) states:
The provisions of Code Sections 16-5-90 and 16-5-91 shall not apply to persons engaged in activities protected by the Constitution of the United States or of this state or to persons or employees of such persons lawfully engaged in bona fide business activity or lawfully engaged in the practice of a profession.
a. Federal Constitutional Analysis
A brief analysis of the balancing done by courts, including the US Supreme Court, in deciding between (a) speech that incites persons to commit crimes or which involves criminal activity and (b) speech that is protected by the First Amendment establishes that Appellant was engaging in protected speech. There can be no greater protected activity than speaking in a public forum. When a government places restrictions on the content that may be placed on the Internet, it acts as a regulator of private activity and its restrictions are subject to strict scrutiny. Reno v. ACLU, 521 U.S. 844 (1997). The Supreme Court’s understanding of the Internet in Reno proved prescient when it observed that the internet constituted a:
dynamic, 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. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, “the content on the Internet is as diverse as human thought.”
Reno v. ACLU, 521 U.S. 844, 870 (1997).
The Supreme Court in Reno, also noted that the District Court below specifically found that “[c]ommunications over the Internet do not ‘invade’ an individual’s home or appear on one’s computer screen unbidden. Users seldom encounter content ‘by accident.’ Id. at869. 2 Other Supreme Court precedent likewise requires that illegal action be almost contemporaneous with the inciting speech if the speech is to be excluded from First Amendment protection. See e.g. Brandenburg v, Ohio, 395 U.S. 444, 447 (1969). 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). In Hess v. Indiana, 414 U.S. 105 (1973), the Court found no imminent action in a demonstrator’s shout, “We’ll take the fucking street later [or again],” as police attempted to move a crowd of demonstrators off the street. Id. at 106-108. Speech that incites others to violate the law is not protected by the First Amendment, but the incitement to lawless action must be imminent and likely. Id. Here, the speech did not incite anyone to lawless action but it was also not imminent or likely.
Footnote 2 This holding also undermines the claim that by posting about Appellee, Appellant “contacted” her. Appellee learned of the posts because she repeatedly chose to visit ELI, click into the forums and voluntarily read them.
Appellant’s posts arose out of a desire to get people to help combat what he believed is an abusive and extortionate copyright infringement scheme. It was a call to “rally the troops” to use public information about Appellee to show her hypocrisy vis-a-vis the theme of her poem. This type of language and speech is afforded great protection.
For example, in NAACP v. Claiborne Hardware, 458 U.S. 886 (1982)involving the efforts of civil rights leader Charles Evers and others to organize an NAACP-sponsored boycott of white-owned businesses in Claiborne County, the Court noted that the boycott had a “chameleon like character…; it included elements of criminality and elements of majesty.” Id. at 888:
Evers publicly proclaimed that “any ‘uncle toms’ who broke the boycott would ‘have their necks broken’ by their own people.” Id. at 900 n.28. He “warned that the Sheriff could not sleep with boycott violators at night,” and told his audience, “ ‘If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.’ ” Id. at 902.
The Court found that Evers’ speech – even set against a backdrop of violence, and even including apparent threats – did not exceed the limits of protected speech. The Court noted that the speeches consisted of impassioned political pleas within which Evers’ seemingly threatening language was used, and that no imminent unlawful conduct followed the speeches. Id. Focusing on the political nature of Evers’ speeches, the Court wrote:
Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech. Id.
While not equating the speech here to that of Evers’, and while not equating the issue over “copyright trolling” to the civil rights movement, the issue of intellectual property enforcement is an issue of national importance that is the subject of a large amount of speech on the Internet and in the media. See, for example, www.fightcopyrighttrolls.com; www.eff.org/issues/copyright-trolls and www.techdirt.com/blog/?tag=copyright+trolls. Appellant is entitled to protection similar to that of the traditional press. The Supreme Court has upheld an inclusive definition of “press,” including individual publishers who may not have special affiliations or education, but who may use leaflets and other sorts of publications that provide both information and opinion. Lovell v.City of Griffin, 303 U.S. 444, 452 (1935);Branzburg v. Hayes, 408 U.S. 665,704 (1972)(the newsgatherer’s privilege applies to “the lonely pamphleteer” as much as the “large metropolitan publisher.”)
Appellee most stridently objected to the posting of her home address and family information on ELI. T -35, line 17. But 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.”). In deciding that there was no invasion of privacy when a reporter in Georgia published the name of a rape victim in contravention of a Georgia law prohibiting such publication, the Court held that to the extent the law prohibits the publication of information already contained in a public document, the law is unconstitutional and unenforceable. Id. at 496-497.
Appellant only disseminated public information about Appellee, all of which was derived from public documents and records. T-46 line 15.
