Tulelake, CA— Cyber Stalking vs. First Amendment
When reporting the news one has the first amendment right to report the facts. If those facts are embarrassing then so be it. You cannot falsify restraining orders making them what they are not. You cannot deny due process of the 14th amendment in the process because you do not like what is being said.
Yet prior to the restraining order being filed go to a city council meeting and prepare to present a trial on record trying to remove rights to report the news. When the city took no action decided to use the courts in a false pretense and light to acquire a restraining order. And each time the person was seen crossing paths that that was as excuse to claim it was a violation of a the restraining order. Not done once but on four separate occasions falsely.
Where the city of Tulelake is responsible for allowing these items to be placed on the agenda without due process of law. Along with a hearing for a complainant against the Chief of Police and no notification was issued or received by the complainant officially from the city of Tulelake for the March 17, 2014 hearing.
Where now litigation will be started and filed in the Supreme Court in Yreka pointing out these areas of violations of not only the “Brown Act” but violations of the 1st, 5th, 9th and 14 amendments of the United States Constitution.
The reverse has transpired here and the harassment that has followed against the complainant for writing news articles that were not in a good light that they were about that took place at a public meeting by their own doing. Which by order of the court the complaint has been allowed to attend but due to his health and safety has decided not to. But will continue to write the news stories on city council meetings by getting the agenda for all future regular and special meetings of the city council, along with the minutes from each of those meetings.
ARGUMENT
I. The First Amendment Broadly Protects the Right to Criticize People, Including Private Figures.
By its own terms, Georgia’s stalking statute “shall not apply to persons engaged in activities protected by the Constitution of the United States or of this state.” OCGA § 16-5-92. Criticism of people is generally constitutionally protected, unless it falls within the narrow existing First Amendment exceptions, such as for defamation and threats.[1] This extends to speech about private individuals as well as to speech about public figures.
To be sure, courts have allowed some restrictions on harmful speech said to an unwilling listener through a one-to-one medium of communication (such as telephone or e-mail), when that speech was seen as constituting harassment or stalking. But such restrictions on speech to a particular unwilling listener leave speakers entirely free to speak to willing listeners, and to try to persuade those willing listeners that the subject of the speech is behaving improperly. As the cases cited above show, restrictions on such speech about an unwilling subject cannot be justified by the propriety of restrictions on speech to the person. See Eugene Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyberstalking,” 107 Nw. U. L. Rev. 731, 745-46 (2013) (discussing the constitutional distinction between speech about people and speech to people).
These cases also show that Mr. Chan’s speech is constitutionally protected. Ms. Ellis engaged in behavior that many people view as unethical, and indeed as an attempt to suppress others’ statutorily and even constitutionally protected fair use rights. Golan v. Holder, 132 S. Ct. 873 (2012) (describing the right to fair use of copyrighted materials as a “‘built-in First Amendment accommodation[]’” (quoting Eldred v. Ashcroft, 537 U.S. 186, 190 (2003))). Discussion of such behavior “concern[s] ‘a matter of public significance,” which is defined as requiring only that the posts “generally, as opposed to the specific identity contained within [them], involved a matter of paramount public import,” Florida Star v. B.J.F., 491 U.S. 524, 536-37 (1989) — the matter here being whether copyright enforcement is being used in an unethical and speech-stifling matter.
Mr. Chan criticized Ms. Ellis’s business practices, and Ms. Ellis may have viewed some of that criticism as untrue; but any legal action Ms. Ellis takes in response to alleged falsehoods must abide by the constitutionally required limitations on the defamation tort. See Hustler, 485 U.S. at 56 (applying First Amendment limits on defamation law to intentional infliction of emotional distress claim); Time, Inc. v. Hill, 385 U.S. 374, 387-88 (1967) (applying First Amendment limits on defamation law to false light invasion of privacy claim). The abbreviated and expedited procedures that OCGA § 16-5-94 envisions for genuine cases of stalking are not designed to resolve the legal questions involved in a defamation action. “A petitioner should not be able to evade the limits on defamation law (many of them constitutionally mandated) by redesignating the claim as civil harassment.” Caplan, Free Speech and Civil Harassment Orders, 64 Hastings L.J. at 821; see also id. at 837, 849.
Ms. Ellis also claims that the website contains true threats against her. Mr. Chan criticized Ms. Ellis, and provided a forum in which others criticized her as well. Even if some of the material posted on the forum is properly viewed as physically threatening — and amici think that it is not — the injunction goes very far beyond threatening speech, and covers all the material posted about Ms. Ellis. Likewise, that Mr. Chan posted the name of Ms. Ellis’s husband and the subdivision in which Ms. Ellis lived cannot justify an injunction, just as the posting of Mr. Keefe’s actual home telephone number could not justify an injunction in Keefe.
Indeed, the only possible justification for the remarkable breadth of the injunction in this case (“Respondent is hereby ORDERED to remove all posts relating to Ms. Ellis,” Final Permanent Protective Order, T. 121) would be a conclusion that Ms. Ellis is entitled not to be sharply criticized online at all. The injunction is not limited to threatening statements or even to statements that discuss Ms. Ellis’s husband or the area in which Ms. Ellis lives (though, again, such statements may well be protected given Keefe); instead, it applies to all speech about Ms. Ellis. Yet, under the First Amendment, no such entitlement to be free from criticism can exist.
….
[1] Defamation cases are, of course, substantially constrained by the First Amendment. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). Defamation is included here as a First Amendment exception simply in the sense that properly limited defamation statutes that comply with the rules set forth in Sullivan, Gertz, and related cases are constitutional.
Written by James Garland of Tulelake News
PO Box 772
Tulelake, CA 96134-0772
Home Phone (530) 667-4744
Cell # (530) 708-7852
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