SUPPLEMENTAL BRIEF OF AMICUS CURIAE TIMOTHY B. McCORMACK
Respectfully Submitted,
Timothy B. McCormack (Courtesy Admission) WSBA #28074 McCormack Intellectual Property Law Business Law PS 617 Lee St Seattle, WA 98109 p. 206-381-8888 / f. 206-381-1988
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TABLE OF CONTENTS
STATEMENT OF INTEREST ............................................................................... 1 INTRODUCTION .................................................................................................... 1 STANDARD OF REVIEW ..................................................................................... 3 ARGUMENT ............................................................................................................ 4 I. FIRST AMENDMENT DEFENSE FAILS BECAUSE THE LOWER COURTS PROTECTIVE ORDER DOES NOT QUALIFY AS STATE ACTION BECAUSE IT IS BASED ON A CONTENT NEUTAL STATUTE AND BECAUSE IT BALANCES THE RIGHTS OF TWO PRIVATE PARTIES AND THEREFORE DOES NOT REPRESENT A GOVERMENTAL RESTRICTION ON SPEECH. .............................................................................................................. 4 II. ELLIS HAS A RIGHT TO BE FREE OF FEAR. ..................................... 7 III. APPELLANTS CHANS SPEECH IS NOT PROTECTED SPEECH BECAUSE IT IS TRUE THREATS. ............................................................ 9 A. Significant Evidence Of Threats, Fear, & Intimidation In The Trial Court. ................................................................................................ 9 B. The Restraining Order Is Valid Because Chans Activity, Threats, Intimidation, & Stalking Are Not Protected Speech. .................15 C. Chan Waived His First Amendment Protections Because He Was Convicted Of Stalking ....................................................................17 D. The Communications Decency Act Does Not Protect Chans Activities Because He Actively Contributes In The Offensive Postings. .........................................................................................18 IV. THE ORDER IS PROPER BECAUSE IT LEAVES OPEN OTHER FORMS OF COMMUNICATION.............................................................. 23 CONCLUSION .......................................................................................................25 iii
TABLE OF AUTHORITIES Cases Brentwood Acad. v. Tenn. Secondary Sch. Athletic Assn, 531 U.S. 288 (2001)..5 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)......20 F.T.C. v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009) .......19 Fly v. State, 229 Ga.App. 374 (1997) .................................16 McGuire v. Reilly, 386 F.3d 45 (1st Cir., 2004)....5, 6 Perry Educ. Assn v. Perry Local Educators Assn, 460 U.S. 37 (1983).......23 Pilcher v. Stribling, 282 Ga. 166 (2007)...3 Rawcliffe v. Rawcliffe, 283 Ga.App. 264 (2007)...3, 4 S.C. v. Dirty World, WL 3335284 (W.D. Mo., March 12, 2012)....21 State v. Hemmingway, 345 Wis.2d 297 (Ct. App. Wis. 2012)7, 16 Quinby v. Rausch, 300 Ga.App. 424 (2009)......3, 4 United States v. OBrien, 391 U.S. 367 (1968).......23 iv
Virginia v. Black, 538 U.S. 343 (2003).......17 Statutes 47 U.S.C. 223....18 O.C.G.A. 16-5-90......10 O.C.G.A. 17-14-31....17 Other Sources Beth Bjerregaard, Stalking and the First Amendment: A Constitutional Analysis of State Stalking Laws, 32 CRIM. L. BULL. 307 (1996)....16
Charlotte Chang, Internet Safety Survey: Who Will Protect The Children?, 25 BERKELEY TECH. L.J. 501, 515-16 (2010)........8
David Streitfeld, European Court Lets Users Erase Records on Web, NY Times, May 13, 2014, http://www.nytimes.com/2014/05/14/technology/google-should- erase-web-links-to-some-personal-data-europes-highest-court- says.html?_r=0.................................................................20
Davis Walsh, All A Twitter: Social Networking, College Athletes, and the First Amendment, 20 WM. & MARY BILL RTS. J. 619 (2011)..23
Stephen Durden & David Ray, Litter or Literature: Does The First Amendment Protect Littering of Neighborhoods?, 26 STETSON L. REV. 837 (1997)..24 1
STATEMENT OF INTEREST Pursuant to Rule 23, Mr. Timothy B. McCormack 1 hereby submits this Supplemental Brief of Amicus Curiae in support of Appellee Linda Ellis (Ellis), himself, and McCormack Intellectual Property Law P.S. as interested parties. Mr. McCormack is an attorney licensed in the State of Washington and other state and federal courts. Mr. McCormack was discussed during the February 28, 2013 trial court hearing. Like Ellis, Mr. McCormack, his firm, and employees are also targets of the threatening posts on the website at issue. INTRODUCTION This Amicus Brief argues for the safety of Ellis and others like her, under state and federal law. The issues that drive this case are simple: Whether Internet- based harassment campaigns, like the one waged against Ellis, can put someone in reasonable fear for their safety? The answer is an easy yes. Likewise, whether the lower courts simple directive to Appellant Matthew Chan (Chan) to leave Ellis alone is legal? This is also an easy yes.
