Chan v. Ellis: Text of Appellant Supplemental Brief in Response to 2nd Amicus Brief of Timothy B. McCormack
IN THE SUPREME COURT OF THE STATE OF GEORGIA
Case No.: S14A1652
Lower Court No.: SU13DM409
MATTHEW CHAN, Appellant
-against-
LINDA ELLIS, Appellee
.
SUPPLEMENTAL BRIEF OF APPELLANT IN RESPONSE TO SECOND AMICUS CURIAE BRIEF OF TIMOTHY B. MCCORMACK
.
Respectfully Submitted,
Oscar Michelen (Courtesy Admission)
NY State Bar No.: 2058477
CUOMO LLC
9 East 38th Street
New York, NY 10016
William J. McKenney
GA State Bar No.: 494725
MCKENNEY & FROEHLICH
50 Polk Street NW
Marietta, GA 30064
.
.
TABLE OF CONTENTS
Table of Citations ……………………………………………………… ii
I. Preliminary Statement ……………………………………………….. 1
II. Discussion of Facts …………………………………………………. 1
II. Argument and Citation of Authorities ………………….…………… 2
A. THE US SUPREME COURT HAS ANALYZED CIVIL INJUNCTIONS BETWEEN PRIVATE LITIGANTS AS PRIOR RESTRAINTS ON SPEECH ………….. 2
B. BECAUSE APPELLANT’S POSTS ARE NOT “TRUE THREATS” THEY ARE PROTECTED BY FEDERAL LAW AND WERE THE SUBJECT OF AN OVERLY BROAD RESTRICTIVE ORDER …………………………………………… 4
C. APPELLANT HAS NOT WAIVED HIS RIGHTS ……………………………… 7
D. THE COMMUNICATIONS DECENCY ACT MAKES APPELLANT IMMUNE FROM LIABILITY FOR POSTS MADE BY OTHERS ……………………………… 8
E. THAT APPELLANT CAN POSSIBLY SPEAK ABOUT APPELLEE ON OTHER OUTLETS HAS NO BEARING ON WHETHER THIS ORDER IS CONSTITUTIONAL . . . 9
IV. Conclusion …………………………………………………………… 10
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TABLE OF AUTHORITIES
Cases
Austin v. Keefe 402 U.S. 415 (1971) ……………………………………….. 2
Fair Housing Council of San Fernando Valley v. Roomates.com, 521 F.3d 1157 (9th Cir. 2008) …………………………………………………………………………………………. 9
Jones v. Dirty World Entertainment Recordings, LLC. 840 F. Supp 2d 1008 (ED Ky. 2012) ………………………………………………………………………………………………..10
Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994) …………………………. 4
McGuire v. Reilly, 386 F.3d 45 (1st Cir. 2004) ………………………………………………… 4
Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931) ……………………………………… 2
Schenck v. Pro-Choice Network of Western New York. 519 U.S. 357 (1997) ……… 4
Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546 (1979) ………………………… 10
Tory v. Cochran, 544 U.S. 734 (2005) ……………………………………………………………. 5
U.S. v. Alaboud, 347 F.3d 1293 (11th Cir. 2003) ………………………………………………. 8
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Statutes
Communications Decency Act of 1996 (CDA) …………………………………………………. 9
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Other Authorities
“Doxing” https://en.wikipedia.org/wiki/Doxing ……………………………………………. 6
“Social Shaming Works Faster Than Legal Recourse”
https://www.techdirt.com/articles/20120730/07105419881/social-shaming-works-faster-than-legal-recourse.shtml ………………………………………………………… 7
“Why Social-Media Shaming is Okay”
http://www.buzzfeed.com/mattbuchanan/why-social-media-shaming-is-okay ….. 7
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PRELIMINARY STATEMENT
This supplemental brief is submitted by Appellant in response to the Supplemental Amicus Curiae Brief of Timothy B. McCormack, filed in support of Appellee.
