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8 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON 9 10 IN AND FOR KING COUNTY

11 ZOE T. QUINN, NO. 15-2-10412-8 SEA 12 Petitioner, RESPONDENT’S SUPPLEMENTAL 13 v. RESPONSE TO PETITION FOR 14 ERON GJONI, ORDER OF PROTECTION

15 Respondent. Hearing Date: June 17, 2015 Time: 8:30am 16 Room: W291 17 18 19 20 21 22 23 24 25 26 27

RESPONDENT’S SUPPLEMENTAL RESPONSE TO PETITION FOR focal PLLC ORDER OF PROTECTION - 1 800 Fifth Ave., Ste. 4100 Seattle, Washington 98104 Tel: (206) 529-4827 Fax: (206) 260-3966

1 TABLE OF CONTENTS

2 INTRODUCTION ...... 1 3 I. MS. QUINN HAS NOT SATISFIED THE REQUIREMENTS FOR A DV 4 PROTECTION ORDER ...... 1

5 A. This Is Not A Domestic Violence Case...... 1

6 B. Ms. Quinn Fails to Demonstrate That Respondent is Engaged in Stalking...... 2 7 1. “The Zoe Post” Was Not a “Course of Conduct” “Directed At” Ms. Quinn...... 3 8 2. The Speech of Third Parties Does Not Support the Request for a Domestic Violence 9 Protection Order...... 6

10 II. GJONI CANNOT BE HELD RESPONSIBLE FOR THIRD PARTY CONTENT CONSISTENT WITH SECTION 230 ...... 7 11

12 A. The Allegedly Offending Content is Provided by Third Parties...... 8

13 B. Ms. Quinn Seeks to Hold Gjoni Responsible as a Publisher...... 9

14 III. MS. QUINN’S PROPOSED ORDER WOULD VIOLATE THE FIRST AMENDMENT ...... 9 15

16 A. Ms. Quinn Seeks an Order that is an Unconstitutional Prior Restraint...... 9

17 B. The Government Cannot Criminalize Speech Merely Because it Offends...... 12

18 IV. THE COURT LACKS PERSONAL JURISDICTION OVER GJONI, A MASSACHUSETTS RESIDENT...... 13 19 20 CONCLUSION AND RELIEF REQUESTED ...... 14

21 22 23 24 25 26 27

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1 TABLE OF AUTHORITIES

2 Cases

3 Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 (W.D. Wash. 2012) ...... 8 4 Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003)...... 7, 8 5 Boos v. Barry, 485 U.S. 312 (1988) ...... 12 6 Brandenburg v. Ohio, 395 U.S. 444 (1969) ...... 13 7 Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003)...... 8 8 Chan v. Ellis, Case No. S14A1652, 2015 Ga. LEXIS 200 (Ga. Mar. 27, 2015) ...... 3 9 Commonwealth v. Johnson, 21 N.E.3d 937 (Mass. 2014) ...... 5, 11 10 Delfino v. Agilent Technologies, Inc., 145 Cal. App. 4th 790 (2006) ...... 9 11 Hobart v. Ferebee, 692 N.W.2d 509 (S.D. 2004) ...... 10 12 Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) ...... 12 13 Horowitz v. Horowitz, 160 So. 3d 530 (Fla. Dist. Ct. App. 2015) ...... 4 14 Hupp v. Freedom Commc’ns, Inc., 221 Cal. App. 4th 398 (Cal. App. Ct. 2013) ...... 8 15 In re Marriage of Freeman, 169 Wn.2d 664 (2010)...... 2 16 In Re Marriage of Meredith, 148 Wn. App. 887 (2009)...... 11 17 In re Marriage of Suggs, 152 Wn.2d 74 (2004) ...... 10 18 Johnson v. Arlotta, Case No. A11-630, 2011 Minn. App. Unpub. LEXIS 1059 (Minn. Ct. App. 19 Dec. 12, 2011) ...... 5 20 Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398 (6th Cir. 2014) ...... 7 21 Miller v. Fed. Express Corp., 6 N.E.3d 1006 (Ind. Ct. App. 2014) ...... 9 22 Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) ...... 10 23 Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 564 F. Supp. 2d 544 (E.D. Va. 2008) ...... 8 24 Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532 (E.D. Va. 2003) ...... 8 25 Org. for a Better Austin v. Keefe, 402 U.S. 415 (1971) ...... 10 26 People v. Golb, 15 N.E.3d 805 (N.Y. 2014) ...... 12 27