1 Although they are interested, other similarly situated and targeted individuals were unwilling to submit Amicus Briefs in this matter due to fear of retaliation. 2
Internet harassment is illegal, regardless of physical proximity, to help reduce anti-social and dangerous behavior. The First Amendment is not a free ticket to threaten people. Appellant Matthew Chan, the subject of the permanent restraining order, is the co-founder of the notorious ExtortionLetterInfo.com website (referred to as Chans Extortion Website). ExtortionLetterInfo.com and its administrative volunteers / employees (including Chan) have a documented history of Internet- based harassment campaigns. See PLAINTIFFS EXHIBIT 4 - AFFIDAVIT OF ATTORNEY TIMOTHY B. MCCORMACK 5 11. Although Chan attempts to cloak himself in sheeps wool, the First Amendment, and the Communications Decency Act, he actually characterizes his actions as Internet SCAR tactics (Strategic Complaints Attacks & Retaliation). 2
2 Contrary to Appellants November 13, 2013 Brief, Chan does state, Remember, one of the strongest ways to get them off is to hit back very hard where it counts using the SB-AG SCAR (Strategic Complaint / Attorney Retaliation) attack. See EXH. 1 e.g.: http://www.extortionletterinfo.com/forum/getty-images-letter-forum/photo- attorney-leslie-j-burns-settlement-demand-letter-for-phototake/ (posted May 24, 2012). Chan has done this to at least 72 individuals and companies. An Internet version of SLAPP lawsuits, Chan encourages people without all the facts to file SCUM complaints (Strategic Complaints for Ulterior Motive) with local regulatory bodies, such as the Attorney General and District Attorneys offices to hurt the
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Matthew Chan is not a sheep. He is a wolf using Internet-based Search Engine Optimization (SEO) as a weapon for his self-proclaimed SCAR tactics. Labeling Chan a wolf is apropos because his most popular SCAR tactic is what can be termed a WOLF attack (Worldwide Offensive Libel Fight) where he posts offensive content about an opposing party attempting to ruin their reputation and waive their legal claim. Cases most similar to this situation show Chans behavior is more egregious than your typical stalking or defamation case because he takes it worldwide using Internet SEO technology to intimidate and harass individuals globally. STANDARD OF REVIEW This Court should review the trial courts decision under an abuse of discretion standard when reviewing the issuance of permanent restraining order. Quinby v. Rausch, 300 Ga.App. 424, 424 (2009) (citing Rawcliffe v. Rawcliffe, 283 Ga.App. 264, 265 (2007)); Pilcher v. Stribling, 282 Ga. 166 (2007). The evidence must be viewed in the light most favorable to the trial court. Quinby, 300
pride and embarrass the attorney more than anything else. See www.extortionletterinfo.com/forum/getty-images-letter-forum/getty-images-and- complaints-filed-with-the-washington-state-attorney-general (posted July 28, 2012).
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Ga. App. at 425. It is not this Courts function to second-guess the trial court in cases such as this, which turn largely on questions of credibility and judgments. The trial court is in the best position to make determinations on these issues, and we will not overrule its judgment if there is any reasonable evidence to support it. Id. (citing Rawcliffe, 283 Ga.App. at 265). During a full hearing on February 28, 2013, lasting an estimated 4 to 6 hours, the trial court listened to the live testimony of both Ellis and Chan, weighed the credibility of the parties that it heard first-hand, and found that Chan put Ellis in reasonable fear of her safety. See generally TRANSCRIPT OF HEARING, February 28, 2013; PERMANENT RESTRAINING ORDER, dated March 4, 2013. ARGUMENT I. FIRST AMENDMENT DEFENSE FAILS BECAUSE THE LOWER COURTS PROTECTIVE ORDER DOES NOT QUALIFY AS STATE ACTION BECAUSE IT IS BASED ON A CONTENT NEUTAL STATUTE AND BECAUSE IT BALANCES THE RIGHTS OF TWO PRIVATE PARTIES AND THEREFORE DOES NOT REPRESENT A GOVERMENTAL RESTRICTION ON SPEECH.
