What Defamation Is and Isn’t: On Writing about Abuses of Process

December 27, 2017July 11, 2023Moderator Leave a comment

“Defamation is the general term for a legal claim involving injury to one’s reputation caused by a false statement of fact and includes both libel (defamation in written or fixed form) and slander (spoken defamation). The crux of a defamation claim is falsity. Truthful statements that harm another’s reputation will not create liability for defamation (although they may open you up to other forms of liability if the information you publish is of a personal or highly private nature).”

—Digital Media Law Project

No honest lawyer would deny that a whole lot of lying goes on in court—though there are more than a few jaded veterans of legal process who would deny there’s such a thing as an honest lawyer.

Either way: a whole lot of lying.

A purpose of the First Amendment is to protect the citizen’s right to register disapproval of anyone or anything, for example, rampant lying in court. If a plaintiff lies in court and prevails because of it, a defendant may have no means to reverse the court’s opinion after the fact. The plaintiff will, for legal purposes, have gotten away with it.

That doesn’t, of course, mean s/he didn’t lie.

It also doesn’t mean the defendant is prohibited from bringing the truth to light in the court of public opinion. What transpires in a courtroom is public property, and the right of a witness to talk about that (and his or her life) is sacrosanct. There’s an obvious public interest, besides, in knowing lying occurs in court, which makes speech about lying in court political, and political speech is what the First Amendment is preeminently there to safeguard.

Journalism is the true court of last resort, and bloggers enjoy the same privileges as the institutional press. A trial judge may not recognize that, but the law does.

A purpose of a plaintiff’s lying to the court to procure an injunction (a “restraining order”) is always to shut the defendant up (possibly to conceal unethical or unlawful acts s/he has committed). The same plaintiff who thought it was perfectly fine to lie up and down about the defendant under oath will be livid if s/he’s then exposed for it in a public medium that could be read by friends, family, and coworkers. Bottling the truth to maintain appearances was the point of misleading the court in the first place.

The plaintiff’s immediate turn-to recourse will be to claim the defendant violated the injunction by writing about him or her. This is invalidated by the First Amendment, but a trial judge may not know that (talking or writing to someone may be properly prohibited by the court; not so talking or writing about someone, which is protected speech). Additional to alleging harassment, a plaintiff will likely claim s/he has been “defamed.”

Defamation is a word that’s applied casually to any negative speech about a person. As the epigraph shows, the significance of the word in the law is very narrow, however: to qualify as defamatory, speech must be false. Speech that’s merely critical, offensive, upsetting, or coercive (i.e., meant to urge someone to change his or her ways) is protected by the First Amendment.

To ground this discussion, let’s say a man cheats on his wife, and let’s say the unknowing mistress finds out and threatens to tell her—and his friends, his boss, etc.—unless he apologizes and comes clean. The man gets a restraining order to silence the woman, maybe alleging harassment or stalking…or threats against his pet bunny. (He can make up anything he wants—and if there are a few angry emails or texts, easy-peasy.)

This disarms the woman (who is the actual wronged party), robs her of credibility—“She’s just some crazy person who’s obsessed with me; I had to get a restraining order”—and besides humiliates and terrifies her: She is instantly the creep.

Now what if instead of contacting the man’s wife (boss, friends, etc.), the deceived woman subsequently writes about the ordeal in a blog? Contrary to what most may think, including lawyers and judges, this is protected one-to-many speech—like orating on a campus quad or in the town square, or wearing a sandwich board and marching up and down the sidewalk. Willing listeners can attend; everyone else can turn away.

Negative speech about a person usually will qualify, by the dictionary definition of the word, as defamatory. Certainly if I call someone a “scumbag,” it’s not likely to enhance his or her image and popularity. Is calling someone a name actionable? No.

So speech can defame and still be defensible. Liability for defamation requires that unwanted speech be false.

If I think someone’s a scumbag, that’s not false speech; it’s my opinion. So it isn’t defamatory according to the law…even if a judge might believe otherwise.

Let’s help him or her out: Is pronouncing that someone is a criminal defamatory? Certainly. But judges do it all the time. Defaming people is their business. Generally speaking, judges’ defamatory speech is the most harmful kind.

The distinction is, if someone is sentenced for the commission of a criminal act, s/he is ipso facto a “convicted criminal” (and maybe even a “felon”). Saying so is defamatory, but it isn’t “defamation” by the standard recognized by the law. It isn’t false.

Similarly, if someone committed a crime (like perjury) and wasn’t caught, that doesn’t mean s/he didn’t lie under oath. (Parenthetically, there is no one who has never told a lie so just calling someone a liar can never be defamatory by the legal standard.)

In a courtroom, a person’s allowed to make any defamatory allegation against someone else, whether true or not. Judges (and everybody else) get hung up on the question of what you can say outside of one. It’s as if they imagine what happens in court isn’t public or “doesn’t count.”

An irony lost on judges is that lies uttered with impunity in court procedures can carry grave and permanent consequences. A judge will just stonily sit there and listen. (The author, for example, was accused in 2013 of “propositioning” a woman he’s been in and out of court with for almost 12 years. It never happened, but the judge didn’t bat an eyelash.) “Objectionable” opinions and truths spoken outside of court may well arouse a judge’s ire, though. This is a prejudice, and it’s more than a little backwards.

Critical speech cannot help but defame. That doesn’t mean it’s unjust, and it doesn’t mean it’s punishable.

We don’t say the truth hurts for nothing.

*An Arizona Superior Court judge in 2013 ruled speech of mine to be “defamatory on its face.” Defamation is a jury question (as any superior court judge should know…and I wasn’t even afforded a bench trial). The law doesn’t recognize the instant conclusion “defamatory on its face” (i.e., at first glance). Many of the conclusions drawn by the judge who declared my speech “defamatory on its face” were flagrantly unlawful. His administration of the 2013 case, Bredfeldt v. Greene, violated both the state constitution and the Constitution. Judges can do that, you ask? They can and they do—all the time.

If You’re Determined to Write about an Unjust Restraining Order (or Other Procedural Violation), There’s No Point in NOT Naming Names

September 16, 2016June 23, 2023Moderator 2 Comments

The title of this post requires qualification. There is a reason not to name names in critical speech, especially speech that’s published: It’s safer, because you’re less likely to provoke the subject’s wrath. The catch is that if you write so innocuously (i.e., so generally and anonymously) that the subject doesn’t care, then your speech will have exerted no coercive effect. Coercive speech (speech intended to make someone reconsider his or her conduct) is protected by the First Amendment…which does not mean a trial judge will know it is. The only “safe” speech is no speech. Similarly, though, speech that fails to have any resonance may as well have been unexpressed.

Critical speech ABOUT a person, including speech intended to exert a coercive influence, is protected by the First Amendment. Putting someone on a dunking stool by holding up his or her conduct to public scrutiny in a one-to-many medium (like a blog or other online forum) is NOT “stalking” or “harassment” (because it doesn’t “contact” any unwilling listeners)—nor is it “defamation” if it only expresses facts and opinions, irrespective of whether those facts and opinions are emotionally upsetting or objectionable to the person criticized.

Matthew Chan, the author of ExtortionLetterInfo.com (ELI) and Defiantly.net, is an object lesson in the risks and rewards of coercive speech. Mr. Chan’s odyssey into what First Amendment authority Eugene Volokh has called the “wild world of ‘civil protective order[s]’” began when Mr. Chan publicly criticized the practices of poet Linda Ellis, who threatened to sue anyone who published a creative work of hers without permission unless the “copyright infringer” ponied up a good chunk of money.

Mr. Chan’s untamed criticisms (and those of his forum members) were labeled harassment (and “stalking”), and a trial judge issued him a restraining order that prohibited him from speaking about Ms. Ellis on his website…ever again.

He appealed the order to the Georgia Supreme Court on constitutional grounds and prevailed: The injunction was reversed. That’s because publicly criticizing someone to a willing one-to-many audience (e.g., in a blog or other online forum) is protected speech—even if its intent is coercive, that is, even if it’s intended to “shame” someone for his or her behaviors and actions.

Excerpt from a letter to Matthew Chan from Greg Troy, a copyright “extortion letter” victim

Consult any of Mr. Chan’s posts on Defiantly, which is largely concerned with court injunctions and free speech, and you’re going to find names in it. Mr. Chan, a businessman, would probably tell you that anything less “aggressive” would be a waste of his time—besides timid and shallow reporting.

Like Mr. Chan, the author of this site was censored by the court in 2013.

The attorney who opposed the dissolution of the order alleged, among many other things, that I was a fraud, because I represent this blog, he said, as talking about the abuse of restraining orders, while my true motive is to out my accusers’ misconduct.

There’s no contradiction there (attorneys are often poor logicians—and often on purpose).

If I hadn’t been misrepresented to the police and the courts, I would hardly have been inspired to pour thousands of hours of my time into what would otherwise have been a randomly conceived boondoggle. People who do this are responding to an injury, which should be obvious to anyone. The attorney’s basic claim to the court was that any speech that did more that innocuously “debate the issues” should be prohibited and punished.