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1 Snyder v. Phelps, 562 U.S. 443 (2011), ...... 12 2 Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 180 L. Ed. 2d 544 (2011) ...... 11 3 Soundgarden v. Eikenberry, 123 Wn.2d 750 (1994) ...... 11 4 State v. Alexander, 76 Wn. App. 830 (1995) ...... 13 5 State v. Becklin, 163 Wn.2d 519 (2008) ...... 6 6 State v. Coe, 101 Wn.2d 364 (1984) ...... 10 7 State v. Kilburn, 151 Wn.2d 36 (2004) ...... 11 8 State v. LaFontaine, 16 A.3d 1281, (Conn. App. Ct. 2011) ...... 12 9 State v. Moulton, 991 A.2d 728 (Conn. App. Ct. 2010) ...... 12 10 State v. Parmlee, 108 Wn. App. 702 (2001) ...... 6 11 United States v. Cassidy, 814 F. Supp. 2d 574 (D. Md. 2011) ...... 4, 13 12 Vazquez v. Buhl, 90 A.3d 331 (Conn. App. Ct. 2014) ...... 8 13 Vrasic v. Leibel, 106 So. 3d 485 (Fla. Dist. Ct. App. 2013) ...... 13 14 Statutes 15 RCW 10.14.020 ...... 3, 4, 5, 6 16 RCW 26.50.010 ...... 2 17 RCW 26.50.030 ...... 1 18 RCW 26.50.110 ...... 12 19 RCW 26.50.240 ...... 13 20 RCW 9A.46.110...... 2 21 Other Authorities 22 Aaron H. Caplan, Free Speech & Civil Harassment Orders, 64 Hastings L.J. 781 (2013) ...... 10 23 24 25 26 27

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1 INTRODUCTION1 2 Respondent Eron Gjoni does not belittle any harm that Petitioner Zoe Quinn may have 3 suffered as a result of online invective from third parties. But her request for a domestic violence 4 protection order against Gjoni is not an appropriate vehicle to address the online speech of third 5 parties and it must be denied for several independent reasons. First, she does not satisfy the 6 requirements for a domestic violence protection order because Gjoni has not engaged in any of the 7 acts enumerated by the statute. Ms. Quinn implicitly admits that Gjoni did not harass, physically 8 injure, or repeatedly contact her, and also acknowledges that an order will not remedy the 9 harassment from unrelated third parties that is really at issue. Second, her request to hold Gjoni 10 responsible for the content provided by others is barred by Section 230 of the Communications 11 Decency Act, which provides broad immunity to users and providers of interactive computer 12 services. Third, the broad relief she seeks—enjoining Gjoni from speaking “about” her “online in 13 any forum” for 10 years—constitutes an unconstitutional prior restraint on speech, which, even if

14 issued following a full adjudication on the merits would, not comport with the First Amendment. 15 Gjoni, therefore, respectfully requests that the Court quash the previously entered order 16 and deny Ms. Quinn’s request for a permanent domestic violence protection order.

17 I. MS. QUINN HAS NOT SATISFIED THE REQUIREMENTS FOR A DV PROTECTION ORDER 18 19 A. This Is Not A Domestic Violence Case. 20 To substantiate her request for a protection order, Ms. Quinn must allege “the existence of 21 domestic violence” and support that allegation with the “specific facts and circumstances” on

22 which her claim for relief is based. RCW 26.50.030(1). This is a burden she has not met. 23 “Domestic violence” is defined to include the following actions between “family or 24 household members”: “(a) Physical harm, bodily injury, assault, or the infliction of fear of 25

26 1 Counsel for Respondent contacted counsel for Petitioner to request her stipulation to the slight expansion of the page limit for the parties’ supplemental briefing. Petitioner’s counsel agreed to the expansion. Respondent respectfully 27 seeks leave for a two page expansion.

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1 imminent physical harm, bodily injury or assault”; “(b) sexual assault”; or “(c) stalking as defined

2 in RCW 9A.46.110”. RCW 26.50.010(1). 3 Ms. Quinn does not explicitly identify the type of domestic violence underlying her 4 request. She does describe an incident that allegedly took place in San Francisco in about July 5 2014 where consensual sexual intercourse turned forceful. Gjoni denies this allegation. (See 6 Supplemental Declaration of Eron Gjoni (“Supp. Gjoni Decl.”).) In any event, even if it were true, 7 which it is not, the allegations supporting a petition for a domestic violence protection order “must 8 reasonably relate to physical harm, bodily injury, assault, or the fear of imminent harm. It is not 9 enough that the facts may have justified the order in the past. Reasonable likelihood of imminent 10 harm must be in the present.” In re Marriage of Freeman, 169 Wn.2d 664, 674 (2010). Here, Ms. 11 Quinn does not allege any reasonable likelihood of imminent, ongoing harm from Gjoni, aside 12 from his public posts mentioning her generally (which, as set forth below, cannot form the basis of 13 liability). She also admits that the parties have not had any direct contact—aside from possible 14 joint appearances at court proceedings—since the parties ceased communicating in August or 15 September 2014. Thus, Ms. Quinn’s allegation of past harm inflicted by Gjoni does not adequately

16 support her request for a domestic violence protection order.

