Walker Memorandum in Support of Motion to Dismiss (Redaction)

8/20/2019 Walker Memorandum in Support of Motion to Dismiss (Redaction)

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MARYLAND:

IN THE DISTRICT COURT OF MONTGOMERY COUNTY

STATE OF MARYLAND

v. Criminal Case No. 5D!!!!

AARON ". #AL$ER%

De&en'an(

MEMORANDUM OF )OINTS AND AUTHORITIES IN SU))ORT OF

DEFENDANT #AL$ER*S MOTION TO DISMISS


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TA+LE OF CONTENTS

Table of Authorities 3

Introduction and Summary of Argument 1

The Text of the Relevant Statutes 4

I. M. !"# !rim. $. %3&'()*b+*,+ is -nconstitutional ecause it Infringes on /reedom of #x0ression rotected by the /irst Amendment )

A. M. !"# !rim. $. %3&'()*b+*,+ Re0resents an -nconstitutional Restriction on!ontent ecause it e0ends on Audience Reaction )

. M. !"# !rim. $. %3&'()*b+*,+ is Also -nconstitutional ecause it #liminatesIm0ortant rotections for /reedom of #x0ression2 Rendering it -nconstitutionallyague 14

II. M. !"# !rim. $. %3&'() is -nconstitutional ecause it Attem0ts to Regulate anInstrumentality of Interstate !ommerce in iolation of the ormant5 !ommerce !lauseof the -.S. !onstitution ,(

III. Maryland has not #stablished ersonal 6urisdiction "ver Mr. 7al8er !onsistent 7ith theue rocess !lause of the /ourteenth Amendment ,3

I. Maryland has /ailed to #stablish robable !ause that Mr. 7al8er has !ommitted a !rime-nder M. !"# !rim. $. %3&'()*b+*,+ in iolation of Maryland $a9 and /ourth

Amendment ,'

!onclusion 31

ii


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TA+LE OF AUTHORITIES

CASES RELATED TO THE $IM+ERLIN FAMILY

K.K 1. v. Hoge2 :o. (;(1S(1,6?&13&3()= *. Md. ,(13+ ,

Kimberlin v. National Bloggers Club, et al. (II2 :o. 3'(=;; *Md. Mont. !o. !ir. !t. ,(1)+ ,

Kimberlin v. Wal!er, et al., :o. 3'(=;; *Md. Mont. !o. !ir. !t. ,(13+ '2 ,)

Kimberlin v. Wal!er (I, :o. (;(1S(()3=,(1, *Md. Mont. !o. ist. !t. ,(1,+ 1

Kimberlin v. Wal!er (I, :o. '444 *Md. Mont. !o. !ir. !t. ,(1,+ 1

Kimberlin v. Wal!er (II, :o. (;(1S(1=


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OTHER CASES

'CL v. )o"nson2 1=4 /.3d 114= *1(th !ir. 1===+ ,,

'guilar v. %e*as2 3


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Patterson v. #tate2 =3( A. ,d 34'2 4(1 Md.


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STATUTES AND RULES OF COURT

1' -.S.!. %1=;1 ,

1' -.S.!. %,,;1A )&;

4< -.S.!. % );1 ;

Maryland !ode2 *1=)T": !ITB A#R 2 /ebruary ,321==; *available at [email protected]=')4DEailbird&roc8+ visitedecember 142 ,(13 1(

..2 W"iser 2 BouTube2 "ctober 1


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!ara ?edge0eth2 9i-eo 3rom lo+al singer :K.K.; surasses A#TT#2 August ,'2 ,(13 *available at [email protected],(13(','D#:T#RTAI:M#:TD13(',=(;4D1,;)Dvideo&from&local&singer&8elsie&8imberlin&sur0asses&)((((&vie9s&onCtem0lateGgaJette+ visited 6une '2 ,(1) '

lair Ames2 5ra+e>s Law, a Cberbulling Bill, Calle- >Lan-mar! Legislation2> A$TIM"R#

S-:

2A0ril 112 ,(13 *available at [email protected]&cityD0h&ho&graces&la9&0asses&,(13(41(&story.html+ visited 6une '2 ,(1) 1=

Illya Somin2 Politi+al Ignoran+e an- ?Calees Law,@ "$"? !":SIRA!B2 6uly 112 ,(11*available at [email protected],(11D(


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INTRODUCTION AND SUMMARY OF ARGUMENT

This case is the latest stri8e in a three and a half year cam0aign to 0revent Mr. 7al8er ,

and 7illiam ?oge III3 from 9riting about rett !oleman imberlin to a general audience and to

0unish them for doing the same. Mr. imberlin has 0reviously filed three criminal charges

against Mr. 7al8er2 and one charge against Mr. ?oge for harassment. All of these charges 9ere

filed in retaliation for 0rotected ex0ression2 and all 9ere nolle 0rossed.4 Mr. imberlin has t9ice

attem0ted to obtain 0eace orders against Mr. 7al8er alleging harassment only to have each of

them denied.)

/urther2 Mr. imberlin has sued Mr. 7al8er three times for engaging in 0rotected

ex0ression. /irst2 he sued Mr. 7al8er2 Mr. ?oge2 and four others for defamation. Kimberlin v.

Wal!er, et al., :o. 3'(=;; *Md. Mont. !o. !ir. !t. ,(13+. In that suit2 he claimed that Mr.

7al8er defamed him by@ *1+ calling him a terrorist *even though he is a convicted terrorist

8no9n as the S0eed9ay omber25 9hose last bomb cost an innocent man his life2 Kimberlin v.

W"ite2 < /. 3d ),


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last August2 the court ruled in the defendantsL favor for the most substantive reason 0ossible@

truth.