Appellants argument fails as a matter of law because an essential element of First Amendment defense has not been established. Amici, parties, and other counsel, have been distracted by the interesting quagmire and history of First 5
Amendment law, which will be discussed starting on page 9 of this Brief. Cutting to the heart of the matter, this appeal should be dismissed: because there is no state action present in Chans First Amendment claim a necessary element to invoke a First Amendment defense [O]nly the government can violate First Amendment rights: every First Amendment claim thus requires state action. McGuire v. Reilly, 386 F.3d 45, 60 (1st Cir., 2004) (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic Assn, 531 U.S. 288, 295 (2001)). Similar to this appeal, [t]here is no state action if what the plaintiff is really aiming at are the acts of private persons that are actually illegal under the statutory scheme, because then the acts do not reflect the policy of the state. Id. (emphasis added). When the claim is that a content neutral statute (like the Georgia anti- stalking statute at issue) is unconstitutional as applied merely because private persons are engaging in acts that are illegal under the statute, their claim has nothing to do with the statute at all and they cannot bring it because there is no state action. Id. (emphasis added). 6
To invoke the Constitution, one must demonstrate that statute was applied selectively since the essence of a viewpoint discrimination claim is that the government has preferred the message of one speaker over another. Id. at 61-62. One event (like the Protective Order issued in this case) is insufficient to establish a constitutional law claim, since in order to win a viewpoint discriminatory enforcement challenge against a law that is facially neutral, the challenger would need to show a pattern of unlawful favoritism. Id. at p. 64 (internal citations omitted). Here, Appellant and his Amici admit the Georgia stalking statute is content neutral. REF. NO. 77256, BRIEF OF AMICUS CURIAE ELECTRONIC FRONTIER FOUNDATION, entered September 5, 2014, p. 2. The trial courts enforcement of a content-neutral statute does not amount to a government action because this matter only involves the acts between two private persons. 3 It is simply an example of how the Georgia anti-stalking statute adversely affects Chan over Ellis. There is no
3 As much as Appellant attempts to create a public persona or public issue of Ellis and his comments on her legal claims, they are truly private legal actions by a private person. Ellis has not publicly posted, reported, commented, or otherwise injected herself into the public arena. 7
pattern of unlawful favoritism. Therefore, Chans First Amendment arguments must fail as a matter of law. II. ELLIS HAS A RIGHT TO BE FREE OF FEAR.
Much attention has been paid to Appellant Chans rights. The real issue, however, is what are Appellee Ellis rights? Ellis, and others like her, have the right to be free of fear: fear of retaliation, fear of harm, and fear of stalking. Ellis has the right to live a peaceful life. Courts recognize that constitutional challenges cannot completely ignore [the victims] rights, which certainly must figure in the balance of an ordered society. See e.g. State v. Hemmingway, 345 Wis.2d 297, 302 (Ct. App. Wis. 2012)(internal citations omitted). Chan, by and through his website and physical manifestations of those postings, has made Ellis a target of stalking, harassment, ridicule, and fear. With all rights, there are responsibilities. For example, the Second Amendment grants people the right to bear arms, but they have the responsibility to handle those guns safely and not waive them around in crowded areas. Chans speech on ExtortionLetterInfo.com is done without any consideration of his responsibilities and the outcome it may have. Chans speech directed at Ellis instigates people to stalk her and causes her fear. It is like brandishing a weapon in a crowded chat 8