17 B. Ms. Quinn Fails to Demonstrate That Respondent is Engaged in Stalking. 18 Nor has Ms. Quinn shown that Gjoni stalked her within the meaning of the Domestic 19 Violence Prevention Act. RCW 26.50.010(1)(c) incorporates the criminal definition of stalking in

20 RCW 9A.46.110, which provides that a person commits the crime of stalking if he or she:

21 (a) . . . intentionally and repeatedly harasses or repeatedly follows another person; and 22 (b) The person being harassed or followed is placed in fear [that a 23 reasonable person would experience] that the stalker intends to injure the person, another person, or property of the person or of another person. . . ; and 24 (c) The stalker either: (i) Intends to frighten, intimidate, or harass the person; or (ii) Knows or reasonably should know that the person is afraid, 25 intimidated, or harassed even if the stalker did not intend to place the person in fear or intimidate or harass the person. 26 27 RCW 9A.46.110(1). “Repeatedly” means “on two or more separate occasions,” RCW

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1 9A.46.110(6)(e), and “harasses” means: 2 a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, harasses, or is detrimental to such person, and which 3 serves no legitimate or lawful purpose. The course of conduct shall be such as would cause a reasonable person to suffer substantial emotional distress, and shall 4 actually cause substantial emotional distress to the petitioner[.]

5 RCW 10.14.020(2) (emphasis added). And “course of conduct” is defined as:

6 a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. “Course of conduct” includes, in 7 addition to any other form of communication, contact, or conduct, the sending of an electronic communication, but does not include constitutionally protected free 8 speech. Constitutionally protected activity is not included within the meaning of “course of conduct.” 9

10 RCW 10.14.020(1). 11 Here, Ms. Quinn admits that Gjoni has not “explicit[ly], direct[ly] threat[ened]” her. 12 (Memorandum in Support of Petition for Domestic Violence Protection Order (“Memo.”) at 4.) 13 Rather, she attempts to link the harassment she may have suffered from unrelated third parties on 14 the internet to Gjoni’s “The Zoe Post.” (Id.) But “The Zoe Post” itself does not support a claim of

15 stalking and Gjoni cannot be held responsible for the online speech of unrelated third parties.

16 1. “The Zoe Post” Was Not a “Course of Conduct” “Directed At” Ms. Quinn. 17 The relevant definition of “harasses” requires, in part, “a knowing and willful course of 18 conduct directed at a specific person,” with “course of conduct” defined as “a pattern of conduct 19 composed of a series of acts over a period of time, however short, evidencing a continuity of 20 purpose.” RCW 10.14.020(1)-(2) (emphasis added). Here, “The Zoe Post” cannot be considered a 21 “pattern of conduct composed of a series of acts.” Moreover, while the post was “about” Ms. 22 Quinn, this does not mean that it was “directed at” her for purposes unlawful harassment. A

23 decision from the Georgia Supreme Court illustrates this critical distinction. 24 In that case, Matthew Chan had a website on which he and others published commentary 25 on what they believed to be the predatory copyright enforcement practices of, among others, poet 26 Linda Ellis. Chan v. Ellis, Case No. S14A1652, 2015 Ga. LEXIS 200, *1-2 (Ga. Mar. 27, 2015). 27 After learning of the posts, Ellis sued Chan for injunctive relief under a Georgia statute stating that

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1 a person commits the offense of stalking when he “contacts another person at or about a place or 2 places without the consent of the other person for the purpose of harassing and intimidating the 3 other person.” Id. at *4 (internal quotation marks omitted). A person “contacts” another when he 4 “communicates with another person through any medium, including an electronic medium.” Id. 5 (internal quotation marks omitted). Another provision of Georgia’s stalking statute defined 6 “harassing and intimidating” using the exact language in Washington’s definition of “unlawful 7 harassment,” specifically, “a knowing and willful course of conduct directed at a specific person.”

8 Id. at *5 (internal quotation marks omitted); RCW 10.14.020(2) (defining “unlawful harassment”). 9 Concluding that the fact that “a communication is about a particular person does not mean 10 that it is directed to that person,” the Chan court held that though the posts were about Ellis they 11 were not directed specifically to her as opposed to the general public. 2015 Ga. LEXIS 200 at *5, 12 8. Thus, because the “publication of commentary directed only to the public generally does not 13 amount to ‘contact,’ as that term is used in” Georgia’s stalking statute, the court held that Ellis had 14 failed to prove that Chan had “contacted” her. Id. at *9. A recent decision from Florida similarly 15 denied a request for a protection order based in part on Facebook posts that were not directed at 16 the putative victim. The court found that the posts could not support cyberstalking because “posts 17 to one’s own Facebook page are not directed at a specific person[.]” Horowitz v. Horowitz, 160