Second2 he sued Messrs. 7al8er and ?oge2 and around t9o doJen media 9ebsites and

commentators2 including the reitbart.com ne9s site2 syndicated columnist Michelle Mal8in2 and

tal8 sho9 host >lenn ec8. Kimberlin v. National Bloggers Club, et al. (I2 :o. >6?&13&3()=

*. Md. ,(13+. Mr. imberlin claimed that these 0eo0le 9ere members of a massive

rac8eteering mafia5 out to ma8e false statements about him on the Internet2 in violation of 1'

-.S.!. %1=;1 et seA.K it 9as a civil suit alleging criminal conduct. A motion to dismiss 9as

granted in that case on March 1


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he has been refused each time.' The only reason 9hy Mr. imberlin didnLt file the instant

criminal charge himself is becauseu0on information and beliefthe StateLs Attorney set u0 a

fast trac8ing 0rocess to eliminate frivolous charges filed by Mr. imberlin after he filed criminal

charges against his 9ifeLs boyfriend 6ay #lliott2= and Mr. imberlin ho0ed to evade this fast&

trac8ing5 0rocess. ?o9ever2 the fact that he used his 9ife to ma8e these charges doesnLt change

the fact that they are frivolous.

The charges in this case must be dismissed for three reasons.

/irst2 M. !"# !rim. $. %3&'()*b+*,+ is sim0ly unconstitutional. ecause criminality

turns on the emotional reaction of the audience2 it re0resents a content&based restriction on

ex0ression that cannot survive scrutiny under the /irst Amendment. -.S. !":ST. amend. 12 cls.

3 and 4. /urther2 unli8e the general harassment statute %3&'(32 this statute has stri00ed a9ay

im0ortant 0rotections for free ex0ression2 including t9o 0rovisions that s0ecifically exem0ts

0rotected ex0ression from its coverage. This renders the statute unconstitutionally vague.

/inally2 this statute invades an area of federal dominion under the Interstate !ommerce !lause of

the -.S. !onstitution. -.S. !":ST. art. I2 %'2 cl. 3. As such2 the la9 is unconstitutional both as

a00lied and on its face. It must be struc8 do9n.

Second2 the com0laint is fundamentally about 9ords Mr. 7al8er allegedly 0laced on the

Internet for a general audience2 and there is no allegation that Mr. 7al8er 9rote those 9ords in

the State of Maryland. >iven that Mr. 7al8er is a irginia resident and la9yer 9ho is not

licensed to 0ractice la9 in Maryland2 common sense tells this !ourt he did not 0ublish these

alleged 9ords in Maryland2 and2 in any case2 the state has failed its burden to establish that he

did. Therefore2 under the ue rocess !lause of the /ourteenth Amendment2 -.S. !":ST.

' K.K. v. Hoge2 :o. (;(1S(1,


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amend. 142 %12 cl. 32 Maryland cannot hale Mr. 7al8er into its courts. Sim0ly 0ut2 9hat Mr.

7al8er 9rites 9hile in irginia to a general audience is none of MarylandLs business.

/inally2 the A00lication for Statement of !harges5 *hereinafter A00lication5+ sim0ly

doesnLt su00ort a finding of 0robable cause as the !ommissioner acted as a rubber stam0 to the

false allegations of Mrs. imberlin. Thus2 there is no 0robable cause as reHuired under Maryland

la9 and the /ourth Amendment. -.S. !":ST. amend. 4.

/or these three reasons a charge should not have been submitted and it should no9 be

dismissed for the 0rotection of freedom of ex0ression across the entire country.

THE TE-T OF THE RELE,ANT STATUTES

It is hel0ful to start 9ith the text of the statute Mr. 7al8er is accused of violating. ?e is

accused of violating M. !"# !rim. $. %3&'()*b+*,+2 9hich reads in relevant 0art@

*,+ A 0erson may not use an interactive com0uter service to maliciouslyengage in a course of conduct that inflicts serious emotional distress on aminor or 0laces a minor in reasonable fear of death or serious bodilyinEury 9ith the intent@

*i+ to 8ill2 inEure2 harass2 or cause serious emotional distress to theminorK or

*ii+ to 0lace the minor in reasonable fear of death or serious bodilyinEury.

The statute carries a 0enalty of u0 to a year in 0rison andDor a fine u0 to N)((. Interactive

com0uter service5 is defined in subsection *a+*3+ of the same statute as

an information service2 system2 or access soft9are 0rovider that 0rovides or enables com0uter access by multi0le users to a com0uter server2 including asystem that 0rovides access to the Internet and cellular 0hones.

/inally2 the term course of conduct5 is defined in %3&'(1 as a 0ersistent 0attern of conduct2

com0osed of a series of acts over time2 that sho9s a continuity of 0ur0ose.5

It is also 9orth noting that the entirety of %3&'() a00lies exclusively to Internet activity.

4


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I.

MD. CODE CRIM. L. !/051+2132 IS UNCONSTITUTIONAL +ECAUSE IT

INFRINGES ON FREEDOM OF E-)RESSION )ROTECTED +Y

THE FIRST AMENDMENT

The statute under 9hich Mr. 7al8er is being 0rosecuted is unconstitutional because it

re0resents an im0ermissible content&based restriction forbidden under the /irst Amendment and

because it stri0s a9ay im0ortant safeguards for 0rotected ex0ression ordinarily 0resent in

MarylandLs harassment statutes2 rendering the statute vague and overbroad. Therefore2 the

statute is unconstitutional as a00lied to Mr. 7al8er because it 0unishes 0rotected ex0ression2 and

it is unconstitutional because its vagueness and overbreadth creates a chilling effect on 0rotected

ex0ression.

A. MD. CODE Crim. L. !/05142132 Reresen(s an Un6ons(i(7(ional Res(ri6(ion on

Con(en( +e6a7se i( Deen's on A7'ien6e Rea6(ion

The most obvious fla9 in this statute is that it is de0endent on the reaction of the

audience2 9hich in turn is de0endent on the vie90oints being ex0ressed. That is2 ex0ression that

is normally la9ful suddenly becomes criminal if one 0erson claims they have felt severe

emotional distress5 because of it.

