FIRST DIVISION

BARNES, P. J.,

GOBEIL and PIPKIN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

July 2, 2024

In the Court of Appeals of Georgia

A23A0279. CALHOUN v. HARRELL.

BARNES, Presiding Judge.

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.1

Because we find merit in Calhoun’s argument that the evidence was insufficient, we

reverse.

1 Calhoun appealed to this Court, and we transferred the case to our Supreme

Court on the basis that Calhoun’s arguments raised a constitutional question within

that Court’s exclusive appellate jurisdiction. The Supreme Court transferred the case

back to this Court, determining that this case does not fall within that scope.
As background, it is undisputed that Harrell procured in 2021 a one-year

stalking protective order against Calhoun.2 The record shows that the following year,

in May 2022, Harrell returned to court and filed, expressly pursuant to OCGA§ 16-5-

94

3

and 19-13-4,4the petition that led to the now contested three-year protective order.

In support ofthat petition, Harrell swore, “Calhoun has continued tomake 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.”

2 The one-year protective order has not been made a part of the appellate

record.

3 OCGA § 16-5-94 provides that “[a] person who is not a minor who alleges

stalking by another person may seek a restraining order by filing a petition alleging

conduct constituting stalking as defined in Code Section 16-5-90.” OCGA § 16-5-94

(a). The statute provides further that “[t]he court may grant a protective order . . . to

bring about a cessation of conduct constituting stalking.” OCGA § 16-5-94 (d).

4 OCGA§ 19-13-4 provides for the granting of protective orders “to bring about

a cessation of acts of family violence.” OCGA § 19-13-4 (a). While there was no

allegation nor any evidence that Calhoun and Harrell were members of the same

family, OCGA§ 16-5-94 (e) states that designated subsections of “19-13-4 . . .relating

to family violence petitions, shall apply to petitions filed pursuant to this Code

section[.]”

2
On June 27, 2022, the trial court convened ahearing.The judge delineated from

the bench that she was specifically interested in “what’s happened between [the time

the one-year protective order had issued] and now.”

Harrell began her case by calling Calhoun to the stand. During such crossexamination, 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”;

5

that in a different

February 2022 post, she called Harrell and another individual “MFERS” who had

5 The exhibit associated with this testimony showed that Calhoun’s post

included:

A real community activist makes noise in their community MOST OF

THE TIME WHILE STANDING ALONE. I’M THAT BLACK

QUEEN. . . I have a right to my voice my opinion and the right to speak

freely about issues that concern me and my community. Henry County

Georgia our government is being monopolize for a few black democrats

aiding and abetting white folks to suppress our votes and our forward

progress.

With photographs apparently depicting Harrell and other individuals, Calhoun’s

Facebook post continued: “THESE 2 SMILING BLACK FACES TELL LIES,

THEY ARE WORKING TO SUPPRESS OUR VOTES WITH A REPUBLICON

JUST SO THEY CAN STAY IN POWER. They are willing to have me jailed on false

stalking charges becuz I’m exposing them for SNAKES that are. They know where

I live, come get me, im not running nor hiding.” 

3
come from “traitorous ancestors”;

6

that in another February 2022 post, she talked

about Harrell’s “blood line”;

7

that in other February 2022 posts, she commented

about Black politicians in Henry County;8that 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

6 The associated exhibit showed that Calhoun’s post included: “[Both Harrell

and another identified politician] are crooked manipulative lying evil selfish garbage

that reap with stinch. . . In my opinion, the both of you come from a long line of

traitorous ancestors . . . WHAT A DAM BLOOD LINE.”

7 The associated exhibit showed that Calhoun wrote in her post: “The

Chairwoman of Henry County Ga is a DAM FOOL! Black History is the perfect time

to reflect up those black folks like her from the beginning of slavery who had no dam

problem selling other black into slavery, guess her bloodline is generational[.]”

8 The associated exhibit showed that Calhoun posted commentary that “[a

named state senator] and Henry County Chairwoman Harrell are underwriting the

guidelines to suppress the black votes for their own selfish gain” and that “[t]his is

what I got to say about some of our black politicians in Henry County, Ga. . . if you

want to accuse me of stalking your ass, come get me, you know where I am . . . our

votes are not only being suppressed by white politicians but also by black politicians

as well and that’s a dam shame. . . Many of our elected leaders or church leaders

won’t speak out about this corruption and voter suppression but I will[.]”

