Prevarication Du Jour

@weltschmerz2015|201502011911ZThe Dreadful Pro-Se Schmalfeldt seems to think that in a defamation suit the burden is on the defendant to prove that what he said or wrote is true. That’s exactly wrong. Here’s what the Maryland Court of Appeals has said.

In order to plead properly a defamation claim under Maryland law, a plaintiff must allege specific facts establishing four elements to the satisfaction of the fact-finder: “‘(1) that the defendant made a defamatory statement to a third person, (2) that the statement was false, (3) that the defendant was legally at fault in making the statement, and (4) that the plaintiff thereby suffered harm.'” Indep. Newspapers, Inc. v. Brodie, 407 Md. 415, 441, 966 A.2d 432, 448 (2009) (quoting Offen v. Brenner, 402 Md. 191, 198, 935 A.2d 719, 723-24 (2007)). … Under the second element, a “false” statement is one “that is not substantially correct.” Batson v. Shiflett, 325 Md. 684, 726, 602 A.2d 1191, 1213 (1992). The plaintiff carries the burden to prove falsity. Id.

Piscatelli v. Van Smith, 424 Md. 294, 35 A.3d 1140, 1147 (2012). (Emphasis added.) This is one of the points that tripped up The Dread Pro-Se Kimberlin in his Kimberlin v. Walker, et al. nuisance lawsuit.

Another thing that seems to trip up Acme Legal is the incorrect belief that defamation per se some how erases the plaintiff’s burden to prove falsity. It doesn’t. Defamation per se deals with whether or not damages have to be proven. The fact that any defamation occurred must still be demonstrated, and that requires proving that the statements made by the defendant(s) were false.

122 thoughts on “Prevarication Du Jour


  1. Thanks, John. The way you write it makes it seem easy enough for any idiot to understand; especially one who claims the ability to read ENGLISH! hahahaha


    • “Most of this stuff is written simply enough that lickspittles can grasp it.”

      — William Smellfart, Twitter Attorney at Law


  2. “But, but… I am the almighty William Smellfart, Twitter Attorney at Law, collector of multiple court orders from multiple states for harassment and stalking! If I don’t know what I’m tweeting about, no one does!”


  3. Bill Schmalfeldt @weltschmerz2015 · 3m 3 minutes ago
    Gee. Hoge sounds worried.

    Yes Bill, I can hear it in his post. “Did I get enough salsa?”

    Ah, the banal worries of a man with no worries.


  4. Bill Schmalfeldt @weltschmerz2015 · 53s 54 seconds ago
    So, everyone take a chill pill. Enjoy the game. We’ll talk later. Just stop telling lies. OK? Thank you.

    Hey, did anybody else hear that Bill Schmalfeldt is a deranged cyberstalker?

    Both Bill Schmalfeldt and Ken White says so, so it must be true.


    • And as I was busy researching all of the nice things 1st Amendment attorney Ken White has said about Bill, I came across a comment of his (I assume) over at Stace’s place. It’s a keeper:

      Ken • a year ago

      Look, McCain, back off, OK? Bill Schmalfeldt may be a banal and mediocre writer, and he may enjoy making sexualized satirical advertisements about the teen daughters of the subjects of his “journalism,” and he may relish fantasies about mob violence against people he disagrees with, and he may pen rape fantasies that creep out people on all sides of the spectrum, and he may derive satisfaction from threatening that people will lose their kids if they don’t do what he says, and he may fly into disturbed rages when people criticize him or even “like” a post criticizing him, and he may enjoy racist insults about the spouses of his critics, and he may relentlessly indulge in homophobic imagery to insult people whilst calling himself progressive and a journalist, but what you’re completely ignoring is you know I lost track of where I was going with this.

      Bill, you moron, now THAT is good writing.


    • LOL

      Bill Schmalfeldt also wrote he has dementia and that his own words can’t be trusted – which he has proven repeatedly. hahaha


      • Full Definition of DEMENTED
        1
        : mad, insane
        2
        : suffering from or exhibiting cognitive dementia

        ________________________

        Bill’s not good at definitions.

        Among most other things.


      • I think the days is drawing near when, in a fit of cataclysmic stupidity and hubris, young William accidentally sues a lawyer. Oh, what FUN that’ll be!

        And Olivier Wendell Jones is never wrong about the law, except for all of those times that he is. For example, he got the contempt hearing spiked before it even started, didn’t he?

        PAPERWORK! VENUE! PERJURY!


      • It would be hilarious, but I doubt it will ever happen. Bill is scared of Ken White. Sure, he makes a few hit and run shots, but for the most part he steers way clear of him.


