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 and her demands for money. For example, Ellis complained that “there were vile posts of blasphemy.” While blasphemy is doubtless offensive to Ellis, it remains protected speech.
The Georgia Court’s overreaching order against Chan also contradicts federal law because it holds a service provider to account for users' posts. Section 230 protects websites that host content posted by users, providing immunity for a website from state law claims (including criminal law) based on the publication of "information provided by another information content provider."
There is no exception to Section 230 when the provider can remove content, but fails to do so. To the contrary, as the Fourth Circuit cogently explained in Zeran v. America Online, one of the first major Section 230 decisions,
[L]awsuits seeking to hold a service liable for its exercise of a publisher’s traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content – are barred. The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium.
While Georgia is not in the Fourth Circuit, the state Supreme Court has recognized and cited Zeran. Since Zeran, court after court has recognized the same principle: “so long as a third party willingly provides the essential published content, the interactive service provider receives full immunity regardless of the specific editing or selection process."
Instead, the responsibility lies with the speaker. Everyone who posted on the board is responsible for what they wrote, including Chan, though they also enjoy the rights to speak freely enshrined within the Constitutions of the United States and Georgia, including the right to anonymous speech.
The Court’s ruling, ignoring the safe harbor for a website’s editorial decisions, is dangerous because it threatens freedom of expression throughout the internet. All message board operators, and indeed all websites that host user content, have the ability to remove posts. Even message board moderators, often unpaid volunteers, have that ability as part of their job. If the decision were taken to mean that operators are responsible for whatever users post, websites will have no choice but to censor anything marginally questionable. Moderators, ironically a necessity to keep boards on topic and within the online community’s standards, will become hard to find.
Fortunately, this is not the law, and so the internet has been able to thrive as the most vibrant medium of expression the world has ever known. Hopefully the Georgia Court of Appeals will correct the trial court's mistake, and overrule the dangerous language in the Order.