4
where she was;9

that in an April 2022 post, she said that Harrell was a “skunk”;

10

that

in another post, she described Harrell as a “piece of crap”;

11

that in other posts

between August 2021 and April 2022, she characterized Harrell’s mode as “fetching

and stepping,”12 “skinning and grinning,”13and being a “house Negro.”14 When

9 The associated exhibit showed that Calhoun wrote, in part: “. . . so if the

chairwoman of Henry County of any ofthese other corrupt politicians want to try and

jail me or worse . . . you know where I am, I live, breath and talk in plain sight.”

10The associatedexhibit showed that Calhoun’s post includedcommentary that

“[several individuals] and Chairwoman Carlotta Harrell run together like a pack of

infectous skunks, they all smell of corruption[.]”

11 The associated exhibit showed that Calhoun wrote that a certain judge, a

“Republican . . . whom I believe is an unfair judge, sent me a gleefully robo text

endorsement he got from Carlotta Harrell, who I believe is a lying manipulative piece

of crap who happens to be the chair person of Henry County and a Democrat in name

only[.]”

12

 The associated exhibit showed that Calhoun wrote, in part, that “[a certain

judge], a REPUBLICAN is running for reelection in Henry County in a non partisan

race, so he doesn’t have to state his party affiliation. . . . Below the chairwoman of

Henry County and Democrat in name only endorsing this judge, for favors no doubt

he has done for her in the past. . . . I can only imagine how many people came before

him and the outcomes were not fair. White folks have a problem with teaching

CRITICAL RACE THEORY BUT HAVE NO PROBLEM WITH BLACK FOLKS

STILL PRACTICING THE ‘FETCH AND STEP’ to aid them.” (This exhibit was

accompanied by photographs.) 

13 The associated exhibit showed that Calhoun wrote, in part:“Carlotta Harrell

has made sure minority representation is a bare minimum in Henry County

government . . . case in point, she forced the black fire chief to resign so she can play

5
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.”

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

‘footsies with the white RepubliCONS in Henry County[’] . . . Here she stands

‘skinning and grinning[‘] with the interim fire chief a white man she chose over all

other minorities just as qualified. . . .” (Pictures accompanied this post.)

14 The associated exhibit showed that Calhoun wrote, in part: “Chairwoman

Harrell & [a specified state senator] your roles in trying to make the Henry County

Board ofCommissionerswhite againMAKESTHEBOTHOFYOUTHE BIGGEST

HOUSE NEGROES AND BIGGEST LOSERS[.]”

6
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 Iwant 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 dowith me wanting

to hurt Carlotta Harrell, but it’s about making the people understand that they have

7
rights[.]”She testified, 

“Imust 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,

OCGA § 16-5-90.15 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 youstart using that foul

language, you’ve got a problem. That’s where the problem lies, not in

15

 OCGA § 16-5-90 (a) (1) states that

A person commits the offense ofstalking when he or she follows, places

under surveillance, or contacts another person at or about a place or

places without the consent of the other person for the purpose of

harassing and intimidating the other person. . . . For the purposes of this

article, the term “harassing and intimidating” means a knowing and

willful course of conduct directed at a specific person which causes

emotional distress by placing such person in reasonable fear for such

person’ssafety or the safety of a member of his or her immediate family,

by establishing a pattern of harassing and intimidating behavior, and

which serves no legitimate purpose.

8
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,16the 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.”

That same day, June 27, 2022, the contested Stalking Three Year Protective

Order was entered.

In this appeal, Calhoun contends that the superior court abused its discretion

in granting the protectiveorder.

17Calhoun concedes that she made the Facebook posts

and that – as she puts it – “[her] criticisms were blunt, sometimes crude or insulting,

16

 See footnote 6, supra.

17

See Lewis v. Lewis, 316 Ga. App. 67, 68 (728 SE2d 741) (2012) (“The grant

or denial of a motion for a protective order lies within the sound discretion of the trial

court, and its decision on such a motion will not be reversed absent an abuse of that

discretion. An abuse of discretion occurs where a ruling is unsupported by any

evidence of record or where that ruling misstates or misapplies the relevant law.”)

(citations and punctuation omitted).

9
and sometimes profane.” However, she argues that the trial court erred by

determining that the posts rose to the level of stalking, given the lack of a “direct

communication from [her] solely to Ms. Harrell.” As Calhoun claims, her Facebook

posts were “about Harrell and her associates, but [were] directed to the public, and

concern[ed] Ms.Harrell’s conduct as apublic figure.”Calhoun thus characterizes her

commentary as political and intended to influence public opinion and voters. She

additionally contends that “[her] activism in the form of Facebook posts advocating

for change in local politics is speech protected by the United States Constitution and

the Georgia Constitution” and that she cannot “be silenced through the use of a

Stalking Three Year Protective Order, as is made clear by OCGA § 16-5-92.”

