Mar 30 2015

Georgia Supreme Court Rules That Internet Posts About Someone Don’t Constitute “Stalking”

The Supreme Court of Georgia unanimously overturned a lower court’s permanent protective order against a Columbus, Georgia businessman named Matthew Chan; Chan had been hit with the order back in 2013 when a woman named Linda Ellis claimed she feared for her safety after reading 9 posts on Chan’s website, called (“ELI”). [Disclaimer: Since 2008, I am the legal advisor to ELI which discusses numerous copyright issues] The decision is a big win for the online community and for the First Amendment. This post is the first in a two-part series about the case. This post will introduce the case and the steps leading to the decision and the next post will discuss the decision and its implications and reach.


Georgia Supreme Court

Georgia Supreme Court

The Court made clear that writing ABOUT someone is not the same as writing TO someone. Critical to the Court’s decision is that it was undisputed that Mr. Chan never called, spoke with, followed, contacted, emailed, or in anyway directly communicated with Ellis. For purposes of the statute involved, one “contacts another person” when he “communicates with another person” through any medium, including an electronic medium. See OCGA § 16-5-90(a)(1). The Court stated that: “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.”

The Court also noted that in order to read the posts, Ellis had to visit Mr. Chan’s ELI website. This simple fact meant that it could not be said the communications were made “without her consent,” another element of the law:

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. Even then, if the speech is protected by the First Amendment, it is excluded from the scope of our stalking law. See OCGA § 16-5-92

How the case arose

ELI was founded by Matthew Chan in 2008 and upon its launch he asked me to be its legal advisor. The site began as a place to examine and discuss the prevalence of excessive copyright infringement claims brought by Getty Images, the largest warehouse of digital images in the world. The site became popular quickly, as the growth of “copyright trolling” occurred. Soon the discussion forum on the site became a valuable resource to victims of copyright trolling. Matt and I were addressing questions and concerns from people all over the country and the world. Soon ELI users began telling us about new forms of copyright trolling and additional forums and pages were added to discuss these claims and issues: ELI has discussed and assisted folks facing claims of copyright infringement from clip art owners; pornography distributors; and numerous other photographers and photo agencies besides Getty. A community of regular users who served as informal moderators of sorts developed and soon enough approximately 10,000 unique visitors were coming to ELI every month.

In 2012, a woman named April Brown tweeted her complaints about Ellis. Seeing her tweets, Chan contacted Brown to investigate her claims about Ellis and her copyright enforcement demand letter. Ellis is the author of a popular poem called “The Dash.” The poem’s message is that when you die, the year of your birth and the year of your death are inscribed on your tombstone but all that really matters is “The Dash” in between because that signifies your life. The poem encourages the reader to live a fulfilled life and not waste their “Dash.” Ms. Brown shared the uplifting poem on her blog only to receive a “Cease and Desist” letter from Ellis’ company demanding thousands in damages and threatening to sue Ms. Brown for $150,000 in statutory damages and legal fees if she refused to pay. Ms. Brown started to do some research on the issue and learned about the phenomena of “copyright trolling.”

Prior to this, ELI had never come across “The Dash” or Ellis, but the case and the issue seemed to be exactly what ELI had dealt with – What do you do if you may have used someone’s copyrighted material and are now faced with an exorbitant damages claim? A Linda Ellis/Linda Lyrics/Dash Poem Forum was created on ELI to see if others had come across this issue and to open up a dialogue about the topic. Sure enough, many folks (including Ellis’ letter recipients) became interested, came to the forum, and a wide-ranging conversation began. Matt Chan found out that Ellis lived in Marietta, Georgia (two-hours away from Columbus and where he had lived for three years prior to moving to Columbus). He posted that he might consider doing one of his “ELI Factor” videos from the street in front of her home. Someone then posted a Google Street View of her house.

