Team Kimberlin Post of the Day


One of the dumbest things Brett Kimberlin has done during his campaign of lawfare was to use Bill Schmalfeldt as one of his PR mouthpieces. Aside from his incompetence, Schmalfeldt personal legal problems became a massive source of pointage, laughery, and mockification that damaged the Team Kimberlin brand. Schmalfeldt’s misbehavior resulted in his receiving a dozen restraining orders issued in five states. One was issued to protect a three-year-old child.

Here are a couple of posts from four years ago today that dealt with Schmalfeldt’s inability to obey one of those court orders. The first was a Legal LULZ Du Jour. The second was a Prevarication Du Jour.

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NQ01601211819ZIf the Cabin Boy™ were to bother to read his copy of the stalking no contact order issued against him on behalf of Patrick Grady, he would see that he is forbidden from communicating “to or about” Mr. Grady. NCO_b1It may be that Cook County is interested in seeing that the orders of its courts are obeyed. BTW, Wisconsin recognizes out-of-state orders as enforceable in Wisconsin.

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NQ201601212145ZNo, I don’t hate the First Amendment. I believe that prior restraint on publication generally is prohibited by the First Amendment, and the Supreme Court agrees with me. See New York Times v. United States, 403 U.S. 713 (1971), also known as The Pentagon Papers Case.

However, I do believe that it is possible for someone to do something that can result in the loss of some or almost all of his rights. For example, a felony conviction will put an end to a person’s Second Amendment right to own a modern firearm. A jail sentence ends someone’s right to travel as he pleases. Thus, it may be that a finding by a court that one has used his speech to violate the rights of another can cause a loss of some of the violator’s First Amendment rights. IANAL, and I haven’t read much case law in the area, but I wouldn’t be surprised to find that the Illinois stalking no contact order law is valid.

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Schmalfeldt should have spent more time invoking his Fifth Amendment right to remain silent. IIRC, the last of the restrain orders has expired, so his First Amendment right to speak is unfettered. But now it seems that nobody is listening.

Karma is a bitch.

On Being Dangerous


The men in primitive human societies are the hunters and warriors. As such, they must be dangerous. They must be capable of the violence necessary to harvest game and to protect their tribe, but they must restrain their violence in order to be cooperative members of the tribe. That ability to act with restraint in one of the marks of a proper adult male human being. Indeed, as we have become more “civilized,” that restraint and cooperation have become even more necessary to allow large societies to function smoothly.

The attendees at the pro-second-amendment rally in Richmond today were mostly men, and the peace and calm reflected in their behavior is an example of mature restraint.

It’s a bit early yet, but it seems that there is a great deal of disappointment in certain quarters because the rally was peaceful. There seems to have been an expectation that mature men would act like spoiled children and have some sort of hissy fit because they weren’t getting their way.

The governor and legislature in Virginia are on a path that could take them beyond the point where peaceful protest of their actions is no longer appropriate, but they are there. Yet. Perhaps, they will reconsider their unwise attack on Second Amendment rights, but it ma be that they won’t. If they persist, many Virginians may be inspired by these words written by the second governor of Virginia—

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Now, one peaceful way of handling such a situation would be recall elections, but the legislature is moving to make recall more difficult. If they unfairly game the political process, they should not be surprised if other means are sought.

There are times when it justified for dangerous men to be dangerous.

UPDATE—Seen on Gab—

When Overreach Starts to Fail


Nancy Pelosi allowed the forces on her left wing to go a bridge too far. She tried to find a way to salvage the House Impeachment Hoax, but she’s been outmaneuvered by Cocaine Mitch. The mopping up action will begin in the Senate next week, and the hapless PR skirmishing by the Maddows in The Media will not save The Narrative.

Meanwhile in Virginia, Governor Blackface and his friends in the Legislature are pushing ahead with California/New York style gun control. As anyone who has looked at a map of those Second Amendment sanctuaries can see, the proposed laws have little popular support outside of the DC suburbs and a few urban areas. The legislature has responded to public unrest by changing its rules in order to be make lobbying by gun control supporters more difficult and by moving to change the law related to recalling public officials. The governor plans an emergency declaration to prevent the carrying of firearms at a pro-Second-Amendment rally. These are not the acts of fair-minded politicians seeking to do the will of their constituents.