    • Kimberlin has never got the distinction in LEGAL PARLANCE between defamation and defamation per se. Legal language has its own specialized vocabulary. In regular English, defamation per se would mean that the words are defamatory in themselves, regardless of truth. But at law, truth is an absolute defense to the tort of defamation. So nothing true is defamatory. As Mr. Hoge points out, defamation per se is a relevant term that comes in only after defamation itself is shown and relates to proof of damages.

      I think I have mentioned before when this aspect of legal language came home to me. I was studying the UCC. To be a “holder in due course” of a negotiable instrument requires taking for value in good faith etc. But those requirements are irrelevant unless you are a holder in the first place. Similarly, defamation per se is irrelevant if you have not been defamed in the first place.

      Moreover, this burden of proof concept seems to have escaped Acme Law. Kimberlin lost his case because he did not provide any evidence as to the falsity of what he asserted to be defamatory.


  5. Bill: Can I prove that I am not a “pro-pedophilia activist”?
    Bill, what do you call a person who advocates for a person who is suspected of having someone killed so they could continue to abuse an underage girl?


  6. So to restate: Batson v. Shiflett articulates a four-part test for defamation. Defamation per se only applies to the fourth part of the test (i.e. “that the plaintiff thereby suffered harm”). To state a claim upon which relief may be granted, a plaintiff alleging defamation per se must still allege with specificity “(1) that the defendant made a defamatory statement to a third person, (2) that the statement was false, [and] (3) that the defendant was legally at fault in making the statement”.


    • From my reply to Brett’s Opp:

      “This becomes particularly important on the topic of damages. Implicitly admitting he has not alleged damages, he relies on Shapiro v. Massengill, 105 Md. App. 743 (Md 1995) to claim that “[h]arm does not have to be proved in cases of per se defamation.” Omnibus Opp. ¶ 81. To the extent that any of the alleged defamation is per se, Shapiro states that the presumption of damages is only available if the Plaintiff can show malice: ‘where the statement is actionable per se, damages are presumed if a plaintiff can demonstrate constitutional malice[.]’ Shapiro, 105 Md. App. at 774. Therefore, even if he was not a public figure (and he obviously is), his failure to properly allege either actual damages or actual malice is fatal to his claim for defamation.”

      So in short Brett needed to show actual damages or constitutional malice, which requires proof of falsity, first. And Brett has never understood what malice means. To quote myself again:

      “Contrary to what the Plaintiff thinks, ‘[t]he ‘actual malice’ standard has nothing to do with ‘bad motive’ or ‘ill will’ or ‘malice’ in the ordinary sense of the term.’ Foretich v. Capital Cities/ABC, Inc., 37 F. 3d 1541, 1551 n. 8 (4th Cir. 1994).”

      Brett keeps thinking if he proves we don’t like him, that this adds up to malice. Because he is an idiot.

      If this isn’t clear enough in general that it doesn’t affect the burden of proof, here’s a choice passage from Telnikoff v. Matusevitch (1997)

      “We also held in Jacron that, in all defamation actions, ‘truth is no longer an affirmative defense to be established by the defendant, but instead the burden of proving falsity rests upon the plaintiff,'”

      All, you might imagine, means all, including defamation per se actions. Schmalfeldt doesn’t know what he is talking about. Neither does Brett.

      Also: water is wet.


  7. There is no shortage of reliable information available online that would help him understand, he just doesn’t want to understand. That’s without even attempting to inform him any advantage in bringing a claim and more particularly “auto-damages” and distinctions made between per se and per quod defamation is being rapidly and widely discarded by the states. http://apps.americanbar.org/litigation/committees/businesstorts/articles/spring2014-0513-defamation-prepare-plead-prove-actual-damages.html


    • Interesting the author wrote “It will always be easier, faster, and less costly to file a claim for defamation per se and avoid the burden of developing and proving DAMAGES” (capitalization added). It’s as if the burden for proving FALSITY still remains.


  8. I’m requesting a “Everybody Draw Bill Schmalfeldt Day” on Friday, the 13th of February.

    Also happens to be International “Blame Someone Else Day”.

    Not a coincidence.


  9. All this from a guy who has gay sex tote bags and water bottles for sale with a guy’s picture on it


  10. Bill Schmalfeldt
    ‏@weltschmerz2015
    Look, Eric. You seem all wound up thinking so much about child pornography and gay sex. Have you talked to a professional, @mayberryville?
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    5:42 PM – 1 Feb 2015

    Bill Schmalfeldt
    ‏@weltschmerz2015
    There are a lot of good mental health people, I’ll bet, down in Nashville. Make some calls. Or, if you would like, I could call someone 4 u.
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    5:43 PM – 1 Feb 2015

    Please, please, please let William be this stupid. Please!


