Bonus Team Kimberlin Post of the Day

The Gentle Reader may remember that the Maryland Court of Special Appeals dismissed Aaron Walker’s appeal against the State of Maryland in the case involving the constitutionality of the so-called Grace’s Law, a state statute that outlaws using the Internet to publish something that upsets a minor child. Aaron has filed a petition for a writ of certiorari with the Maryland Court of Appeals, the State’s highest court, seeking review of the lower court’s decision. The petition was filed several weeks ago, but I held off writing about until I was sure that Brett Kimberlin had been served a copy and was aware of the further appeal. He is not a party in the case going forward, the only remaining parties are Aaron and the State, but I wanted to see how Kimberlin would react before I posted anything.

On 21 August, about the time Kimberlin would have been served, Breitbart Unmasked Bunny Billy Boy Brett Unread published a post about the appeal (No, I won’t link to it.) tagged with the line: “Walker appeals court decision that denied him his lifetime right to harass minor children online.” It should not surprise the Gentle Reader who has been following the Saga of the Dread Deadbeat Pro-Se Kimberlin that BU‘s tagline is false and deceptive. Indeed, if another website were to have published such a statement, it probably would have been defamatory. That’s not the likely case with BU because one of the elements of defamation is that the statement damaged the victim’s reputation. No one in his right mind believes anything published on BU, so nothing posted there should be harmful to anyone’s reputation. Of course, the whole post amounts to nothing more than one of the Kimberlin false narratives misrepresenting both the facts and the law related to Aaron’s appeal.

BTW, the fact that I was able to wait to Labor Day to post about an almost-two-week-old article at BU without anyone else on the Intertwebz thaving taken notice of it shows how vanishingly small The Dread Deadbeat Publisher Kimblerlin’s web presence has become.

Here’s Aaron’s petition. It speaks for itself—

One more thing … The picture accompanying the post is a composite of headshots of Aaron and me. That’s interesting because I’m not a party to the case. I never was. Also, the body of the article alludes to the series of TKPOTD-in-review posts that I’ve been publishing while we wait for the final resolution of Aaron’s case. It’s pretty clear that those posts have gotten under Kimberlin’s skin. The Dread Deadbeat Publisher Kimberlin would like think that day-to-day coverage of Team Kimberlin is dying out. It isn’t. While it doesn’t generate the traffic that it did when trials were going on, it still generates thousands of hits per week. I’d be willing to be that the average daily traffic on those posts exceeds the monthly traffic on all the Kimberlin-related websites combined. But the purpose of the TKPOTD series is not to annoy. It’s to inform. It won’t be bullied off of the Internet.

The posts will be around for a bit longer.

I’m not done with him yet.

MD Court of Special Appeals Avoids a Ruling on the Merits

In an opinion worthy of the 9th Circuit, the Maryland Court of Special Appeals has dodged having to rule on the constitutionality of the state’s online harassment of of a minor statute by deciding that Aaron Walker did not have standing to bring his case against the state. The court also denied the appeal of the Walker v. Kimberlin, et al. portion of the case.

Here’s the opinion:

I’ll have more to say about this opinion after I’ve gone over it more thoroughly. For now, I’ll simply note that I’m not surprised that the court has tried (perhaps successfully) to avoid having to enforce the Bill of Rights.

Team Kimberlin Post of the Day

There are still a couple of Kimberlin-related appeals pending.

The Fourth Circuit Court of Appeals still has the Kimberlin v. Frey RICO Remnant LOLsuit under consideration. All the briefs have been filed, and we’re waiting for the court to rule. This is the remnant of the original RICO Madness LOLsuit. It deals with Kimberlin’s frivolous civil rights claim against Patrick Frey.

The Walker v. Maryland, et al. appeal has been fully briefed, and we’re waiting for the Maryland Court of Special Appeals to rule in that case. This is a two-fold case. One part is an appeal of the Walker v. Kimberlin, et al. suit seeking a new trial in malicious prosecution case against Brett and Tetyana Kimberlin. The other part is seeks to have the Maryland laws that were used to charge Aaron Walker declared unconstitutional under the First Amendment.

When there’s more news, I’ll report it.

Stay tuned.

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:


(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.