MD Court of Special Appeals Avoids a Ruling on the Merits


In an opinion worthy of the 9th Circuit, the Maryland Court of Special Appeals has dodged having to rule on the constitutionality of the state’s online harassment of of a minor statute by deciding that Aaron Walker did not have standing to bring his case against the state. The court also denied the appeal of the Walker v. Kimberlin, et al. portion of the case.

Here’s the opinion:

I’ll have more to say about this opinion after I’ve gone over it more thoroughly. For now, I’ll simply note that I’m not surprised that the court has tried (perhaps successfully) to avoid having to enforce the Bill of Rights.

Gilmore v. Jones, et al. News


The defendants have filed their replies to Gilmore’s opposition to their motions to dismiss. Here is Allen West’s.

Here is the reply from Jones, Infowars, Free Speech Systems, and McAdoo.

Here is the reply from Hoft, Stranahan, Creighton, Wilburn, Hickford, and Words-N-Ideas.

A common theme among the defendants’ replies seems to be “Look, we have made evidence-based attacks on Gilmore’s assertion that the Court has jurisdiction which he did not bother to answer.”

Hoft, Stranahan, Creighton, Wilburn, Hickford, and Words-N-Ideas also filed an opposition to the amicus brief submitted by the First Amendment and Media Law “Scholars.”

The court has scheduled a hearing on the motions to dismiss for 10 am on 13 November.

Stay tuned.

Popehat on Kavanaugh on Free Speech


Ken White has a good review of Brett Kavanaugh’s decisions relating to the First Amendment posted at his blog.

Kavanaugh’s work on the D.C. Circuit show a judge strongly protective of free speech rights, and part of the trend of applying free speech doctrines both to classic scenarios and to government regulation. His stance on telecommunications and elections laws will get him painted as part of the “weaponize free speech” movement by results-oriented thinkers. He’s strong on First Amendment limits on defamation law and his approach to anti-SLAPP statutes do not, as some have suggested, signal that he wants to make defamation cases easier. But though he might help upset applecarts by applying the First Amendment to regulatory schemes, and will not uphold broad speech restrictions, he will likely not overturn doctrines that make it hard for individuals to recoverfor speech violations.

Read the whole thing.

Free Speech and Power


The recent free speech wins in the Supreme Court and the Left’s meltdown over the retirement of Justice Kennedy set me to thinking about the collision between the Left’s traditional support for free speech and the Left’s use of their political power to suppress speech. As usual, others have been pondering what I’ve been pondering, and they’ve beaten me to the keyboard with their thoughts.

Ron Coleman has a post over at Likelihood of Confusion™ dealing with the free speech, trademarks, and “weaponized” speech. (The Slants were the band Coleman represented before the Supreme Court in the Tam trademark case.)

A sad day. How did we get past this mentality — the “weaponized” language comes from Justice Kagan’s dissent in the recent Janus decision — to get the result in Matal v. Tam (in which all the justices, including Kagan, joined), when the progressive professoriate was already nipping at the heels of free speech?  “Vile trademarks will be registered!” they wailed. And they were right… kind of.

I told you that case was about more than trademarks, and certainly more than the Redskins’ trademarks.  So did Rich Lowry.  So did Martha Engel.  Everyone knew it — including those who did not support the outcome.

I don’t quite know how The Slants managed to set a high-water mark for free speech before “weaponization” set in. But thank God, and everyone else I’ve thanked already, we did. It could be a long time until we get back there again.

Read the whole thing, and then check out Victor Davis Hanson’s piece over at NRO.

Progressive pundits and the liberal media almost daily think up new ways of characterizing President Trump as a Nazi, fascist, tyrant, or buffoon. Celebrities openly fantasize about doing harm to Trump.

Yet the current progressive meltdown is about more than just political differences. The outrage is mostly about power — or rather, the utter and unexpected loss of it.

Furious over the sudden and unexpected loss of power, enraged progressives have so far done almost everything to lose even more of it.

And that paradox only leads to more furor.

Read all of that post as well.

Given the neo-Marxist ideas underpinning so much of what passed for thought on the Left these days, it’s not surprising that the search for Truth via free speech would be abandoned for an attempt to shore up losing arguments with raw power.

Team Kimberlin Post of the Day


It was six years ago today that I first met Aaron Walker. I had traveled down to the Montgomery County Circuit Courthouse in Rockville to observe the appeal trial for the peace order that Brett Kimberlin had been granted against Aaron. Kimberlin had already seen the unconstitutional gag order portion of the peace order struck down. Now, he would see his petition dismissed for lack of evidence. Here’s how I summarized the day’s events:

* * * * *

Judge Rupp ruled that there was no evidence to support Brett Kimberlin’s petition for a Peace Order.

Part of the way through his presentation Kimberlin accused Mr. Walker of mobilizing an Army of Davids (who he viewed as a right wing militia) against him. How about that, Prof. Reynolds?

