Beruflich Dokumente
Kultur Dokumente
of Maryland
September Term, 2015,
No. 2092
TABLE OF CONTENTS
Table of Authorities
iii
Appellants Brief
Questions Presented
Statement of Facts
Legal Standard
I.
THE
APPELLANT
HAS
STANDING
TO
CHALLENGE
CONSTITUTIONALITY OF MD CODE CRIM. L. 3-803 AND 3-805
II.
B.
THE
5
2.
3.
(ii).
15
Based
on
19
III.
2.
3.
CONCLUSION
29
32
Proposed Order
ii
TABLE OF AUTHORITIES
CASES
ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999)
28
28
27-28
Babbit v. United Farm Workers Natl Union, 442 U.S. 289 (1979)
24
28
Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995)
24
24
16
19
6-7
10-11, 21-22
i, 9, 17-26, 30
Hedges v. Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295 (7th Cir.1993)
23
11
Initiative and Referendum Institute v. Walker, 450 F.3d 1082 (10th Cir. 2006)
Joseph H. Munson Co., Inc. v. Secy of State, 294 Md. 160 (1982)
iii
1, 3
14-15
Midwest Title Loans, Inc. v. Mills, 593 F.3d 660 (7th Cir. 2010)
28
24-25
22-23
28
13
11
21-21
20-21
14
12
Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761 (1945)
28
23-24
15
23
11
27
24
14
5
25
iv
passim
passim
passim
passim
1-4, 26-30
15 U.S.C. 1052(a)
11-11
23
Mr. Walker refers to himself in the third person for stylistic purposes.
1
that to the extent that these statutes regulate Internet activity, they are unconstitutional
under the Federal Commerce Clause.
QUESTIONS PRESENTED
1.
Whether the Circuit Court erred in holding that Mr. Walker lacked
standing to challenge MD CODE Crim. L. 3-803 and 3-805.
2.
Whether MD CODE Crim. L. 3-803 and 3-805 are impermissible
content-based restrictions on freedom of expression in violation of First
Amendment to the U.S. Constitution.
3.
Whether MD CODE Crim. L. 3-803 and 3-805(b)(1) are
unconstitutional under the dormant Federal Commerce Clause to the
extent that they apply to the Internet.
STATEMENT OF FACTS
As a preliminary 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 States 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.
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 States motion, the case involving the State was severed from the
case involving the other two defendants (the Kimberlins). (E125, 167) Therefore, this is
not properly considered an interlocutory appeal. The moment the case was severed, the
previous single case became two cases, and it was only after severance that the States
In Count V of the TAC, Mr. Walker inadvertently referred to these statutes as MD CODE
Cts. & Jud. Proc. 3-803 and 3-805 instead of MD CODE Crim. L. 3-803 and 3-805 as
he did throughout the rest of the Complaint. He apologizes for this error and appreciates
the States willingness to read the Complaint generously, recognizing this typographical
error for what it was. See, e.g. E77.
3
Since this is an appeal of a motion to dismiss the decision, all facts properly alleged in
the TAC must be accepted as true. See infra p. 5.
3
expression directed to a general audience. (E29, 41-48) Both orders were dismissed on
appeal to the circuit court. (E29, 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) that 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.
Kimberlins minor daughter under 3-805(b)(2) by peacefully and truthfully reporting on
the conduct of Mr. Kimberlin. (E29, 47, 54, 58-62) Each charge has been dismissed on a
plea of nolle prosequi. (E29, 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 3805 violated the right of free expression under the First Amendment, and, to the extent
that these statutes regulate the Internet, they violated the Commerce Clause. (E66-67)
The State filed a motion to dismiss, and it was opposed by Mr. Walker. (E69-102, 103118) On November 6, 2015, Judge Mason dismissed the case against Maryland for lack
of standing and, in the alternative, granted a Declaratory Judgment that 3-803 and 3805 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 as follows:
We review a trial courts grant of a motion to dismiss de novo.... [W]e
assume the truth of all of the well-pled facts in the complaint and attached
exhibits, and the reasonable inferences drawn from them, in a light most
favorable to the non-moving party.... Dismissal is proper only if the well4
(E78-79)
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 (1982) where the Court of Appeals declared that Munson clearly had
standing to challenge the facial constitutionality of Art. 41, 103D, because Munson
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) faced 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. Walkers 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 plaintiffs 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 against
appellants are not made with any expectation of securing valid convictions,
but rather are part of a plan to employ arrests, seizures, and threats of
prosecution under color of the statutes to harass appellants and discourage
them and their supporters from asserting and attempting to vindicate the
constitutional rights of Negro citizens[.]