18

1. We turn first to Calhoun’s contention that the evidence was insufficient19

because an element of stalking under OCGA § 16-5-90 was not established.

18 OCGA 16-5-92 provides in full: “The provisions of Code Sections 16-5-90

and 16-5-91 shall not apply to persons engaged in activities protected by the

Constitution of the United States or of this state or to persons or employees of such

persons lawfully engaged in bona fide business activity or lawfully engaged in the

practice of a profession.”

19 “In reviewing the sufficiency of the evidence, we construe the evidence in

favor of the findings of the trier of fact.” (Citation and punctuation omitted.) Bodi v.

Ryan, 358 Ga. App. 267, 267 (855 SE2d 11) (2021).

10
“In order to obtain a protective order based on stalking, the petitioner must

establish the elements of the offense by a preponderance of the evidence.” Pilcher v.

Stribling, 282 Ga. 166, 167 (647 SE2d 8) (2007). In pertinent part, the stalking statute

provides, “A person commits the offense of stalking when he or she follows, places

under surveillance, or contacts another person at or about a place or places without

the consent ofthe other person for the purpose of harassing and intimidating the other

person.” OCGA§ 16-5-90 (a) (1).Calhoun posits that there was no allegation nor any

evidence that she either followed Harrell or placed her under surveillance.20 And

relying on Chan v. Ellis, 296 Ga. 838 (770 SE2d 851) (2015), Calhoun argues that the

evidence failed to establish “contact” for purposes of the stalking statute.

We findmerit in Calhoun’s argument that in light ofChan,296Ga. 838, Harrell

failed to adduce evidence sufficient to establish that Calhoun contacted her in a

manner prohibited by the stalking statute. In Chan, the Supreme Court of Georgia

explained,

20 Harrell makes no claim on appeal that she alleged or evinced that Calhoun

followed her or placed her under surveillance. And for reasons discussed below, we

reject Harrell’s arguments for an affirmance of the trial court’s judgment.

11
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. See OCGA § 16-5-90 (a) (1).

See also Johnson v. State, 264 Ga. 590, 591 (1) (449 SE2d 94) (1994) (as

used in OCGA§ 16-5-90, “[t]o ‘contact’is readily understood by people

of ordinary intelligence as meaning ‘to get in touch with; communicate

with’ “ (citation and punctuation omitted)). 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,whichdefines“harassing and intimidating”

in terms of “a knowing and willful course of conduct directed at a specific

person.” OCGA § 16-5-90 (a) (1) (emphasis supplied).

(Footnotes omitted; emphasis in original.) Chan, 296 Ga. at 839-840 (1). As Chan

further explained, “That a communication is about a particular person does not mean

necessarily that it is directed to that person.” (Emphasis in original.) Id. 840 (2). For

instance, Chan noted, “[a]n ordinary speaker of the English language typically would

not say . . .that a popular author had ‘contacted’ or ‘communicatedwith’the speaker

simply because the speaker had read a book written by the author.” Id. at 840 (1), n.

6.

12
Uponreviewing the evidence in Chan, our High Court described that the record

showed that

[the appellant] and others posted a lot of commentary to his website

about [the appellee], but it fails for the most part to show that the

commentary was directed specifically to [appellee] as opposed to the

public.As written, most of the posts appear to speak to the public, not to

[appellee] in particular, even if they are about [appellee].And there is no

evidence that [appellant] did anything to cause these posts to be

delivered to [appellee] or otherwise brought to her attention,

notwithstanding that [appellant] may have reasonably anticipated that

[appellee] might come across the posts, just as any member of the

Internet-using public might.

Chen, 296Ga. at 841 (2).Holding that “[t]he publication of commentary directedonly

to the public generally does not amount to ‘contact,’ as that term is used in OCGA §

16-5-90 (a) (1),” Chen concluded that “[appellee] failed to prove that [appellant]

‘contacted’ her without her consent, and [that] the trial court erredwhen it concluded

that [appellant] had stalked [appellee].” Id. at 842 (3).