UPDATE–Instalanche! Thank you, Prof. Reynolds! and welcome Instapundit readers! Feel free to click on the Home link in the menu bar and scroll around for other coverage.

UPDATE 2—I wrote some first impressions of the morning as I stopped for a cup of coffee on the way home. Here are some more thoughts:

I was not the only person who showed up to support Aaron Walker. There were a couple of well-wishers from the local area who were there along with a member of Mr. Walker’s family. The only person who showed up with Brett Kimberlin was Neal Rauhauser.

Today was the first time that I’ve met Aaron Walker face-to-face. I like him. He strikes me as a straight forward guy.

Today was also the first time that I have ever seen Brett Kimberlin. I had no personal contact with him, and he didn’t make much of an impression. He seemed frustrated by Judge Rupp’s insistence on sticking to the Rules of Evidence.

Let me second Aaron Walker’s request about contacting or harassing Mr. Kimberlin. Please don’t do it. Brett Kimberlin and his family have as much right to be left alone as anyone else. Don’t contact or harass him. Don’t contact or harass his family. Let the courts sort out the issues.

OTOH, Mr. Kimberlin has become a public person, and, as such, he is not immune from being discussed in a truthful manner in public fora. I intend to do so until these matters are settled. Remember, Aaron Walker’s federal lawsuit against Brett Kimberlin is still pending.

UPDATE 3—The guy in the courtroom who I didn’t recognize must have been David Hogberg. He has his report on the hearing here [broken link].

UPDATE 4—Aaron Walker’s account is here.

UPDATE 5—There’s other good coverage of Kimberlin v. Walker out there in the blogosphere:

Popehat
The Camp of the Saints
Breitbart
Legal Isurrection

And there’s an interesting backgrounder on Brett Kimberlin at The Other McCain.

* * * * *

The Dread Deadbeat Pro-Se Kimberlin kicked the wrong hornets’ nest.

Yours Truly, Johnny Atsign


SOUND: Skype rings twice.

PRODUCER: LBS Production Office.

JOHNNY: (Telephone filter) Hi! It’ Johnny Atsign.

PRODUCER: Johnny! Where are you?

JOHNNY: (Telephone filter) Nairobi. I’m just back from a whirlwind tour of several African capitals and some other intriguing places.

PRODUCER: Still working on the [redacted] case?

JOHNNY: (Telephone filter) Uh, huh. Mostly, I’ve been following the money.

PRODUCER: Money? In Africa? Those are some of the poorest countries in the world.

JOHNNY: (Telephone filter) Yes and no. Most of the people are poor, but the countries are rich in terms of potential development. There’s a huge competition for control of those resources going on.

PRODUCER: But what does that have to do with your case?

JOHNNY: (Telephone filter) I’m just beginning to develop a firm connection, and that’s why I called. It looks like I’ll be here for at least another week or two.

PRODUCER: So more reruns?

JOHNNY: (Telephone filter) Well, I guess so. Or the show could go on hiatus for a few weeks. Why not let the listeners choose?

PRODUCER: Yeah, why not? OK. We’ll handle it. Meanwhile, stay safe.

JOHNNY: (Telephone filter) Sure thing. See in a few weeks.

PRODUCER: Bye, Johnny.

JOHNNY: (Telephone filter) Goodbye.

ANNOUNCER: OK, folks, here’s the poll—

Crazy People Are Dangerous™


That headline belongs to my friend, co-defendant, and co-podcaster Stacy McCain. I’m just borrowing it for this post.

Jarrod Ramos, the shooter at the Annapolis Capital Gazette, has apparently had some sort of feud going with the newspaper for several years, feud triggered by the paper’s truthful reporting of the facts of a previous harassment case. The shooter’s attempt at lawfare failed when a judge threw out his defamation suit. CBS News reports:

In July 2012, Ramos filed suit against Capital Gazette for defamation, according to the 2015 court filing. The complaint was just four paragraphs long, but Ramos filed a longer 22-page claim several months later.

In 2012, a judge dismissed the lawsuit on the basis that “there is absolutely not one piece of evidence, or an assertion by you that the statement [in the article] was false.”

“I think people who are the subject of newspaper articles, whoever they may be, feel that there is a requirement that they be placed in the best light, or they have an opportunity to have the story reported to their satisfaction, or have the opportunity to have however much input they believe is appropriate,” Judge Maureen M. Lamasney said when dismissing the case. “But that’s simply not true. There is nothing in those complaints that prove that anything that was published about you is, in fact, false.”

The Truth was a complete defense in court, but apparently not effective against a crazy person who would continue to hound the paper for years on Twitter. I will be interested to see what measures the Capital Gazette (and its parent the Baltimore Sun) take to improve the safety and security of their offices and employees.

UPDATE—Stacy has more to say about this at The Other McCain.