room. For that reason, Chans speech is not protected by the First Amendment and this Court should set aside Chans constitutional smoke and mirrors. This Court must also consider Ellis rights and prevent them from being trampled. Although Chan targeted an adult, he also targeted Ellis daughter. Cyberbullying has a significant negative impact on this countrys youth. Studies show that cyberbullying is more frequent than threats that minors face online and offline, with 15-20% of students being regular victims of bullying behavior. Charlotte Chang, Internet Safety Survey: Who Will Protect The Children?, 25 BERKELEY TECH. L.J. 501, 515-16 (2010). Bullied children are more likely to be anxious and consider suicide. Id. at p. 516. These psychological effects of bullying are long lasting into adulthood where male young adults were likely to suffer from low self-esteem and depression a decade after the bullying ended. Id. This Courts determinations on what speech is appropriate in online forums will have a direct impact on the activities and emotional health of todays youth and tomorrows adults. // // 9
III. APPELLANTS CHANS SPEECH IS NOT PROTECTED SPEECH BECAUSE IT IS TRUE THREATS. 4
Chan admits he has used his website to intimidate Ellis and the trial court has found there is no constitutionally protected right to use the website in that manner. HEARING TRANSCRIPT, p. 123, lines 3-7. Chans stalking and threatening speech is not protected by the First Amendment. The trial court had ample evidence of such threats and testimony of Ellis fear. Since Chan himself posts the threatening content, he cannot hide behind the safe harbor provision of the Communications Decency Act. A. Significant Evidence Of Threats, Fear, & Intimidation In The Trial Court. Chan began targeting Ellis in June 2012. HEARING TRANSCRIPT, p. 85, lines 7-12. 5 Photographs of Ellis home appeared on Chans Extortion Website in December 2012. Id., p. 37, line 1. Despite the Temporary Restraining Order, Chan refused to remove the posts and they remained visible. Id. at p. 51. The targeted attack on Ellis has been ongoing for over two years, not to mention the attacks on
4 We raise the following First Amendment and Communications Decency Act arguments in the alternative, assuming arguendo, the Court reviews Chans postings under the First Amendment. 5 Chan has targeted other women, including an attorney named Julie. See Transcript, p. 23, lines 15-16. Chan called Ellis employees female fiance while he was known to be out of town. Transcript, p. 76, lines 15-19. 10
others such as Timothy B. McCormack, his office staff, and others. See generally Id. Chans speech is prohibited under O.C.G.A. 16-5-90 because Chan used the website to speak directly to Ellis and intended her to read it. Chans speech was not merely about Ellis as Appellant would have the Court believe. Chan directly posts himself on the website forums. Id., p. 13, lines 8-9. Chan believed Ellis saw the posts and intended her to do so. Id., p. 30, line 15. Chan testified he knew there were posts that would be hurtful. Id., p. 33, lines 3-4. Such threatening posts by Chan himself include: Linda wanted to be right. Well she is dead right now. Id., p. 21, line 24. Maybe she [Ellis] will understand potential consequences to her personally and that Chan will pull that trigger. Id., p. 23, lines 5-6, 13. There are people who hate you [Ellis] and looking to put you in the ground. Id., p. 30, lines 3-4. Chan mailed a letter to Ellis from ExtortionLetterInfo.com characterized as a ransom note Id., p. 62, lines 13-18. Under the heading Collateral Damage Chan states he, predict[s] there will be some collateral damage to innocents on her [Ellis] side, but it doesnt matter to me. This could mean exposing information on her family members. Id., 11
p. 27, lines 2-5. Chan then posted information about Ellis family to let her know I [Chan] mean business. Id., p. 31, lines 7-19. Such information included where Ellis lived and where her daughter lived and worked. Id., p. 31, lines 23-25. Chan also talks about Personal Revenge to Ellis, stating I [Chan] absolutely believe in revenge and paybackI am capable of many thingsI dont ever want anyone to push me too far. Id., p. 27, lines 8-13. It wouldnt take much to push me [Chan] over the edge on this [referencing the information posted about her family and daughter]. Id., p. 32, lines 17-18. Chans seriousness was verified when he stated, "If anyone knows me and how I operate, this is no bluff. Id., p. 37, lines 18-19. Once you get the attack machine going using the resources that I do, it will be hard to stop it without a great deal of effort. Id., p. 26, lines 19-21. Chan characterizes his website community as a military culture using words like collateral damage, and attack. Id., pp. 91-92, lines 25-2. It is apparent that Chan got the attack machine going by visiting Ellis home. Chan went to Ellis hometown of Marietta, Georgia and posted about the visit, stating, lets just say I was in East Cobb very close to a Kroger grocery 12