While the Cox case alone is sufficient to exempt Appellant’s conduct from the statute, persons who are public personalities have an even lower expectation of privacy. See, Carafano v. Metrosplash.com Inc. 207 F.Supp. 1055(Cent. Dist.Ca. 2002)(television actress could not complain of publication of a false profile of her on match-making site which contained her true address). Appellee is a public figure and therefore has an even lower expectation of privacy.
Finally, the image of her home and other posts complained of were posted by another party – not Appellant. Section 230 of the Communications Decency Act, 47 U.S.C. §230 (1996) (“CDA”) states:
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
Effectively, this section immunizes interactive forums like ELI from liability for torts committed by others using their website or online forum. Carafano v. Metrosplash.com Inc., 339 F.3d 1119 (9th Cir. 2003)(CDA is intended to facilitate the use and development of the Internet by providing certain services immunity from civil liability arising from content provided by others). The CDA was held to immunize a publisher of an electronic newsletter from liability for publication of defamatory material even though the publisher edited portions of the defamatory material. Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).
The Batzel decision joined the consensus developing across the country that § 230(c)provides broad immunity for publishing content provided primarily by third parties. See 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); 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). Under the CDA, therefore, as long as a third party willingly provided the published content, the publisher is not deemed the “speaker” of the content and receives full immunity. Appellant 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, 206 F.3d at 985-986.
b. State Law Analysis
Georgia courts have held that the State Constitution provides even broader protection of speech than the First Amendment to the United States Constitution. Statesboro Pub. Co. Inc. v. City of Sylvania, 271 Ga. 92, 95 (1999);State v. Miller, 260 Ga. 669, 671 (1990). Therefore, Appellant’s words are entitled to protection under the State Constitution as well.
Without any threat of imminent illegal activity and without any incitement of anyone to imminently engage in illegal activity, even if the court finds that the actions of Appellant make out the elements of the statute, the statute’s exemption for constitutionally protected speech would apply to exempt the posts from the statute’s reach. Allowing Appellee to succeed on this petition would cast a chilling effect on future speech and has in fact stopped all discussion on ELI regarding Appellee. It would expose countless other websites to be subjected to orders of protection for similar legal behavior. See also, Smith v. Daily Mail, 443 U.S. 97 (1979) (punishing media for truthful reporting causes improper restraint on media).
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E. THE ORDER WAS OVERLY BROAD AND BANNED ALL SPEECH ABOUT APPELLEE
The court below did not just require the Appellant to remove the few offending posts that Appellee placed in the record; it forced Appellant 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.
This order 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. T-86 line 6 to pg. 87 line 15. While this argument was not raised by Appellant below it constitutes “plain error” as defined in page 20 of this brief.
Content-based speech regulations, like the court’s order below, face “strict scrutiny,” the requirement that the government use the least restrictive means of advancing a compelling government interest. United States v. Playboy Entm’t Group, 529 U.S. 803, 813 (2000). Similarly, permanent injunctions that restrict First Amendment rights are proper only if they serve an overriding interest based on findings that the restriction is essential to preserve higher values and is narrowly tailored to serve that interest. U.S. v. Miami University, 294 F.3rd 797 (6th Cir. 2002). Here, the court unnecessarily violated Appellant’s First Amendment rights by requiring him to forever remove all posts regarding Appellee and to forever stop discussing Appellee. Therefore, even if this court denies all of Appellant’s other arguments, it must tailor the protective order issued more narrowly to allow Appellant to include posts by others and all posts which do not constitute a pattern of harassment or intimidation of Appellee; at most Appellant should have been required to remove only those posts of which Appellee complained.
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IV. CONCLUSION
The court below improperly interpreted OCGA § 16-5-90(a)(1) and should not have held Appellant responsible for conduct that only violates OCGA § 16-590(a)(2). Furthermore, the court improperly allowed the admission of an ex-parte affidavit and held Appellant responsible for the posts made by third parties despite the language of the Communications Decency Act of 1996. As the Appellant was merely exercising his First Amendment rights in making posts about Appellee, the request for a protective order should have been denied or at the very least more narrowly tailored than the sweeping order issued by the court. Wherefore, Appellant prays that the order below be reversed and the petition dismissed or in the alternative, order that a new hearing be held on the petition.
Dated: September 30, 2013
/S/ Oscar Michelen
Oscar Michelen
NY State Bar No.: 2058477 (Courtesy Admission)
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
Marietta GA 30064
.
CERTIFICATE OF SERVICE
This is to certify that pursuant to Appellant Rule 6, I have on this day served counsel for the opposing party a copy of this “Brief of Appellant” before filing same by faxing a copy of the “Brief of Appellant” to the below listed opposing
counsel and by sending a copy of the “Brief of Appellant” 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 30th day of September, 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