Maryland Drops the Hammer on Adjudicated Harasser Bill Schmalfeldt

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.

Well, I had a nice little plan laid out for myself: write a little more about the Shuler case, and then write a post cataloguing another lie in Brett Kimberlin’s ridiculous RICO case against me and half the internet and then John Hoge manages to get an arrest warrant on Bill Schmalfeldt.  So there goes my plans for the evening.

So to recap a little bit, about five months ago Bill Schmalfeldt was found by a Circuit Court in Carroll County, Maryland, to have harassed my friend John Hoge.  In the name of full disclosure, I feel he harassed me as well, and he harassed my friend Lee Stranahan, too, and his wife.  And I feel all of it was motivated by his devotion to Brett Kimberlin as demonstrated by this tweet:

Of course, his characterization of his tweeting as “investigation” is deceitful.  For instance, is there anything investigatory about these harassing tweets preserved over at paste bin?  Indeed, you can see how little journalistic integrity he has simply by reading this post.

So let’s talk about the definitions of words for a moment, because this is important in the law.  So what does harassment mean?  Well, in the seminal case of Galloway v. State (2001), the Maryland Court of Appeals defined it as either 1) repeated contact or 2) threatening communication whether directly communicated to the target or not.  So if I send a letter to the editor of the local paper saying, “I’m going to kill John Doe” that is probably harassment, if it meets the other elements of the crime.  More interesting, repeated contact is also considered harassment regardless of content.  Contacts containing either “the most sublime prayer” and “the most scurrilous epithet” are equally banned if they are made with the intent to harass.

Let’s look further into the harassment statute, because as you will see, there is more to it than just contact:

(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.

So if you do that, it is a misdemeanor in Maryland.  Now of course, John doesn’t claim Schmalfeldt followed him about in a public place.  So instead John is arguing that it fits the more broad language regarding “maliciously engag[ing] in a course of conduct.”  And naturally I am guessing John is more seriously annoyed than alarmed.  Certainly the judge was not likely to find more than annoyance from Bill Schmalfeldt.  And it all has to be done with the intent to “harass, alarm, or annoy the other.”

And no, the exception listed at the end of that isn’t going to save him either.  Schmalfeldt can provide his information to others without contacting John.

I mean, this isn’t a tough concept.  If a person keeps calling, writing to you, knocking on your door, you are allowed to say, “stop bothering me.”  And if they won’t stop, then it becomes a criminal act.  It’s the same principle that underlies the national “do not call” list.

Another statute that bears on this is the so-called “Electronic Harassment Act.”  That’s not the official name, but it’s a better name than its official one: “Misuse of Electronic Communication.”  Anyway, it’s really almost the same thing, but the main relevant difference is that it must be through “electronic communication” which

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.

Everything else in the statute that is relevant here is the same, except for the punishment—you can get more time in prison for this.

Now this requires some knowledge of how twitter works to know how it applies there.  When you think about it, there are three kinds of messages you can put on twitter.

The first is just a message.  The default in Twitter is that these messages are sent to the world at large.  You can set your account so that only your “followers” (people who subscribe to your twitter account, more or less) can see them, but most people don’t.  Right now, you can go here, and view whatever inane crud I have been saying.  No special pass required: you don’t even need a twitter account.

As for the law, this is not electronic communication.  You are not volitionally sending it to anyone.  You’re just talking to the world at large and if people want to read it, they can.

The second is a direct message.  These are messages sent between you and a single person and it can be seen by no one else.  This is what Congressman Anthony Weiner was trying to send when he accidentally sent a picture of his, um, Weiner, to the world.  There is no difference between a direct message and an email, except like all twitter messages it can only be 140 characters.  Obviously, that is electronic communication.

The third is the mention.  These days we often call it the “@mentions” (pronounced as “at mentions”).  As you may or may not know each user has a nickname.  Like mine is @aaronworthing.  John’s is @wjjhoge.  Think of it as like an email address, only with a @mention, your message isn’t suddenly private, but you are still sending it to everyone else.  So take this tweet:

UPDATED: In Re #BillSchmalfeldt http://t.co/ztBIE3wh9L @AaronWorthing @rsmccain @ali @Kimberlinunmask @Patterico @Popehat
— WJJ Hoge (@wjjhoge) November 12, 2013

John is doing what I often do.  We tweet out the name of a post, a link to it, and then you see him @mentioning me, Robert McCain, Ali Akbar, whoever KimberlinUnmasked is, Patrick Frey and Ken “Popehat” White.  Each of those people receive a copy of this message in their mentions.  This is true whether you subscribe to the other person’s twitter stream or not.

Schmalfeldt likes to claim that doing so also has the effect of sending the tweet to every person who is subscribed to myself and the others on that list.  But that simply isn’t true.  The only way the people who subscribe to my feed (but not John’s) sees that feed is if I “retweet” it.  As you can see, I have retweeted it, and so anyone who followed me will see it.  It truly is a way to forward a message to others.

The point is that although the message isn’t private, it is plainly “electronic communication” in the sense that it is sent by John to me, and I received it.

If you don’t believe me, I invite you to try a few experiments.  Sign up for Twitter, if you haven’t already, and have a friend do the same.  And try out different kinds of messages and see what happens.  You will soon see that I am right.

