Contributor, The Volokh Conspiracy

Georgia law makes it a crime (“stalking”) to

  1. “contact[] another person” — meaning “communicate with another person” using any medium, electronic or otherwise —
  2. “at or about a place or places”
  3. “without the consent of the other person”
  4. “for the purpose of harassing and intimidating the other person.”

Is that limited to speech to a person, or does it also extend to unwanted speech about the person said to the public at large (even with the understanding that the person may be a member of the public)? This ends up being an important question, given the recent incidents in which such statutes have been read as applying even to harsh public speech about a person, including speech on political, religious or ethical questions.

In Friday’s Chan v. Ellis decision, the Georgia Supreme Court held that speech about a person is generally not prohibited by the statute, whether or not a court finds that the speech was said “for the purpose of harassing and intimidating” the person:

Although one may “contact” another for the purposes of the statute by communicating with the other person through any medium, it nevertheless is essential that the communication be directed specifically to that other person, as opposed to a communication that is only directed generally to the public.

And while this is just a decision about how to interpret a Georgia statute, I expect that it will be influential in the many other states that similarly restrict unwanted “contact[]” with another person.

The case came about because of a dispute about copyright enforcement, a dispute that led to harsh criticism of copyright owner Linda Ellis on Matthew Chan’s site. Here’s the court’s summary of the facts:

Matthew Chan has a website on which he and others publish commentary critical of copyright enforcement practices that they consider predatory. Linda Ellis is a poet, and her efforts to enforce the copyright in her poetry have drawn the ire of Chan and his fellow commentators.

On his website, they have published nearly 2,000 posts about Ellis, many of which are mean-spirited, some of which are distasteful and crude, and some of which publicize information about Ellis that she would prefer not to be so public. At least one post is written in the style of an open letter to Ellis, referring to her in the second person, and threatening to publicize additional information about Ellis and her family if she continues to employ the practices of which Chan and the other commentators disapprove.

It is undisputed that Chan never caused any of these posts to be delivered to Ellis or otherwise brought to her attention. But it also is undisputed that Chan anticipated that Ellis might see the commentary on his website, and he may have even intended that she see certain of the posts, including the open letter to her.

A trial court ordered Chan to take down “all posts relating to Ms. Ellis,” on the theory that such posts violated the Georgia statute (which authorized injunctions as well as criminal punishment). But the Georgia Supreme Court reversed, holding that the statute didn’t cover the posts. This holding also made it unnecessary for the court to decide whether the injunction violated the First Amendment or the federal 47 U.S.C. § 230 statute (which shields Web site operators from liability for what others post on the site). A brief that my students Mairead Dolan and Jeff Brandt and I filed on behalf of the Electronic Frontier Foundation and Prof. Aaron Caplan indeed argued that the injunction was unconstitutional and violated the federal statute.

Here is an excerpt of the Georgia Supreme Court’s reasoning, which strikes me as quite right:

Common and customary usage [suggest that “contact” with a person is limited to communications directed specifically to that other person, as opposed to a communications that are only directed generally to the public], as does another provision of the stalking law, which defines “harassing and intimidating” in terms of “a knowing and willful course of conduct directed at a specific person.” … An ordinary speaker of the English language typically would not say, for instance, that a popular author had “contacted” or “communicated with” the speaker simply because the speaker had read a book written by the author….

That a communication is about a particular person does not mean necessarily that it is directed to that person…. [The court then endorsed the reasoning of two past Georgia Court of Appeals cases, concluding: -EV] “[P]ublishing or discussing a person’s medical condition with others obviously does not constitute … contacting that person[]” … [Likewise,] posting about [one’s] ex-wife on the Internet — posts that the ex-wife discovered only as a result of searching for her name on the Internet — did not amount to the defendant “getting in touch with or communicating with [her].”

The limited evidence in the record shows that Chan and others posted a lot of commentary to his website about Ellis, but it fails for the most part to show that the commentary was directed specifically to Ellis as opposed to the public. As written, most of the posts appear to speak to the public, not to Ellis in particular, even if they are about Ellis.

And there is no evidence that Chan did anything to cause these posts to be delivered to Ellis or otherwise brought to her attention, notwithstanding that he may have reasonably anticipated that Ellis might come across the posts, just as any member of the Internet-using public might. The publication of commentary directed only to the public generally does not amount to “contact,” as that term is used in [the statute], and most of the posts about Ellis quite clearly cannot form the basis for a finding that Chan contacted Ellis.

But there were a few posts that seemed to be more directly addressed to Ellis, for instance “the open letter to Ellis, which Chan may actually have intended as a communication to Ellis.” Yet, the court said, even if they were “contact,” they weren’t “without [Ellis’s] consent”:

This is not a case in which Chan sent a message to Ellis by electronic mail, linked commentary to her social media account, or posted commentary on her website. To the contrary, the commentary about which Ellis complains was posted on Chan’s website, and Ellis learned of that commentary — that is, it arguably was communicated to her — only as a result of her choice to discover the content of the website.

The evidence shows that Ellis visited the website herself — it appears, in fact, that she registered herself as an authorized commentator on the website — and that she had others visit the website and report back to her about the commentary published there. Generally speaking, our stalking law forbids speech only to the extent that it is directed to an unwilling listener, and even if Ellis did not like what she heard, she cannot be fairly characterized as an unwilling listener. Ellis failed to prove that Chan “contacted” her without her consent, and the trial court erred when it concluded that Chan had stalked Ellis.

The court did note that, “[t]o say that a communication must be directed specifically to another person” “is not to say that it must be directed exclusively to that person … [or] that the communication must be directed immediately to that person without intermediaries or relays.” And of course some speech about a person, such as libel of the person or threats of violence against a person, may be punishable under other statutes. But public criticism of a person, apparently directed to the public at large (including, as here, that segment of the public that reads a particular web site), is not covered by Georgia’s stalking law.

UPDATE: For an amicus brief that I filed in this case, on behalf of the Electronic Frontier Foundation and Prof. Aaron Caplan, see here.