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DISCUSSION OF FACTS
The Supplemental Amicus Curiae Brief (referred to hereafter as “SACB”) attempts to paint the few Internet posts involved in this case as “true threats” in order to have the Lifetime Protective Order survive the strict scrutiny analysis required of content-based restrictions on speech. The only way the SACB can do that is by mischaracterization of the facts in the record and mischaracterization of Appellant’s argument. Appellant will highlight some of those factual mischaracterizations in this section.
(A) On page 8 of the SACB, the Appellant is accused of cyber-bullying Appellee’s daughter when the only post about Appellee’s daughter was “MEE, museum” -her initials and her workplace. T. at pages 53 and 66;
(B) On page 10 of the SACB, one of the purported threats was characterized as a “ransom note” when the only evidence of the purported note was Appellee’s uncorroborated testimony that she “received a letter from [ELI], which I am currently trying to locate so I can honestly say yes, I have been notified with a ransom note type letter.” (T. at page 62). No such note is in the record.
(C) The SACB, on pages 10-11, then lists other purported threats contained on ELI but not the context in which they were made or that, as Appellant testified, they were just “figurative” speech (T. at pages 21-24). Appellant’s Brief and Supplemental Brief in Response to the Amicus Brief analyze and discuss these posts in detail.
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ARGUMENT AND CITATION OF AUTHORITIES
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A. THE US SUPREME COURT HAS ANALYZED CIVIL INJUNCTIONS BETWEEN PRIVATE LITIGANTS AS PRIOR RESTRAINTS ON SPEECH
The SACB argues that the First Amendment is not implicated in this case as the order does not qualify as “State action” because it only deals with the rights of private parties.
Since Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931), the United States Supreme Court has evaluated injunctions against speech as prior restraints. In Austin v. Keefe, 402 U.S. 415 (1971), the Court struck down a preliminary injunction granted in a civil action between private parties for violating the First Amendment. The order banned a community organization from distributing leaflets in a Chicago suburb which were critical of a real estate agent’s business practices.
In overturning the order, the Court stated that it was not important that the matter was between two private parties because the order served to stop the dissemination of information to the general public. Id. at 418-419. The Supreme Court stated that it was also irrelevant that the community organization’s primary motive was “not to inform the public but to force the respondent to sign a no-solicitation agreement.” Id. at 419. Justice Burger, writing for the majority, used language that could not be more applicable to the case at bar had it been written by Appellant instead:
The claim that the expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment. Petitioners plainly intended to influence respondent’s conduct by their activities; this is not fundamentally different from the function of a newspaper. Petitioners were engaged openly and vigorously in making the public aware of respondent’s real estate practices. Those practices were offensive to them, as the views and practices of petitioners are no doubt offensive to others. But so long as the means are peaceful, the communication need not meet standards of acceptability.
Id. (internal citation omitted).
Much of the Supreme Court’s First Amendment jurisprudence regarding abortion clinic buffer zones also has been the result of analyzing injunctions sought by and/or levied against private parties. See, e.g., Schenck v. Pro-Choice Network of Western New York. 519 U.S. 357 (1997); Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994).
The SACB cites only one case for its proposition that an injunction between private parties cannot invoke State action sufficient to warrant First Amendment scrutiny, McGuire v. Reilly, 386 F.3d 45 (1st Cir. 2004)(an abortion clinic buffer case as well). While McGuire did state that every First Amendment claim requires State action, the court also stated that “enforcement [of a content-neutral statute] against a given person in a particular situation could be invalid on an as-applied basis.” Id. at pg. 59. That is what Appellant is arguing here. There is also State action here as the court below required Appellant to remove all posts about Appellee, even though that was not the relief Appellee was seeking before the court (T. at pages 84-86)(Appellee’s counsel stating they do not want entire forum taken down just alleged threats).
In another case directly on point, the United States Supreme Court held that a civil injunction issued against protests outside a lawyer’s office was an unconstitutional infringement of the protesters’ First Amendment rights. Tory v. Cochran, 544 U.S. 734 (2005). Moreover, the Tory court held that a “person subject to a court’s injunction may elect whether to challenge the constitutional validity of the injunction when it is issued, or to reserve that claim until a violation of the injunction is charged as a contempt of court.” Id. at 737. Here, Appellant has chosen to challenge the injunction against his speech upon its issuance and not wait to be held in contempt of court.
