What I Saw Today in John Hoge’s Motion to Dismiss Adjudicated Harasser Bill Schmalfeldt Lawsuit

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 convicted terrorist Brett Kimberlin has been harassing me for over three years, 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.  Indeed, he sued me for saying this and lost on the issue of truth.  And more recently when his wife came to us claiming that this convicted terrorist had threatened her harm, we tried to help her leave him, and for that, he sued myself, John Hoge, Robert Stacy McCain and Ali Akbar for helping his wife and he is suing Hoge, McCain, Akbar, DB Capital Strategies, Michelle Malkin, Glenn Beck, Patrick “Patterico” Frey, Mandy Nagy, Lee Stranahan, Erick Erickson, Breitbart.com, the Blaze, Mercury Radio Arts, Red State, the National Bloggers Club, and  others alleging that we are all in organized crime for reporting factually about the spate of SWATtings committed against myself, Frey and Erickson.  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: I respond to some of the dumb claims put out by Schmalfeldt, below.

So as I have been noting recently, it is admittedly hard to keep track of the all the lawsuits filed by Team Kimberlin. In this case, we are dealing with a case filed by Bill Schmalfeldt, who described himself as Brett Kimberlin’s “friend” and also described himself as literally demented—as in, diagnosed with dementia—and the courts have repeatedly found to be a harasser.  The case was filed against John Hoge, Eric Johnson (who frequently comments at various blogs on the subject), and the anonymous writers known as Paul Krendler and Howard Earl.

In it he claimed that these men had harassed him (which is not a tort), had defamed him and put him in a false light, maliciously prosecuted, conspired (also not a tort), tortious interfered with his business, and committed intentional infliction of emotional distress against him.  You can read the complaint, such as it is, here.  John filed two motions to dismiss.  First he moved to dismiss for failure to state a claim, which you can read here.  And Schmalfeldt opposed that, which you can read, here.  I recommend you read it just to marvel at just how often Schmalfeldt shoots himself in the foot.  It will be important as you read this post.  And John’s reply on that issue can be read, here.  That is one motion to dismiss.  The other motion to dismiss is for venue.  His motion can be read, here, and his reply can be read here.  Schmalfeldt opposed, but it didn’t have much of anything there.  You can hunt around John’s Scribd account to find it if you really want to read it, here.  And incidentally, Schmalfeldt handed in a stunningly idiotic reply to John’s reply, and motion to strike, which you can read here.

But there was a real question whether both would be heard that day.  On its face, it was only on the first motion to dismiss, but John asked for the second to be heard that day in a filing, and the venue argument went to whether this was the right court for the case to be in, which takes precedence in most judge’s minds.

That sounds like a lot of homework to read before you read a post.  I will try to write this so that you don’t actually have to read all of that to understand what happened today, but if you do read those other documents, you will have a richer experience.  It’s like the difference between a fanboy watching, say, Man of Steel, and spotting all the “easter eggs” hidden in a movie versus a person who is a more casual fan who enjoys it or not on its own.  You don’t have to notice that Superman and General Zod were fighting near a WayneTech satellite, or that one threw a Luthercorp truck at the other to enjoy the movie, but the fanboy would squeal at both details.  You’ll get a deeper understanding if you do the homework, but I will try to make you “get it” either way.

So I had briefly stepped out to get a snack during a divorce case, assuming I had time to do so.  I barely did, because John’s case had been called by the time I got back.  The parties were sitting silent at their tables, while presiding Judge Mary Kramer read over papers.  That went on for at least two minutes, suggesting that the judge was getting up to speed on the file right then and there.

As an aside, Brett Kimberlin didn’t show up, but the unnamed man we have come to refer to as his “muscle” did.  Interesting fact, too.  The muscle has enough basic human compassion to help Schmalfeldt open doors and the like.  On the other hand, whenever I see Brett around Schmalfeldt, he is usually walking far out front and not lifting a finger to help him.  And John and I steer clear of him so as to avoid trouble.  I mean God help us if we try to aid him and he falls down in the process: he will probably file false charges of assault.  I will help even my worst enemies, unless I think it will cause me harm.

