Aaron Walker Wants Maryland to Allow Him to Harass Teenaged Girls

7/26/2019 Aaron Walker Wants Maryland to Allow Him to Harass Teenaged Girls

1/46

.-neral

In the Court of SpeciulAPPelsofMryland i

September Term, 2015,

_ ___rt

COUR,f),3 i Ztl6of rhe Atto:ley

i .,.q. / r.n,- ' j

L

No.2092

AARONJ. WALKER,ESQ.,

A.ppellnt,

STATEOF MARYLAND,ETAL.,

Appellees.

Appeatfromthe CrcutCourtof MontgomeryCounty, Maryland

(Hon.MchaelD. Mason, Judge)

'BRIEFOF APPELLANTAARONJ. WALKER,ESQ.'

AaronJ.'Walker,Esq.(Va Bar# 48882)P.O. Box3075

v


2/46

TABLE OF CONTENTS

Table of Authorities

Appellant's Brief

Statement of the Case -

Questions Presented ---- -

Statement of Facts

ltl

1

I

2

)

4Legal Standard

i. THE APPELLANT I-IAS STANDING TO CHALLENGE THECONSTITUTIONALITY OF MD CODE CRIM. L. $3-803 AND $3-80s ....-.-. 5

rr. MD CODE CRIM. L. g3-S03 AND $3-S05 ARE TINCONSTITUIONALBECATJSE THEY INFINGE ON FIRST AMENDMENT FREEDOMS . . ... 9

A. Section 3-S05(bX2) is Unconstitutional Because It Depends on AudienceReaction, Rendering It an hnpermissible Content-Based Restriction onExpression ._-____

Section 3-S05(bX2) is a content-based restriction on expressionbecause it depends on audience reaction and, therefore, it is subject

to the strict scrutiny test

2. Protecting persons from emotional distress is not a compellinginterest 13

3. Section 3-S05(bX2) is not nanowly tailored --. .., ... -, 15(i). Section 3-805(bX2) is not narrowly tailored because there is

the less restrictive alternative of averting one's eyes - -..- 16(i. Section 3-805(bX2) is not narrowly tailored because it strips

away important protections for freedom of expression presentin other harassment statutes . .,.--.... 17

9

1

..... 10


3/46

III.

2. Sections 3-803 and 3-805(bxl) do not promote a compelling interest22

3. Sections 3-803 and 3-805(bX1) are not naruowly tailored becausethere is the less restrictive alternative of averting one's eyes . ..-...-.26MD CODE CRIM. L. $3-803 AND $3-S0s ARE LTNCONSTITUTIONAL TOTHE EXTENT THAT THEY REGULATE INTERNET ACTIVITY BECAUSETHEY VIOLATE THE DORMANT'' COMMERCE CLAUSE -. 26

29CONCLUSION .

Text of Cited Constitutional Provisions and Statutes

Proposed Order

32


4/46

TABLE OF AUTHORITIES

CASES

ACLU v. Johnson, 194 F.3d 1149 (1Oth Cir. 1999)

Am. Booksellers Foundation v. Dean, 342 F .3d 96 (2 d Cir. 2003)

Am, Librries Ass'n v. Patki,969 F.Supp. 160 (S.D.N .Y . 1997) -..

Babbit v. Unted Farm Workers Nat'l Union, 442U.5.289 (1979) -.-

Bqcltellar v. Maryland,397 U.S. 564 (1970)

Bbb v. Navajo Freght Lines, lnc.,359 U.S. 520 (1959)

Conn. v. Snyder,49 Conn.App. 617,717^.2d24A

0998)

Dombrowski v. Pfister,380 U.S. 479 (1965)

Forsyth Cty. ,. Natonalist Movement,505 U.S. 123 (1992)

Galloway v. state,365 Md. 599,781 A.2d 851 (2001)

28

28

27 -28

28

5

24

Bradley v. Bradley, 214 Md.App.229 (2013)

Capitol Square Review and Advisory Bd. v. Pinette,515 U.S. 753 (1995)

Coates v. Cincnnati,402 U.S. 611 (1971)..

Cohenv. Califurnia, 403 U.S. 15 (1971)

Grayned v. Cry of Rackford, 408 U.S. 104 (1972)

. - 19

. 6-7

... 10-11,21-22

.-i,9,17-26,30

I

Hedges v. lV/auconda CmQ. Unit Sch. Dst. No. I I8,g F.3d 1295 17th Cir.1993) ........-..23

In re Tam,No.20l4-n\3 (Fed. Cir., Dec. 22,2015) . 11

Initiative and Referendum Institute v Walker 450 F 3d 1082 (101h Cit 20AQ 7

5

24

24

16


5/46

Mdwest Ttle Loans, Inc. v. M11s,593 F.3d 660 (7th Cir. 2010)

Netherlandv. City of Zachary,527 F.Supp.2d507 (M.D.LA.2007) ......

Ovadal v. Cty of Madson,416 F.3d 531 (7'n Cir. 2005)

PSINet, Inc. v. Chapman,362 F .3d 227 (4rh Cir. 2004) -

_ .28

24-25

22-23

R.A.V. v. St. Pu\,505 U.S. 377 (1992)

Reed v. Town of Gilbert,l35 S.Ct. 2218 (20t5)

Sabelko v, City of Phoenx,846 F.Supp. 810 (D. AZ' 1994)

Shirmer v. Ngode, 621F.3d 581 (7th Cir. 2010)

Sirpl v. Wang, 2An V/L 28805 65, at t4 (D' Md. 2012)

Snyder v. Phelps,131 S.Ct. 1207 (2011)

Southern Pac. Co, v. Arizona ex rel. Sullivan,325 U.S. 761 (1945) -Swagler v. Sherdan,837 F.Supp.2d 509 (D. Md. 2011)

Termniello v. Chcago,337 U.S. 1 (1949)

Texas v. Johnson, 491 U.S. 397 (1989)

IJ.S. v. Cassidy,8l4 F.Supp.2d 574 (D. Md. 2011)

U.S. v. Lopez,514 U.S.549 (1995)

U.S. v. Marcavage,609 F.3d264 (3'd Cir. 2010)

U.S. v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000)

13

11

2t-21

. _20-21

.. _.__t4

l2

28

23-24

..-__..__ 10, 14, 16-17, 22, 26, 30

t4

27

...._.. .24

5

15

23

t1

U.S. v. Stevenso 130 S.Ct. 1577 (2010) .

Virginav. Am. Boolcsellers Ass'n,484 U.S.383 (1988)


6/46

CONSTITUTIONAL PROVISIONSO STATUTES AND RULAS

Mo CooE Crim. L. $3-803 ...-

Mo Cone Crirn. L. $3-805 .., -

U.S. CoNsr. atnend. 1, cl.3

U.S. CoNsr. amend. 1, cl.4

Il.S. CoNsr. art. I, $8, cl. 3 .-.

1s U.S.C. $10s2(a)

ARTICLES, BOOKS AND WEBSITES

Dr. Martin Luther King, Jr., LetreRFRoM e BtnnlNcHau JRll ---

_ passlm

. passim

- passim

passlm

l-4,26-30

l1-11

23


7/46

ST ATEMENT OF THE CASE

As alleged in the Third Arnended Complaint ( TAC ), Appellant V/alkerl is an

attorney (outside of Maryland), and a journalist. One of his journalistic subjects is the

past and present imrroral and crirninal conduct of convicted terrorist Brett Kimberlin.