store, essentially a short distance from Roswell Downs. Id., p. 35, lines 19-21. 6
Chan has been to Ellis home on surveillance. Id., p. 63, lines 18-21. Chan also says he is coming to Ellis home with high powered lens cameras, video cameras. Id., p. 64, lines 10-11. Chan also represents to exert significant control over readers of Chans Extortion Website. Chan, via his website, calls himself a cult leader. Id., p. 15, line 4-6. Chan does not fight alone Id., p. 23, line 21. Chan writes that he can convince the most intelligent, self-determined and self-motivated person to blindly followany public suggestion I might make. Id., pp. 20-21, lines 24-2 (quoting Open Letter to McCormack on ExtortionLetterInfo.com). It is apparent this is the case since in Seattle, Washington thousands of miles away, Timothy McCormacks home was vandalized as a believed result of the information on Chans Extortion Website. Id., p 45, line 23. 7
6 Roswell Downs is Ellis subdivision, which readers of extortionletterinfo.com know based on Chans disclosure of that information. Id., p. 31, lines 7-19. 7 Chan himself posted comments about Mr. McCormack personally. HEARING TRANSCRIPT, p. 50, line 6-8. 13
Even during the hearing, Chan is unable to maintain emotional control, admitting that he got angered, irritated, and that the Ellis lawsuit (that he was not involved in) made him crazy. HEARING TRANSCRIPT, p. 41, lines 8-9; p. 43, line 24; & p. 44, line 9. Chan himself posts specific threats of death to Ellis. Chan, the self- characterized cult leader, uses such posts to convince intelligent people to blindly follow public suggestions. It is amongst this military culture on Chans Extortion Website that the Court must view his statements and consider Ellis fear. Ellis testified in detail about why she was scared for herself and her daughter due to Chans posts and those posts that Chan refused to remove, 8
testifying: Q. Why? Why is that so scary for you? A. Because of the threats he's made saying that I'm dead, putting me in front of a firing line. My mother's in tears when there's a car parked outside my home. We're afraid to go inside. We have the shades
8 Such posts include: Ellis, get ready, we are coming after you, exclamation, exclamation HEARING TRANSCRIPT, p 55, line 4-6. There is also a song about Ellis titled The Hearse Song next to the words we are coming after you that Chan refuses to remove. Id. p. 56, lines 12-14; p. 57, lines 9-11. Lyrics of the song include, you are the next to die. Id., p. 66, lines 1-2. Chan knows of the song because he later comments on it. Id., p 61, line 14.
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drawn. I take these threats seriously. If he says they're tongue-in- cheek, there's no way for others that follow him, nor myself to know those are tongue-in-cheek. They're not made as a comedy. They're direct threats to me and my safety and my child.
HEARING TRANSCRIPT, p. 54, lines 15-23.
Ellis further testified that she felt these posts were death threats. Id., p. 65, lines 10-15. Ellis was in so much fear that she contacted the police, the Federal Bureau of Investigation, and the Georgia Bureau of Investigation and they contacted Chan as a result. Id., p. 67, lines 10-16. Chans close proximity to Ellis home increases the likelihood that these digital threats will become physical manifestations of violence and supports Ellis reasonable fear. Chan resides in Columbus, Georgia. Id., p. 82, line 2.Chan knows that Ellis home is 130 miles away. Its two hours away. Id., p. 94, lines 15-16. He has gone so far as to calculate that it would take him four hours minimum round trip, if I [Chan] decide to go up there and then come right back. Id., p. 94, lines 16-18. Based on the extensive written record and the lengthy hearing, the trial court found that: (1) Ellis and her family had a reasonable fear for safety; (2) Chan 15
harassed Ellis and placed her in fear for her safety; and (3) Chan and his websites conduct is not constitutionally protected. HEARING TRANSCRIPT at pp. 120-122; PERMANENT RESTRAINING ORDER, dated March 4, 2013. B. The Restraining Order Is Valid Because Chans Activity, Threats, Intimidation, & Stalking Are Not Protected Speech.
