The Georgia Supreme Court on Friday overturned a 2013 permanent stalking protective order against a man that runs a website where he primarily criticizes people he believes go overboard in their enforcement of copyright laws.
Matthew Chan won his appeal of the protective order that was granted in Muscogee County for poet Linda Ellis, who sued him over negative postings about her.
Justice Keith Blackwell said the postings may have been "distasteful and crude," but they did not constitute stalking under the law.
According to the ruling from the court, Ellis, who has been the subject of nearly 2,000 posts on Chan's website, is the author of a poem entitled "The Dash," which refers to the dash on a tombstone between one's dates of birth and death.
Ellis routinely sends legal demand letters to parties that violate her copyright by sharing the poem, Chan complained on his website. He went on to say in briefs that her "legal team secretly earn significant income from her copyright letter program."
Ellis sued Chan under Georgia’s stalking statute, which forbids one from making "contact" with another person for the purpose of harassing and intimidating the person without that person’s consent. "Contact" is defined in the statute as any communication "in person, by telephone, by mail, by broadcast, by computer, by computer network, or by any other electronic device," according to the court's release.
The term "harassing and intimidating" is defined in the statute as a "knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family. ," the statute reads.
On March 6, 2013, a Muscogee County trial court granted the protective order, concluding Chan communicated with Ellis via the Internet for the purpose of harassing and intimidating her. Part of the order forbid Chan from posting personal information about Ellis, posting anything in the future about Ellis or directly contacting her.
Chan's appeal to the state court argued the order violated his First Amendment rights by prohibiting him from criticizing her business practices. Specifically, he argued that publishing commentary about another, as opposed to directing communications to another, does not amount to "contact" as the term is used in the stalking statute, according to court documents.
The Georgia Supreme Court agreed, adding "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.
"That a communication is about a particular person does not mean necessarily that it is directed to that person," the opinion stated.
The evidence showed Ellis visited the website and even registered herself as an authorized commentator on the website, the court said.
"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," the court said. "Ellis failed to prove that Chan 'contacted' her without her consent, and the trial court erred when it concluded that Chan had stalked Ellis."
Chan was represented by Oscar Michelen and William McKenney, and Elizabeth McBride was Ellis' attorney.
Here are a few of the posts about Ellis on Chan's website, according to court documents:
In a comment that sarcastically referred to Ellis as an “Internet icon,” Chan wrote Ellis “wanted to be right. Well she is ‘dead’ right now.”
In a lengthy post about Ellis, Chan implied he would publicize embarrassing information about her if she persisted in her copyright enforcement tactics, and noted that he waited too long to shame another “copyright troll” – saying in reference to Ellis, “I will pull that trigger much quicker if need be. And I don’t fight alone.”
In another post about Ellis, Chan referred to his “attack machine” and predicted “there will be some collateral damage to innocents on her side but it doesn’t matter to me. This could mean exposing information on her family members.” In the same posting he wrote, “I’m holding back for a couple of good reasons. One of them is your daughter. Yes, I know a lot about her.”
In addition to posting the name of Ellis’ subdivision of Roswell Downs, as well as the names of her husband and daughter, Chan allowed a posting by someone else entitled, “Matthew Chan visits Linda Ellis’s hometown of Marietta, Georgia,” which included a photo of Ellis’ home. He himself replied in his own posting: “I’m not going to say where exactly in Marietta I was, but let’s just say I was in East Cobb very close to a Kroger grocery store, essentially a short distance from Roswell Downs.”
The website also contained a crude drawing, which Ellis referred to as “sexually explicit,” showing five people not wearing pants and covering their crotches with their hands. A photo of Ellis’s head was photo shopped onto one of the characters, and the caption read: “Never Get Caught With Your Pants Down! Ready...Aim...Fire!”