When the judge was done reading, she asked John to present his case.  She noticeably said toward the beginning something to the effect of “let me hear you on your motions.”  And while the wording might be off on what she said, the key is that she mentioned motions, plural, meaning two motions, suggesting she wanted to hear him on venue, too.

Still, John started off focusing entirely on the failure to state a claim, because that would permanently end this case against him.  By comparison, telling Schmalfeldt he is in the wrong court would invite him to go to the right court—although we will see that won’t be easy in each case.

So John went through his motion to dismiss, hitting the high points.  He first pointed out that harassment is not a tort.  Then he talked about defamation and false light, talking about how there were no damages alleged.  For instance, in Schmalfeldt repeatedly says something to the effect of “Who can say how many [CD’s and MP3’s] Plaintiff would have sold if his reputation had not been needlessly and malicious trashed?” over and over again.  So he admitted he has no idea how much he was damaged in that respect.

That is game over for a false light claim, but Maryland law also recognizes what is called “defamation per se.”  That allows for a presumption of damages in defamation case (subject to a few restrictions I am not getting into), but only if you show what is known as “constitutional malice.”  Which Schmalfeldt didn’t allege and then undermined himself.

Let me give you an example.  Schmalfeldt photoshopped John’s face into a porno picture.  Sorry to get a little gross, but you have to understand what the exhibit looks like, and I am not publishing it, so I will dance around the dirty words.The original picture showed what appeared to be a young woman (or a man in a dress), kneeling in the middle of a group of naked men (whose faces are out of the picture), with her face at waist-level, and she looks like she is literally about to pleasure all of these men at once.  And Schmalfeldt put John’s face, by photosphop (or a similar program), over the woman’s.  I will leave the rest to your imagination, as that I am trying to limit how disgusting it is, but hopefully you get the idea.

It was such a bad picture, John was constrained to submit a redacted version when he attached it to a motion, to respect the decorum of the court.  Schmalfeldt claimed that it was defamation for John to claim that the picture was obscene, because—I kid you not—because it did not depict any penetration and he believed John was over 18 in the picture (John maintains he was not, and you would tend to think he would know this better than Schmalfeldt).  It is not altogether clear that the depiction would have to meet the legal standard for criminal obscenity in order for John to be allowed to truthfully call it obscenity, but even if it did, it seems to have passed the test.  As the Supreme Court said in Miller v. California:

The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest...; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

So is John’s opinion that it is obscene reasonable?  I say yes.  But, more importantly, so does Schmalfeldt.  He actually wrote, I kid you not, “[a]nd if Mr. Hoge wishes to apply 1973 and 1974 standards to ‘obsenity,’ well that’s his right.”  If it’s his right it’s his, you know, right, and therefore an opinion that cannot give rise to a claim for defamation.

(He also claimed that this was no worse than what you would see in professional wrestling, which is one of those times you wonder what planet he is living on.  There is no full frontal nudity in wrestling.)

So with that in background, John said to the judge, paraphrase, “he has told me that I am entitled to my opinion, so it is protected by the First Amendment.  And I would submit my opinion is not unreasonable.  I submitted a redacted version of the image to the court, but I have the unredacted version and I don’t know if you want to submit it under seal or...”

“I got the gist,” she said, visibly repulsed.

“I’d rather not show it.” John replied.

“Thank you,” she said, relieved.  I think at this point, John really had the judge on his side. She was nodding as he spoke, writing notes constantly and, here, they were really simpatico.  He didn’t want to show her and she didn’t want to see it, and she got the point.  Hey, here’s a pro-tip: if the image is so repulsive a judge—who sees all kind of disturbing real-life crap on a regular basis—doesn’t want to see it, you aren’t going to convince her that is defamation to call it obscene.  Seriously, I had not seen such a loser of an argument before a judge since Brett Kimberlin had to admit he was a bomber when arguing to Judge Johnson that it was defamation to call him a terrorist.