The claim was emotionally based and had no legal footing at all. We don’t enjoy freedom of speech in this country just so we can flatter people or criticize them obliquely. Quoting from a brief prepared by one of my attorneys, Kent F. Davis, a talented civil rights specialist (who cites law applicable in any state in the nation):

“Most of what we say to one another lacks ‘religious, political, scientific, educational, journalistic, historical, or artistic value’ (let alone serious value), but it is still sheltered from government regulation,” United States v. Stevens, 559 U.S. 460, 479 (2010), and the “guarantee of free speech does not extend only to categories…that survive an ad hoc balancing of relative social costs and benefits,” id. at 470. There are only a few categories of speech that are not protected in all circumstances: obscenity, defamation, fraud, incitement, speech integral to criminality, id. at 468, and true threats, Virginia v. Black, 538 U.S. 343, 359 (2003). Speech that does not fall into one of these categories is protected, including: coercive speech, NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982); emotionally upsetting speech, Boos v. Barry, 485 U.S. 312, 322 (1988); and offensive speech, FCC v. Pacifica Foundation, 438 U.S. 726, 745-46 (1978); Street v. New York, 394 U.S. 576, 592 (1969).

Speech about my accusers, what’s more, represented but a tiny fraction of this site’s content. Generously estimated, five percent. So saying this blog was “dedicated” to them, as one of them claimed to the police in 2015, was ridiculous (though if the blog did exclusively concern my personal experiences, it would still be fully protected). Also, you can’t “terrorize” with a blog, as my accusers’ lawyer claimed I had. A blog can only be read by consent: A person has to seek it out. The same lawyer alleged that I “demonized” and “defamed” his clients.

Such claims exemplify what anyone who engages in criticism of another, especially if it’s valid, can expect to face. Trial judges are easily swayed by emotional appeals like those of the attorney I’ve characterized, and many rulings of the court are issued in violation of the constitutional right to freedom of speech.

Attorneys like the guy I opposed charge in the neighborhood of $300/hr. (sometimes more) to tell judges that people like me should be content to speak about “the larger picture” (to no effect) and receive no value on their investment of time.

If you believe someone has behaved unethically, you’re entitled to say so, and there is scant point in speaking about anything BUT your experiences and the impact they’ve had on your life.

Education is great; so, too, trying to rouse public outrage against illogic and unfairness. The truth is, though, that writing about actual instances of procedural abuse is at least as edifying and eye-opening. We’re animals that respond to stories. It’s in our DNA.

A passion for justice is, also, and nothing outrages our sense of justice more than stories of violation. They’re relatable. We can feel the experience and identify.

It is important for people to understand the politics and perversions that have engendered a corrupt system that eagerly facilitates its own abuse. What makes that corruption and abuse palpable, though, is the effect on the lives that are violated by it.

Victims should name names.

NoEthics.Net Holds Judges and Lawyers Accountable to the Laws They Ply

September 5, 2016July 4, 2023Moderator 6 Comments

David Palmer’s website NoEthics.net provides a service that may not be its author’s first priority but is certainly a valuable one: It puts the shoe on the other foot. Mr. Palmer outs officers of the court who’ve been publicly censured for misconduct—and more than a few of them have felt the pinch.

Here’s how one website (now defunct) characterized his commentary:

David Palmer is taking data off the Bar Association of any infraction, which is public information, and then adding misleading insults to injury and pouring salt on people’s wounds to make it sound 10 times worse than what the incident really was.

Any veteran of court process who’s been characterized by a member of a state bar association would probably describe the experience exactly the same way—and the consequence may have left him or her destitute, with allegations on his or her record that reside in police and/or court databases indefinitely, whether true or not.

This writer’s response to Mr. Palmer’s critic is too bad, so sad. The real objection of the anonymous critic, furthermore, is that Mr. Palmer is making public information more publicly accessible.

Good for Mr. Palmer.

Anyone who has had his or her character impugned in a courtroom, especially falsely—and there will always be an element of “falsely” in any set of charges—carries that weight every day. Lawyers may disgorge any bilious slime they can concoct about the opposing litigant. Judges drop the hammer and go shoot a round of golf. Impacts to a defendant (or a plaintiff) can be much graver than some unfavorable publicity. People’s lives can be extinguished by courthouse games.

If Mr. Palmer succeeds in coercing some empathy from political creatures with (possibly high) six-figure salaries, cool. Coercive speech is fully protected by the First Amendment, as are factual reportage and name-calling. The likes of “ethical leprechaun” and “screwball” are, besides, hardly scathing criticisms.

We’re talking here about actual things that actual lawyers and judges were actually paddled for, not accusations and innuendo, which lawyers spew and judges act on in the practice of their professions as a matter of course. It’s a lot easier to implicate someone as a batterer or a stalker, including falsely, than it is to have a judge or a lawyer censured.

A citizen falsely implicated in a quickie restraining order procedure, for example, can end up sleeping in his or her car after being deprived of everything that made his or her life meaningful, and his or her name will be fed into a number of police databases permanently. Attorneys and judges, in contrast, are rarely meted stern punishments even for misdeeds they’ve actually committed.

Yet marvel at the histrionics when they’re merely criticized. Attorney Patrick Rocchio has a dedicated page on his website denouncing Mr. Palmer’s comments about him as “defamatory”…because Mr. Palmer riffed on his name and referred to him as “Roach.” Mr. Rocchio was also termed an “ambulance chaser.”

Anyone can publish anything he or she desires today on the internet regardless of whether it is scandalous, libelous, dishonest, or untruthful and David Palmer is proof of that fact. Unfortunately, Google and other high powered search engines disclaim any responsibility for what their mysterious trade secret algorithms produce in response to a natural word search. And, practically speaking, there is no way to silence weird people like Mr. Palmer and his malicious words about those he judges to be unworthy of his approval. I have no explanation for why his untruthful and unflattering words about me are produced as a page one listing in response to a Google search which includes my name.

Coming off a trial in which the plaintiffs’ attorney, Chris Scileppi (who has a dedicated page on NoEthics.net), made the identical argument about my speech, I’m freshly struck by how remarkably sensitive plaintiffs and attorneys, who may blacken others’ reputations just because, are to any negative speech about them…at all. Are we to imagine lawyers and judges scruple about the consequences to defendants’ “names” when they prosecute their clients’ claims or render their verdicts?

Lawyers never exaggerate and make things “sound 10 times worse” then they were? They never allege anything “scandalous” or “untruthful”? Judges never force-fit conclusions? They’re above petty motives? Yeah.

There are no innocents among practitioners of law.

*I’ve never heard an attorney or a judge apologize for his or her misconduct, only deny that it’s blameworthy. A judge this year insisted that I pay a sanction ordered during a 2013 case that should have been dismissed, in which I had been denied a trial (in violation of multiple provisions of the state and federal constitutions). The administration of the 2013 case was a flagrant mockery of civil procedure. The 2016 judge who ordered me to pay the sanction even concluded that actions of the prior judge, Carmine Cornelio (who also has a dedicated page on NoEthics.net), were “not legal.” Judge Cornelio faced no comeuppance (though he was shamed off the bench for other reasons in 2016), and his $350 sanction was used to ransom a civil liberty of mine of which he had no jurisdiction to deprive me in the first place.

Eugene Volokh Is a Name Restraining Order Defendants Should Know

June 14, 2016June 21, 2023Moderator 6 Comments

Above, Prof. Eugene Volokh argues before the Georgia Supreme Court in Chan v. Ellis (2014). Prof. Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law at UCLA School of Law.

“If you post on social media about your life, is that going against a restraining order if you don’t mention the petitioner’s name?”

—Search term that led someone here last week

As UCLA Law Prof. Eugene Volokh has doggedly emphasized in his blog, The Volokh Conspiracy (formerly hosted by The Washington Post), the answer to this question is no, it isn’t going against a restraining order if you write ABOUT the order, ABOUT the person who petitioned it, or ABOUT the impact it’s had on your life. Your right to express your opinions and talk about your life to the public at large is protected by the First Amendment.

A person may legitimately be prohibited by a judge from communicating something TO someone (by phone or text, say, or by email or in a letter, or in person), but a judge “can’t order someone to just stop saying anything about a person.”

The citizen’s right to talk about him- or herself, about someone else (including by name), or about anything (excepting state secrets) is sacrosanct. It’s protected by the First Amendment, and a trial judge has no rightful authority to contradict the Constitution.

Note that the key phrase here is rightful authority. A judge can act in ignorance, and s/he can even act in willful contravention of the law.

Why Eugene Volokh’s is a name to know is that Prof. Volokh has endeavored to make the distinction between speech that may be prohibited and speech that may not be prohibited everyday knowledge. He’s done that by writing in a medium accessible to everybody, a blog, rather than exclusively in law journals, as well as by framing in simplest terms the difference between speech that may be censored and speech that may not be.

He’s building steam, too. These posts are from last month alone:

It’s important to observe that nothing in the restraining order arena is hard-and-fast, because judges can rule however they want. When what they do clashes with the law, an abused defendant’s only recourse is to appeal, and the intrepid writer should be prepared to do that…right on up the ladder. (S/he should also know that s/he has the right to request reimbursement for lost time, for costs, etc.)

A blogger wrote last month to report that an ex-boyfriend’s claims of “domestic violence” were laughed out of court and that the motive for the accusations was that she had criticized him in a blog. The guy went back to the courthouse a couple of weeks later, petitioned another order from a different judge, and that one stuck. His abuse of process had recent precedent, and it didn’t matter.

Such manipulations of the justice system by false complainants and spongy decision-making by judges owe to 20 years of mainstream feminist rhetoric decrying “epidemic” violence. Judges have been trained according to tailored social science and had it impressed upon them what their priorities should be. Too, they’ve traditionally been given no cause to second-guess themselves.

Eugene Volokh is changing that.