In reaction to an extraordinarily high $100,000 demand letter one of Ellis’ lawyers sent to a California-based author, Matt wrote an open letter to Ellis stating that her copyright infringement tactics were wrong and that he was willing to reveal public information he found out about her and her family online if she didn’t rein in her activities. ELI users created memes about Ellis, coloring her face green and changing her face to appear “troll-like.” Ms. Brown posted a link to a YouTube video to the child-like song known as “The Hearse Song” with the headline “Ellis – Get Ready – We Are Coming After You!” In a separate post, Mr. Chan posted her husband’s name, her daughter’s initials; where her daughter worked; and the name of the mortgage company on her Marietta home. All of this was public information gleaned by Mr. Chan from basic Internet searches through social media and real estate records. This strategy is called “doxxing.”

Due to ELI’s powerful SEO caused by the heavy and consistent traffic to the site, ELI forum posts and images about Ms. Ellis started to come up on the first page of Google searches under her name. She appeared to disapprove of this. The jokes about her and her operation became common and rude. Since she and Mr. Chan lived in the same state only two hours away, she filed a motion for a protective order under Georgia’s Anti-Stalking Statute in the county court where he lived. The court accepted the paperwork and set a date for a hearing on the motion.

The Hearing

Judge Frank J. Jordan, Jr.

Judge Frank J. Jordan, Jr.

At the hearing before Muscogee County Superior Court Judge Frank J. Jordan, Jr., Mr. Chan decided to represent himself. From the petition filed by Ellis, it appeared that Ellis had no lawyer and she alleged in the petition that Chan had posted death threats against her and her family – none of which were true. He thought he was going into an “open and shut” case.” But on the hearing date, Ellis was represented by Elizabeth W. McBride who was a partner in Page, Scrantom, Sprouse, Tucker, Ford, a prominent, well-established and well-connected Georgia law firm and whose husband, Gil McBride, was also a Muscogee County Superior Court Judge. At the hearing, the theory against Mr. Chan had changed: instead of merely complaining about the few posts on the ELI site about Ellis, McBride also argued that Chan had an obligation to remove the picture of Ellis’ house under as a section of that statute that forbids folks already under a protective order from disseminating information about the subject of the protective order. That Mr. Chan had no notice that this section of the statute might be in play and that Mr. Chan did not post the picture of Ellis’ house seemed to fall on deaf ears. These points were relentlessly pounded on by McBride on cross-examination when Mr. Chan testified on his own behalf. In addition, McBride introduced a lengthy affidavit by a Seattle lawyer named Timothy B. McCormack, who himself had been the subject of ELI’s scorn and ridicule for being the principal lawyer employed by Getty Images’ copyright enforcement scheme. An out-of-court affidavit is not admissible under these circumstances in Georgia as the other side has no opportunity to cross-examine the maker of the affidavit. Even though Mr. Chan objected to the affidavit’s admission, Judge Jordan accepted it. The affidavit was a lengthy rant by McCormack over his issues with ELI and how he blamed ELI for some alleged vandalism that occurred on his house/office in Seattle.

As far as the direct evidence against Mr. Chan, McBride relied on a total of eight (8) posts on ELI only four of which were made by Mr. Chan. The court sided with Ellis and McBride and ordered Chan to take down the 8 posts as well as every other of nearly 2,000 posts about Ellis and her copyright enforcement scheme. The court also ordered him not to discuss Ellis any further on ELI. Even though Ellis only sought a one-year protective order originally, McBride crafted a permanent lifetime protective order against Chan which the judge gladly signed. So the lower court banned Chan from ever speaking about Ellis in anyway on ELI for the rest of his life.

The Appeal

Not surprisingly, Mr. Chan decided to appeal. Also not surprisingly, the harsh and over-broad order caught the attention of the online community. Could a judge actually permanently ban someone from speaking about someone else? Could someone be charged with stalking a person they never met or contacted? Having served as a legal advisor for ELI for so many years, I quickly agreed to serve as Matt’s appellate lawyer for free. I reached out to an old friend, William J. McKenney of Marietta who practiced in Georgia and he agreed to serve as our local counsel.