John also covered how Schmalfeldt had claimed that statements in a peace order petition were defamatory, pointing out the complete privilege that applies to such statements.  And then he points out in relation to the claim that John defamed Schmalfeldt by saying that Schmalfeldt filed bogus DMCA takedown notices, that Schmalfeldt wrote in his Complaint that “[t]his is a provable lie based on a mistake by WordPress...”  That’s in paragraph 52, for those following along at home, and the upshot is that he’s torpedoing any claim that there was malice involved.  It is rarely malice to believe someone else.  There were other examples, but it gave John a chance to convince the judge that this is a dumb case, on the merits.

As for malicious prosecution, John had a few points to make.  First, most of that was disposed of in a prior suit, which means that he can’t bring it up again.  That is under a doctrine called res judicata, but it amounts to the idea that you get one chance to sue a person and you need to bring all your claims that you could have brought at that time.  Next he claimed that John engaged in malicious prosecution in regards to his most recent peace order.  The problem is John won, which precludes the claim.  Finally, as for the criminal case Schmalfeldt just won, John made the point that Schmalfeldt admitted he contacted him at the time there was a no contact order, which means there was obviously probable cause.  Of course the judge found him “not guilty” but there is a wide gulf between “probable cause” and “proof beyond a reasonable doubt.”  The lack of the latter doesn’t prove a lack of the former.

Next, he pointed out that civil conspiracy is not a tort (it’s a way to spread around liability), and Schmalfeldt didn’t allege any of the elements of that.

And finally he had two causes of action—tortious interference and intentional infliction of emotional distress—that required him to allege separately tortious conduct.  So, because he screwed up all those other torts, they failed for that reason (and he had other problems, too).

So about then John was ready to sit down, or did sit down, when the judge specifically asked him to talk about venue, saying it was the first hurdle.  John told me later he thought the judge at that point had decided the case was a loser and wanted an easy way to knock it out.  I pointed out that most judges are inclined to figure out if they are in the right court, first.  Yes, judges can use it as an easy way to kick a case, but these rules independently mean something.

So it is worth taking a moment to explain the basic idea behind John’s argument.  Jurisdiction is literally the power to decide a case.  And one issue, is whether a court has the right to essentially regulate your life.  For instance, China has no jurisdiction over me, period.

Now, in John’s case, the courts of Maryland have a right to hear cases involving him, given that he lives and works there, and the alleged defamation was written and published there.

But Schmalfeldt can’t say that about Eric Johnson or the John Doe defendants.  In Johnson’s case, as I understand it he lives and works in Tennessee.  Meanwhile, for the John Does, he doesn’t know where they are, and he has to show jurisdiction is proper.  Therefore, John essentially moved for them to be dismissed for lack of jurisdiction.  This is because under Maryland law, the defamation occurs where it is written and that is where the case must be heard, John even citing a case where a man wrote an allegedly defamatory letter in Georgia and mailed it to Maryland, and the court in that case finding that Maryland had no jurisdiction over that complaint.

Now, why was John asking for those other defendants to be dismissed?  Because then that would make him the only defendant, and that gets into another issue, which sounds similar to jurisdiction: venue.  The basic idea in venue is that given that John can be tried in Maryland, where in Maryland can he be tried?  And this is complicated, but here’s the bottom line: there is a different set of rules applying to a single defendant, versus when there are multiple defendants when determining the appropriate venue.  And if John is the only defendant, Carroll County is it.

So that was John’s presentation.  Although the hearing was set for an hour, John was done in around fifteen minutes.

Then Schmalfeldt got his turn.  Schmalfeldt started off by saying something pretty close to this. “I think of all the places I want to be, this is not one of them.”  He goes on to say that because he believes his wife is at death’s door, and “I should be in a hospital.”

Which would be a lot more sympathetic if he hadn’t sued John in the first place.  Seriously, if Bill Schmalfeldt doesn’t want to waste the last hours of his wife’s life in court, maybe he should stop suing people.  Novel thought, I know.  I have no doubt that the judge felt bad for him that his wife was dying, but felt no sympathy for his complaint that it was unfair he had to defend a case he filed.  He held the “key” to his proverbial “chains” in his hand.