We see the system of checks and balances envisioned by The Founders working in the case of the Impeachment Hoax. We see it apparently failing in Virginia. I doubt Madison or Jefferson would be pleased with their home state today.

President Trump will face an election, and the voters will either keep him for another term or fire him.

Virginia … well, the state’s motto is sic semper tyrannis, so let’s hope that cooler, wiser heads prevail.

Team Kimberlin Post of the Day


One of the reasons that I (sort of) jokingly refer to Team Kimberlin getting their legal advice from the same outfit that sells stuff to Wile E. Coyote is that the theories they advance are usually as harebrained and effective as all those fine Acme products. Six years ago, I became the first of several individuals to hold Bill Schmalfeldt accountable for his online harassment, and he spent most of 2013 trying to figure out how to get that first peace order issued against him set aside. This Prevarication Du Jour from six years ago today dealt with one of his failed approaches.

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ftrrnews201310092359ZDoes Eugene Volokh agree with Bill Schmalfeldt’s interpretation of U. S. v. Cassidy? Well, it’s certainly true that Prof. Volokh agrees that writing about someone on the Internet is protected speech. But how about writing to someone? I’ll let the good professor speak for himself. Here’s what he had to say when writing about the patently unconstitutional peace order Brett Kimberlin secured against Aaron Walker last year, an order that forbade Mr. Walker from writing about Kimberlin—

The old narrow restrictions might well be constitutional (see, e.g., Rowan v. U.S. Post Office Department), but precisely because they deal with essentially one-to-one speech — restricting such unwanted speech to an unwilling listener leaves the speaker free to keep talking to other, potentially willing listeners.

Of course, it is just that sort of one-to-one speech that the Cabin Boy engaged in after being asked to stop which violated Maryland’s harassment law. Prof. Volokh also notes that

[p]erhaps a specific statute that bars the deliberate sending of one-to-one messages to a person who has asked that the messages stop, or who would otherwise clearly be substantially distressed by the messages, might be constitutional.

So it looks as if Prof. Volokh might agree that old-fashioned harassment statutes apply to behavior on the Internet just as they do in the real world. Perhaps the Cabin Boy should ask Eugene Volokh to file an amicus brief.

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In fact, Eugene Volokh did wind up filing an amicus brief in one of the Kimberlin case. He filed it in support of Aaron Walker, and as I understand his brief, he agrees with the point of view I expressed in my post.

Some More Gilmore v. Jones, et al. News


Brennan Gilmore was present at the Charlottesville riot in 2017. He recorded a car being driven into a crowd that resulted in the death of a women, and he posted that video online. He also made appearance in the news media discussing what he saw. As a result, Gilmore and his video became a topic of controversy, and Gilmore was upset with some of the commentary. He has sued Alex Jones and a host of others for defamation in federal court. When the judge in the case denied most of the motions to dismiss, two separate groups of defendants filed motions for reconsideration or for an interlocutory appeal of the dismissals to the Fourth Circuit Court of Appeals.

The judge has granted a motion certifying an interlocutory appeal of the following question:

Where an online journalist or publisher with a national audience purposefully and primarily focuses their coverage underlying the suit-related conduct on forum-state events and persons, is such conduct sufficient for a forum court to assert specific personal jurisdiction over that journalist or publisher?

I found footnote 1 interesting.

However this question is limited, the Fourth Circuit may nevertheless review uncertified issues contained within the Court’s order on Defendants’ Motions to Dismiss. “[W]e would not necessarily be limited to only those questions expressly or implicitly identified as ‘controlling’ by the district court; under § 1292(b), appeal is from the order certified, not from particular rulings embodied within it.” Fannin v. CSX Transp., Inc., 873 F.2d 1438, 1989 WL 42583, at *3 (4th Cir. 1989) (unpublished).

IANAL, but seems as if the judge in taking note that the defendants could raise other issues related to the motions to dismiss beside the certified question in their appeals.

This could be interesting.