In this M. !"# !rim. $. %3&'()*b+*,+ bears a close resemblance to 1' -.S.!.

%,,;1A*,+*A+2 9hich 9as struc8 do9n by the istrict of Maryland in .#. v. Cassi-2 '14

/.Su00.,d )


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Ty0ically2 a restriction is content&based if it regulates s0eech based on the effectthat s0eech has on an audience. /or exam0le in Plabo $ntertainment 5rou2 theSu0reme !ourt held that the Telecommunications ActLs signal bleed5 0rovision2reHuiring cable o0erators either to scramble sexually ex0licit channels in full or limit 0rogramming on such channels to certain hours2 amounted to a content&

based restriction. ),= -.S. O'(32P '11Q1,2 1,( S.!t. 1'


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restriction because it limits s0eech on the basis of 9hether that s0eech isemotionally distressing to A..

Id. at )'4. This reasoning 9as closely 0arallel to the Su0reme !ourtLs reasoning in a case

decided earlier in the same year2 #n-er v. P"els2 131 S. !t. 1,(< *,(11+. P"els involved a

la9suit against members of the 7estboro a0tist !hurch2 9ho are in the habit of 0ic8eting

funerals for soldiers 9ho died honorably in service to this country 9ith signs such as >od ?ates

the -SADThan8 >od for =D1125 Than8 >od for ead Soldiers25 >od ?ates /ags25 BouLre

>oing to ?ell25 and other vile messages. Id. at 1,13. Albert Snyder sued members of this

church5 for intentional infliction of emotional distress and 9on a siJeable Eudgment in his favor.

The Su0reme !ourt determined2 ho9ever2 that the verdict amounted to an im0ermissible 0enalty

against the 7estboro a0tists for the content of their ex0ression as follo9s@

The record confirms that any distress occasioned by 7estboroLs 0ic8eting turnedon the content and vie90oint of the message conveyed2 rather than anyinterference 9ith the funeral itself. A grou0 of 0arishioners standing at the verys0ot 9here 7estboro stood2 holding signs that said >od less America5 and>od $oves Bou25 9ould not have been subEected to liability. It 9as 9hat7estboro said that ex0osed it to tort damages.

Id. at 1,1=. Thus2 the Su0reme !ourt held that a verdict 0unishing 0rotected ex0ression in a civil

case had to be set aside. The logic of that decision only has more force 9hen the threat is that of

criminal conviction.

The fact that this statute amounts to content regulation is obvious on the face of the

A00lication. Messrs. 7al8er and ?oge 9ouldnLt be facing criminal charges today if they had

9ritten flatteringly about Mr. imberlin. In fact2 many 0eo0le have 9ritten about the imberlin

family. /or instance2 .. 9as featured in T?# 7AS?I:>T": "ST 9hen she 9as eight years

old because she had 9on a video contest s0onsored by $ego. 1( $i8e9ise2 .. has been

1( Monica ?esse2 ' Little #urrise 3or t"e Pri7e 5iver 2 7AS?I:>T": "ST2 :ovember '2 ,((<

*available at [email protected]&dynDcontentDarticleD,((


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attem0ting to start a music career and received 0ositive coverage in T?# #T?#SA >A#TT#2

9hen she 9rote a song about t9o children 9ho died tragically and her video for this song got

over )(2((( vie9s5 on BouTube.11 After she testified in o0en court in the trial last August in

Kimberlin v. Wal!er, et al.2 she 9as 0rominently mentioned in an article in T?# AI$B #AST

the successor 0ublication to :#7S7## as 0art of a discussion of the trial in general.1, The

State of Maryland hasnLt charged any of those authors 9ith harassing the imberlins because the

imberlins evidently didnLt mind 9hat they 9rote.

!onsider this hy0othetical exam0le. The A00lication alludes to the fact that .. is a

musician. She has released an album called :o "rdinary >irl5 and is attem0ting to sell co0ies

of it. Imagine2 then2 that a critic decided to revie9 that album and gave it a blisteringly

unfavorable a00raisal2 0erha0s even ho0ing to convince her to Huit ma8ing music entirelyF

Since such 9riting 9ould a00ear to meet every element of %3&'()*b+*,+2 that critic could be

haled into this !ourt 9ith his ex0ression being declared a crime because he hurt the feelings of a

minor 9ho had 0ut herself into the mar8et0lace. ThatLs certainly one 9ay to hel0 a young

9omanLs +ommer+ial music career@ ma8e it a crime to criticiJe her too harshly. ut all of this

9hich meets every element of the statuteis a content&based restriction on free ex0ression.

Indeed2 in this case2 the a00lication of the la9 is arbitrary. /or instance2 in the fourth

0aragra0h on the first ty0ed 0age2 the A00lication claims that OtPhey have attac8ed her

11 !ara ?edge0eth2 9i-eo 3rom lo+al singer :K.K.; #urasses A#TT#2 August ,'2 ,(13 *available at [email protected],(13(','D

#:T#RTAI:M#:TD13(',=(;4D1,;)Dvideo&from&local&singer&8elsie&8imberlin&sur0asses&

)((((&vie9s&onCtem0lateGgaJette+ visited 6une '2 ,(1) and attached as #xhibit .1, avid 7eigel2 %"e Weir-est #tor 'bout a Conservative 2bsession, a Convi+te- Bomber, an-

%alor #wi3t 0ou Have $ver 6ea- 2 T?# AI$B #AST2 August 3(2 ,(14 *available at htt0@DD999.

thedailybeast.comDarticlesD,(14D('D3(Dthe&9eirdest&story&about&a&conservative&obsession&a&

convicted&bomber&and&taylor&s9ift&you&have&ever&read.html+2 visited on A0ril ,;2 ,(1) and

attached as #xhibit !.