Guided by Chen, this Court reached a similar conclusion in Bodi v. Ryan, 358

Ga. App. 267 (855 SE2d 11) (2021). In Bodi, the appellee procured a stalking

protective order based upon the appellant’s post on Snapchat’s social media

13
platform.21

Id. at 268. This Court noted that the appellant had called the appellee an

obscene name and included on his social media post that he wished appellee would

die.Id. at 270 (b). However, this Court found no evidence that the appellant had been

surveilling or following the appellant, and no evidence that the appellant had either

contacted appellee or sent her the social media post. Id. at 270 (a). Reciting Chen’s

principle that “[t]he fact that [appellant] could have reasonably expected that [the

appellant] might discover the posts is insufficient to establish ‘contact’ under the

statute,” id. at 270 (a), this Court ultimately concluded that the appellee “[did] not

establish the necessary contact to rise to the level of stalking,” id. at 269 (a), and that

the trial court thus abused its discretion in granting the protective order.Id. at 271 (b).

In the instant case, Calhoun admittedly posted to Facebook commentary about

Harrell (and associated individuals), but the record “fails for the most part to show

21 The Snapchat post contained the following commentary (which also

publicized the appellee’s daughter’s hospitalization):

[F]--- you. Suck a fat-ass dick. Stupid ass bitch, you want to stalk my

f---ing Snapchat story and keep your daughter in a mental hospital? Stalk

this, you f---ing retarded bitch. You’re going to die the worst way there

is to die, and I am praying for it. F--- you, doing the most.

Bodi, 358 Ga. App. at 268.

14
that the commentary was directed specifically to [Harrell] as opposed to the public.

As written, most of the posts appear to speak to the public, not to [Harrell] in

particular, even if they are about [Harrell].” Chen, 296 Ga. at 841 (2). Moreover, the

record does not show that “[Calhoun] did anything to cause [her] posts to be

delivered to [Harrell] or otherwise brought to her attention, notwithstanding that

[Calhoun] may have reasonably anticipated that [Harrell] might come across [her]

posts, just as any member of the Internet-using public might.” Id. As held by Chen,

“[t]he publication of commentary directed only to the public generally does not

amount to ‘contact’”under the stalking statute.Id.“Although our standard ofreview

is deferential, where, as here, there is [insufficient] evidence to support the [stalking]

charge, and there is not an issue of witness credibility, we are constrained to reverse”

the Stalking Three Year Protective Order. Bodi, 358 Ga. App. at 269. See Chan, 296

Ga. at 838-839 (reversing stalking protective order, where defendant’s antagonistic

social media posts about the victim did not “amount[] to the sort of ‘contact’ that is

forbidden by OCGA § 16-5-90 (a) (1)”).22

22

See also Pilcher, 282 Ga. at 168 (concluding that the stalking protective order

was not authorized, where the complained-of conduct – including appellant’s verbal

taunts of “cursing, threatening employees’ jobs, and belittling employees’

intelligence, personal life, weight, sexual inexperience or financial situation”– did not

15
Notably, Harrell makes no argument on appeal that the Facebook posts were

sufficient under Chen. Instead, she points out that she procured in 2021 a one-year

stalking protective order against Harrell, then relies on OCGA§ 19-13-4 to assert that

“[t]he lawpresumes that the previous order will be converted” to a three-year order.

23

See generally Shadix v.Carroll County, 274 Ga. 560, 565 (3) (c) (554 SE2d 465) (2001)

(citing principle that an appellate court may affirm a judgment when “right for any

reason, even if it is based upon erroneous reasoning”).

But Harrell specifies no particular language in OCGA § 19-13-4 that she

purports created a presumption; she identifies no case authority interpreting the

constitute stalking as defined in OCGA § 16-5-90 (a) (1)) (citation and punctuation

omitted); Marks v. State, 306 Ga. App. 824, 825-826 (1) (703 SE2d 379) (2010)

(concluding that the appellant’s posting statements on the Internet about his ex-wife

did not constitute contact prohibited by the probationary term of the aggravated

stalking sentence, where there was no evidence that he authored the web postings to

get in touch with or communicate with his ex-wife); Collins v. Bazan, 256 Ga. App.

164, 165 (2) (568 SE2d 72) (2002) (concluding that “[p]ublishing or discussing a

person’s medical condition with others . . . does not constitute following, placing

under surveillance, or contacting that person” as contemplated by the stalking

definition set forth in OCGA § 16-5-90). Accord Seibert v. State, 321 Ga. App. 243,

244-245 (739 SE2d 91) (2013) (reversing aggravated stalking conviction, where there

was insufficient evidence of contact).

23 Notably, OCGA § 16-5-94 (e) states that “[t]he provisions of . . .subsections

(b), (c), and (d) ofCode Section 19-13-4, . . .relating to family violence petitions, shall

apply to petitions filed pursuant to this Code section.”

