The Volokh Conspiracy

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Free Speech

Court Vacates "Stalking … Protective Order" Entered Against Critic of Elected Official

The official argued, among other things, that defendant's speech constituted "words of incitement" intended "to rile up the Black community to attack [her]."


From Tuesday's decision in Calhoun v. Harrell by the Georgia Court of Appeals, written by Judge Anne Elizabeth Barnes and joined by Judge Elizabeth Gobeil:

Marion D. Calhoun appeals from a Stalking Three Year Protective Order entered against her and in favor of Carlotta Harrell. Calhoun contends that her conduct at issue—posting to Facebook comments relating to Harrell, the Chair of the Henry County Board of Commissioners—amounted to engaging in constitutionally protected political speech and was, at any rate, insufficient to authorize the order….

As background, it is undisputed that Harrell procured in 2021 a one-year stalking protective order against Calhoun. The record shows that the following year, in May 2022, Harrell returned to court and filed … the petition that led to the now contested three-year protective order. In support of that petition, Harrell swore, "Calhoun has continued to make posting[s] on social media that have an undertone of violence…. I continue to be in constant fear of my life and safety because of the constant stalking of Ms. Calhoun via social media." …

[At the hearing,] Harrell began her case by calling Calhoun to the stand. During such cross-examination, Calhoun described herself as a Black community activist; and she admitted that she had posted to Facebook a series of comments about Harrell, who is also Black. In response to various questions, Calhoun admitted that in a February 2022 post, she called Harrell and another individual "snakes"; that in a different February 2022 post, she called Harrell and another individual "MFERS" who had come from "traitorous ancestors"; that in another February 2022 post, she talked about Harrell's "blood line"; that in other February 2022 posts, she commented about Black politicians in Henry County; that in a March 2022 post, she referred to Harrell's father as "just another dam pimp in the pulpit"; that in a March 2022 post, she said that Black politicians in the county could come get her because they knew where she was; that in an April 2022 post, she said that Harrell was a "skunk"; that in another post, she described Harrell as a "piece of crap"; that in other posts between August 2021 and April 2022, she characterized Harrell's mode as "fetching and stepping," "skinning and grinning," and being a "house Negro." When asked whether she had meant her name-calling as compliments, as fighting words, or as something else, Calhoun's response included: "[Harrell] knows why I wrote that. She's black." [For more details on the posts, see pp. 3-6, nn. 5-14 of the opinion. -EV]

When Harrell took the stand, she testified that she was the Chairman of the Board of Commissioners in Henry County, but had brought the action in her private capacity explaining that "[i]t's about my safety"; that she was afraid of Calhoun; and that she considered certain of Calhoun's name-calling to be fighting words and as "words of incitement" intended "to rile up the Black community to attack [her]." Harrell further testified that Calhoun's "going after [her] family" was something Calhoun had added since the previous protective order. When asked how she felt about Calhoun's posts collectively, Harrell responded,

I feel threatened. I feel that my life is threatened…. And now … she's talking about my father who was a pastor of a church of 40 years. She doesn't even know my father…. She knows nothing about me. She just seems to be a very angry person, and I consider her to be a threat to my life.

When Calhoun returned to the stand for direct examination, she testified, "I'm a community activist, and I say what the community needs to hear about corrupt politicians," and she pointed out that she had posted to Facebook her opinions about several other elected officials. Calhoun further testified, "That's what community activists do. I exercised my First Amendment right in strong terms, but it does not mean that I want to hurt [Harrell]." As she described herself, "I'm a good person who has chosen as her life work to be a voice of the people, a steward of government, and a good person in my community who is willing to help others in need[.]"

Calhoun gave examples of programs she had started, including creating a softball league for girls, initiating programs to address drug addiction suffered by certain individuals, assisting with the start-up of a county drug court, and helping probationers such that imprisonment was "the last resort." She explained, "I'm very vocal because I'm very concerned about what happens to the people, and it has nothing to do with me wanting to hurt Carlotta Harrell, but it's about making the people understand that they have rights[.]" She testified, "I must let the people know, and I'm not gonna always be Ms. Pretty Pretty about a word," but "I mean [Harrell] no harm whatsoever."

