The Brett Kimberlin Saga:

Follow this link to my BLOCKBUSTER STORY of how Brett Kimberlin, a convicted terrorist and perjurer, attempted to frame me for a crime, and then got me arrested for blogging when I exposed that misconduct to the world. That sounds like an incredible claim, but I provide primary documents and video evidence proving that he did this. And if you are moved by this story to provide a little help to myself and other victims of Mr. Kimberlin’s intimidation, such as Robert Stacy McCain, you can donate at the PayPal buttons on the right. And I thank everyone who has done so, and will do so.

Saturday, June 15, 2013

BREAKING: Brett Kimberlin Ally Bill Schmalfeldt Threatens Me (and Mr. Hoge) With a Peace Order (Update: Schmalfeldt Bravely Runs Away!)

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.

Update: Bill Schmalfeldt is now bravely running away:




Ah, so he was being sarcastic, as indicated by... absolutely nothing he said at all.  He always has an excuse when he backs off these legal threats, doesn't he?  By the way, does this mean that Schmalfeldt also thinks that Brett Kimberlin's legal theory last year was unsound?  Funny, because he has yet to offer a single criticism of Kimberlin's behavior in that case.

Update (II): What prompted the change in heart?  I engage in educated speculation below.

So as I reported yesterday, Bill Schmalfeldt was found to have harassed John Hoge.  Specifically, the court found that Bill Schmalfeldt had continuously contacted Mr. Hoge after Mr. Hoge had asked him to stop, with hundreds of tweets including some that were downright offensive.  And this was after Schmalfeldt threatened to SWAT Mr. Hoge as well.

It is important also to note not just what the court said, but what the court didn’t say.  The court didn’t say that Schmalfeldt couldn’t talk about Mr. Hoge to a general audience.  He was repeatedly told that this was only about attempted contact with Mr. Hoge, and that the ruling left him free to write about Mr. Hoge all he wants.

Last night, I also noted what a hypocrite Bill Schmalfeldt had been in this, writing:

And of course all of this is incredibly hypocritical.  As regular readers know (and I detailed here) for almost a month I was forbidden by a peace order from writingabout Brett Kimberlin.  I had never contacted Kimberlin—except by mail to serve process as required by law (and after being advised by the court that I was allowed to do so)—but Kimberlin had claimed that merely writing about him on the internet to a general audience was the same as writing to him, in part because he set up google alerts to tell him when someone wrote something about him and he found some idiot judge willing to go along with that.  The judge held that merely saying something bad about Kimberlin on the internet was tantamount to inciting violence against Kimberlin—even though I specifically and repeatedly stated that I  wanted Kimberlin to only face legal consequences for his actions and specifically and repeatedly made it clear I did not want to see any violence come to him.  But in the mind of the judge, merely reporting (truthfully) bad things about him was enough to constitute incitement.  And in doing so the judge ignored binding Supreme Court precedent by name with the now-famous line “forget Brandenburg.”

That, my dear friends, would have been a serious threat to freedom of speech—to say that you cannot write anything negative about anyone else without being charged with incitement....

That principle, applied broadly would be the death of journalism.  It means that Jeffrey Skilling could suppress journalists writing about his malfeasance.  Indeed, by that logic, Richard Nixon could have enjoined Woodward and Bernstein from their famous reporting on him and perhaps even arrested them as I had been.  And did Schmalfeldt raise a peep in criticism of that ruling?  No.  In fact, it was shortly after that, that Schmalfeldt joined Team Kimberlin.

And as I noted in the post, this theory that writing about Kimberlin was equivalent to contacting Kimberlin was rejected by both the District Court and the Circuit court, and the District Court's ruling that I had incited violence by merely saying bad things about Kimberlin was quickly rejected on appeal.  In short, Judge Vaughey might have forgotten about Brandenburg v. Ohio, but Judge Rupp of the Montgomery County Circuit Court did not and appropriately ruled that my blogging about Brett Kimberlin was protected speech.  I just can’t communicate directly with Brett Kimberlin which I don’t believe I have ever knowingly done even once.

Well, today, Mr. Schmalfeldt wrote the following on twitter:







So once again, an ally of Brett Kimberlin is attempting to use Maryland’s harassment statute to try to silence me.  He has literally adopted the same failed approach Brett Kimberlin adopted in the District Court: that because he has set up automatic searches on the internet to tell him when anyone ever writes about him, that this was equivalent to contacting him directly.  Just how lame is that theory?  It was even rejected by the District Court.  I didn’t make it entirely clear yesterday, but even Judge Vaughey (as irresponsible as he was) didn’t believe that setting up a Google alert transformed any mention of his name the equivalent of direct contact.

