Moving on to my petition for a writ of certiorari with the Maryland Court of Appeals, our version of a “Supreme Court.”
My brief lays out what I think is a very carefully researched, documented, case law-cited reason for the CofA to take the appeal under consideration.
My copy of the Answer filed by Zoa Barnes, the Westminster, Md., Family Law and Education lawyer that WJJ Hoge III retained (for some reason) to defend his, IMHO, unconstitutionally-granted peace order seems like a quarter-assed, “well, I have to file a response, so here goes” sort of reply.
In my brief, five questions are raised. I will ask them one at a time, give you the rationale behind how I want the Court to answer the question, then I will give you Barnes’ reply.
QUESTION 1: WHETHER A PEACE ORDER PROHIBITING A JOURNALIST FROM USING TWITTER TO INFORM CITIZENS ABOUT A PUBLIC FIGURE CONFLICTS WITH AND VIOLATES THE FIRST AMENDMENT RIGHT TO FREE SPEECH.
I argue that it does conflict with and violate my First Amendment right to free speech. Since receiving his Peace Order, Hoge has repeatedly threatened me with arrest, imprisonment and more criminal charges if I inadvertently or intentionally use the @wjjhoge “at mention” in a Twitter comment about him, in a direct tweet, a reply to someone else’s tweet that already contains the @wjjhoge mention, or otherwise. I point to several examples of how the First Amendment bars efforts to criminalize free speech. I cite the case of Texas v. Johnson and Republican Party of Minn. v. White, two Supreme Court cases. In Texas v. Johnson, SCOTUS decided that conduct FAR more egregious than my tweets to Hoge — the burning of an American flag — was protected by the First Amendment. In Republican Party of Minn. v. White, SCOTUS decided that a Minnesota rule saying candidates for judicial office could not discuss their views on disputed legal issues was unconstitutional. I argued that the content of my tweets was protected by the First Amendment, citing Hustler v. Falwell, in which SCOTUS decided that the First Amendment’s free-speech guarantee prohibits awarding damages to public figures to compensate for emotional distress intentionally inflicted upon them. I cited New York Times v. Sullivan, in which SCOTUS established the “actual malice” standard, which requires that the plaintiff in a defamation or libel case prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity. Because of the extremely high burden of proof on the plaintiff, and the difficulty in proving essentially what is inside a person’s head, such cases—when they involve public figures—rarely prevail. I cited Boos v. Barry, in which SCOTUS stood by its longstanding refusal to punish speech because the speech in question may have an adverse emotional impact on the audience. I cited Ashcroft v. the Free Speech Coalition, in which SCOTUS struck down two overbroad provisions of the Child Pornography Prevention Act of 1996 because they abridged “the freedom to engage in a substantial amount of lawful speech.” Finally, I brought out the big gun and cited US v. Cassidy, in which a Federal District Judge ruled that “tweets” and “blogs” by their very nature can not be sources of “harassment” or cause “extreme emotional distress.”
Now, I don’t want anyone to think I am paraphrasing Zoa Barnes’ answer to any of these questions. So I will copy and paste her actual reply to the very complicated, well-cited question posed above. This is from her actual answer that I got in the mail yesterday, that the CofA will receive Monday,
That’s it. That’s the answer. No case law. No reason given. No citations. No proof. Not even a rebuttal about the applicability of any of the cited SCOTUS or Federal District Court cases.
Just “Because I Said So.”
QUESTION 2: WHETHER THE PEACE ORDER IN THIS CASE CONFLICTS WITH THE PLAIN LANGUAGE OF THE PEACE ORDER STATUTE BY PROHIBITING ONLINE CONTACT.
I argued that the Peace Order statute lists a series of nine acts that justify the issuance of a peace order. Bodily harm, fear of bodily harm, assault, rape, stalking, false imprisonment, harassment, trespass and malicious destruction of property. I have been charged with harassment. All charges have been dropped. I have never been convicted of harassment. And nowhere in the Peace Order statute is there a mention of online communication as being a source of harassment. In fact, I take you back to US. v. Cassidy which says Tweets can NOT be considered harassment. However, the Carroll County Circuit Court decided, on appeal from Hoge, that despite the lack of a conviction, despite the settled law of US v. Cassidy, that tweets DO constitute harassment, and issued the peace order. Since the legislature did not see fit to include electronic communication as “harassment” in the Peace Order statute, the CCCC erred in expanding the peace order statute to INCLUDE electronic communication.
Once again, Ms. Barnes responds.
QUESTION 3: WHETHER THE WORK OF A JOURNALIST FALLS UNDER THE “PEACEABLE ACTIVITY” AND “LEGAL PURPOSE” EXCEPTIONS OF THE PEACE ORDER STATUTE.
I argued that since I am a freelance journalist, even though I officially retired due to Parkinson’s disease, I can still call myself a journalist according to “The News Manual: A professional resource for journalists and the media.”
I argue in my supplement that the “peaceable activity” and “legal purpose” and “intended to express a political view or provide information to others” carveouts in the two state harassment laws are met. And they are met WHETHER OR NOT I am a journalist. But in asking uncomfortable questions, as a journalist, I am engaging in my first amendment right to free expression — a “legal purpose.” If the subject of my questioning on Twitter doesn’t like the questions, they can ignore me, block me, tell me to piss up a rope, or any combination thereof.
