As a result of a false Application for Statement of Charges filed by Brett Kimberlin in July, 2013, Aaron Walker was charged with harassment under Maryland Criminal Law § 3-803. The charge was subsequently dropped by the Montgomery County State’s Attorney. Brett Kimberlin drafted and Tetyana Kimberlin filed a second false Application for Statement of Charges in May, 2015, which resulted in Aaron being charged with online harassment of a minor under Maryland Criminal Law § 3-805(b)(2). Again, the charge was dropped by the Montgomery County State’s Attorney. Aaron has sued both the State and the Kimberlins. The case against the State was dismissed when the Circuit found that the laws used to charge Aaron were constitutional. Aaron’s appeal is now before the Maryland Court of Special Appeals.
Aaron asserts that the laws are unconstitutional. First, they punish speech protected by the First Amendment. Second, they attempt to regulate the Internet, something federal courts have ruled is the exclusive province of Congress, not the states.
The Supreme Court has repeatedly ruled that the government cannot regulate the content of speech based on a listener’s being annoyed or feeling offended. This was reaffirmed last year in Matal v. Tam, 582 U.S. ___ (2017). Incitement of violence (Brandenburg v. Ohio, 395 U.S. 444 (1969)) or actual threats (Virginia v. Black, 548 U.S. 343 (2003)) may be punished, but the Maryland statutes go beyond the bounds set by the Supreme Court. Rather than give my layman’s explanation, here is the amicus brief that Eugene Vololkh filed in support of Aaron’s appeal. Read it.
The Illinois Supreme Court recently struck down that state’s harassment statutes following legal reasoning similar to Prof. Volokh’s and Aaron’s.
Of course, the Illinois decision is not binding on the Maryland Court of Special Appeals, but it may be persuasive.
IANAL, but it seems to me that the main failing of both Maryland statutes is that they can be read to outlaw even truthful public speech about someone if the person is “alarmed” or “annoyed.” It might be possible for the Legislature to rewrite the harassment statute to limit it to apply strictly to speech addressed to a specific individual. When I sought peace orders based on the harassment statute, my petitions were based on speech specifically address to me. That about v. to distinction, or rather the lack of it, is what led the U.S. District Court here in Maryland to find a portion of the Violence Against Women Act unconstitutional as applied to the defendant in the Cassidy decision. 814 F. Supp. 2d 574 (2011).
Again, IANAL, but I don’t see any way that § 3-805 should survive because it infringes on Congress’ sole prerogative as regulator of the “instrumentalities of interstate commerce.” U.S. v. Lopez, 514 U.S. 549, 559 (1995). The federal courts have consistently viewed the Internet as an instrumentality of interstate commerce and as off limits to state regulation. American Libraries Ass’n v. Pataki, 969 F.Supp. 160 (S.D.N.Y. 1997). PSINet, Inc. v. Chapman, 362 F.3d 227 (4th Cir. 2004).
The case in now in the court’s hands. We’ll see how the three-judge panel rules.
UPDATE—2018 JAN 04 05:04:00 UTC tag/federal-preemption
2018 JAN 04 05:04:02 UTC tag/maryland
UPDATE 2—A commenter requested that I post this for reference:
MARYLAND CRIMINAL LAW 3-805
(a)(1) In this section the following words have the meanings indicated.
(2) “Electronic communication” means the transmission of information, data, or a communication by the use of a computer or any other electronic means that is sent to a person and that is received by the person.
(3) “Interactive computer service” means an information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including a system that provides access to the Internet and cellular phones.
(b)(1) A person may not maliciously engage in a course of conduct, through the use of electronic communication, that alarms or seriously annoys another:
(i) with the intent to harass, alarm, or annoy the other;
(ii) after receiving a reasonable warning or request to stop by or on behalf of the other; and
(iii) without a legal purpose.
(2) A person may not use an interactive computer service to maliciously engage in a course of conduct that inflicts serious emotional distress on a minor or places a minor in reasonable fear of death or serious bodily injury with the intent:
(i) to kill, injure, harass, or cause serious emotional distress to the minor; or
(ii) to place the minor in reasonable fear of death or serious bodily injury.