Kmberlin v. White, T F.3d 527,528-29 (6rh Cir. 1993). Mr. Kimberlin has retaliated

against Mr. Walker by ling two peace orders in the last four years based in whole or in

part on Mn Cooe Crirn. L. $3-S03, and by filing (with his wife) false criminal charges

alleging harassment, violation of a peace order which was based on allegations of

harassment, and electronic harassmento' under Ml Coog Crim. L. $3-805. All of these

were based on nothing more than Mr. Walker's peaceable expression, protected by the

First Amendmento and peaceful representation of clients whom Mr. Kimberlin was

targeting with similar misconduct. Mr. Walker sued the State of Maryland, and Mr. and

Mrs, Kimberlin to stop this abuse of these laws. Specifically in relation to this current

appeal, Mr. Walker sought a declarctory judgrnent holding that $3-803 and $3-805 are

unconstitutional under the First Amendment and the Commerce Clause of the U.S'

Constitution. At a Novemb er 6,2015, motions hearing, the Honorable Michael D. Mason

first granted the State's Motion to Dismiss for lack of standing and, teasoning in the

altemative, he granted a Declaratory Judgment to the State upholding both statutes. Mr.

Walker seeks to have that ruling reversed: for this Court to hold that Mr. Walker has


8/46

that to the extent that these statutes regulate Internet activity, they are unconstitutional

under the Federal Commerce Clause.

OUESTI ONS PRESENTED

1. Whether the Circuit Court erred in holding that Mr. Walker lackedstanding to challenge Mn Cons Crim. L. $3-B03 and $3-805.

2. Whether Mo CooE Crim, L. $3-S03 and $3-805 are impermissiblecontent-based restrictions on freedorn of expression in violation of FirstAmendment to the lJ.S. Constitution.

3. Wherher Mo coos crim. L. $3-S03 and $3-805(bX1) areunconstitutional under the dormant Federal Commerce Clause to theextent that they apply to the Intemet.

STA TEMENT OF FACTS

As a prelirninary matter, it is worth taking a moment to review what this appeal

does not involve. First, it does not involve the prior complaints in this case: Mr. Walker

has only appealed the State's victories in relation to the Third Amended Complaint

(,,TAC ). Second, this appeal involves only one of the several state-actor defendants

listed in the TAC: the State of Maryland. The other state-actor defendants were

dismissed from the case before the November 6,2015, hearing (R55), and Mr. Walker is

not appealing that decision. Third, this appeal does not involve co'Defendants Mr. and

Mrs. Kimberlin. On the State's motion, the case involving the State was severed from the

case involving the other two defendants (the Kimberlins). (F125,167) Therefore, this is

l id d i t l t appeal The moment the aase was severed the


9/46

motion to dismiss was granted (8142-144). Therefore, that disrnissal was a final

judgment for purposes of appeal.

The question before this Court is whether M Coor Crim. L. $3-S03 and $3-8052

are unconstitutional because they violate the First Amendment, U.S. CoNst. amend. 1,

cls.3 and4, orthe Interstate Commerce, U.S.CoNsr. art. I, $8, cl. 3,and whetherMr.

Walker has slanding to bring this suit.

The relevant facts are summ azed as follows.' M..'Walker is an attorney who also

writes journalistically as a hobby. (833) Brett Kirnberlin is a convicted terrorist . White, T

F.3d at 528-29. Since being released frorn prison, Mr. Kimberlin has tried to intimidate

anyone who criticizes his past and present criminal and immoral activities. (828, 32'34,

58) Mr. Walker became a particular target of Kimberlin's ire by providing free legal help

to two targets of Kimberlin's campaign of intirnidation, and by writing truthfully about

Mr. Kimberlin. (828-29,31-35, 51-54) Mr. Kimberlin is like Al Capone, usingoomuscle

in an atternpt to silence Mr. V/alker, but instead of using criminal thugs as enforcers, Mr.

Kimberlin uses the instrumentalities of the State to do his dirty work . (828-29,35-48, 51-

54,58-62)

Twice, Mr. Kirrberlin obtained unconstitutional peace orders in Montgomery

Counfy District Court, relying on $3-803, based on nothing more than peaceful

2 I C V f th TAC Mr W lk inadvertently referred to these statutes as Mo CopE


10/46

expression directed to a general audience. (F.29,41'48) Both orders were dismissed on

appeal to the circuit court. (F;29, 42, 47-48) Additionally, Mr. Kimberlin and his wife

have filed false criminal charges claiming that 1) Mr. Walker violated the second peace

order, 2) fhat Mr, Walker harassed Mr. Kimberlin under 3-803 by peaceful expression

and providing legal help to his enemies, and 3) that Mr. Walker harassed Mrs.

Kirnberlin's minor daughter under 3-S05(b)(2) by peacefully and truthfuliy reporting on

the conduct of Mr. Kirnberlin. (F;29,47,54,58-62) Each charge has bsen dismissed on a

plea of nolle prosequi. {F,29,54,61-64) Focusing solely on the claims against the State,

Mr. Walker asked the Montgomery County Circuit Court to declare that 3-803 and 3-

B05 violated the right of free expression under the First Amendrnent, ando to the extent

that these statutes regulate the Intemet, they violated the Commerce Clause. (E66-67)

The State f1ed a motion to dismiss, and it was opposed by Mr. Walker. (869-102, 103-

I I S) On November 6, 2A15, Judge Masondismissed the case against Maryland for lack

of standing and, in the alternative, granted a Declaratory Judgment that 3-803 and 3-

805 were Constitutional. (E142-144,167-172) Mr. Walker seeks to reverse these rulings,

and for this Court to strike down both statutes.

LEGAL STANDARD

Because this is an appeal from a successful motion to dismiss, the correct standard

for review is follows:


11/46

pled facts and permissible inferences would, if proven, nonetheless fail toafford relief to the plaintiff.... Because we deem the facts to be true, wedeterrnine only whether the trial court was legally correct in its decision todismiss.

Bradley v. Bradley, 214Md.App.229,234 QA)

I.THE APPELLANT HAS STANDING TO CHALLENGE THE

CONSTITUTIONALITY OF MD CODE CRIM. L. AND S3-805

The Court below erred by detennining that Mr. Walker lacked standing to

challenge $3-803 and $3-805. Judge Mason's reasoning was vague, stating only that the

State made a r,alid argument. (8143) The State, in turn, argued the following:

Plaintiff Walker lacks standing to challenge the Constitutionality of these[statutes.] Plaintiff is not now imprisoned nor is he currently facingcriminal prosecution based on $3-803 and $3-805 of the Criminal LawArticle and thus, he lacks standing to challenge the constitutionality ofthese statutes under the Maryland Declaration of Rights or the UnitedStates Constitution. In order to have standing to challenge a statute on FirstAmendment grounds, a Plaintiff rnust demonstrate an actual well-founded

fear that the law will be enforced against them. Virginia v.Am.

Booksellers Ass'n, 484 U.S. 383, 393 (1988). Plaintiff has no suchreasonable fear.

Although Plaintiff faced charges related to these statutes, Plaintiff was notconvicted because, based on the application of the statute, his conduct wasnot found to have violated either $3-803 or $3-805.