Zoa’s answer? In it’s entirety?
So, it is Zoa Barnes who decides who is or is not a journalist. Not the above mentioned reference and dozens of others. ZOA says I am not a journalist, therefore I am NOT a journalist. How can the CofA argue with THAT logic? No citations. Nothing to prove against the overwhelming evidence that I am and have been a journalist in some form or another for over 30 years. Just like she did with my Parkinson’s disease in her answer to my motion to reconsider the CofA’s denial of my motion to stay the peace order pending appeal, Zoa Barnes has ERASED 30-plus years of history. Astounding.
QUESTION 4: WHETHER A PEACE ORDER PROHIBITING A JOURNALIST FROM CONTACTING THE SUBJECT OF A STORY CONFLICTS WITH THE RULES OF ETHICS PERTAINING TO JOURNALISTS.
There are a lot of them. Here’s the second one listed.
Now, how does a journalist — encumbered by a peace order, “diligently seek out subject of news stories to give them the opportunity to respond to allegations of wrong doing” when the subject of a news story can PUT YOUR ASS IN JAIL FOR ATTEMPTING TO CONTACT HIM? Imagine this scenario.
“Woodward? Bernstein? Just got a call from Nixon. He says you are harassing him, so he’s slapped you with a peace order. If you contact him about Watergate OR ANYTHING ELSE, FOR ANY REASON, he can put you in jail. Got it?”
Well, not THAT’S a frightening scenario, is it not? Journalists being forbidden from contacting news sources under threat of arrest? I think so, too!
Zoa says it’s irrelevant.
That’s it. There’s her answer to the question. It’s irrelevant. The right of a reporter to legally contact a source, in accordance with the rules of ethics of the Society for Professional Journalists. Irrelevant. Wow.
QUESTION 5: WHETHER THE PEACE ORDER ISSUED BY A STATE CIRCUIT JUDGE AGAINST A DISABLED PERSON UNDER THE THREAT OF IMPRISONMENT CONFLICTS WITH THE AMERICANS WITH DISABILITIES ACT.
I argue in my petition that it does so by limiting my ability to engage in my employment, limited as it is. My neurologist and any competent Parkinson’s doctor will tell you that keeping a Parky’s mind engaged and working is therapeutic. I have the right, under the ADA, to engage in my employment up to the level of my ability to do so and the government is required to accommodate my disability. I’m not seeking any special accommodations. But the Peace Order does exactly the OPPOSITE by restricting and limiting my ability to work, to engage in my employment, to supplement my meager retirement income with freelance work if the subject of a story can slap a peace order on me preventing me from doing what the Code of Ethics DEMANDS of me.
No biggie, Zoa says.
Now, to be absolutely fair, she does take a whole page to argue her case for her sniffing dismissal of my questions.
A friend of mine lobbied real hard for me to make another filing, an affidavit perhaps, proving that I am and have been a journalist. But I declined. The CofA has all the info it needs to make a decision. And at any rate, I don’t expect a decision on the petition for a writ for awhile. They don’t seem to have a “set in concrete” standard for when they consider petitions, but a check of their website shows they tend to accept petitions on the third Thursday or Friday of the month, and reject petitions the following Monday. There are instances where a single petition is granted on a single day that is not the third Thursday of the month. But I don’t expect that will happen here. I would think the earliest they will decide on my petition for cert would be Oct. 18.
And despite Hoge’s contention that the CofA will almost CERTAINLY call for briefs (and for his sake, he’d better hope he’s wrong because Zoa won’t do that for free), there is a much broader list of what the CofA could do when and if they accept the petition.
According to Maryland Rule 8-303(f)
If the petition is granted, the Court shall:
(1) direct further proceedings in the Court of Appeals;
(2) dismiss the appeal pursuant to Rule 8-602;
(3) affirm the judgment of the lower court;
(4) vacate or reverse the judgment of the lower court;
(5) modify the judgment of the lower court;
(6) remand the action to the lower court for further proceedings pursuant to Rule 8-604 (d); or
(7) an appropriate combination of the above.
Personally? I hope they DO direct further proceedings. I would LOVE to get a hotshot free speech attorney interested in this case and watch him go up against Family Law and Education Attorney Zoa Barnes in front of the Court of Appeals. But I suppose it’s just as likely that, if they grant my petition, they could go with what they’ve got already and vacate or reverse the Circuit Court decision re: the Peace Order, send it back to the CC to look at it again (unlikely since the CC has already set a date to consider modifying the PO).
You never know what a court is going to do until they do it. I believe this next week will be very telling. If they deny my motion to reconsider their denial of my motion to stay the peace order pending appeal, I will see that as a setback but not a fatal one. If they deny cert? Oh well. We go on as before, Hoge continues to harass and goad me, and I just have to take it.
We shall see.
- Schmalfeldt v. Hoge: What’s Next? (hogewash.com)
- Perhaps Another Day (hogewash.com)
- #BillSchmalfeldt’s Appeal (hogewash.com)
- In Re Schmalfeldt v. Hoge (deadcitizensrightssociety.wordpress.com)
- A Clarification (hogewash.com)
- A Comment on Not Commenting (hogewash.com)
- I Couldn’t Live in a Place That Small (hogewash.com)
- In Re Schmalfeldt v. Hoge (hogewash.com)
- The Free Speech Roots of Cyberlaw (lawprofessors.typepad.com)