As in Dumbrowski, Mr. Walker has been threatened with prosecution because he has
engaged in protected expression (E28-29), and he has been unlawfully arrested (E47), in
a campaign to discourage Mr. Walker from exercising his right to freedom of expression
6
(E28-29). Further, the Dumbrowski court did not believe a likelihood of obtaining a
conviction was necessary to create a chilling effect sufficient for standing purposes:
Even 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 a reasonable fear of any other
consequences flowing from the statutes enforcement.
Referendum Institute v. Walker, 450 F.3d 1082, 1088 (10th Cir. 2006) (citations, quotation
marks and brackets omitted):
a chilling effect on the exercise of a plaintiffs First Amendment rights may
amount to a judicially cognizable injury in fact, as long as it arises from an
objectively justified fear of real consequences....
Although mere
allegations of a subjective chill are not an adequate substitute for a claim of
specific present objective harm or a threat of specific future harm...,
plaintiffs may bring suits for prospective relief in First Amendment cases
where they can demonstrate a credible threat of prosecution or other
consequences flowing from the statutes enforcement.
Thus standing could be satisfied by the fear of being repeatedly subjected to peace orders
as an other consequence of the enforcement of these statutes. Mr. Kimberlin has
already obtained two unconstitutional peace orders against Mr. Walker in district court
based on 3-803, and there is no reason to believe he couldnt obtain a third.
Further, the State asserts that the fact that Mr. Walker is claiming that these
statutes were wrongfully applied to him somehow means that he does not have standing.
One of Mr. Walkers arguments is that the statutes are vague enough that persons of
common 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 might accidentally enforce them against people engaged in protected
expression. See generally Grayned v. City of Rockford, 408 U.S. 104, 108-9 (1972).
This has happened twice to Mr. Walker, his freedom of expression being abridged
unconstitutionally by the district court while he waited for months to appeal to the circuit
court.
Mr. Walker 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 long as the charges are dropped eventually?
Second, is it unconstitutional for someone to be continually subjected to unconstitutional
peace orders that restrict protected freedom of expression 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 yes, how would a person in Mr. Walkers position vindicate
his/her constitutional rights?
According to the State thus far, Mr. Walker has no way to ask Marylands courts
to stop this injustice. He simply must bear it, or forego the very Constitutional rights he
seeks to vindicate in this case. That is not the law in Maryland.
II.
MD CODE CRIM. L. 3-803 AND 3-805 ARE UNCONSTITUIONAL BECAUSE
THEY INFINGE ON FIRST AMENDMENT FREEDOMS
The lower court also erred by refusing to grant a declaratory judgment that 3803 and 3-805 violated the First Amendment.
In relation to 3-803 and 3-805(b)(1), Galloway v. State, 365 Md. 599, 781 A.2d
851 (2001) should be overturned. Mr. Walker recognizes that this Court is unlikely to
declare that Galloway was wrongly decided at the timethis Court is likely to believe
that determination is reserved for the Court of Appealsbut this Court can hold that even
if Galloway was rightly decided at the time, subsequent developments in the law have
rendered Galloway unconstitutional.
Meanwhile, 3-805(b)(2) does not enjoy 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 Galloways terms, because it removes protections for free expression that were
critical in Galloway.
Accordingly, the Circuit Courts declaratory judgment should be vacated with
instructions to the lower court to enter a declaratory judgment holding that both statutes
are unconstitutional.