A steady stream of cogent arguments against the due process violations (and statutory and conditioned inequities) that make the restraining order process contemptible has been voiced by influential critics since the ’90s…to little effect.

Rather than appeals to reason and social conscience, what may finally turn the tide against a corrupt procedure of law is an indirect attack on its legitimacy. Once it’s commonly known that speech about its victims’ experiences cannot lawfully be squelched, and that both the issuers of orders and their petitioners can be exposed, warts and all, what has been an unaccountable process no longer will be. Shadowy (and shady) proceedings that have enjoyed invisibility will have to tolerate the glare of spotlights.

And bullies don’t like reading about themselves.

*The motives of a goodly proportion of false complainants are to cause pain and have the party they’ve injured gagged. Restraining orders are the perfect tool for this. But what people say on public record (e.g., in a courtroom) is public property. It’s supposed to be the opposite of hush-hush.

“PERMANENTLY PROHIBITED”: Camden County, New Jersey’s Idea of a Just Order of the Court

June 2, 2016July 24, 2023Moderator 10 Comments

NOTE TO THE COURT: Facts in this post were gleaned by its author and do not originate from its subject, Bruce Aristeo, who had no influence on its composition. Commentary, likewise, is solely that of its writer.

A recent post on this blog highlighted the case of Raines v. Aristeo, out of Camden County, New Jersey.

You can find the post on Google. You won’t, however, find an association between that post and the name of the plaintiff, Jody Raines, if you use that name as your search term (or the name of her business, WebMarCom). That’s because the judge returned a verdict on April 26, 2016, against defendant Bruce Aristeo requiring that any such association be severed.

I got a chance to look at the judge’s order this week. To call it an offense against free speech (and some other constitutional guarantees) would be like calling public defecation impolite.

Bear in mind that Mr. Aristeo was prosecuted for posting satirical videos ABOUT Ms. Raines on YouTube. That’s the basis for his being nominated a “criminal stalker”—also that he’d previously been issued something called an “indefinite temporary restraining order” (unique to Camden County, New Jersey). Mr. Aristeo’s videos purportedly violated this “indefinite temporary” whatchamacallit and were represented as “harassing” and therefore evidence of “stalking” and “domestic violence.” (Don’t strain to find logical connections. You’ll give yourself a nosebleed.)

This is actually how the order, issued by Judge Frederick J. Schuck, reads:

The Defendant shall be PERMANENTLY PROHIBITED from entering the residence or place of employment of Jody Raines and shall be further prohibited from being present upon the grounds or property surrounding said locations whether in the State of New Jersey or another jurisdiction as specified below.
The Defendant shall be PERMANENTLY PROHIBITED from any future acts of domestic violence against Jody Raines enumerated in J.S. 2C:25-19a and specifically from following, monitoring, surveilling, stalking, harassing and/or threatening Jody Raines.
The Defendant shall be PERMANENTLY PROHIBITED from any and all personal contact with Jody Raines.
The Defendant shall be PERMANENTLY PROHIBITED from any and all communication to or about Jody Raines and her business (see paragraph 8).
The Defendant shall be PERMANENTLY PROHIBITED from causing any communication to or about Jody Raines and her business and any contact to be made with Jody Raines directly or indirectly, or through any third parties, mediums or agents.
The Defendant shall be PERMANENTLY PROHIBITED from any and all communication or personal contact with any family members, friends, employers and co-workers of Jody Raines or other persons with whom communication would be likely to cause annoyance or alarm to Jody Raines.
The Defendant shall be PERMANENTLY PROHIBITED from utilizing any internet and/or social media postings, directly or indirectly, or through any third parties, mediums, or agents regarding, referring to, or simulating, characterizing or alluding to Jody Raines, her family, her friends, her business, or her pets in any form, including but not limited to YouTube, Facebook, LinkedIn, and Twitter.
Prohibited contact or communication in Paragraphs 3, 4, 5, 6, and 7 above shall include any form of communication made by any means, including but not limited to, any verbal or written communication, communications conveyed by any electronic communication device or medium, including but not limited to, a telephone, including a cordless, cellular or digital telephone, computer, or any other means of transmitting voice or data, including but not limited to text message, email, social media, social networking sites, internet or other communication via computer or electronic device, including but not limited to the posting or publication of images or audio recordings of Jody Raines, and communication made by sign or gesture and the physical presence of the Defendant in proximity to Jody Raines or at the specified prohibited locations.
The Defendant shall further be PERMANENTLY PROHIBITED from communicating, sharing, disclosing, or disseminating to any third party, medium or agent any information referencing Jody Raines, her business, her family, or her pets via any method described [above].
The Defendant shall cause to take down and remove from the Internet any and all publications or postings over which he has control that mention the name of Jody Raines or any business owned or operated by her, exhibit her image, or contain audio recordings of her voice.
A violation of this Order shall be governed by J.S. 29-9a; however, nothing in this paragraph shall preclude the filing of additional criminal complaints based upon the act(s) constituting a violation of this Order.

Remember that Mr. Aristeo, a former schoolteacher, was found guilty of “stalking” (in contempt of a “temporary indefinite” restraining order) for publishing some one-to-many satirical videos.

(Ironic of that is how the judge’s order reads like satire: “including but not limited to, any verbal or written communication, communications conveyed by any electronic communication device or medium, including but not limited to, a telephone, including a cordless, cellular or digital telephone, computer, or any other means of transmitting voice or data, including but not limited to text message, email, social media, social networking sites, internet or other communication via computer or electronic device, including but not limited to….” How can you not hear that in the voice of John Cleese?)

Mr. Aristeo is now PERMANENTLY PROHIBITED from publicly referencing (“including but not limited to”) a goldfish Ms. Raines might own—and congratulations to county prosecutor Tracy Cogan for that snot blob on the Constitution.

Mr. Aristeo, whom Ms. Raines has had jailed before, was sentenced to 364 days behind bars (less 190 previously served). There’s more, too:

Four (4) years’ probation, subject to standard conditions.
Defendant shall undergo a psychological evaluation and treatment if necessary.
Defendant shall abide by all of the terms of the Permanent Restraining Order entered separately this date.
Defendant shall provide a DNA sample.
The Court separately shall enter a permanent stalking restraining order pursuant to N.J.S.A. 2C:12-10.01.
The State’s request for forfeiture of the Defendant’s Mac Pro Laptop Computer, and Apple Desktop Computer is denied. The State shall return to the Defendant any property seized from him immediately upon his release from incarceration, unless the State otherwise has initiated an appropriate civil action pursuant to N.J.S.A. 2C 64-3.

He was also fined: VCCA Assessment, $50; Law Enforcement Officers Training and Equipment Fund Penalty, $30; Safe Neighborhood Services Fund, $75; Probation Supervision Fee, $5; Domestic Violence Offender Surcharge, $100.

Fittingly, the judge’s name, Schuck, is just one letter shy of an earthy Yiddish slang word that means dick.

*The arrests and prosecutions of Bruce Aristeo have cost taxpayers tens of thousands of dollars, for which they stand to be refunded $260 (if the judge corrects his math) by a man the state has left indigent (with a corrupted public record). If Mr. Aristeo now has grounds to sue the state for obscene abuses of power and false imprisonment, that may mean tens of thousands of dollars more drained from the public till, from which the costs of Mr. Aristeo’s housing, as well as the filing fees for his appeal, will also be drawn—all because he published some satirical material online representing his accuser as a toy monkey.

The Female of the Species Is More Deadly than the Male: A Restraining Order Plot Twist That Fans of Novelist Gillian Flynn Will Appreciate

May 29, 2016June 26, 2023Moderator 5 Comments

The previous post concerned the interpersonal and legal travails of a blogger who brought her story to my attention last week.

Jenny has twice been served (this month) with restraining orders alleging “domestic violence” that were petitioned by an ex-boyfriend with whose son she had formed a parental attachment.

The “man” resents her talking about him online and has sought to hurt her by falsely representing her as violent. After his first complaint was dismissed, he promptly petitioned a second order alleging Jenny had a gun and mandating that she attend a 52-week “Batterer Intervention Program.”

Because he could.

Intermediately, Jenny has been attacked online by an anonymous heckler-cum-terrorist:

My suspicion was that her ex was playing ventriloquist and writing in different idioms to give the effect that more than one person was outraged by Jenny’s blog (like anyone else could care).

I believe the speaker who identifies “themselves” as “Active Reader” likely is her accuser. He tries to rationally justify her ex’s being an ungallant sniveler.

Jenny says she knows who the second voice belongs to, though, and it’s not who you’d guess. “Anonymous” is the guy’s sister (the little boy’s auntie).

As Jenny’s case shows—and as I’ve presaged in posts past—men are hopping on the passive-aggressive bandwagon and abusing process to satisfy spiteful impulses. It’s there, it’s easy to exploit, and there are no consequences for lying…so why not?

As Jenny’s case also shows, however, when it comes to catty malice…men are still the lightweights.

*Gillian Flynn, mentioned in the title of this post, is the writer of Gone Girl, Dark Places, and Sharp Objects, novels in which women are the villains (and all of them stellar tales). As any genuine feminist would appreciate, none of Flynn’s female characters is passive anything.

The Use of Restraining Orders to Bully Women: Jenny’s Story

May 26, 2016June 19, 2023Moderator 12 Comments

The painted fingernail in this image isn’t that of the person who filed the domestic violence restraining order; it’s the fingernail of the person against whom the order was issued (wrongly).

A woman named Jenny brought her blog to my attention yesterday. Jenny reports she was falsely accused of domestic violence for no better motive than to hurt her, and she prevailed in court.