18 So. 3d 530, 531 (Fla. Dist. Ct. App. 2015). 19 Similarly, here, “The Zoe Post”—posted online in a publicly-accessible forum—may have 20 been “about” Ms. Quinn but it was not “directed at” her within the meaning of the statute upon 21 which her petition is based. See also United States v. Cassidy, 814 F. Supp. 2d 574, 584-86 (D. 22 Md. 2011) (in criminal prosecution for stalking based on Twitter and blog posts, questioning 23 whether the posts were targeted at an individual: “Twitter and Blogs are today’s equivalent of a 24 bulletin board that one is free to disregard, in contrast . . . to e-mails . . . directed to a victim”). 25 Indeed, Ms. Quinn acknowledges that not only does Gjoni not contact her or direct any course of 26 conduct at her, she finds out about his posts via Google alerts that she sets in order to monitor 27 mentions about her online. In other words, far from being “directed at” her, she actively seeks out

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1 posts Gjoni may have made that mention her in any way. (See Declaration of Zoe Quinn in 2 Support of Domestic Violence Protection Order (“Quinn Decl.”) at 8.) Setting First Amendment

3 concerns aside, this cannot be “unlawful harassment” under RCW 10.14.020.

4 Neither Johnson v. Arlotta nor Commonwealth v. Johnson requires a contrary conclusion. 5 Commonwealth v. Johnson involved a criminal prosecution for, in part, harassment. 21 6 N.E.3d 937, 943-44 (Mass. 2014). Four separate incidents of harassment were alleged: defendant’s 7 posting of two craigslist’s advertisements posing as the victims; and defendant’s sending of two 8 emails to the victims from a fictitious account. Id. at 941-43. Johnson, therefore, involved conduct

9 directly targeted at the alleged harassment victims, conduct that is absent here. 10 Johnson v. Arlotta is similarly distinguishable. Case No. A11-630, 2011 Minn. App. 11 Unpub. LEXIS 1059 (Minn. Ct. App. Dec. 12, 2011) (“Arlotta”). The defendant consented to an 12 earlier harassment restraining order that prohibited him from, in part, committing any acts 13 “intended to adversely affect [plaintiff’s] safety, security, or privacy,” and having any contact with 14 plaintiff “in person, by work or home e-mail, by telephone, or by other means or persons.” 2011 15 Minn. App. Unpub. LEXIS 1059 at *1-2. Two days after the consent order was entered, the 16 defendant created a blog in which he documented his relationship issues with plaintiff and 17 discussed personal information about her. The defendant then publicized the blog by sending 18 messages to plaintiff’s relatives, friends, and others including the father of plaintiff’s child, 19 members of her high school graduating class, and her employer. Id. at *2-3. In response, relatives, 20 friends and others contacted plaintiff about defendant’s contacts and messages. Plaintiff then 21 sought a new harassment restraining order, which the court granted, prohibiting defendant from 22 “[a]ny email or other electronic message contact with third-parties that contains any material 23 concerning [plaintiff] that affects or intends to adversely affect [her] safety, security, or privacy.” 24 Id. at *3-4. In affirming the order, the appellate court relied upon (1) the trial court’s determination 25 that all of defendant’s actions took place while the earlier agreed-upon restraining order was in 26 effect, and (2) the fact that defendant’s communications were directed at plaintiff’s “family, 27 friends, and coworkers [and] were calculated to and did reach” plaintiff. Id. at *6, 13. The

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1 circumstances here are remarkably different where Gjoni has never consented to an order 2 restraining his speech and his “The Zoe Post”—which Ms. Quinn admits does not contain any 3 explicit, direct threats—simply is not comparable to the campaign of harassment in Arlotta that the

4 defendant directed specifically at the plaintiff through her family, friends, and coworkers. 5 The true focus of Ms. Quinn’s petition is the alleged harassment she suffered from third 6 parties on the internet. But the Court cannot restrain the future speech of Gjoni based on the

7 conduct and speech of unrelated third parties under the circumstances of this case.

8 2. The Speech of Third Parties Does Not Support the Request for a Domestic 9 Violence Protection Order. 10 The statutory language requires that Ms. Quinn show that Gjoni has engaged in a 11 “knowing and willful course of conduct directed at [her] which seriously alarms, annoys, harasses, 12 or is detrimental” to her. RCW 10.14.020(2). Although our Supreme Court has held in the context 13 of a criminal prosecution that harassment and/or stalking may be accomplished through third 14 parties, the evidence must establish that the defendant “directed” or “manipulated” the alleged 15 third party harassment. State v. Becklin, 163 Wn.2d 519, 528-29 (2008). Thus, in Becklin, the 16 defendant’s friends repeatedly drove his cars by the victim’s home, filled out written reports to 17 defendant reporting on their sightings of her, and followed her, all of which gave rise to an 18 inference that the defendant had directed his friends to engage in this allegedly harassing conduct. 19 Id. at 522-24. In State v. Parmelee, a defendant’s stalking conviction was upheld where he tricked 20 his fellow inmates into writing explicit emails to his estranged wife, convincing them that she