A.
the provisions at issue. Because criminality can turn on audience reactionthat is, a
9
minors feeling of serious emotional distress can satisfy an element of the offense3805(b)(2) is a content-based regulation of expression. Therefore, this statute must pass
strict scrutiny: it must be narrowly tailored to serve a compelling interest. Section 3805(b)(2) fails this test.
1.
The Supreme Court has said time and again that if a statute regulates the content
of expression, it must survive the strict scrutiny test.
Entertainment Group, Inc., 529 U.S. 803, 813 (2000) (Since 505 is a content-based
speech restriction, it can stand only if it satisfies strict scrutiny). Under 3-805(b)(2),
criminal liability depends on the reaction of the audience to speech. Namely, a person
can be convicted under 3-805(b)(2) if she engages in Internet activity that inflicts
serious emotional distress on a minor 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. Nationalist 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
not content-neutral because the danger of a breach of peace was directly related to
audience reaction, which would turn on how offensive the speakers message was. A
parade of flag burners was more likely to be violently attacked by opponents than a
10
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.
2014-1203 (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
It is beyond dispute that 2(a) [15 U.S.C. 1052(a)] discriminates on the
basis of content in the sense that it applies to particular speech because of
the topic discussed. Reed [v. Town of Gilbert, 135 S.Ct. 2218, 2227
(2015)]. Section 2(a) prevents the registration of disparaging marksit
cannot reasonably be argued that this is not a content-based restriction or
that it is a content-neutral regulation of speech. And the test for
disparagementwhether a substantial composite of the referenced group
would find the mark disparagingmakes clear that it is the nature of the
message conveyed by the speech which is being regulated. If the mark is
found disparaging by the referenced group, it is denied registration.
Listeners reaction to speech is not a content-neutral basis for regulation.
Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 134 (1992).
Id. at *18-19. Accordingly, the Tam court struck down 15 U.S.C. 1052(a) (prohibiting
the registration of disparaging trademarks) because it violated the First Amendment.
Federal courts have specifically found that prohibitions on the infliction of
emotional distress amount to content-based regulation. For instance, the statute struck
down in U.S. v. Cassidy, 814 F.Supp.2d 574, 584 (D. Md. 2011) was very similar to 3805(b)(2), the court describing the statute as follows:
11
of emotional distress against members of the Westboro Baptist Church after picketing the
funeral of a Marine who died in the line of duty. The Westboro protesters displayed
signs that said Thank God for Dead Soldiers, God Hates Fags, and other vile
messages. Id. at 1213. The Supreme Court set the verdict aside 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 Westboros picketing
turned on the content and viewpoint of the message conveyed, rather than
any interference with the funeral itself. A group of parishioners standing at
the very spot where Westboro stood, holding signs that said God Bless
America and God Loves You, would not have been subjected to
liability. It was what Westboro said that exposed it to tort damages.
Id. at 1219. It is not difficult to imagine similar scenarios under 3-805(b)(2). For
instance, many minors have attempted to gain fame 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,
while praising Allah will not. Even a truthful recounting of Brett Kimberlins terrorist
activities might cause his daughter distress as she learns he is a violent felon while an
essay praising Mr. Kimberlin as a pillar of the community will not. There can be little
doubt that because 3-805(b)(2) allows emotional distress to satisfy an element of the
crime, it is a content-based restriction on expression. Therefore, 3-805(b)(2) must be
subjected to the strict scrutiny test.
2.
presumption.4 Accordingly, the State must satisfy 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 U.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. U. of V.I., 618 F.3d 232, 251 (3rd Cir.
2010), 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
compelling purpose:
The scenarios in which this prong [prohibiting the infliction of emotional
distress] may be implicated are endless: a religious student organization
inviting an atheist to attend a group prayer meeting on campus could
prompt him to seek assistance in dealing with the distress of being invited
to the event; minority students may feel emotional distress when other
students protest against affirmative action; a pro-life student may feel
emotional distress when a pro-choice student distributes Planned
Parenthood pamphlets on campus; even simple name-calling could be
punished. The reason all these scenarios are plausible applications of
Paragraph H is that the paragraph is not based on the speech at all. It is
based on a listeners reaction to the speech. The Supreme Court has held
4
14
time and again, both within and outside of the school context, that the mere
fact that someone might take offense at the content of speech is not
sufficient justification for prohibiting it.