The First Amendment does not protect Chans threatening activity. Therefore, even a content-based restriction is permissible. Chans postings listed supra, including his threats to pull the trigger and put her in the ground, physically manifested themselves by his surveillance visits to Ellis home and calls to her employees personal phone. These activities fit squarely into the category of true threats. 9 Chans words are part of a course of stalking conduct. Chan was on notice that Ellis was in fear and he intended her to be in fear. Stalking statutes serve significant and substantial state interests by providing law enforcement officials with a means of intervention in potentially dangerous situations before actual violence occurs, and it enables citizens to
9 A detailed analysis of Chans true threats was presented in the prior Amicus Brief. REF. NO. 77056, BRIEF OF AMICUS CURIAE MCCORMACK, entered August 25, 2014, pp. 10-16. 16
protect themselves from recurring intimidation, fear-provoking conduct and physical violence. State v. Hemmingway, 345 Wis.2d 297, 301-02 (Ct. App. Wis., 2012). Unlike forms of speech that have a history of constitutional protection, like picketing, stalking provides no social benefit, but instead contributes to fear and violence. Id. (internal citations omitted). It is long held that the First Amendment does not protect an illegal course of conduct merely because the conduct was in part initiated, evidenced, or carried out by means of language. Id. at p. 306-08 (internal citations omitted). Numerous states, including Georgia, have upheld stalking statutes because the regulated conduct is not protected by the First Amendment. Id. at p. 310, fn. 4 (listing nationwide citations, including Fly v. State, 229 Ga.App. 374 (1997)); see also Beth Bjerregaard, Stalking and the First Amendment: A Constitutional Analysis of State Stalking Laws, 32 CRIM. L. BULL. 307 (1996). Here, Chan used the internet as a tool in his arsenal to create fear and intimidation in Ellis. Chan then took those words into action by driving by her house in surveillance, visiting her neighborhood, and calling her employees personal phones. Chans words are merely part of his ongoing course of staking 17
conduct that he knew caused Ellis fear and as such are not protected by the First Amendment. Contrary to Appellants Supplemental Brief, his actions are unlike the protected speech of Virginia. Although Virginia noted that not all cross-burnings had an intent to intimidate, those that did have an intent to intimidate were not protected by the First Amendment. Virginia v. Black, 538 U.S. 343, 363, 366 (2003)(emphasis added). Here, Chans postings about Ellis and others are all done with an intent to intimidate and create fear in the reader. It is Chans intention to create this fear that causes it to lack First Amendment protection. C. Chan Waived His First Amendment Protections Because He Was Convicted Of Stalking
Chan has violated the stalking statutes of Georgia. See HEARING TRANSCRIPT, pp. 120-123 (court findings). Since he has been found to violate the stalking statute, Chan has waived his First Amendment protections of such activity, including the speech he implemented in his stalking activities. Georgia law prohibits convicted people from profiting from the reenactment of their crime. O.C.G.A. 17-14-31, et. seq. Chans threats, stalking, and harassment are his business. During the hearing, Chan admitted that an ELI visitor, Peter Burwash, 18
hired him at a fee of $300 to conduct some public relations work, which included posting offensive and derogatory comments against Ellis to motivate[e] Linda [Ellis] to settle the case. HEARING TRANSCRIPT at p. 25, lines 14-22. This business was conducted with the intention of making Ellis settle a legal claim. Id. at p. 25, lines 21-22. Chans speech discussing such stalking activities of Ellis is rightfully prohibited since he uses it to conduct his business of intimidating people into legal settlements, providing support phone calls, and writing books about such activities, all at a price. Chan should not be allowed to profit from reenacting and discussing his illegal activities. Chan waived his First Amendment protections, if any, when he put Ellis in reasonable fear of her safety. D. The Communications Decency Act Does Not Protect Chans Activities Because He Actively Contributes In The Offensive Postings.
Chans Internet harassment also violates federal law. The Communications Decency Act (CDA) prohibits the anonymous utilization of a telecommunications device, including the Internet, with the intent to annoy. 47 U.S.C. 223. There is a safe harbor for interactive computer services. Id. at 230. As detailed in the prior 19
Amicus Brief, 10 this safe harbor provision is inapplicable because Chan actively contributes to the offensive postings. See F.T.C. v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009) (holding that the website operator knowingly sought to transform virtually unknown information into a publicly available commodity and was responsible for the creation of the offensive content by developing and converting confidential telephone records into public information by soliciting and paying for such information). Appellant claims that his postings were not defamatory and therefore protected by the CDA. SUPP. BRIEF OF APPELLANT TO AMICUS, November 13, 2013, p. 10. Contrary to Appellants argument, there are numerous examples in the record of the defamatory nature of his posts and threatening activity, including but not limited to those referenced in Section III. A., supra. Contrary to Appellants claims, Chan did charge a fee for his harassment services and knowingly turned virtually unknown information (Ellis home address, family names, and daughters workplace) to public information. HEARING TRANSCRIPT at p. 25.
