Team Kimberlin Post of the Day

In 2015, Brett Kimberlin filed a frivolous peace order petition against me alleging that I had harassed Tetyana Kimberlin’s elder daughter by writing truthful things about him. Two judges denied his petition. Then, Tetyana Kimberlin filed a perjured Application for Statement of Charges against me based on the same false claims. The State’s Attorney’s Office dropped the charges. If there wasn’t sufficient evidence to support a peace order which only requires proof to a preponderance of the evidence, a criminal case requiring proof beyond a reasonable doubt was a waste of time and resources.

Seven years ago today, I used the TKPOTD to suggest that it would be good for certain parties to recant defamatory remarks they had made.

* * * * *

Now that the frivolous peace order and false criminal charge related to harassing a minor child have both been disposed of, I want to encourage those who wrote and/or published defamatory articles or comments about me to retract their statements and apologize for them.

* * * * *

My advice was ignored, so I began taking corrective action.

I’m not done with them yet.

Team Kimberlin Post of the Day

One of the very few websites that isn’t actually controlled by Team Kimberlin that has given them any positive coverage is the eponymously named Crooks & Liars. Seven years ago today, Karoli Kuns ran a defamatory post about my coverage of Bill Schmalfeldt. I responded with a post titled A Reckless Disregard for the Truth, Part 2. The Part 1 post appeared earlier today, Part 1 contains material covered by a settlement agreement with Schmalfeldt. While I can’t repost such material, I can leave the original post up and link to it.

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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.

* * * * *

So she censored truthful comments. Gentle Reader, does that sound familiar?

IANAL, But …

I have successfully defended my writing here at Hogewash! and related public comments from eight lawsuits alleging defamation, five as a pro se defendant. Only one of those cases made it all the way to trial, and my codefendants and I were granted a directed verdict because the plaintiff did not meet his burden to prove what we had written and said was false. If I properly understand what my lawyers have told me, truth is an absolute defense to a defamation claim everywhere in the U. S., but there are some jurisdictions that place a particular burden on a defamation plaintiff to proof the offending remarks are false. Maryland is one. It looks to me that the District of Columbia is another.

The burden of proving falsity rests squarely on the plaintiff. He or she must demonstrate either that the statement is factual and untrue, or an opinion based implicitly on facts that are untrue. Lane v. Random House, Inc., 985 F.Supp. 141, 151 (D.D.C. 1995)

Dominion Systems is suing Sidney Powell and Rudy Giuliani for defamation in DC. It will be interesting to see how they prove what the defendants have said is false.

Team Kimberlin Post of the Day

Lies upon top of lies—that has been Team Kimberlin’s modus operandi. This Prevarication Du Jour from is years ago today is example of how one of Kimberlin’s PR flacks tried to spin on for the Team.

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@weltschmerz2015|201502122211ZFirst, Roy Schmalfeldt is real, and it’s his turn to buy lunch next time.

Second, Kimberlin did go after Roy Schmalfeldt in his opposition to Stacy McCain’s motion to dismiss. Here the top portion of Exhibit E from that opposition.ECF 259-ExEThe Cabin Boy™ may be an even worse liar than The Dread Pro-Se Kimberlin.

* * * * *

The Truth never seems to be on Bill Schmalfeldt’s side. He sued Cousin Roy for defamation and wound up dismissing the case with prejudice (on his own!) which effectively was an admission that his case lacked merit. He can never sue Roy again over Roy’s allegation that Bill Schmalfeldt is a rapist.

Team Kimberlin Post of the Day

Someone connected with Kimberlin’s It’s Time 2020 operation woke up and decided to post something to the itstime2020 dot org website on 2 October. With all of the stories available, the best thing that the poster could find to write about was Brad Parscale’s mental breakdown. Really? That’s the big news of the election since the last post on 28 August?

Whatever.

BTW, Kimberlin wound up losing all of his defamation lawsuits because what had been written and said about him was true, so you’d think that he’d understand that it’s false statements that can be defamatory. Yet, the itstime2020 dot org post ends with these words about Brad Parscale: “… and he worked with Russia and Cambridge Analytica that year [2016] to manipulate the presidential election.” Given the thorough debunking of the Russian Collusion Hoax, unless there’s some evidence to back that statement up, it looks as if it’s being made with a reckless disregard for the truth. Gentle Reader, do you suppose a convicted perjurer would do such a thing?

Gabbard v. Clinton

Folks, I have quite a bit of experience being a defendant in vexatious nuisance lawsuits alleging defamation (four LOLsuits each from Brett Kimberlin and Bill Schmalfeldt). Of course, I won all those suits. Seven were dismissed for various reasons. One went to trial, and my codefendants and I won when the judge stopped the trial after Kimberlin rested case because the plaintiff hadn’t shown that we had made any false statements about him and granted a directed verdict in our favor. I tend to have a bias in favor of defendants in defamation suits, but in this case … not so much.

IANAL, but my initial sense of Tulsi Gabbard’s suit against Hillary Clinton alleging defamation is that it’s interesting.

The complaint specifically quotes Clinton’s allegedly false and defamatory remarks, citing when and how they were published. As I understand it, the complaint claims that falsely stating that an Army National Guard officer is the asset of foreign power is defamatory per se because if that were true, the officer would be unfit for his or her professional duties as a soldier. Tulsi Gabbard is a major in the Hawaii National Guard. She’s also a member of the House Armed Services Committee, an assignment that requires access to classified defense information. Being a Russian asset should be similarly disqualifying in that professional role.