    • 11-207. Child pornography.
      (a) Prohibited.- A person may not:

      (3) use a computer to depict or describe a minor engaging in an obscene act, sadomasochistic abuse, or sexual conduct;

      (4) knowingly promote, advertise, solicit, distribute, or possess with the intent to distribute any matter, visual representation, or performance:

      (i) that depicts a minor engaged as a subject in sadomasochistic abuse or sexual conduct; or

      (ii) in a manner that reflects the belief, or that is intended to cause another to believe, that the matter, visual representation, or performance depicts a minor engaged as a subject of sadomasochistic abuse or sexual conduct; or

      (5) use a computer to knowingly compile, enter, transmit, make, print, publish, reproduce, cause, allow, buy, sell, receive, exchange, or disseminate any notice, statement, advertisement, or minor’s name, telephone number, place of residence, physical characteristics, or other descriptive or identifying information for the purpose of engaging in, facilitating, encouraging, offering, or soliciting unlawful sadomasochistic abuse or sexual conduct of or with a minor.

      (b) Penalty.- A person who violates this section is guilty of a felony and on conviction is subject to:

      (1) for a first violation, imprisonment not exceeding 10 years or a fine not exceeding $25,000 or both; and

      Statutes, we don’t need no stinkin statutes


      • Clearly, you’ve selectively edited the statute. There has to be a “clumsy attempt at mockery that just makes the author look stupid” exemption. It’s just common sense!


  11. Speaking of things that we can prove, I wonder if William made any declarations about not posting the Grady peace order application online in court on Friday. Or just he just lie about it on twitter?

    That could leave a mark.


  12. Ah, and therein lies the rub:

    https://twitter.com/weltschmerz2015/status/562019707629604864

    Bill Schmalfeldt @weltschmerz2015 · 24m 24 minutes ago
    Eric P. Johnson is being VERY NAUGHTY tonight

    No. that post isn’t “naughty” or in any other way inappropriate. Only YOU would find something like that objectionable. That’s why your “just walk away” plea is so empty. You will continue to search twitter, Hogewash and TMZ constantly for any mentions of your name. And then, when you find something that you deem “naughty”, you’ll have a snit.

    Bill, you are so pathetically thin-skinned that ANY comment involving you will send you into paroxysms of butthurt.

    For God’s sake, isn’t it time you grew up and started acting like a man?


  13. The Elkridge Horror once again is running amok, perhaps primarily because of fear pee concerning the pending decision about his contempt charges. His performance in court on Friday was absolutely pathetic, but yielded amusement for all, but especially for his controller/chauffeur who sat behind him smirking at every one of BM’s legal ineptitude and gaffes; as if he could do any better. For BM to not recognize that indeed, he has become a public figure within settled legal guidelines and thus required to meet a much higher legal standard of proof in order to succeed in any suit for defamation, serves only to underscore just how off the mark his mind has descended into the abyss.

    He has become nothing more than a laughable caricature of a character so wonderfully portrayed by Jackie Gleason in “The Poor Soul” except for BM’s increasingly out-of-control rage against a world wherein he has been consigned to alleged PD, at whatever stage he decides fits his persona at the time, while we all just laugh at him at his expense. He is increasingly unstable and seems to be headed headlong for institutionalization in a State facility. Placement is such a facility is long overdue, in my opinion, for both him as well as the protection of those forced to reside with him.

    Deranged is far too simple a term to apply to him.


  14. Heh. He misinterprets everything, wishful thinking is his truth.
    Vis:
    Bill Schmalfeldt
    ‏@weltschmerz2015
    Bishop McImpersonation was wrong. I do have the right to call witnesses. Now, raise your right hand and repeat…
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    11:52 AM – 17 Jan 2015

    How’d that work out for you on Friday Bill?


  15. I have an idea for “Everybody Draw Bill Schmalfeldt Day.” I’d do it, but I’m rather lazy and terrible at photoshop.

    Take one of the photos of the oweee on his forehead when the dog Slovakian horseshit made him fall down and go boom. Emblazon above it “Law Makes My Head Hurt!”


    • As I remember it, the “Slovakian horseshit made me fall down and go boom” story was also presented as fact in court papers under penalty of perjury.

      I don’t remember William ever having corrected the record on that. Am I wrong?


      • It was in a letter he sent to the authorities about his butthurt. He was reminded of the actual timeline including the tweets he sent that clearly showed that he was lying. So he sent another letter to the authorities explaining that PD had caused him to forget the exact sequence of events.

        IIRC, of course.


  16. “E-mail me your address, Roy. We’ll keep it between ourselves. I want to send you a VALENTINE!!! Come on, Roy! No REAL Schmalfeldt HIDES!”

    Whatsa matter, Cousin Bill? Doxing skills suck?

    Find it yourself, ya big bag o’ pus.

    Or admit that I’m smarter than you.

    Either is fine by me.

    You clearly didn’t recognize me on Friday.

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