At the end of the hearing, the trial court announced its finding that Calhoun's use of certain language in the Facebook posts was in violation of the stalking statute. Reciting from that statute, the court expounded:

It says—and this is the Code Section on stalking—harassing and intimidating another person, and then it says, it means knowingly and willful course of conduct directed at a specific person which causes emotional distress by placing and such person in reasonable fear …. It's your language that is the problem here. I'm going to extend the restraining order. It doesn't mean to say that you can't say, Vote against [Harrell]. Run against her. That's fine. But when you start using that foul language, you've got a problem. That's where the problem lies, not in what you're trying to do…. You call them snakes. You call them just the vilest names I can think of, and you can't do that.

The court acknowledged to Calhoun that "[y]ou do a lot of good," but suggested, "You need to start being pretty pretty about words. Some of it comes from the recipient as a threat." Referring to one specific Facebook post, the court said to Calhoun, "[W]hen you start talking about crooked, manipulative, lying, evil, selfish garbage, you've gone beyond the way you need to be. That's threatening. That violates the Code."

The appellate court held in Calhoun's favor, largely relying on Chan v. Ellis (Ga. 2015) (a case in which I had the pleasure of arguing on behalf of amici):

In Chan, the Supreme Court of Georgia explained,

For purposes of the [stalking] statute, one "contacts another person" when he [or she] "communicates with another person" through any medium, including an electronic medium. 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. Common and customary usage suggests as much, 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."

As Chan further explained, "That a communication is about a particular person does not mean necessarily that it is directed to that person." … Holding that "[t]he publication of commentary directed only to the public generally does not amount to 'contact,' as that term is used in [the relevant statute]," Chan concluded that "[appellee] failed to prove that [appellant] 'contacted' her without her consent, and [that] the trial court erred when it concluded that [appellant] had stalked [appellee]." …

Given our holding …, it is not necessary to reach Calhoun's remaining (constitutional) challenge to the Stalking Three Year Protective Order.

Judge Gobeil joined the majority opinion, but added:

I write separately to note that our decision should not be read as implying that social media posts categorically cannot be used in violation of anti-stalking laws—or other laws for that matter (like incitement to an illegal act). In this case, Calhoun's words and actions—as offensive and understandably unsettling as they are—simply fail to rise to the level of "contact" for stalking given … Chan ….

Judge Trea Pipkin dissented, arguing:

In Chan v. Ellis, Matthew Chan's website had become a repository for criticism of a poet and her efforts to enforce the copyright on her work; the website featured "2,000 posts" about the poet, "some of which [were] distasteful and crude." … The posts in this case, on the other hand, were not limited to someone's personal website; instead, Calhoun used social media, namely, Facebook to target Harrell.

Consistent with the design of social media, a number of Calhoun's posts "tag" dozens of other Facebook users and utilize numerous "hashtags," both of which would be designed to enlarge the audience of her posts; it would be reasonable to infer that these tactics were also designed to reach Harrell, especially given that many of the posts are directed at Harrell and a number are written in the second person. Thus, construing the evidence in favor of the findings of the trier of fact, as we must, I disagree with the majority opinion that "the record does not show that Calhoun did anything to cause her posts to be delivered to Harrell or otherwise brought to her attention." In fact, the record shows that Harrell's sister became aware of the posts and issued a response; Calhoun then quoted that response in a subsequent post and used it to continue her barrage of words toward Harrell.

While I recognize that we must be mindful of restricting speech, Calhoun's numerous posts are filled with grotesque racial attacks and unsubstantiated allegations of criminal conduct, which target both Harrell and her family. Further, the undisputed evidence established that Harrell feared for her safety and that she felt threatened by Calhoun. In light of the evidence presented to the trial court below, it is imperative that we abide by our well-established standard of review and uphold the trial court's sound exercise of its discretion.

It seems to me that the majority got this right; see this article for more. Ivan Andrew Gustafson represents Calhoun.