Is Criticizing a Public Official on Facebook “Stalking”?

Stalking is a criminal offense in Georgia. State law defines stalking as following, placing under surveillance, or contacting another person without their consent for the purpose of “harassing and intimidating” them. A first offense for stalking is a misdemeanor, with any subsequent convictions are felonies.

Additionally, a person who believes they are a victim of stalking may ask the court for a protective order. As this was a civil matter, the accuser need only prove by a “preponderance of the evidence” that they are in reasonable fear for their safety due to the respondent’s actions. If the court issues the protective order and the respondent violates its terms, they can be charged with criminal stalking.

Court of Appeals Tosses Injunction Against Political Activist

Although most stalking cases involve people in family or dating relationships, the rise of social media has made it much easier for people to stalk complete strangers. At the same time, Georgia courts have drawn the line between “stalking” and simply posting unfavorable or unpleasant comments to social media targeting a specific person. Indeed, the Georgia Court of Appeals recently reversed a protective order issued under such circumstances.

The case before the court, Calhoun v. Harrell, involved a petitioner who chairs a county board of commissioners. The respondent, a local political activist, posted a series of comments about the petitioner. For example, in one comment the respondent called the petitioner a “snake.” In another, she said she came from “traitorous ancestors” (Both parties are Black.)

Eventually, the petitioner sought a protective order in her non-official capacity. The petitioner testified that she was afraid of the respondent, and that her repeated Facebook comments were “words of incitement” meant to “rile up the Black community to attack” her. In response, the respondent said she was simply a community activity exercising her First Amendment right to say “what the community needs to hear about corrupt politicians.”

The judge, however, was unconvinced by this defense. The court issued a three-year protective order against the respondent. In explaining its ruling, the trial court chastised the respondent for her “foul” and “vile” language.

The Court of Appeals declined to address whether the respondent’s actions were protected by the First Amendment. The Court nevertheless reversed the three-year protective order, because the evidence presented by the petitioner failed to establish the respondent’s actions constituted “stalking” in the first place. Specifically, there was no evidence that the respondent ever “contacted” the petitioner as required by the statute. Simply posting about a person on social media was not the same thing as making direct contact with that person. (One judge on the Court of Appeals wrote separately to suggest that there might be situations where social media posts could violate anti-stalking laws; this was simply not such a case.)

Contact Hawkins Spizman Trial Lawyers Today

If you are accused of stalking or violating a protective order, you may be facing serious criminal charges that could send you to prison. A qualified Atlanta domestic violence lawyer can provide you with guidance and representation in these cases. Call Hawkins Spizman Trial Lawyers today to schedule a free consultation. We serve clients throughout Georgia including Atlanta, Dunwoody, Alpharetta, Cobb County, Fulton County, Gwinnett County, Johns Creek and Sandy Springs.

Source:

efast.gaappeals.us/download?filingId=fc02e400-3e8c-45ac-85a3-f6789e7b6b6a