Aaron Walker, the useless attorney now suing Maryland to overturn the state’s harassment statute, has received three interesting new endorsements for his years-long smear campaign against the Kimberlin family. Tellingly, however, none of these conservative or libertarian legal minds acknowledge Walker’s juvenile victims at all, instead pressing the court with hypothetical scenarios of potential future infringements on free speech. It’s almost like they don’t want anyone to see what they’re doing.
A well-known legal columnist has filed a friend-of-the-court brief on behalf of something called the Marion B. Brechner First Amendment Project, citing the help of Michael F. Smith, who has represented Michelle Malkin against Brett Kimberlin in court.
Writing about his amicus brief in the Washington Post, libertarian law professor Eugene Volokh complains that the statute at issue is a “content-based” speech restriction, and that its terms are too subjective.
Grace’s Law makes it a misdemeanor to use the internet “to maliciously engage in a course of conduct that inflicts serious emotional distress on a minor or places a minor in reasonable fear of death or serious bodily injury with the intent (1) to kill, injure, harass, or cause serious emotional distress to the minor or (2) to place the minor in reasonable fear of death or serious bodily injury.”
Volokh and Calvert and Smith criticize Grace’s Law because (they say) the term “emotional distress” is too vague and will be abused by zealous prosecutors.
“Consider a high-school girl who wants to write a Facebook post revealing the details of her breakup with a cheating ex-boyfriend,” Volokh opines. “She may well be subject to criminal prosecution” because she causes her ex “serious emotional distress.”
[E]ven if the girl’s intentions are good — if she just wants to warn her acquaintances so that they will not be fooled by the ex in the future, or she just wants to truthfully explain to her friends why she is feeling depressed — she may worry that a prosecutor, judge, and jury will mistakenly assume that she is motivated by a desire to seriously distress.
In other words, petty jealousy might be seen as petty revenge, and then criminalized. But while I’ve never heard of a teenager who worried for one instant about what prosecutors, judges, or juries think before they did any damn thing, I have heard of Grace McComas, whose name is completely absent from Volokh’s arguments.
The reason is not a mystery.
Grace claimed that she was drugged and raped by a neighbor from a well-connected local family. Neither the school nor the police would protect her from the alleged rapist, however, who then used social media to harass her on a daily basis in retaliation. After she committed suicide, Grace’s parents lobbied the state legislature to protect families like theirs with ‘Grace’s Law,’ the very statute that Mr. Volokh calls an infringement on free speech.
What he’s really arguing, you see, is that accused rapists should be free to destroy their victims online, and that we should make this choice as a society out of deep concern that some hypothetical future student might be charged for slamming a romantic ex. See how that works?
Similarly, Volokh has managed to dismiss the entire topic of Aaron Walker’s war on the Kimberlin family with a single anodyne sentence in the Post. In the online version of his column, Volokh has included a Google search link optimized to show Walker’s blog as the top result.
This is yet another evasion: Volokh says nothing about the stalker’s shrine that Walker’s former employers found in his office, his alleged assault of Kimberlin in the Rockville, Maryland courthouse, his contempt charge, his vexatious lawsuits, the time he claimed Mrs. Kimberlin was his client, or the warning Walker got from a judge about his sick fascination with the Kimberlin daughters, or his strange need to keep defending the deranged libels of other people who obsess over Mr. Kimberlin, or his false reports to law enforcement agencies.
The reason Volokh is so careful not to link here in any way, even indirectly? Because then Post readers might find out that Walker is not just a useless attorney and a creep, but also a gigantic hypocrite. For two years, Walker gave legal advice to fellow Kimberlin-obsessive William Hoge in a campaign to stifle the free speech of a former BU writer named Bill Schmalfeldt through Maryland courts; in fact, he’s still trying to extort money from Schmalfeldt right now. Where was Volokh’s concern for the First Amendment when an avowed liberal was the one being tormented?