Doing some research of his own, Matthew Chan later found a site devoted to other times that people felt victimized by a protective order. That in turn led to the discovery of two important legal papers by two legal scholars: (1) Eugene Volokh, a UCLA law professor and noted legal commentator whose Volokh Conspiracy blog is extremely popular and quoted extensively around the globe. Professor Volokh wrote “One-to-one Speech vs. One to Many Speech, Criminal Harassment Laws and Cyberstalking” ; and (2) Aaron H. Caplan, a Loyola School Law Professor who wrote “Free Speech and Civil Harassment Orders“. Those papers were directly relevant to the case. Matthew Chan contacted them in July 2014. Both professors agreed with our positions and agreed to provide assistance. I was beyond delighted when Professor Volokh offered to write an amicus curiae (“friend of the court”) brief in support of our position. He also agreed to participate in oral argument.

Mr. Chan also reached out to the internet community to important sites like The Electronic Frontier Foundation (EFF), ArsTecnhica, TechDirt, FightCopyrightTrolls,and others. EFF agreed to be the client for whom Professor Volokh would write the brief. The online community sensed the importance of the case and its potential impact on bloggers, publishers and other content-providers. See e.g. ( Interest and intensity grew when the intermediate Court of Appeals agreed that the case should be heard by the Georgia Supreme Court – the highest court in the state. The Court of Appeals had previously denied our request made before we filed the briefs to have the case transferred to the Supreme Court but after reading the briefs, the Court of Appeals agreed with our position. It would be a case of first impression that had Constitutional issues as well as requiring the interpretation of how the Internet interacts with an important State law meant to protect victims of stalkers. We were ecstatic when the Supreme Court agreed to take the case.

Tim McCormack then filed an amicus curiae brief on behalf of himself in support of Ms. Ellis’ position. He also later appeared at oral argument. Imagine our surprise on oral argument date when Chief Justice High Thompson referenced “The Dash” at the start of a ceremony for newly-admitted attorneys that began the court day! He told them about how he was thinking about what to say at the ceremony as he drove into Court and he thought about this poem he had read that talked about how the dash on your tombstone represented the life you lived. Everyone on our team was flabbergasted that the Chief Justice would reference “The Dash” on the day of our oral argument. We began trying to read the tea leaves – Was it just a coincidence? Was it on the judge’s mind because of the case so he recalled it? Was he signalling that he admired Linda Ellis? We thought long and hard about possibly making a motion for recusal but Darren Summerville (who was acting as local counsel on behalf of Eugene Volokh) who knows Judge Thompson well told us that he was sure that it was just an incredible coincidence and that Judge Thompson would not be effected by his knowledge and reference of the poem. In my opening remarks for my oral argument, WI mentioned that the poem had been read that morning; no justices outwardly reacted or made any remarks about it and no question was ever raised about it. Our adversary Tim McCormack appeared shocked by the news as he and his co-counsel had elected to skip the morning session and arrive just prior to commencement of argument on our case which was scheduled for 2 PM.

It was clear from the arguments that the justices were concerned about the over-breadth of the order. Per agreement, I argued the State law issues and Professor Volokh argued the Constitutional and Federal law issues. Darren Summerville and Professor Volokh had arranged for a moot court session the night before at Emory University with many Georgia legal luminaries. Professor Volokh’s brother is a professor at Emory Law and he arranged for us to argue in one of their moot court courtrooms. The value of that session cannot be understated. The five justices in our prep argument peppered us with questions many of which were then actually asked by the judges the next day. From viewing videos of previous arguments online, I had some idea of what the bench was like but it was during this session that I learned that the bench liked the use of visual aids during argument – a process totally foreign to me in New York. So after the prep, I called Matt Chan to join me in my hotel room to work late into the night where we discussed and restructured my entire presentation to include visual aids to be used on the court projector. I never would have made use of that device nor known of the court’s preference for its use had we not had the moot court session. I will never travel to argue in a foreign jurisdiction without scheduling such a practice session.

