MARYLAND:

IN THE DISTRICT COURT OF MONTGOMERY COUNTY

STATE OF MARYLAND
v.

Criminal Case No. 5D00333030

AARON J. WALKER,
Defendant

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

DEFENDANT WALKERS MOTION TO DISMISS

TABLE OF CONTENTS
Table of Authorities

Introduction and Summary of Argument

The Text of the Relevant Statutes

I.

MD. CODE Crim. L. 3-805(b)(2) is Unconstitutional Because it Infringes on Freedom of

Expression Protected by the First Amendment
5
A.

MD. CODE Crim. L. 3-805(b)(2) Represents an Unconstitutional Restriction on

Content Because it Depends on Audience Reaction
5

B.

MD. CODE Crim. L. 3-805(b)(2) is Also Unconstitutional Because it Eliminates

Important Protections for Freedom of Expression, Rendering it Unconstitutionally
Vague
14

II.

MD. CODE Crim. L. 3-805 is Unconstitutional Because it Attempts to Regulate an

Instrumentality of Interstate Commerce in Violation of the Dormant Commerce Clause
of the U.S. Constitution
20

III.

Maryland has not Established Personal Jurisdiction Over Mr. Walker Consistent With the
Due Process Clause of the Fourteenth Amendment
23

IV.

Maryland has Failed to Establish Probable Cause that Mr. Walker has Committed a Crime
Under MD. CODE Crim. L. 3-805(b)(2) in Violation of Maryland Law and Fourth
Amendment
28

Conclusion

31

ii

TABLE OF AUTHORITIES

CASES RELATED TO THE KIMBERLIN FAMILY

K.K1. v. Hoge, No. 0601SP012712015 (Md. Mont. Co. Dist. Ct. 2015)

3, 14

K.K. v. Hoge, No. 9148D (Md. Mont. Co. Cir. Ct. 2015)

Kimberlin v. Dewalt, 12 F. Supp. 2d 487 (D. Md. 1998)

28

Kimberlin v. Hunton & Williams, LLP, et al., No. 15-CV-00723-GJH (D. Md. 2015)

Kimberlin v. National Bloggers Club, et al. (I), No. GJH-13-3059 (D. Md. 2013)

Kimberlin v. National Bloggers Club, et al. (II), No. 380966V (Md. Mont. Co. Cir. Ct. 2015)

Kimberlin v. Walker, et al., No. 380966V (Md. Mont. Co. Cir. Ct. 2013)

8, 25

Kimberlin v. Walker (I), No. 0601SP005392012 (Md. Mont. Co. Dist. Ct. 2012)

Kimberlin v. Walker (I), No. 8444D (Md. Mont. Co. Cir. Ct. 2012)

Kimberlin v. Walker (II), No. 0601SP019792012 (Md. Mont. Co. Dist. Ct. 2012)

Kimberlin v. Walker (II), No. 8526D (Md. Mont. Co. Cir. Ct. 2012)

Kimberlin v. White, 7 F. 3d 527 (6th Cir. 1993)

State v. Hoge, No. 3D00333028 (Md. Mont. Co. Dist. Ct. 2015)

State v. Kimberlin, No. 0601SP005392012 (Md. Mont. Co. Dist. Ct. 2012)

State v. Walker (I), No. 0D00276493 (Md. Mont. Co. Dist. Ct. 2012)

State v. Walker (II), No. 5D00279004 (Md. Mont. Co. Dist. Ct. 2012)

State v. Elliott, No. 6D00291605 (Md. Mont. Co. Dist. Ct. 2013)

Tetyana Kimberlin v. B. Kimberlin, No. 0602SP01843-2013 (Md. Mont. Co. Dist. Ct. 2013)

As noted infra, note Error: Reference source not found, a minor child is at the center of this
case, and Mr. Walker will only identify her in this document as K.K to protect her privacy.
1

iii

OTHER CASES
ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999)

22

Aguilar v. Texas, 378 U.S. 108 (1964)

29

ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707 (4th Cir. 2002)

24

American Booksellers Foundation v. Dean, 342 F.3d 96 (2nd Cir. 2003)

22

American Libraries Assn v. Pataki, 969 F.Supp. 160 (S.D.N.Y., 1997)

20-21

Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959)

21

Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983)

13

Boos v. Barry, 485 U.S. 312 (1988)

Brandenburg v. Ohio, 395 U.S. 444 (1969)

30

Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390 (4th Cir. 2003)

24-25

Church of American Knights Ku Klux v. City of Erie, 99 F. Supp. 2d 583 (W.D Penn. 2000)

17

Cohen v. California, 403 U.S. 15 (1971)

13

Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996)

13

FCC v. Pacifica Foundation, 438 U.S. 726 (1978)

12

Galloway v. State, 365 Md. 599, 781 A.2d 851 (2001)

14-19

Garrison v. Louisiana, 379 U.S. 64 (1964)

11

Ginsberg v. New York, 390 U.S. 629 (1968)

12

Hawaiian Airlines v. Norris, 521 U.S. 246 (1994)