I broke down during my turn to defend myself, but I couldn’t help it. My heart hurt so badly. I was in so much pain. The judge took no time at all to throw the case out. He pretty much laughed Mr. Wrong out of the courtroom for his petty allegations and…what he was trying to use as proof of domestic violence….

As Jenny puts it, she was “slapped with a restraining order.” She should have said “SLAPPed.” Her accuser, whom she calls “Mr. Wrong,” implied the worst about her that the boilerplate bureaucratic form allowed—to shut her up: She’d published a warning about her ex-boyfriend online and invited his friends to read it. That’s protected speech (besides nonviolent), and the judge was right to vacate the order.

Don’t break out the champagne yet, though.

Jenny, who has been served with two falsely petitioned restraining orders alleging “domestic violence” (this month) besides heckled on her blog as a “crazy bitch,” a “joke,” a “loser,” and “just a booty call that didn’t leave in the morning”

In her latest post, Jenny reports she was yesterday served with a second domestic violence protection order. Yeah. The motive is the same: to shut her up and hurt her. Jenny had left a note asking if she could see her accuser’s son, a boy she had parented and whom she cared about and missed.

This time around, Mr. Wrong ticked a box on the form mandating that Jenny attend a 52-week “Batterer Intervention Program” (funded by the tax-paying public).

He also ticked a box indicating Jenny owned a gun, which she says she never has. That doesn’t matter, of course, nor does it matter that the same guy petitioned the same order a few weeks before and was ultimately denied. Restraining order proceedings are conducted ex parte, which means orders are issued blindly, and the priority is to “protect” plaintiffs. There’s no cap on how many times vexatious plaintiffs can play this game. Defendants aren’t consulted or considered. They’re just handed orders that say the court has reason to suspect they’re batterers (or stalkers or child abusers or rapists, etc.).

Jenny has besides been serially ridiculed and taunted by “anonymous” commenters on her blog (who could “they” be?). She’s been called a “crazy bitch,” a “joke,” a “loser,” and “just a booty call that didn’t leave in the morning”:

According to the National Coalition Against Domestic Violence (NCADV), domestic abuse includes “coercion and threats”; “intimidation”; “emotional abuse”; “isolation”; “minimizing, denying, and blaming”; and “using children.”

The NCADV and other “women’s advocacy groups” defend restraining orders as deterrents of abuse…and thereby make the abuse of people like Jenny not just possible but easy.

*Contrast this story with how complainants of false accusations of domestic violence are represented by feminist advocates like UC Davis Prof. Kelly Behre.

A Man’s “Tasty Little Balls…What a Treat!”: On RAINES v. ARISTEO, Free Speech, and Censorship

May 16, 2016June 26, 2023Moderator 4 Comments

Typical of cases stemming from court injunctions, the case that occasions this post, Raines v. Aristeo, is a he-said/she-said quagmire. Not disputed is that the woman and the man had a four-month relationship in 2010. He says he ended the relationship after learning “disturbing…information” from her ex-husband about her. She says she ended the relationship because he became “strident,” “demanding,” and “threatening.” Both acknowledge they had a business relationship outside of their personal relationship. He says she owed him money and brought criminal complaints against him to get out of paying. This post doesn’t belabor the backstory but instead raises some questions: Is this, as in so many similar instances, a tempest in a teapot? Has a public interest been served by a man’s serial arrest and prosecution, or has it only sated a single woman’s rancor? Should this be countenanced? And, finally, is it lawful? The only pointed observation this post makes is that a woman has been annoyed, and a man is in jail.

Jody Raines, WebMarCom, Raines v. Aristeo, Bruce Aristeo

In her YouTube video “Smiles for Ruger,” Internet marketing adviser Jody Raines imitates feeding a man’s “TINY, TINY, TINY” testicles to her dog.

“Agitator” Matthew Chan, who introduced me to how restraining orders are used to squelch protected speech, brought this search engine return to my attention on Friday:

This notice greets the person who queries Google either about Jody Raines, a woman who describes herself as a “recognized expert with Social Media, Internet Marketing and Website Development,” or Bruce Aristeo, a former schoolteacher she has prosecuted, not for the first time, and had sentenced to three months in jail.

Bruce Aristeo

The two dated in 2010, besides having a business relationship at the same time. Beyond these details, accounts predictably differ. Beyond question, however, is that Mr. Aristeo has been jailed for expression protected by the First Amendment.

His “crime” was posting satirical videos on YouTube ABOUT Ms. Raines—and even asserting that much is subject to interpretation. The basis for Mr. Aristeo’s arrest and subsequent incarceration was his being issued something called an “indefinite temporary restraining order” (unique to Camden County, New Jersey) in 2012. This bizarre instrument (issued in a state long-known for its harsh judicial treatment of male defendants) exposes Mr. Aristeo to warrantless arrest anytime for the rest of his life.

Prior to the most recent prosecution, Ms. Raines has had Mr. Aristeo arrested multiple times and jailed for over half a year. (Whatever Ms. Raines’ talents as a marketer outside of court may be, inside of one she’s proven herself to be highly effective.)

The conflict between the two inspired a YouTube “cold war” that went preemptively nuclear in 2015. Ms. Raines’ latest prosecution concerned Mr. Aristeo’s videos. This post examines one of his and one of hers.

Among Ms. Raines’ reported passions are motorcycles and Belgian Malinois dogs. One of her personal pets is called Ruger (also the name of a gun manufacturer). Mr. Aristeo waggishly produced a video “promoting” a brand of breakfast meats called “RU Burger Farms” (RU…ger).

The vid’s “production company,” “MonkeyCom Banana Strategies,” both identifies the work as satire (which is protected speech) as well as takes a poke as Ms. Raines’ company, WebMarCom, which advertises marketing strategy advice. In the video, Mr. Aristeo (clad in a scarf and a fuchsia sweater) lustily tucks into some “Malinois sausage patties,” and his narration includes tongue-in-cheek patter like this: “I love to prepare my Malinois like the Amish do, where they put a little syrup on top after….”

This apparently is supposed to represent a “true threat” to either Ms. Raines or her dog, neither of whom is explicitly identified. The video wasn’t brought to Ms. Raines’ attention by Mr. Aristeo—that is, he didn’t contact her—which means to have seen it, she had to have sought it out.

Ms. Raines responded to Mr. Aristeo’s homemade flick with a satirical video of her own. It suggests she has castrated Mr. Aristeo and is feeding his testicles to her dog. It’s called, “Smiles for Ruger.”

Here’s a still from it:

The word troll in the frame that follows is Internet slang for a person who lurks in forums and sows discord on the Internet for self-amusement. Its application here is an ill fit, because Mr. Aristeo didn’t plant his video anyplace with the intent to provoke: Ms. Raines had to know where to look.

The frame below intimates that Ms. Raines’ video was inspired by Mr. Aristeo’s “picking on” Ruger (who’s an intelligent dog but doesn’t speak English) with his video.

Ironic is that the video documents Ms. Raines’ taunting Ruger before finally letting him devour the “TINY balls.” The video also taunts Mr. Aristeo. It doesn’t just mock his genital size and virility but concludes with Ruger’s “saying”: “Yes, they taste like CHICKEN.”

Ms. Raines plainly means Mr. Aristeo is a chicken. She taunts a man whom she had already had arrested several times and jailed.

A question the court might have considered during sentencing this year, if not before that, is whether this is the act of a woman who’s “afraid.” Another question it might have considered is whether a sophisticated online spat justifies interference by the state at taxpayer expense. Finally, it might have considered whether it was constitutionally sanctioned to stick its nose in, which it wasn’t.

Ms. Raines meanwhile is performing a post-trial mop-up for “image maintenance.” Her video “castration” of Mr. Aristeo remains online, however, and has not been targeted for censorship by Google or age-restricted by YouTube.

*How many tens of thousands of dollars of public funds have been chewed through to sate what is arguably one woman’s yen for vengeance is anyone’s guess. Besides the costs of the trials, arrests, and incarcerations, Mr. Aristeo was jobless and homeless while prosecuting his defense, and living on the state’s dime in government-subsidized housing. Worthy of reflection, too, is the setback to citizens’ constitutional entitlement to free speech:

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

May 14, 2016January 25, 2018Moderator 6 Comments

“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:

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).
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.

What Can Be Done with Public Records, Like Restraining Orders, Arrests, and Convictions: A Tutorial for Judges and Everyone Who’s Been Lied about to One

January 3, 2016June 24, 2023Moderator 7 Comments

Court records are available for public consumption, freely or for a few dollars, besides people’s home addresses, telephone numbers, birth dates and ages, work histories, list of associates and family members, etc. Men and women falsely targeted for blame in drive-thru court procedures may be fined or jailed for airing information about their accusers’ conduct that’s far less sensitive than what anyone with an Internet connection and a credit card can glean in five minutes—which may include decisions against men and women falsely targeted for blame in drive-thru court procedures….

sniffing

Decisions of the court in public proceedings are public records.

Remarkably, not even judges grasp the significance of the word public. More astonishing than that many judges today don’t know the first thing about the Internet is that no one in government seems to think it’s important that they be instructed.

The conditioned imperative is blame…and the consequences be damned.

Billions of federal tax dollars have been dedicated over the past 20 years to biasing police and judicial responses to accusations of abuse, but not one has been earmarked to show judges how the Internet works and how the public records they generate may be used.

This post will attempt to amend the lapse.

