IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING MARTA LYALL, Petitioner, v.

SARAH LEVINE SIMON, Respondent. NO. 11-2-16227-3 SEA ORDER GRANTING IN PART MOTION FOR ENTRY OF ANTIHARASSMENT ORDER

This matter came before the Court on the petition of Marta Lyall for the entry of an antiharassment order against Sarah Levine Simon. The parties submitted voluminous materials in support of, and in opposition to, the petition. The Court conducted an evidentiary hearing, took limited testimony, and heard oral argument of counsel on Friday, July 8, 2011. FINDINGS OF FACT On August 24, 2010, Marta Lyall obtained a civil anti-harassment order against Noah Simon based on Internet postings he made about her or directed to her from his home in New York. On December 14, 2010, Noah was charged in King County Superior Court with felony stalking in violation of RCW 9A.46.110, cyberstalking in violation of RCW 9.61.260(a)(b) and (c), and identity theft in the second degree in violation of RCW 9.35.020(1) and (3), arising out of the same Internet activity that led Lyall to seek the anti-harassment order. On January 26,
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2011, Noah entered a plea of guilty to amended charges of misdemeanor harassment and cyberstalking. In the Statement of Defendant on Plea of Guilty, Noah described what he had done to make him guilty of these crimes: (1) Between 6/1/09 and 8/31/10, I knowingly & without lawfull [sic] authority & with the intent to harass Marta Lyall, made repeated electronic communications using obscene language, and that Marta Lyall viewed these communications in King County, Washington. (2) On approximately, February 14, 2009, I created and posted a video on the Internet directed to Marta Lyall where I displayed what appeared to be a firearm and my actions placed Mrs. Lyall in reasonable fear that a threat would be carried out & that Mrs. Lyall viewed the video in King County, Wash. and this was a malicious act intended to substantially harm Mrs. Lyall with respect to her mental health or safety. On January 18, 2011, while awaiting sentencing, Lyall sought an order of contempt against Noah in the anti-harassment proceeding based on his failure to remove the Internet postings relating to Lyall. Noah attended this hearing in person, admitted he was in violation of the anti-harassment order, was found in contempt, and was again ordered to remove all postings relating to Lyall. Noah did not challenge the validity of the anti-harassment order at this hearing. Additionally, as a part of Noah’s criminal sentence entered on January 28, 2011, he was ordered as follows: Defendant will comply with all orders regarding Marta Lyall and will remove all electronic postings regarding Marta Lyall. Based on a review of the court files, Noah has not sought to withdraw his guilty plea, has not appealed his judgment and sentence, and has not filed any petition to collaterally attack the conviction. Nor did Noah object to the scope of the criminal sentence ordering him to remove all electronic postings about Lyall from the Internet. Lyall has sought relief from the courts repeatedly since the imposition of the anti-

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King County Superior Court 516 Third Avenue, C-203 Seattle, WA 98104 (206) 296-9105

harassment order and the entry of the criminal sentence, contending that Noah has not removed all of the postings relating to her and that he has recruited others, including his mother—the Respondent here—Sarah Levine Simon,1 to post additional offensive comments about her. Noah was found to be in violation of the anti-harassment order on April 8, 2011 and again on May 5, 2011 for failing to remove Internet postings about Lyall. In early January 2011, Simon requested employment records relating to Lyall from former employers, the University of Washington and the University of Illinois, Chicago. Simon also enlisted the assistance of friends to make similar public records requests. One friend chose to make this request under the name of her deceased father. Simon specifically sought the production of any records relating to any termination of Lyall’s employment, any complaints Lyall filed against, or had filed against her by, fellow faculty members, administrative personnel or students, and any lawsuits Lyall may have initiated against the employer. Simon represented to one court that she made these requests to “help exonerate her son.” The University of Washington provided some documents to Simon, after which Lyall obtained a temporary restraining order preventing further release of her personnel records by the University until privacy issues could be resolved. See Lyall v. University of Washington, No. 11-2-10291-2. In March and April 2011, Noah sent emails to his mother in which he called Lyall a “serial accuser.” Simon then began forwarding his emails to Lyall’s attorneys and to former associates of Lyall, as well as sending them emails herself, in which Simon claimed that Lyall was persecuting her son, that Lyall had made similar accusations against others, that Lyall was mentally ill, suffering from borderline personality disorder, criminally insane, obsessed with

