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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Does 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.