618 F.3d at 251. Indeed, freedom of expression often serves its most vital purpose when
it creates emotional distress:
a function of free speech under our system of government is to invite
dispute. It may indeed best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction with conditions as they are, or
even stirs people to anger. Speech is often provocative and challenging. It
may strike at prejudices and preconceptions and have profound unsettling
effects as it presses for acceptance of an idea. That is why freedom of
speech, though not absolute,... is nevertheless protected against censorship
or punishment, unless shown likely to produce a clear and present danger of
a serious substantive evil that rises far above public inconvenience,
annoyance, or unrest....There is no room under our Constitution for a more
restrictive 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(b)(2) is unconstitutional.
3.
Even assuming that the interests protected by the statute were compelling, 3805(b)(2) 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
exist in 3-803 and in 3-805(b)(1), and (2) the less restrictive alternative of expecting
people to look away.
15
(i)
This provision
applies whenever a person uses an interactive computer service with the appropriate
effect on audiences coupled with the requisite intent. That term, defined in 3-805(a)(3),
includes directed communication, such as emails, text messages and the like, but also
information broadcast to the whole world, such as an article on the New York Times
website, a book readable on a Kindle or Nook, or a personal webpage. And all of this
information can be avoidedoften even blockedby 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 seeing (partly scrambled) sexually explicit cable channels if their
parents didnt subscribe to them, requiring cable companies to either fully scramble such
channels for non-subscribing households, or to restrict the programming to evening
hours.
The Supreme Court found that the statute was not narrowly tailored. First, the
court noted that [i]f a less restrictive alternative would serve the Governments purpose,
the legislature must use that alternative. 529 U.S. at 813. That is the ordinary rule, but
in Playboy the court set that rule aside for one even less tolerant of speech regulation:
Where the designed benefit of a content-based speech restriction is to shield
the sensibilities of listeners, the general rule is that the right of expression
prevails, even where no less restrictive alternative exists. We are expected
to protect our own sensibilities simply by averting [our] eyes. Cohen v.
California, 403 U.S. 15, 21 (1971)
16
Id. As with the statute challenged in Playboy, the purpose of 3-805(b)(2) is to shield
the sensibilities of listeners[,] including children. Thus the Playboy rule controls: the
right of expression should prevail, and the alleged victims should be expected to avert
their eyes. Accordingly, 3-805(b)(2) is not narrowly tailored under Playboy.
(ii)
harassment statute from constitutional attack in Galloway, but was stripped from 3805(b)(2) for no rational reason.
The leading case in Maryland on the general harassment statute, currently codified
as 3-803, is Galloway v. State. The Galloway court faced a First Amendment challenge
to a general harassment statutewhich was identical to the current 3-803 in every
relevant waybased on the overbreadth and void-for-vagueness doctrines. However, the
Galloway court found that the statute was constitutional based significantly on the
inclusion of two limitations, writing that
[Section] 123 [the harassment statute] expressly eliminates constitutionally
protected speech from its ambit. Section 123 does not apply to any
peaceable activity intended to express political views or provide
information to others and the conduct to be prohibited must have no legal
purpose. Other states have concluded that similar restrictive language
helps to abate any over breadth.
17
781 A.2d at 878 (emphasis added). Thus, these two limitations in particular were seen as
critical to ensuring that the statute was constitutionalboth by actually protecting
freedom of expression and by avoiding a chilling effect.
However, 3-805(b)(2) eliminates these protections when a minor is involved.
For instance, subsection (b)(1)(iii) makes it an element of the offense that the defendant
is acting without a legal purpose, but no such element is found in subsection (b)(2).
