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.
I, however, did not quickly publicize this court filing as I typically do with my other court filings. First, I was busy with other responsibilities and it wasn’t a high priority for me. Second, the filing was already reported publicly by two friends. And finally, I was curious to see if there were going to be any court responses by Linda Ellis and/or her bimbo lawyer, Elizabeth (Betsy) McBride. Quite surprisingly (and stupidly) to me, they finally did. But that is okay, I will share this response in my next post.
IN THE SUPERIOR COURT OF MUSCOGEE COUNTY STATE OF GEORGIA
CIVIL ACTION FILE: SU-13-DM-409
LINDA ELLIS, Petitioner,
v.
MATTHEW CHAN, Respondent
.
RESPONDENT’S DECLARATION REGARDING PETITIONER’S MISREPRESENTATIONS & OPPOSING COUNSEL’S PROFESSIONAL MISCONDUCT
COMES NOW, Matthew Chan, as Respondent, declares to the Court the as follows:
1. I am the Respondent in this case. In the original hearing, I chose to represent myself “pro se” in this Court and I continue to represent myself now.
2. This Declaration may come as a “surprise” because it comes at a relatively late date. However, I wanted to take the time to think and reflect carefully before I submitted this Declaration. I have no desire to burden this court with any more pleadings, communications, or submissions unless absolutely necessary.
3. The purpose of this Declaration is to serve the “greater good” by including it as part of the court record. I take no joy in filing this Declaration but feel it is necessary. Over the last few months, I have gone back and forth in my mind whether I should file this Declaration. Ultimately, I have done so because I have learned that no one will ever advocate or represent me as passionately or determinedly as I would for myself. If I do not speak for myself on the matters herein then no one else will. Given the two-plus years that my supporters and I have devoted in time, energy, money, publicity, and other resources on my behalf, I want to address residual issues and matters of concern that have arisen during the “aftermath” period.
4. Because I continue to live and work in the jurisdiction of this Court, I have a strong vested interest in ensuring that every court views me fairly and credibly in any possible hearings in the future (related or unrelated to this case) and not let any possible bias, animosity, or ill will from this case negatively affect me or unfairly taint my reputation in any possible court matters in the future. I don’t expect favoritism but I strongly desire and request that any court be fair and respectful to me in the future whether I choose to represent myself “pro se” or through counsel I may retain.
5. I was vigorous and passionate in my own defense at the evidentiary hearing (as well as through two appellate courts and the court of public opinion) and I continue to hold high respect and regard for all courts. Despite my strong disagreement with the Court’s original ruling and the subsequent protective order that was issued against me, I believe that the Court was well-intentioned. I believe that because I was not a trained lawyer and chose to represent myself “pro se,” that it contributed to the ruling against me. To what degree, I may never know. Certainly, in reviewing the court record many times, I feel strongly that I made errors and did an inadequate job in presenting my case in certain parts. Indisputably, I was less educated with legal procedure than opposing counsel but I believe the Court knows I did my best while being respectful to the Court. I have had considerable time to relive, reflect, study, and analyze the circumstances up to the hearing of my case.
6. One of my larger concerns I want to express in this Declaration is the fact that opposing counsel, Elizabeth W. McBride is married to Judge Gil McBride, a Superior Court Judge. I want to be clear that I have never met Judge McBride and have no feelings or impressions of him one way or another. I did not know at the time of the original 2013 evidentiary hearing that Ms. McBride was related to, much less married to Judge McBride. I never made the connection although I had heard of Judge McBride’s name prior. This was a point of surprise and speculative discussion amongst my supporters when we later discovered this relationship. Some of us were concerned that Ms. McBride’s spousal connection to Judge McBride might have had a subtle influence on the Court in this case. Let me be clear, there is no evidence that the Court was ever influenced by this. I make no accusations of anyone that Judge McBride or his spousal relationship to Ms. McBride had any influence whatsoever on the Court in my case. However, I think it is reasonable that outside observers might speculate and wonder if cases Ms. McBride represents and wins in this Court will be entirely based on the merits and not her spousal relationship to Judge McBride especially given the relatively small number of Superior Court judges that serve the Columbus/Muscogee County area.
7. Prior to this case, I was already an avid supporter, advocate, and well-informed in matters of free speech and the First Amendment especially as it relates to the Internet. In particular, it is one reason that I chose to represent myself without a lawyer. I did not have the belief or confidence that I could easily find a sufficiently qualified lawyer locally that would passionately assert or argue my First Amendment rights or my rights as a website owner and discussion forum provider under Section 230 of the Communications Decency Act. Further, I did not have the confidence that any local lawyer would take the time to truly understand or sufficiently explain the intricacies, operations, context, style, and culture of my website, ExtortionLetterInfo.com (ELI) and its online community.