16
statute as such; and she puts forth no legal analysis in her brief that the statute

contemplates any such presumption. See generally Yash Solutions v. New York Global

Consultants Corp., 352 Ga. App. 127, 137 (1) (b), n. 30 (834 SE2d 126) (2019) (noting

principles that “[m]ere conclusory statements are not the type of meaningful

argument contemplated by our rules” and that “cogent legal analysis. . . is, at a

minimum, a discussion of the appropriate law as applied to the relevant facts”)

(citations and punctuation omitted); Higgins v. State, 251 Ga. App. 175, 178 (3), n. 3

(554 SE2d 212) (2001) (“An assertion of error followed by a case citation is not legal

argument. As we have explained, legal analysis is, at a minimum, a discussion of the

appropriate lawas applied to the relevant facts.”) (citation and punctuation omitted);

Court of Appeals Rule 25 (b).

Moreover, we note that subsection (c) of the statute cited by Harrell provides:

Any order granted under this Code section shall remain in effect for up

to one year; provided, however, that upon the motion of a petitioner and

notice to the respondent and after a hearing, the court in its discretion may

convert a temporary order granted under this Code section to an order

effective for not more than three years or to a permanent order.

17
(Emphasis supplied.) OCGA § 19-13-4 (c). Here, the trial court conducted a hearing;

Harrell did not claim entitlement to extended protection as a matter of any statutory

presumption; rather, in support of her sworn allegation of “constant stalking of Ms.

Calhoun via social media,” Harrell presented at the hearing evidence of Calhoun’s

numerous Facebook postings; and as detailed above, the trial court granted a threeyear stalking protective order based on an erroneous conclusion that Calhoun’s social

media commentary constituted stalking.

Giventhese circumstances,Harrell’snewly asserted, unsupported position that

“[t]he law presumes that the previous order will be converted” does not provide a

basis for nevertheless affirming the judgment. See Smith v. Laymon, 279 Ga. 823, 824

(2) (620 SE2d 796) (2005) (“Issues never raised at trial will not be considered for the

first time on appeal.”) (citation and punctuation omitted); Pfeiffer v. Ga. DOT, 275

Ga. 827, 829 (2) (573 SE2d 389)(2002) (reciting that “[r]outinely, this Court refuses

to review issues not raised in the trial court”); CMGRP v. Gallant, 343 Ga. App. 91,

94 (1) (806 SE2d 16) (2017) (reiterating that our right-for-any-reason rule may be

invoked only when the issue was raised in the trial court and the opposing party had

18
a fair opportunity to respond); see also Yash Solutions, 352 Ga. App. at 137 (1) (b), n.

30; Higgins, 251 Ga. App. at 178 (3), n. 3; Court of Appeals Rule 25 (b).

2. Given our holding in Division 1, supra, it is not necessary to reach Calhoun’s

remaining (constitutional) challenge to the Stalking Three Year Protective Order.See

Herbert v. Jordan, 348 Ga.App. 538, 539 (2) (823 SE2d 852) (2019)(reversing stalking

protective orders on one ground and, thus, declining to address remaining challenges

to such orders).

Judgment reversed. Gobeil, J., concurs fully and specially. Pipkin, J., dissents.
A23A0279. CALHOUN v. HARRELL.

GOBEIL, Judge, concurring fully and specially.

While I concur fully with the result reached in this case, 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 the holdings in Chan and Bodi.
A23A0279. CALHOUN v. HARRELL.

PIPKIN, Judge, dissenting.

Relying on Chan v. Ellis, 296 Ga. 838 (770 SE2d 851) (2015), the majority

concludes that there was insufficient evidence that Calhoun “contacted” Harrell to

satisfy OCGA § 16-5-90 (a) (1). However, when the evidence is viewed in the

appropriate light, Chan is distinguishable from this case.Consequently, Iwould defer

to the trial court’s substantial discretion and affirm the determination that Calhoun

did, in fact, repeatedly “contact” Harrell “for the purposes of harassing and

intimidating” her. For these reasons, I must dissent.
In Chan v.Ellis, MatthewChan’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.” Chan,

770 Ga. 838. The Chan Court explained, however, that, even where “a

communication is about a particular person [that it ] does not mean necessarily that it

is directed tothat person.” Id. at 840 (2). And, the evidence in that case “fail[ed] for

the most part to show that the commentary was directed specifically to [the poet] as

opposed to the public.” Id. at 841 (2).

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

2
brought to her attention.”In fact, the record shows that Harrell’s sister became aware

ofthe 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 filledwith grotesque racial attacks and unsubstantiatedallegations

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.

Accordingly, I respectfully dissent.

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