Further, 3-805(d) states that Subsection (b)(1) 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)(2). Thus, the language
that the Galloway court praised as expressly eliminat[ing] constitutionally protected
speech from [the statutes] ambit, 781 A.2d at 878, 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 inclusion of this language, then the exclusion of this language
from 3-805(b)(2) renders it vague, overbroad, and, additionally, not narrowly tailored.
Indeed, this is directly implied by the States own Motion to Dismiss 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 3-805(b)(2) is overbroad and not narrowly tailored.
In summary, 3-805(b)(2) is a content-based restriction on freedom of expression
because criminality can turn on the audiences reaction to the expression. Accordingly,
the State must show it can survive the strict scrutiny test, and it cannot. The interest in
preventing emotional distress is not compelling, and the statute is not narrowly tailored to
18
any of its purposes because it doesnt contain the protections for freedom of speech found
in other harassment statutes, and because the victim can simply look away. Therefore,
3-805(b)(2) is unconstitutional under the First Amendment, and the Circuit Court erred
in failing to declare it unconstitutional.
B.
different statute, the statute in Galloway is essentially the same as the current 3-803.
Meanwhile, 3-805(b)(1) is virtually identical to 3-803, except it only applies to the
Internet.
As noted above, this Court does not have to believe that Galloway was wrongly
decided at the time in order to find in Mr. Walkers 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.
The Court in Galloway seemed to believe that this speech restriction was contentneutral.6 The Galloway court also seemed to believe that the requirement of a warning to
stop7 helped make the statute more palatable under the First Amendment.8
See 781 A.2d at 876 (quoting from Conn. v. Snyder, 49 Conn.App. 617, 717 A.2d 240,
244 (1998) as saying Since the statute proscribes conduct, rather than content of the
19
However, since Galloway was decided, the Seventh Circuit has called these
assumptions into question in Shirmer v. Nagode, 621 F.3d 581 (7th 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 disorderly
conduct. 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 police
officer while others are engaging in disorderly conduct nearby: A person
commits disorderly conduct when he knowingly ... (d) Fails to obey a
lawful order of dispersal by a person known by him to be a peace officer
under circumstances where three or more persons are committing acts of
disorderly conduct in the immediate vicinity, which acts are likely to cause
substantial harm or serious inconvenience, annoyance or alarm.... Chicago
Municipal Code 8-4-010(d). This provision... lends itself to overly broad
application that can interfere with core First Amendment rights of free
speech and assembly. The three or more persons ... committing acts of
disorderly conduct could be reacting to (or even attempting to disrupt) the
speech of the person arrested for a failure to disperse, so this provision can
be applied to impose what amounts to an unconstitutional hecklers veto
of protected speech.
Id. at 583-84. Shirmer stands for the common sense proposition that if criminality
depends on the actions of third parties, it will 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
mailings, the risk that the statute will chill people from the exercise of free speech is
minor).
7
See 3-803(a)(2) and 3-805(b)(1)(ii), both requiring as an element that the conduct
occurred after receiving a reasonable warning or request to stop by or on behalf of the
other.
8
Id. at 870 (We have held that such a warning ensures that the offender is aware that
further conduct will alarm[] or seriously annoy[] the other person, and as such, the
offender has fair notice that he or she may be subject to prosecution.)
20
expression is also likely to turn on the content being expressed. A person holding a sign
that says thank God for dead soldiers is more likely to be told to stop than a person
holding a sign that says God bless America. With the benefit of Shirmer, the Galloway
court would have recognized that making criminality depend on a request to stop doesnt
help to shield laws such as these from constitutional attack. Instead, it renders such laws
content-based restrictions on expression, which are subjected to strict scrutiny.
Meanwhile, Sabelko v. City of Phoenix, 846 F.Supp. 810 (D.AZ. 1994) is
precedent that pre-dated Galloway, but Sabelko was not discussed or distinguished in
Galloway. Like the instant statutes, the ordinance in Sabelko criminalized behavior
depending on the wishes of third parties by requiring people participating in certain
demonstrations to withdraw to a bubble of eight feet away from a person if asked to do
so by that person. The city asserted that the law was content-neutral: it simply applied to
whomever was asked to withdrawjust as criminality under the instant statutes depend
on a defendant being first warned to stop, 3-803(a)(2) and 3-805(b)(1)(ii).