I want to recap the pertinent facts, events, and circumstances leading to this Declaration:
1. On February 13, 2013, Petitioner Linda Ellis, sought and was granted by the Court a “Stalking Ex Parte Temporary Protective Order” against me, Respondent Matthew Chan. A hearing was then scheduled for February 28, 2013.
2. The hearing did occur on February 28, 2013 as scheduled. Ms. Ellis was represented by opposing counsel, Elizabeth W. McBride, and I represented myself “pro se.”
3. Ms. Ellis, through her counsel, sought a Stalking Protective Order against me. I, as “pro se” Respondent, vigorously and passionately defended my position by asserting that I never contacted or stalked Ms. Ellis under O.C.G.A. §16-5-90. But even if the Court concluded that I had “contacted” Ms. Ellis under said statute, I argued that my speech fell well within the scope of the First Amendment and did not constitute “stalking”. Ms. Ellis, through her counsel, attempted to place responsibility of forum posts I had not written upon me based on the flawed and incorrect argument that because I was able to delete the forum posts and chose not to do so, as equivalent to me endorsing or authoring the content of said forum posts. I asserted 47 U.S.C. § 230 (Section 230 of the Communications Decency Act of 1996):
“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.” This federal law preempts any state laws to the contrary: “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”
In simpler terms, the author of any forum post is only responsible for what he writes and no one else. This has been and continues to be well supported in state and federal cases throughout the U.S.
4. Although I acknowledge that the Court has no responsibility of what other lawyers have said to me or about me in the past or might say to me in the future, I want to inform the Court of a particularly shocking and appalling incident that occurred during an afternoon break of the 2013 hearing. The Court might recall that I openly complained that I, as an untrained non-lawyer, knew sufficiently enough to produce three sets of exhibits (one for myself, one for the Court, and one for opposing counsel) yet Ms. McBride, a trained, professional lawyer in good standing, did not have the respect or professional courtesy to provide me (a “pro se” defendant), not one extra copy of ANY exhibit during the hearing. Not one. During one of the afternoon breaks, a female lawyer whom I did not know or ever met before openly said to me “That is what you get for not hiring a lawyer.” This unsolicited and open statement directed at me was shocking, appalling, and entitled. Every citizen has the right to represent themselves “pro se” and expect to be treated fairly, respectfully, and professionally by opposing counsel and any court. What this says to me is that there is at least one practicing lawyer (perhaps many others) in Columbus/Muscogee County that has a general disdain and disrespect towards “pro se” litigants such as myself. On behalf of myself and all future “pro se” litigants, I respectfully request this court to consider that in any future hearings that the simple professional courtesy of additional copies of exhibits for opposing “pro se” litigants be enforced. This is not a controversial or unreasonable request especially since most opposing counsel themselves would insist that they receive the same.
5. Coming into any hearing before the Court, practicing lawyers in good standing already have a substantial “natural advantage” over any untrained non-lawyer “pro se” litigants such as myself. Given this substantial “natural advantage”, I assert that opposing counsel, Ms. McBride, was unprofessional and took unfair advantage of me and my “pro se” status during the February 28, 2013 hearing by not providing me ANY copies of ANY exhibits even when requested. In fact, because of her “natural advantage” as a lawyer in good standing, she had a duty to exercise extra caution and act fairly towards me as a “pro se” defendant. Taking unfair advantage of a “pro se” litigant can result in unintended consequences. In my view, she wasn’t “doing her job”. She cheated and deprived my rightful ability to easily reference those exhibits used against me. And yet, she sat with copies of all my exhibits conveniently in her possession that she could refer to anytime during and after the hearing. I was forced to rely on my memory and brief notes I made during one of the breaks.
6. While Ms. McBride can make the argument that she could not immediately leave the courtroom to provide me copies of any court exhibits, the Court amply provided her at least two substantial breaks for her to correct this alleged “oversight”. Despite my open complaints in court (which are in the transcript), she chose not to do so. For this, I do not blame her client, Ms. Ellis, for this. I place full responsibility and blame upon Ms. McBride. She is a lawyer in good standing and has practiced law for many years. She is not a newcomer to courtroom procedure. She knows better and she deliberately cheated to gain unfair advantage against me.