In my opinion, our adversaries presented arguments that attempted to tug at the heart strings by trying to paint Ms. Ellis as a victim of a horrific and potentially violent stalker. That caused them to try to stretch the facts to fit the law, never a good idea. For example, they repeatedly tried to argue that the image below was a “sexually-explicit image” of Ms. Ellis posted by Mr. Chan:

That’s Ms. Ellis in the middle. The image portrays five individuals labeled as “copyright trolls” by ELI standing as a Red Coats firing squad – just when they are getting ready to fire at the American revolutionaries, their pants fall down and they cover their private areas; hence the caption warning them to not get caught with their pants down. I think pressing the point that this was (a) a threat of violence and (b) sexually explicit as they did in their briefs and their arguments, hurt the credibility of Ellis’ lawyers. Questions from the bench indicated that the court did not see this image as either violent or sexually explicit; yet they continued to press the argument. They also tried to argue for severe restrictions on speech that was offensive to others despite years of US Supreme Court precedent that clearly delineated that only “true threats” could be squashed under the First Amendment. They tried to equate Matt Chan’s brash trash-talking with “cross-burning” and with writing a homophobic slur on a wall of high school lockers. Stretching the law to fit the facts is even worse for a lawyer’s credibility than stretching the facts to fit the law.

Our team was confident that our briefs were more thorough and that we were infinitely better prepared at oral argument but as any trial lawyer will tell you – you never know how cases are going to be decided. That’s especially the case when they are cases of first impression in a jurisdiction you’re not familiar with. But as lawyers, all we can do is give it our best shot by being as prepared as possible. I returned to New York to await the decision knowing that I and the rest of our crew had done all we could possibly do to present a winning case.

NEXT POST: The decision and its effect and reach

You can find the oral arguments online and they are interesting to watch to see the contrasting styles of the lawyers and hear the various arguments made (

You can see more about the case at ELI:

You can learn more about April Brown and her quest to warn the world about Linda Ellis’ practices at:

Follow Oscar Michelen on Twitter at @oscarmichelen

Mar 11 2015

“Blurred Lines” Verdict Will Blur the Lines of Copyright For Years To Come

Yesterday a federal jury awarded the Estate of Marvin Gaye $7.3 Million finding that the Robin Thicke and Pharrell Williams, songwriters of the hit song “Blurred Lines,” had infringed on the Marvin Gaye song “Got to Give it Up.” Even though the judge rejected the Gaye family’s most dangerous argument – – that a song’s copyright extends not just to composition of music and lyrics but also to production quality and “feel”— – the verdict is still highly troubling. The judge ruled that the jury had to make the determination based just on the sheet music of the two songs due to a technicality in the way copyright registration worked for songs recorded before 1978. And I just don;t see how the jury could make a determination that the new song infringed on the old. For all their similarities, “Blurred Lines” differs substantially and audibly from “Got to Give It Up” in both melody and lyrics. Musician Questlove, defended Thicke and Pharrell in an interview with Vulture, saying: “Look, technically it’s not plagiarized. It’s not the same chord progression. It’s a feeling. Because there’s a cowbell in it and a Fender Rhodes as the main instrumentation — that still doesn’t make it plagiarized. We all know it’s derivative. That’s how Pharrell works. Everything that Pharrell produces is derivative of another song — but it’s an homage.”

