AARON J. WALKER, * INTHE Appellant, * COURT OF SPECIAL APPEALS ve * STATE OF MARYLAND, et al., . CASE NO. 2328 Appellees * SEPTEMBER TERM, 2016 + 8 eee * * 8 eek MOTION OF PROF. EUGENE VOLOKH FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF APPELLANT Prof. Eugene Volokh, amicus curiae, through the undersigned counsel and pursuant to Md, Rule 8-511(b), files this motion seeking leave to file a brief in support of Appellant's argument that Maryland Code, Criminal Law Article (“Crim. Law”) § 3-805(b)(2) is overbroad and violates the First Amendment to the U.S. Constitution. In support, amicus states: 1. Professor Volokh teaches and writes about First Amendment law at UCLA School of Law, and is one of the Nation’s foremost legal scholars on that topic. He is the author of a First Amendment textbook and many articles on First Amendment law, including two articles highly relevant to this case, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyberstalking,” 107 NW. U.L. REV. 731 (2013), and Freedom of Speech and Bad Purposes, 63 UCLA L. REV. 1366 (2016). Additionally, during the last four years, he has argued on behalf of various amici curiae in free-speechcases in state appellate courts in California, Georgia, Indiana, Michigan, Minnesota, Mississippi, New Jersey, Texas, and Washington, as well as in the U.S. Courts of Appeals for the Fourth, Ninth, and Eleventh Circuits. Given his academic background and expertise, Prof. Volokh has an interest in providing the Court with accurate, helpful analysis as to why Crim. Law § 3-805(b)(2) is a content-based restriction on speech that punishes or deters a wide range of fully protected speech, and also cannot be justified by analogy to the emotional-distress tort, rendering it overbroad and violative of the First Amendment. The proposed amicus brief provides a cogent yet comprehensive discussion of those points within the word-count limits of Rule 8-503(4)(4)(A), and thus its filing will assist this Court in resolving this appeal and is desirable. Md. Rule. 8-511(b)(1)(A) & (B). Indeed, this Court and the U.S. Court of Appeals for the Fourth Circuit have cited Prof. Volokh’s work in their opinions,' as have over 150 other court decisions throughout the country. 2. Amicus through the undersigned counsel sought consent to the brief’s filing from all parties to the appeal, via email on June 14, 2017. Appellant Walker and Appellee State of Maryland promptly consented; however Appellee Brett Kimberlin stated that he and Appellee Tetyana Kimberlin did not consent, thus necessitating the filing of this motion. Md. Rule 8-511(b)(1)(C). Mr. Kimberlin has subsequently elaborated upon his 1 See, e.g., Gorman v State, 168 Md. App. 412, 436, 897 A.2d 242, 256 (2006), citing Eugene Volokh, Crime Severity and Constitutional Line-Drawing, 90 VA. L. REV. 1957 (Nov. 2004); United States v. White, 670 F.3d 498, 525 (4th Cir. 2012) (Duncan, J., concurring), citing Eugene Volokh, Crime-Facilitating Speech, 57 STAN. L. REV. 1095, 1193 (2005).refusal to consent in an email to the undersigned, charging Prof. Volokh with “attacking [him]” and “taking sides in litigation against [him] for years.” But amici often have a history of previous disagreement with some of the parties in a case—especially when the disagreement involves the very issue in the case. See, e.g., Eugene Volokh, Consulting on the Aaron Walker / Brett Kimberlin Case, http://volokh.com/2012/06/05/consulting-on- the-aaron-walker-brett-kimberlin-case/, June 5, 2012 (noting that Prof. Volokh was consulting on a First Amendment challenge to a peace order involving Messrs. Walker and Kimberlin, which raised constitutional issues closely related to the one in this case). This is particularly likely when an academic amicus is an expert on a particular field—he may well comment on a matter within that field as a scholar or a blogger, or participate in it as a pro bono consultant, and then later return to a different case that involves the same parties or the same issue and offer his input as a proposed amicus, hoping that his expertise will be helpful to the Court. In any event, anticipating that the Kimberlins will renew that charge in opposing this motion, Prof. Volokh states that his sole interest here is in illuminating this Court’s analysis of the relevant First Amendment question. 