10 REF. NO. 77056, BRIEF OF AMICUS CURIAE MCCORMACK, entered August 25, 2014, pp. 18-25. 20
Appellant cites to Cox Broadcasting Corp. v. Cohn, in support of his belief that he can post public information to the website. SUPP. BRIEF OF APPELLANT TO AMICUS, November 13, 2013, p. 11. In Cox, a reporter with a local news station obtained the name of a 17-year-old rape victim from documents reviewed in open court and published her name in his news report. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). The report was not made with an intent to intimidate, harass, or cause fear in the rape victim or her family and could not be prohibited under the First Amendment since it was based on information publicly available to the reporter. Id. Unlike the Cox case cited by Appellant, Chan released such information with the intent to intimidate, harass, and cause fear to Ellis. The First Amendment does not protect Chans posting of public information. Technology has also significantly changed since the Cox case in 1975. Now, postings made on the Internet are next to impossible to erase. Unlike one news report on a local television station that occurs once, postings on the Internet are repeated over and over as each post is accessed by multiple users over the course of months and years. 11
11 The European Union has recently recognized that individuals have a right to have content removed from search engines after a period of time. David Streitfeld,
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Although Appellant attempts to argue otherwise, this case is more like the cases where CDA immunity is void due to Chans encouragement and his own postings of offensive content. SUPP. BRIEF OF APPELLANT TO AMICUS, November 13, 2013, p. 12. Appellant cites to S.C. v. Dirty World, in support of its argument that Chans editorial actions do not raise to the level to void CDA immunity. Id. In S.C., the case involved one offensive post about a woman commenting on her large teeth, stating her gumlines [sic] as big as her teeth, thats amazing. S.C. v. Dirty World, WL 3335284 at *1, (W.D. Mo., March 12, 2012). The S.C. court found that this one line of post by the editor was not sufficient encouragement of the offensive content to void CDA immunity. Id. at * 3. The S.C. court explained that if the editor had made several other comments and refused to remove the posts, that the CDA immunity would likely be void as it was in other cases. Id. at *4. Unlike S.C., Chan has encouraged the hateful postings by contributing to these posts multiple times (not once like in S.C.), writing of his visitation to Ellis locale, and taking money for his intimidation services. Chan admits he opened up
European Court Lets Users Erase Records on Web, NY Times, May 13, 2014, (visible at http://www.nytimes.com/2014/05/14/technology/google-should-erase- web-links-to-some-personal-data-europes-highest-court-says.html?_r=0) (last visited September 9, 2014). 22
a dedicated discussion forum [about Ellis] to solicit information and invite discussion ELI [Chans Extortion Website] reported and commented on [Ellis letters] and continues to do so until today. HEARING TRANSCRIPT at 85, lines 11- 13, 19-21. Chan is proud to say, that I myself have engaged in many of [the euphemisms, slang, and other forum topics].Theres name calling, theres insults and profanity. I admit Ive done my share of that. Id. at 92, lines 14-20. Chan continues, [t]here are 20,000 postsclearly I wrote some of those, theres no question. Id. at 110. Including the post, there are people who hate you [Ellis] and looking to put you in the ground.I [Chan] wrote it. Id. at 30, lines 3-7. Chan has even written an open letter to Ellis posted on his Extortion website. Id. at 63, lines 2-5. Chans failure to remove the posts, unlike S.C., also voids his alleged CDA immunity. Id. at p. 37, lines 5-12 (stating, there has been no deletionsintentionally). This activity is clearly in violation of the Communications Decency Act, other civil and criminal laws, and is not protected by the First Amendment.
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IV. THE ORDER IS PROPER BECAUSE IT LEAVES OPEN OTHER FORMS OF COMMUNICATION.
The Order focuses on the exact mode of stalking via Chans Extortion Website and does not prohibit all of Chans speech rights. In other words, the modality of Chans threats and harassment is his website, ExtortionLetterInfo.com. Assuming arguendo, Chans speech is protected speech, the Order is proper because it is reasonably limited, content-neutral, and leaves open alternative avenues of communication. The validity of time, place, and manner restrictions are reviewed based on intermediate scrutiny and must be content neutral, narrowly tailored, serve a significant government interest, and leave open other channels of communication. See United States v. OBrien, 391 U.S. 367 (1968); Perry Educ. Assn v. Perry Local Educators Assn, 460 U.S. 37 (1983). The Restraining Order is valid because it survives the four prongs of intermediate scrutiny, 12 but here we will focus on the alternative means of communication that remain. Minor restrictions that leave other avenues of communication are reasonable under First Amendment law. See Davis Walsh, All
