Chan v. Ellis

In the Supreme Court of Georgia
Decided: March 27, 2015
S14A1652. CHAN v. ELLIS.
BLACKWELL, Justice.
Matthew Chan has a website on which he and others publish commentary
critical of copyright enforcement practices that they consider predatory. Linda
Ellis is a poet, and her efforts to enforce the copyright in her poetry have drawn
the ire of Chan and his fellow commentators. On his website, they have
published nearly 2,000 posts about Ellis, many of which are mean-spirited, some
of which are distasteful and crude, and some of which publicize information
about Ellis that she would prefer not to be so public. At least one post is written
in the style of an open letter to Ellis, referring to her in the second person, and
threatening to publicize additional information about Ellis and her family if she
continues to employ the practices of which Chan and the other commentators
disapprove. It is undisputed that Chan never caused any of these posts to be
delivered to Ellis or otherwise brought to her attention. But it also is undisputed
that Chan anticipated that Ellis might see the commentary on his website, and
he may have even intended that she see certain of the posts, including the open
letter to her.
Ellis eventually did learn of the posts, and she sued Chan for injunctive
relief under the Georgia stalking law, OCGA § 16-5-90 et seq.,1 alleging that the
electronic publication of the posts was a violation of OCGA § 16-5-90 (a) (1),
which forbids one to “contact” another for certain purposes without the consent
of the other. Following an evidentiary hearing, the trial court agreed that the
electronic publication of posts about Ellis amounted to stalking, and it entered
a permanent injunction against Chan, directing him to, among other things,
delete “all posts relating to Ms. Ellis” from his website. Chan appeals,
contending that the evidence simply does not show that the publication of posts
about Ellis on his website amounts to the sort of “contact” that is forbidden by
OCGA § 16-5-90 (a) (1). With that contention, we agree, and we reverse the
judgment of the trial court.2
1
The stalking law provides that a court “may grant a protective order . . . to bring
about a cessation of conduct constituting stalking.” OCGA § 16-5-94 (d).
2
Chan also urges several other contentions on appeal, including that the scope of the
injunction is too broad, that he cannot be held responsible for the publication of commentary
2
1. We begin with the settled principles that inform our consideration of the
meaning of OCGA § 16-5-90 (a) (1). A statute draws its meaning, of course,
from its text. See Sentinel Offender Svcs. v. Glover, 296 Ga. 315, 328 (3) (a)
(766 SE2d 456) (2014). When we read the statutory text, “we must presume that
the General Assembly meant what it said and said what it meant,” Deal v.
Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citation and
punctuation omitted), and so, “we must read the statutory text in its most natural
and reasonable way, as an ordinary speaker of the English language would.”
FDIC v. Loudermilk, 295 Ga. 579, 588 (2) (761 SE2d 332) (2014) (citation and
punctuation omitted). The common and customary usages of the words are
important, Hendry v. Hendry, 292 Ga. 1, 2-3 (1) (734 SE2d 46) (2012), but so
is their context. Smith v. Ellis, 291 Ga. 566, 573-574 (3) (a) (731 SE2d 731)
(2012). “For context, we may look to other provisions of the same statute, the
posted to the website by others, see 47 USC § 230 (c) (1), and that, in any event, the online
publication of commentary about Ellis and her copyright enforcement practices is speech
protected by the First Amendment. Although these other contentions may have some merit
too, we need not resolve them to decide this appeal. We note, however, that the constitutional
contention forms the basis for our exercise of appellate jurisdiction in this case. See Ga.
Const. of 1983, Art. VI, Sec. VI, Par. II (1) (Supreme Court has exclusive appellate
jurisdiction in “[a]ll cases involving the construction . . . of the Constitution of the State of
Georgia or of the United States and all cases in which the constitutionality of a law . . . has
been drawn in question”).
3
structure and history of the whole statute, and the other law — constitutional,
statutory, and common law alike — that forms the legal background of the
statutory provision in question.” May v. State, 295 Ga. 388, 391-392 (761 SE2d
38) (2014) (citations omitted). With these principles in mind, we turn now to the
relevant statutory text.