1

To distinguish between mother and son, the Court will refer to Sarah Simon as “Simon” but continue to refer to Noah Simon by his first name.
King County Superior Court 516 Third Avenue, C-203 Seattle, WA 98104 (206) 296-9105

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male colleagues, sick and paranoid, and physically dangerous. Simon also started an Internet blog where she posted these emails and letters (containing these same accusations), uploaded portions of pleadings she obtained from a decade-old federal lawsuit initiated by Lyall against a former employer, Carnegie Mellon University, and added her own commentary regarding Lyall, accusing her of being a “serial accuser who perjures herself with impunity, “ an extortionist, and someone with “a history of mental illness that along with very deep pockets has allowed her to pursue at whim in the courts whatever feeds her internal demons.” Simon has made no attempt to directly contact Lyall. All of her commentary has

occurred via email and letters to associates of Lyall, or appears on her Internet blog. But in early May 2011, after Lyall posted comments on the Internet about her experience as a victim of cyberstalking, Simon stated on her blog that Noah should be allowed to respond to what she deemed to be false accusations but was precluded from doing so by court order. After Lyall obtained a temporary anti-harassment order against Simon which restrained her from acting on behalf of Noah or from aiding or abetting him in violating his criminal sentence, Simon removed most of the content from the blog but left hyperlink titles on the blog page, including the one calling Lyall a “serial perjurer.” Lyall seeks a broad order requiring Simon to remove any and all Internet postings about her and preventing Simon from continuing what Lyall calls a campaign of revenge via the Internet. Lyall contends that Simon is, through her blog and correspondence, aiding and abetting Noah in violating the criminal judgment and civil anti-harassment order entered against him. At the July 8, 2011 hearing, when asked why she was engaging in this Internet activity against Lyall, Simon testified that she was posting information about Lyall and Lyall’s past because she, Sarah Simon, was being persecuting by Lyall and she needed to defend herself and
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her son from Lyall. Simon testified that she is also engaging in this Internet activity because, in her opinion, her son is innocent of the crimes to which he pled guilty, that Noah’s Internet activity did not constitute cyberstalking, and that Noah had inadequate legal representation and only pled guilty to get out of jail. She also testified that she has been providing the funds to pay for Noah’s legal representation in Washington, and that she is being drained financially every time Lyall files a motion for contempt against Noah. Simon’s counsel characterized her client’s Internet postings as “expressions of frustration with the criminal justice system.” It is clear to this Court that Simon has engaged in a very personal Internet campaign against Lyall to damage Lyall’s reputation and to exact revenge against Lyall for reporting what Lyall believed to be cyberstalking and for seeking legal redress for Noah’s violations of court orders. While Simon believes her son is innocent, the content of the blog, emails and letters is extremely personal to Lyall, including accusations about Lyall’s motives, mental state, and experiences with past employers. Very little of the blog content is related to Noah, Noah’s experience with the criminal justice system or Washington courts, or his alleged wrongful conviction. The Court is also convinced, given the content of the blog entries and emails, and Simon’s testimony during the evidentiary hearing, that Simon’s intent was for Lyall to become aware of her Internet postings with the hope that Lyall would find the content so offensive and embarrassing that Lyall would cease any further attempts to enforce the anti-harassment order against Noah. The Court also finds that there is evidence Simon is taking these steps, if not at the request of Noah, at least with his strong encouragement. ANALYSIS Chapter 10.14 RCW prohibits unlawful harassment. “Unlawful harassment” is “a