'


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re0eatedly2 directly and indirectly2 through their online 0resence by falsely accusing rett

imberlin of sexual offenses and insinuating and im0uting that O..P is in danger.5 7hat Mrs.

imberlin is not telling this !ourt is that both Mr. imberlin and Mrs. imberlin have accused

Brett Kimberlin of being a 0edo0hile.

"n 6uly ,'2 ,(132 Mrs. imberlin filed criminal charges2 alleging that Mr. imberlin first

seduced her in -8raine 9hen she 9as fourteen years old and he 9as in his forties2 that he

trans0orted her to Maryland 9hen she 9as fifteen and seduced her at least fifty times2 and that he

also attem0ted to seduce her t9elve year old cousin 9ho 9as visiting them. #tate v. Kimberlin2

:o. (;(1S(()3=,(1, *Md. Mont. !o. ist. !t. ,(13+. The A00lication for Statement of

!harges she filed in that case is attached as #xhibit . She had also stated in 0rotective order

0etitions that she 9as afraid for her life and the safety of her daughters2 es0ecially .. 9ho is

not Mr. imberlinLs biological child.13 Attached as #xhibit # is the 0ost Mr. 7al8er 9rote first

accusing Mr. imberlin of being a 0edo0hile. It 9as based significantly on Mrs. imberlinLs

o9n filings. ?o9ever2 in an a00arent confession that she violated M. !"# !rim. $. %=&)(32

she is claiming no9 that her husband 9as innocent of everything she had accused him of and that

Messrs. 7al8er and ?oge someho9 harassed her daughter by Huoting her and believing her 0rior

claims.

Mean9hile2 Mr. imberlin has gone on record admitting that he is a 0edo0hile2 at least in

orientation. According to the 7AS?I:>T": !ITB A#R 2 bet9een stints in 0rison2 Mr. imberlin

released an album called #sca0e from ?ell.5 The 7AS?I:>T": !ITB A#R stated that the

13 See #xhibit / a 0etition for a 0rotective order 9ritten by Mrs. imberlin2 stating that 9hen she

se0arated from rett imberlin2 ?e told me if I 9ill try to ta8e my 8ids 9ith me he 9ill hurt me

and I 9ill see 9hat 9ill ha00en to me.5 !oming from convicted bomber 9ho caused one man to

lose his life and is sus0ected in a murder&for&hire2 any reasonable 0erson 9ould ta8e that threat

seriously. That 0etition for a 0rotective order 9as filed in %etana Kimberlin v. Brett Kimberlin2

:o. (;(,S(1'43&,(13 *Md. Mont. !o. ist. !t. ,(13+.

=


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album described Mr. imberlinLs attraction to underage girls as follo9s *9ith a0ologies for the

language Huoted+@

:ot all the songs on his album9hich Mahern characteriJes as minimally

0roduced and 0retty much rett5have 0olitical overtones2 9hich in someres0ects may be unfortunate@ 7hile trac8s li8e $ifeLs a itch */or a >overnmentSnitch+5 and 7hoLs :ext5 *a song about unfounded sex crime accusations+ havea definite edge to them2 others2 li8e 7aiting to Meet5 and Teen ream5 *bothabout having sex 9ith teenage girls+ are lac8ing in subtlety and tend to ma8e onesHuirm. ut this is exactly 9hat imberlin 9ants.

I say things a lot of 0eo0le are afraid to say. Beah2 Teen reamL is about fuc8inga teenage girl. #very guy 9hoLs seen a good&loo8ing teenage girl has thoughtabout it. ILm tal8ing about that lecherous Huality that every man2 though he 9onLtact on it2 has.5

6ason est2 'rts an- $ntertainment8 4usi+ 6eview2 7AS?I:>T": !ITB A#R 2 /ebruary ,32

1==; *available at [email protected]=')4DEailbird&roc8+ visited

ecember 142 ,(132 attached as #xhibit >. Mr. imberlin doesnLt mind 0eo0le saying he is

attracted to underage girlsas long as they donLt say it is a bad thing.

The A00lication also does not tell this !ourt that the Montgomery !ounty !ircuit !ourt

has already found all of these allegations related to Mr. imberlinLs sexual conduct to be true.

Mr. imberlin sued Messrs. 7al8er and ?oge *and others+ for accusing him of *among other

things+ being a 0edo0hile2 of seducing Tetyana imberlin 9hen she 9as underage *he 9as in his

forties+2 and of attem0ting to seduce her cousin 9ho 9as t9elve years old at the time. After a

t9o&day trial2 6udge #ric 6ohnson granted a motion for directed verdict on the most substantive

grounds 0ossible@ truth. This means that Mr. imberlin is collaterally esto00ed from denying

that he is a 0edo0hile and that he acted on his desires. 7hile the 0rosecution in this case might

not be bound by that ruling2 it is a stunning absurdity that the Montgomery !ounty !ircuit !ourt

1(


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has determined Messrs. 7al8er and ?oge are not civilly liable for having made these

accusations2 but a istrict !ourt !ommissioner believes it is someho9 a crime.14

In another exam0le of the arbitrariness of the a00lication of the la9 in this case2 on the

bottom of the first ty0ed 0age of the A00lication2 Mrs. imberlin com0lains that OtPhey have

0osted comments on blog 0osts tal8ing about O..PLs tittiesL and falsely insinuated sexual

abuse.L5 /irst2 this 0assage is not accusing Messrs. 7al8er or ?oge of tal8ing about ..Ls

breasts or any 0otential sexual abuse2 but that they commented in a discussion 9here it 9as

mentioned 9ithout any attem0t to describe their contribution to that discussion. Thus2 the

A00lication is attem0ting to 0ractice guilt by association 9ithout any attem0t to ex0lain ho9

Messrs. 7al8er and ?oge could be held res0onsible for the 9ords of third 0arties.

