I’m pleased to report that the First Amendment Amicus Brief Clinic filed an amicus brief Friday on behalf of the Electronic Frontier Foundation and Prof. Aaron Caplan in Chan v. Ellis, a case pending before the Georgia Supreme Court. My students Jeff Brandt and Mairead Dolan worked on the brief, and Darren Summerville was kind enough to serve as local counsel (many thanks to him for that!). I quote the Summary of Argument and Part I of the brief below, for those who want to read it on the blog, though you can also find a PDF here. Matthew Chan, whose position we are supporting, is represented by Oscar Michelen (Cuomo LLC). To quote the Digital Media Law Project summary of the case (emphasis added),

Linda Ellis is the author [of] the motivational poem “the Dash” and actively enforces her copyright to this poem. Matthew Chan runs the Extortion Letter Info website (ELI), featuring a message board often used for exposing alleged copyright trolls and “extortion letter schemes.” An individual who claimed to have received a copyright infringement notice and settlement offer from Ellis contributed to a discussion on ELI in 2012. This discussion developed into insults, accusations of copyright trolling and extortion, and other comments that Ellis interpreted as threats to her safety.
On February 13, 2013, Ellis filed a petition for a “stalking temporary protective order” with the Georgia Superior Court, asserting that she was “in reasonable fear of her safety.” Ellis alleged that Chan posted threats of death such as “we are coming after you,” along with personal information such as her home address. In this petition, Ellis requested that Chan be restrained from any acts that harass or intimidate her or her family and approaching within 1000 yards of her….
After the hearing, the Superior Court of Muscogee County issued a broad permanent protective order …. Judge Frank Jordan held that Chan “placed [Ellis] in reasonable fear for [Ellis’s] safety” by contacting Ellis and posting her personal information in order to harass and intimidate her. Judge Jordan also emphasized Chan’s ability to remove posts as the moderator and his decision not to remove those directed at Ellis. Judge Jordan permanently ordered Chan to remove all posts related to Ellis ….

Please note that, in all Clinic cases, the students, local counsel, and I act as advocates for the client. We are making the best arguments we can for the position we are taking; we are not necessarily endorsing it as the position that we think the law ought to take. (Sometimes you can tell from past posts of mine that I do personally agree with that position, but you should not draw such an inference simply from the filing of the brief.)

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

Restraining orders and criminal stalking law may properly restrict unwanted speech to a person. But they may not restrict unwanted speech about a person, again unless the speech falls within a First Amendment exception. The trial court’s order thus violates the First Amendment.

2. OCGA § 16-5-90 complies with these principles, because the speech that it bans is limited to “contact[ing] 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” (emphasis added). This is properly interpreted to refer just to speech communicated specifically to the target — not speech said to the public at large, such as in a newspaper or on a Web page. Moreover, § 16-5-90 specifically excludes speech that has any “legitimate purpose.”

Yet the trial court misinterpreted § 16-5-90 as also criminalizing speech about people, including speech that has the legitimate purpose of public criticism. As read by the trial court, § 16-5-90 violates the First Amendment. As read properly, § 16-5-90 does not violate the First Amendment — but also does not cover Matthew Chan’s speech.

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

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


I. The First Amendment Broadly Protects the Right to Criticize People, Including Private Figures.

By its own terms, Georgia’s stalking statute “shall not apply to persons engaged in activities protected by the Constitution of the United States or of this state.” OCGA § 16-5-92. Criticism of people is generally constitutionally protected, unless it falls within the narrow existing First Amendment exceptions, such as for defamation and threats.[1] This extends to speech about private individuals as well as to speech about public figures.

Thus, for instance, in Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), activists who disapproved of a real estate agent’s (apparently lawful) behavior repeatedly leafleted near where the agent lived and went to church, demanding that he change his practices. Indeed, “[t]wo of the leaflets requested recipients to call respondent at his home phone number and urge him to sign the ‘no solicitation’ agreement.” Id. at 417. Yet the Court struck down an injunction against such leafleting, reasoning,

No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court. Designating the conduct as an invasion of privacy, the apparent basis for the injunction here, is not sufficient to support an injunction against peaceful distribution of informational literature of the nature revealed by this record.

Id. at 419-20.

Likewise, in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), the organizers of a boycott of white-owned stores demanded that black customers stop shopping at those stores. The organizers stationed “store watchers” outside the stores to take down the names of black shoppers who were not complying with the boycott. Those names were then read aloud in local churches, and printed in leaflets that were distributed to other black residents. Some of the noncomplying shoppers were physically attacked for refusing to go along with the boycott. Id. at 894.

Yet the Court held that these activities were protected by the First Amendment, despite the backdrop of violence and the attempt to use social ostracism to pressure black shoppers to forgo their legal rights to shop at white-owned stores. Though “[p]etitioners admittedly sought to persuade others to join the boycott through social pressure and the ‘threat’ of social ostracism,” the Court held, “[s]peech does not lose its protected character … simply because it may embarrass others or coerce them into action.” Id. at 909-10. Even financial liability for such speech was unconstitutional, the Court concluded. Id. at 921. A fortiori, an injunction against such speech would be even more clearly impermissible.

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

To be sure, courts have allowed some restrictions on harmful speech said to an unwilling listener through a one-to-one medium of communication (such as telephone or e-mail), when that speech was seen as constituting harassment or stalking. But such restrictions on speech to a particular unwilling listener leave speakers entirely free to speak to willing listeners, and to try to persuade those willing listeners that the subject of the speech is behaving improperly. As the cases cited above show, restrictions on such speech about an unwilling subject cannot be justified by the propriety of restrictions on speech to the person. See Eugene Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyberstalking,” 107 Nw. U. L. Rev. 731, 745-46 (2013) (discussing the constitutional distinction between speech about people and speech to people).

These cases also show that Mr. Chan’s speech is constitutionally protected. Ms. Ellis engaged in behavior that many people view as unethical, and indeed as an attempt to suppress others’ statutorily and even constitutionally protected fair use rights. Golan v. Holder, 132 S. Ct. 873 (2012) (describing the right to fair use of copyrighted materials as a “‘built-in First Amendment accommodation[]’” (quoting Eldred v. Ashcroft, 537 U.S. 186, 190 (2003))). Discussion of such behavior “concern[s] ‘a matter of public significance,” which is defined as requiring only that the posts “generally, as opposed to the specific identity contained within [them], involved a matter of paramount public import,” Florida Star v. B.J.F., 491 U.S. 524, 536-37 (1989) — the matter here being whether copyright enforcement is being used in an unethical and speech-stifling matter.

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

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

Indeed, the only possible justification for the remarkable breadth of the injunction in this case (“Respondent is hereby ORDERED to remove all posts relating to Ms. Ellis,” Final Permanent Protective Order, T. 121) would be a conclusion that Ms. Ellis is entitled not to be sharply criticized online at all. The injunction is not limited to threatening statements or even to statements that discuss Ms. Ellis’s husband or the area in which Ms. Ellis lives (though, again, such statements may well be protected given Keefe); instead, it applies to all speech about Ms. Ellis. Yet, under the First Amendment, no such entitlement to be free from criticism can exist.


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