The
to both 3-803 and 3-805(b)(1). Accordingly, unlike in Galloway, the State must prove
that these statutes are narrowly tailored to promote a compelling Government interest.
Playboy, 529 U.S. at 813.
2.
There are three potential interests promoted by these statutes. The first two are
found in the text, indicating that criminality is triggered by conduct that alarms or
seriously annoys the other 3-803(a) and 3-805(b)(1) (emphasis added). Therefore,
these statutes seek to protect listeners from annoyance or alarm. A third purpose can be
gleaned from Galloways 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, former
boyfriends and girlfriends, and adults which arise on a daily basis, 781 A.2d 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 benefit of Ovadal v. City of
Madison, 416 F.3d 531 (7th Cir. 2005) which ruled that speech could not be suppressed
merely to keep the peace. In Ovadal, a religious group displayed signs on a pedestrian
overpass on controversial topics which caused severe traffic congestion and several nearaccidents. Finding that the polices order to disperse violated the protesters right to free
expression, the Ovadal court wrote that:
Listeners reaction to speech is not a content-neutral basis for regulation.
Forsyth County v. Nationalist Movement, 505 U.S. 123, 134, 112 S.Ct.
2395, 120 L.Ed.2d 101 (1992). Speech cannot . . . be punished or banned,
22
simply because it might offend those who hear it. Id. at 134-35, 112 S.Ct.
2395. It cannot be denied that drivers who yelled, gestured, and slammed
on their brakes when they saw Ovadals signs created a safety hazard on the
Beltline. However, it is the reckless drivers, not Ovadal, who should have
been dealt with by the police, perhaps in conjunction with an appropriate
time, place, and manner restriction on Ovadal. The police must preserve
order when unpopular speech disrupts it; [d]oes it follow that the police
may silence the rabble-rousing speaker? Not at all. The police must permit
the speech and control the crowd; there is no hecklers veto. Hedges v.
Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295, 1299 (7th Cir.1993).
Id. at 537. Applied to the instant case, what is the fear that justifies silencing Mr.
Walker? That Mr. Walkers peaceful activity publicizing Mr. Kimberlins misconduct
might drive Mr. Kimberlin to violence in retaliation? That is a reasonable fear, but the
solution is to prevent any criminal conduct from Mr. Kimberlin, not to suppress Mr.
Walkers complaints about it. As Dr. Martin Luther King, Jr. once said, peace is not
merely the absence of... tension, but the presence of justice. Dr. Martin Luther King, Jr.,
LETTER FROM A BIRMINGHAM JAIL. Silencing grievances does not lead to justice or true
peace.
Likewise, the 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. Sheridan, 837 F.Supp.2d 509 (D. Md. 2011). Swagler concerned another
protest that disrupted traffic, resulting in an order to disperse by Maryland police. The
Swagler court ruled that this violated the protesters rights:
If there is a bedrock principle underlying the First Amendment, it is that
the government may not prohibit the expression of an idea simply because
society finds the idea itself offensive or disagreeable. Texas v. Johnson,
491 U.S. 397, 414 (1989). Moreover, [i]t is firmly settled that under our
Constitution the public expression of ideas may not be prohibited merely
because the ideas are themselves offensive to some of their hearers, or
23
is the duty of the police to attempt to protect the speaker, not to silence his
speech if it does not consist of unprotected epithets.
Id. at 519 (emphasis added, internal quotation marks omitted). The way to suppress
violence in response to annoying or otherwise offensive expression isnt to suppress
speech: it is to suppress the violence.