So what’s the difference between an homage and an infringement? $7.3 Million that’s what. Always a difficult distinction to define, this case will set a precedent that blurs the line between homage and infringement to the extent that it will produce a landslide of similar claims. Bob Dylan could sue Bruce Springsteen;Little Richard could sue the Beatles; The Beatles could sue everybody. Normally copyright infringement lawsuits rest on protectable original elements of the song that are directly or substantially copied in the allegedly infringing song. Here there is very little that is directly copied from the original song in “Blurred Lines.”

copyright logoThis decision will also make new artists more wary of writing and recording songs that derive their feel from an prior artist who influenced them. That is how a lot of new music is created in all genres. Sure, if the new artist is signed by a major label, the label can pay off the earlier artist to get permission. But unsigned or indie artists do not have access to that kind of capital and all artists already receive such a small portion of the revenue generated by music that having to share any of it with a prior artist who they feel they didn’t directly copy will be painful. And its the ARTIST not the COMPANY that bears the ultimate risk. Recording contracts with songwriter artists all contain an indemnification clause: A promise that the artist is bringing only wholly original music and lyrics to be recorded. In the clause the artist also agrees to pay any damages awarded if it is decided that the material was not original and infringed on someone’s copyright. So that means this $7.3 million may very well be coming directly out of Thicke and William’s pockets – not the label’s.

It is ironic that the Gaye family did not initiate the lawsuit. They merely sent Thicke and Williams a letter asserting their claims. Thicke and Williams’ lawyers then decided to file a preemptive lawsuit for a declaration that the song did not infringe. This is allowed by The Copyright Act and is done occasionally when you feel you have a strong hand. Of course, in hindsight, the Gaye family would have likely taken alot less money for accreditation on the song and a small royalty on future sales. What’s also ironic is that in a pre-trial deposition Thicke tried to distance himself from the songwriting credit saying it was writing exclusively by Pharrell and that he was listed as a co-writer just to appease him because he felt the song was going to be huge hit and he had insisted on a piece of the songwriting. He also testified that he accepted all the accolades for co-writing the song early on because he was high on alcohol and Vicodin most of time; he also added that he does not consider himself to be an honest person generally. But you can’t have it both ways. If you are listed as a co-writer on the copyright registration, that entitles you to royalties and makes you liable for infringement. Also, intent is not an element of infringement. Even if you didn’t mean to copy it you can still be liable if the song infringes on an earlier song. The most famous case of that principle is George Harrison’s “My Sweet Lord” which was found to be a “subconscious” infringement of the early pop hit “He’s So Fine” by The Chiffons. What I don’t understand is why Thicke’s lawyers allowed him to testify as he did when they knew it would not be a defense anyway. There was no benefit to it and made Thicke look like an idiot.

The “Blurred Lines” case is likely to have far-reaching implications especially given how tight copyright control has gotten. Prior to 1976, a copyright was good for 28 years and if you filed for a renewal, you got another 28 years. After 56 years it became public domain. That allowed for wider, freer dissemination of music, literature, and film. Copyright law always sought to balance protection with artistic freedom. The basic premise was that an artist or composer would have the benefit of the rights in the work for his or her lifetime, then the art would belong to the world.In 1976, however, as studio power and money grew to epic proportions, copyrights were extended to the author’s lifetime plus 50 years. Then in 1998, rights-holders got another extension, dubbed the “Sonny Bono Act” named after the artist-congressman who proposed the bill (though it should have been dubbed “The Walt Disney Act” because they were the biggest promoters of it). That extension gave copyright holders the rights to a work for up to 120 years. This decision, combined with the lengthy period of time and the consolidation of media companies will have a stifling effect on artistic expression.

Oh, by the way, the lawsuit brought so much attention to the Gaye song, that its sales shot through the roof.

Mar 08 2015

Truth No Consequences

People always say it would be great to be a weatherman – they say it’s the only job in America where you can always be wrong and still have a job. Well, being a District Attorney seems to also be a position where no matter how badly or maliciously you do your job, there are no real consequences. Two recent cases are just the latest examples of this frustrating reality. Both involve stories that if you saw them on TV you would think the writers had gone over the top.