I mean consider how ridiculous that would be if it was the case?  Technically you can set up a Google alert for any words in the English language (or any you might make up).  So I could set up a Google alert, in theory, to search for the word “duck” and then every time anyone writes the word “duck” on the internet, google will send an email to my inbox.  So could I say to Schmalfeldt that every time he says the word “duck” on his blog that it causes me to get an email and therefore he is contacting me?  Or more seriously, could I set up a Google alert for “Obama” and therefore every time Bill Schmalfeldt writes about “Obama” he is causing me to get an email and therefore contacting me?  Can I effectively tell Bill Schmalfeldt that he cannot write about the President of the United States—good, bad or indifferent?

Indeed in that scenario, Bill Schmalfeldt is not contacting me.  Google is, telling me that Bill Schmalfeldt has written whatever triggers the Google alert.

In fact, it goes much further than that.  If you search in twitter for the word “schmalfeldt” and then narrow it to just “people” you get dozens of people who have this name.  Just to name a few, there is a “cristian schmalfeldt” who goes by the handle @schmafeldt.  There is a Reilly Schmalfeldt who goes by the handle @its_rilezz and so on.  There is even a “Not Bill Schmalfeldt” parody account going by the name @patriotombud.  As far as I know none of these people are the proven harasser Bill Schmalfeldt, and I am uncertain if they have any relation to him at all.  So is it Schmalfeldt’s position that I can’t talk about anyone named Schmalfeldt, not even Cristian or Reilly, or even whoever writes as “Not Bill Schmalfeldt” without “harassing” him?  It’s pure silliness.

That theory was indeed so ridiculous that even the Montgomery County District Court, with a judge otherwise willing to ignore binding Supreme Court precedent, did not adopt that theory.  Go ahead, read the transcript of that hearing for yourself, here.  He rejected the theory that merely writing about Kimberlin was tantamount to contacting him, but instead he ruled that writing negative (but true) things about Kimberlin amounted to incitement and thus harassment.  Consider for instance, this exchange with me:

Q: [the court] So you get some -- and I'm going to use the word freak somewhere out in Oklahoma got nothing better to do with his time, so he does the nastiest things in the world he can to this poor gentleman [Kimberlin]. What right has that guy got to do it?

A: [me] He has no right to do that, but Your Honor—

Q: Because you incited him,

A: But Your Honor, I did not incite him within the Brandenburg standard.

Q: Well, forget Brandenburg. Let's go by Vaughey right now, and common sense out in the world.

Now, true incitement would probably be a form of harassment.  Imagine hypothetically that you were a black man walking near a Klan rally, and the Grand Wizard shouted, “there’s a n----r! Get him!”  That would be incitement and I think most people would say that is harassment as well, if it meets the other requirements of the statute.

Certainly that hypothetical scenario could be banned by Maryland law, because it would meet the Brandenburg standard.  Specifically, in Brandenburg v. Ohio (1969), the Court declared that:

the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

My hypothetical would meet that criteria, but my conduct towards Kimberlin did not even come close.  Not only do I not advocate violence against Kimberlin (or anyone, for that matter), but I affirmatively told people not do anything like this.  Indeed to this day I affirmatively state on the bottom of every post that

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.

So my conduct doesn’t even meet the first prong of that test.  Indeed, Near v. Minnesota (1931) might be an even better precedent than Brandenburg on this point.  In Near, a newspaper was accused to making defamatory (and possibly anti-Semitic) accusations against a local man that he was a “Jewish gangster” who was operating with impunity because corrupt officials were looking the other way.  The state of Minnesota sought to prevent the paper from publishing in part on the theory that by accusing this citizen of “reprehensible conduct” they were creating a danger of violence.

But the Supreme Court rejected this theory, stating that

There is nothing new in the fact that charges of reprehensible conduct may create resentment and the disposition to resort to violent means of redress, but this well-understood tendency did not alter the determination to protect the press against censorship and restraint upon publication.

Well indeed what I did was almost the same, only without the falsehoods or anti-Semitism (indeed Brett Kimberlin, writing under the pseudonym Brietbart Unmasked, has proven to be anti-Semitic towards me).  I accused Brett Kimberlin of “reprehensible conduct” and I have accused authorities of failing to enforce the law against him.  And the Near court has said that this is not grounds for an injunction preventing publication.

