Georgia Supreme Court: No, Writing Mean Things About Copyright Trolling By Linda Ellis Is Not 'Stalking'

A few years ago, we wrote about a terrible Georgia state court ruling against Matt Chan, the operator of Extortion Letter Info (ELI), a website/forum that has tracked copyright trolling for many years. There had been a number of discussions on the site about Linda Ellis, who is somewhat notorious for her trolling effort. Ellis wrote a poem called "The Dash" that gets reposted a lot online. Ellis and her lawyers then send threat letters, emphasizing the possible $150,000 in statutory damages (yet another example of how statutory damages aid in copyright trolling), before suggesting much lower (but still crazy high) dollar amounts to "settle." While some of the discussions on ELI were overly aggressive towards Ellis, it still seemed ridiculous that the court ordered Chan to remove all content relating to Ellis and to block any future mentions of her.

It seemed rather obvious that this was a pretty clear First Amendment violation, but the court felt that it was okay under Georgia's anti-stalking law. Georgia's Supreme Court has now unanimously reversed the lower court decision, saying that posting mean stuff about someone on a public website is not the same as stalking. The court focuses on the fact that the content posted to ELI wasn't sent directly to Ellis, but rather posted publicly in a place where she could (and, in fact, did) see it. It doesn't even get to the First Amendment issues, focusing just on whether or not this is stalking under Georgia's law:

The limited evidence in the record shows that Chan and others posted a lot of commentary to his website about Ellis, but it fails for the most part to show that the commentary was directed specifically to Ellis as opposed to the public. As written, most of the posts appear to speak to the public, not to Ellis in particular, even if they are about Ellis. And there is no evidence that Chan did anything to cause these posts to be delivered to Ellis or otherwise brought to her attention, notwithstanding that he may have reasonably anticipated that Ellis might come across the posts, just as any member of the Internet-using public might. The publication of commentary directed only to the public generally does not amount to “contact,” as that term is used in OCGA § 16-5-90 (a) (1), and most of the posts about Ellis quite clearly cannot form the basis for a finding that Chan contacted Ellis.

To the extent that a few of the posts may come closer to “contact” — including, for instance, the open letter to Ellis, which Chan may actually have intended as a communication to Ellis — their publication still does not amount to stalking. Even assuming for the sake of argument that Chan “contacted” Ellis by the publication of any posts, the evidence fails to show that such contact was “without [her] consent.” OCGA § 16-5-90 (a) (1). This is not a case in which Chan sent a message to Ellis by electronic mail, linked commentary to her social media account, or posted commentary on her website. To the contrary, the commentary about which Ellis complains was posted on Chan’s website, and Ellis learned of that commentary — that is, it arguably was communicated to her — only as a result of her choice to discover the content of the website. 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.

The only mention of the First Amendment comes in a footnote, in response to the part of the paragraph above, where the court notes that Ellis was not an "unwilling listener" as required under the law, noting that even so, if the speech is protected by the First Amendment, the stalking law wouldn't apply:

Even then, if the speech is protected by the First Amendment, it is excluded from the scope of our stalking law. See OCGA § 16-5-92 (“The provisions of Code Sections 16-5-90 and 16-5-91 shall not apply to persons engaged in activities protected by the Constitution of the United States or of this state . . . .”).

But, by determining that the blog posts are not even stalking, the court avoided that question altogether. Either way, another important victory for free speech online, overturning a bad ruling that would have resulted in serious chilling effects for online speech.

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