Likewise, the Galloway court would have been unlikely to find that there was a
compelling interest in protecting Marylanders from mere alarm if it had the benefit of
Virginia v. Black, 538 U.S. 343 (2003). There, the Supreme Court dealt with a statute
making it a criminal act to burn a cross with intent to intimidate[,] id. at 347. The
statute was upheld, but only because the Supreme Court interpreted the term
intimidation as follows:
Intimidation in the constitutionally proscribable sense of the word is a type
of true threat, where a speaker directs a threat to a person or group of
persons with the intent of placing the victim in fear of bodily harm or death.
Id. at 360. If Galloway court had the benefit of Black to guide it, that court would have
realized that if the only type of intimidation that can be constitutionally proscribable is
a true threat, then logically, preventing mere alarm (which plainly can be less than a
true threat) cannot serve as a compelling purpose.
These post-Galloway precedents demonstrate that maintaining order (by
preventing all speech that might anger listeners, not just fighting words), preventing
annoyance, and protecting citizens from mere alarm are not compelling interests.
Therefore, 3-803 and 3-805(b)(1) fail the strict scrutiny test and are unconstitutional
under the law as it stands today.
25
3.
Sections 3-803 and 3-805(b)(1) are not narrowly tailored because there is
the less restrictive alternative of averting ones eyes
Just as with 3-805(b)(2), 3-803 and 3-805(b)(1) are not narrowly tailored
because 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, it 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
Courtaided by more recent precedentsdetermines that 3-803 and 3-805(b)(1) 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 conclusion, 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(b)(1) 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.
III.
MD CODE CRIM. L. 3-803 AND 3-805 ARE UNCONSTITUTIONAL TO THE
EXTENT THAT THEY REGULATE INTERNET ACTIVITY BECAUSE THEY
VIOLATE THE DORMANT COMMERCE CLAUSE
Another way this Court could provide Mr. Walker relief without contradicting
Galloway is by relying on the Federal Commerce Clause, which was not addressed in
Galloway. Specifically, courts have held repeatedly that the content of the Internet is
uniquely a federal domain, and, therefore, the states have no power to regulate it even in
26
the absence of federal preemption. Therefore, 3-805 and 3-803 are unconstitutional to
the extent that they attempt to regulate the Internet.
U.S. v. Lopez, 514 U.S. 549, 559 (1995) held that the Commerce Clause made the
regulation of the 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 of interstate commerce, more so today than it was in 1997
when Am. Libraries Assn 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
leave her home, having all she needs delivered to her via online ordering and paying for
all of it by telecommuting to work. That is how thoroughly the Internet is an instrument
of commerce.
Accordingly, federal courts have regularly held that the states may not regulate the
content of the Internet. For instance, the Pataki 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 Clauseholding that even if there were no conflict with
federal regulation, states could not regulate in that domain.9 Instead, the content of the
Internet could only be regulated by the federal government because the nature of the
Internet demanded uniformity across the United States much the way that railroads and
See Pataki, Id. at 169, for a summary of the doctrine of the negative or dormant
Federal Commerce Clause.
27
trucks did in Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761 (1945) and Bibb
v. Navajo Freight Lines, Inc., 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 are
reasonably able to determine their obligations. Regulation on a local level,
by contrast, will leave users lost in a welter of inconsistent laws, imposed
by different states with different priorities.
969 F.Supp. at 182. Indeed, the Pataki court found 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 or
send differing versions of her communication to different jurisdictions. In
this sense, the Internet user is in a worse position than the truck driver or
train engineer who can steer around Illinois or Arizona, or change the
mudguard or train configuration at the state line; the Internet user has no
ability to bypass any particular state. The user must thus comply with the
regulation imposed by the state with the most stringent standard or forego
Internet communication of the message that might or might not subject her
to prosecution.
Id. at 183; see also Am. Booksellers Foundation v. Dean, 342 F.3d 96 (2nd Cir. 2003)
(endorsing the Pataki courts reasoning); Midwest Title Loans, Inc. v. Mills, 593 F.3d 660
(7th Cir. 2010) (citing Dean favorably); and ACLU v. Johnson, 194 F.3d 1149, 1161 (10th
Cir. 1999) (endorsing the Pataki courts reasoning).
wholesale by the Fourth Circuit in PSINet, Inc. v. Chapman, 362 F.3d 227, 240 (4th Cir.