As regular readers know I appealed that decision and literally while the appeal was pending we moved that the court lift the prohibition against speaking about Brett Kimberlin (unless is a threat or meets the Brandenburg standard).  The court granted that motion (prompting my SWATting that evening), and then when the appeal was heard, the remaining parts of the Peace Order was vacated.  I discussed all of this, here.

So Bill Schmalfeldt, who actually sells T-shirts declaring he is part of Team Kimberlin, is trying the same failed tactic.

But it gets more bogus than that.  If Bill Schmalfeldt files for such a Peace Order, he will have to do it in Howard County, where judge Zwaig has said—in my peace order hearing against Schmalfeldt—that public figures cannot even stop a person from merely directly contacting them.  Bill Schmalfeldt actually runs an internet radio show, so he can expect—in Howard County—to face the same high hurdle I did.

And that is not even the end of the bogusness of his approach.  Let me quote from the harassment statute again:

§ 3-803. Harassment

(a) Prohibited. -- A person may not follow another in or about a public place or maliciously engage in a course of conduct that alarms or seriously annoys the other:

(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.

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

It goes on to lay out the punishment for doing so, but that final part of that definition is what I wish to focus on.  Bill Schmalfeldt has made it clear that he thinks that even this post would be harassment.  But the exception clause makes it clear that I am allowed to “provide information to others.”  And hasn’t that been all that I have been doing, here?  So his interpretation has to fail, if only because it would swallow the exception whole.

Now if I commit the additional act of actively sending this post to him, either by email or a link on twitter, and it met the other requirements in the law, that might be harassment (although it would have to be multiple such communications in order to constitute a course of conduct anyway).  But I won’t be talking to or writing to him.  I will only be talking about him.  And he will not know what I have said unless he either actively seeks it out, or he instructs another program to actively seek it out for him.

Of course like his prior attempts to intimidate me into silence, Schmalfeldt’s threats are almost certainly a bluff.  For instance, he knows or should know that any attempt to file a peace order against me will be met by a cross-petition against him.  I told him in February not to contact me and he has continually done so, directly, and committed other harassing acts such as participating in the stalking of my wife and I, and even publishing pictures from that stalking.  So any petition by himself for a peace order will be met by a cross-petition against him.  And my cross petition would be much more likely to succeed.

To understand why my petition would be more likely to succeed, allow me to explain what it will take to get each.  As I noted above, Howard County has already ruled that public figures have a higher burden to bear.  So in order to even have a chance at winning, he will have to convince the judge to disregard that ruling.  And then further he would have to convince the judge to ignore the Montgomery County Circuit Court ruling that the Peace Order statute doesn’t apply to talking about someone on the internet unless it is meets the constitutional tests of threats or harassment.

Meanwhile, to win a Peace Order against him, I only have to do one thing: convince the judge to disregard the ruling that as a public official I have to put up with more harassment.  Once that rule is set aside, his conduct becomes plainly harassment.  Indeed what he has done to me is far more egregious than my reporting about him and occasional insults.

And there is a further cost to this approach.  Two times now, Schmalfeldt has refused to comply with a subpoena of documents related to his relationship with Brett Kimberlin.  If he files a peace order, he can surely expect another subpoena.  Indeed, Kimberlin will be required to turn over documents, too.

Now of course he might say, “but we will just blow it off again.”  Well, except he can’t do that as the petitioner and then expect to get anything out of the court.  In that case, he (and Kimberlin) would be actively impairing my ability to defend myself, and therefore the court will not be willing to grant him the relief he seeks.  I can simply say, “I am not prepared to put on a defense because Mr. Schmalfeldt and his associate has refused to turn over documents critical to my defense” and the judge will recognize that due process requires that I be granted the opportunity to obtain discovery from him as part of my right of a full defense, and will accordingly deny the petition out of hand.

So Schmalfeldt will either have to blow off the subpoena as he has in the past and lose his case automatically, or he will have to comply and he would probably still lose.  And given his conduct in the past it is pretty clear he doesn’t want to comply.  Clearly, there is something in those documents he doesn’t want to come out.

The irony of all this is that these legal threats themselves constitute a violation of the harassment statute and a violation of the Peace Order granted just yesterday.  Let’s remember what he said in the first tweet to me:


First off, this represents only the latest example of him contacting me and thus constitutes harassment.  Nor can it be said to be for a legal purpose, for two reasons.  First, as I have demonstrated above, his legal theory is bogus and he knows that theory is bogus.  Second, he has a lawyer.  That lawyer can communicate any fresh legal threats against me without him having to communicate with me.