The standing standard for non-first-atnendment claims is slightly higherand requires a realistic danger of sustaining a direct injury as a result ofthe statute's operation or enforcement. Babbit v. Unted Farm WorkersNat'l (Jnan, 442 U.5.289,298 (1979). Here, as the facts show, Plaintiffdoes not face arealistic danger of being prosecuted based on the application


12/46

(878-7e)

The first error the State makes in this argument is that it asserts that a past injury is

insufficient. This directly contradicts Joseph H. Munson Co., Inc. v. Secy of State,294

Md. 160, 171 (1952) where the Court of Appeals declared that Munson clearly had

standing to challenge the facial constitutionality of Art. 41, $103D, becauseooMunson

has clearly suffered injury as a result of that provision. Applied here, Mr. Walker has

been injured by both statutes because 1) he has been repeatedly prosecuted under them

and 2) ced repeated peace orders which were granted by the District Court only to be

overturned by the Circuit Court. This injury is sufficient to confer standing'

Second, the State misapplied the standards for when a chilling effect is sufficient,

saying that Mr. Walker's fear of future prosecution is not reasonable based on the facts

alleged in the TAC. The state seems to think that only the fear of successful prosecution

can create standing, which is contradicted by Dombrowski v. Pfister,380 U.S. 479,482

(1965), where the plaintif alleged that they were subjected to constant prosecution

under an unconstitutional statute and that

the complaint further alleges that the threats to enforce the statutes againstappellants are not made with any expectation of securing valid convictions,but rather arc part of a plan to employ arrests, seizures, and threats ofprosecution under color of the statutes to harass appellants and discouragethem and their supporters from asserting and attempting to vindicate theconstitutional rights of Negro citizens[.]


13/46

(E2S-29). Further, the Dumbrowsk court did not believe a likelihood of obtaining a

conviction was ncessary to create a chilling effect sufficient for standing purposes:

'oEven the prospect of ultimate failure of such prosecutions by no means dispels their

chilling effect on protected expression. 380 U.S. at 494.

This only makes sense. Many ordinary people fear prosecution and arrest even if

acquittal is assured. Therefore, many ordinary people will be intimidated into silence by

the mere threat of a criminal charge. This kind of chilling effect is forbidden under the

First Amendment, and, as a continuing injury, provides a basis for standing.

Third, alternatively, standing can be triggered by p reasonable fear of any other

consequences flowing from the statute's enforcement. As stated in Initiatve and

Referendum Insttute v. Walker,450 F.3d 1082,10S8 (10th Cir. 2006) (citations, quotation

marks and brackets omitted):

a chilling effect on the exercise ofa plaintiffls First Amendment rights may

amount to a judicially cognizable injury in fact, as long as it arises from anobjectively justified fear of real consequences.... Although mereallegations of a subjective chill are not an adequate substitute for a claim ofspecific present objective harm or a threat of specific future harm...,plaintif may bring suits for prospective relief in First Amendment caseswhere they can dernonstrate a credible threat of prosecution or otherconsequences flowing from the statute's enforcement.

Thus standing could be satisfied by the fear of being repeatedly subected to peace orders

as an ooother consequence of the enforcement of these statutes. Mr. Kimberlin has


14/46

Further, the State asserts that the fact that Mr. Walker is claiming that these

statutes were wrongfully applied to hirn somehow means that he does not have standing.

One of Mr. Walker's arguments is that the statutes are vague enough that persons of

colnmon intelligence can mistakenly believe they apply to conduct fully protected by the

First Amendment. One harm that flows from vague statutes is that those who enforce

these laws rnight accidentaliy enforce them against people engaged in protectedexpression. See generally Grayned v. City of Rockrd, 408 ll.S. 104, 108-9 (1972),

This has happened twice to Mr. Walker, his freedom of expression being abridged

unconstitutionally by the district court whilc he waited for months to appeal to the circuit

court

Mr. Vlalker poses three questions the State should answer in its response to this

brief. First, is it unconstitutional to continually charge someone with a crime because he

or she has engaged in protected speech, so longas the charges are dropped eventually?

Second, is it unconstitutional for someone to be continually subjected to unconstitutional

peace orders that restrict protected freedom ofexpression so long as they are eventually

dismissed on appeal even as the orders apply in the interim? Finally, if the answer to the

first two questions is ooyes, how would a person in Mr. Walker's position vindicate

his/her constitutional rights?

According to the State thus far, Mr. lValker has no way to ask Maryland's courts


15/46

il.MD CODE CRrM. L. S3,S03 AND S3-S05 ARE UNCONSTITUIONAL BECAUSE

THEY INFINGE ON FIRST AMENDMENT FREEDOMS

The lower court also erred by refusing to grant a declaratory judgment that 3-

803 and 3-805 violated the First Amendment.

In relation to gg3-S03 and 3-805(bxl), Galloway v. State,365 Md. 599,781 A.zd

851 (2001) should be overturned. Mr. Walker recognizes thatthis Court is unlikely todeclare that Gallowoy was wrongly decided at the time-this Court is likely to believe

that determination is reserved for the Court of Appeals-but this Court can hold that even

i Galloway was rightly decided at the time, subsequent developments in the law have

rendered Galloway unconstitutional.

Meanwhile, 3-805(bX2) does not edoy the shield of precedent to protect it.

Taking this issue on first impression, this statute is a content-based restriction on

protected expression that cannot withstand the strict scrutiny test. Indeed, the statute fails

even on Galloway's terms, because it removes protections for free expression that were

critical in Galloway.

Accordingly, the Circuit Court's declaratory judgment should be vacated with

instructions to the lower court to enter a declaratory judgment holding that both statutes

are unconstitutional.

A. Section 3-S05(bX2) is Unconstitutional Because It Depends on Audience


16/46

minor's feeling of o'serious emotional distress can satisfy an element of the offense-$3-

S05(bX2) is a content-based regulation of expression. Therefore, this statute must pass

strict scrutiny: it rnust be naruowly tailored to serve a compelling interest. Section 3-

805(bX2) fails this test.

1. Section 3-80 5lbl(2) is a content-based restriction on because itdepends on audi ence reaction and, therefore it is subiect to the strictscrutin) test

The Supreme Court has said time and again that if a statute regulates the content

of expression, it must survive the strict scrutiny test. See, e,g., U.^S. v. Playboy

Entertainment Group, nc.,529 U.S. 803, 813 (2000) ( Since $505 is a content-based

speech restriction, il can stand only if it satisfies strict scrutiny ). Under $3-805(bX2),

criminal liability depends on the reaction of the audience to speech. Namely, a person

can be convicted under $3-S05(b)(2) if she engages in Internet activity that inflicts

serious emotional distress on aminor with the appropriate intent. Courts have

repeatedly held that a statute that regulates expression according to audience reaction is

not content-neutral.

For instance, in Forsyth Cty. v. Natonalist Movement, 505 U.S. 123 (1992), the

Supreme Court struck down an ordinance that varied the fee for parade permits based on

the estimated cost of maintaining public order. At first glance, this regulation does not

seem to regulate the content of speech, but the Supreme Court held that in reality it was


17/46

patriotic Fourth of July parade. Reasoning that Listeners' reaction to speech is not a

content-neutral basis for regulation, id. at 134, the Supreme Court struck down this

statute.

This principle has been upheld as recently as last December in In re Tam, No.

2AA-n (Fed. Cir., Dec. 22,2015). Simon Tam, an Asian American, founded a band

called The Slants to combat anti-Asian stereotypes, but found he could not register The Slants as a U.S. Trademark because it was allegedly offensive to Asian Americans.

The Federal Circuit wrote that

Id. at

It is beyond dispute that $2(a) [15 U.S.C. $1052(a)] discriminates on the

basis of content in the sense that it appliesto particular speech because of

the topic discussed. Reed lv. Town of Gilbert, 135 S.Cr. 2218, 2227(2015)1. Section 2(a) prevents the registration of disparaging marks-itcannot reasonably be argued that this is not a content-based restriction orthat it is a content-neutral regulation of speech. And the test fordisparagement-whether a substantial composite of the referenced groupwould fncl the mark disparaging-makes clear that it is the nature of themessage conveyed by the speech which is being regulated. If the mark isfound disparaging by the referenced group, it is denied registration. Listeners' reaction to speech is not a content-neutral basis for regulation.Forsyth Cty.v.Nationalst Movement, 505 U.S. 123, 134 (1992).