Here are a mere handful of websites that peddle so-called “private” information:

What follows is a demonstration of how they work.

In the most recent fiction-based prosecution against the author of this post, it was ruled by a superior court judge that I violated the privacy of my accuser by discussing her motives online, and I was unlawfully prohibited from publicly referencing her in future. My judge was Carmine Cornelio, and here is what is returned (at no charge) if I enter his first and last names into SwitchBoard.com:

his middle initial,
his approximate age,
his phone number (a landline provided by Coxcom),
his home address (and a map showing where his home is located),
a tab that provides directions to his house,
a tab that leads to information about his neighbors,
the names of a couple of “people [he] may know,” and
an invitation to “View [his] Background & Public Record Information.”

If I enter his name into Intelius.com (again for free), his age is confirmed to be 64, and I’m provided with the names of five of his relatives, as well as his address history, aliases, and prior jobs he’s held (he’s identified as an attorney but not a judge). All of this is right there on the surface. If I cared to know more, here’s what else I could learn for a trivial fee:

Matthew Chan of Defiantly.net has recently chronicled the case of a New Jersey man, Bruce Aristeo, who was jailed for six months for “vlogging” about a woman who accused him of abuse after he was issued something called an “indefinite temporary restraining order.” The judge didn’t even view the contents of the YouTube videos his ruling was based on. I’ve viewed some of their contents, which are mostly satire and fully protected under the First Amendment, and they’re a lot less invasive that an Intelius report. Mr. Aristeo has been arrested at least four times based on allegations he says are false, and those arrests are all public records that may be pulled from an Intelius report, by an employer, for instance, or a prospective girlfriend.

Below is a screenshot from a website called BustedMugshots.com (a product of U.S. Data Co. Ltd.).

blurred mugshot

I was told by this man’s sister that accusations against him were falsified:

It makes me wonder, how common is this? Because my own brother had his girlfriend and mother of his child accuse him of rape a few years ago. He went to prison for it even though she later recanted her lie, but the case was already in the court’s hands and they wouldn’t accept her testimony. She truly ruined his life.

This certainly isn’t something a viewer of this record (e.g., an employer, a neighbor, or a girlfriend) would conclude. Significantly, also, this record is 15 years old. Court records, besides being very public, are very permanent.

Twice on the same page featuring the above record appears this search bar:

It encourages the viewer to look up the public records of yet other people. A button under the mugshot offers the viewer the option to “Order Complete Background Report” from the same “National Database” (called “Instant Checkmate”). The viewer is also invited to enroll in a service that notifies him or her of future arrests of the same person (“Monitor For Future Crimes”).

People, possibly on arrantly false grounds, are set up as targets for constant and endless scrutiny…to which they can hardly be insensitive.

While a line of text under the mugshot suggests a person can “Request This Record to be Modified or Purged,” here’s what pops up when you click its hyperlink:

It’s a tease. The website will only remove the record if it’s been ordered sealed or vacated by the court, or if the person it identifies has died. The blurb hastily clarifies that BustedMugshots.com isn’t out to blackmail people. It doesn’t have to: It collects fees from its advertisers.

This titillating “warning” greets the visitor to InstantCheckmate.com.

Besides advertising the services of Instant Checkmate, BustedMugshots.com advertises for InternetReputation.com, with which the notice above tacitly urges someone with a mugshot published online to inquire (“Protect Your Online Privacy”).

Observe the squeeze: Damning information is published (legally) for the person it concerns to see. That person also sees that anyone can access this and other sensitive information, and is urged to exploit the services of a company that offers to protect his or her reputation…for a fee.

(Summary in media res: A person may be falsely accused in a farcical “trial” and emotionally and financially devastated. S/he may be arrested and imprisoned based on lies. The records may be used to further maim him or her in additional prosecutions. And—and—the records of all of these proceedings, based on a fraud or frauds, may be aired publicly. But the accused may not discuss them defensively without risk of court censure. No wonder, then, that some victims of procedural abuse never want to leave the house and flinch when the doorbell rings.)

This blog concerns restraining orders, which can be obtained easily on hyped or fraudulent grounds and make defendants vulnerable to arrest and conviction for “crimes” that only they can commit, for example, sending an email or placing a phone call.

Vigilant response to any claimed violation of an order has been vigorously conditioned for decades (by the Office on Violence Against Women), and it’s not uncommon for people to report that they’ve been arrested multiple times for falsified violations of restraining orders with falsified bases (see above).

On top of all of this, the records generated by this mischief can be legally published or sold, and the government, besides, has its own public databases that may be freely accessed by anyone with an Internet connection.

These are among the reasons why principle must be restored to process.

*BustedMugshots.com includes this contemptible sentence in its disclaimer: “The data may not reflect the status of current charges or convictions and all individuals are presumed innocent until proven guilty in a court of law.” Sure they are.

“Some Results Have Been Removed”: Search Engine Censorship of Bloggers Who Write about Legal Abuse

December 10, 2015June 21, 2023Moderator 2 Comments

These are some search terms that recently drew readers to this site:

how can a person just make stuff up in a personal protection order
female stalkers and false allegations
lie to get restraining order
indiana cps false reporting
the consequences of lying to obtain a tro in nj
permanent restraining orders based on lies
if someone threatens you with a pfa and is lying is it libel

What they imply are personal attacks and procedural abuses, kinds of them that daily confound lives yet seldom reach the public’s awareness, whether because victims are ashamed to discuss them or afraid to.

As prior posts have noted, the court tends to view criticism of legal abuses as abusive, so engaging in it is dicey. Appreciate that it’s next to impossible—and virtually pointless—to air grievances about courthouse misconduct without identifying whose behavior is being complained of, what s/he or they have done, and why.

Criticism of people who’ve falsely testified in a public forum and on public record is protected speech, so long as that speech is about them and not to them, and doesn’t contain falsehoods, threats, or sensitive information that might qualify as invasive to privacy. What someone has aired in court under oath is not private, particularly if the testimony is criminally perjured.

Restraining orders, though, are prejudicial instruments that explicitly or implicitly identify defendants as “stalkers” or “harassers.” So those who criticize their issuance are vulnerable to having their criticism interpreted as “further” harassment, despite authorization by the First Amendment…and despite the fact that the original claims against them may have been false to begin with. (Such claims may be established in minutes and on no ascertainable basis other than some finger-pointer’s say-so.)

Adding to the obstacles that critics of process face is that search engines may censor them, particularly if an order of the court can be provided that states or suggests writers are prohibited from speaking about a particular person or persons. Such an order is called a prior restraint, and it’s unlawful. Trial judges aren’t First Amendment experts, however, and orders aren’t hard to obtain, and can even be issued ex parte (i.e., without a trial).

While this blog has existed for over four years and has been viewed more than 300,000 times this year, it isn’t cataloged on Microsoft’s Bing or on Yahoo (though it was prior to its author’s being sued by his false accuser in 2013 for “libel and harassment”). Whether administrators of these search sites unilaterally opted to “delist” the blog from their returns, or whether the blog author’s accuser(s) insisted that they do, I don’t know. It may be that the blog was determined to be “misogynist,” “defamatory,” or to otherwise traffic in or host “hate speech.” They’re easy allegations to put over.

Eugene Volokh, eminent First Amendment scholar and UCLA professor, would clarify that censorship can only be committed by the government.

Nevertheless, Wikipedia has a page titled, “Censorship by Google,” and Bing has been censured for “censoring” returns according to certain search criteria. ElephantJournal.com, for instance, explains “Why We Should Boycott Bing”:

[C]onduct the search with the simplified characters used in mainland China, then you get sanitized pro-Communist results. This is especially true of image searches. Magic! No Tiananmen Square massacre. The Dalai Lama becomes an oppressor. Falun Gong believers are villains, not victims.

Elephant Journal links to a New York Times editorial by Nicholas Kristof (similarly titled) that inspired its condemnation.

Application, then, of the word censorship to “selective revision” of or the delisting of websites from search engines’ returns isn’t without strong precedence. See also:

“How Microsoft Bing Censors the Middle East” (Electronic Frontier Foundation)
“Internet Censorship: Bing’s Chinese Enigma” (The Economist)
“Google, Yahoo Criticized over Foreign Censorship” (Bloomberg)

Search engine “censorship” is brought to the attention of this audience to emphasize the importance of airing stories of court injustice. Policies and perceptions have been prejudiced for decades by violence rhetoric, and vital to motivating a reassessment of politically biased positions is challenging them and contradicting them with evidence and personal narratives of abuse.

Today, it’s an act of subversion and nonconformity even to voice misgivings.

When complaints of courtroom travesties become “normal and everyday” instead of “suspect,” then process itself will come under scrutiny instead of the people whose lives have been trashed by it.

Copyright © 2015 RestrainingOrderAbuse.com

*The Southern Poverty Law Center (SPLC) has identified sites that vehemently criticize legal abuses as sources of “hate speech.” Consider, then, what consequences a proposal like this, meant to disrupt terrorists, could have over time: “‘Spell-check for hate’ needed, says Google’s Schmidt” (BBC).

Why People Who’ve Been Falsely Accused “Blog”: A Tutorial for Judges

December 4, 2015July 29, 2023Moderator 9 Comments

An absurd notion seems to prevail in the minds of men and women of the court—many of whose familiarity with the Internet begins and ends with shopping for bargains on eBay or Skyping their grandkids—that people who “blog” about being abused in court have nothing better to do.

No, they do it because they’ve been screwed, blued, and tattooed, and the peace of mind needed to do what they’d rather be doing has been denied them.

