You are on page 1of 34

i

IN THE SUPREME COURT


OF GEORGIA


MATTHEW CHAN,
Appellant

v.

LINDA ELLIS,
Appellee.


DOCKET NO.: S14A1652

LOWER COURT NO.:
SU13DM409

COURT OF APPEALS DOCKET
NO: A14A0014




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






ii

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

3

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).

4

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.

14

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,

21

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.

23

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.