7. Further, there is no good argument that she can make for not providing copies of the exhibits to me AFTER the hearing. I reached out to her several times by phone and email (Exhibits A & B). She was nonresponsive and completely ignored me. Her actions (or lack thereof) were willful, irresponsible, unprofessional, and unfair. It greatly delayed and hurt my (and my lawyers’) efforts to properly evaluate my appellate position for many months. My grievance and complaints against Ms. McBride might be beyond this Court’s jurisdiction but nonetheless I state this here and document it for the record.
8. During the days and weeks following the hearing, I sought and received legal advice of whether I should appeal my case or not. I felt that most appellate cases are generally costly, uphill battles where lower court decisions are often upheld. I was fully aware of this and it was told to me by my appellate lawyers. For any appellate lawyer to fairly evaluate my case, he would need to see the evidence (exhibits) that was used against me. However, I did not have them due to Ms. McBride’s disregard, disrespect, and professional misconduct towards me as “pro se” defendant.
9. Shortly after the original hearing, I (still acting in “pro se” capacity) attempted to contact Ms. McBride four times. Twice by telephone (when I left voice messages with her assistant) and twice by email (Exhibits A & B) I tried to retrieve a draft copy of the final protective order and copies of Ms. Ellis’ court exhibits. I also inquired as to whether or not she wanted to jointly order the court transcript. She was nonresponsive and ignored me every time.
10. Although the Court announced a general ruling at the conclusion of the 2013 hearing, I had no specific instructions and the order had not been immediately written. As such, I, as “pro se” defendant, appropriately sought to inform and advise Ms. McBride to write an appropriate and reasonable order that was not overbroad and one that would not likely result in an appeal filed against her client. I clearly did not want a protective order issued against me but, if necessary, I was prepared to accept a minimal protective order as a compromise. I wanted to make sure that any court order against me was fair, reasonable, lawful, and constitutional. Unfortunately, the final order as written by Ms. McBride and issued by the Court on March 6, 2013 was not. This was not only my opinion. It was the opinion of many lawyers (including First Amendment legal scholars) which greatly influenced me to initiate the appellate process against Ms. Ellis.
11. As I stated, Ms. McBride had the responsibility to ensure that a reasonable and fair court order was written as to not compel me to appeal the case against Ms. Ellis. That would result in unnecessary legal cost and expense for both me and her client. It would not surprise me if Ms. Ellis has since become unhappy with Ms. McBride. Ms. McBride’s poor and unprofessional choice to ignore my requests to see her draft of the protective order and deny me copies of the exhibits unnecessarily harmed not only me but also Ms. Ellis, her client. Ms. Ellis did not have the legal education, background, or experience to understand the negative ramifications of Ms. McBride’s poor choices and actions. Unlike Ms. Ellis, I am far more informed on such matters. I understand the consequences of Ms. McBride’s poor choices. I assert and make the complaint that Ms. McBride forced both her client and me into an unnecessary and costly appellate case which cost both sides several thousands of dollars in legal fees, costs, and expenses in addition to lost time and energy. Although I ultimately prevailed in appellate court, it was all so unnecessary and could have entirely been avoided had Ms. McBride simply handled her client’s case more responsibly. I cannot place blame upon Ms. Ellis in this instance. I blame Ms. McBride.
12. An interesting anecdote I want to share is that on October 7, 2014, in the Supreme Court building where I was represented by three lawyers, Ms. McBride twice approached and attempted to communicate with me directly. It seemed to be an unusual action to take. Once, she called out to me when I was walking from the sidewalk to the entrance of the Supreme Court building. I briefly glanced at her and then ignored her. The second time, I was standing and conversing with my five out-of-state friends/supporters (who traveled to Atlanta to meet me and watch oral argument) in a waiting area. She approached me (us) and asked, “Are you with the Chan v. Ellis case?” I was clearly standing there and she recognized me earlier. She also asked if one of us was Oscar Michelen. This was a disingenuous question as Mr. Michelen’s photo has been and continues to be prominently displayed on the ELI website for seven years. It is ironic that when I wasn’t represented by any counsel that she would not respond to or communicate with me in any fashion. But somehow at the Supreme Court, she felt the strange inclination to try to communicate with me twice despite the fact that I made efforts to physically avoid both her and Ms. Ellis. The time for Ms. McBride to speak with me was during March 2013, not when we finally arrived in the highest court in the state for oral argument a year and a half later.
13. Ms. McBride also had the responsibility to vet her client’s exhibits to ensure they were true, authentic, and representative of the actual forum posts and not let her client submit altered, modified, or obscured exhibits mislead or deceive the Court. I have since discovered that several exhibits shown to the Court were not true, authentic, or representative of the actual forum posts.