He also early on asked for an opportunity to amend the complaint if it is insufficient.  And then he goes on about some claim that Eric Johnson was refusing to be served, allegedly.  Which even if true (which I reason to doubt) has nothing to do with that.  The question is whether the state of Maryland can tell Johnson what to write when sitting on his computer over in Tennessee, and they don’t have that right.

He went on to try to defend why he made a contact with John after he had an order from the court that he make no contact.  Which doesn’t change the fact that he did what the court forbade.  And he kept alleging things and the judge had to correct him.  “We are in a motion to dismiss, I don’t want to hear the whole case,” she said at one point.  At another point she refused to take in evidence he was offering, pointing out that this was not an evidentiary hearing.  And when he went on and on about Brett’s latest bogus charges against John and I, and she said, “I don’t need to know about that.”

And in the midst of all that, he asked again to amend the complaint and threatened to sue me, for the email I wrote here.  In an attempt to garnish the judge’s sympathy he quoted this passage from the email:

And on the off chance you suddenly gain some self-awareness and decide to repent your past sins, this is how you do it: confess.  Go to my lawyer (Ostronic), and confess to everything you know about Brett Kimberlin’s conduct over the last few years.  Turn over all the emails, all the communications.  I promise, I will ask for leniency from the prosecutors.  Confession is good for the soul, as they say.

So he read that off, I believe word-for-word, expecting the judge to be scandalized, but judging by her body language she had no idea why he was even reading it to her.  Literally the passage read like James 5:16 “confess your sins to one another and pray for one another that you may be healed,” combined with John 8:11, “go, and sin no more” and he thinks this is cause to sue me.  You can’t say to a court that “there is no cause of action for butthurt” (it is too unprofessional), but the courts know you need more than bruised feelings to have a case.

Anyway, after that strangeness, he fell back on the fact he was a pro se, hoping for “leniency,” which isn’t even the right word.  In any case, John and I both concluded from her body language that she was looking for Schmalfeldt to say something, anything, to explain why this court had jurisdiction and venue over all defendants and I can’t imagine what in his scattered bits would suffice.

There is approximately one
kernel for every dollar Dan
Backer and his firm are
seeking from Brett...

With that, the hearing ended, Judge Kramer saying we would hear from her later, which we haven’t yet.  My guess is that she is going to go over John’s briefing and the cases he cited.  Maybe I am biased, but I think John did a good job.  You could see some “nerves” at play, but I think the judge was actually impressed.  He was citing case law, statutes, and so on, and probably sounded little different from an actual lawyer.  I think the judge left believing John was probably right and planning to “look under the hood” of his arguments to make sure.  And based on that, I feel fairly confident that the judge will rule in John’s favor based on venue.  I think the law is exceedingly clearly on John’s side and my “tea leaf” reading suggests that Judge Kramer got it.

So that was that.  On a completely unrelated note, as I was finishing this post, we got another filing in the Fourth Circuit Appeal of another case Brett Kimberlin (mostly) lost.  Over at Hogewash, they have the filings, and... you might need some popcorn.

Update: Schmalfeldt was eager to put his own spin on events, where he pretended that the learned presentation of William Hoge was bumbling and so on.  A few points:

First, Schmalfeldt claims that the communications decency act isn’t going to help John.  Specifically we are talking about 47 U.S.C. §230, which you can read for yourself, here.

It says specifically that:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Now, before we dig into what that means in practical effect, what does those terms mean?  Well, you flip to the back of that statute, and it gives the following definitions:

(2) Interactive computer service

The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

(3) Information content provider

The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

So what does that mean?  It means that if you create a platform that lets other people publish information, such as a blog or news site with comments, you are not responsible for what those people say.  In other words, it is not Twitter’s job to figure out if you defamed someone.  And if you run a blog, you don’t have to shut down comments for fear of being sued.  Congress wanted more speech, not less speech, and therefore they wanted to encourage people to create platforms that allow others to speak.

Let’s take a specific example: Hogewash!  Like many sites, John lets people comment pretty freely.  So if someone says something bad about someone on his site, is he liable.

