The Hypocrite Bill Schmalfeldt (Update: McCainalanche!)

Update: Hey, cool, I have an McCainalanche! (Meaning a link from McCain.  No, not Meghan McCain, the other McCain!)  Teasing aside, it is greatly appreciated.  And visitors might also want to check out my last post where I prove that not only does Bill Schmalfeldt refuse to do basic journalistic due diligence before writing a negative story, but he lies about having done so.  Yes, really.

This is the latest post in what I half-jokingly call The Kimberlin Saga^®.  If you are new to the story, that’s okay! Not everyone reads my blog.  The short version is that Kimberlin has been harassing me for over a year, his worst conduct being when he attempted to frame me for a crime.  I recognize that this might sound like an incredible claim, but I provide video and documentary evidence of that fact; in other words, you don’t have to believe my word.  You only have to believe your eyes.  So, if you are new to the story, go to this page and you’ll be able to catch up on what has been happening.

In brief review, last Tuesday Lee Stranahan had enough of Bill Schmalfeldt’s harassment and filed charges against him under Maryland’s electronic harassment statute as well as their general harassment statute.  And on Saturday, Bill Schmalfeldt wrote a long  “open letter” in which he claims that as a journalist he has a right to do these things.  Here’s a safe link to that piece.  I talked about this letter briefly in my last post, and in this post I want to focus a little more on it.

`The first feeble argument he makes is this: because Lee could in theory block the incoming communications on Twitter and by email, this is not harassment, writing for instance:

Twitter, Facebook, e-mail… they are all marvelous technologies, Lee.  And they all have one thing in common. You have the ability to block incoming messages from people you do not wish to hear from.

So… the only way you could be aware of ANY message I sent you is that you chose to either NOT block me, or you chose to GO LOOKING for things I’ve written about you.

This is a particularly odd argument for him to make because he has used four different Twitter handles and six different email addresses I know of.  As you saw in this post, I attempted to send an email to three addresses he had used to contact me in the past and all three bounced back as “undeliverable.”  On Saturday, I learned of three more addresses he was known to use and emailed him at those addresses as well.  In a post at his Liberal Grouch site (safe link) he states that he got “three identical emails.”  So that means he is actively maintaining all three of those email addresses.  So how exactly does Lee block all six email addresses he is known to use?  Is Lee supposed to be psychic?  And given that a person can invent a new email in all of ten minutes on gmail or hotmail, and a new Twitter account with similar ease, why should anyone expect blocking to be a viable solution to harassment?

In any case, this is a defense that is not supported by any statutory language, and indeed runs contrary to the entire statute.  Let’s review what the statute says (Md. Code Crim. Law §3-805):

(a) "Electronic communication" defined. -- In this section, "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.

(b) Prohibited. -- A person may not maliciously engage in a course of conduct, through the use of electronic communication, that alarms or seriously annoys another:

(1) with the intent to harass, alarm, or annoy the other;

(2) after receiving a reasonable warning or request to stop by or on behalf of the other; and

(3) without a legal purpose.

…

(d) Exception. -- This section does not apply to a peaceable activity intended to express a political view or provide information to others.

(e) Penalty. -- A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 1 year or a fine not exceeding $ 500 or both.

You will notice that there isn’t a single word in the statute imposing a duty on any person to block their harassers any more than modern rape laws impose a duty on the victim to resist her attacker.  It might be a good idea for the victim, but it is not required.  The only part of the statute where blocking might be relevant is in the definition of “Electronic communication,” where it says that the message must be “sent to a person and that is received by the person.”  So the courts may or may not read into that a requirement that the person who is allegedly being harassed actually receive the harassing communications.  Which would in all frankness make a great deal of sense.  But all that means is that if the victim did successfully block their harassers, that might present a defense.  But if for whatever reason they chose not to block their harassers, or the block didn’t succeed, they have “received” the communications and thus have been potentially harassed.