There is also State action here as the court required Appellant to remove all posts about Appellee, even though that was not the relief Appellee was seeking before the court (T. at pages 84-86)(Appellee’s counsel stating they do not want entire forum taken down just alleged threats).
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B. BECAUSE APPELLANT’S POSTS ARE NOT “TRUE THREATS” THEY ARE PROTECTED BY FEDERAL LAW AND WERE THE SUBJECT OF AN OVERLY BROAD RESTRICTIVE ORDER
The SACB next analyzes Appellant’s posts and the posts of others on ELI as “true threats.” Rather than repeat Appellant’s response to the original Amicus Brief filed on behalf of Appellee, Appellant refers the court to the Amicus Brief filed in Support of Appellant and to the Appellant’s Supplemental Brief in Response to the Amicus Brief on behalf of Appellee.
The SACB relies heavily on Appellee’s subjective statement that she was reasonably placed in fear of her life but recognizes that it is Appellant’s intent to intimidate and create fear that causes [his posts] to lack First Amendment protection. SACB at page 17 (emphasis added). There was no evidence, however, that Appellant intended to place Appellee in fear of her life; all the evidence pointed to the opposite – that Appellant was discussing Appellee’s business practices and wanted to publicly embarrass and expose her for engaging in them.
At worst, Appellant was engaging in a relatively new Internet phenomenon called “doxing.” Internet encyclopedia Wikipedia defines the term as follows:
Doxing (spelling variant doxxing) is an abbreviation of document tracing, the Internet-based practice of researching and publishing personally identifiable information about an individual. The methods employed in pursuit of this information range from searching publicly available databases and social media websites like Facebook, to hacking, and social engineering.
https://en.wikipedia.org/wiki/Doxing
A prominent recent example of “doxing” occurred when journalists with the Westchester County, New York newspaper, The Journal News, were accused of publishing the home addresses of gun owners in the region in a story the paper published in December 2012. While “doxing” can often involve illegal hacking to retrieve the information posted, in Appellant’s case, all the information was publicly available and there was no hacking or even allegations of hacking.
Doxing is one form of “social shaming” another Internet phenomenon that uses social media to expose conduct that the poster of the information believes to be immoral, illegal or worthy of contempt. See, e.g., “Social Shaming Works Faster Than Legal Recourse” published on TechDirt.com on July 30, 2012 and available at https://www.techdirt.com/articles/20120730/07105419881/socialshaming-works-faster-than-legal-recourse.shtml; “Why Social-Media Shaming is Okay” published on BuzzFeed.com on November 13, 2012 and available at http://www.buzzfeed.com/mattbuchanan/why-social-media-shaming-is-okay.
The trial court even stated as part of its basis in granting the Lifetime Protective Order that the Appellant’s purpose was to intimidate Appellee about her copyright infringement program. At pages 122-123 in the transcript, the court states:
There’s no question that The Dash is a constitutionally-copyrighted document, and the illegal use of –a violation of the copyright certainly gives her the right to enforce all the copyright infringement laws, and that is not a grounds or basis to give the Respondent in this case the constitutional right to use the website to intimidate her, which he says has been his intent.
T. at pages 122-123.
While Appellant denies that the record supports a finding that it was his intent to intimidate Appellee, even were that the case, such conduct may be immoral but it is not illegal or even outside the confines of Constitutionally-protected speech. It cannot constitute “stalking” under the statute as the intent must be to place someone in fear of physical harm. There is simply no evidence that this was Appellant’s intent.
The Eleventh Circuit also requires that true threats be “a serious expression of an intention to inflict bodily harm.” U.S. v. Alaboud, 347 F.3d 1293 (11th Cir. 2003). There was no evidence that these posts constituted a serious expression of an intention to inflict bodily harm or that it was Appellant; intent to make Appellee fear bodily harm.