Well, no.  You see, he provides an interactive computer service.  First, it requires Hogewash to be an “information service or system.”  Certainly Hogewash is an information system.  Next it requires that it “provides or enables computer access by multiple users” (check) “to a computer server” (check).  And that is it.  Everything else, after the word “including” is only an illustrative example of what counts.

Meanwhile, “information content provider” really is almost too simple to need a definition.  It is a person (or entity) who provides information content.  In other words, the actual person pounding at the keyboard and/or any corporation he or she is represents.  Let’s plug that back into the operative language above: “No provider or user” (John provides Hogewash and uses it, and all the other commenters use it, too) “of an interactive computer service” (that’s Hogewash) “shall be treated as the publisher or speaker of any information provided by another information content provider.”

The key word is “another” meaning that it has to be a different person.  So if, for example, “John Doe” and “Jane Doe” are both commenters on Hogewash!, that means that if John Doe defames someone, Jane Doe didn’t because she is not the publisher of such defamation, and publishing is key to defamation claims (as well as any tort based on speaking or writing alone).  Or if John Hoge is using, or providing Hogewash (he does both), whether in a comment or in a post, he is not the publisher of anything he allows someone else to say on his blog.

But, Schmalfeldt argues, John moderates his comments.  That means he approves and disapproves of comments, thus endorsing them and making him liable for them!  Or so his argument goes.

Which is utterly rebutted by this passage:

(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

In other words, if you kick a comment off your blog for crossing a line, you don’t suddenly have liability.  Which only makes sense.  Congress doesn’t want to create a situation where if you maintain a little decorum on your blog you are suddenly responsible for everything everyone writes.  They like decorum, or at least they don’t want to punish it.

So, in short, John is responsible for what he writes and not what anyone else writes.  Just as Microsoft is not responsible for every defamation composed using Word.

As a bonus, it also means that there can be no state criminal liability based on running a free forum.  How do you know this?  Well, you see it has a section that says the following:

(1) No effect on criminal law

Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute.

So why does that shield sites from criminal liability based on state law?  Because of what lawyers call the principle of expressio unius, which is short for expressio unius est exclusio alterius.  That is a bit of “law latin” that means the expression of one is the exclusion of others.  In other words, by expressly exempting federal law §230, they implicitly do not exempt state coverage, and it is such an ancient and fixed rule in statutory analysis that it is importer to italicize it in legal writing—it is not considered foreign to lawyers.* 

  

Second, he seems to think that Paul Krendler writing something on his blog proves something about John Hoge.  Actually, technically it is not even admissible evidence of anything, because it is hearsay.

Finally, he takes Paul Lemmon’s statement that I have helped him with legal matters as proof I have practiced law in Florida, thus continuing his stupid belief that a lawyer standing in Virginia and helping a Floridian over the phone while he is in Florida, is somehow practicing law in Florida.  It is not, and the accusation would...  wait for it...  defamation per se, as he is accusing me of a crime and professional malfeasance.  So even as he gropes around trying to claim I committed some tort against him by writing an email telling him off, he adds to the list of counterclaims.

I’m just going out on a limb, here, but I am beginning to think that Schmalfeldt is...  and I want to stress this is just a suspicion...  but I am beginning to suspect that he is kind of a dumbass.

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Sidebar: Eagle eyed readers might also recognize that this is one of the reasons why the phrase “established by a State” in Obamacare cannot mean established by the Federal Government.  By specifically providing tax credits to those in exchanges established by the State, they are implying that no other exchanges are covered.

Also, for bonus points, this is precisely why we have the Ninth and Tenth Amendments.  Let’s review what they say:

Amendment IX:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

You see, when Madison was discussing the idea of including a Bill of Rights, his chief fear was of the expressio unius assumption.  That is, he was afraid that by specifically limiting the power of the federal government in some ways, he would imply that every power not denied was granted.  So the purpose of this law was to negate the expression unius presumption, to tell the courts and anyone else who cared, that the fact that the first eight amendments list certain limitations on government does not imply that the government can do everything it is not forbidden to do.  Thus to this day the Supreme Court at least pretends it believes that this is a government of limited powers, and that every power not granted is denied.

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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.