In pertinent part, OCGA § 16-5-90 (a) (1) provides that “[a] person
commits the offense of stalking when he or she . . . contacts another person at
or about a place or places without the consent of the other person for the
purpose of harassing and intimidating the other person.”3 For purposes of the
statute, one “contacts another person” when he “communicates with another
person” through any medium, including an electronic medium. See OCGA § 16-
3
The same paragraph of the statute also forbids one to “follow” another or “place
[another] under surveillance” without consent and for “the purpose of harassing and
intimidating the other person,” OCGA § 16-5-90 (a) (1), and the following paragraph forbids
one to “broadcast” or “publish” certain identifying information about another without
consent, in violation of an injunction or other judicial decree, knowing that the broadcast or
publication will “cause such person to be harassed or intimidated by others,” and “in such
manner that causes other persons to harass or intimidate such person.” OCGA § 16-5-90 (a)
(2). In this case, the trial court said nothing in its permanent injunction about Chan having
violated any other injunction or judicial decree, so the permanent injunction does not
implicate paragraph (a) (2). As to paragraph (a) (1), the trial court found only that Chan
committed stalking by “contacting” Ellis, and it said nothing about Chan having “followed”
Ellis or “placed [her] under surveillance.” We are not, therefore, concerned in this case with
the other ways in which one might commit the offense of stalking. We address only stalking
by “contact.”
4
5-90 (a) (1).4 See also Johnson v. State, 264 Ga. 590, 591 (1) (449 SE2d 94)
(1994) (as used in OCGA § 16-5-90, “[t]o ‘contact’ is readily understood by
people of ordinary intelligence as meaning ‘to get in touch with; communicate
with” (citation and punctuation omitted)). Although one may “contact” another
for the purposes of the statute by communicating with the other person through
any medium, it nevertheless is essential that the communication be directed
specifically to that other person, as opposed to a communication that is only
directed generally to the public.5 Common and customary usage suggests as
4
The statute defines “contact” in this way: “[T]he term ‘contact’ shall mean any
communication including without being limited to communication in person, by telephone,
by mail, by broadcast, by computer, by computer network, or by any other electronic device.”
OCGA § 16-5-90 (a) (1). Oddly enough, although the principal provision of the statute uses
“contact” as a verb — “[a] person commits the offense of stalking when he or she . . .
contacts another person” — this definitional provision defines it as a noun. For that reason,
we cannot simply substitute the statutory definition for the defined term. At the same time,
of course, we cannot just ignore the statutory definition. Accordingly, we understand the
definitional provision to mean simply that one “contacts another person” when he
“communicates with another person,” irrespective of the medium through which the
communication occurs.
5
To say that a communication must be directed specifically to another person is not
to say that it must be directed exclusively to that person. Nor is it to say that the
communication must be directed immediately to that person without intermediaries or relays.
Cf. Murden v. State, 258 Ga. App. 585, 586 (1) (574 SE2d 657) (2002) (defendant
“contacted” ex-wife for purposes of stalking law by calling and coming to her workplace to
ask for her).
5
much,6 as does another provision of the stalking law, which defines “harassing
and intimidating” in terms of “a knowing and willful course of conduct directed
at a specific person.” OCGA § 16-5-90 (a) (1) (emphasis supplied).
2. That a communication is about a particular person does not mean
necessarily that it is directed to that person. This principle is reflected in Collins
v. Bazan, 256 Ga. App. 164 (568 SE2d 72) (2002), and Marks v. State, 306 Ga.
App. 824 (703 SE2d 379) (2010), two cases in which our Court of Appeals
addressed questions about how the stalking law applies to speech about another.
In Collins, the trial court entered an injunction that, among other things, forbade
the defendant to “discuss” a medical condition of his ex-girlfriend with others.
Reversing that portion of the injunction, the Court of Appeals held that it could
not be sustained as merely an injunction against stalking, inasmuch as
“[p]ublishing or discussing a person’s medical condition with others obviously
does not constitute . . . contacting that person.” Collins, 256 Ga. App. at 165 (2).
In Marks, the defendant was prohibited as a condition of probation from
“contacting” his ex-wife, and his probation was revoked after he “posted untrue
6
An ordinary speaker of the English language typically would not say, for instance,
that a popular author had “contacted” or “communicated with” the speaker simply because
the speaker had read a book written by the author.
6
statements about her on several websites.” The Court of Appeals reversed the
revocation of his probation, citing Collins and holding that the defendant
posting about his ex-wife on the Internet — posts that the ex-wife discovered
only as a result of searching for her name on the Internet — did not amount to
the defendant “getting in touch with or communicating with [her].” Marks, 306
Ga. App. at 826 (1).
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.
7
3. 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,7 and even if Ellis did not like
7
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
8
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. See OCGA § 16-5-90 (a)
(1).
Judgment reversed. All the Justices concur, except Melton, J., who
concurs in Divisions 1 and 2 and in the judgment.
the United States or of this state . . . .”).
9