14. The point of my presenting “new” exhibits now is not meant as a “retrial”. It is meant to inform the Court and place into the record that the original exhibits presented in the original hearing were not true, accurate, or representative. I had always been bothered by the poor quality of Ms. Ellis’ original exhibits. I never understood why Ms. Ellis presented such extremely poor, distorted, cropped, and marked up exhibits. Conversely, I presented to the Court very “clean”, organized, and easily readable exhibits. It was only after the Supreme Court reversed the order on March 27, 2015 and Ms. Ellis’ continued to make defamatory public statements about me in the media and press as a “stalker” and “cyberstalker” did I finally feel compelled to go into the forum archives (hidden from public view) and personally review every single exhibit she submitted against me at its original online source. I was informed very early on by my appellate lawyers that no new evidence could be submitted during the appellate process. Thus, no matter how poor quality or cropped the original exhibits were, they were the only ones allowed to be discussed and referenced in appellate briefs. I did not like that but I respected the rules. It would be two years later in April 2015 (after Ms. Ellis’ public defamatory statements against me would not cease) that I finally decided to compare and analyze Ms. Ellis’ poor-quality exhibits with the original source material online.
15. Although I prevailed in the Supreme Court, there were still matters of public perception and my online reputation I wanted to rectify. Ms. Ellis seemed determined to defame me and my reputation even after the Supreme Court decision. There is no denying that my own writings in prior forum posts and one video don’t paint me in a flattering light. I (along with my supporters) became very unhappy with Ms. Ellis’ continued online antics of taking my words entirely out-of-context and distorting the actual meanings. Because Ms. Ellis used such tactics publicly as her primary weapon against me to damage my online reputation, I had to discover for myself how far she took it with the original court exhibits. What I discovered in the forum archives when compared to her court exhibits was upsetting to me.
16. In Exhibit C, my comment about Ms. Ellis being “dead right” seems to stand alone. However, my comment is actually an open response to April Brown’s comment from June 23, 2012 which was cropped out of the court exhibit and not at all directed to Ms. Ellis. The cropping and omission was not an accident.
17. In Exhibit D, the court exhibit implies that April Brown embedded the “death” lyrics of the “Hearse Song” in the forum post. And yet the actual forum post (below the court exhibit version), never had any “death lyrics” whatsoever. It was simply a lone posting of a “Hearse Song” YouTube video. I included the follow-up post to the YouTube video which clearly shows April Brown’s comments that have NOTHING to do with death or violence. The addition of the “death lyrics” was intentional.
18. In Exhibit E, I provide the first three never-before-shown posts of “Ellis – Get Ready – We Are Coming After You!” as the originating context for that thread of discussion. Ms. Ellis emphasized (through an oval mark) that boisterous topic title. And yet, if the Court reads the first three posts, it has to do with April Brown’s moral outrage over Kalka & Baer’s (Ms. Ellis’ attorneys) $100,000 demand letter issued on behalf of Ms. Ellis to a book author over an unknowing sharing of her poem. Part of the argument for my position in my appeal was that the Court was unable to fully view the true and full context of the exhibits because what Ms. Ellis presented was cropped, modified, obscured, or out-of-context.
19. In Exhibit F, Ms. Ellis presented her exhibit as if it were “current” as of the February 28, 2013 hearing that ELI user, Robert Krausankas, posted a photo of her home and Ms. McBride implied that it was still online. And yet in the forum archives, the full post shows that as of January 17, 2013, Mr. Krausankas modified the post to display only the hyperlink, not the photo. In other words, on February 13, 2013 when Ms. Ellis applied for the Ex-Parte Temporary Protective Order, she made the false statement in her petition that the photo of her home was still being posted online, when in fact, as of January 17, 2013, Mr. Krausankas had already removed the Google Street View photo of her home of his own accord! At the February 28, 2013 hearing, Ms. Ellis and Ms. McBride again made the false assertion that the photo of her home was still being shown online for the purpose of threatening Ms. Ellis. It was not. The Court was mislead. The full, uncropped forum post clearly shows that Mr. Krausankas was illustrating what Ms. Ellis publicly reported to the State of Georgia as the address of her daycare center business (Kindercare Learning Centers)! Mr. Krausankas did not post the photo to “threaten” Ms. Ellis in any way. Ms. McBride irresponsibly echoed Ms. Ellis false assertions and helped perpetrate a lie without checking online for herself her client’s “exhibits” prior to the hearing.
