The Lesser of Two Weasels


I don’t agree with Larry Hogan on several issues that are important to me (i.e., Second Amendment rights), but the alternative is Ben Jealous, a politician with whom I have essentially no common ground. While the choice may not be as bad as Trump v. Hillary, it still stinks.

Once again, I’m faced with Jerry Garcia’s Dilemma (“Constantly choosing the lesser of two evils is still choosing evil.”), but I’ll vote for Hogan for governor.

Newspapers v. Maryland News


I’ve been following a case filed in the U.S. District Court for the District of Maryland by a group of newspapers against the Maryland Election Commission seeking to overturn a vague and patently unconstitutional law dealing with online political advertising. It turns out that I have a dog in that fight because there are months when the traffic here at Hogewash! is sufficient for the law to apply to this blog.

The newspapers are seeking a preliminary injunction prohibiting the State from enforcing the law. A hearing is scheduled on their motion on 16 November before Judge Paul Grimm. I plan to cover that hearing.

Stay tuned.

SOL


The Baltimore Sun reports that the Maryland State Police will not become involved if someone files a formal complaint relating to the Ford/Kavanaugh brouhaha. This is because of a memorandum of understanding between the MSP and the Montgomery County Police giving primary jurisdiction over sex crimes to the County Police. The County Police have said that they will not open an investigation without a formal complaint, and the Montgomery County State’s Attorney’s Office has said they would have no comment on the matter until after a charge is filed.

In any event, it appears that the statue of limitations has run out. The BS reports that

[l]egal experts doubt that a case could be made against Kavanaugh even if someone makes a complaint.

For one thing, if attempted rape in the first degree was the most appropriate charge, that was a misdemeanor in the 1980s in Maryland. It did not become a felony in the state until 1996. Former Attorney General Doug Gansler, who also served as Montgomery County state’s attorney, noted that Maryland’s statute of limitations for misdemeanors for an offense committed in the 1980s expired long ago.

Gansler, a Democrat, also noted Kavanaugh was a juvenile at the time, further complicating any investigation and prosecution. He said the type of acts that have been alleged are not ones for which juveniles are typically charged as adults.

Even if charges could be brought, Gansler said that based on the accounts he’s seen, it would be difficult to prove an alleged assailant had the intent to complete a forcible rape and would not have stopped short of that.

If you’ve lost a Democrat former state Attorney General, it may be time to move on.

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.