Team Kimberlin Post of the Day

Yesterday, I published the text of the final ruling in Kimberlin v. Judges of 4CCA which referred to that suit as frivolous. Much of what The Dread Pro-Se Kimberlin files fall into that category. Consider Kimberlin v. Dept. of Justice. TDPK filed the lawsuit shortly after being returned to prison when his parole was revoked. He sued the Bureau of Prisons because he couldn’t have an electric guitar. Here are some quotes from the decision of District Court for the District of Columbia.

Brett Kimberlin and Darrell Rice, prison inmates, challenge the constitutionality of the Bureau of Prisons’ (“BOP”) ban on electric or electronic instruments in federal prisons, except those used in connection with religious activities, and the Zimmer Amendment, section 611 of Pub.L. No. 104-208, 110 Stat. 3009 (“the Amendment”), which bans federal funding for electric or electronic instruments in federal prisons but does not by its terms create a religious use exception. Claims 1 and 2 of plaintiffs’ complaint allege that BOP violated the Administrative Procedures Act, 5 U.S.C. § 706 (1996)(“APA”). Claim 3 alleges that BOP interferes with their First Amendment right to expression through music and music writing. Finally, Claim 4 alleges that BOP’s policy deprives plaintiffs of their First and Fifth Amendment rights.

Plaintiffs argue that to require them to express themselves musically on an acoustic instrument would be akin to requiring rap musicians to sing ballads, or Muslim prisoners to attend Catholic religious services. Plaintiffs insist that they cannot perform their music on acoustic instruments.

The trial court found that the law and the prison regulations were constitutional. This was another case TDPK lost.

Of course, he appealed, and this is what the Court of Appeals for DC ruled:

[W]e conclude that the challenged BOP regulations prohibiting prisoner possession or use of electric and electronic musical instruments do not violate the APA or the Constitution. Accordingly, the judgment of the district court is Affirmed.

The purpose of TDPK’s suit wasn’t to have access to a necessity. He was suing for access to something that was nice to have, for a luxury item. Prison isn’t supposed to be a place for easy living. Furthermore, the BOP’s regulation did not prohibit playing music, it simply limited the types of instruments available. As the District Court noted,

Here, the policy seeks to deter crime by making prison harsher. This goal is unrelated to the suppression of musical expression. BOP did not seek to suppress musical expression per se. Rather, it sought to make prisons harsher by prohibiting luxury items, including electrical and electronic instruments.

Brett Kimberlin does not pick his battles well. That’s one of the reasons why he’s a loser.




ANNOUNCER: (VOICE OVER MUSIC) Around Twitter Town and in the territory of the net—there’s just one way to handle the harassers and the stalkers—and that’s with an Internet Sheriff and the smell of “BLOGSMOKE”!


ANNOUNCER: “BLOGSMOKE” starring W. J. J. Hoge. The story of the trolling that moved into the young Internet—and the story of a man who moved against it. (MUSIC: OUT)

JOHN: I’m that man, John Hoge, Internet Sheriff—the first man they look for and the last they want to meet. It’s a chancy job—and it makes a man watchful … and a little lonely.


JOHN: The Grouch had been looking for some way to tag me with something, anything that would cause me legal problems. He didn’t seem to care if it were civil or criminal, just as long as he cou …

ANNOUNCER: We interrupt Blogsmoke to bring you this news bulletin.

This morning W. J. J. Hoge filed the following Informal Response Brief in the Kimberlin v. National Bloggers Club, et al. appeal with the Fourth Circuit Court of Appeals in Richmond.

ANNOUNCER: We return you now to “BLOGSMOKE” already in progress.

… not necessarily our jurisdiction. It depends on which State’s Attorney does what or whether everything is consolidated by the Attorney General. If Maryland cleans up the mess, we won’t have to get involved.

JOHN: OK. I’ll pass that along.


ANNOUNCER: (VOICE OVER MUSIC) Even with a good imagination, we can’t come up with stories as strange as The Grouch and his buddies provide for episodes of “BLOGSMOKE”!


ANNOUNCER: The Legal Department wishes the following declaimer read: “‘BLOGSMOKE’ is a work of fiction. Anyone who feels it might be about him should read Proverbs 28:1.”

Be sure to tune in on Monday at 6 pm Eastern Time for the next intriguing episode of “Yours Truly, Johnny Atsign,” and join us again every Friday at 6 for alternating episodes “BLOGSMOKE” and “Blognet.”

This is LBS, the Lickspittle Broadcasting System.

Team Kimberlin Post of the Day

adXzgr8The Cabin Boy™ has another ultimatum published. In it, he threatens to file criminal charges against me under Md. Crim. Law §§ 3-803 and 3-805 and to seek a peace order against me if I do not police the comment section of this blog to his satisfaction. Here’s my understanding of the law as it applies to the situation.

Under the Communications Decency Act (47 U.S.C. § 230), I may not be held responsible for the content of comments submitted by other persons to this blog. Also, under § 230(e)(3), I cannot be subjected to any state prosecution or civil liability for those comments either. Thus, under federal law, someone who believes that comments on this blog are defamatory or harassing or otherwise offensive must take it up with the commenter(s) directly and not with me. If the Cabin Boy™ has a problem with my avatar, he can try to hold me accountable. If his problem is with someone else, he must take it up with him or her. He may not trouble me about it. I’m not obliged to deal with his dispute with a third party.

BTW, The Dreadful Pro-Se Schmalfeldt acknowledged that this is his understanding of the Communications Decency Act in a previous court filing. See Schmalfeldt v. Johnson, et al., Case No. 15-CV-00315-RDB, ECF No. 1 (D.Md. 2015), ¶ 35. Given that Schmalfeldt has admitted that he must take up his complaints against commenters with them and not with me, attempting to hold me responsible for the contents of comments could be construed as an act of bad faith.

Schmalfeldt’s ultimatum threatens criminal charges if I don’t do as he pleases, and he’s demanding that I give him something of value (partial control of this website) that I have no legal obligation to give up. Ironically, he may have violated Md. Crim. Law § 3-704 and § 3-706 .

I do my blogging from Carroll County. If the Cabin Boy™ is stupid enough to want to carry out his threats, he knows how to find the District Court Commissioners Office in Westminster.

Yours Truly, Johnny Atsign

JOHNNY: The more things change, the more they stay the same. Here’s what I was doing a year ago …

Johnny Atsign Logo 2ANNOUNCER: From Westminster, it’s time for—

SOUND: Skype rings once.

JOHNNY: Johnny Atsign.

BOB BAILEY: (Telephone Filter) Good morning, Mr. Atsign.


BOB BAILEY: (Telephone Filter) My name’s Bailey. Are you online yet this morning?

JOHNNY: Not yet. I’m still on my first cup of coffee.

BOB BAILEY: (Telephone Filter) You’ll enjoy it this morning. Somebody thinks you’re not real.

MUSIC: Theme up and under.

ANNOUNCER: The Lickspittle Broadcasting System presents W. J. J. Hoge in the transcribed adventures of the man with the action-packed Twitter account, America’s fabulous free-lance Internet investigator …

JOHNNY: Yours Truly, Johnny Atsign! Continue reading