First Amendment News


Congratulations to Project Veritas on its victory in court yesterday. They were being sued for defamation in a federal court in North Carolina, and Judge Martin K. Reidinger granted them a directed verdict when the plaintiff failed to produce enough evidence for the case to go to the jury. The judge said this in his ruling (beginning at the bottom of page 14 of the transcript below):

The law requires, and the Supreme Court has made clear under the Liberty Lobby case, that I not only have to look at this from the standpoint of whether or not there is the thinnest of thin reeds, that scintilla of evidence, but rather whether a jury could find by clear and convincing evidence that there was actual malice. And these very thin reeds, which I believe as to several of these are really no evidence of malice at all, are insufficient to meet that standard. Therefore, for that reason, the defendant’s motion — defendant’s motions pursuant to Rule 50 will be granted.

Federal Rule of Civil Procedure 50 deals with ruling on matters of law during a jury trial. Judge Reidinger continued:

Whenever I have something that is of particular difficulty, such as this case, it is my ordinary, knee-jerk reaction to tell the party that I’ve ruled against that I urge you to have the court of appeals go grade my paper. To that end, I will say that I will follow this up with a written order before I enter a judgment in this matter that will further elucidate what I’m talking about.

And I do have an inclination to say exactly that. I think that if I got this wrong I’d certainly like for somebody to tell me that I got it wrong. I have a little bit of hesitation in saying that this time. Because if I’ve gotten this wrong, and the Fourth Circuit says that this is not what the law is, I hesitate to think where the First Amendment is going in this country.

It’s always good First Amendment news when a frivolous defamation LOLsuit fails, and I have to admit that seeing one fail because the plaintiff couldn’t come up with a “scintilla” of evidence at trial has a certain resonance for me.

Unintended Victims


Women who were listed without their permission as victims of domestic abuse in a political ad by Senator Heitkamp have said that they are looking for a lawyer. Good. That sort of irresponsible behavior isn’t protected by the First Amendment, and someone publishing such a statement should be held accountable. Heitkamp should be on the hook for invasion of privacy against anyone who didn’t consent to be publicly named and for libel in cases where the women weren’t victims of domestic violence at all. Indeed, the husbands of the non-victim women might also have grounds to sue for defamation because of being falsely painted as abusers.

A politician’s false narrative may have created some unintended victims.

Team Kimberlin Post of the Day


Three years ago, Karoli Kuns joined in Team Kimberlin’s effort to spin a false narrative about me and my interactions with Bill Schmalfeldt. That resulted in a chain of posts three years ago today that began with this one.

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I see that Karoli Kuns has a long piece up at Crooks and Liars. Clearly, it was not subjected to fact checking. Consider this typical paragraph which I will fisk:

To a large extent, it succeeded. Hoge filed numerous requests for peace orders which were routinely rejected by the Court. [I filed two.] After they were denied, Hoge appealed. [Only the first one.] Finally, Hoge scored on appeal and found a sympathetic ear in Judge Thomas Stansfield of Carroll County, who had no experience with online social networks or blogs. Judge Stansfield granted Hoge his peace order under Maryland’s domestic violence laws. [No. The peace order was granted under a Courts & Judicial Procedures statute. Protective orders, which are not the same thing, are granted under a Family Law article.] Schmalfeldt was ordered not to contact Hoge at work [No. The order does not mention my workplace because I was retired at the time it was issued.] or contact him by phone. (None of these things had ever happened or could happen because Schmalfeldt does not have the physical ability or desire to visit Hoge anywhere at any time.) He was also barred from contacting Hoge via email. [He is prohibited from contacting (by any means), attempting to contact, or harassing me.]

I’ve been told that accuracy in reporting has never been Karoli’s strong suit. After reading stuff like this, I’m inclined to believe that characterization.

She is no more accurate in her description of the state of the law in Maryland.

But Maryland also needs to evaluate how they’ve structured their peace order process. A simple refinement to the law which limited peace order requests to those where there was an established domestic relationship or closer physical proximity would have eliminated this problem and ended a lot of stress and aggravation for Schmalfeldt. As it stands now, any Maryland citizen can invent the idea that a criminal act has been committed against them online, take that idea to the courthouse and turn it into a peace order. This entraps people in a litigation net who do not belong there while depriving them of the same protections other citizens receive.

In fact, Maryland has two different procedures for dealing with conflicts outside of the criminal justice system. The first, Protective Orders, deals conflicts between family members or domestic partners. This is what Brett Kimberlin sought to use against his wife, unsuccessfully in the end.

The second, Peace Orders, deals with conflict between non-related parties. To obtain a peace order, one must prove (to the “clear and convincing” standard) to a judge during an adversarial hearing that one is the victim of one or more of a specified list of crimes. In my case against Schmalfeldt that was harassment. Harassment via the Internet is harassment. There is not an exception because blogs or Twitter were used.

I am not amused by this either.

sir robin shieldUPDATE—Karoli has taken down comments to her post that relate to the actual facts of the situation with Bill Schmalfeldt, and she has announce that she will not permit any more such comments. She claims that her post is really about how screwed up Maryland’s laws are. If they were as she describes them, I would probably agree. However, she does not correctly describe Maryland’s Peace Order stature or how it works.

