IN THE SUPREME COURT OF THE STATE OF GEORGIA

MATTHEW CHAN, )
Appellant, ) Docket No.:
) S14A1652
-against- )
) Lower Court No.:
LINDA ELLIS, ) SU13DM409
Appellee.




SUPPLEMENTAL BRIEF OF APPELLANT IN RESPONSE TO
SECOND AMICUS CURIAE BRIEF OF TIMOTHY B. MCCORMACK



Respectfully Submitted,
Oscar Michelen
(Courtesy Admission)
NY State Bar No.: 2058477
CUOMO LLC
9 East 38
th
Street
New York, NY 10016

William J. McKenney
GA State Bar No.: 494725
MCKENNEY & FROEHLICH
50 Polk Street NW
Marietta, GA 30064
i

TABLE OF CONTENTS

Table of Citations ……………………………………………………… ii
I. Preliminary Statement ……………………………………………….. 1
II. Discussion of Facts …………………………………………………. 1
II. Argument and Citation of Authorities ………………….…………... 2
A. THE US SUPREME COURT HAS ANALYZED CIVIL INJUNCTIONS
BETWEEN PRIVATE LITIGANTS AS PRIOR RESTRAINTS ON SPEECH ………..... 2


B. BECAUSE APPELLANT’S POSTS ARE NOT “TRUE THREATS” THEY
ARE PROTECTED BY FEDERAL LAW AND WERE THE SUBJECT OF AN OVERLY
BROAD RESTRICTIVE ORDER …………………………………………… 4


C. APPELLANT HAS NOT WAIVED HIS RIGHTS ……………………………… 7
D. THE COMMUNICATIONS DECENCY ACT MAKES APPELLANT IMMUNE
FROM LIABLITY FOR POSTS MADE BY OTHERS ……………………………… 8
E. THAT APPELLANT CAN POSSIBLY SPEAK ABOUT APPELLEE ON
OTHER OUTLETS HAS NO BEARING ON WHETHER THIS ORDER IS CONSTITUTIONAL . . . 9

IV. Conclusion …………………………………………………………… 10









ii

TABLE OF AUTHORITIES
Cases
Austin v. Keefe 402 U.S. 415 (1971)………………………………………….. 2
Fair Housing Council of San Fernando Valley v. Roomates.com, 521 F.3d 1157
(9
th
Cir. 2008) .......................................................................................................... 9
Jones v. Dirty World Entertainment Recordings, LLC. 840 F. Supp 2d 1008 (ED
Ky. 2012) ..............................................................................................................10
Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994). ............................... 4
McGuire v. Reilly, 386 F.3d 45 (1
st
Cir. 2004)( ......................................................... 4
Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931) ............................................. 2
Schenck v. Pro-Choice Network of Western New York. 519 U.S. 357 (1997) ......... 4
Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546 (1979) ..............................10
Tory v. Cochran, 544 U.S. 734 (2005) ...................................................................... 5
U.S. v. Alaboud, 347 F.3d 1293 (11
th
Cir. 2003) ....................................................... 8
Statutes
Communications Decency Act of 1996 (CDA) .......................................................... 9
Other Authorities
1. "Doxing" https://en.wikipedia.org/wiki/Doxing .................................................... 6
2. “Social Shaming Works Faster Than Legal Recourse”
https://www.techdirt.com/articles/20120730/07105419881/social-shaming-
works-faster-than-legal-recourse.shtml .................................................................. 7
3. “Why Social-Media Shaming is Okay”
http://www.buzzfeed.com/mattbuchanan/why-social-media-shaming-is-okay ..... 7
1

PRELIMINARY STATEMENT
This supplemental brief is submitted by Appellant in response to the
Supplemental Amicus Curiae Brief of Timothy B. McCormack, filed in support of
Appellee.
DISCUSSION OF FACTS

