The Newspapers v. Maryland


I’ve previously posted about a group of newspapers filing suit against Maryland to stop the state’s unconstitutional attempt to regulate political advertising on the Internet. The newspapers are seeking a preliminary injunction to stop the law from going into effect. The State has filed an opposition to the motion for a preliminary injunction.

There will be a hearing on the motion for a preliminary injunction. It was originally scheduled for early October, but the lawyers and Judge Grimm are trying to resolve scheduling conflicts. When the hearing is scheduled, I’ll make arrangements to attend and report on it.

The Jacksonville Shooter and Some Facts


The shooter at the Madden 19 tournament in Jacksonville was from Maryland, and he used a handgun.

The Baltimore Sun reports that the shooter had a history of psychiatric problems that include hospitalization.

All handguns legally sold in Maryland since 1 October, 2013, have been registered with the Maryland State Police. This includes private transfers which must be run through a licensed dealer in order to create a paperwork trail for a background check.

Part of the MSP background check includes the purchaser’s mental health history. A release form for the check is part of the paperwork submitted to the MSP.

The Gentle Reader may draw what conclusions he will from these facts.

Newspapers Sue Maryland


It’s not unusual for the Maryland Legislature to pass a blatantly unconstitutional law. One of the recent laws seeks to regulate online political advertising. A group of newspapers are suing the State.

For once, I’m on the same side as WaPo.

The requirements in these new laws may have adverse consequences for bloggers as well. Stay tuned.

UPDATE—The reporting requirements in these new laws could affect Hogewash! because there are month when the web traffic exceeds 100,000 hits.

Team Kimberlin Post of the Day


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

Definitions
(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.
Prohibited
(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.

Inconvenient Statistics


Eugene Volokh has run the numbers, and it turns out that there is no significant correlation between the strictness of gun laws and homicide rates. (There is a slight correlation between strict gun laws and higher homicide rates, but that inconvenient result isn’t strong enough to be significant.)

Of course, correlation isn’t causation, but the lack of correlation is a good indicator of a lack of causation.

But since people have been talking about simple two-variable correlations between gun laws and crime, I thought it would be helpful to note this correlation — or, rather, absence of correlation.

Read the whole thing.

There were a couple of details in Prof. Volokh’s article that I found interesting. Tennessee, my home state which has relatively good (i.e., non-restrictive) gun laws, has essentially the same homicide rate as Maryland where I live now and which has some of the heaviest restrictions on firearms.

The Maryland Governor’s Race


There’s been a lot of analysis about how Larry Hogan beat Anthony Brown. Governor-elect Hogan worked hard for his win, and I don’t want to minimize his efforts, but Brown actively lost the election.

Brown has been singularly ineffective at any management role he was given while serving as Lieutenant Governor with Martin O’Malley. The disastrous rollout of the state’s nonfunctioning Obamacare website is the prime example.

This lack of basic organizational skills propagated through his campaign. The Gentle Reader may remember a story from a few weeks ago about folks walking out on Barack Obama during a campaign rally for Brown. I spoke with a Brown campaign volunteer who described the event as disorganized and running late. The crowd’s mood turned a bit surly. When the Democrats can’t get a crowd in Prince George’s County, Maryland, to stick around to listen their President, something has gone very wrong, and I began to suspect that Hogan had a chance.

Then, a few days later, Hillary Clinton spoke at a Brown rally on the University of Maryland campus—to a room with a lot of empty seats. At that point, I figured that Hogan would squeak by.

The big surprise was Hogan’s margin of victory. I put that down to his hard work that got the Republican base in the suburban and rural areas of the state out on election day.

Now, we will see how he can govern.