21 would “welcome” these communications. 108 Wn. App. 702, 709-10 (2001). 22 But here, there is no similar evidence that Gjoni directed or manipulated the third-party 23 online speech about which Ms. Quinn complains. She offers no such evidence but instead suggests 24 that because he allegedly “knew” that unknown and unrelated third parties would harass her on the 25 internet he should be restrained from speaking “about” her in any online forum. (See, e.g., Memo. 26 at 2.) Gjoni’s statement was a passing reference that he knew Ms. Quinn, an admitted public figure 27 and participant in the gaming industry, might receive negative comments based on his post that

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1 noted her (undisclosed) relationships with journalists in the industry. (See Supp. Gjoni Decl.) 2 Moreover, there is no dispute that Gjoni generally issued a call for civility and attempted to defuse 3 any situation that arose. In any event, even taking Gjoni’s statement at face value, knowledge of a 4 possibility is not the same as “direction,” particularly when the speech, rather than the conduct, of 5 third parties is at issue. Thus, Ms. Quinn has not shown, and cannot show, that Gjoni has engaged

6 in a course of conduct “directed at” her based on the online speech of unrelated third parties. 7 Moreover, Ms. Quinn—who describes herself as an “independent game developer and an 8 advocate”—admits that she experienced online harassment completely unrelated to Gjoni or their 9 relationship. For example, she states that she “experienced online harassment as it related to the 10 release of the game that I created with two other collaborators entitled ‘Depression Quest.’” 11 (Quinn Decl. at 1, 6.) She later states that she is “an advocate for individuals, regardless of race, 12 gender and gender identity, sexual orientation or socioeconomic class, who have been the subject 13 of internet harassment or run the risk of being harassed on the internet,” runs an organization “that 14 provides assistance and support to victims of online harassment,” and is cofounder of a nonprofit 15 that creates “technical solutions for services that have harassment problems.” (Quinn Decl. at 6-8.) 16 Therefore, while Gjoni does not suggest that Ms. Quinn is to blame for any online harassment she 17 may have suffered, given that she admits to have suffered harassment from her work and advocacy 18 and that she will continue to be harassed online regardless of the Court’s decision on her petition, 19 it is inappropriate to impose a broad prior restraint on Gjoni’s speech based on third-party 20 harassment that is not clearly or directly attributable to Gjoni.

21 II. GJONI CANNOT BE HELD RESPONSIBLE FOR THIRD PARTY CONTENT 22 CONSISTENT WITH SECTION 230 23 Section 230 of the Communications Decency Act provides immunity for liability based on 24 content created by third parties. Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398, 406 25 (6th Cir. 2014); Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003). Section 230 immunity is 26 “robust,” and immunizes websites and their users for liability based on third party content, 27 including liability based on claims of emotional distress, assault, and state criminal statutes.

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1 Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1125 (9th Cir. 2003) (intermediary immune 2 for claims of invasion of privacy, defamation, and negligence based on fake dating profile created 3 by third party); Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532, 538 (E.D. Va. 2003) 4 (Section 230 bars intentional infliction of emotional distress, unjust enrichment, negligence and 5 fraud claims), aff’d, 2004 U.S. App. LEXIS 5495 (4th Cir. 2004); Backpage.com, LLC v. 6 McKenna, 881 F. Supp. 2d 1262, 1274-75 (W.D. Wash. 2012) (Section 230 preempts state law 7 criminalizing knowing publication of solicitation involving a minor). A defendant is entitled to 8 Section 230 immunity where: (1) he is a user or provider of an interactive computer service; (2) 9 the information alleged to be harmful was provided by another information content provider; and 10 (3) the plaintiff seeks to treat the defendant as a publisher. Nemet Chevrolet, Ltd. v. 11 Consumeraffairs.com, Inc., 564 F. Supp. 2d 544, 548 (E.D. Va. 2008), aff’d, 591 F.3d 250 (4th 12 Cir. 2009. The definition of “interactive computer service” includes blogs, chat rooms, and 13 websites. Batzel, 333 F.3d at 1030 n.16 (weight of authority finds that a website is an “interactive 14 computer service”). There is no dispute that Gjoni is the “user” of interactive computer services. 15 The key question is whether Ms. Quinn seeks to treat him as the publisher and hold him 16 responsible for third party content. The answer is yes, and therefore Section 230 precludes the

17 protection order she requests.