Congresswoman Gabbard’s case appears to be much stronger than anything her colleagues are presenting to the Senate. But being based on actual facts tends to make a case stronger. I don’t know how far her suit will go in court, but I’m ordering more popcorn.

Team Kimberlin Post of the Day

When Brett Kimberlin launched his campaign of lawfare as a means of brass knuckles reputation management, he set himself up for one of the biggest failures of his career. The rest of Team Kimberlin has been similarly unsuccessful, but none of them as spectacularly as Bill Schmalfeldt. Six years ago today, his ineptitude led me to ask What Does the Cabin Boy Have in Common with OJ?

* * * * *

OJ was acquitted at his murder trial. Bill Schmalfeldt had the first set of criminal charges relating to his harassment of me dropped. Both beat the rap as criminals.

OJ was found to be responsible for the death of his wife and was adjudicated a murderer in a civil trial. Bill Schmalfeldt was found to be responsible for my harassment and was adjudicated a harasser in a civil trial.

A civil adjudication does not bring the same penalties as a criminal conviction, but it is a finding by a court. Bill Schmalfeldt is an adjudicated harasser. His appeals related to that matter have been exhausted, and that finding has not been overturned. None of his whining will change the legal fact that he is an adjudicated harasser.

* * * * *

Of course, Brett Kimberlin went into his lawfare campaign having already been convicted of perjury, drug smuggling, bombings, and other crimes. His poor legal strategy of suing for defamation resulted in a court ruling that he was “defamation proof.” In other words, a court found that his reputation was already so bad when my codefendants and I wrote about him that it was impossible for us to damage it.

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.

NPR and Defamation

Politico reports that a U. S. District Court in Texas has ruled that a defamation suit filed against a group of defendants including National Public Radio can proceed to discovery. Judge Amos Mazzant found the $57 million suit filed by Ed Butowsky makes plausible claims that the network may be liable for defamation for a series of online stories about Butowsky’s role in publicizing assertions that Democratic National Committee staffer Seth Rich was murdered as part of a broader political plot.

NPR argued that the reports by media correspondent David Folkenflik accurately described a prior lawsuit filed against Fox News and Butowsky for defamation, accusing Fox of fabricating quotations in a story about Rich’s murder. The judge did not agree.

“The statements made by Folkenflik were made as verifiable statements of fact,” the judge wrote. “The statements at issue were not merely expressing a subjective view. Looking at the context of the verifiable facts, nothing shows the statements expressed Folkenflik’s opinion or merely offer Folkenflik’s personal perspective on disputed facts.”

Butowsky has several other defamation suits pending against other news outfits, including CNN, Vox, and The New York Times.

Another Day Older and Deeper in Debt

The judge in the Gibson’s Bakery case has ordered Oberlin College to post a $36 million dollar bond if it appeals the $31.5 judgment against it. An appeal could require several years, and interest on the judgment is piling up at the rate of several thousand dollars a day. It seems that the judge believes Oberlin’s claims of financial distress and wants to make sure that the plaintiffs can collect their judgment after the college’s appeals are exhausted.

Bad First Amendment News

TechDirt reports that a state court judge in Rhode Island has issued a restraining order requiring a Massachusetts blogger to take down allegedly defamatory posts. The order was issued without a hearing, creating due process issues in addition to being clearly at odds with the First Amendment.

There’s more about the case over at The Volokh Conspiracy where Eugene Volokh points out that the First Circuit Court of Appeals (Rhode Island in in the First Circuit) has ruled that even permanent anti-libel injunctions barring the repetition of statements found to be libelous at trial are unconstitutional.

The ACLU is representing the blogger and has removed the case to federal court.

Stay tuned.

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.

* * * * *

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.

* * * * *

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

* * * * *

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.

* * * * *

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.

* * * * *

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.

* * * * *

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.

* * * * *

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!

Legal LULZ Du Jour

LG16_201608160451ZaIs that so?Complaint_43

UPDATE—The obvious syllogism one can derive from the above is—

Schmalfeldt accused Hoge of the crime of stalking.

Hoge has never been convicted of a crime.

Therefore, Schmalfeldt is a moron.

However, the conclusion may be faulty, at least under the original definition of a moron as an adult with a mental age of 8 to 12. Is the Cabin Boy™ that mature?

Legal LULZ Du Jour

Thus tweeteth the Cabin Boy™—RD201603221551ZIf the Cabin Boy™ is discussing defamation, then, no, that’s not my understanding of the law in Maryland. A defendant has no obligation to prove what he said or wrote was true. The burden is on the plaintiff to prove that any allegedly defamatory statement is false. If the plaintiff can’t do that, he has no cause of action. The Dreadful Pro-Se Kimberlin’s lost on a directed verdict in Kimberlin v. Walker, et al. because he never showed that the statements that we defendants admitted to making were false.

The Gentle Reader may assume that if I am suing someone for defamation, then I believe that I have evidence that someone made a false statement about me that also meets all the other elements of defamation.

Team Kimberlin Post of the Day

Bill Schmalfeldt has a post up at the St. Francis edition of правда in which he states that I have lied under oath. Since that is a public accusation of perjury and since I have not lied under oath, his statement is defamatory. I’m already suing him for defamation, so I suppose this means that he’s decided to double down. Still, a professional journalist would want to correct such an error and would certainly issue a retraction and an apology.