20. The four exhibits (Exhibits C through F), are more than sufficient to illustrate my points. I was both foolish and naïve to assume that any forum posts Ms. Ellis would show to the Court would be complete and in its full context. I never suspected that she would submit such extremely altered, modified, and obscured forum posts. Nor did I suspect that Ms. McBride would not vet her client to ensure that the exhibits provided were in fact true, authentic, and representative of the actual posts. As an inexperienced non-lawyer, I did not request from the Court that Ms. Ellis show and display the full forum discussions in its proper context and that it be printed out for all parties to review and scrutinize. Nor did I ask the Court to instruct Ms. Ellis to go online while in court to confirm the accuracy of their exhibits. Ironically enough, the “affidavit” submitted by Seattle lawyer, Timothy B. McCormack (which I fought to have put aside), provided the “cleanest”, most readable, and unaltered versions of forum posts (although they were still isolated from the fuller context of online discussion.)
21. Another significant factor that influenced my decision to submit this Declaration is that my appellate lawyer, Oscar Michelen, felt compelled (with my authorization) to send Ms. Ellis a Cease-and-Desist Letter (Exhibit G) on my behalf on April 13, 2015. This letter speaks for itself. It was written to clearly inform and put Ms. Ellis on notice that we would not stand idly by while she continued to publicly and defamatorily refer to me as a “stalker” and “cyberstalker” when the legal matter of whether I “stalked” her was ruled and settled unanimously in my favor by all seven Justices of the Supreme Court.
22. During the trial, through my own oversight, I never presented the 18 testimonial letters (Exhibit H) written on my behalf. These testimonials letters come from supporters throughout the U.S. and even internationally such as Israel, Canada, and Australia. You will find that these letters are from intelligent, well-informed individuals who were witness to me, ELI, and online discussions about Ms. Ellis. I present them now as part of the overall record.
IN CONCLUSION, barring any unexpected developments or follow-up responses by Ms. Ellis or Ms. McBride, I consider this Declaration my capstone statement on the matter with this Court. After everything I have seen and experienced, Ms. McBride and Ms. Ellis have proven to be dishonorable and untrustworthy. I (along with my supporters) remain vigilant and keep a watchful eye of signs they might falsely attack me or my reputation again. If that happens, I will once again be compelled to vigorously defend myself as I did before.
At this juncture, I do not request anything from this Court except to respectfully consider and take into account everything I have written in this Declaration. No one can change or undo the past but perhaps others can learn and benefit from this case by being informed and cognizant that things are not always what they appear to be. I have learned much from the last 2.5 years. This case has been an educational and life-changing experience I will never forget and hope to never repeat.
This 14th day of August, 2015.
Respectfully submitted,
Matthew Chan, PRO SE P.O. Box XXXX Columbus, GA 31917
As we enter February 2015, the anticipation of the decision from the Georgia Supreme Court on my appeal grows with each passing week. Based on our estimates, the time for their decision is fairly imminent. By imminent, I would be surprised if we didn’t get a decision by the end of March 2015. As we wait for the decision, I wanted to take some time revisit notable comments made by a legal/lawyer blogger in support of my case.
On October 10, 2014, Seattle attorney Venkat Balasubramani wrote a legal commentary titled, “When Does Online Criticism Become ‘Stalking’?” on law professor Eric Goldman’s Technology & Marketing Law Blog. I’ve been an occasional reader of Professor Goldman’s Technology & Marketing Law blog because I have both a personal and professional interest in both Technology and Marketing Law. Imagine my surprise when I discovered that my case was a topic of interest for them.
As a matter of disclosure, I have never met or communicated with Venkat Balasubramani or Eric Goldman. I have no relationship with either of them. As far as I know, Venkat has no particular inclination to be biased towards me or my legal adversary, Dash Poet Linda Ellis. It appears his interest in my case is entirely professional and his comments reflect that.
Given this, I carefully read his impressions of my case. And while Venkat does not explicitly state how many or which of the court documents he actually read, it certainly appears he did a much deeper reading than most people who have written about my case. Venkat also appeared to have watched the oral argument video of my case with the Georgia Supreme Court.
I give extra weight to Venkat’s legal commentary because he appears to be an experienced lawyer that doesn’t have a vested interest in the outcome of my case one way or another.
Venkat does an excellent job recapping ELI’s history, my background, and the events that led to the original hearing.