Their sanity, dignity, and good names, if not their children, have been sacrificed to the false idol of justice. They’ve been railroaded through one or more gimmicky, derelict procedures that confounded their lives for nothing…excepting politics, that is, and cash.

(Seriously, what pinnacle of pretense does a person need to surmount to entertain the idea that someone would expend dozens, hundreds, or thousands of hours decrying inept, lopsided policies of law merely because s/he was “miffed” or “disappointed”? )

Demonstrating the ability to write isn’t proof of anything but the attainment of a third-grade education.

Wake up and smell the Folgers: Not everyone knows to or has the means to enlist a lawyer to swat down some false or hyped allegations whose only ascertainable basis is that they were scrawled on a bureaucratic form in 10 minutes with a Bic Round Stic by someone displaying anxiety.

If you’re a veteran of process, you know very well the obstacles people face (even if they have representation) in disentangling themselves from accusations after a judge has once signed off on them. Tell yourself what you want, but this isn’t deliberative stuff (an order of the court can be delivered sooner than an order of waffles at Denny’s).

This stuff is, however, saprogenic. That’s a fancy word—and we know judges favor fancy words—that means producing decay and putrefaction.

What may be a few moments of your workday can profoundly influence years (or all) of a person’s life. It can hasten a body into the grave.

If this is news to you, that’s probably because you began your career before a medium existed in which the legally abused little guy could publicly air his or her grievances. That doesn’t mean you haven’t been arbitrarily trashing lives all along; it just means you didn’t have to hear about it before.

Probably you felt securer on your pontifical peak before casualties of slovenly adjudications could complain about them.

Probably, too, that’s why orders of the court are routinely issued that prohibit the exercise of free speech by complainants of procedural abuse, orders that have recently fallen under stern scrutiny.

The reason people “blog” or “video-blog” (“vlog”) is that the courts fail them, and the court’s miscarriages exact a grave toll that endures and compounds over the months and years. The victims of those miscarriages live in limbo, and speech is the only recourse left them to air truths the court disdained, ignored, edited, or quashed.

*Doctors may get to bury their mistakes; judges don’t. “Public record” doesn’t mean only as public as you want it to be.

Bruce Aristeo, NJ, New Jersey, indefinite temporary restraining order

New Jerseyite Bruce Aristeo was cited for violating an “indefinite temporary restraining order” for, among other things, using his accuser’s image and that of her “pet Belgian Malinois.” He has been arrested at least four times.

Why More Falsely Accused Don’t Speak Out

May 17, 2015March 23, 2018Moderator 9 Comments

If procedural abuses are epidemic (and they are), why do so few vociferously complain? Why isn’t the Internet inundated with personal horror stories (and why aren’t state representatives’ in-boxes choked with them)? We purportedly enjoy the privilege of free speech, so why isn’t it exercised more?

The absence of rampant complaints of procedural abuse is misleading. Limitation of complaints to sketchy e-petitions and forum comments, often anonymous, makes them suspect and easily discounted by those with a political interest in discrediting them.

The dearth of forthright exclamations of abuse and injustice, however, is easily understood.

Rather than consider who isn’t talking back, consider who does. What distinguishes these men and women from what may be hundreds of thousands or millions of victims of false, exaggerated, or misleading accusations to the court?

For one, most of them are childless or without young children. They don’t face being further deprived access to their kids if they buck the system. Those with minor children who do speak out have often been denied all rights to their kids, anyway; they have nothing left to lose.

Too, most of them work for themselves. It’s a fact that restraining orders influence employers. Furthermore, studies have shown that employers are influenced even by Internet disclosures by employees or potential hires that may be negatively perceived by the public. Human Resources personnel are paid to snoop around. Mere injudicious comments on Facebook may be hazardous to job opportunities and careers. Declaring that you’ve been judged to be a stalker, for example, or a domestic or child abuser has obvious and grave drawbacks, never mind if you’re also construed as a wacko because you vehemently insist online that your accuser’s psychopathic. This is an express train to sleeping in a refrigerator box.

Women aren’t immune to false accusation. They’re a minority among its victims, and that status is itself isolating (from a community peopled mainly by men who resent women and the favored political status they enjoy). Many respondents to this blog are female—maybe most. By and large, however, women may feel like interlopers in male-dominated discussions, and women’s advocates, whom they should be able to turn to, don’t want to bring scrutiny to bear on the question of procedural abuse (which is mostly by women).

People who may be foully wronged and branded with accusations that may daily tear at them are coerced into silence by the feared repercussions of ventilating their rage and anguish. Their false accusers, moreover, may be violent people or, for example, extremely vindictive ones, and the accused may fear for their safety and their children’s safety, or fear further legal abuse, which can be endlessly renewed, particularly after false accusations have once stuck, and which can result in incarceration—possibly meaning loss of a single parent’s child(ren) to the state—or financial hardship or ruin. The falsely accused are squeezed between a rock and a hard place.

As you might imagine—and it’s okay to try imagining even if it goes against your partisan loyalties—this creates a hell within a hell.

Probably most of the falsely accused, besides, are not trained writers (like the loudest voices that discredit people in their shoes are) nor among the politically privileged class, whose members are typically the most able to free themselves from false accusations in the first place. They’re not suave, and they don’t possess the kinds of credentials that make people think twice.

(Also, ironically, the people who do possess the kinds of credentials that make people think twice but who fail to deflect a false finger of blame are often sensitive to “social decorum” and may be loath to air dirty laundry.)

Public outcry, finally, is discomforting to family and friends (and their family and friends). It compounds the alienation and isolation of false accusation with alienation from those who believe in you; they sidle away.

In a nutshell, it’s not merely coincidental that those few who do elect to talk back are mainly single, independently employed, without small children, white…and male. Men don’t fear violent retaliation from their false accusers, usually, and they may have nothing left to be stripped of except the lingering expectation of justice.

*Bearing the foregoing in mind, it should be no surprise that the preponderance of publicized outrage originates from “just folks” who aren’t distinguished and who are easily dismissed (and mocked) as “rabble.” What should be a surprise is that their detractors are often those who are supposed to be looking out for them, for example, civil rights advocates like the ACL(where R)U and agents of the popular press.

If You Doubt the Grief Caused by False Accusation, Consider the Whimpers of False Accusers When THEY’RE Exposed

May 12, 2015August 4, 2023Moderator 10 Comments

Forthcoming posts on this blog will consider character assassination, and they will critique one of the many execrable ironies of the civil restraining order process. It is possible to falsely accuse a person of anything—literally anything (mooning the neighbors, groping children, chewing the ears off of puppies, rape, you name it)—and the act of false accusation, which is universally deemed a statutory crime (perjury), is not sanctioned by the court. The falsely accused, what’s more, cannot litigate the crime of perjury him- or herself nor apply to the court for relief from the falsehoods or an award for the damages they do, which may include PTSD, loss of home, and financial ruin. But…but if the falsely accused exercises his or her constitutionally protected right to free speech and exposes his or her false accuser, which is his or her only lawful defense (and a feeble one at that), this act may paradoxically be construed as “character assassination” by state prosecutors and judges. This post will ease into the topic of character assassination gently.

An alternative way of understanding the pains inflicted by false accusation, if you’re among the compassionately challenged, is to consider the complaints of those accused of falsely accusing.

They don’t like it much when the table is turned.

A woman I’m in correspondence with and have written about was accused of abuse on a petition for a protection order last year by a scheming long-term domestic partner, a man who’d seemingly been thrilled by the prospect of publicly ruining her and having her tossed to the curb with nothing but the clothes on her back. He probably woke up each morning to find his pillow saturated with drool.

The woman he accused, meanwhile, probably didn’t sleep at all during the weeks of purgatory between the accusation and her hearing. For a while, she had to worry about where she’d be able to sleep.

She successfully had the protection order dismissed and has since publicly exposed her false accuser. She’s also filed a lawsuit and endeavors to have the laws in her state amended so people like her ex face consequences for defrauding the court (which at present they never do…anywhere). After her exoneration in court, she says her ex starting circulating it around town that she tried to kill him.

Now her former boyfriend complains that the stir she’s caused by expressing her outrage in public media is affecting his business, and he reportedly wants to obtain a restraining order to shut her up…for exposing his last attempt to get a restraining order…which was based on fraud.

He feels defamed, you see.

Public exposure is not the same thing as being put on the legal rack, but, oh, how those outed for lying will snivel and pule. They expected their testimony would be neatly kept under wraps, and it’s just…not…fair!

Anyone who doubts or misconceives the torments of legal abuse need only look to the whiners who object to being revealed as its perpetrators to be disabused of illusion.

*First Amendment advocate Matthew Chan, who recently prevailed in a protection order appeal before the Georgia Supreme Court, keeps a constant vigil over what’s said about him by his own accuser, who reportedly began a social media campaign to reboot the conflict after the court ruled against her. Larry Smith, who authors BuncyBlawg.com, was ordered to show cause in 2014 why he shouldn’t be censured for writing about his false accuser, a disturbed woman who complained of grave emotional distress. A sometime commenter here, Sean Heeger, has had a restraining order against him extended, has been jailed, and has had his character and sanity impugned for talking publicly about legal abuse. Neil Shelton, who was jailed for a year, alleges his (now ex-)wife’s divorce attorney, a state congresswoman, conspired to frame him as a terrorist to shut him up after he ridiculed her on Facebook for her efforts to frame him for various violations of a restraining order obtained on false grounds (Neil represented himself in six hearings and each time won). Though Neil’s case is extreme, cases like these are exceptional only insofar as the victims of legal abuse have elected to speak out.