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C. APPELLANT HAS NOT WAIVED HIS RIGHTS
The SACB then presents the circular argument that because Appellant was “convicted of stalking” he “has waived his First Amendment protections of such activity.” Appellant was not convicted of stalking as he never faced any criminal charges. Secondly, Appellant is appealing the order restricting his speech on First Amendment grounds, so he has not waived those rights. That is one of the main purposes of the appeal -to determine if the order amounts to an improper restraint on Appellant’s First Amendment rights. This position of Amicus for Appellee further demonstrates that the Lifetime Protective Order is a prior restraint on speech.
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D. THE COMMUNICATIONS DECENCY ACT MAKES APPELLANT IMMUNE FROM LIABILITY FOR POSTS MADE BY OTHERS
The SACB raises the argument that because Appellant commented on some of the posts made by others, Appellant cannot claim the immunity provided by the Communications Decency Act of 1996 (CDA).
This issue is fully briefed in the Appellant’s Brief and Reply Brief; the Appellant’s Supplemental Brief in Response to Amicus Curiae Brief on Behalf of Appellee; Appellant’s Supplemental Brief regarding recent case law in this arena; and in the Amicus Curiae Brief filed in Support of Appellant.
To summarize, the Appellant did not actively participate in illegal conduct like the defendant in Fair Housing Council of San Fernando Valley v. Roomates.com, 521 F.3d 1157 (9th Cir. 2008) (creating online questionnaire to help users violate the Fair Housing Act) or actively participate in posting allegedly defamatory content about a person like the defendant in Jones v. Dirty World Entertainment Recordings, LLC. 840 F. Supp 2d 1008 (ED Ky. 2012) (website allegedly posted libelous and defamatory content about schoolteacher). Instead, the Appellant’s case fits squarely in the protection afforded by the CDA: He is a provider of an interactive computer service being treated as a speaker for the content posted by another speaker.
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E. THAT APPELLANT CAN POSSIBLY SPEAK ABOUT APPELLEE ON OTHER OUTLETS HAS NO BEARING ON WHETHER THIS ORDER IS CONSTITUTIONAL
The SACB makes the argument that there may be other outlets on which Appellant can talk about Appellee and that therefore the order is narrowly tailored and not overbroad. The SACB, however, makes no argument why this speech would not violate the Lifetime Protective Order which required Appellant to remove “all posts” about Appellee regardless of their content. The SACB even contradicts its position that Appellant is free to discuss Appellee anywhere else but ELI when it claims that Appellant has “moved the Ellis content to another website.” Not only does the SACB offer no proof of this alleged fact but it immediately states thereafter “Whether this activity violates the Protective Order has not been litigated yet.” SACB at page 24 fn 1. This statement alone reflects the chilling effect and prior restraint on speech that the Protective Order has had and will have on Appellant’s right to free speech.
The US Supreme Court has long-ago decided that whether the speaker has another alternative outlet for their speech is not relevant to First Amendment analysis. See, e.g. Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546 (1979)(municipal theater’s ban on play was impermissible prior restraint even though play could be performed elsewhere).
As the Court stated in that case “One is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Id.
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IV. CONCLUSION
The Supplemental Amicus Brief on Behalf of Appellee does not bring to the court’s attention any arguments that support or justify the broadly restrictive order below. The PPO must be reversed.
Dated: September 25, 2014
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/S/ Oscar Michelen
Oscar Michelen
NY 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
.
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CERTIFICATE OF SERVICE
This is to certify that in accordance with Georgia Supreme Court Rule 14, I have on this day served this Supplemental Brief of Appellant in Response to Second Amicus Curiae Brief of Timothy B. McCormack before filing with the Court by mailing a copy of same to the opposing counsel listed below in a properly addressed envelope with adequate postage:
Page, Scrantom, Sprouse, Tucker, Ford
Attorneys for Appellee
1111 Bay Avenue
Third Floor
Columbus, GA 31901
Mr. Timothy B. McCormack
Amicus Filer on Behalf of Appellee
167 Lee Street
Seattle, WA 98109
This 25th day of September 2014
/s/ Oscar Michelen
Oscar Michelen
Georgia Bar No.: H10048
Cuomo LLC
Attorneys for Appellant
9 East 38th Street
Third Floor
New York, NY 10016
(212) 448-9933