?o9ever2 Mr. 7al8er has loo8ed for the 0ost in Huestion and believes it is the one

attached as #xhibit ?. 7hat the relevant discussion *id. at ;4&;;+ concerns is a music video

created by .. and un8no9n others called 7his0er.5 The discussion of her breasts 9as in the

context of discussing ho9 .. 9ore an extremely lo9&cut blouse in that video and leaned

for9ard through about half the video2 dis0laying her cleavage. A screenshot of one such moment

is attached as #xhibit I. The entire video can be vie9ed at [email protected]

vGT;uy&88He(. ecause the video 9as 0ublished 9hen .. 9as only fifteen years old2 one

commenter Huite reasonably 9as re0ulsed by 9hat they called a titty shot5 *id. at ;)+ and others

voiced the concern that an adEudicated 0edo0hile 9as sexualiJing his underage daughter. This is

an entirely valid *albeit crude+ and reasonable criticism of this video that .. and her family has

14 This also seems to run counter to the fact that the common&la9 crime of defamation has been

abolished in Maryland. M. !"# !rim. $. %=&)(


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0ut before the 0ublic2 and it is 0rotected o0inion under the /irst Amendment. ut as if all of that

9as not ridiculous enough2 the very first comment by Mr. ?oge after these statements 9ere made

9as lease leave Miss imberlin alone.51) So according to the A00lication2 it 9as someho9

criminal for Mr. ?oge to as8 0eo0le not to tal8 about .. Accordingly2 this statute is a content&

based restriction on its face and in 0ractice is a ludicrously arbitrary one at that.

Therefore2 %3&'()*b+*,+ is 0resum0tively invalid. See2 e.g.2 .#. v. #tevens2 13( S. !t.

1)overnment bears the burden to rebut that 0resum0tion5+

*internal Huotation mar8s and citations omitted+. Therefore2 it is the burden of the state to

establish that it can survive the strict scrutiny test. As stated in .#. v Plabo $ntertainment

5rou2 ),= -.S. '(32 '13 *,(((+2 that test is formulated as follo9s@ OiPf a statute regulates

s0eech based on its content2 it must be narro9ly tailored to 0romote a com0elling >overnment

interest.5

#ven if the interest is considered com0elling2 courts have regularly held that bans such as

that 0rovided by %3&'()*b+*,+ cannot be narro9ly tailored.5 /or instance2 in 6eno v. 'CL 2

),1 -.S. '44 *1==


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adult 0o0ulation . . . to . . . only 9hat is fit for children.5 O Denver 'rea $-.%ele+ommuni+ations Consortium, In+. v. CC 2 )1' -.S.


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,(1)2 istrict !ourt hearing in K.K. v. Hoge2 .. revealed that rett imberlin actively see8s

out offensive comments about her and brings it to her to read so she can be scandaliJed.

A00lying the 0rinci0les of 6eno and Plabo2 the Cassi- court held that the alleged target of the

offensive comments2 A..25 should be ex0ected to hel0 herself@ ?ere2 A.. had the ability to

0rotect her o9n sensibilities sim0ly by avertingL her eyes from the efendantLs log and not

loo8ing at2 or bloc8ing his T9eets.5 '14 /.Su00.,d at )').1


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there is no legal 0ur0ose5 to the alleged conduct. 7hen %1,3 9as re&codified as M. !"#

!rim. $a9 %3&'(32 these 0rovisions 9ere 0reserved 9ith no relevant change. 7hen %3&'() 9as

0assed2 originally 9ithout any s0ecial 0rovisions a00lying to minors2 the same limitations 9ere

a00lied.1' ut 9hen the original 0rohibitive language 9as re&codified as %3&'()*b+*1+2 and a

subsection *b+*,+ 9as added2 a00lying s0ecially to minors2 these 0rotections for free ex0ression

9ere stri00ed from subsection *b+*,+.

The 5allowa court 9as 0articularly im0ressed 9ith %1,3Ls statutory assurance that

OtPhis section does not a00ly to any 0eaceable activity intended to ex0ress 0olitical vie9s or

0rovide information to others5 and its reHuirement as an element of the offense that the state

0rove that the efendant had no legal 0ur0ose.5 As the 5allowa court observed@

%1,3 ex0ressly eliminates constitutionally 0rotected s0eech from its ambit.Section 1,3 does not a00ly to any 0eaceable activity intended to ex0ress 0oliticalvie9s or 0rovide information to others5 and the conduct to be 0rohibited musthave no legal 0ur0ose.5 O(8er s(a(es 8ave 6on6l7'e' (8a( similar res(ri6(ivelan7ae 8els (o a4a(e an; over 4rea'(8. !f. OM. atherine oychu82 're#tal!ing Laws n+onstitutionall 9ague or 2verbroa- '' :7. -.$.R #.


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assuring the 0ublic that /irst Amendment freedoms 9ere safeguarded so that their 0rotected

ex0ression 9ould not be chilled for fear of being 0rosecuted under a vague la9.

The 0resent general5 harassment statute2 M. !"# !rim. $a9 %3&'(32 includes the

same limitations2 9orded virtually identically *see %3&'(3*a+*3+ and *b++. As recently as early

,(132 M. !"# !rim. $a9 %3&'() also included those limitations. This is ho9 the statute read

then *in relevant 0art+@

*b+ rohibited. && A 0erson may not maliciously engage in a course of conduct2 throughthe use of electronic communication2 that alarms or seriously annoys another@

*1+ 9ith the intent to harass2 alarm2 or annoy the otherK

*,+ after receiving a reasonable 9arning or reHuest to sto0 by or on behalf of theotherK and

*3+ 9ithout a legal 0ur0ose.

U

*d+ #xce0tion. && This section does not a00ly to a 0eaceable activity intended to ex0ress a 0olitical vie9 or 0rovide information to others.

See #xhibit 6.