*18-19. Accordingly, the Tam court struck down 15 U,S.C. $1052(a) (prohibiting

the registration of disparaging tradernarks) because it violated the First Amendment.

Federal courts have specifically found that prohibitions on the infliction of

emotional distress arrount to content-based regulation. For instance, the statute struck


18/46

In the presen t case, the only portion of Section 2261A(2)(A) rnentioned inthe Indictment amounts to a content-based restriction2261 A(2)(A) criminalizes anyone who:

Section

(2) with the intent-

(A) to kill, injure, harass, or place under surveillance withintent to kill, injure, harass, or intimidate, or causesubstantial emotional distress to a person in anotherState or tribal jurisdiction or within the specialmaritime and tenitorial jurisdiction of the UnitedStates uses the mail, any interactive cotnputerservice, or any facility of interstate or foreigncommerce to engage in a course of conduct that causessubstantial emotional distress to that person(ernphasis added)

(emphasis in original). As in the instant case, Cassidy concernedcriticism of a person

(identifiecl as A.2. ) by writing to the world at large on the Internet, and the statute

criminalized the infliction of emotional distress by rnere words. This was found to be a

content-based restriction on Mr. Cassidy's speech:

Typically, a restriction is content-based if it regulates speech based on theeffect that speech has on an audisnce.'

Mr. Cassidy allegedly violated the statute by intentionally causingsubstantial emotional distress to A.2., specifcally on Twitter and Blogs.The portion of Secti on 2261A(2XA) relied on in the Indictrnent amounts toa content-based restriction because it lirnits speech on the basis of whetherthat speech is emotionally distressing to A.Z.

Id. at 584. In Cassdy,that led to th application of the strict scrutiny standard, which the

statute ultimately failed.


19/46

of emotional distress against members of the Westboro Baptist Church after picketing the

funeral of a Marine who died in the line of duty. 'Ihe Westboro protesters displayed

signs that said Thank God for Dead Solcliers, God Hates Fags, and other vile

messages. Id. at 1213. The Supreme Court set the verdict asicle after it determined that

the verdict amounted to a penalty based on the content of their expression:

The record confirms that any distress occasioned by Westboro's picketingturned on the content and viewpoint of the message conveyed, rather thanany interference with the funeral itself. A group of parishioners standing atthe very spot where Westboro stood, holding signs that said God BlessAmerica and ooGod Loves You, would not have been subjected toliability. It was what Westboro said that exposed it to tort damages.

Id. at lzjg. It is not difficult to imagine sirnilar senarios under $3-S05(bX2).For

instance, many minors have attempted to gain farne in the music business: a negative

album review might create emotional distress in a young artist while a positive one will

not. A blasphemous drawing of Mohammed might make a Muslim teenager feel distress,

whil praising Allah will not. Even a truthful recounting of Brett Kimberlin's terrorist

activities rnight cause his daughter distress as she learns he is a violent felon while an

essay praising Mr. Kimberlin as a pillar of the cornmunity will not. There can be little

doubt that because$3-805(bX2)

allows emotional distress to satisfu an element of the

crime, it is a content-based restriction on expression. Therefore, $3-805(bX2) must be

subjected to the strict scrutiny test.


20/46

presurnption. 4 Accordingly. the State must satis$ the strict scrutiny test: it must be

narrowly tailored to promote a compelling Government interest. Playboy,529 U.S. at

813. The State cannot establish that all of the interests promoted by this statute are

compelling.

First, protecting children from emotional distress does not fall into the

traditional categories of speech that can be regulated according to content. See, e.g.,

R.A.V.505 ll.S. at 382-83 (listing categories of speech that can be regulated by content).

Further, protecting minors from emotional distress is not a compelling interest.5 The case

law and common sense says it is not, if only because children can be easily distressed for

irrational reasons. For instance in McCauley v. {J. of V.L, 61S F.3d 232, 251 (3'd Cir.

2AI0), that court struck down a campus code of conduct that prohibited expression which

caused emotional distress, finding that protecting people from such distress was not a

compellingpurpose:

The scenarios in which this prong [prohibiting the infliction of emotionaldistress] rnay be implicated are endless: a religious student organizationinviting an atheist to attend a gfoup pfayer meeting on campus couldprompt him to seek assistance in dealing with the distress of being invitedto the event; minority students may feel emotional distress when otherstudents protest against affirmative action; a pro-life student may feelemotional distress when a pro-choice student distributes PlannedParenthood pamphlets on ampus; even simple name-calling could bepunished. The reason all these scenarios are plausible applications ofParagraph H is that the paragraph is not based on the speech af al. It isbased on a listener's reaction to the speech. The Supreme Court has held


21/46

tirne and again, both within and outside of the school context, that the merefacl that someone might take offense at the content of speech is notsuficient justification for prohibiting it.

618 F.3d at251 Indeed, freedorn of expression often serves its most vital purpose when

it creates ernotional distress:

a function of free speech under our system of government is to invitedispute. It may indeed best serve its high pu{pose when it induces a

condition of unrest, creates dissatisfaction withconditions as they are, or

even stirs people to anger. Speech is oftenprovocotve and challenging. Itrnay strike at prejudices and preconceptions and have profound unsettling

fficts as it presses for acceptance of an idea. That is why freedom ofspeech, though not absolute,... is nevertheless protected against censorshipor punishment, unless shown likely to produce a ciear and present danger ofa serious substantive evil that rises far above public inconvenience,annoyqnce, e unresf....There is no room under our Constitution for a morerestrictive view.

Terminiello v. Chicago,337 U.S. 1, 4 (1949) (emphasis added). Creating a safe space for

fragile emotions is not a compelling interest. In fact, it goes against the very reason why

the First Amendment exists.

Since one of the interests the statute protects is not compelling, it fails the strict

scrutiny standard and, therefore, $3-805(bX2) is unconstitutionai.

3. Section 3-805(bX2) is not narrowlv tailored

Even assuming that the interests protected by the statute were compelling, $3-

S05(bX2) is not narrowly tailored to promote them. A statute is not narrowly tailored

when a less restrictive alternative exists and in this case two exist: (1) the limitations that


22/46

(i) Section 3-8 05lb)12) is not tailored because one can simolvavert one's eves

It is irnportant to note what is criminalized by $3-S05(bX2). This provisionapplies whenever a person uses an 'ointeractive computer service with the appropriate

effect on audiences coupled with the requisite intent. That term, defined in $3-805(aX3)'

includes directed comrnunication, such as emails, text messages and the like, but also

information broadcast to the whole world, such as an article on the l{ew York Times'

website, a book readable on a Kindle or Nook, or a personal webpage. And ail of this

infonnation can be avoided-often even blocked-by the audience.

This fact renders the statute unconstitutional under Playboy.In Playboy, the

Supreme Court confronted a federal law requiring cable companies to take steps to

prevent children from seein g Qtartty scrambled) sexually explicit cable channels if their

parents didn't subscribe to them, requiring cable companies to either fully svamble such

channels for non-subscribing households, or to restrict the prograrnming to evening

hours

The Suprerne Court found that the statute was not narrowly tailored. First, the

ourt noted that [i]f a less restrictive alternative would serve the Government's purpose,

the legislature must use that alternative.' 529 U.S. at 813. That is the ordinary rule, but

in Ptayboy the court set that rule aside for one even less tolerant of speech regulation:


23/46

Id. As withthe statute challenged in Playboy, the purpose of $3-S05(bX2)is to shield

the sensibilitiesof listeners[,] includingchildren.Thus the Playboytule controls:the

rightof expression should prevail,and the alleged victimsshould be expected to avert

their eyes. Accordingly,$3-805(bX2)is not narowlytailoredunder Ptayboy.