The Supplemental Amicus Curiae Brief (referred to hereafter as “SACB”)
attempts to paint the few Internet posts involved in this case as “true threats” in
order to have the Lifetime Protective Order survive the strict scrutiny analysis
required of content-based restrictions on speech. The only way the SACB can do
that is by mischaracterization of the facts in the record and mischaracterization of
Appellant’s argument. Appellant will highlight some of those factual
mischaracterizations in this section.
(A) On page 8 of the SACB, the Appellant is accused of cyber-bullying
Appellee’s daughter when the only post about Appellee’s daughter was “MEE,
museum” - her initials and her workplace. T. at pages 53 and 66;
(B) On page 10 of the SACB, one of the purported threats was characterized
as a “ransom note” when the only evidence of the purported note was Appellee’s
uncorroborated testimony that she “received a letter from [ELI], which I am
2

currently trying to locate so I can honestly say yes, I have been notified with a
ransom note type letter.” (T. at page 62). No such note is in the record.
(C) The SACB, on pages 10-11, then lists other purported threats contained on
ELI but not the context in which they were made or that, as Appellant testified,
they were just “figurative” speech (T. at pages 21-24). Appellant’s Brief and
Supplemental Brief in Response to the Amicus Brief analyze and discuss these
posts in detail.

ARGUMENT AND CITATION OF AUTHORITIES

A. THE US SUPREME COURT HAS ANALYZED CIVIL
INJUNCTIONS BETWEEN PRIVATE LITIGANTS AS PRIOR
RESTRAINTS ON SPEECH

The SACB argues that the First Amendment is not implicated in this case as
the order does not qualify as “State action” because it only deals with the rights
of private parties.
Since Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931), the United

States Supreme Court has evaluated injunctions against speech as prior restraints.
In Austin v. Keefe, 402 U.S. 415 (1971), the Court struck down a preliminary
injunction granted in a civil action between private parties for violating the First
3

Amendment. The order banned a community organization from distributing
leaflets in a Chicago suburb which were critical of a real estate agent’s business
practices.
In overturning the order, the Court stated that it was not important that the
matter was between two private parties because the order served to stop the
dissemination of information to the general public. Id. at 418-419. The Supreme
Court stated that it was also irrelevant that the community organization’s primary
motive was “not to inform the public but to force the respondent to sign a no-
solicitation agreement.” Id. at 419. Justice Burger, writing for the majority, used
language that could not be more applicable to the case at bar had it been written by
Appellant instead:
The claim that the expressions were intended to exercise a coercive impact on
respondent does not remove them from the reach of the First Amendment.
Petitioners plainly intended to influence respondent's conduct by their activities;
this is not fundamentally different from the function of a newspaper. Petitioners
were engaged openly and vigorously in making the public aware of respondent's
real estate practices. Those practices were offensive to them, as the views and
practices of petitioners are no doubt offensive to others. But so long as the means
are peaceful, the communication need not meet standards of acceptability.

Id. (internal citation omitted).

4

Much of the Supreme Court’s First Amendment jurisprudence regarding
abortion clinic buffer zones also has been the result of analyzing injunctions sought
by and/or levied against private parties. See, e.g., Schenck v. Pro-Choice Network
of Western New York. 519 U.S. 357 (1997); Madsen v. Women’s Health Center,
Inc., 512 U.S. 753 (1994).
The SACB cites only one case for its proposition that an injunction between
private parties cannot invoke State action sufficient to warrant First Amendment
scrutiny, McGuire v. Reilly, 386 F.3d 45 (1
st
Cir. 2004)(an abortion clinic buffer
case as well). While McGuire did state that every First Amendment claim requires
State action, the court also stated that “enforcement [of a content-neutral statute]
against a given person in a particular situation could be invalid on an as-applied
basis.” Id. at pg. 59. That is what Appellant is arguing here. There is also State
action here as the court below required Appellant to remove all posts about
Appellee, even though that was not the relief Appellee was seeking before the
court (T. at pages 84-86)(Appellee’s counsel stating they do not want entire forum
taken down just alleged threats).
In another case directly on point, the United States Supreme Court held that
a civil injunction issued against protests outside a lawyer’s office was an
5

unconstitutional infringement of the protesters’ First Amendment rights. Tory v.
Cochran, 544 U.S. 734 (2005). Moreover, the Tory court held that a “person
subject to a court's injunction may elect whether to challenge the constitutional
validity of the injunction when it is issued, or to reserve that claim until a violation
of the injunction is charged as a contempt of court.” Id. at 737. Here, Appellant
has chosen to challenge the injunction against his speech upon its issuance and not
wait to be held in contempt of court.
There is also State action here as the court required Appellant to remove all
posts about Appellee, even though that was not the relief Appellee was seeking
before the court (T. at pages 84-86)(Appellee’s counsel stating they do not want
entire forum taken down just alleged threats).