knowing and willful course of conduct directed at a specific person which seriously alarms,
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annoys, harasses, or is detrimental to such person, and which serves no legitimate or lawful purpose.” RCW 10.14.020(1). RCW 10.14.020(2) defines “course of conduct” to mean “a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.” “Course of conduct” includes, in addition to any other form of communication, contact, or conduct, the sending of electronic communication. Id. Constitutionally protected activity is not included within the meaning of “course of conduct.” Id. The legislature has made it clear that the harassment statute may not be used to infringe on constitutionally protected rights, including the freedom of speech. RCW 10.14.190. The Court finds that, under RCW 10.14.020, Simon has engaged in a knowing and willful course of conduct directed to Lyall which has seriously alarmed Lyall or is detrimental to her, and which serves no legitimate or lawful purpose. First, Simon has sent unsolicited emails and letters to Lyall’s counsel and professional colleagues in which she stated that Lyall was “criminally insane” and physically dangerous. She then posted the content of these letters to her Internet blog. Having had the opportunity to observe Lyall throughout several court hearings and to review her written statements, the Court finds that these statements of fact to be false. Based on Simon’s testimony at the hearing and the content of the blog itself, the Court concludes that she made these statements with actual malice toward Lyall and without any concern for the ramifications of her publishing such statements. In addition, Simon repeatedly contended on her blog that Lyall is a serial perjurer, a pathological liar, and an “extortionist,” all of which are statements of provable fact and none of which has any identifiable basis in fact. When the Court asked for the factual basis for the claim of extortion, Simon’s response was that Lyall has forced her to incur legal expenses to deal with Noah’s repeated contempt proceedings. This Court finds that Lyall’s attempts to seek redress
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through the court system do not constitute “extortion.” If Noah would simply stop violating the anti-harassment order against him, Simon would have no need to expend money to defend him. And as Noah is an adult, Simon is footing the bill for his actions of her own choice. The Court finds that the statement that Lyall is an extortionist is false, that the statement was made by Simon with actual malice and without concern for the truth or falsity of the statement, and that it is the type of statement likely to damage Lyall’s reputation or standing in the community. Under RCW 10.14.030, when determining whether a course of conduct serves any legitimate or lawful purpose, this Court should consider whether: (1) Any current contact between the parties was initiated by the respondent only or was initiated by both parties; (2) The respondent has been given clear notice that all further contact with the petitioner is unwanted; (3) The respondent’s course of conduct appears designed to alarm, annoy, or harass the petitioner; (4) The respondent is acting pursuant to any statutory authority, including but not limited to acts which are reasonably necessary to: (a) Protect property or liberty interests; (b) Enforce the law; or (c) Meet specific statutory duties or requirements; (5) The respondent’s course of conduct has the purpose or effect of unreasonably interfering with the petitioner’s privacy or the purpose or effect of creating an intimidating, hostile, or offensive living environment for the petitioner; (6) Contact by the respondent with the petitioner or the petitioner’s family has been limited in any manner by any previous court order. Our Supreme Court has indicated that specific findings of fact on each of the legitimate or lawful purpose factors enumerated in RCW 10.14.030 should be made. Marriage of Suggs, 152 Wn.2d 74, 84 n.5, 93 P.3d 161 (2004). In this case, Lyall did not initiate contact with Simon. Simon initiated all of the contact with Lyall’s attorneys and her former colleagues and employers. Simon had clear notice that Internet postings about Lyall were unwanted by virtue of the on-going anti-harassment litigation between Lyall and Simon’s son. The Court finds that Simon’s course of conduct appears
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designed to alarm, annoy, or harass Lyall. Many of Simon’s actions are not being taken to protect any property or liberty interests, to enforce any law, or to meet any statutory duty. Moreover, the Court finds that Simon’s labeling Lyall a dangerous and criminally insane individual, a pathological liar, a serial perjurer, and an extortionist on an Internet blog to have the purpose or effect creating an intimidating, hostile, or offensive living environment for Lyall. Finally, contact between Simon’s son and Lyall has been limited by previous court orders, both in the civil anti-harassment proceeding and the criminal action. These facts lead the Court to conclude that many of Simon’s vitriolic postings against Lyall personally have no lawful or legitimate purpose under RCW 10.14.020. Simon opposes the entry of any restraining order on her speech, contending that even if her statements are defamatory, it would be an unconstitutional prior restraint to prevent Simon from making these statements on the Internet and that Lyall’s sole remedy is a defamation action against Simon. Prior restraints are presumptively unconstitutional unless they deal with nonprotected speech. State v. Noah, 103 Wn. App. 29, 41, 9 P.3d 858 (2000) (citing State v. Coe, 101 Wn.2d 364, 372, 679 P.2d 353 (1984)). Libel is not constitutionally protected speech. State v. Kilburn, 151 Wn.2d 36, 42-43, 84 P.3d 1215 (2004). In Rickert v. Public Disclosure