?o9ever2 as it stands today2 %3&'() eliminates these t9o 0rotections 9hen a minor is

involved. 7hat 9as originally contained in subsection *b+ 9as 0laced in a ne9ly&designated *b+

*1+ and the entirety of *b+*,+ 9as added2 as follo9s@

*b+ rohibited. &&

*1+ A 0erson may not maliciously engage in a course of conduct2through the use of electronic communication2 that alarms or seriously annoys another@

*i+ 9ith the intent to harass2 alarm2 or annoy the otherK

*ii+ after receiving a reasonable 9arning or reHuest to sto0 byor on behalf of the otherK and

1;


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*iii+ 9ithout a legal 0ur0ose.

*,+ A 0erson may not use an interactive com0uter service tomaliciously engage in a course of conduct that inflicts seriousemotional distress on a minor or 0laces a minor in reasonable fear

of death or serious bodily inEury 9ith the intent@

*i+ to 8ill2 inEure2 harass2 or cause serious emotional distress tothe minorK or

*ii+ to 0lace the minor in reasonable fear of death or serious bodily inEury.

So the element reHuiring the state to 0rove the defendant acted 9ithout a legal 0ur0ose5 exists

solely as a limitation on subsection *b+*1+. Mean9hile2 subsection *d+ 9as changed to read@

#ubse+tion (b(1 of this section does not a00ly to a 0eaceable activity intended toex0ress a 0olitical vie9 or 0rovide information to others.

*em0hasis added+. In other 9ords2 the very language that the !ourt of A00eals 0raised as

ex0ressly eliminatOingP constitutionally 0rotected s0eech from Othe statuteLsP ambit25


25/39

could not be 0rosecuted for engaging in free ex0ression2 the $rie court declared ordinary 0eo0le

9ould believe that the la9 a00lied to 0rotected ex0ression2 and2 therefore2 the la9 9as vague and

unconstitutional. -nder %3&'()=b+*,+2 Mr. 7al8er can have a la9ful 0ur0ose2 Mr. 7al8er can

engage in ex0ression fully 0rotected by the !onstitution2 and he must still 9onder if he 9ill be

haled into this !ourt 9ith his freedom at Eeo0ardy. Indeed2 that is 0recisely 9hat has ha00ened

in this case.

In )o"nson v. %ransortation 'gen+, #anta Clara Ct.2 4'( -.S. ;1; *1='uido !alabresi2 the court

9rote@

As one scholar has 0ut it2 7hen a court says to a legislature@ Bou *or your 0redecessor+ meant W2L it almost invites the legislature to ans9er@ 7e did not.L >. !alabresi2 A !"MM": $A7 /"R T?# A># "/ STAT-T#S 31&3, *1=',+.

Id. at ;,= n.


26/39

reaffirmed their commitment to 0rotecting freedom of ex0ression2 and as late as early ,(132 %3&

'() continued to demonstrate MarylandLs commitment to freedom of ex0ression. Thus2 9hen

the Maryland Assembly refused to include such limiting language in the current %3&'()*b+*,+2

they demonstrated they 9ere no longer interested in 0rotecting free ex0ression.

Indeed2 given the disdain the legislature has sho9n for freedom of ex0ressionado0ting

language declared unconstitutional after the istrict of MarylandLs decision in Cassi-2 and

eliminating language considered critical to a harassment statuteLs constitutionality in 5allowa

the sus0icion arises that the fact this la9 is unconstitutional is intentional. It suggests that in a

moment of moral 0anic2

1=

the Assembly 0assed a la9 that 9as flagrantly unconstitutional ho0ing

the Maryland 6udiciary 9ould do their dirty 9or85 for them. They ex0ected the courts to stri8e

do9n the la9 and give legislators cover@ >ee2 9e 9anted to do something to 0rotect children2

but the courts 9ouldnLt let us.5 7hatever their motives2 it is time to tell the Maryland Assembly

that if they actually 9ant a constitutional la9 that 9ould 0rotect children2 they need to go bac8 to

the dra9ing board and try again. It is time to stri8e do9n this la9 as unconstitutional and

dismiss this criminal case.

1= Subsection *b+*,+ is colloHuially 8no9n as >raceLs $a925 0assed after >race Mc!omas

committed suicide2 re0ortedly after being made fun of online by students at her school. #ee2

lair Ames2 5ra+e>s Law, a Cberbulling Bill, Calle- >Lan-mar! Legislation2> A$TIM"R# S-:2

A0ril 112 ,(13 *available at [email protected]&

cityD0h&ho&graces&la9&0asses&,(13(41(&story.html+ visited 6une '2 ,(1). Ilya Somin2 rofessor

of la9 at >eorge Mason -niversity 9rote that My rule of thumb is a strong 0resum0tion that

any la9 named after a victim is 0oor 0ublic 0olicy enacted by legislators 9ho confuse voting

against a la9 9ith voting against an innocent 0erson.5 Illya Somin2 Politi+al Ignoran+e an-

?Calees Law,@ "$"? !":SIRA!B2 6uly 112 ,(11 *available at

[email protected],(11D(


27/39

Also2 in the name of Eudicial economy Mr. 7al8er as8s this court to dismiss Mr. ?ogeLs

case as 9ell and to instruct the !ommissioners "ffice that this statute is a dead letter in

Montgomery !ounty.

II.

MD. CODE CRIM. L. !/05 IS UNCONSTITUTIONAL +ECAUSE IT ATTEM)TS TO

REGULATE AN INSTRUMENTALITY OF INTERSTATE COMMERCE IN

,IOLATION OF THE


28/39

Accordingly2 federal courts have regularly held that the states may not regulate the

content of the Internet. /or instance2 in Pata!i2 that court confronted another statute designed to

0rotect minors2 this time from obscenity.,( There2 the State of :e9 Bor8 had 0assed a statute

ma8ing it a felony to allo9 minors to vie9 obscene materials over the Internet. The Pata!i court

held that the statute 9as unconstitutional under the negative5 or dormant5 commerce clause

holding that even if there 9ere no conflict 9ith federal regulation2 states could not regulate in

that domain. The Pata!i court held that the content of the Internet could only be regulated by the

federal government *and not the states+ because the nature of the Internet demanded uniformity

across the -nited States much the 9ay that railroads and truc8s did in #out"ern Pa+. Co. v.

