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 ExtortionLetterInfo.com (“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.
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.
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.
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 RestrainingOrderAbuse.com 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. (https://www.eff.org/deeplinks/2013/03/georgia-court-order-threatens-message-boards-everywhere). 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 (https://www.youtube.com/watch?v=akumS1J6PbQ).
You can see more about the case at ELI: extortionletterinfo.com
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