(i i) Section 3-805(b ) is not narrowlvtailoreclbecause it strips awaYimoortantnrotections for freedomof express ion oresent in otherharassment statutes

Anadditionalreason why $3-S05(b)(2)is not narrowlytailored is that a less

restrictivealternativeexists in the sme statute: the limitinglanguage found in $3-

Sg5(bxl)(and also in g3-803). This language was criticalin shieldinganotherharassment statute fromconstitutionalattack in Galloway,but was stripped from$3-

805(bX2)for no rationalreason.

The leading case in Marylandon the general harassment statute, currentlycodified

as$3-803,

is Gallowayv. State. The Gallowaycourt faced a First Amendmentchallenge

to a general harassment statute-whichwas identicalto the curuent $3-803 in every

relevant way-based on the overbreadth and void-for-vagueness doctrines. However, the

Gallowaycourt found that the statute was constitutionalbased significantlyon the

inclusionof two lirnitations,writingthat

fsection]123 lfhe harassment statutel expressly eliminaes constitutionallyprotected speech frornits ambit. Section 123 does not apply to anypeaceable activityintended to express political viewsor provide


24/46

781 A.2d at 878 (emphasis added). Thus, these two limitations in particular were seen as

critical to ensuring that the statute was constitutional-both by actually protecting

freedom of expression and by avoiding a chilling effect.

Ilowever, $3-805(b)(2) elirninates these protections when a minor is involved.

For instanceo subsection (b)(1)(iii) makes it an element of the offense that the defbndant

is acting without a legal purpose, but no such element is found in subsection (b).Further, g3-S05(d) states that subsection (b)(l) of this section does not apply to a

peaceable activity intended to express a political view or provide information to others

(emphasis added) but that also does not apply to subsection (b)G). Thus, the language

that the Galloway court praised as 'oexpressly eliminat[ing] constitutionally protected

speech from fthe statute's] ambit, 781 A.zd at878, does not apply to $3-805(b)(2).

Logically, if one believes that $3-803 and $3-805(b)(1) is neither vague nor

overbroad because of the nclusion of this language, then the exclusion of this language

from $3-805(bX2) renders it vague, overbroad, and, additionally, not narrowly tailored.

Indeed, this is directly implied by the State's own Motion to Disrniss below, which states

that sections 3-803 and 3-805 are also not overly broad because each statute contains

limiting language that speech or conduct with a legal purpose is not punishable. (E82)

This is an implicit confession that $3-S05(b)(2) is overbroad and not narrowly tailored.

In summary $3 805(b)(2) is a content-based restriction on freedom of expression


25/46

any of its purposes because it doesn't contain the protections for freedom of speech found

in other harassment statutes, and because the victim can simply look away. Therefore,

$3-S05(b)(2) is unconstitutional under the First Amendment, and the Circuit Court erred

in failing to declare it unconstitutional.

B. Sections 3-803 and 3-805(bX2) are Unconstitutional Based on Developmentsin the Law Since Gllowy v. State

Turning to the rernaining sections of these laws, Galloway is the leading case on

the oonstitutionality of gg3-S03 and 3-S05(bX1). Although Galloway dealt with a

clifferent statute, the statute in Galloway is essentially the same as the current $3-803.

Meanwhile,g3-805(bxl)

is virtuallyidentical to

$3-803,except it only applies to the

Internet.

As noted above, this Court does not have to believe that Gallo\'uay was wrongly

decided at the time in order to fnd in Mr. Walker's favor. Since Galloway was decided,

the law of free expression has developed in ways that undermine that decision. Thus,

even if Galloway was a correct reading of the law at the time, it is no more.

1. Subsequent case law demonstrates that Q$3 -803 and 3-8051b)ll) arecontent-based restrictions on exression because criminalitv denends on thebehavior of third

The Court in Galloway seemed to believe that this speech restriction was ontent-

neutral.6 The Galloway courtalso seemed to believe that the requirement of a warning to


26/46

However, since Galloway was decided, the Seventh Circuit has called these

assumptions into question in Shrmer v. Nagode, 621F.3d 581 (7'h Cir. 2010), holding

that a restriction was not content-neutral when it was based on the conduct or expression

of third parties as follows:

The City of Chicago has enacted an ordinance prohibiting disorderlyconduct. One controversial portion of that ordinance makes it a crime for a

person to fail to disperse from a group when ordered to do so by a policeofficer while others are engaging in disorderly conduct nearby: A personcommits disorderly conduct when he knowingly ... (d) Fails to obey alawful order of dispersal by a person known by him to be a peace officerunder circumstances where three or more persons are committing acts ofdisorderly conduct in the immediate vicinity, which acts are likely to causesubstantial harrn or serious inconvenience, annoyance or alarm.... Chicago

Municipal Code $8-4-010(d). This provision...lends

itself to overlybroad

application that can interfere with core First Amendment rights of freespeech and assembly. The three or lnore persons ... committing acts ofdisorderly conduct could be reacting to (or even attempting to disrupt) thespeech of the person arrested for a failure to disperse, so this provision canbe applied to impose what amounts to an unconstitutional heckler's vetoof protected speech.

Id. at 583-84. Shrmer stands for the common sense proposition that if criminality

depends on the actions of third parties, it wilt be applied unevenly, depending on the

content of speech. Perhaps if the Galloway court had the benefit of that decision, it

would have recognized the reality that whether one asks a person to stop engaging in

rnailings, the risk that the statute will chill people from the exercise of free speech isminor ).


27/46

expression is also likelyto turn on the content being expressed. A person holdinga sign

that says thank God fordead soldiers is more likelyto be told to stop than a person

holdinga sign that says God bless America. With the benefitof Shrmer, the Galloway

court wouldhave reco gnized that makingcriminaiitydepend on a request to stop doesn't

help to shield laws such as these fromconstitutionalattack. Insead, it renders such laws

content-based restrictionson expression, whichare subjected to strictscrutiny.Meanwhile,Sabelko v. Cityof Phoenix, 846 F.Supp. 810 (D.AZ.1'994) is

precedent that pre-d ated Gallaway,bul Sabelko was not discussed or distinguishedin

Galloway.Likethe instant statutes, the ordinance in Sabelko criminalizedbehavior

depending on the wishes of thirdparties by requiringpeople participatingin certain

demonstrations to withdrawto a bubble of eight feet away froma person ifasked to do

so by that person. The cityasserted that the law was content-neutral:it simplyappliedto

whomeverwas asked to withdraw-justas criminalityunder the instant statutes depend

on a defendant being firstwarned to stop, $3-S03(aX2)and $3-805(bxlxi.The

Sabelko court brushedthat argumentaside, stating that:

[the defendants] claimthe Ordinance does not target ay type of speech,but rather wouldprovide forcriminalliabilityof any speaker who failed towithdrawto the eight-footminimurndistance, even if the speaker isdemonstrating support. The Court finds this argument unpersuasive sincethe invocationof the bubble zote willlikelydepend upon whether thelisteneragrees withor disagrees with thecontent of the speaker'scommunication. Listeners' reaction to speech is not a content neutral


28/46

to both g3-S03 and $3-805(bxl). Accordingly, unlike in Galloway, the State must prove

that these statutes are naffowly tailored to promote a compelling Govemment interest.

Playboy,529 U.S. at 813.

