First Amendment 1, Baltimore 0

Several years ago, a Baltimore resident called 911 to report a burglary and wound up being beaten, tased, and arrested by the police officers who responded to the call. Her claim against the Baltimore Police Department spent several years in the courts and was finally settled. Baltimore includes a “non-disparagement” clause in such settlement agreements, so when the women spoke to the press about her experience, the city reduced her settlement payment in accordance with the non-disparagement clause.

She sued in U.S. District Court, claiming that the clause violated her First Amendment right to speak freely about the government. She was joined in the suit by the Baltimore Brew. The Brew claimed that the city’s use of such agreements violated its free press right to investigate and report on matters of public interest such as police misconduct. That suit was thrown out by the District Court on summary judgment.

The Court of Appeals for the Fourth Circuit has reversed the District Court’s granting summary judgment in Baltimore’s favor and sent the case back to the lower court.

The City has not identified a comparably compelling public good or other legitimate governmental aim that was, or could be, furthered by enforcement of the non- disparagement clause (other than a general interest in using settlements to resolve lawsuits). Consequently, the City is not entitled to summary judgment on Overbey’s First Amendment claim.


we conclude that the Brew has sufficiently pleaded an ongoing or imminent injury in fact that is both traceable to the City’s challenged conduct and redressable by the court. As discussed above, neither the parties’ arguments below nor the district court’s disposition went meaningfully beyond the pleadings in evaluating the Brew’s standing. We therefore decline to do so ourselves— even though the order under review is nominally a grant of summary judgment to the City. Instead, we remand to give the parties and the district court an opportunity to develop the evidentiary record relevant to the Brew’s claims.

It will be interesting to see how the case unfolds.

A Note on the First and Second Amendments

Journalist Andy Ngo was attacked last Saturday by a gang of AntiFa thugs because he was exercising his free press rights guaranteed by the First Amendment.

I note that while the First Amendment also grants the right to peaceable assembly, that’s not what AntifFa was doing.

AntiFa’s tactics seem to be spiraling toward ever greater violence. It’s beginning to look as if their expectation that they can act with impunity will lead them to attack someone who is willing to defend himself and prepared to do so. I suspect that they will won’t do well in such a confrontation.

I also suspect that the rank-and-file AntiFa members’ apparent ignorance of history eventually will do them in. When the Sturmabteilung became more trouble than they were worth, the long knives came out. When AntiFa is no longer useful to The Narrative, …

What I Saw In Court Yesterday

Here’s what I saw during the Gilmore v. Jones, et al. hearing on motions to dismiss at the U.S. District Court in Charlottesville, Virginia.

First of all, I saw Judge Moon from up close. At one point in his presentation, Aaron Walker  (representing Lee Stranahan, Jim Hoft, Scott Creighton, Michele Hickford, and Words-N-Ideas) was using a poster to clarify some of the points he was making. Because there wasn’t an easel in the courtroom, he asked me to hold it, and the judge asked me to bring right up to the bench. Judge Moon seemed to be familiar with the material in the written briefings from the Plaintiff and the three groups of defendants, and he engaged counsel from both sides with questions to clarify factual details. He did not ask many questions regarding the legal theories presented.

Andrew Grossman (representing Alex Jones. Lee Ann McAdoo, InfoWars, and Free Speech Systems) spoke first. He first attacked Gilmore’s claim that the court had jurisdiction over the defendants he represented. None are from Virginia. Because the only claims against them are based in state law, the requirements of the Virginia long arm statute must be met, and he noted that the Plaintiff has offered no evidence to support that assertion. Then he argued that, even if the court had jurisdiction over his clients, the things they were accused of saying or writing were expressions of opinion of the sort protected by the First Amendment and, thus, not actionable.

Aaron Walker went next. He made the same jurisdictional argument for his out-of-state clients. Then, he argued that the court lacked subject matter jurisdiction with respect to the case against Lee Stranahan. Stranahan and Gilmore are both residents of Virginia, and without a federal issue, a federal court doesn’t have jurisdictions over residents of the same state concerning a state law matter. The poster I held for the judge detailed the evidence for Stranahan’s residency in Virginia (extensive) versus Gilmore’s claim that Stranahan is resident of Texas (essentially non-existent). Initially, Gilmore had claimed that Stranahan had a Texas driver’s license, but his lawyers have backed off that claim when they were informed that Stranahan is legally blind. They now claim that Lee’s Texas voter registration was renewed in late 2017, but Stranahan has submitted two declarations relating to his Virginia residency, stating in one that he did not renew his registration and does not know how or even if it might have been renewed. Walker also argued that the remarks made by his clients concerning Gilmore were protected by the First Amendment and not actionable.

Brandon Bolling spoke for Allen West. He was brief and to the point. At the time the allegedly defamatory comments were published, the websites and social media accounts using West’s name were not under his control, and the Plaintiff has done nothing to show that West was in control of those sites. West had nothing to do with the remarks. If there is a case for defamation, it can’t be against someone who wasn’t involved. West should be dismissed from the case.

Two lawyers spoke on behalf of the Plaintiff. Andrew Mendrala of the Georgetown Law Civil Rights Clinic went first. He spent a good portion of his time on the issue of jurisdiction, and he made the statement that Stranahan had only submitted one declaration with respect his residency and that Stranahan had not dealt with the Plaintiff’s assertion that he was registered to vote in Texas. That was incorrect. During a recess, the error was pointed out to him, and he refused to correct the record.

Brianne Gorod of the Constitutional Accountability Center spoke for Gilmore as well. She asserted that the court did not need to consider the requirements of the Virginia long arm statute but should make a determination of personal jurisdiction based only on the limitations of due process imposed by the Fourteenth Amendment.

The three lawyers for the Defendants then offered their rebuttals. Here are the highlights: Grossman pointed out that the case law in the Fourth Circuit (Virginia is in the Fourth Circuit) required the court to apply the state’s long arm statute. Walker pointed out the misrepresentation by the Plaintiff with respect to the Stranahan declarations and cited their locations in the record. Bolling simply repeated the fact that Allen West didn’t say or publish what Gilmore claimed and that there was no evidence to support Gilmore’s claim.

The judge took the case under advisement, and we’re waiting for a ruling.

Stay tuned.