18 A. The Allegedly Offending Content is Provided by Third Parties. 19 Blog comments, emails, links, and other types of content authored by third parties are 20 commonly found to be covered by Section 230. See, e.g., Batzel, 333 F.3d at 1026-30 (emails 21 intended for publication on the internet); Vazquez v. Buhl, 90 A.3d 331, 334, 338-41 (Conn. App. 22 Ct. 2014) (linking to third party content); Hupp v. Freedom Commc’ns, Inc., 221 Cal. App. 4th

23 398, 401, 404-05 (Cal. App. Ct. 2013) (reader online comments). 24 Ms. Quinn admits that the content at issue originated with third parties. For example, she 25 states that: (1) “respondent was happy to provide links . . . in the very forums that he knew 26 harassment, threats and vitriol would come”; and (2) “[a]fter the respondent’s post, the abuse, 27 harassment, threats and general vitriol exploded on the internet and . . . was directed at me.”

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1 (Quinn Decl. at 4, 5.) Thus, the second element of Section 230 immunity exists.

2 B. Ms. Quinn Seeks to Hold Gjoni Responsible as a Publisher. 3 It is also clear that Ms. Quinn seeks to hold Gjoni responsible as a publisher for the 4 statements of others. She states that his statement was “designed to elicit the threatening, harassing 5 responses towards” her. (Memo. at 8.) And she states that “words are no less intrusive, unwanted 6 and detrimental . . . if they are conveyed to the victim through third parties.” (Id. at 10.) A closely 7 analogous case is Delfino v. Agilent Technologies, Inc., 145 Cal. App. 4th 790 (2006), where the 8 court held that an employer could not be held liable for anonymous, threatening emails sent by an 9 employee. The court said “it is apparent” that plaintiffs sought to hold the employer liable for the 10 threats as the “publisher or speaker” of the messages. Finding the other elements of Section 230 11 met, the court held that the plaintiffs could not hold the employer liable for content created by its 12 employee (third party content creators). Id. at 806-08; see also Miller v. Fed. Express Corp., 6 13 N.E.3d 1006, 1018 (Ind. Ct. App. 2014) (“despite . . . references to other doctrines, such as

14 respondeat superior, [plaintiffs’] complaint seeks to hold [defendants] liable as publishers”). 15 Ms. Quinn’s claims under the stalking statute fall within the state law causes of action 16 barred by Section 230, and accordingly her request for relief must be denied on this basis.

17 III. MS. QUINN’S PROPOSED ORDER WOULD VIOLATE THE FIRST 18 AMENDMENT

19 A. Ms. Quinn Seeks an Order that is an Unconstitutional Prior Restraint. 20 Ms. Quinn requests the Court to enter an order restraining Gjoni from having any contact 21 whatsoever with her for 10 years, including “posting about the petitioner online in any forum, 22 Facebook, IRC rooms, Twitter, Wordpress or any other social media[] forum or platform.” 23 (Proposed Order of Protection at 2; see also Memo. at 2 (“The definition of ‘contact’ . . . should 24 also include the court prohibiting [Gjoni] from mentioning Ms. Quinn on-line in any forum 25 including Twitter, Facebook, Tumblr, Blog Posts (Word Press) or any of the myriad of ways that 26 [he] may contact Ms. Quinn through posting about her.”).) As such, Ms. Quinn’s requested order 27 is an unconstitutional prior restraint on Gjoni’s speech that should be denied. The requested order

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1 fits squarely within the definition of a prior restraint on speech, which is “official restrictions 2 imposed upon speech or other forms of expression in advance of actual publication.” State v. Coe,

3 101 Wn.2d 364, 372 (1984) (internal quotation marks omitted). 4 “[P]rior restraints on speech and publication are the most serious and the least tolerable 5 infringement on First Amendment rights,” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 6 (1976), which bear “a heavy presumption against [their] constitutional validity,” Org. for a Better 7 Austin v. Keefe, 402 U.S. 415, 419 (1971) (internal quotation marks omitted). Courts are no more 8 accepting of prior restraints on speech in the context of no-contact orders and have not hesitated to 9 vacate protection and anti-harassment orders on that basis. See, e.g., Hobart v. Ferebee, 692 10 N.W.2d 509, 514-16 (S.D. 2004) (vacating portion of protection order prohibiting defendant from 11 filing complaints with any government agency about plaintiff as an unconstitutional prior restraint 12 on speech); see generally Aaron H. Caplan, Free Speech & Civil Harassment Orders, 64 Hastings

13 L.J. 781 (2013) (discussing First Amendment issues raised by civil harassment orders generally). 14 For example, in one case, the trial court granted petitioner’s request for an anti-harassment 15 order against his ex-wife, permanently restraining her from “‘knowingly and willfully making 16 invalid and unsubstantiated allegations or complaints to third parties which are designed for the 17 purpose of annoying, harassing, vexing, or otherwise harming [her ex-husband] and for no lawful 18 purpose.’” In re Marriage of Suggs, 152 Wn.2d 74, 78-79 (2004). The appellate court affirmed the 19 order but our Supreme Court reversed, finding that the “antiharassment order is a prior restraint 20 because it forbids [the ex-wife’s] speech before it occurs” and therefore “carr[ied] a heavy 21 presumption of unconstitutionality.” Id. at 81. It also rejected the claim that it was a constitutional 22 prior restraint because it restrained only libelous speech, concluding that the order was indefinitely 23 worded and lacked the specificity required to ensure that it did not encroach upon protected 24 speech. Such indefinite wording results in “an order chilling all of [the ex-wife’s] speech about 25 [her ex-husband], including that which would be constitutionally protected, because it is unclear