Not only does she have her facts wrong, she has her facts about the law wrong.

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That post prompted Matt Osborne to butt in and me to post this in response to him.

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Matt Osborne attempted to comment here at Hogewash!:MO201404271221ZI did and found these questions which I present with my answers.OsborneEmailWhy do I get the feeling that this is not a benign inquiry?

UPDATE—MO201404271300ZSome questions are so nonsensical that they do not deserve an answer, but I’ll make an exception for this one.

What Matt Osborne is lamely trying to do is appeal to everyone’s inherent sense of justice. Human beings are wired to favor fairness, and, of course, it would be unfair for me to engage in sadistic harassment. One of the problems with the question is its being based on the false premise that I am the harasser in the Hoge/Schmalfeldt interaction.

There is an important theological problem with Osborne’s question as well, and I intend to deal with it in a longer post later today.

Stay tuned.

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And I wrote about that theological problem in this post called On Justice.

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“No fair!”

Every one of us has said it beginning from the time we were small children. Human beings seem to be wired with a predisposition to fairness. Indeed, evolutionary psychologists like Jonathan Haidt believe that the moral sense of fairness is a universal human trait. Outrage is a normal, heathy response to unfair treatment. We want the world to be set to rights. We want justice in what seems to be an unjust world.

As a Christian, I believe that the source of justice is God. It says in Genesis that we were created in His image, so it makes sense to me that more we allow ourselves to be led by the Holy Spirit to be what God intends for us to be, the more we would desire justice. Sometimes Christians are called to deal with the grander problems of the world—think of William Wilberforce, Desmond Tutu, Dietrich Bonhoeffer, and Martin Luther King, Jr.—but, most of the the time, most of us deal with the seemingly smaller injustices of the world. Sometimes a Christian is called to stand up to a bully.

Bill Schmalfeldt is a such a bully. For years, he has harassed others on the Internet, and no one was able to bring him to justice. That task seems to have fallen to me.

Schmalfeldt’s surprised reaction has been to whine, “No fair! You hit me back.” However, even that’s not strictly true. I haven’t taken personal revenge on him. I’ve reported him to the proper authorities and left any action taken to them.

The real question I face is not what Jesus thinks of my allegedly sadistic treatment of Bill Schmalfeldt. That question is based in the false premise that I am the sadist in the interactions between us. No, the real question is what Jesus would think of my failure to stand up a thug like Schmalffeldt who is bullying others.

Has my response to Schmalfeldt been perfect? Probably not. But my conscience is clear. It would not be if I had failed to step in between him and some of his victims.

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I’m not done with him yet.

Team Kimberlin Post of the Day


As part of Team Kimberlin’s full court press against me three years ago, officials at NASA received emails and other communications describing me as unfit for employment as contractor for the agency. While the Cabin Boy™ was not stupid enough to admit to being the source of some of those communications, he did engage in some rather pathetic online concern trolling over what he imagined was my predicament. As this Bonus Prevarication Du Jour shows, he proceeded with his usual level of incompetence.

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The Cabin Boy™ isn’t even a good concern troll.SRN201503112246ZAs Team Kimberlin has been pointing out, I am 67 years old. I’ve been enrolled in Medicare for over two years.MedicareI use one of the low end insurance plans available at work as a “Medigap” policy. However, because Mrs. Hoge is several years younger than I am, she has been separately insured since I turned 65. My employment (including the income stream it provides) has no effect on her health insurance.

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I wasn’t the least bit stressed by Team Kimberlin’s contacts with NASA or their later emails to the Maryland Forestry Board Foundation and Department of Natural Resources. In fact, I rather enjoyed cooperating with law enforcement in determining who was the source of those bogus “warnings” about me. Contractor to Fed, as it were.

Oh, one more thing … I had retired in 2013, but was asked to come back to Goddard at the beginning of 2014. I retired a second time in late 2015, and was asked to come back again 2016. For now, I’m having fun at work, so I think I’ll stick with it for awhile longer.

Hate and Defamation


The Southern Poverty Law Center has taken upon itself the role of defining what it is to be a “hate group” and to publicly identify such organizations. As best as I can tell, opposition to the SPLC extreme left-wing agenda will qualify a group for listing. Some otherwise responsible organizations have begun using the SPLC determination of hate group status to filter business decisions.

Amazon has a program called Amazon Smile which allows customers to designate 0.5 percent of the purchase price of qualified items as a donation to a charity registered with the Amazon Smile program. When the D. James Kennedy Ministries tried to register to receive donations, it was turned away because it has been designated as a “hate group” by the SPLC. More info here. The reason that ministry has been designated as a “hate group” is that it opposes same-sex marriage. That opposition is based on the ministry’s religious belief stemming from it’s interpretation of the Bible. The ministry claims that it teaches love, even for one’s enemies, and not hate.

The ministry is suing the SPLC and another organization that collects and reports information on charities called GuideStar for defamation. It is also suing Amazon and Amazon Smile under the Civil Rights Act of 1964 under the theory that it has been blocked from the benefit of a public accommodation based on religion. The suit claims that Amazon’s business of providing entertainment such as movies online qualifies the company as a public accommodation just like a brick-and-mortar theater.

This could get interesting.

UPDATE—Corrected the name of the SPLC in the first sentence. I HATE autocorrupt!