blogging | TALKING BACK to restraining orders

Several posts on this blog in the past year have concerned the case of Matthew Chan, a Georgia entrepreneur who blogs and administers a forum for victims of “copyright extortion” (i.e., people who’ve been threatened with lawsuits for unsanctioned use of a copyright holder’s original material and may be intimidated into paying thousands to avoid being taken to court—this for posting a photo online, for example, or using a snippet of text without proper acknowledgment or without having paid a fee or otherwise obtained the author’s consent).

Matthew S. Chan

The blog has also featured a guest post by Mr. Chan.

This post reports that the Georgia Supreme Court returned a virtually unanimous ruling in his favor Friday, after many months of deliberation, that lifted a lifetime protection order prohibiting Mr. Chan from criticizing a woman he characterized as a “copyright troll.”

The basis of Mr. Chan’s appeal, prosecuted by New York attorney Oscar Michelen, was that the trial court that issued the order misconstrued and misapplied the law. Forcing a procrustean interpretation onto the facts, it determined Mr. Chan had harassed, intimidated, and “stalked” the plaintiff in the case, Linda Ellis. Accordingly, it imposed a “prior restraint” on Mr. Chan’s freedom of expression, barring him indefinitely from writing about her.

First Amendment authorities, Profs. Eugene Volokh and Aaron Caplan, submitted an amicus brief to the court in Mr. Chan’s favor, arguing that the First Amendment—with some exceptions—authorizes speech about a person, even if that speech isn’t polite or flattering.

Justice Keith Blackwell, writing for the Georgia Supreme Court, summarized the case in the court’s March 27 ruling:

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. […] 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.

Ellis eventually did learn of the posts, and she sued Chan for injunctive relief under the Georgia stalking law, OCGA § 16-5-90 et seq., alleging that the electronic publication of the posts was a violation of OCGA § 16-5-90 (a) (1), which forbids one to “contact” another for certain purposes without the consent of the other. Following an evidentiary hearing, the trial court agreed that the electronic publication of posts about Ellis amounted to stalking, and it entered a permanent injunction against Chan, directing him to, among other things, delete “all posts relating to Ms. Ellis” from his website. Chan appeals, contending that the evidence simply does not show that the publication of posts about Ellis on his website amounts to the sort of “contact” that is forbidden by OCGA § 16-5-90 (a) (1). With that contention, we agree, and we reverse the judgment of the trial court.

New York entertainment and intellectual property attorney Oscar Michelen, who represented Matthew Chan before the Georgia Supreme Court

To summarize the summary, Mr. Chan and members of his forum ventilated outrage toward what they perceived as legal terrorism (letters from Ms. Ellis’s attorney threatening civil prosecution for “copyright infringement” and reportedly offering to settle out of court for $7,500), and Ms. Ellis successfully represented the online remarks to the trial judge as tantamount to “stalking.” The statute, however, requires that an alleged “stalker” have actually contacted the “victim,” and no such contact was ever made.

For purposes of the statute, one “contacts another person” when he “communicates with another person” through any medium, including an electronic medium. See OCGA § 16-5-90 (a) (1).4 See also Johnson v. State, 264 Ga. 590, 591 (1) (449 SE2d 94) (1994) (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” (citation and punctuation omitted)). 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.

There was no contact to satisfy the statutory definition of stalking.

Similarly, allegations of harassment and intimidation were deemed insufficient in the Georgia Supreme Court’s ruling, because no contact had been made with the plaintiff, so no contact had been made against her wishes.

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. See OCGA § 16-5-90 (a)(1).

Other commenters on this blog, who hadn’t the wherewithal to appeal their cases to the high courts, report having had similar judgments entered against them, typically subsequent to an earlier restraining order. This blog’s author is among them. He was issued a restraining order based on false claims in 2006 and was sued for libel and harassment fully seven years later by its petitioner, who had since moved to another state, after he criticized her publicly, this despite his having had no contact with the woman in the intervening period. The court imposed a lifetime restraining order upon him barring him from exposing the woman (a professional scientist) in anything he publishes.

Mr. Chan’s case highlights that lower-tier judges, presiding over abbreviated procedures spanning mere minutes and according to their personal lights, arbitrarily exercise the broad latitude they’ve been granted by lawmakers. It’s the rare restraining order case like Mr. Chan’s, one that ascends through the courts, that exposes the degree to which bottom-rung judges do what they want without regard to the letter of the law.

Mr. Chan’s victory is shared by all of those who’ve been wronged by the court—and if I know my friend Matthew, his advocacy is going to be all the louder for it.

Technically, freedom of speech is your Constitutional right. Technically, you can say anything, and if it’s true (and not a state secret), it’s not actionable. “Not actionable” means you can’t be sued for saying it (or shot). Technically, you can even say blatantly defamatory things if you’re defaming someone back to protect your own interests.