26 what she can and cannot say. Chilling is intolerable in the first amendment context[.]” Id. at 84. 27 Similarly, in In re Marriage of Meredith, the court vacated a permanent domestic violence

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1 protection order that prevented the husband from, among other things, “contacting any agency” 2 about his wife’s immigration status without prior court approval. 148 Wn. App. 887, 895 (2009). 3 The court disagreed that the order was a “permissible postspeech restriction after a showing of 4 abuse of the right to speak,” concluding that “the order is clearly a prior restraint that forbids [the 5 husband] from speaking in the future.” Id. at 897 (internal quotation marks omitted). The court 6 also held that the order was “not specifically crafted to prohibit only unprotected speech” but 7 rather prohibited the husband from contacting any agency about his wife’s immigration status

8 regardless of whether the contact involved protected or unprotected speech. Id. at 898. 9 The Johnson case, upon which Ms. Quinn relies, does not negate the import of these 10 Washington decisions as it is distinguishable on this issue on at least two grounds. First, Johnson 11 involved a criminal prosecution for past conduct whereas here, Ms. Quinn is seeking an order 12 restraining Gjoni’s future speech. As discussed above, prior restraints on speech are particularly 13 odious constitutional affronts and “may be struck down even though the particular expression 14 involved could validly be restricted through subsequent criminal punishment.” Soundgarden v. 15 Eikenberry, 123 Wn.2d 750, 764-65 (1994) (internal quotation marks omitted). Second, Johnson 16 involved criminal conduct, with possible speech components (e.g., posting false craigslist’s 17 advertisements posing as the victims and sending two anonymous emails to the victims). 21 18 N.E.3d at 941-43. Ms. Quinn has not alleged, and cannot allege, that Gjoni’s past speech 19 constituted a crime or was otherwise “integral to the commission of a crime” nor can she make

20 any such allegations about his future speech. 21 In short, while the Court may not approve of what Gjoni has said in the past or what he 22 may say in the future, “the law is not free to interfere with speech for no better reason than 23 promoting an approved message or discouraging a disfavored one, however enlightened either 24 purpose may strike the government.” State v. Kilburn, 151 Wn.2d 36, 42 (2004) (internal 25 quotation marks omitted). “Speech remains protected even when it may stir people to action, move 26 them to tears, or inflict great pain.” Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2670, 180 L. Ed. 27 2d 544 (2011) (internal quotation marks omitted).

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1 B. The Government Cannot Criminalize Speech Merely Because it Offends. 2 Ms. Quinn’s proposed anti-harassment order is also flawed because even if it were issued 3 following an adjudication on the merits, it would violate the First Amendment. A violation of the 4 Court’s order would subject Gjoni to not only civil but also potential arrest and criminal 5 prosecution. RCW 26.50.110 (describing criminal penalties for violation of, in part, domestic

6 violence protection order). 7 The U.S. Supreme Court has had a “longstanding refusal to [punish speech] because the 8 speech in question may have an adverse emotional impact on the audience.” Boos v. Barry, 485 9 U.S. 312, 322 (1988); see also Snyder v. Phelps, 562 U.S. 443 (2011), (finding that infliction of 10 emotional distress cannot be premised on funeral protest to the extent it touched on a matter of 11 public concern). In keeping with this principle, courts have invalidated harassment statutes that 12 punished defendants based on pure speech, like Ms. Quinn seeks to do here. State v. LaFontaine, 13 16 A.3d 1281, 1284, 1288-89 (Conn. App. Ct. 2011) (statute that purported to cover prosecution 14 for angrily yelling over the telephone to his wife’s attorney “if they thought they deserved respect, 15 he would ‘show [them] what respect was’”); State v. Moulton, 991 A.2d 728, 736-37 (Conn. App. 16 Ct. 2010) (finding that the First Amendment prevented the government from prosecuting a postal 17 worker who commented during a phone call she might “become enraged” similarly to another 18 postal worker who had recently gone on a killing spree), aff’d and modified in part, 78 A.3d 55 19 (2013); People v. Golb, 15 N.E.3d 805, 813-14 (N.Y. 2014) (striking down harassment statute that 20 reached communications tending to “harass, annoy, threaten or alarm another person”), cert. 21 denied, 135 S. Ct. 1009 (2015). To the extent the Washington statutes in question are interpreted 22 to allow for a protective order based on non-threatening, non-defamatory speech (i.e., pure speech 23 that does not fall within a category of unprotected speech) on a topic of growing public concern, it 24 would render the statutes constitutionally infirm. The statute itself is overly broad and vague, but 25 the relief sought by Ms. Quinn—a blanket prohibition on mentioning her—is even more so. It 26 could not possibly satisfy the “rigorous scrutiny” required to pass constitutional muster. See 27 Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010); see also Vrasic v. Leibel, 106 So. 3d