12 See McCormack Amicus Brief for full discussion. REF. NO. 77056, BRIEF OF AMICUS CURIAE MCCORMACK, entered August 25, 2014, pp. 16-18. 24
A Twitter: Social Networking, College Athletes, and the First Amendment, 20 WM. & MARY BILL RTS. J. 619 (2011)(restricting college athletes postings on Twitter but allowing alternative social media outlets likely leaves open adequate avenues of communication); Stephen Durden & David Ray, Litter or Literature: Does The First Amendment Protect Littering of Neighborhoods?, 26 STETSON L. REV. 837 (1997)(noting other avenues of communication, such as free papers, handbill distribution, and brochure distribution). Whether a restriction leaves open alternative channels, is easy to apply in this case. The Restraining Order is limited to Chans Extortion Website. Chan has other channels of communication open. Chan can stand on a soapbox in Hyde Park. Chan can post on other Internet websites and forums. Chan can print brochures, handbills, and flyers. Chans speech has obviously not been restricted since he already moved the Ellis content to another website. 13
Chan is also free to talk about anyone else, copyright generally, and other matters discussed on Chans Extortion Website. There are 1,900 posts in the Ellis designated forum out of 14,200 posts total. HEARING TRANSCRIPT, p. 96, lines 20- 22. In the grand scheme of Chans Extortion Website, this is a small percentage of
13 Whether this activity violates the Protective Order has not been litigated yet. 25
posts to limit. Chan has ample alternative avenues to talk about Ellis (although one wonders why he cannot let her go). Like the limited ban on Twitter applied to college athletes, the alternative avenues of communication open to Chan make the Order reasonably limited to survive intermediate scrutiny. CONCLUSION The trial courts order should be upheld on appeal. We urge this Court to consider Ellis rights and whether we want to live in a world of fear, threats, and intimidation running rampant on the Internet. There must be a line drawn about behavior that is acceptable to protect our children, Ellis daughter, and tomorrows adults. There is no state actor to support a First Amendment claim. Stalking statutes have an important role in ensuring an orderly society and protecting people from harm. The First Amendment does not protect speech that is merely part of illegal conduct, such as stalking. Since Chans verbal threats went into the physical world, his conduct is properly restricted under the Georgia stalking statute. The trial courts application of that statute fails to rise to the level of government action 26
required to invoke the First Amendment since it is limited to a dispute between two individuals and is not a pattern of conduct. Even if Chans posts are somehow considered under the First Amendment, the Protective Order is limited to speech about Ellis on a particular website, leaving open ample other avenues of communication, including other websites and printed materials. The trial court cannot be expected to comb through 14,000 posts to determine which are inappropriate. Chan knew where the line was and intentionally chose to cross it, which violated the stalking law and voided any First Amendment protection Chan may have had. Chans personal actions and posts also violate the Communications Decency Act since they are continuous and extensive offensive postings intended to harass, intimidate, and cause fear. They are the exact type of communication that the CDA is designed to prohibit. We encourage the Court to draw a bright line making it clear to Chan and others that this behavior has no place in civil society, on the Internet or elsewhere. Respectfully submitted this 17th day of September 2014. _/s/ Timothy B. McCormack_______ Timothy B. McCormack Pro Hac Vice Admission 27
WSBA #28074 McCormack Intellectual Property Law Business Law PS 617 Lee St Seattle, WA 98109 p. 206-381-8888 / f. 206-381-1988 tim@McCormackLegal.com
28
CERTIFICATE OF SERVICE
This is to certify that pursuant to Rule 14 of the Rules For The Supreme Court Of Georgia, I have this date served a copy of the foregoing SUPPLEMENTAL BRIEF OF AMICUS CURIAE TIMOTHY B. McCORMACK by depositing a copy of the same in the United States Mail with sufficient postage attached to insure delivery to the following: Oscar Michelen Counsel for Appellant Cuomo LLC 9 East 38th St. New York, NY 10016 William J. McKenney Counsel for Appellant McKenney & Froelich 50 Polk Street NW Marietta, GA 30064 Elizabeth McBride Counsel for Appellee Page, Scranton, Sprouse, Tucker & Ford, P.C. P.O. Box 1199 Columbus, GA 31902 Darren Summerville Summerville Moore, P.C. 400 Colony Sq., Ste. 2000 1201 Peachtree Street, NE Atlanta, GA 30361 Leighton Moore Summerville Moore, P.C. 400 Colony Sq., Ste. 2000 1201 Peachtree Street, NE Atlanta, GA 30361 Eugene Volokh UCLA School of Law First Amendment Amicus Brief Clinic 405 Hilgard Ave. Los Angeles, CA 90095
DATED this 17th day of September, 2014.
_/s/ Timothy B. McCormack_____ Timothy B. McCormack WSBA #28074 McCormack Intellectual Property Law Business Law PS 617 Lee St, Seattle, WA 98109 p. 206-381-8888 / f. 206-381-1988 tim@McCormackLegal.com EXHIBIT 1
Contrary to Mr. Michelens Supplemental Brief, Mr. Chan did coin the phrase SB-AG SCAR (Strategic Complaint / Attorney Retaliation) attack as shown above.