2. Sections 3-803 3-8051b)(1) do not oromote a comoellins interest

There are three potential interests promoted by these statutes. The first two are

found in the text, indicating that crirninality is triggered by conduct that alarmsor

seriously annoys the other g3-803(a) and $3-805(bX1) (ernphasis added). Therefore,

these statutes seek to protect listeners from annoyance or alarm. A third purpose can be

gleaned fuom Gallowey's quotation of the relevant committee report for the prior version

of $3-803 which claimed that the statute will help law enforcement agencies in their

attempts to defuse ongoing feuds and longstanding disputes between neighbors, fonner

boyfriends and girlfriends, and adults which arise on a daily basis, 781 A.zd at 859. In

short, the hope was that the statute would help keep the peace. Case law that has arisen

since Galloway demonstrates that none of these interests are compelling.

For.instance, the Galloway court did not have the beneft af Ovadal v. City af

Madison,4l6 F.3d 531 (7th Cir.2005) which ruied that speech could not be suppressed

merely to keep the peace. \n Ovadal, a religious group displayed signs on a pedestrian

overpass on controversial topics which caused severe traffic congestion and several near-

accidents Finding that the police's order to disperse violated the protesters' right to free


29/46

simply because it might offend those who hear it. Id. at 134-35,112 S.Ct.2395. It cannot be denicd that drivers who yelled, gestured, and slammedon their brakes when they saw Ovadal's signs created a safety hazard on the

Beltline. However, it is the reckless drivers, not Ovadal, who should havebeen dealt with by the police, perhaps in conjunction with an appropriatetime, place, and rnanner restriction on Ovadal. The police must preserveorder when unpopular speech disrupts it; [d]oes it follow that the policemay silence the rabble-rousing speaker? Not at all. The police must permitthe speech and control the crowd; there is no heckler's veto. Hedges v.wauonda cmty. unit sch. Dist. No. I18, g F.3d 1295, l2gg 17'h Cir.l993).

l. at 537. Applied to the instant case, what is the fear that justifies silencing Mr'

V/alker? That Mr. Walker's peaceful activity publicizing Mr. Kimberlin's misconduct

might drive Mr. Kimberlin to violence in retaliation? That is a reasonable fear, but the

solution is toprevent any criminal conduct from Mr. Kimberlin, not to suppress Mr.

Walker's complaints about it. As Dr. Martin Luther King, Jr. once said, oopeace is not

merely the absence of... tension, but the presence ofjustice. Dr. Martin Luther King, Jr.,

LprreR FR9M A BTRMTNcHAM JAIL. Silencing grievances does not lead to justice or true

peace.

Likewise, tbe Galloway court would not have found that the prevention of

annoyance was a compelling interest in light of Ovadal or other precedents such as

Swagler v. Sherdan, 837 F.Supp.2d 509 (D. Md. 2011). Swagler concerned another

protest that disrupted traff,rc, resulting in an order to disperse by Maryland police. The

Swogler court ruled that this violated the protesters' rights:


30/46

simply because bystanders object to peaceful and orderly demonstrations.Bachellar v. Maryland,397 U.S. 564, 567 (1970).... Put simply, there is noheckler's veto to the First Amendment.... to the tlnited States Constitution.

As the lJnited States Court of Appeals for the Third Circuit recentlyconcluded, oo[n]o matter one's personal feelings about abortion, the images[of aborted fetuses] are jaruing, their shock value unmistakable.Presumably, that was the point. But 'speech cannot be . . . punished orbanned[] sirnply because it might offend' its audience. United States v.Marcavage,6Ag F.3d264,283 (3d Cir. 2010).

l. at 527

Meanwhile, another post-Galloway decision verifies that annoyance is simply

another word for'ooffense:

The governrnent has no rational or compelling interest in using a content-

based restriction to silence Mr.Netherland's views. Even if such views are

unpopular, disquieting, annoying, or offensive, a compelling governmentalinterest is not achieved by threatening Mr. Nctherland with arrest. See,e.g., Coates v. Cincinnat,402IJ.S. 611'..(1971); Texas v. Johnson,49lU.S. 397, 398... (19S9), Religious speech cannot be silenced because it iscontroversial or offensive. Capitol Square Rev.ew and Advisory Bd. fv.Pinette,f 515 IJ.S. U53,76A Q995)l (requiring state to permit Ku KluxKlan to erect a cross on state's open public forum).

Netherland v. CiQ of Zachary,527 F.Supp.Zd 507,516 (M.D: LA. 20A7) ftoldface

added). h Netherlnd, a man stood on public land near abar, preached loudly about the

evils of alcohol, and the police ordered him to be silent. Finding the order to be

unconstitutional, the Netterland court wrote that

In an attempt to persuade this Court that Mr. Netherland's speech is notprotected speech, the Defendants argue that Mr. Netherland's preachingconstituted fghting words Defendants claim that they threatened Mr.


31/46

is the dutyof the policeto atternpt to protect the speaker, not to silence hisspeech ifit does not consist of unprotectedepithets.

Id. at 519 (emphasis added, internalquotation marks ornitted).The way to suppressviolencein response to annoying or otherwiseoffensiveexpression isn't to suppress

speech: it is to suppress the violence.

I.ikewise,the Gallowaycovrtwouldhave been unlikelyto findthat there was a

ccrrnpellinginterest in protectingMarylandersfrommere alatmoo if it had the benefrtof

l/irgnav.Black,538 U,S.3 QA).There, the Supreme Courtdealtwitha statuternaking it a criminalact to burn a cross with intent to intimidatel,] id. at 347. The

statute was upheld, but onlybecause the Supreme Court interpreted the tenn

intimidationas follows:

Intimidationin the constitutionallyproscribablesense of the word isa typeof true threat, where a speaker directsa threat to a person or group ofpersons withthe intent of placing the victimin fear of bodilyharm ordeath,

Id. at 360. lfGallowaycourt had thebenefitof Black to guide it, that oourtwouldhave

realizedthat if the onlytype of intimidationthat can be constitutionallyproscribable is

a true threat, then logically,preventing mereo'alarfft (whichplainlycan be less than a

true threat)cannot serve as a compellingpurpose.

These post-Gallowayprecedents demonstrate that maintainingorder (by

preventingall speech that mighlanger listeners, not just {ightingwords), preventing


32/46

J Sections 3-803 and 3-805 lb)11) are not narrowly tailored because there isthe less restrictive alternati ve of one's eves

Just as with g3-805(bx2), $$3-803 and 3-805(bxl) are not narrowly tailoredbecause in most cases the viewers of annoying or alarming messages can be expected to

avert their eyes. Playboy,529 U.S. at 813. While Playboy was not decided subsequent

to Galloway, if was not addressed in Galloway either, probably because the Galloway

court seemed to believe that the restriction was content-neutral. Supra n. 6, If this

Court-aided by more recent precedents-determines that $$3-803 and 3-805(bX1) are

not content-neutral restrictions on expression, then this Court must apply Playboy and

find that the statutes are overly broad and not narrowly tailored.

In conciusion, this Court can find that subsequent precedents have undermined

whatever vitality Galloway had. Aided by these later cases, this Court can determine that

$$3-803 and 3-805(bxl) are content-based restrictions on expression that fail strict

scrutiny. Specifically, these provisions are not supported by a compelling purpose, or

narrowly tailored. Therefore, the lower court erred by failing to declare that $3-803 and

$3-805 are unconstitutional under the First Amendment.

ilI.MD CODE CRIM. L. $3-303 AND $3-S05 ARE UNCONSTITUTIONAL TO THEEXTENT THAT THEY REGULATE INTERNET ACTIVITY BECAUSE THEY

VIOLATE THE OODORMANT CO MMERCE CLAUSE

Another way this Court could provide Mr. Walker relief without contradicting


33/46

the absence of federal preemption. Therefore, $3-805 and $3-803 arc unconstitutional to

the extent that they atternpt to regulate the Internet.