That’s technically.

Practically, however, is a different story. In lawsuits alleging libel (written defamation), the law presumes that the plaintiff has been defamed. The burden falls on the defendant to prove that his or her “libelous” statements are true and thus privileged or protected speech.

Click here to learn “How a Blogger Can Get Legal Protection from Libel and Slander.”

Practically, also, if a defendant has been talking about a false restraining order that s/he was issued, the court may not even look at the defendant’s evidence but take it for granted that s/he’s just engaging in “further” harassment, which is certainly how the false accuser will represent his or her actions. That the defendant was in fact the victim of harassment and fraudulent allegations by the plaintiff won’t be perceived. This is particularly likely to be the case if the plaintiff is represented by an attorney, and the defendant isn’t.

What this means practically is that if you intend to talk about a restraining order you were falsely issued, you’ll want to do it with care.

I know of a woman who was very candid in a blog—even posting (she said) graphic genital photographs of her false accuser (sext messages, presumably)—and she successfully defended herself in court. Neither she nor her accuser was represented by an attorney. The judge ruled that the blog was her private space (the equivalent of an online diary). A different judge might have ruled otherwise, however, and the same judge might have ruled differently had an attorney argued for the plaintiff.

Since your name was dragged through the mud, and the stains are ones that can’t be washed off, both fairness and impulse will dictate that you not pull your punches (especially if you had everything you valued most stripped from you arbitrarily). To protect yourself from being subjected to another miscarriage of justice, though, it’s advisable that you refer to your false accuser in the third person (“he” or “she”) and identify him or her only generally. If you don’t out your accuser explicitly, the grounds for a libel suit are going to be pretty thin. It’s furthermore likely that a judge would actually review the substance of what you had to say rather than just ruling by reflex, and if your accuser demonstrably engaged in fraud, there’s a good probability s/he won’t want to invite further judicial attention to the matter.

Everything in law is a toss of the dice. If your accuser is batshit crazy, for example, there’s absolutely no reliably predicting what s/he may do. If that accuser is moreover well-heeled, s/he may be able to hire a team of heavy-hitting attorneys. And the fear inspired by uncertain consequences assuredly explains why so few complaints of restraining order abuse are publicized. The restraining order apparatus is finely tuned to intimidate its victims into silence, which is why it’s able to victimize citizens en masse and yet never excite mass protest.

The practical question becomes, if you don’t name your false accuser, what’s the point of telling your story? The question is a good one. Neutered of detail, it’s likely to accomplish little to assuage your sense of injustice or urge your false accuser to make amends. This is another reason why so little attention to restraining order injustices is successfully aroused.

An answer might be to tell your side or ventilate frustration. Catharsis, while hardly as valuable as justice, may restore to you a sense of equilibrium.

If this dubious prospect hardly seems worth the effort, there are other courses. Your story can be told (in synoptic form) on public petitions aimed at reforming the laws that enabled the abuses to which you were subjected. You could even tell your story on a petition of your own that you started, and you could do it anonymously if you wished.

Alternatively, particularly if the details of your ordeal were compelling, you could seek to tell your story in an online periodical, like the Huffington Post. Others have shared their courtroom sagas this way. Venue can give a story chops that in another medium might seem suspect (venue may also come with heavy-hitting attorneys of its own). Alternative to this alternative would be attracting the interest of a writer who works for such a venue. If your professional or collegiate credentials were such that they would elevate you from seeming like a crank and you had an interesting story, doing so might very well be in the realm of possibility.

If you choose to tell your story yourself, you should avoid ranting and name-calling, irrespective of the medium. Since you’ve already been labeled a crank by the system, anything you do that could cement that label probably will. I won’t tell you that I haven’t heard of someone being sued for criminal stalking based on such behavior, because I have. To be clear, though, this case involved the complainant’s naming his accuser in a wide variety of media and making an equally wide variety of allegations that were uncorroborated. I corresponded with this complainant’s accuser and was given the unmistakable impression that her allegations weren’t without merit and that her lawsuit was filed reluctantly. In other words, she was a good person. Unheard of in cases of actual restraining order abuse, this woman had tried to work things out privately with a man who was in the grip of alcoholism. Actual restraining order abusers have no such scruples and often have no scruples at all.

Since you’re reading this, chances are high that you are sane and sober, in spite of everything. And congratulations, because that may be saying a lot about your fortitude and resilience. Just take care in anything you say about your trials and tribulations not to sound otherwise.

TALKING BACK to restraining orders

THEY’RE NOT JUST ABUSED BUT ABUSIVE

Tag blogging

A Victory for Free Speech: Matthew Chan Prevails in His First Amendment Appeal of a Lifetime Restraining Order

What’s Legal, What’s Iffy, and What’s Not: How to Talk about a “Restraining Ordeal” without Risking More of the Same Mistreatment