This is an online harassment dispute. Ellis, the plaintiff/petitioner, is the author of a poem called “The Dash”. She has achieved some degree of public figure status through the poem’s notoriety. The poem is about a person who speaks at a funeral, and Ellis encourages people to recite (but not publish) the poem. According to Chan, the defendant/respondent, Ellis also engages in scorched-earth copyright enforcement tactics, sending threat letters and extracting settlements from a wide-ranging group of people or entities who post or publish her poem without permission. In other words, she is alleged to be a copyright troll.
Chan runs the “Extortion Letter Info” website. He’s a Georgia businessman involved in a range of ventures. Receipt of a demand letter from Getty prompted him to start the ELI site, which has become a clearinghouse of sorts where people discuss, strategize, and vent about copyright enforcement campaigns. In 2012, after receiving information from a Seattle businesswoman about Ellis’ collection efforts, Chan added a forum to ELI titled “Linda Ellis/Linda’s Lyrics/Dash Poem Forum”.
According to Chan’s brief, one of Ellis’ employees sent a DMCA notice targeted at a document that Chan posted to Scribd. Ellis then sent an “abuse notice” to ELI’s web host, saying that ELI had posted harmful content about (or directed to) her.
This resulted in Chan having to change hosts, and Ellis sent an additional message flagging supposedly abusive content posted to ELI. This abuse notification was not as effective as the earlier one, because the new web host stood firm. Ultimately, Ellis sought a protection order under Georgia’s anti-stalking statute based on several different posts to ELI. She obtained an initial order ex parte, and after giving an opportunity for Chan to weigh in and conducting a (what one party described as a somewhat harried) hearing, the court made the order permanent.
The totality of the evidence in support of Ellis’s request for the protective order consisted of posts to ELI. Some of the posts were by Chan and others were from third parties.
Venkat astutely observed the “strange” involvement of Seattle attorney Timothy B. McCormack. Any conflict that the Dash Poet had with me had nothing to do with him. McCormack’s issues and complaints with me is entirely removed and separate from those of the Dash Poet. The only commonality is that both don’t like me or the ELI Forums very much for the public dialog and exchanges that occur between its readership and participants.
The court also considered the affidavit of a Seattle-based lawyer, who strangely weighed in on Chan’s supposed dangerousness, but then went on to author an amicus brief in support of Ellis. (I wasn’t really sure what the deal was here, although my uninformed guess is that the lawyer and Chan had tangled in the past, in correspondence or via email.)
Venkat gives his opinions on the content where the Dash Poet claimed I was “dangerous” to her.
Chan was admittedly antagonistic towards Ellis. He obviously disagreed with her tactics and had also apparently been paid, by one (or more) of the recipients of Ellis’ letters, to engage in a PR campaign to force Ellis to back down. Chan pushed some buttons. His posts did state a vague intent to engage with Ellis offline, but it’s tough to characterize any of them as truly threatening, or even intending to invade Ellis’s personal space:
A couple of posts from Chan did intimate that he had information about Ellis, including potentially unflattering information:
Chan mentions Ellis’s mailing address, but only in the context of wondering whether her letter-writing campaign is funding her mortgage payments on her house (with a commenter speculating about why her home shares an address with a day care center). The general tenor of his posts is that he has the ability to uncover information about Ellis from various sources, and he encourages others to do the same. None of the discussion is unrelated to her tactics or overall campaign–it may be personal, but it’s only personal because Chan doesn’t like Ellis’s style of copyright enforcement. There’s no dispute that Chan never met Ellis in real-space, followed her in real-space, or called her. (There is one post where Chan alludes to being in the same part of town as Ellis, but the two never crossed paths.) Nor is their any dispute that any of the ELI commenters engaged in these acts.
After sharing his opinion on the allegedly “dangerous” content, Venkat comments on the permanent protective order.
The court issues a permanent order against Chan, in part based on Chan’s supposed violations of the (ex parte) temporary order. Chan appealed. By request of his counsel, the appeal was transferred from the Georgia court of appeals to its supreme court. (Prof. Volokh participated as amicus on behalf of the EFF and Aaron Caplan, a law prof at Loyola who has written a bunch on how these types of ex parte no-contact orders can raise First Amendment issues.) The trial court’s order is striking in its breadth:
I am cautiously optimistic that the Georgia Supreme Court will formally recognize the merits of my arguments that the lower court ignored and disregarded. Nevertheless, I also understand that appeals are always an uphill battle for any appellant. Given this, it is reassuring to read Venkat’s assessment of the problems of the protective order.