And of course this also means that Schmalfeldt is a giant hypocrite.  Schmalfeldt has never said a bad thing about Brett Kimberlin’s multiple peace orders against me and yet this charge of electronic harassment by Stranahan is supposedly a violation of Mr. Schmalfeldt’s First Amendment rights (they aren’t for reasons I laid out here, but whatever).  And remember what Kimberlin argued with the second peace order?  Kimberlin didn’t argue that I had ever directed a communication at him (except notices that I was required to give him by law).  I never wrote him a letter, sent him an email, or any kind of directed communication (unless he wants to admit to being OccupyRebellion and/or BreitbartUnmasked, in which case all tweets were in response to him initiating the conversation).  All I did was write about him on my blog and talk about him, to third persons, on Twitter and I did so in order to provide information to others.

But Kimberlin claimed that every single post I wrote about him was equivalent to a directed communication to him, like as if I had personally emailed him.   Why?  Because Brett Kimberlin had created Google alerts causing him to get emails.  If you are not aware, a Google alert is when you command Google to search the internet at set intervals (daily, weekly, even as it happens) for a certain term, and send you an email telling you about any new “hits” for that term.  So presumably Kimberlin told Google to tell him any time that “Brett Kimberlin” or some similar search term was mentioned in any piece on the internet and it obliged by sending him an email every time I posted on him.  And according to Kimberlin that was the same as sending him an email and therefore harassment!

So where is Schmalfeldt denouncing Kimberlin for this overreaching interpretation of the law?  Where is he saying that Kimberlin would only have seen the allegedly harassing tweets and blog posts if he went looking for them—or more precisely, asked Google to look for them?  Even if he didn’t feel like writing it back then, shouldn’t he at least now have a “come to Jesus” moment and realize that Kimberlin’s theory was wrong and thus a violation of the First Amendment?

Indeed, this entire post by Schmalfeldt is something I have never done at this blog regarding Kimberlin.  The entire post is a letter to Lee Stranahan.  Every word of it is addressed to him.  Certainly Schmalfeldt wrote it with the anticipation that third parties, such as myself, would read it.  But every single word of the post is intended to be a message to Stranahan.  Now I have written a post like that to provide legally required notice to Schmalfeldt, but I have never written an entire post for Brett Kimberlin’s eyes.  So ironically enough Schmalfeldt’s “open letter” to Stranahan might itself violate the at least the ordinary harassment statute.

Indeed at every turn Schmalfeldt’s conduct has been worse and more clearly unprotected speech.  I have carefully redacted every bit of Brett Kimberlin’s personal information (phone number, email and home addresses) from each and every one of the documents I have published from our court battles.  And Bill Schmalfeldt has done the same thing!  That is, he has also redacted every bit of Brett Kimberlin’s personal information (phone number, email and home addresses), but has on the other hand positively revealed the information of 1) Lee Stranahan and 2) John Norton.  And the site he now works for has previously attempted to reveal similar information about a friend of mine, and did reveal the home address of Ali Akbar’s mother for some reason.  It even posted a fuzzy picture of me calling me the face of evil.

Further, Schmalfeldt hasthreatened Lee.  I have never threatened anyone.  Schmalfeldt has gone after Lee’s family.  I have never written a word about Kimberlin’s wife or children except perhaps in the most passing fashion and I have specifically said repeatedly to leave his family alone.  Schmalfeldt even called child protective services on Lee based on lies, innuendo and a hunch.  On the other hand, according to Mark Singer Brett Kimberlin called a pre-pubescent girl his “girlfriend” and went on trips out of town alone with her—including to Mexico—and now has a pre-pubescent girl in his house, and I have not made a similar call to Maryland’s child protective services.

And I have certainly not shown pictures allegedly of Kimberlin’s bedroom and talked about him having sex with his wife.  But Bill Schmalfeldt did talk about Mr. and Mrs. Stranahan’s intimacy:

Start at about 2:20 and keep going.  First he talks about the Stranahans’ having sex, and then he talks about going to the bathroom when they are done having sex and washing their hands “and other parts” in the sink.

Schmalfeldt states that he never “incited” violence against Stranahan.  Except according to Judge Vaughey in my case, merely writing bad things about Kimberlin amounted to incitement.  So by Judge Vaughey’s test Schmalfeldt has indeed incited violence against Stranahan.