The People of California v. Efrain Velasco-Palacios

Kern County prosecutor Robert Murray physically added two lines of transcript to a statement supposedly made by the defendant. The defendant was charged with molesting a child and Murray added that the defendant also confessed to having sexual intercourse with the child and said “I’m glad she’s not pregannt like her mother.” With these two sentences, Murray was able to threaten charges that carried a term of life in prison. The defense counsel, armed with this information, went and negotiated a plea deal with the prosecutor after confronting his client with the transcript. Fortunately, even though the deal was struck, the defense counsel insisted on hearing the tape before putting the plea on the record. It was only then that ADA Murray came clean and admitted he added those two false sentences.

Prosecutor Robert Murray

Prosecutor Robert Murray

Instead of a plea deal, defense counsel moved to dismiss the indictment charging prosecutorial misconduct. Murray opposed the motion actually saying that he added the liens as a “joke.” California Judge H.A. Staley who heard the motion was not laughing. He found that Murray’s falsification of evidence during discovery and plea negotiations was “egregious, outrageous, and . . . shocked the conscience.” He dismissed the indictment and in a scathing opinion, stated that Murray’s actions “diluted the protections accompanying the right to counsel and ran the risk of fraudulently inducing defendant to enter a plea and forfeit his right to a jury trial.” The court refused to “tolerate such outrageous conduct that results in the deprivation of basic fundamental constitutional rights that are designed to provide basic fairness.”

To make matters worse, California State Attorney General Kamala Harris would not let it be. She appealed the dismissal arguing that only actual physical brutality would warrant a finding of prosecutorial misconduct and the dismissal of an indictment. The appellate court disagreed, upholding the dismissal highlighting and agreeing with Judge Staley’s strong words.

Yet, despite these clear facts, Robert Murray remains employed as an Assistant DA in Kern County and will likely never face criminal charges. Of course, in addition to the harm Murray did to the justice system in general, his conduct caused the dismissal of an indictment against someone who may have committed the underlying crimes.

Louisiana v. Donald Dendinger

Donald Dendinger had the bad luck of being the uncle of a young man who wanted to sue the Bogalusa Louisiana Police Department for brutality following his being beaten during an arrest. His nephew asked him if he would serve the summons on Chad Cassard, the officer involved, and Dendinger agreed. So he waited outside the County Courthouse until Officer Cassard exited, in the company of two assistant state prosecutors and four other officers. Dendinger handed the officer the envelope containing the summons and walked away as did Cassard. But 20 minutes later, police showed up to Dendinger’s house and arrested him. He was jailed on charges of simple battery, obstruction of justice and intimidating a witness. Two of those charges are felonies, and a prior cocaine conviction on Dendinger’s record threatened to land him in jail for a long time as a repeat offender.

The sign should read "Constitution stops here"

The sign should read “Constitution stops here”

The charges lay idle for nearly a year until then-District Attorney Walter Reed officially filed charges against Dendinger. His case was backed by two prosecutors who asserted that Dendinger had assaulted Cassard. They are Julie Knight and Leigh Anne Wall. Several other witness statements also supported the case. Cassard himself claimed that Dendinger “slapped him in the chest” when he served the summons causing him to be pushed back several feet. Pamela Legendre, a staff attorney with the State’s Attorney’s Office who allegedly witnessed the hand-off, said she thought Dendinger had punched Cassard. Bogalusa police chief Joe Culpepper said that Dendinger had used “violence” and “force” in serving the summons. Dendinger was in some really hot water.

That is, he would be if his wife and nephew hadn’t recorded the whole service of process on their cell phones. It was Dendinger’s idea to record the service so the cop could not deny getting the papers. The video is grainy but it shows Dendinger calmly walking up to Cassard and peacefully giving him the envelope. It then shows both men walking away without incident. What would Dendinger do if it wasn’t recorded? – JAIL TIME that’s what. The State Attorney General took over the case after Dendinger’s attorney filed a motion to have Walter Reed recuse himself since his assistant district attorneys were going to be witnesses. Once the State AG examined the evidence, he dropped all charges.