It’s fairly obvious that this order has little chance of surviving unscathed. Three of the most glaring problems are: (1) even assuming some posts by Chan did make Ellis reasonably fearful for her safety, there is no basis to remove the other posts; (2) banning Chan from talking about Ellis in the future is a prior restraint; and (3) Chan is not responsible for the comments posted by others and neither the content of these posts nor his failure to remove them should form the basis of liability to Chan (nor should he be required to remove their posts).
Venkat provides further analysis by asking some very important questions that I believe the Georgia Supreme Court will acknowledge and answer.
More broadly, the order raises a question about what is enough to constitute a threat under the Georgia statute. Is a threat to cause her non-physical harm sufficient? Given that it is a stalking statute and references “safety,” one would think the answer would be no. Perhaps someone who engages in repeated one-to-one contacts or physical conduct can run afoul of the statute by communicating statements that are ambiguous threats, but there wasn’t any course of conduct or repeated contact here. Threatening to harm her business interests or her reputation should not suffice. Does disclosing Ellis’s personal information change the analysis? Given that her information is publicly available, the answer here should be no as well. (As a sidenote, the cases would give Chan and ELI wide berth from a defamation standpoint to characterize Ellis’s tactics as trolling or extortionate.)
As I have stated, the Dash Poet played the “frightened female and mother” card to garner sympathy from the local court. It absolutely worked. Venkat picked up on that undertone presented by the Dash Poet’s lawyer during oral argument.
The oral arguments of both sides really highlight their different conceptions of what it takes for online speech to be considered threatening. Ellis’s argument also implicitly raised the question of whether her gender should factor into the question of whether the speech is considered threatening. (This has come up a lot recently in discussions about the types of online harassment women face.) Without mentioning it specifically, Ellis’s lawyer took the tone that “taken in context, of course these are threatening.”
Venkat brought up a case I had not previously known about but is especially appropriate for those who would be accused of criminal “cyberstalking”.
The case also brought to mind US v. Cassidy, where a judge said that a federal stalking indictment based on online commentary could not withstand First Amendment scrutiny. As in Cassidy, Ellis is somewhat of a public figure and the posts are clearly spurred by Chan’s disagreement with Ellis’s tactics. There’s also no personal relationship between the parties.
Venkat doesn’t specifically mention Section 230 of the Communications Decency Act but it seems implied. He also seems unconvinced that I was inciting or advocating illegal actions towards the Dash Poet. (I wasn’t, not even close.)
It’s also interesting whether someone who operates a website (such as Chan) should be held responsible for the actions of his commenters that he allegedly encouraged. In other words, can Chan somehow be held liable for encouraging others to harass and stalk Ellis? Is he guilty of stirring up a so-called digital lynch mob? I’m not exactly sure how someone would tee up this type of a claim, but Chan was careful about what he encouraged others to do and it seemed clear his speech did not cross the line into illegal advocacy. The factual basis for such a claim was slim, or non-existent. Not to mention that First Amendment concerns counsel a close look at the factual underpinning of any liability in this scenario.
Venkat shares his thoughts regarding using certain laws to inappropriately reign in speech allowed by the First Amendment.
I’ve mentioned in passing that anti-stalking laws are often used to squelch criticism, and this is a good example. Ellis’s complaint is that Chan (and his commenters) are talking about her in ways they should not be. In fact, one of Ellis’s qualms seemed to be that Chan’s site ranked highly in search results, and as a result, people searching for Ellis online would be more likely to see the critical statements about her on Chan’s site. Ellis’s lawyer (or perhaps amicus who argued supporting Ellis) likened Chan’s actions to spray painting an epithet on a high school kid’s locker, or to a “virtual cross burning” [yikes .. strained analogy alert!].
I confess it was nice to read Venkat’s comments about Seattle attorney Timothy B. McCormack. Venkat doesn’t state McCormack by name which of the Dash Poet’s lawyer in the oral argument he is referring to: Elizabeth W. McBride or Timothy B. McCormack, but he does refer to “amicus counsel”. Neither lawyers were very credible but McCormack was the least credible of the two lawyers. The oral argument rarely showed the facial reactions of the Georgia Supreme Court Justices but I can promise you that most of their incredulous facial reactions went towards McCormack’s many outrageous assertions and arguments.
Ellis’s lawyer seemed oblivious to the First Amendment interests at play, trying to cast Chan as some sort of ringmaster, directing a circus of harassment towards Ellis. Although it’s always tough to judge from oral argument, it seemed like the justices picked up on the First Amendment issues at stake, and on the many problems with the trial court’s order. They had some tough questions for Ellis’s lawyers.
