Tag cyber-stalking

Gimme a Break: A Response to Marlisse Silver Sweeney’s “What the Law Can (and Can’t) Do about Online Harassment”

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“It was late summer when we met, on a patio jutting out onto the Pacific. The night was still warm as I sipped my Gewürztraminer and asked him about his exciting career. His articulate responses drew me in, and I breathed back nerves and adrenaline with the ocean air as we continued this perfect first date.”

—Marlisse Silver Sweeney, The Atlantic (2014)

I don’t know about you, but she lost me at Gewürztraminer.

Ms. Sweeney goes on to report that her dream date afterwards propositioned her with an “almost full frontal—via Snapchat,” despite which she agreed to meet up with him again…because who could resist?

Two minutes in, or perhaps when he asked me if I wanted to leave the restaurant and go take a bath together, I realized we were looking for different things.

One of those sudden epiphanies, I guess.

A few days later, he sent me a Snapchat video. It was a close-up shot of him masturbating for ten seconds.

It’s a toss-up as to who in the story is the bigger exhibitionist, the man it describes…or the woman narrating it.

Color me cloistered, but this kind of thing never happens to me—and I don’t think I’m alone. Ms. Sweeney’s piece would apparently have us believe encounters like this occur all the time. The subhead to her story asserts: “Over a third of women report being stalked or threatened on the Internet.”

That’s one in three.

A couple of preliminary observations:

  1. I don’t know anyone out of their teens who would know how to receive a “Snapchat” video (apparently the would-be paramours had exchanged various media contacts after their “romantic” evening).
  2. If over a third of women report being “stalked or threatened on the Internet,” we should consider what that says about female sensitivity, and they should consider joining a book club.

Ms. Sweeney’s article concerns what’s called “cyber-stalking,” and writers who use this word concern me.

At its most basic legal definition, “cyber-stalking is a repeated course of conduct that’s aimed at a person designed to cause emotional distress and fear of physical harm,” said Danielle Citron, a professor at the University of Maryland’s Francis King Carey School of Law. Citron is an expert in the area of cyber-stalking, and recently published the book called Hate Crimes in Cyberspace. Citron told me that cyber-stalking can include threats of violence (often sexual), spreading lies asserted as facts (like a person has herpes, a criminal record, or is a sexual predator), posting sensitive information online (whether that’s nude or compromising photos or social security numbers), and technological attacks (falsely shutting down a person’s social-media account). “Often, it’s a perfect storm of all these things,” she said.

This definition isn’t bad, and what it describes is, but this definition doesn’t say a lot more than it does. What it doesn’t say, for example, is that online statements ABOUT people, even critical or “invasive” ones, aren’t necessarily untrue but can still be represented as “cyber-stalking” thanks to the influence of stories like Ms. Sweeney’s and books like Dr. Citron’s. Opinions and truthful statements, even if “unwanted speech,” are nevertheless protected speech.

The irony is that alarmist reports like Ms. Sweeney’s have both emboldened and empowered flagrant abuses of legal procedures meant to curb harm. Harm, for those who’ve forgotten, inflicts pain; it doesn’t merely wound pride or arouse distaste.

“[S]preading lies asserted as facts” is exactly what false accusation is. It’s often the reason legal procedures are exploited, and there are no consequences for that. Typically there are no forms or redress, either. People lie on restraining order petitions, in domestic violence proceedings, and to Child Protective Services. The motives for lying, what’s more, are not hard to imagine and don’t require painstaking elucidation, least of all to intelligent people possessed of the kind of imagination that could produce the sentence quoted at the top of this post (apropos of which a couple of the motives for lying are attention-seeking and self-aggrandizement.)

The absence of accountability and modes of redress within the system means people who are misrepresented to it (and who may accordingly be driven to the brink of desperation) are left with no recourse but to tell their stories. Even this may be denied them if a false accuser alleges speech ABOUT him or her is “cyber-stalking,” because a bottom-tier judge is likely to agree, again thanks to stories like the one criticized here. (Consider the case assayed in the previous post.)

While the Ms. Sweeneys of the world are sipping Gewürztraminers by the seaside, there are people living (possibly out of their cars) in constant apprehension or under the unremitting weight of false onuses. Ms. Sweeney cites a case of a woman’s committing suicide after being “cyber-stalked.” The casualties of false accusation are far more numerous, and false accusations, unlike computers, can’t be turned off or tuned out (they’re consuming).

Feminist abdication of responsibility isn’t just careless; it’s corrosive. If you don’t want to get “penis pictures” in your inbox, don’t date men who send them. If you don’t want people badmouthing you on the Internet, follow the granola bumper sticker maxim and “Be Nice.” If you’re among the “third” of women who believe they’re being “stalked,” unplug (and consider doing something productive or enriching with your time instead of living a vicarious life on Twitbook). If you don’t want naked pictures of yourself on the Internet, don’t pose for them—or upload them to the Internet if you do.

People who assume public presences also assume the attendant risks. What’s shocking is that this even needs to be said.

Critical speech ABOUT a person should not automatically be assumed to be unjust. Saying unkind things about vicious people is the definition of just. It’s also constitutionally protected. Having the right to say your piece is the point of the First Amendment, which defends the concept of accountability against the concept of kumbaya.

The Internet has broadened the frontier of what’s covered by the First Amendment. No longer are critics limited to voicing disapproval with handbills and signboards staked in their front yards. Their use of online media to accomplish the same end is no less protected, however.

The person liberal writers reflexively want to label “bully,” “harasser,” or “stalker” may be the actual victim of bullying, harassment, or stalking.

A reminder to those writers: Don’t blame the victim.

Copyright © 2016 RestrainingOrderAbuse.com

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

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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.

Copyright © 2015 RestrainingOrderAbuse.com

Restraining Orders and the First Amendment: A Female Blogger’s Successful Appeal of a Restraining Order That Labeled Her a “Cyber-Stalker”

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“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.