So Schmalfeldt was found to have at least harassed John, and issued in essence a restraining order—what they call a peace order.  It tells Schmalfeldt he can’t go to John’s home, commit various unlawful acts or threaten to do so, or harass him, or contact him.

Now it’s worth noting that Schmalfeldt’s attorney, Tae Kim, argued that if the harassment falls within the electronic harassment statute, that it could not be the basis of a peace order.  That is because the peace order statute says that such an order can be supported by the “general” harassment statute, without mentioning the electronic harassment statute.  Kim argued, therefore, that if the harassment fit within the electronic harassment statute, it was somehow excluded from the general harassment statute and thus not included in the list of acts that can trigger a peace order.

That argument actually worked in the lower courts, but on appeal, the Circuit Court recognized—correctly, in my opinion—that the electronic harassment statute is a lesser included of the general harassment statute.  In other words, all electronic harassment is also verboten under the general harassment statute.  But not all harassment is electronic harassment.  So now that is the law of that jurisdiction in Maryland.

Now, today, Bill Schmalfeldt is trying to reverse that logic.  He pulled out a fragment letter, allegedly from the Maryland Attorney general discussing the electronic statute, here:

(click to embiggen)

And using that letter, he argued that none of his conduct was either harassment, electronic harassment, or even contact.

First, if it is genuine, it demonstrates that the Attorney General simply doesn’t understand Twitter, because he plainly doesn’t think it is possible to send any kind of private message via Twitter and that isn’t true.  Mind you, I am not beating this guy up for it—there is nothing wrong with not understanding Twitter—but it is a valid reason to disregard what he said completely.

Second, at most that only governs what constitutes electronic harassment.  That doesn’t govern what constitutes “harassment” or “contact” under the judge’s order.  The judge held that Schmalfeldt's twitter mentions constituted contact (which is utterly logical) and then forbade Schmalfeldt from future “contact” (as well as harassment).  So Schmalfeldt does the exact same thing that was found to be harassment and contact: so how is this not contact and harassment, in violation of the peace order?

And third, I do find it curious that Schmalfeldt has gone from arguing (through counsel and on his own) that electronic harassment is not general harassment, to now claiming that it is only harassment under the general harassment statute if it is also electronic harassment.  He has literally done a 180 and in the process shed whatever patina of logic there was.  Kim’s argument had some sense to it; Schmalfeldt’s does not.

I am sure Bill Schmalfeldt is busy trying to claim that this is the greatest First Amendment claim, evah.  But in reality it is not the content, of what he said—although it is often very offensive—but the simple command of “stop contacting me, leave me alone.”  That’s what the National “Do Not Call” list is all about, to name one example and it has nothing to do with the content of speech, merely the conduct of sending it to another person.  John told him to stop last February.  He didn’t stop.  John took him to court and a judge wasn’t sure he was told to stop (because Schmalfeldt perjured himself), but the judge told him that John didn’t want to hear from him anymore.  After the hearing, his own lawyer told him that if he didn’t stop he would go to jail.  But he didn’t stop.  At the circuit court, a judge ordered him to stop contacting him for six months.  And he didn’t stop.  John brought charges and the Carroll County State’s Attorney gave Schmalfeldt a Mulligan; but they also warned him to stop.  And he didn’t.  He asked for his peace order to be modified and the judge refused.  He tried to appeal the peace order, and the Court of Appeals didn’t hear it.  The order to stop was not going to be disturbed.  But he wouldn’t stop.

So then with as little as a month to go, Schmalfeldt decided he wasn’t going to even try to obey the order even slightly.  As of Friday, John counted thirty six instances of Schmalfeldt violating the peace order.  By today, it was an additional 198.  I am trusting John with these counts, but by what I saw he’s in the right ballpark.  All told, then, Schmalfeldt is literally facing over two hundred years in prison, and half a million dollars in fines.  No, he probably won’t go away for that long, but if convicted I don’t see how he avoids serving any time at all.  He has contempt for the courts, plain and simple.

In closing, let me share a few parting shots of schadenfruede.  First, we get from Lee Stranahan, the Hard Rhymer:

Remember remember the 12th of November. Oh the joy that we all felt when they locked up Bill Schmalfeldt! @rsmccain @AaronWorthing @wjjhoge
— Lee Stranahan (@Stranahan) November 13, 2013

But of course, it looks like he won’t be arrested today and thus most likely will be picked up tomorrow, November 13.  So all together now:

Beware the Idles of November

(because he will probably be arrested).

(People who have been following this saga for a while will get the joke.)

But most of all, let us remember when Brett Kimberlin fastened a flagrantly unconstitutional peace order against me.  In the peace order hearing, he claimed that merely writing negative things about him to a general audience was incitement to violence and therefore I had to be stopped from writing about him at all.  Think of how that would work if Richard Nixon could use that rule against Woodward and Bernstein.  And the frightening thing is the court bought that argument... until it was rapidly overturned.  But at this time when my freedom of speech was being squelched, Schmalfeldt wrote the following:

Harassing people not protected speech. Enjoy jail.

Sometimes Karma’s a bitch, isn’t it Schmalfeldt?

---------------------------------------

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 donation link 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.

---------------------------------------

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.