Overall, reading Seattle attorney Venkat Balasubramani‘s article on my case was validation of many important points I made in the lower court. However, the lower court chose to listen to the Dash Poet’s emotional arguments and ignore the true context of the posts in question as well as the First Amendment, in general. I am looking forward to reading the Georgia Supreme Court’s decision when it is released.
Win, lose, or draw, this has been an educational and life-changing experience and case.
The Streisand Effect is an interesting phenomenon and an invisible force that lives on the Internet. Some people learn very quickly, others are slow to learn. I have been fascinated with the Streisand Effect since I learned about it a few years ago and have learned to have a healthy respect for it. In fact, I have such a healthy respect for it, it has become a very powerful PR and strategic tool to shift the balance of power.
I view the Streisand Effect much like tidal force energy within the ocean. If you don’t respect and recognize the Streisand Effect, you can be capsized and washed away uncontrollably. If you do learn to respect it and learn how to channel the Streisand Effect, it can create unforeseen opportunities and take you on a journey that you could never have predicted and imagined.
In my ongoing saga of the Chan v. Ellis appeal, perhaps the slowest and most dimwitted person in this legal fiasco of the Streisand Effect is Seattle Attorney Timothy B. McCormack. Timmy has essentially hijacked the appellee side of the Chan v. Ellis appeal to such a degree, Linda Ellis is now only a symbolic figure. Linda apparently has refrained from commenting about me. And I don’t have much to say about her either. I don’t need to. Google search results and the appellate briefs of both sides speaks volumes. There is no question I don’t come out smelling like a rose in this case but based on anecdotal evidence, I am not coming out smelling like dog poo either. Linda has been very quiet and so the interwebs have left her alone. However, Timmy continues his wondrous warpath with his zany motions and briefs submitted on the record. Even Linda’s main attorney, Elizabeth W. McBride has been quiet so far.
The bottom line is the interwebs hate copyright trolls and copyright extortionists and those lawyers that partake in those fields. The interwebs also hate those that try to quash Internet free speech, the First Amendment, and Section 230 of the CDA. For me, it matters not whether I win my appeal or not to the extent that I have to write about Linda’s Dash Poem Extortion Scheme on ELI. Honestly, that is small potatoes. When Attorney Elizabeth W. McBride and the judge came up with that overbroad permanent protective order and I initiated the appeal, Linda’s online fate was sealed. By squelching me and ELI, Linda’s team inadvertently triggered the Streisand Effect. The more they fight their position, squelch the ELI 1,900 posts, try to convince people that I am ACTUALLY a “cult leader” vs. me sarcastically calling myself a “cult leader”, the dumber they look. The more they try to stick the “stalker” and “dangerous” title on me, the more Timmy and Linda will look like fools. I don’t think I could try to convince anyone that knows me that I would even engage in anything remote close to stalking.
Timmy keeps trying to bring up in his legal briefs of all these unnamed people who are allegedly afraid of my so-called “retaliation”. Timmy is only making it worse. First, it is not hard to verify my criminal background. I have no criminal record and no history of violence. Second, it is not hard to verify my professional background. It consists of my 20-year career spanning a variety of business and professional interests such as I.T., real estate investing, web broadcasting, independent book publishing, blogging, Internet media, and web presence strategy.
Does anyone seriously think I am going to throw all that away and do something stupid as being violent or take any physical actions against anyone that might land me in jail and the criminal justice system? The answer is an “easy” NO! The only “dangerous retaliation” that will occur is that I write more commentary and true stories, hardly anything that comes close to being a “true threat”. Reporting on the true stories is so abundantly more interesting that I have no need to create fiction. Not to mention all the stories that I kept private over the years that is just dying to come out and find an audience.
All the attacks and efforts to quash me, Oscar, and ELI has only spawned more websites, friends, and allies. It has only strengthened the force of the Streisand Effect. And if by some unpredictable and unforeseen circumstance that I lose this appeal with the Georgia Supreme Court (I am still a bit cynical of the Georgia court system), my guess that there will likely be more of a public backlash now than when I “lost” the case in the Muscogee County Superior Court last year. That legal “loss” from last year has ultimately translated into some unpredictably nice positive outcomes this year. I have plenty of untold stories to write about, publish, and monetize it.
The entrepreneur in me is going to publish and monetize this legal saga that I have lived through since last year. And I am going to tremendously enjoy writing about it.
Beware and respect the power of the Streisand Effect.
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).
.
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.
.
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