While Ms Wall has since left the office, Julie Knight is still an assistant district attorney in Washington Parish. To date, no charges have been brought against any of the parties who filed false statements and made Mr. Dendinger endure over two years of hell and nearly ruined his life.

And you thought weatherman had it easy.

Follow Oscar Michelen on twitter @oscarmichelen

Feb 18 2015

NY Court: Low Level Sex Offenders Can Live Near Schools

The Court of Appeals, New York’s highest court, ruled yesterday that Nassau County and other localities don’t have the authority to restrict where convicted sex offenders can live. The Court voted 5-0 to strike down a 2006 Nassau County law that banned convicted sex offenders from living within 1,000 feet of a school; the Court held that only the state had the power to enact such a ban. Under current NY State law, the school ban can only be applied to Level 3 sex offenders – those at the highest risk of repeating their crimes or those with the worst and most severe prior criminal history. The Nassau ban had applied to sex offenders of any level.

lady justiceThere are currently more than 100 similar local ordinances around the state that set boundaries around parks, schools and other areas where children are likely to gather. All of those laws are now rendered invalid and unenforceable. In writing the opinion for the court, Justice Eugene Pigott emphasized that while such laws may have good intentions, the State’s police power is paramount in this scenario:

“A local government’s police power is not absolute. Although a local government is constitutionally empowered to enact local laws relating to the welfare of its citizens through its police power, it is prohibited from exercising that power through the adoption of local laws that are inconsistent with the New York State Constitution or any general law of the state.”

The law was passed in Nassau County in 2006. Former Nassau County Legislator David Mejias was the bill’s draftsman and sponsor. He stated that he was very disappointed in the court’s ruling and hoped that the State Legislature would move quickly to bring the State law in line with the Nassau County standard stating:

We worked very hard to draft a law that we were confident would pass muster. We researched local laws around the country that successfully fought off appellate challenges and modeled the language of this law after those statutes. Its disheartening to see the Court strike down a law designed to protect children from sexual predators. Albany needs to move quickly to address this issue and pass tighter restrictions on where sex offenders can reside.

While it is undoubtedly disturbing for folks who live near schools to think that a sex offender could move in next door to them and close to so many children, the Court of Appeals was bound y the law to act as it did. The unanimous Court decision shows the strong power given to the State to regulate a field of law if it so chooses. The Court held that by enacting various laws in the area of sex offender registration and residency, the State showed its clear intention to preempt local laws in this field. That means the ball is in the NY State Legislature’s court. Perhaps the Legislature will pass an amendment to the Sex Offender Registration Act and related laws some time soon; though various amendments have already been enacted over the years and no change was made in the level of offender prohibited from living near a school. Maybe this decision will highlight the need and desire for such legislation but many great proposals for legislation have died on the vine while waiting for Albany to act. This may be just one more.

Feb 07 2015

Oregon Upskirt Case Shows How Old Laws Can’t Catch New Crimes

They say you can’t teach an old dog new tricks, but 61 year old Patrick Buono of Portland Oregon learned that by crouching way down in the aisle of a store he could take cellphone pictures up girl’s skirts. He admittedly did that in a Beavertown Oregon Target store and captured an “upskirt” picture of a 13-year old girl. The picture captured an image of her underwear.

Security personnel arrested Buono and he was charged with two crimes: (1)attempted encouraging of child sex abuse; and (2)criminal invasion of privacy. But Friday Oregon judge Eric Butterfield acquitted Buono on both counts, stating that while the conduct was “lewd and appalling” it was not illegal as defined by the statutes. The child sex abuse charge is normally used for child pornography and required that the defendant “knowingly possesses or controls, or knowingly accesses with the intent to view, a visual recording of sexually explicit conduct involving a child. . ..”; “sexually explicit conduct” was not present in the photo.

