“The First Amendment is FIRST for a reason.”
—Larry Smith, former attorney and indomitable muckraker
A recent post on this blog revisited the case of Matthew Chan, author of ExtortionLetterInfo.com (ELI), whose appeal of a lifetime restraining order is presently under consideration by the Georgia Supreme Court. A verdict is anticipated within the coming month or months.
Criticisms are handily represented as acts of terrorism to the courts, whose officers have been conditioned to pander to accusers. Anyone is a potential target of facile accusations, which are made in mere moments. Retirees and vegetarian soccer moms, for whom the cost of attorney representation is often prohibitive, report being implicated as violent menaces and tyrants.
This post reports a successful appeal waged by North Carolinian Cindie Harman, who was issued a no-contact order for allegedly “cyber-stalking” a mother and her minor daughter by publicly criticizing them in a blog. Mrs. Harman named the adult plaintiff’s daughter a “bully” of other children and opined that her behavior was influenced by her mother’s conduct.
According to the Associated Press, the mother, who owns or owned an Asheville-area water services company, was “sentenced to nearly three years in prison for faking thousands of tests designed to ensure that drinking water is safe” in 2012 (and also faced “conspiracy charges”), had “plead guilty in 2010 to mail fraud,” and “paid a fine and did community service after pleading guilty to misconduct by a public official after she was charged with embezzling more than $10,000 from Marshal when she served as town clerk there.” Mrs. Harman’s accuser, whose husband is a former magistrate, controverts the popular notion that restraining order applicants are innocent lambs seeking protection from marauding predators.
Mrs. Harman prevailed in her restraining order appeal, but the vindication of her character and her judgment of her accuser’s character didn’t come without a steep price—and that’s excluding attorney fees.
According to the blogger quoted in the epigraph, Larry Smith, a friend of Mrs. Harman’s and fellow comrade-in-arms:
During the long time this case was pending, I had been talking to Cindie on the telephone, trying to reassure her that she would win her case in the NC Court of Appeals. She was very nervous, inconsolable, dyspeptic, upset about it.
Being accused of stalking, let alone being accused of stalking a child, isn’t funny. It’s the kind of thing that breaks a person.
To be charged with stalking in North Carolina signifies you’ve caused someone “to suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment.” (Note that the latter element of the statutory definition of stalking, “continued harassment,” is glaringly incongruous to the elements that precede it. The contrast between fear of “death [or] bodily injury” and fear of “continued harassment” underscores the slapdash, catch-all nature of stalking and related statutes that makes them not only objectionable but outrageous, and urges their legislative revision or repeal.)
The trial court that heard the restraining order case against Mrs. Harman, and whose backroom judgment was overturned by the North Carolina Court of Appeals, had ruled, “Defendant [Harman] has harassed plaintiffs within the meaning of [N.C. Gen. Stat. §] 50C-1(6) and (7) by knowingly publishing electronic or computerized transmissions directed at plaintiffs that torments, terrorizes, or terrifies plaintiffs and serves no legitimate purpose” (italics added).
Observe that even the court’s grammar was bad. The ruling should have read “transmissions…that torment, terrorize, or terrify.” Gaffes like this are hardly surprising considering how hastily and carelessly restraining order judgments are formed.
Mrs. Harman was said to have tormented, terrorized, or terrified the child plaintiff by referring to her as a “bully” (a “reason kids hate to go to school”) and tormented, terrorized, or terrified her mother by calling her a “crow,” an “idiot,” and a “wack” on a blog.
Terrifying indeed.
At the beginning of this year, Law Professor Jonathan Turley eagerly reported that the U.S. Court of Appeals for the Ninth Circuit ruled “Bloggers Have Same First Amendment Rights As Journalists” (cf. Robinson Meyer’s “U.S. Court: Bloggers Are Journalists,” published in The Atlantic, and “Reporters’ Privilege,” prepared by the Electronic Frontier Foundation). Judges in North Carolina seem not to have heard the news.
The decision came in a defamation lawsuit where the panel ordered a new trial in the case of Crystal L. Cox, a blogger from Eureka, Montana. Cox was sued for defamation by attorney Kevin Padrick and his company, Obsidian Finance Group LLC, after she wrote about what she viewed as fraud, corruption, money-laundering and other illegal activities.
The details may sound familiar.
In legal commentary presented in Chan v. Ellis, the appeal mentioned in the introduction to this post, Law Profs. Eugene Volokh and Aaron Caplan asserted to the Georgia Supreme Court:
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.
This may also sound familiar.