Perhaps he was too busy hanging out with fellow right wing attorney Michael Smith.
Their apparent friendship is a typical example of how ‘libertarian’ blatherings about freedom and liberty provide a rhetorical fig leaf for the same old right wing authoritarianism. Smith’s friendship with Michelle Malkin, who more or less invented the art of doxing children and harassing families through social media, probably says something important about his ‘family values,’ too.
In fact, Smith’s website proudly says that he’s filed a number of amicus curiae briefs in support of “traditional marriage,” including this one which endorses the work of Ryan T. Anderson, a Heritage Foundation research fellow on the losing side of Obergefell v Hodges. A Catholic, Anderson is also anti-birth control (because smaller government, natch), works for an anti-LGBT propaganda shop, and argues plain hypocrisies as profound truths. Justice Clarence Thomas mentioned Anderson’s work in his dissent from Obergefell because of Smith’s brief, a fact that makes Smith very, very proud. Such an achievement!
It probably won’t surprise you to learn that, while Volokh ‘evolved‘ on marriage equality a few years before the Obergefell ruling, he spent many years giving anti-LGBT activists a platform to spew hate anyway, because free speech.
Having cut his teeth on anti-Muslim incitement, Aaron Walker became the leader of a peculiar online hate group that passionately despises Brett Kimberlin. Apparently, Volokh approves of what they have chosen to do with their lives.
Incidentally, on his website, Smith scores Kimberlin v National Bloggers Club as a victory by dismissal. But sources close to the case tell BU that Smith was in fact forced to reach a monetary settlement with Kimberlin on behalf of Michelle Malkin. Both Smith and Brett Kimberlin declined to comment for this article.
As mentioned above, Volokh filed his brief in the name of the Marion B. Brechner First Amendment Project, a non-profit, allegedly nonpartisan, organization focused on free speech issues, such as “defending the right to controversial expression.” Associated with the University of Florida College of Journalism & Communications, the Project’s director is Clay Calvert, who is an oft-quoted expert on the subject of anti-bullying laws.
While Calvert admits that governments have “a compelling interest in protecting minors from harassment via online social media,” he has consistently argued that anti-cyberbullying laws are unconstitutionally overbroad. And look who is consistently quoted in the same articles with Mr. Calvert?
“The good news for municipalities and states concerned with cyberbullying is the court’s clear recognition of a compelling interest in protecting minors from harassment via online social media,” says University of Florida professor and free speech expert Clay Calvert. “The bad is that those entities now need to go back to their legislative drawing boards to better and more narrowly craft their efforts to curb it.”
“Bullying isn’t a well-defined term,” says UCLA law professor Eugene Volokh. “Most, maybe all, states have bans on ‘harassment,’ but a lot of them are focused on unprotected speech categories, such as threats or fighting words.”
Calvert is also dismissive of laws against ‘revenge porn,’ which he considers a passing legislative fad. People whose lives are destroyed through libelous posts containing intimate pictures should just know better than to overshare in this day and age, Calvert says.
But here, too, he admits that minors are a different class — that controversial expression which might be considered fair and free when aimed at an adult may not be treated the same way if the subject is a child. Dirty cell phone pics of a 14 year-old are criminal where the same photos taken four years later are not. The Kimberlin children enjoy certain immunities from adult consequences, and have special protections against adult exploitation, because they lack the full legal rights of an American citizen. And in most cases envisioned by Grace’s Law, the perpetrator will also be a minor.
Finally, Aaron Walker’s case has been dismissed by Maryland courts twice because he was never actually harmed by Grace’s Law; the state’s attorney declined to press any charges. Though disappointing to the Kimberlins, that demonstration of prosecutorial discretion suggests that the state harassment statute is not quite the perilous constitutional ‘slippery slope’ these critics would have us fear, and that the only ‘principle’ at stake is Walker’s desire to inflict his disturbing fantasies on the Kimberlin family unimpeded.