U.^S. v, Lopez,514 U.S. 549, 559 (1995) held that the Commerce Clause made the

regulation of th instrumentalities of interstate commerce a matter of Federal concern

even though the threat may come only from intrastate activities. The Internet is very

obviously an instrumentality ofinterstate commere, more so today than it was in 1997

when Am. Libraries Ass'n v. Pataki,969 F.Supp. 160, 173 (S.D.N.Y. 1997) ruled that it

was. Using the Internet, people can watch television and movies, PaY their bills and

purchase groceries and other products. A person with the right resources could never

leav her home, having ali she needs delivered to her via online ordering and paying for

all of it by telecomrnuting to work. That is how thoroughly the Internet is an instrument

of commerce.

Accordingly, federal courts have regularty held that the states may not regulate the

content of the Internet. For instance, the Patak court held that a statute making it a

felony to allow minors to view obscene maTerials over the Internet was unconstitutional

under the dormant Commerce Clause-holding that even if there were no conflict with

federal regulationo states could not regulate in that domain.e Instead, the content of the

Internet could only be regulated by the federal government because the nature of the

Internet demanded uniforrnity across the United States much the way that railroads and


34/46

trucks did in Southern Pac. Co. v. .A.rzona ex rel. Sullivan,325 U.S. 761 (1945) and Bibb

v. Navajo Freght Lnes, \nc.,359 U.S.520 (1959), respectively:

The Internet, like the rail and highway traffic at issue in the cited cases,requires a cohesive national scheme of regulation so that users atereasonably able to determine their obligations. Regulation on a local level,by contrast, will leave users lost in a welter of inconsistent laws, imposedby difierent states with different priorities.

969 F.Supp. at 182. Indeed,the

Pataki courlfound that the need for uniformity was even

more pressing in the case of the Internet as follows:

an Internet user cannot foreclose access to her work from certain states orsend differing versions of her cornmunication to different jurisdictions. Inthis sense, the Internet user is in a worse position than the truck driver ortrain engineer who can steer around lllinois or Arizona, or change themudguard or train configuration at the state line; the Internet user has noability to bypass any particular state. The user must thus comply with theregulation imposed by the state with the most stringent standard or foregoInternet communication of the message that might or might not subject herto prosecution.

Id. at 183; see also Am. Booksellers Foundaton v. Dean,342F,3d96 (2'd Cir. 2003)

(endorsing the Patak court's reasoning); Midwest Ttle Lons, Inc. v. M\Ls,593 F.3d 660

17th Cir. 2010) (citing Dean favorably); and ACLU v. Johnson,lg4 F.3d I l4g, 116l (10th

Cir. 1999) (endorsing the Pataki court's reasoning). This reasoning was adopted

wholesale by the Fourth Circuit in PSINet, Inc. v. Chapman, 362 F.3d 227 , 24014th Cir.

2004), with this flourish:

The content of the Internet is analogous to the content of the night sky,


35/46

Sections 3-803 and 3-805 not only offend the Commerce Clause but the principle

behind it that those who are affected by a law should have a say in the law. The Founders

rebelled under the battle-cry of "No Taxation 'Without Representation " and they would

certainly be offended by "Criminalization \Mithout Representation," especially when

applied to expression. Yet, here we have Maryland telling a Virginian what he can't say

on the Internet while he's in Virginia. He can't vote in Maryland, andthere

isno

practical way for him to keep his writings on the Internet at large from entering

Maryland. Therefore, his expression is being limited by laws he has no say in and has

not consented to. However, if this Court found that only the Federal Government could

regulate Internet content, the solution for those who are rightfully troubled by abusive

conduct online would be to petition Congress, giving evely voter of every state a say in

any law that is passed. That is criminalization withrepresentation.

Accordingly, $$3-803 and 3-805 are unconstitutional under the "dormant"

Commerce Clause to the extent that thcse statutes regulate Internet activity. This is

because the Internet cries out for a single national standard. A person shouldn't have to

learn the criminal law of every state in order to use the Internet, and a person should not

be subject to criminal iaws they have no say in.

CONCLUSION

The order below should be reversed First, it is plain that Mr. Walker satisfies the


36/46

Turning to the rnerits, $3-S05(b)(2) is a content-based regulation because it

depends on audience reaction and, accordingly, it is subject to strict scrutiny. I{owever,

protecting citizens from emotional distress is not a compelling interest, and the statute is

not narrowly tailored because it needlessly sheds important protections for flee speech

when the audience could simply look away.

Similarly. $3-S03and

$3-805(bX1)violate the First Amendment even when one

considers only the developments in the law since Galloway. They are both content-based

limitations on expression and, thuso subject to the strict scrutiny standard. Under today's

law, the State has no compelling interest in suppressing speech to keep the peace, to

prevent annoyance or to prevent mere alarm, and the law cannot be narrowly tailored

under Playboy.

Finally, $3-803 and $3-805 arc unconstitutional to the extent that they regulate

Internet activity under the dormant Federal Interstate Commerce Clause because the

Internet is a federal domain demanding uniformity in American law,

WHEREFORE, the Appellant respectfully requests that this Court reverse the decision of

the Montgomery County Circuit Court, holdthat the Appellant does have standing and

direct that the Circuit Court enter aDeclarutory Judgrnent stating that $3-803 and $3-805

violate the F'irst Amendment of the U.S. Constitution and, to the extent that they apply to


37/46

Tuesday, May 3I,2016 Respectfully submitted,

J alker, Esq.(Va Ba# 48882)P.O. Box 3075Manassas, Virginia 20 108-Phone: (703) 2rc-4455(no fax)AaronJWl [email protected]

4BTITICATI O N O F' WORD C OUN TJ{ND CO_ryIroIAiY C E WITH, JULE 8- 1. 2

1. This brief contains 8,859 words, excluding the parts of the brief exemptedfrom the word count by Rule 8-503.

2, This brief complies with the font, spacing, and type size requirementsstated in Rule 8-112. Specifically this document was typed in Times New Roman, 13-point font.

CERTIIICA,T E O_{'. S} RVIH,

I cerTiff that on Tuesday, May 3l,2A16,I served copies of the Appellant's Briofon the State by Alexis Rohde, Erq., Office of the Attorney General, 200 St. Paul Place,20th Floor, Baltimore, Maryland2I2A2, via U. S. Mail.


38/46

Tnxr or Crrnt CoNsrrrurloNnr, Pnowslo{s AND Sr,rurrs

Maryland Constitution Maryland Declaration of Rights Article 19

That every man, for any injury done to him in his person or property, ought to haveremedy by the course of the L,aw of the Land, and ought to have justice and right, freelywithout sale, fully without any denial, and speedily without delay, according to the Lawof the Land.

U.S. Constitution Amendment 1

Congress shall make no law respecting an establishment of religion, or prohibiting thefree exercise thereof; or abridging the freedom of speech, or of the press; or the right ofthe people peaceably to assemble, and to petition the Government for a redress ofgrievances.

U.S. Constitution, Arficle I, Section 8, Clause 3 (the o'Commerce Clause )

The Congress shall have Power... To regulate Cotnmerce with foreign Nations, andamong the several States, and with the Indian Tribes;

Mo Conn Crim. L. S3-803. Harassment

(a) Prohibited. -- A person may not follow another in or about a public place ormaliciously engage in a course of conduct that alanns 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 ofthe other; and

(3) without a legal purpose.