Cindie Harman ultimately won the case against her, a case that should never have been entertained by the court in the first place, but a victory that should have reassured her that freedom of speech in our country is a revered and inviolate privilege has had the opposite effect.
Reportedly consequent to receiving threats against her person and having several of her pets poisoned, Mrs. Harman has removed her blogs. Even her Twitter feed is now “protected” and no longer accessible to a general audience. Mrs. Harman lives in the sticks and says if she weren’t armed, she’d be afraid to be alone.
She has been terrorized into silence.
Copyright © 2014 RestrainingOrderAbuse.com
*The author of this blog, too, has had a lifetime injunction imposed upon him by the court for communication “about a person” (communication that alleged misconduct, including criminal, by a public official). His 2013 trial, which was conducted in the Superior Court of Arizona and in which he represented himself, concluded less than four months before the Ninth Circuit Court of Appeals’ ruling in Cox v. Obsidian Finance Group. He hasn’t subsequently received any threats but has been monitored. His accuser, a married woman he encountered standing outside of his house one day in 2005 (and many nights thereafter), is believed to be among the first to read anything posted here.
TALKING BACK to restraining orders 
By UCLA Law Prof. Eugene Volokh August 24, 2015:
As many readers of this blog know, I’ve long been interested in how criminal harassment laws and restraining order laws have been morphing from restricting unwanted speech to people into restricting speech about people.
Such laws have traditionally covered unwanted phone calls, unwanted letters, unwanted attempts at face-to-face conversation and the like: again, speech to a particular person. Courts have generally upheld such restrictions on speech, and in many instances, plausibly so. […]
But in recent years, courts and prosecutors have increasingly used these laws to cover statements said to the public at large about particular people. Speakers have been prosecuted for posting repeated offensive messages or distributing offensive flyers about people (including about political and religious figures). Courts have issued orders barring speakers from saying anything about a person and ordering speakers to take down existing posts about that person. […]
A court can’t order someone to just stop saying anything about a person.
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Thank you to the Moderator for taking the time to look at this video in context, To help further put the video in context here is a 4.5 minute version with the key sentences Ms. Ellis choose to leave out. I believe you were referring to it in your post above.
I have found as Ms. Ellis is going around the seeding these videos that most are not falling for her tactics and she is just further damaging what little reputation she has left.
She also posted a video, which in true Ellis form, was only left up for two days before taking it down most likely due to a YouTuber calling her out on it. She found an old video of Matthew Chan testing his webcam. You could see him sitting at his desk from the shoulders up and it was apparent he was not wearing a shirt. The clip she chose to show was only 15 seconds long showing him looking at his monitor and moving his head from side-to-side obviously to see if the video was streaming. Linda Ellis put this is the description of her version of the video:
Matthew Chan
“This is the man against whom I received a Permanent Protective Order. Not sure what’s going on in the video… It was posted in the wee hours of the morning. Ick.”
At the right-hand side of the screen you can see were Ellis tried to crop off the title and description but you can clearly see twice it says “test” and “test2″. Of course, Ellis could see the whole description and knew exactly what it was, yet she chose to edit the video to look as if something sexual was going on again to smear Chan’s reputation.
Again, thank you for looking at it in context and for your spot on reply.
–Greg
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Here is ONE of Matthew Chan’s rants against Linda Ellis. You’ll see it is more than criticism Ms. Ellis received. In anger, he states: “DON’T make me…” “I don’t have to come to your house at all, I can do a lot from right here.” “I don’t think she will understand anything but brute force…”
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Presumably I’m responding to Ms. Ellis herself?
Literature (really interpretive analysis) was one of my collegiate studies, Linda. I liked to write verses, too, ones like the rhyme of yours that seems to be the germ of this conflict (I’d meant to make a living at it, in fact, and it was a daily practice of mine for many years). I read your poem and admire the thought. I identify with how that part of your mind works.
You and I both know that poetry means more than words. So do most speech acts. Their context is also important. What does this mean: “He really has to go”? Does it mean the he in question needs to leave? Does it mean he has to be fired, evicted, or “iced”? Does it mean he’s obligated or under compulsion to go somewhere? Does it mean his bladder is about to explode? We can’t tell.
Is it true that Mr. Chan, a target of legal threats himself, was obviously critical of your threatening to sue people in federal court for reprinting your couplet in funeral programs? Yes, I think that’s quite clear (and isn’t it fair to say that having an attorney threaten to sue someone for $150,000 is an act of terrorism?).
