Georgia Court Censorship Order Threatens Message Boards Everywhere

Earlier this month, a Georgia Superior Court issued a breathtaking restraining order against Matthew Chan, the operator of a copyright troll criticism message board, holding him responsible for the posts of his users.  As part of the Court’s reasoning, Judge Frank Jordan wrote:

As the owner and operator of the site, Respondent has the ability to remove posts in his capacity as the moderator. However, Respondent chose not to remove posts that were personally directed at [Petitioner Linda] Ellis and would cause a reasonable person to fear for her safety.

The Court used this as a basis to order Chan “to remove all posts relating to Ms. Ellis.” All posts, not just posts that might threaten Ellis, or even just those written by Chan.  This woefully overboard restraint on speech not only threatens freedom of expression, it also ignores Section 230 of the Communications Decency Act, the legal cornerstone upon which all user-generated content websites are built.

Background: The Troll Went Down to Georgia

Chan operates Extortion Letter Info, a website dedicated to providing information for recipients of settlement demand letters about copyright infringements. It hosts forums, including some message boards (currently unavailable) that discussed Linda Ellis, the notorious poem copyright troll.  

Ellis wrote an inspirational poem, The Dash, and its sentimental musings on the value of focusing on the important things in life resonated with quite a few people, some of whom posted it online on blogs and websites. The poem isn’t going to win the Nobel Prize for Literature, but it led to a career. Between gigs as a motivational speaker, Ellis has a side business of sending copyright infringement notices to alleged infringers, threatening the maximum statutory damages of $150,000 plus attorneys fees. However, she will settle her claims for infringement of the poem, which is available for free on her website, for a mere $7,500.

Eventually Chan and his message board got involved, and people began to comment about Ellis and her demand letters. As many copyright trolls have found, their tactics are often reviled and frequently criticized. As we understand it, many comments on the board were quite negative. According to Ellis, some of these posts, by Chan and others, went beyond the pale, and amounted to stalking and cyber-bullying. She went to a Superior Court in Georgia to get a restraining order against Chan.

Legal Analysis: The Court Order is Overbroad and Dangerous

Stalking and harassment are serious charges, and require a serious and well-reasoned response. The overbroad order is wrong because it violates the First Amendment and federal law. 

Under the First Amendment, courts limit injunctions in restraint of speech to the rare circumstances when (1) the activity to be restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest, (2) the order is narrowly drawn and (3) less restrictive alternatives are not available.   

Since the message boards are now down, we can’t read what the messages may have said.  But the Court’s order cannot stand, even assuming that some posts fell below the level of protected speech under the strict true threat test: “A true threat is a serious threat and not words uttered as mere political argument, idle talk, or jest.” It has to be considered in context, and with “a commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”

Removing “all posts relating to Ms. Ellis” is neither narrowly tailored nor the least restrictive means of addressing any true threats. It fails the First Amendment test because of the collateral damage: it will take down constitutionally-protected criticism of the copyright troll