39/46

(1) for a frst offense, imprisonment not exceeding 90 days or a fine notexceeding $ 500 or both; and

(2) f'or a second or subsequent offense,imprisonment not exceeding 180 days

or a fine not cxceeding $ 1,000 or both.

Mo Conn Crim. L. $3-305. Misuse of electronic communication or interactivecomputer service.

(a)Definitions

(1) In this section the fbllowing words have the meanings indicated.

(2) Electronic aommunication means the transmission of inforrnation, data,or a ommunication by the use of a computer or any other electronic lneansthat is sent to a person and that is received by the person.

(3) Interactive computer serice means an information service, system, oraccess software provider that provides or enables computer access bymultiple users to a computer server, including a system that provides accessto the Internet and cellular phones.

(b) Prohibited. -

(1) A person may not maliciously engage in a course of conduct, through theuse of electronic communication, that alarms or seriously annoys another:

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

(ii) after recciving a reasonable warning or request to stop by or onbehalf of the other; and

(iii) without a legal purpose

(2) A person may not use an interactive computer service to maliciouslyengage in a course of conduct that inflicts serious emotional distress on a


40/46

(i to. place the minor in reasonable fear of death or serious bodilyrryury.

(c) Construction of section. -- It is not a violation of this section for any of thefollowing persons to provide information, facilities, or

technical assistance toanother who is authorized by federal or State law to intercept or provide electroniccommunication or to conduct surveillance of electronic communication, if a courtorder directs the person to provide the information, facilities, or technicalassistance:

(1) a provider of electronic communication;

(2) an officer, employee, agent, landlord, of custodian of a provider ofelectronic communication; or

(3) a person specifed in a court order directing the provision of information,facilities, or technical assistance to another who is authorized by federal orState law to intercept or provide electronic communication or to conductsurveillance of electronic communication.

(d) Exception. -- Subsection (bxl) of this section does not apply to a peaceableactivity intended to express a political view or provide information to others.

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

Mn Coor Crim. L. $3-S05. Misuse of electronic communication (Maryland Code(2013 Edition)).

(a) Electronic communication defined. in this section, electroniccommunication means the transmission of information, data, or a communication

by the use of a computer or any other electronic mens that is sent to a person andthat 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


41/46

(3) without a legal purpose

(c) Construction of section. -- It is not a violation of this section for any ofthe

following persons to provide infonnation, facilities, or technical assistance toanother who is authorized by federal or State law to intercept or provide electroniccommunication or to conduct surveillance of electronic communication, if a courtorder directs the person to provide the information, facilities, or technicalassistance:

(1)a provider of electronic communication;

(2) an officer, ernployee, agent, landlord, or custodian of a provider ofelectronic cotnmunication; or

(3) a person specified in a court order directing the provision of information,facilities, or technical assistance to another who is authorized by federal orState law to intercept or provide electronic communication or to conductsurveillance of electronic communication.

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

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

15 U.S. Code 1052 - Trademarks registrable on principal register; concurrentregistration

No trademark by which the goods of the applicant may be distinguished from the goodsof others shall be refused registration on the principal register on account of its natureunless it-(a) Consists of or comprises immoral deceptive or scandalous matter; or matter


42/46

after the date on which the WTO Agreement as defined in section 3501 9) of title19) enters into force with respect to the United States.

b) Consists of or comprises the ftag or coat of arms or otherinsignia

ofthe United

States, or of any State or rnunicip ality, or of any foreign nation, or any simulationthereof.

c) Consists of or comprises a name, portrait, or signature identifying a particularliving individual except by his written consent, or the name, signature, or portraitof a deceased President of the lJnited States during the life of his widow, if any,except

bythe written consent of the widow.

d) Consists of or comprises a mark which so resembls a mark registered in thePatent and Trademark Office, or a mark or trade name previously used in theUnited States by another and not abandoned, as to be likely, when used on or inconnection with the goods of the applicant, to cause confusion, or to causemistake, or to deceive:

Provided, That if the Director determines that confusion, mistake, or deception isnot likely to result from the continued use by more than one person of the same orsimilar marks under conditions and lirnitations as to the mode or place of use ofthe marks or the goocls on or in connection with which such marks are used,concurrent registrations rnay be issued to such persons when they have becomeentitled to use such marks as a result of their conaurrent lawful use in commerceprior to 1) the earliest of the filing dates of the applications pending or of anyregistration issued under this chapter; 2) July 5, 1947, in the case of registrationspreviously issued under the Act of March 3, 1881, or February 20, 1905, andcontinuing in full force and effect on that date; or 3) July 5, 194J, in the case ofapplications filed under the Act of February 20, 1905, and registered after July 5,1947 . Use prior to the filing date of any pending application or a registration shallnot be required when the owner of such application or registration consents to thegrant of a concurrent registration to the applicant. Concurrent registrations mayalso be issued by the Director when a court of competent jurisdiction has finallydetermined that lnore than one person is entitled to use the same or similar marksin commerce. In issuing concurrent registrations, the Director shall prescribeconditions and limitations as to the mode or place of use of the mark or the goodson or in connection with which such mark is registered to the respective persons.

i il hi ll d i l i d i i


43/46

(

the goods of the applicant is primarily geographically deceptively rnisdescriptiveof them, (a) is primarily merely a surname, or (5) comprises any matter that, as awhole, is functional.

Except as expressly excluded in subsections (a), (b), (c), (d), (eX3), and (e)(5) ofthis section, nothing in this chapter shall prevent the registration of a mark used bythe applicant which has become distinctive of the applicant s goods in commerce.The Director may accept as prima facie evidence that the mark has becornedistinctiveo as used on or in connection with the applicant s goods in commerce,proof of substantially exclusive and continuous use thereof as a mark by theapplicant in commerce for the five years before the date on which the claim ofdistinctiveness is made. Nothing in this section shall prevent the registration of amark which, when used on or in connection with the goods of the applicant, isprimarily geographically deceptively misdescriptive of them, and which becamedistinctive of the applicant s goods in commerce before December 8, 1993.

A mark which would be likely to cause dilution by bluning or dilution bytarnishment under section 1125(c) of this title, may be refused registration onlypursuant to a proceeding brought under section I063 of this title. A registration fora mark which would be likely to cause dilution by bluring or dilution bytarnishment under section 1125(c) of this title, may be canceled pursuant to aproceeding brought under either section 1064 of this title or section 1092 of thistitle.


44/46

IN THE COURT OF SPECIAL APPEALSOF'MARYLAND

AARON WALKER,

Appellant

Septernber Term, 2015,

No.2092STATE OF MARYLAND, ET AL.,

Appellee

ORDER REVERSING THE JUDGMENT OF THE CIRCUIT COURT

Upon consideration of the Appellant's Briefl, any brief by the Appellee and any

other filing in support or opposition thereto, it is this day of

201-', hereby

ORDERED that the Judgment of the Circuit Court for Montgomery County

dismissing the State from Walker v, State, No. 398855 (Mont. Co. Cir. Ct. 2015) R. 79 is

REVERSED, this Court finding that Mr. Walker did have standing to bring suit; and it is

further

ORDERED that such reversal is granted with instructions to the Montgomery

County Circuit Court to grant Mr. Walker a Declaratory Judgrnent in his favor, this Court

v

I t t comm nications they violate the Interstate Commerce Clause of the U S


45/46

Internet communications they violate the Interstate Commerce Clause of the U.S

Constitution; and it is further

ORDERED that both statutes should be treated as a nullity; and it is further

ORDERED that the Appellee shall pay costs

Judges Court of Special Appeals


46/46

tlootlooooooooo ooooo oooooo ol oo ooooo o ooo

Documents

Aaron Walker Wants Maryland to Allow Him to Harass Teenaged Girls