3. Pursuant to Md. Rule 8-511(b)(1)(D), Prof. Volokh intends to raise the following issues in further development of those argued in Issue II of Appellant’s brief, regarding the unconstitutionality of § 3-805(b)(2):I. Section 3-805(b)(2) is a content-based speech restriction. IL. _ Section 3-805(b)(2) prohibits or deters a broad range of speech about people’s daily lives, Ill. The restricted speech is protected by the First Amendment. IV. The analogy to the intentional infliction of emotional distress tort does not save § 3-805(b)(2) from overbreadth. The proposed amicus brief discusses those points against a backdrop of relevant jurisprudence from this Court, the Court of Appeals, appellate courts of other States, and the Supreme Court of the United States, as well as pertinent academic articles, and applies them to the internet speech that § 3-805(b)(2) reaches. 4. Other than a law student of Prof. Volokh’s who provided research assistance, and who is credited on the cover of the amicus brief, as she was on the amicus brief this, Court accepted in Walker’s premature appeal last year, no person other than the amicus and his undersigned counsel made a monetary or other contribution to the preparation or submission of the brief. Md. Rule 8-511(b)(1)(E). 5. Pursuant to Md. Rules 8-511(2) and 8-431(e), amicus is attaching a copy of the proposed amicus brief to two of the four copies of this motion for leave that, along with the original motion, are being filed with the Clerk. If the Court grants the motion, amicus will promptly file the additional copies required by Rules 8-511(b)(4) and 8-502(c). 6. The required $100 fee is being submitted with this motion, and a proposed order is attached. WHEREFORE, proposed amicus curiae Prof. Eugene Volokh asks this Court to grant this motion and accept for filing his proposed amicus curiae brief. 4Dated: June 15, 2017 Respeettillly submitted, THE SMITH APPELLATE LAW FIRM Mt he By: Michael F. Smith 7566 Main Street Suite 307 Sykesville, MD 21784 (202) 454-2860 (202) 747-5630 Fax smith@smithplle.com Counsel for Amicus Curiae Prof. Eugene VolokhAARON J. WALKER, * INTHE Appellant, * COURT OF SPECIAL APPEALS ve ‘ STATE OF MARYLANDgt al., D CASE NO. 2328 Appellees. * SEPTEMBER TERM, 2016 # 8 8 8 & * soe 8 ee ORDER ORDERED, this __ day of » 2017, by the Maryland Court of Special Appeals, that the proposed brief of amicus curiae Prof. Eugene Volokh is accepted for filing, and, consistent with Rule 8-511(b)(4), shall be considered filed as of June 16, 2017, the date of the filing of the motion for leave. Within 10 days after this Order is filed, amicus curiae shall file with the Court the additional copies of the brief required by Rule 8-502(c), consistent with Rule 8-511(b)(4). Hon. Patrick L. Woodward, Chief JudgeCERTIFICATE OF SERV! Thereby certify Curiae Brief (inclu Aaron J. Walker, Es: Manassas, VA 20108 aaronjw1972@gmail.com Appellant Alexis B. Rohde Assistant Attorney General Offfice of the Attorney General 200 St. Paul Place, 20th Floor Baltimore, MD 21202 (410) 576-7293 arohde@oag.state.md.us Counsel for Appellee State of Maryland and Brett Kimberlin ‘Tetvana Kimberlin Bethesda, MD 20817 Appellees Pro Se by enclosing a copy in an envelope addressed to each individual (two copies to the Kimberlins) at his/her/their respective address and mailing it, first-class, with sufficient prepaid postage. Date: June 15, 2017