But even more than that, this constitutes a violation of the peace order issued just yesterday.  Plainly “HeWhoMustNotBeNamed” is Mr. Hoge and the content of the communication evinces an intent that it be relayed back to Mr. Hoge.  What is the point of putting someone “on notice” unless you expect them to learn of it?  That, my friends, is contact, and you need only one in order to violate the order (by contrast Mr. Schmalfeldt would have to allege that I have engaged in a course of conduct).  Consider, for instance, what the Maryland Court of Appeals said about phone calls that violated a protective order.  In Triggs v. State (2004), the Court of Appeals was confronted with a man who violated a protective order by calling his ex-wife repeatedly.  Triggs argued that the “flurry” of calls occurred close together in time and constituted a single course of conduct and thus he should only be punished once.  The court rejected this approach, stating that:

We also expressly reject Petitioner's argument that the statute anticipates that a "single course of conduct" such as a "flurry" of calls occurring within seconds or minutes of each other should be treated as one offense under the rule of lenity....

Moreover, we reject the implication underlying Petitioner's "flurry" argument that somehow the repeated calls were less violative of the protective order precisely because there were so many of them and because some of them occurred close in time to each other. In fact, as we stated in Boozer:

The courts of this country have had little difficulty in concluding that separate acts resulting in separate insults to the person of the victim may be separately charged and punished even though they occur in close proximity to each other and even though they are part of a single criminal episode or transaction.

Of course that case involved protective orders and not peace orders, but they serve virtually the function and the statutes are identical in every relevant way.  There is no reason to think the courts will not read it the same.

So each tweet that the court finds to be communication directed by Schmalfeldt at Hoge constitutes an additional violation of the order.  So we have one that I think is definitely directed to Mr. Hoge.  And while he doesn’t even allude to Hoge in the subsequent tweets, a court might find that all of them were intended to be communicated to Hoge as one legal threat and thus each separate tweet constitutes a separate offense.

And contrary to what Schmalfeldt has said online, the punishment is not six months per violation.  Actually Md. Cts and Jud. Procedings §3-1508 has a tiered approach to punishments:

§ 3-1508. Penalties

(a) Fines or imprisonment. -- An individual who fails to comply with the relief granted in an interim peace order under § 3-1503.1 of this subtitle, a temporary peace order under § 3-1504(a)(2) of this subtitle, or a final peace order under § 3-1505(d)(1)(i), (ii), (iii), or (iv) of this subtitle is guilty of a misdemeanor and on conviction is subject to:

(1) For a first offense, a fine not exceeding $ 1,000 or imprisonment not exceeding 90 days or both; and

(2) For a second or subsequent offense, a fine not exceeding $ 2,500 or imprisonment not exceeding 1 year or both.

(b) Arrest. -- A law enforcement officer shall arrest with or without a warrant and take into custody an individual who the officer has probable cause to believe is in violation of an interim peace order, temporary peace order, or final peace order in effect at the time of the violation.

So the first offense is would be up to 90 days in prison.  And the remaining five—if the court finds that these constituted communication with Hoge—would earn him up to five years in prison.  And the fines might add up to $13,500.

And let me be clear.  It’s not the fact he is talking about Hoge that is the problem.  It is the fact that he plainly intends this message to put Hoge on notice of conduct he is demanding that he cease from engaging in it.  How can you supposedly put a person on notice without communicating with them?  And if the notice was legitimate—if he was asserting legal rights he actually had—that might be a legal purpose.  But he is instead making a legal threat against Hoge that he knows to be bogus, hence it is unlawful contact.

So to sum it up, after falsely pretending to be the protector of free speech on the internet Bill Schmalfeldt is now attempting to squelch protected speech, just like his self-described “friend” Brett Kimberlin.  He is doing so on a legal theory that has been utterly rejected in two Montgomery Courts and he knows this.  In doing so, he is drawing directly from the Brett Kimberlin speech suppression playbook.  But like all the other attempts to intimidate us into silence, this is a bluff and we know it.  And more importantly, it won’t work.

And ironically when doing so he committed harassment (including electronic harassment) against me, and violated a peace order whose ink is barely dry.

Which leads me to wonder: did he consult with his attorney, Tae Kim, before doing this?  Well, Kim will find out about it soon enough...

