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Apr 01 2015

Talking Isn’t Stalking: Reach and Implications of Georgia Stalking Case

This is Part 2 of 2 about the Georgia Supreme Court’s Decision in Chan v. Ellis. I wrote about how the case got to the Supreme Court of Georgia earlier this week: http://www.courtroomstrategy.com/2015/03/georgia-supreme-court-rules-that-internet-posts-about-someone-dont-constitute-stalking/

This part will discuss the decision and its implications on future stalking claims. In deciding unanimously that Georgia’s Anti-Stalking Statute was not implicated by my client’s conduct, the Court first looked at the words of the statute: OCGA 16-5-90(a)(1). Under OCGA 16-5-90(a)(1) A person commits the offense of stalking when:

“he or she follows, places under surveillance, or contacts 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.”

Justice Keith Blackwell

Justice Keith Blackwell

Justice Blackwell, writing for the Court quickly noted that there was no evidence that Matthew Chan ever followed Ellis or placed her under surveillance so that the only possible applicable language was “contact.” Justice Blackwell then stated that as used in OCGA § 16-5-90:

“[t]o ‘contact’ is readily understood by people of ordinary intelligence as meaning ‘to get in touch with; communicate with. 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. (emphasis in the original)

The Court went on to stress that writing about a person is not writing to a person even if one of the writings at issue was an “Open Letter” to Ellis that Mr. Chan knew Ellis would likely read. For the first set of posts other than the Open Letter, the Court noted that Mr. Chan did nothing to specifically send the posts to Ellis even though he could have reasonably anticipated that Ellis would read them. He stated:

“The publication of commentary directed only to the public generally does not amount to “contact.”

But what about the “Open Letter?” Wasn’t that a communication to Ellis as well as being about her? Here the court looked to another fragment of the applicable definition – that the contact must be “without the consent” of the recipient. Here, the Court noted, that Mr. Chan did not even post it to Ellis’ website or any of her social media accounts:

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 decision quoted from the two main cases cited in Point I of our brief: Collins v. Bazan and Marks v. State. In Collins, the trial court entered an injunction that, among other things, forbade the defendant to “discuss” a medical condition of his ex-girlfriend with others. Reversing that portion of the injunction, the Court of Appeals held that it could not be sustained as an injunction against stalking, inasmuch as “[p]ublishing or discussing a person’s medical condition with others obviously does not constitute . . . contacting that person.” In Marks, the defendant was prohibited as a condition of probation from “contacting” his ex-wife, and his probation was revoked after he “posted untrue statements about her on several websites.” The Court of Appeals reversed the revocation of his probation, holding that the defendant posting about his 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].” Of course, in Marks the complainant could sue if the comments were defamatory – but here Ellis never claimed that Mr. Chan ever defamed her or even lied about her.

bill-of-rights.jpgJustice Blackwell stated that because the few posts complained of could not possibly constitute “contact” and therefore there could not possibly be “stalking,” there was no need to go past this point and discuss our other claims. We had argued that there were significant procedural errors in the hearing that resulted in the Order including that Mr. Chan was charged under a section of the statute that was not part of the petition he was defending against and that the court allowed a lengthy hearsay-filled affidavit from a Seattle lawyer named Timothy B. McCormack that was totally inadmissible.

We also argued that Mr. Chan had an absolute right to say what he said as nothing he wrote or said on video constituted “true threats” and he was therefore entitled to First Amendment protection. Finally, we argued that holding Mr. Chan responsible for posts on his website that were made by others violated the Communications Decency Act of 1996. While the Court made a few comments in the decision that clearly telegraphed that they felt there was merit to our First Amendment claims, since they decided that there was no contact and no stalking, they did not need to reach those arguments. Courts are required to try to resolve cases without making Constitutional interpretations under a judicial doctrine called “Constitutional Avoidance.” It is also easy to discern from the oral arguments and the decision that the Court read all of the many briefs and the trial record and understood the nuances of the case and its implications.

So while the case is a clear vindication for my client, what implications does it have for the future? For one thing, the Supreme Court of Georgia clarified its own State’s stalking statute to the extent of declaring that Internet posts do not constitute contact unless they are directly transmitted to the intended recipient. It explains that the stalking statute should not be used to stifle speech about the subject but only prevent speech to the subject. True threats remain actionable, of course, if there is an intent to inflict fear of personal harm. So, too, do repeated unwanted communications sent to a person that are meant to harass or intimidate.

For the Internet-at-large, Chan v. Ellis could be a significant shield for website owners and content providers who like to speak out about people on a repeated basis. In states where this issue has not been decided, a recent decision coming from the highest court of a relatively conservative state like Georgia that says that Internet posts do not constitute contact and cannot alone form the basis of a stalking charge can serve as a strong precedent. It also serves as a reminder of the importance of having trial courts read statutes narrowly and not stretch laws meant to cover a specific type of conduct into covering another completely different legal activity.

Follow Oscar Michelen on Twitter: @oscarmichelen

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