Can Mr. Chan’s statements on the video you’ve provided—statements made to a Mr. Krausankas and not to you—reasonably be construed as constituting a violent threat against your person? I don’t think so. Mr. Chan apologizes for his language to a woman off-camera, and the man he’s talking to says, “It’s good to get it out of your system.” Plainly no one thought he intended you bodily harm.
Including, I believe, you.
Protection orders were created 35 years ago to protect serially battered women. That means women who were being hit in the face, having their arms twisted, being subjected to routine belittlement and cruelty—possibly for many years—not because of anything they’d done but because they could be.
The defendants named on protection orders are accordingly enrolled in federal “criminal” registries.
Protection orders weren’t meant to be exploited because they can be by people who resent being dosed with their own medicine.
That probably sounded very pontifical, but don’t let it discourage you from replying. You’re very welcome to share your views here.
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Moderator,
It appears the drama continues as “Good Prevails” hops from website-to-website, and blog-to-blog “seeding” her 60-second out-of-context clip of a rant I made from the original 33-minute 9th episode of ELI Factor recorded in February 2013. As you astutely pointed out, even without the larger context, her clip shows my co-host laughing and commenting that it was good that I “got it out of my system”. My immediate reaction after the rant is that I smile at Robert’s comment. Clearly, I had a co-host for the entire video and that was who I was speaking to.
The 4-minute video I have included below actually shows the Introduction where I warn the viewer the episode will include profanity and some rants. The conclusion shows my apology for my “ugly” video and my wish that it be the only episode of this type. However, “Good Prevails” wants to convince others that entire video was directed to her.
However, the larger story of why this drama is occurring now has to do with the Dash Poet exacting her revenge and payback on me for my outspoken support of April Brown and her upcoming book of “Poetic Justice” while we wait for the GA Supreme Court decision. For those who really want to know more about the current drama unfolding:
http://defiantly.net/dash-poet-revenge-for-my-support-of-april-brown-and-poetic-justice/
http://defiantly.net/category/legal/april-browns-poetic-justice/
Unlike “Good Prevails”, I don’t need to hide behind the cloak of an anonymous name.
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I think Chan is funny. I watched the first of the two movie clips, and I took notice that if I had put one of those with that kind of commentary on the internet and said the same things with respect to Mad Martha Grist, I’m afraid I would have been arrested almost forthwith.
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Certainly, my co-host Robert Krausankas found me amusing which is why he snickers and chuckles at me in the video. However, I do understand the notion of what you are saying that you could have been arrested if you did a similar thing. CONTEXT MATTERS and my adversary also presented the clip (to my surprise) to the Court out of context. It was never recorded as part of the “official record” but it did startle the judge.
The lesson in all this is to INSIST on playing the FULL CONTEXT. Judge or not, I would have insisted upon it if I had to do it over again.
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And mind those “harassing facial gestures,” too, if you know what’s good for you.
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Buncyblawg is down, either from a hacker attack or a high-frequency download attack on the MPEG’s and MP3’s. Sorta like a denial of service attack. So Ipage shut it down but said it would be back up in 24 to 48. I’ll be back in touch. Always good to communicate with you, Todd.
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Good talking to you, too, Larry. Is the “Bond” from “James Bond”?
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“Bond” is the middle name of an attorney here in Asheville. We used to be friends. I take pokes at him occasionally because he’s gone over to the dark side.
My dad made my nephew Jeff the alternative executor of his will. After my dad died, Jeff decided that the designation gave him more power and authority than it really did. So he came over here all tumescent from Tennessee and tried to take property which did not belong to him, using his “alternative executor” title. It didn’t work but the clerk (who is now gladly gone after he was exposed as a gambler and scoundrel) cited me to a hearing without going through the proper channels of service of process. So I had Joel Bond write a letter to the clerk and tell him I would not be showing at this hearing because the notice had not been served, and that any order that issued as a result of these shenanigans would be deemed illegal and subject the clerk to a lawsuit on his bond, an amercement proceeding. So Joel sent a one-page letter and billed me $400 for it, which really pissed me off. And if I’d had it to do all over again I wouldn’t have paid the $400. I would have just written the letter myself.
At any rate stupid little Jeff went back to Tennessee empty-handed and with his tail between his legs after trying to steal property from me that had belonged to me since I was a child, such as my grandfather’s gold pocket watch, tools from the Civil War, and some old guns and antiques. The little bastard had already gotten his greasy hands on my collection of arrowheads, most of which I had collected when I stayed in Seattle and went on hikes in British Columbia and Sasketchewan.
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