Commission, 161 Wn.2d 843, 850-51 n.7, 168 P.3d 826 (2007), the Washington Supreme Court also noted that false statements about private individuals made with actual malice, even if not defamatory, are not protected speech, citing Time, Inc. v. Hill, 385 U.S. 374, 87 S. Ct. 534, 17 L. Ed. 2d 456 (1967). Because libelous speech is not protected speech, it may be the basis for an anti-harassment order. Noah, 103 Wn. App. at 39 n.1. This Court also concludes that false statements of fact about a private citizen, made with actual malice, may similarly be the basis for an anti-harassment order.
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Simon relies on Marriage of Suggs, 152 Wn.2d 74, 93 P.3d 161 (2004), for the argument that a court may not restrain the publication of allegedly defamatory statements. Suggs cannot be read so broadly. In that case, the ex-wife of a Kelso police officer was restrained from

“knowingly and willfully making invalid and unsubstantiated allegations or complaints to third parties which are designed for the purpose of annoying, harassing, vexing, or otherwise harming” her ex-husband. 152 Wn.2d at 78-79. The Supreme Court held that this anti-harassment order violated the First Amendment because it lacked the specificity demanded by the United States Supreme Court for the prior restraint on unprotected speech. Because the anti-harassment order in Suggs did not define the “invalid” or “unsubstantiated” statements, the court held that the exwife was unable to determine what speech was permissible and impermissible under the order, thereby chilling her free speech rights. The Supreme Court did not hold that anti-harassment orders could never restrict speech. It merely held that any anti-harassment order restricting speech must be narrowly tailored to accomplish a pin-pointed objective permitted by the constitution and the needs of public order. Simon contends that her statements were made for the “lawful purpose” of criticizing the criminal justice system and protesting the wrongful conviction of her son. The Court agrees that criticism of the criminal justice system, comments relating to Washington court proceedings, and expressions of concern over wrongful convictions are topics of legitimate discourse and fall into the category of protected speech. The Court cannot and will not prevent Simon from publishing statements about these topics on the Internet. As indicated above, however, certain statements made about Lyall are false, made with actual malice, and really have nothing to do with the criminal justice system, any Washington court proceeding, or expressions of concern over wrongful convictions.
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This Court finds that it is necessary to place narrow and specific limits on Simon’s Internet postings to protect Lyall from further harassment by Simon, whether she is acting on her own initiative or acting on behalf of her son Noah. Protecting citizens from harassment is a compelling state interest. Noah, 103 Wn. App. at 41. So too is protecting crime victims from further victimization at the hands of the family members of people convicted of harassment. These compelling state interests allow the Court to impose specific and narrow restrictions on Simon’s Internet activities relating to Lyall. While the Court can impose restrictions to address Simon’s unprotected speech activities, the Court cannot grant all of the relief that Lyall seeks. Article 1, section 5 of the Washington constitution guarantees an absolute right to publish and broadcast accurate, lawfully obtained information that is a matter of public record by virtue of having been admitted into evidence and presented in open court. Coe, 101 Wn.2d 364. Simon’s publication of pleadings from any court proceeding, including the sex discrimination lawsuit filed by Lyall against Carnegie Mellon University, Noah’s criminal proceeding, the anti-harassment proceeding against Noah, or this action, is protected speech and cannot be restrained by this Court. Although Lyall contends that the Carnegie Mellon documents were supposed to have been sealed by the federal court pursuant to a settlement agreement, the fact is that the pleadings were not sealed and Simon lawfully obtained copies of these publicly available documents. The Court cannot restrain Simon from posting these documents on the Internet, even if the Court agrees that Simon is doing this merely to embarrass Lyall or to cause her emotional distress. Similarly, Simon lawfully obtained records through a public records request from the University of Washington. Although some of the documents may have been impermissibly disclosed (which is the subject of litigation between Lyall and the University), and may contain
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information the publication of which Lyall finds embarrassing and personally invasive, Simon obtained the documents legally and the Court cannot prohibit Simon from posting these documents on the Internet, even though the Court believes Simon’s motivations for doing so to be malevolent. Simon agreed at the July 8, 2011 hearing that, to the extent any such documents contain Lyall’s social security number, she will redact that information from anything she posts on the Internet. The Court will make this agreement, made on the record, a part of this order to ensure her compliance. Finally, the Court cannot restrain Simon from blogging about Lyall’s allegations against Noah and challenging the factual basis for the allegations, commenting on Noah’s conviction and sentence, or expressing her personal opinion that Noah is innocent even though he pled guilty to harassment and cyberstalking. Nor can the Court restrain Simon from commenting on the documents she received from Carnegie Mellon or the University of Washington. This is