'ri7ona e* rel. #ullivan2 3,) -.S.


29/39

Id. at 1'3K see also 'meri+an Boo!sellers oun-ation v. Dean2 34, /.3d =; *,nd !ir. ,((3+

*endorsing the Pata!i courtLs reasoning+K 4i-west %itle Loans, In+. v. 4ills2 )=3 /.3d ;;( *


30/39

therefore agree 9ith the district court that section 3(&3


31/39

0ersonal Eurisdiction in each State in 9hich the information is accessed.5 Care3irst o3 4-., In+.

v. Care3irst Pregnan+ Ctrs., In+.2 334 /.3d 3=(2 3== *4th !ir. ,((3+ *internal Huotation mar8s

omitted+.,1 Therefore2 this !ourt may only exercise 0ersonal Eurisdiction over a nonresident

defendant 9hen he or she *1+ directs activity into the OforumP State2 *,+ 9ith the manifest intent

of engaging in business or other interactions 9ithin the State2 and *3+ that activity creates2 in a

0erson 9ithin the State2 a 0otential cause of action cogniJable in the StateLs courts.5 'L# #+an,

In+. v. Digital #erv. Consultants, In+.2 ,=3 /.3d


32/39

in each State in 9hich the information is accessed.5 O,=3 /.3dP at


33/39

exam0le 9hat ma8es America great. 7e do not Eudge 0eo0le by race2 religion or 9ho your 0arents are2 even 9henyouLre a traitor. 7e do not Eudge your children by your treachery2 even 9hen youLre a terrorist.

See #xhibit . Indeed2 the entire 0ost 9here Mr. 7al8er first made this 0oint is attached as

#xhibit $. In that 0ost2 Mr. 7al8er ex0lains that is 9as sharing 9ith his readers 0ublic

documents2 but that I 9ill as usual be redacting 0ersonal information from it2 as 9ell as any

information about Orett imberlinLsP eldest daughter.5 That is2 even though the information is

0ublic2 Mr. 7al8er still redacted some information to 0rotect the 0rivacy of the imberlins

going as far as never to mention ..Ls real name on his blog. 7hen ex0laining 9hy Mr. 7al8er

believed in being decent to9ard the children of a man 9ho has been tormenting him for years

9ith false charges2 0eace order 0etitions and la9suits2 Mr. 7al8er 9rote@

/or me2 one of the great undera00reciated clauses of our !onstitution is in theTreason clause. It says@ but no Attainder of Treason shall 9or8 !orru0tion of lood2 or /orfeiture exce0t during the $ife of the erson attainted.5 The second 0art of that is fairly easy to understand2 but 9hat about the firstOFP 7hat the helldo they mean by the corru0tion of the bloodF

7ell2 the ans9er is they are saying you cannot 0unish the family of a traitor asthough they 9ere traitors2 too. It is a talisman of 9hat ma8es this country great./undamentally 9e donLt care 9ho your ancestors 9ere. They could have been8ings2 they could have been beggars. They could have been heroes and theycould have been terrorists. 7e donLt care. ecause you are Eudged as you.

So not 8no9ing this girl2 she enEoys the 0resum0tion of innocence that belongs toall strangers. >iven the 9ay rett imberlin lies about everything2 I have noreason to thin8 he is telling her the truth about 9hat is going on and therefore Ihave no reason to thin8 she a00roves of 9hat is actually ha00ening here. If she8ne9 the truth she 9ould 8no9 that her father has been 9or8ing for years tosu00ress the truth about his illegal and immoral conduct2 and his criminal andimmoral conduct2 combined 9ith his attem0t to silence his critics2 has brought allthis attention on this family.

ut allegedly a fe9 0eo0le have harassed her online2 on her faceboo8 and the li8e.There is al9ays concern2 of course2 that rett or his allies might be fa8ing a lot of that behavior. ut regardless2 if any 0erson dra9s any negative conclusion abouther based on her father2 they are not being charitable enough. They are forgetting

,;


34/39

that even 9hen 9e are tal8ing about enedict Arnold2 9e do not hold the childres0onsible for the conduct of the father.

*Internal hy0erlin8s omitted+. #very other time Mr. 7al8er has discussed the conce0t of the

corru0tion of the blood25 he has either done so to reiterate that 0oint or to 0oint out 9here Mr.

imberlin has 0reviously lied about 9hat he said.,, So2 far from saying .. should be targeted

because of her fatherLs vile behavior2 Mr. 7al8er has made an eloHuent and morally 0ersuasive

argument that she should not be. ?e has said literally the o00osite of 9hat the A00lication

claims.

Indeed2 every allegation of fact in the A00lication can be divided into t9o categories.

The first category is outright lies such as the claim Mr. 7al8er said .. should be targeted

because of the doctrine of the corru0tion of the blood or any other reason. The second is half&

truths 0resented in a 9ay that manifests a deliberate intent to mislead2 such as 9hen the

A00lication claimed someho9 it 9as harassment of .. for 6ohn ?oge to tell others not to even

criticiJe her online sura )&14. 7hile it 9ould ta8e a t9o hundred 0age brief and thousands of

0ages of exhibits to sho9 ho9 every allegation in the A00lication is either false or misleading in

this fashion2 the exam0les 0rovided here demonstrate 9hy this !ourt canLt sim0ly ta8e this

com0laining 9itnessLs 9ord for anything. Indeed2 since Mrs. imberlin is no9 claiming that

facts contained in a 0revious A00lication she had filed are false2 it leads to the classic Huestion of

9as she lying then2 or is she lying no9F5 If Mr. 7al8er allegedly 9rote something2 the state

must document 9hat he 9rote2 9here he 9rote it and 0rovide evidence that he actually 9rote it.