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1 485, 486 (Fla. Dist. Ct. App. 2013) (reversing, on prior restraint grounds, an order prohibiting 2 defendant from mentioning plaintiff). Among other things, the relief sought by Ms. Quinn is 3 grossly underinclusive. She admits that her requested relief will be largely ineffectual because the 4 alleged third-party harassment—which is the “contact” that she attempts to attribute to Gjoni— 5 will continue whether an order is entered or not. (See Quinn Decl. at 8 (“I am well aware that the 6 harassment is going to continue from various individuals[.]”), 9 (“I know that I will face 7 harassment on the internet regardless of this hearing’s outcome[.]”).) It also bears noting that Ms. 8 Quinn’s does not contend seriously that any of Gjoni’s statements satisfy the incitement standard, 9 which would be the only constitutionally acceptable way to hold him liable for pure speech that

10 results in harassment by third parties. See Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969). 11 It is true that Washington’s phone harassment statute has withstood a First Amendment 12 challenge, but the cases doing so explain that such statutes cover direct communication to an 13 unwilling listener and are intended to protect the privacy of residents in their homes. Moreover, 14 the gravamen of the offense is “the thrusting of an offensive and unwanted communication upon 15 one who is unable to ignore it.” State v. Alexander, 76 Wn. App. 830, 837-38 (1995). In contrast, 16 “The Zoe Post” is pure speech directed to the world at large and it cannot be equated with the type 17 of unavoidable communication the phone harassment statute seeks to address. See, e.g., Cassidy, 18 814 F. Supp. 2d at 585 (alleged victim had “the ability to protect her own sensibilities simply by 19 averting her eyes from” the blog and Tweets at issue) (internal quotation marks omitted).

20 IV. THE COURT LACKS PERSONAL JURISDICTION OVER GJONI, A 21 MASSACHUSETTS RESIDENT 22 RCW 26.50.240 sets forth the circumstances under which a court may exercise personal 23 jurisdiction over a nonresident in connection with a petition for a domestic violence protection 24 order. Ms. Quinn relies only on subsection (1)(d), which permits the exercise of personal 25 jurisdiction when there is an “ongoing pattern” of domestic violence that has an adverse effect on 26 an in-state resident or where the petition is brought by an in-state resident. The statute further 27 requires that for jurisdiction to exist under the above subsection, “the individual must have

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1 communicated with the petitioner or a member of the petitioner’s family, directly or indirectly, or 2 made known a threat to the safety of the petitioner or member of the petitioner’s family while the

3 petitioner or family member resides in this state.” RCW 26.50.240(2) (emphasis added). 4 No acts of alleged domestic violence occurred in Washington. There is no dispute that 5 Gjoni has never interacted with Ms. Quinn since she moved to the state and has never contacted 6 her directly. Any contacts between the two happened while they were both residents of 7 Massachusetts. As Ms. Quinn admits, the parties ceased all direct communication in August 2014, 8 months before she moved to Washington in January 2015. (Quinn Decl. at 4, 6.) Under these 9 circumstances, it is inappropriate to exercise jurisdiction over Gjoni and her petition should be

10 dismissed for lack of personal jurisdiction. 11 CONCLUSION AND RELIEF REQUESTED 12 The relief sought by Ms. Quinn is extraordinary in scope. She does not satisfy the statutory 13 standards necessary for the broad protection order she seeks. Moreover, the relief she seeks is 14 barred by Section 230. Additionally, and equally as important, the protection order would be a 15 classic prior restraint that would not comport with First Amendment standards even if issued 16 following an adjudication on the merits. Gjoni respectfully requests that the Court deny the relief

17 sought and quash the earlier temporary protection order. 18 Respectfully submitted, and DATED this 10th day of June, 2015.

19 FOCAL PLLC

20 s/ Venkat Balasubramani 21 Venkat Balasubramani, WSBA #28269 800 Fifth Ave., Suite 4100 22 Seattle, WA 98104 Tel: (206) 529-4827 23 Fax: (206) 260-3966 [email protected] 24

25 Attorneys for ERON GJONI 26 27

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CERTIFICATE OF SERVICE 1 I certify that I caused the foregoing Supplemental Response to Petition for Order of 2 Protection to be filed in King County Superior Court and transmitted to opposing counsel via 3 email (pursuant to an e-mail service agreement). 4 5 DATED this 10th day of June, 2015. 6 s/ Venkat Balasubramani 7 Venkat Balasubramani, WSBA #28269

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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