B. BECAUSE APPELLANT’S POSTS ARE NOT “TRUE THREATS”
THEY ARE PROTECTED BY FEDERAL LAW AND WERE THE
SUBJECT OF AN OVERLY BROAD RESTRICTIVE ORDER

The SACB next analyzes Appellant’s posts and the posts of others on ELI as
“true threats.” Rather than repeat Appellant’s response to the original Amicus Brief
filed on behalf of Appellee, Appellant refers the court to the Amicus Brief filed in
6

Support of Appellant and to the Appellant’s Supplemental Brief in Response to the
Amicus Brief on behalf of Appellee.
The SACB relies heavily on Appellee’s subjective statement that she was
reasonably placed in fear of her life but recognizes that it is Appellant’s intent to
intimidate and create fear that causes [his posts] to lack First Amendment
protection. SACB at page 17 (emphasis added). There was no evidence, however,
that Appellant intended to place Appellee in fear of her life; all the evidence
pointed to the opposite – that Appellant was discussing Appellee’s business
practices and wanted to publicly embarrass and expose her for engaging in them.
At worst, Appellant was engaging in a relatively new Internet phenomenon
called “doxing.” Internet encyclopedia Wikipedia defines the term as follows:
Doxing (spelling variant doxxing) is an abbreviation of document tracing,
the Internet-based practice of researching and publishing personally identifiable
information about an individual. The methods employed in pursuit of this
information range from searching publicly available databases and social media
websites like Facebook, to hacking, and social engineering.

https://en.wikipedia.org/wiki/Doxing. A prominent recent example of “doxing”
occurred when journalists with the Westchester County, New York
newspaper, The Journal News, were accused of publishing the home addresses of
gun owners in the region in a story the paper published in December 2012. While
7

“doxing” can often involve illegal hacking to retrieve the information posted, in
Appellant’s case, all the information was publicly available and there was no
hacking or even allegations of hacking.
Doxing is one form of “social shaming” another Internet phenomenon that
uses social media to expose conduct that the poster of the information believes to
be immoral, illegal or worthy of contempt. See, e.g., “Social Shaming Works
Faster Than Legal Recourse” published on TechDirt.com on July 30, 2012 and
available at https://www.techdirt.com/articles/20120730/07105419881/social-
shaming-works-faster-than-legal-recourse.shtml; “Why Social-Media Shaming is
Okay” published on BuzzFeed.com on November 13, 2012 and available at
http://www.buzzfeed.com/mattbuchanan/why-social-media-shaming-is-okay.
The trial court even stated as part of its basis in granting the Lifetime
Protective Order that the Appellant’s purpose was to intimidate Appellee about her
copyright infringement program. At pages 122-123 in the transcript, the court
states:
There's no question that The Dash is a constitutionally-copyrighted
document, and the illegal use of -- a violation of the copyright certainly gives her
the right to enforce all the copyright infringement laws, and that is not a grounds or
basis to give the Respondent in this case the constitutional right to use the website
to intimidate her, which he says has been his intent.
8


T. at pages 122-123. While Appellant denies that the record supports a
finding that it was his intent to intimidate Appellee, even were that the case, such
conduct may be immoral but it is not illegal or even outside the confines of
Constitutionally-protected speech. It cannot constitute “stalking” under the statute
as the intent must be to place someone in fear of physical harm. There is simply no
evidence that this was Appellant’s intent.
The Eleventh Circuit also requires that true threats be “a serious expression
of an intention to inflict bodily harm.” U.S. v. Alaboud, 347 F.3d 1293 (11
th
Cir.
2003). There was no evidence that these posts constituted a serious expression of
an intention to inflict bodily harm or that it was Appellant; intent to make Appellee
fear bodily harm.

C. APPELLANT HAS NOT WAIVED HIS RIGHTS
The SACB then presents the circular argument that because Appellant was
“convicted of stalking” he “has waived his First Amendment protections of such
activity.” Appellant was not convicted of stalking as he never faced any criminal
charges. Secondly, Appellant is appealing the order restricting his speech on First
Amendment grounds, so he has not waived those rights. That is one of the main
9

purposes of the appeal - to determine if the order amounts to an improper restraint
on Appellant’s First Amendment rights. This position of Amicus for Appellee
further demonstrates that the Lifetime Protective Order is a prior restraint on
speech.