protected speech which this Court cannot restrain via an anti-harassment order. During the hearing, the Court indicated that it would restrain Simon from stating that Noah was convicted only because of some improper influence Lyall had over a detective investigating his crimes. Although there is no factual support for this statement, it is a comment on the validity of Noah’s conviction and, although false, is not clearly defamatory. The Court will not restrain Simon from publishing this false statement but nothing in this order forecloses Lyall from initiating a defamation action against Simon for publishing this or any other false statements made by Simon on the Internet or in emails or letters to third parties. Although Lyall and Simon both have the constitutional right to continue to express themselves on the Internet regarding Noah’s past conduct and his convictions, the Court respectfully suggests that both parties should consider whether the choice to continue to do so is
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wise, given the emotional damage this public battle appears to have caused. Don’t forget you also have the right to simply stop and to move on with your lives. Sometimes ignoring false and offensive statements made on the Internet takes more personal courage than retaliation or litigation. RESTRAINING ORDER Based on the foregoing, it is hereby ORDERED: 1. Sarah Simon is restrained from coming within 500 feet of Marta Lyall, her residence or her place of employment. 2. Sarah Simon is restrained from directly contacting Marta Lyall in person, by mail, electronically, by telephone, or in writing, or from indirectly contacting Marta Lyall in such fashion through any third person except through counsel. 3. Sarah Simon is restrained from placing Marta Lyall under surveillance or asking any third party to place Marta Lyall under surveillance. 4. Sarah Simon is restrained from stating on any publicly available Internet blog or web site that (a) Marta Lyall is criminally insane; (b) Marta Lyall is a serial perjurer or a serial accuser who perjures herself with impunity; (c) Marta Lyall is a pathological liar; (d) Marta Lyall is physically dangerous; or (e) Marta Lyall is an extortionist. Sarah Simon is similarly restrained from asking any third party to make these statements about Marta Lyall on any publicly available Internet blog or web site. 5. If any of the prohibited statements identified in Paragraphs (4) remain on Sarah Simon’s blog, she shall remove those statements within 10 calendar days of this order. 6. Sarah Simon is restrained from posting Lyall’s social security number on the Internet and shall redact this information from any document she has received from the University of
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Washington or from any other source before posting that document on the Internet. 7. Sarah Simon shall further be restrained from acting as the agent of, impersonating, acting in concert with, or aiding or abetting Noah Simon in the commission of any act which would violate the terms of the anti-harassment order issued in Cause No. 10-2-04392-6 SEA or the terms of Noah Simon’s criminal sentence, Cause No. 10-1-1-211-1 SEA. 8. Nothing in this order prevents or restricts Sarah Simon’s right to communicate any information to any branch of the federal, state or local governmental, as authorized under RCW 4.24.510. 9. Nothing in this order prevents or restricts Sarah Simon’s right to maintain any Internet blog or website to criticize the criminal justice system in general or to comment on the actions of any Washington court, or to contend that her son was wrongfully convicted. 10. This order shall be in effect for a period of two years from the date of this order. DATED this 15th day of July, 2011. _\s\ (E-FILED)______________________ Judge Beth M. Andrus

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King County Superior Court 516 Third Avenue, C-203 Seattle, WA 98104 (206) 296-9105

King County Superior Court Judicial Electronic Signature Page
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11-2-16227-3 LYALL AKA VS SIMON
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ORDER

Signed by Judge: Beth Andrus 7/15/2011 2:51:36 PM Date:

Judge Beth Andrus

This document is signed in accordance with the provisions in GR 30. A31991381293F0EDC27CFFCFECEF2B56EE8FA988 Certificate Hash: Certificate effective date: 8/11/2010 4:30:02 PM 8/10/2012 4:30:02 PM Certificate expiry date: CN=Washington State CA B1, OU=State of Washington Certificate Issued by: CA, O=State of Washington PKI, C=US
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