The privacy law bans clandestine photography in bathrooms, locker rooms, dressing rooms and tanning booths, but the Target aisle was none of those and was plainly public. Furthermore, the law also requires that the person being photographed or recorded be in a “state of nudity,” which specifically means that the subject’s genitals, pubic area or breasts are “uncovered or less than opaquely covered” in any way for the statute to apply. Here, while the girl’s underwear was exhibited in the photo, there was no nudity and her private area was opaquely covered. The prosecutor, Deputy District Attorney Paul Maloney, conceded that the lack of nudity was a “live issue in this case,” but he argued the charge applied nevertheless. “Sure, she’s in a public place. But she had an expectation of privacy that a deviant isn’t going to stick a camera up her skirt and capture private images of her body,” he was quoted as saying in an article about the case in The Oregonian newspaper.

The judge however went off the rails in his decision, in my opinion. In dismissing the case he stated:

“These things are not only seen but video-recorded. It’s incumbent on us as citizens to cover up whatever we don’t want filmed in public places.”

Blind and occasionally fickle

Blind and occasionally fickle

He cited the famous photo of Marilyn Monroe unsuccessfully holding her skirt down over a subway grate as an example of how upskirt sightings can occur by happenstance; he also mentioned riding up an escalator, taking a spill or exiting a car as ways that a woman’s underwear can be exposed to the public. This part of his decision is completely misguided. In all those instances, the camera is merely capturing what is in the public view. That reasoning was why a Washington DC judge recently dismissed charges against a photographer who used a high power lens to capture images up women’s skirts as they sat on the steps of the Lincoln Memorial. The “upskirt area” in that case and in the examples given by Judge Butterfield were exposed to the public view. Buono, on the other hand, used his camera to shoot from the ground up in order to capture the image. There was no reason anyone – particularly a 13 year old girl – would expect that the upskirt area would be visible to the public in that scenario. Moreover, his comment that it was incumbent for the girl to cover up the area from view begs the question: How? So his comparison of the case facts to those other situations is just plain stupid and frankly unneccessary.

I say unnecessary because the case was easily dismissable without getting into this language since the facts did not come close to meeting the words of the statute. As I have repeatedly taught my law students over the years, criminal defense always begins with a close look at the elements of the crime(s) being charged. Each term or element of the crime provides a possible defense if the actions or omission of the accused do not meet those elements. Here, no one could argue that sexual conduct was involved so the sex abuse charge had no chance. The privacy charge was similarly DOA since the aisle of the store was not a “bathroom, locker room, dressing room or tanning booth.” One of those locations was a required element. Secondly, the law required “nudity.” While a picture of a girl’s panties is lewd and sexual in nature, it is not “nudity.” So the fault lies in the law’s language, not in the girl’s failure to block an upskirt view of her underwear from the ground.

In fact, the prosecutor in this case was at fault for even bringing the charges in the first place. Yes, Buono was committing a nasty, immoral act. But his conduct did not come close to violating any crime. What was the probable cause for his arrest? What chance did this prosecution ever have from the beginning? None. I think he can even bring a claim agaist the police officers who arrested him. The judge also commented “From a legal point of view, which unfortunately today is my job to enforce, he didn’t do anything wrong.” Yeah, judges hate it when they have to enforce the law as written.

The judge should have instead used his pulpit to chide the DA and not the victim. He should have made clear that there was no crime and no basis for this prosecution. He could have perhaps made two recommendations to the Legislature if they want to capture this conduct as a crime: (1) add the words “or any other location or manner where the victim would have a reasonable expectation of privacy” to the list of locations; and (2) add the words “underwear” or “private areas” to “state of nudity.” Other states have added such language to their law to try and criminalize “revenge porn” and other new methods of lewdness that were not previously thought of or criminalized.

I’m no fan of adding to the already lengthy list of criminal statutes, but its up to legislatures to look at their laws and decide if they want to make those changes. Bringing unprovable cases is not the way to do it.

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