2004), with this flourish:
The content of the Internet is analogous to the content of the night sky.
One state simply cannot block a constellation from the view of its own
citizens without blocking or affecting the view of the citizens of other
states.
In short, its a big Internet, and it is not up to any one state to regulate its content.
28
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 Without Representation, especially when
applied to expression. Yet, here we have Maryland telling a Virginian what he cant say
on the Internet while hes in Virginia. He cant vote in Maryland, and there is no
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 every voter of every state a say in
any law that is passed. That is criminalization with representation.
Accordingly, 3-803 and 3-805 are unconstitutional under the dormant
Commerce Clause to the extent that these statutes regulate Internet activity. This is
because the Internet cries out for a single national standard. A person shouldnt have to
learn the criminal law of every state in order to use the Internet, and a person should not
be subject to criminal laws they have no say in.
CONCLUSION
The order below should be reversed. First, it is plain that Mr. Walker satisfies the
requirements for standingif only because he was actually injured by the application of
these laws, or because he has a reasonable fear of future criminal charges or other
consequences flowing from these statutes.
29
WHEREFORE, the Appellant respectfully requests that this Court reverse the decision of
the Montgomery County Circuit Court, hold that the Appellant does have standing and
direct that the Circuit Court enter a Declaratory Judgment stating that 3-803 and 3-805
violate the First Amendment of the U.S. Constitution and, to the extent that they apply to
Internet activity, the dormant Commerce Clause, and that this Court provide any other
relief it deems just and equitable.
30
(2)
(3)
(b)
(c)
(1)
(2)
(b)
Definitions.
(1)
(2)
(3)
Prohibited.
(1)
(2)
(ii)
(iii)
(ii)
(c)
(2)
(3)
(d)
(e)
(b)
(2)
(3)
(c)
(2)
(3)
(d)
(e)
after the date on which the WTO Agreement (as defined in section 3501(9) of title
19) enters into force with respect to the United States.
(b)
Consists of or comprises the flag or coat of arms or other insignia of the United
States, or of any State or municipality, or of any foreign nation, or any simulation
thereof.
(c)
(d)
(e)
Consists of a mark which (1) when used on or in connection with the goods of the
applicant is merely descriptive or deceptively misdescriptive of them, (2) when
used on or in connection with the goods of the applicant is primarily
geographically descriptive of them, except as indications of regional origin may be
registrable under section 1054 of this title, (3) when used on or in connection with
36
Except as expressly excluded in subsections (a), (b), (c), (d), (e)(3), and (e)(5) of
this section, nothing in this chapter shall prevent the registration of a mark used by
the applicant which has become distinctive of the applicants goods in commerce.
The Director may accept as prima facie evidence that the mark has become
distinctive, as used on or in connection with the applicants goods in commerce,
proof of substantially exclusive and continuous use thereof as a mark by the
applicant in commerce for the five years before the date on which the claim of
distinctiveness is made. Nothing in this section shall prevent the registration of a
mark which, when used on or in connection with the goods of the applicant, is
primarily geographically deceptively misdescriptive of them, and which became
distinctive of the applicants goods in commerce before December 8, 1993.
A mark which would be likely to cause dilution by blurring or dilution by
tarnishment under section 1125(c) of this title, may be refused registration only
pursuant to a proceeding brought under section 1063 of this title. A registration for
a mark which would be likely to cause dilution by blurring or dilution by
tarnishment under section 1125(c) of this title, may be canceled pursuant to a
proceeding brought under either section 1064 of this title or section 1092 of this
title.
37
AARON WALKER,
Appellant
v.
STATE OF MARYLAND, ET AL.,
Appellee
day of
, 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 Judgment in his favor, this Court
finding that MD CODE Crim. L. 3-803 and 3-805 both violate the First Amendment of
the U.S. Constitution; and that, to the extent that these statutes attempt to regulate
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