Spinning Out of Control


As a pilot, I can tell you that a spin is something to be avoided. It can be hard to recover from, and loss of control will result in a crash. Team Kimberlin and its fanboys and enablers seem to be spinning out of control in their reaction to the peace order extension issued last Monday against Bill Schmalfeldt.

The order simply requires Schmalfeldt to refrain from contacting, attempting to contact, or harassing me.

Most of the brouhaha is Team Kimberlin’s misrepresentation of Judge Stansfield’s findings with respect to Twitter and what constitutes contact under the terms of Maryland’s harassment statutes and the peace order he issued.

Notice that I wrote statutes. Plural. Maryland has two laws that are applicable. The first is the general harassment statute which deals with any intentional course of conduct that seriously annoys, alarms, or harasses the victim and that continues after the perpetrator has been told to stop. This is the statute that Schmalfeldt was found to have violated. The fact that his course of conduct involved tweets was incidental to that finding. It was his conduct and not the particular means of delivery that was the issue. In the context of Schmalfeldt’s behavior, the judge found that Schmalfeldt’s tweeting @mentions and @replies using @wjjhoge was a part of his method of harassing me. Harassing me. Not contacting me. But he was ordered to stop doing both.

Maryland also has a law aimed specifically at harassment via electronic communications. It allows for an enhanced criminal penalty when harassment is conducted by means of data (text, photos, whatever) sent to and received by a specific person. During the October hearing on Schmalfeldt’s motion to modify the order and during last Monday’s hearing on the extension, the judge found that using an @mention or @reply caused Twitter to deliver the tweet containing it to a particular account, the account of the user mentioned. That means that someone who was uses @mentions or @replies to engage in a course of harassing conduct could be charged under both laws, electronic harassment for a possible enhanced criminal penalty and harassment in general to enable a peace order to be issued. Specifically, Judge Stansfield found that Schmalfeldt’s 470 tweets containing @wjjhoge or @hogewash were contact that I should not have received under the terms of the peace order.

(I note that the three pornographic images entered into evidence were found to be harassment but not contact, and also good cause to extend the peace order. Although they were tweeted, the versions entered into evidence were from websites. Schmalfeldt’s harassment of me has not been limited just to Twitter.)

This doesn’t cause any real change in how the First Amendment relates to harassment. Harassment isn’t protected speech. What it does is to make it clear that Twitter is not a safe harbor for harassers under Maryland law. Twitter users will be held to the same standard in that forum that would they be writing in a newspaper or speaking on a street corner.

Is that so bad?

10 thoughts on “Spinning Out of Control

  1. the judge found that using an @mention or @reply caused Twitter to deliver the tweet containing it to a particular account, the account of the user mentioned.

    Gee, it almost seems like he’s read what Twitter says about @mention and @reply. But Acme Legal knows what Twitter is and does far better than Twitter itself, which is clearly in love with Zoa…or something.

    The comedy never stops with these people.

  2. I appreciate that you keep setting the record straight. The other thing they do is lie repeatedly to confuse and change the narrative.

  3. Since there is nothing to be gained by appending @ to a twitter username, EXCEPT sending the message to that username’s will see it in hismessage box and at the same time letting his own followers know that he is doing so (directly addressing you), there can be no motive for using it except to attempt to contact you. Indeed, he intended to flood your mentions box to interfere with your use of twitter and your ability to see communications that others send.

    He can write your username in his message without the @. It would be just as searchable as @+username; in fact there are considerable advantages to searching by username only. BS knows this, he does it all the time. using his given name and his usenames.

    It’s just as apparent to his followers or anyone who checks out his timeline, that he is talking about you. The court order doesn’t restrain him from writing non-harassing messages or from writing about you even if his message is a negative opinion or a true negative fact. He does lose the satisfaction, whatever it might be, of having his followers know he is trying to talk to you and that he is directing messages TO you. The court, however, ordered him to abandon that conduct or be subject to penalty.

  4. I suspect him of at least a few violations using a sock account, one that quickly locked down when folks began to call it out. His latest “own name” account, is now locked down and he can’t violate the order with it so long as that is the case. Only followers he approves can see *any* of his tweets or @tweets (that is, @replies or @mentions). If your account is protected and you reply to someone who is not following you, they cannot see your tweet.

    • Wonder if someone encouraged him to protect his account since he is clearly unable to stop using the @ mention when dealing with Mr. Hoge? Could be someone gave him a good piece of advice to save him from his own monumental stupidity.

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