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

March 30, 2015June 24, 2023Moderator 12 Comments

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.

First Amendment Rights from Beyond the Grave: Defense of a Suicide’s Publication of His Final Words by the Randazza Legal Group

March 20, 2015August 25, 2023Moderator 33 Comments

“I couldn’t flee and I could not fight. I was never going to be allowed to heal or recover. I wish I were better at articulating the psychological and emotional trauma I experienced. I could fill a book with all the lies and mysterious rulings of the Court. Never have I experienced this kind of pain. I asked for help, but good men did nothing and evil prevailed.”

—Chris Mackney (1968–2013)

An emailed riposte from Las Vegas attorney Marc Randazza was introduced to my attention this week. It was an answer to a move by the “estranged wife” of a man who committed suicide in 2013 to have the man’s suicide note removed from the blog A Voice for Men.

The genesis of this dispute appears to be that Mr. Christopher Hines Machnij a/k/a Christopher Hines Mackney and his estranged wife were in an acrimonious relationship. Due to the strains of that relationship, Mr. Mackney started a blog in order to express his thoughts about his treatment in the family law system. This culminated in a suicide note, which he published to his blog from Washington, D.C., on December 29, 2013, and then he committed suicide on December 29, 2013. His writing and his suicide note were admittedly unflattering to your client. Your client then petitioned a Virginia state court to grant her some ambiguous (and questionable) intellectual property rights to the blog’s contents, which she is using to attempt to purge Mr. Mackney’s expression from every corner possible. One of those corners is my client’s blog.

[…]

It is our position that A Voice for Men’s republication of the suicide note is not copyright infringement, pursuant to 17 U.S.C. § 107. Accordingly, even if Mr. Mackney were to rise from the dead and insist upon the depublication of the suicide note, it is my client’s position that it has a right to continue publication of the letter.

Perusal of Mr. Randazza’s email, which is masterfully composed, is recommended to anyone invested in the right to redress perceived injustices by the public exercise of his or her voice.

Christopher Mackney

I’ve read Mr. Mackney’s “suicide note,” which is neither a manifesto of hate nor a farewell-cruel-world. It’s a supremely calm and sincere apology that’s all the more haunting for its quiet lucidity and resignation.

What Mr. Mackney describes in his final statement (dated four days after Christmas) will be familiar to anyone who’s endured something similar: the isolation, alienation, and paralysis; the mute indifference from anyone who could have intervened; the loss of identity, emotional decay, and financial ruin; and the hopelessness that comes from repeated confirmations that resistance is futile.

The consequences of the court’s intrusion into family and interpersonal matters—and the imposition of its judgment—are seldom viewed with the gravity they deserve.

Much of the debate of issues orbital to the events that prompted Mr. Mackney’s suicide occurs in the abstract. Commentators’ opinions (and they are legion) can rarely be seen to acknowledge the real-life strains and torments that real, live accused people suffer.

What is animating fodder for conversation to some, however, leads others to kill themselves.

*Among Mr. Mackney’s final words are an adjuration to stand up and speak out in defense of the abused (his blog resided at GoodMenDidNothing.com).

Talking Back to Restraining Orders Online: What the First Amendment Says Is Okay

March 1, 2015June 24, 2023Moderator 22 Comments

“If someone puts a restraining order on you, can you write about it online?”

—Google query that brought a visitor here recently

Here are some other search terms that led people to this site last week: “lying to obtain a restraining order,” “false cps reports perjury,” “fake rape restraining order,” “restraining order lie,” “falsely accused of molestation […],” “ex lied on order of protection,” “what happens when a bogus pfa is filed on a police officer[?],” “protection order fraud,” “old restraining order keeping me from coaching,” “ex-girlfriend lied about domestic violence and i lost my career.”

You see why people might be inspired to talk back.

I was introduced last year to how the constitutionally guaranteed right to free speech is qualified. In Chan v. Ellis, an appeal before the Georgia Supreme Court that was brought to my attention, First Amendment privileges are spelled out by two prominent authorities who offered opinions on the case, Profs. Eugene Volokh and Aaron Caplan (the latter a former staff attorney for the American Civil Liberties Union). Their amicus brief opposed the trial court’s issuance of a permanent protection order against Matthew Chan (the appellant) on the grounds that the order exerted an unconstitutional “prior restraint” on Mr. Chan’s lawfully writing about his accuser, Linda Ellis, a self-styled motivational speaker/writer whom Mr. Chan had criticized as a “copyright troll” (someone who threatens to sue people for unsanctioned use of his or her original material).

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.

Succinctly, the First Amendment licenses a person to write about another, including critically, but not necessarily to write to him or her. In other words, you can say things about a person that s/he doesn’t necessarily want to hear; if you say those things to the person, you could be lawfully restrained by the court from continuing.

About a person is okay; to a person may not be.

Qualifiers are that what you say about someone publicly must be true (you can’t lie about someone, i.e., defame him or her), you must not infringe upon his or her privacy (e.g., by revealing his or her medical history), and you must not threaten him or her (i.e., don’t say, “I’m coming to kill you”).

Otherwise, the Constitution says you’re good.

Can a trial court judge, though, blow off the Constitution and come down on you for criticizing someone who obtained a restraining order against you (even by fraud)? Yes, s/he can. Rightly or wrongly, it happens, and lawful has nothing to do with it. Restraining order rulings and those peripheral to them are largely about spin.

(What do I mean by spin? Literally, words—actually expressed or merely alleged—can be represented to and by the court as “harassment,” which may satisfy a state’s statutory definition of “stalking,” which definition may imply sexual molestation. Alleged statements, then, may effectively implicate someone as a sex offender on public record. I wish I were kidding, but I emphatically am not. In a case I recently reviewed, the defendant was said to have committed harassment by “facial gestures.” This exemplifies spin.)

This writer’s thoughts are these:

If you’re presently under a restraining order, exercise informed caution, because anything you say publicly that can be construed as “harassing” may well be interpreted that way by a lower tier judge (these guys are answerable to no one; they do what they want). These posts are about people who were issued restraining orders or show cause orders simply because they wrote about someone: “Restraining Orders and the First Amendment: A Female Blogger’s Successful Appeal of a Restraining Order That Labeled Her a ‘Cyber-Stalker’” and “The Use of Restraining Orders to Bully Women: Jenny’s Story.” Is a judge likely to throw you in jail for merely speaking about someone? No, but there’s no surefire guarantee. What’s strictly lawful and what’s possible are two different things.
There are constitutional grounds to appeal a judgment against you for simply writing about someone. The questions to ask yourself are: How committed are you? Are you up for more court drama? The Constitution is on your side, but reversing a bad judgment requires appealing it to a higher court.
If a restraining order against you has expired, and what you write isn’t false, invasive, or threatening, then you have a strong basis for opposing any further legal action taken against you so long as what you write is about your former accuser and not to him or her (or anyone associated with him or her).

I was sued for writing about someone, and I wasn’t trying to “tell my side”; I wanted to terminate a nasty hoax that had already consumed years of my life. I speculated about my accuser’s motives, and I used a lot of names. I also reported what I knew to be misconduct and applied to a distant family member of my accuser’s (a pastor) to help me effect a resolution. Had I only written in a blog and had I confined what I wrote to facts that couldn’t be represented as invasive or libelous, the court may not have found for my accuser, particularly if I’d had a lawyer to speak for me.

The point of this post is to inform you of your legal rights, and to assert that purveyors of the truth should never have to hide or censor themselves. This is the United States of America, not North Korea. It is not the point of this post, however, to downplay the eagerness of the American court system to deny citizens their rights. If judges weren’t ready and willing to violate citizens’ constitutional entitlements, this blog wouldn’t exist in the first place.

RestrainingOrderAbuse.com Guest Post by Matthew S. Chan, the Appellant in a Restraining Order Case before Georgia’s Highest Court

January 26, 2015January 31, 2018Moderator 32 Comments

Matthew S. Chan is the creator and administrator of ExtortionLetterInfo.com (ELI) and the appellant in the Georgia Supreme Court case Chan v. Ellis.

In my desire to give something back to RestrainingOrderAbuse.com (ROA) for the enormous help, contribution, and insights into my own protective order appeal case with the Georgia Supreme Court that it provided, I found myself a bit stumped as to what to write about that might be helpful and perhaps a bit different from the articles and commentaries I have read on ROA so far. So, if I make some wrong assumptions about ROA, please forgive me as I am a relative newcomer. As a disclaimer, I do not feel qualified to speak specifically on matters of domestic protective/restraining orders as they relate to divorces, custody fights, or other family disputes. I feel those issues are highly volatile, and I don’t have the background to properly discuss them.

What I do feel qualified to speak on, however, are matters that pertain to the First Amendment, free speech, and that speech as it relates to online speech. Whether disputing parties are related or not, the First Amendment, backed by many significant rulings from the U.S. Supreme Court, makes it clear that everyone in the U.S. (including murderers, rapists, robbers, embezzlers, and any other type of criminal you can name) enjoys the right to free speech. That free speech comes with certain exceptions and restrictions as defined by the U.S. Supreme Court.

Some of them are:

Incitement
Defamation (including libel and slander)
Obscenities, such as child pornography
Fighting words

It is almost always legal to engage in speech about someone publicly or privately, unflattering or not. But it is not always acceptable to engage in speech to a person, especially if it is unwanted. In the context of the Internet, you should have the right to speak freely about anything or anyone as long as your speech doesn’t fall within the list of exceptions and restrictions.