D. THE COMMUNICATIONS DECENCY ACT MAKES
APPELLANT IMMUNE FROM LIABLITY FOR POSTS MADE BY
OTHERS

The SACB raises the argument that because Appellant commented on some
of the posts made by others, Appellant cannot claim the immunity provided by the
Communications Decency Act of 1996 (CDA).
This issue is fully briefed in the Appellant’s Brief and Reply Brief; the
Appellant’s Supplemental Brief in Response to Amicus Curiae Brief on Behalf of
Appellee; Appellant’s Supplemental Brief regarding recent case law in this arena;
and in the Amicus Curiae Brief filed in Support of Appellant.
To summarize, the Appellant did not actively participate in illegal conduct
like the defendant in Fair Housing Council of San Fernando Valley v.
Roomates.com, 521 F.3d 1157 (9
th
Cir. 2008) (creating online questionnaire to help
users violate the Fair Housing Act) or actively participate in posting allegedly
10

defamatory content about a person like the defendant in Jones v. Dirty World
Entertainment Recordings, LLC. 840 F. Supp 2d 1008 (ED Ky. 2012) (website
allegedly posted libelous and defamatory content about schoolteacher). Instead, the
Appellant’s case fits squarely in the protection afforded by the CDA: He is a
provider of an interactive computer service being treated as a speaker for the
content posted by another speaker.

E. THAT APPELLANT CAN POSSIBLY SPEAK ABOUT APPELLEE
ON OTHER OUTLETS HAS NO BEARING ON WHETHER THIS ORDER
IS CONSTITUTIONAL

The SACB makes the argument that there may be other outlets on which
Appellant can talk about Appellee and that therefore the order is narrowly tailored
and not overbroad. The SACB, however, makes no argument why this speech
would not violate the Lifetime Protective Order which required Appellant to
remove “all posts” about Appellee regardless of their content. The SACB even
contradicts its position that Appellant is free to discuss Appellee anywhere else but
ELI when it claims that Appellant has “moved the Ellis content to another
website.” Not only does the SACB offer no proof of this alleged fact but it
immediately states thereafter “Whether this activity violates the Protective Order
11

has not been litigated yet.” SACB at page 24 fn 1. This statement alone reflects the
chilling effect and prior restraint on speech that the Protective Order has had and
will have on Appellant’s right to free speech.
The US Supreme Court has long-ago decided that whether the speaker has
another alternative outlet for their speech is not relevant to First Amendment
analysis. See, e.g. Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546
(1979)(municipal theater’s ban on play was impermissible prior restraint even
though play could be performed elsewhere).
As the Court stated in that case “One is not to have the exercise of his
liberty of expression in appropriate places abridged on the plea that it may be
exercised in some other place.” Id.

IV. CONCLUSION
The Supplemental Amicus Brief on Behalf of Appellee does not bring to the
court’s attention any arguments that support or justify the broadly restrictive order
below. The PPO must be reversed.




12



Dated: September 25, 2014


/S/ Oscar Michelen /S/ William J. McKenney
Oscar Michelen William J. McKenney
NY State Bar No.: 2058477 GA State Bar No.: 494725
CUOMO LLC MCKENNEY & FROEHLICH
9 East 38
th
Street 50 Polk Street NW
New York, NY 10016 Marietta, GA 30064












13

CERTIFICATE OF SERVICE

This is to certify that in accordance with Georgia Supreme Court Rule 14, I
have on this day served this Supplemental Brief of Appellant in Response to
Second Amicus Curiae Brief of Timothy B. McCormack before filing with the
Court by mailing a copy of same to the opposing counsel listed below in a properly
addressed envelope with adequate postage:
Page, Scrantom, Sprouse, Tucker, Ford
Attorneys for Appellee
1111 Bay Avenue
Third Floor
Columbus, GA 31901

Mr. Timothy B. McCormack
Amicus Filer on Behalf of Appellee
167 Lee Street
Seattle, WA 98109

This 25
th
day of September 2014

/s/ Oscar Michelen
Oscar Michelen
Georgia Bar No.: H10048
Cuomo LLC
Attorneys for Appellant
9 East 38
th
Street
Third Floor
New York, NY 10016
(212) 448-9933