Mr. 7al8erLs out&of&state 9ritings should not be subEected to MarylandLs Eurisdiction unless the

state can 0rovide actual evidence that Mr. 7al8er targeted his 9riting at a Maryland audience.

,, Mr. ?oge has similarly only mentioned the conce0t of the corru0tion of the blood to 0oint out

that Mr. imberlin had lied about 9hat Mr. 7al8er said.

,


35/39

Accordingly2 this case should be dismissed for lac8 of 0ersonal Eurisdiction2 or in the

alternative2 this court should reHuire the state to 0rovide actual evidence that Mr. 7al8er can

la9fully be subEected to MarylandLs Eurisdiction.

I,.

MARYLAND HAS FAILED TO ESTA+LISH )RO+A+LE CAUSE THAT MR. #AL$ER

HAS COMMITTED A CRIME UNDER MD. CODE CRIM. L. !/051+2132 IN

,IOLATION OF MARYLAND LA# AND THE FOURTH AMENDMENT

In the 0ast2 Mr. 7al8er has s0o8en to the !ommissioners "ffice about its 0ractice of

charging Mr. 7al8er 9ith crimes either based on no evidence or based on the 9ord of a 0erson

incom0etent to 0rovide evidence.,3 They have claimed that they do not gather evidence or 9eigh

the credibility of the accuser.

This is 9rong as a matter of blac8 letter la9 and because it means Mr. 7al8er is being

seiJed 9ithout 0robable cause2 it violates the /ourth Amendment of the -.S. !onstitution as an

unla9ful seiJure2 -.S. !":ST. amend. 42,4 and it violates Maryland la9 as 9ell.,) As stated in

6eisterstown Lumber Co. v. 6oer 2 =1 Md.A00.


36/39

A. ,d 34'2 3


37/39

Messrs. 7al8er and ?oge absolutely no notice of 9hat they are accused of so they can 0re0are

their defense2 and these allegations do not su00ort 0robable cause.

$i8e9ise2 on the last 0aragra0h on the first ty0ed 0age the A00lication alleges that

Messrs. 7al8er and ?oge incited5 third 0arties to 9rite bad things about .. utting aside

that there is no allegation that these third 0arties actually did anything criminal2 there also is no

attem0t to meet the constitutional test for incitement under Bran-enburg v. 2"io, 3=) -.S. 4442

3=) *1=;=+2 namely that

the constitutional guarantees of free s0eech and free 0ress do not 0ermit a State toforbid or 0roscribe advocacy of the use of force or of la9 violation exce0t 9here

such advocacy is directed to inciting or 0roducing imminent la9less action and isli8ely to incite or 0roduce such action.

This test reHuires three elements 1+ advocacy of the use of force or la9lessness2 ,+ directed to

inciting or 0roducing imminent la9less action and 3+ li8elihood that it 9ould 0roduce such

action. The A00lication sim0ly states a legal conclusionthat Messrs. 7al8er and ?oge incited

some undefined action9ithout even alleging that anything they 9rote met the first 0rong@

advocacy of violence or la9lessness *and it didnLt+.

It is not2 as a 0ractical matter2 0ossible to revie9 every allegation to demonstrate ho9 it is

lac8ing in any foundation in this motion. The 0ur0ose of citing these exam0les is to be

illustrative2 not to com0rehensively list all the fla9s in the A00lication. 7ith each allegation2 if

the commissioner had meaningfully and critically examined the claims2 he or she 9ould have

realiJed there 9as nothing there. In truth2 the online 9riting of Messrs. ?oge and 7al8er sim0ly

amounts to ordinary Eournalism and commentary *and 0roviding 0ublic documents+2 and it is

neither immoral nor illegal. Thus2 this case re0resents nothing more than the rage of a habitual

criminal *Mr. imberlin+ at having his conduct ex0osed. Accordingly2 9ith the A00lication

failing utterly to establish 0robable cause2 this charge should be dismissed.

3(


38/39

CONCLUSION

Mr. 7al8er has demonstrated that the charges against him should be dismissed for four

se0arate reasons. /irst2 M. !"# !rim. $. %3&'()*+*,+ is unconstitutional under the /irst

Amendment to the -.S. !onstitution2 because it is an unconstitutional content&based limitation

on free ex0ression and because it vague and overbroad since it stri0s out im0ortant 0rotections

for 0rotected ex0ression. Second2 %3&'() is unconstitutional as a 9hole because it invades an

area reserved for national regulation under the Interstate !ommerce !lause of the -.S.

!onstitution. Third2 the state has not established that it can exercise extraterritorial Eurisdiction

over Mr. 7al8er consistent 9ith the ue rocess !lause of the /ourteenth Amendment. /inally2

the vague and conclusory factual allegations in the A00lication2 lac8ing in s0ecificity or even any

base of 8no9ledge2 do not establish 0robable cause. Through seven civil suits2 and no9 six

criminal charges2 the imberlin family has been trying to convince someone2 anone2 that

Messrs. 7al8er and ?oge 0eacefully 9riting about Mr. imberlin is criminal or tortious and that

it must be sto00ed. This !ourt should dismiss this latest attem0t to silence them for the grubby

attem0t to censor 0rotected ex0ression that it is2 and2 in the name of Eudicial economy2 dismiss it

for both Messrs. 7al8er and ?oge.

7?#R#/"R# efendant 7al8er reHuests that all charges be dismissed2 9ith 0reEudice.

31


39/39

Tuesday2 A0ril ,'2 ,(1) Res0ectfully submitted2

Aaron 6. 7al8er2 #sH.a arX 4''',

Documents

Walker Memorandum in Support of Motion to Dismiss (Redaction)