Now that approach was so utterly contrary to law that the part of peace order prohibiting me from writing about Brett Kimberlin for six months was overturned before an appeal was properly heard.  But Schmalfeldt never denounced that interpretation of the law, even as he himself was inciting violence against myself, Stranahan and others according to the same flawed legal theory that Judge Vaughey advanced.  He breaks the very rules he celebrates.

The remaining parts of his argument are equally fallacious.  He writes, for instance, that:

I have used the “@” symbol in front of your name on hundreds of occasions. The vast majority of those were not directed AT you, but were “tweets” ABOUT you.

Well, as a point of mechanical reality, every single tweet written with @Stranahan in them are tweets directed at Lee Stranahan.  So pretending this tweet is not directed to him is disingenuous.  It is a bit like saying, “that letter I wrote, where I put your address on the front and put it in a mailbox, was not really directed at you.”  Or perhaps to be more modern: “That email I carbon copied you on, was not really directed at you.”

And that dishonest approach is vitiated by the very next sentence:

See, being an adult male, I believe — like my father taught me — if you are going to say something about someone, be man enough to say it to his face.

Which means it was directed at him after all.  And further, whatever his father might have told him, Lee Stranahan told him to stop “saying it to his face” and the law of Maryland required him to obey.

He also attempts to claim that he had a right to email Stranahan because he is supposedly a journalist.  Well, first, he is not a journalist as I made clear in my last post.  But even if he was, there is no “unless you are a journalist” exception to most of Maryland’s criminal laws.  A press card is not a license to simply break the law whenever you want.  The law allows him to present information “to others.”  It doesn’t give him a right to constantly email and tweet a person to get information from them.  Indeed, seeking information is the very opposite of providing information.  Schmalfeldt has every right to gather information, but only within the bounds of the law.  A person doesn’t have a right to break into a person’s house to gather information and a person doesn’t have a right to harass a person, just because they are wearing a press badge.  A person has a right, under Maryland law, to tell a reporter, “I am not answering your questions and please stop contacting me” and that reporter has to obey or risk being convicted of harassment.  So even if Schmalfeldt was a journalist--and he is not--it is not a defense.

And again, the hypocrisy comes out.  James O’Keefe likewise calls himself a journalist and claimed he was engaged in journalism when he secretly recorded ACORN officials as they helped reporters posing as a pimp and a prostitute as they tried to set up a brothel for underage girls.  And for this Brett Kimberlin called on state officials to indict both O’Keefe and Andrew Breitbart on wiretap charges.  And yet has Schmalfeldt ever written a word denouncing those actions?  Of course not.  And I believe it is safe to assume he never will.

(And incidentally, neither Breitbart nor O'Keefe broke the state’s laws on wiretaps, for reasons I outlined here.  The short version is that I do not argue that they are excepted because they are reporters—for Maryland courts recognize no such exception—but because the conversations were not actually private.)

Now I have long said that I don’t find hypocrisy to be a sin in and of itself.  What makes hypocrisy useful to point out most often is that it presents evidence of dishonesty.  Schmalfeldt is not being honest with us.  If he was honest he would at least now recognize that Brett Kimberlin’s efforts to enjoin and even criminalize my speech which really truly was solely to third parties and never once directed at Kimberlin himself was contrary to the First Amendment.  And while advocating for a “reporter’s exception” to the laws on harassment to cover for his conduct, he would equally argue for a reporter’s exception to the wiretap laws, and denounce Kimberlin for attempting to criminalize James O’Keefe’s reporting.  And this hypocrisy, exposing this dishonesty, undermines his criminal defense.  Schmalfeldt's conduct has never been covered by the First Amendment.  But to cry "First Amendment" in defense of his unprotected conduct, serves to highlight how he has danced with glee at the very real suppression of my First Amendment freedoms, as well as that of James O'Keefe's.

And, dear reader, you don’t know the full extent of Schmalfeldt’s criminal conduct.  But that is perhaps another post for another day.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.