And yet, I am hearing more about these underground restraining orders that instruct people to be absolutely silent regarding a certain person or party, i.e., that dictate you cannot speak publicly about that person or party to anyone. That is clearly unconstitutional.

This is an abuse of the protective/restraining order system that frequently happens in courts of local and smaller jurisdictions. It is no surprise that many of these cases involve “pro se” (self-represented) parties, who are more likely to be taken advantage of by an overzealous and overstepping judge. Up to this point, I have stated what most ROA readers already know.

But what then can you do about it? The easy, copout answer is hire a good lawyer. But we all know “pro se” parties represent themselves because they either can’t find a good lawyer or they can’t afford a good lawyer.

Having lived with a protective order for nearly two years, I have found that it largely doesn’t impact my day-to-day existence. I have very little emotional baggage about it. Although my protective order is a matter of public record, it is not easily found, nor is it advertised. However, my accuser chooses to make mine public as a way to get revenge/payback and to embarrass and humiliate me. I don’t feel embarrassed or humiliated at all anymore. I’ve had two years to let it sink in. She went to her local newspaper as well as a photography blog site to publicize my protective order. I am very certain she approached several other media sources, but she only managed to succeed in getting two to write her story. When she went public, I also went public, and I got way more coverage than she did because of the First Amendment issue.

It goes without saying that I became angry about her actions because the “facts” as told by her were incorrect. I was faced with one of two decisions: either slink away silently and live in fear, shame, and embarrassment of the protective order…or speak out and fight back, and tell my story.

An issue I see is that people let little pieces of paper define them, such as high school diplomas, college degrees, technical and professional certifications, their financial statements, their marriage certificate, etc. A basic protective/restraining order is simply a piece of paper that formally instructs someone to stay away and not bother someone. It is a civil issue, not a criminal one. But accusers like to try to criminalize the matter. My accuser loves to do the “stalkie-talkie” routine and likes to refer to me as her “stalker.” I have called her a copyright extortionist even longer. And yet, we have never met, spoken, emailed, text-messaged, snail-mailed, or even faxed. There has never been any contact. Still, she wants to say I am a “stalker” because she currently has a little piece of paper that says “stalking protective order.”

She is attempting to define who I am to whomever will listen. The problem she has is that I don’t buy into it; I have no guilt or shame over it, and I don’t hide from it. And because I am pretty good at explaining the facts of my case and position, only the most gullible or uninformed believe her.

Too many people take things too literally. Too many people are legally ignorant. Too many people do not understand how the judicial system works. Too many people do not understand the realities of the judicial system.

For example, I live in a city where there are overcrowded jails. I don’t think that is unique to the city I live in. I also live in a city where the district attorney and prosecutor’s office has many cases to pursue and a tight budget to do it with. I live in a city where there is an abundance of physical and “harder” crimes such as burglaries, robberies, murders, drug crimes, rapes, etc. In that context, I see the matter of a protective/restraining order (a civil matter) as ranking low in the prosecutorial pecking order.

Generally speaking, protective/restraining orders are designed to prohibit unwanted physical contact and unwanted communications. In my view, unless you have some huge emotional issues or obsessive tendencies towards your accuser, most orders are easy to follow, and they are not unconstitutional.

However, what if you have a restriction on your free speech where you can’t breathe a word about your accuser to anyone? It is certainly problematic on the local level, but it is even more problematic at a state or national level. It is simply unconstitutional, which is my way of saying that it is, in a sense, “illegal.” But some of you might say, what the order says goes. I don’t necessarily agree with that, because illegal contracts are not enforceable. For example, two people agree to do a drug deal. If one person decides to break the rules of the deal, it is unenforceable, because the deal was illegal to begin with. Likewise, an agreement broken by a John to pay a prostitute is unenforceable because it was illegal from the start. I similarly view it as illegal for my accuser to try to have me arrested or fined because I spoke or wrote about her (not to her) on my own website, and I think it would be embarrassing for any public official to dare to find me in violation of the law. That is my truth because I know what I know, but it may not be enough for you.

The sense of right and wrong has to be weighed against the costs of being a silent victim. The ability to overcome fear and ignorance, personal resourcefulness, the urgency to right a wrong, the fortitude to face conflict and risk—these are factors, and they are ones each person must self-assess.

It all begins with introspection and evaluation of whether the fight is “worth it.” In my case, if I had received a “stay away” order for one year, I would have been angry and unhappy, but I probably would never have appealed the order placed upon me. To me, it would have been an easy order to comply with, and I would not have seen it as devastating to my reputation, even if it were made public. The reason is that I know how to tell my story (and I have many times) in an open and authentic way. Certainly, there are some less than flattering reports about me but none worse than what I have seen about others.

I have a larger view of myself in this world. I am not famous, and most people don’t care about me or what I do. I am largely unimportant (to them). I am not a celebrity; I am one of many. But for many, because it happens to them, they think the whole world is actually looking at them and their restraining orders. The truth of the matter is that most people simply don’t care.

In the larger view, famous people have committed all kinds of indiscretions, including having affairs, divorcing, getting into fights, committing DUI’s, doing drugs, getting arrested, soliciting prostitutes, etc. There is a huge list of all the embarrassing things people get themselves into. But the fact of the matter is most of that is small potatoes in the big scheme of things. You think people will shun and hate you, but the reality is, to most, it is trivial. You are just another person who allegedly committed an indiscretion.

You may ask, if I believe it is all small potatoes, why am I fighting so hard against my protective order? There are actually multiple reasons for my current course of action.

My accuser inflamed me. For a woman who is so allegedly afraid of me and my alleged “stalking,” her actions betrayed that she really wasn’t that frightened of me or about whether I would actually cause her any physical harm or endanger her personal safety. She chose to flaunt, brag, and gloat over her “win,” and there was no good purpose in that.

The lawyer who represented her, Elizabeth W. McBride, engaged in unethical tactics like not providing me with a copy of her exhibits so I could examine them closely, while I, a non-lawyer, gave her the professional courtesy of providing an extra copy of mine. When the hearing was over, I both called and emailed the lawyer about getting a preview copy of the protective order. I also wanted to coordinate with her about both of us getting a copy of the courtroom transcript, because it was a shared resource that was agreed upon at the beginning of my hearing. I realized she treated me the way she did because I was not a lawyer and she was trying to cheat me. Because I was opposing counsel, she was required to interact with me on certain matters as she would with another lawyer. She chose not to, and I have remembered this the last two years. One day, I am confident it will come back to bite her.

But the biggest reason I fought back was the outrage that I and others felt that there was a flagrant disregard of the First Amendment as it related to online speech, a total disregard of the actual context of my speech, and a total disregard for Section 230 of the Communications Decency Act, which states that website owners are not responsible for content other users post. These were all points I clearly argued but the judge seemingly ignored.

I saw this as serious misbehavior by the judge and the local court system that could potentially have wide-ranging and long-term consequences to me and any other Georgia website owner. As a matter of disclosure, I do place a great importance on my Internet presence and online activities to my business and reputation. I am a self-employed entrepreneur and business owner who regards the Internet as a hugely important resource to both his personal and business life—probably much more so than the average person who works at a job 40 hours per week for an employer.

For all those reasons, I fought back. But I would be lying if I said there weren’t moments when I wavered. I had moments of weakness, but I also had my anger to prop me up. A lot of my impetus owes to the actions of my adversary and her lawyers. By their actions, they practically taunted and drove me into appealing the case. Because of my anger and sense of injustice, I was galvanized into action.

I want to take the time to point out an important element of my fight-back. It is very helpful to find friends and supporters who understand you, your character, and the type of person you are. Getting moral support from people who will empower and encourage you is motivating. Having “support” from people who are fearful, bashful, risk-averse, cynical, and unwilling is not.

In my life, I believe “like attracts like” and “birds of a feather flock together.” In my case, I have many people around me, people who are independent-minded, self-determined, believe in fighting for a cause (such as free speech) and not letting your enemies get the best of you. And believe it or not, most of my best support actually comes from those I have never met in “real life.” My best support came from “strangers” I have met on the Internet. I have never met or spoken to Todd of ROA and yet, unbeknownst to him, his work on ROA has had a huge influence on my fight.

There are so many layers to the conversation of how to fight back against a wrongful restraining order restricting your right to free speech. There is no way I could get into all the stories, tactics, and strategies, or the mindset involved in my own journey. I will one day write a book on the subject. However, as a guest blogger on ROA, I thought I would share some insights into how my mind works and the mindset that drives me.

I consider myself a victim of protective/restraining order abuse, but I have also chosen to publicly fight back against my accuser and the lower court that allowed the unconstitutional order. Win, lose, or draw, I have no regrets, because my voice is loud and travels far. And I will never let my accuser, a judge, a court, or a piece of paper define who I am. Not as long as I live.

It is that attitude, which has resonated outwards, that I believe helped attract many supporters to my side, including the lawyers who have worked on my (and my position’s) behalf.

Matthew S. Chan is the creator and administrator of ExtortionLetterInfo.com (ELI) and the appellant in Chan v. Ellis, an appeal of a lifetime protection order presently under deliberation by the Georgia Supreme Court.

*Update: The Georgia Supreme Court returned a verdict in favor of Matthew Chan on March 27, 2015.

TALKING BACK to restraining orders

THEY’RE NOT JUST ABUSED BUT ABUSIVE

Tag free speech