Update (II): So what prompted Schmalfeldt to suddenly declare that this was a joke at this time?

Well, let’s review the timeline, shall we?

At exactly 9:07 p.m. Schmalfeldt writes in the comments at Stacy’s blog “And now, I must off [sic] to bed.”

My post went up at exactly 9:09 p.m.  And exactly two minutes later, I sent an email to Tae Kim, Schmalfeldt’s lawyer.  It was essentially a shortened version of this post, except that I only glancingly alluded to my belief that these tweets violated the peace order.  Here’s the total sum of what I said about any concern that he contacted Mr. Hoge:

Mr. Schmalfeldt chose today to harass me again, proffering bogus legal theories in a series of tweets directed to myself and apparently Mr. Hoge as well.

The rest of the email was about my response, but that mention of Hoge is still there.

Then at 10:38 p.m. Schmalfeldt tweeted out that he was just being sarcastic.  And at 10:59 he said something similar on McCain’s site.  It was very important for him to communicate to me that he was being sarcastic.

And let me share something I know about lawyers.  Most lawyers I know, especially criminal lawyers, are connected twenty four hours a day.  They make sure they can get all of their email on their phones, they give their cell phone numbers to clients, and so on.  Indeed, Tae Kim gives out a cell phone number right on his website.  I won’t link to his site, because that would seem to be a schmucky thing to do, but it’s there.

So I tend to think that Mr. Kim is constantly checking his emails.  And I tend to think that he saw it and said, “holy crap, what did my client do now?”  And so he gave Schmalfeldt a call and read him the riot act.

After all, here is the curiously neat thing about Schmalfeldt explanation that he was just joking.  It not only backs him off his threat to sue me, but it is a defense to my claim that he had violated the peace order.  Clearly he didn’t direct that communication to Mr. Hoge in a mechanical way.  He didn’t include “@wjjhoge” in his tweet which would have prompted twitter to deliver it into timeline.  He didn’t email him or text message him.  But I argued that because he was giving notice to Hoge he was evidencing an expectation that it would be delivered to Hoge.  As I said, what is the point of notice, if you don’t believe the other person will receive it?

But that only works if his intent was serious.  I believe he was.  I believe Mr. Hoge agrees with me that he was.  His claim now that he was just joking was a post-hock rationalization.  But if we play make believe and pretend he was just joking, and he thought somehow we would know it was a joke (um, why would we?), then that intention I just mentioned is negated.

And to me I think that is the kind of thing a lawyer is far more likely to think of and not a lay person.  I could more easily picture Mr. Kim coming up with this strategy of even an experienced non-lawyer like Mr. Kimberlin.

So in my professional opinion, it seems to be extremely likely that Tae Kim saw the email, maybe even looked up my post  and gave his client a tongue lashing over the phone and then suggested how to “fix” it, or at least try to control the danger.  The timing for that works pretty well when you consider it might have been difficult to get Mr. Schmalfeldt to acquiesce.

TaeI have said this before, but lawyers in the end have a love-hate relationship with clients who do stupid things.  On one hand, we are human enough to identify with the clients in some way.  We want to help them and so we want to bang our heads on tables when they do something boneheaded that makes it difficult to defend them.  On the other hand, if it wasn’t for dumb clients, lawyers would have a lot less business and those of us who are pretty good lawyers wouldn’t look half as amazing when we pull their behinds out of the fire.  I can tell you war stories about having clients who looked like they were caught dead to rights and then you think of some slick way to save them and you know no one else would have thought of that.  Kim probably felt exactly that way after his earlier victories.

Mr. Kim (pictured) probably is an okay guy.  Someday when and if this is all over, he and I could probably hang out and be friends.  He is one of those lawyers who must exist to keep the system fair, to defend people who on balance probably should lose.  He has a monumentally dumb client who constantly makes unforced errors.  More than likely there are times when Kim wants to beat his head on a desk at some of the things that Schmalfeldt has done.  On the other hand, Schmalfeldt’s stupidity has probably earned him around $20,000 so far.  And maybe a few hundred dollars more tonight.  He probably gets extremely frustrated, but of everyone on Team Kimberlin, he is the only clear winner.

The clear loser?  Whoever is paying Schmalfeldt’s legal bills.

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My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the Blogger’s Defense Team button on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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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.
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1 comment:

  1. SPQRJune 15, 2013 at 10:05 PM

    Unless his goal is to get himself picked up for a 72 hour hold, Cabin Boy's behavior really makes no sense at all.

    ReplyDelete

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