18

Johnson v. Transportation Agency, Santa Clara Cty., 480 U.S. 616 (1987)

18

Midwest Title Loans, Inc. v. Mills, 593 F.3d 660 (7th Cir. 2010)

22

Miller v. California, 413 U.S. 15 (1973)

21

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

11

iv

Patterson v. State, 930 A. 2d 348, 401 Md. 76 (2007)

29

People v. Klick, 66 Ill.2d 269, 5 Ill.Dec. 858, 362 N.E.2d 329 (1977)

15

People v. Shack, 86 N.Y.2d 529, 634 N.Y.S.2d 660, 658 N.E.2d 706 (1995)
PSINet Inc. v. Chapman, 362 F.3d 227 (4th Cir.2004)
Reisterstown Lumber Co. v. Royer, 91 Md.App. 746 (Md. App. 1991)
Reno v. ACLU, 521 U.S. 844 (1997)

15-15
6, 22
28
6, 12-14

Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989)

Snyder v. Phelps, 131 S. Ct. 1207 (2011)

13
7

Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761 (1945)
U.S. v. Cassidy, 814 F.Supp.2d 574 (D. Md. 2011)

21
5, 5, 14, 19

U.S. v. Koerth, 312 F.3d 862 (7th Cir. 2002)

29

U.S. v. Lopez, 514 U.S. 549 (1995)

20

U.S. v Playboy Entertainment Group, 529 U.S. 803 (2000)

U.S. v. Stevens, 130 S. Ct. 1577 (2010)

6, 12-14
12

Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002)

24-25

CONSTITUTIONAL PROVISIONS
U.S. CONST. art. I, 8, cl. 3

3, 20-23, 31

U.S. CONST. amend. 1, cls. 3 and 4

3, 5-14, 31

U.S. CONST. amend. 4

4, 28-31

U.S. CONST. amend. 14, 1, cl. 3

3, 23-28, 31

STATUTES AND RULES OF COURT

18 U.S.C. 1961

18 U.S.C. 2261A

5-6

47 U.S.C. 561

Maryland Code, (1957, 1996 Repl.Vol., 2000 Cum.Supp.), Article 27, 123

14-18

MD. CODE Crim. L. 3-801

MD. CODE Crim. L. 3-803

3, 14-18

MD. CODE Crim. L. 3-805

passim

MD. CODE, Crim. L. 9-503

MD. CODE Crim. L. 9-507

11

MD. CODE Cts. & Jud. Proc. 2-607

28

MD. CODE Cts. & Jud. Proc. 9-104

28

Md. R. 4-202(c)(2)

28

ARTICLES AND WEBSITES

David Weigel, The Weirdest Story About a Conservative Obsession, a Convicted Bomber, and
Taylor Swift You Have Ever Read, THE DAILY BEAST, August 30, 2014 (available at http://www.
thedailybeast.com/articles/2014/08/30/the-weirdest-story-about-a-conservative-obsession-aconvicted-bomber-and-taylor-swift-you-have-ever-read.html), visited on April 26, 2015
8
Jason Vest, Arts and Entertainment: Music Review, WASHINGTON CITY PAPER, February 23,
1996 (available at http://www.washingtoncitypaper.com/articles/9854/jailbird-rock) visited
December 14, 2013
10
K.K., Whisper, YouTube, October 17, 2004 (available at https://www.youtube.com/ watch?
v=T6uy-kkqeP0) visited June 8, 2015
11
Monica Hesse, A Little Surprise for the Prize Giver, WASHINGTON POST, November 8, 2007
(available
at
http://www.washingtonpost.com/wp-dyn/content/article/2007/11/07/
AR2007110702898.html) visited June 8, 2015.
7

vi

Cara Hedgepeth, Video from local singer [K.K.] surpasses 50,000 views on YouTube, THE
BETHESDA GAZETTE, August 28, 2013 (available at http://www.gazette.net/article/20130828/
ENTERTAINMENT/130829064/1265/video-from-local-singer-kelsie-kimberlin-surpasses50000-views-on&template=gazette) visited June 8, 2015
8
Blair Ames, Grace's Law, a Cyberbullying Bill, Called 'Landmark Legislation,' BALTIMORE SUN,
April 11, 2013 (available at http://www.baltimoresun.com/news/maryland/howard/ellicottcity/ph-ho-graces-law-passes-20130410-story.html) visited June 8, 2015
19
Illya Somin, Political Ignorance and Caylees Law, VOLOKH CONSPIRACY, July 11, 2011
(available at http://volokh.com/2011/07/11/political-ignorance-and-caylees-law/) visited on June
8, 2015
19

vii

INTRODUCTION AND SUMMARY OF ARGUMENT

This case is the latest strike in a three and a half year campaign to prevent Mr. Walker 2
and William Hoge III3 from writing about Brett Coleman Kimberlin to a general audience and to
punish them for doing the same. Mr. Kimberlin has previously filed three criminal charges
against Mr. Walker, and one charge against Mr. Hoge for harassment. All of these charges were
filed in retaliation for protected expression, and all were nolle prossed. 4 Mr. Kimberlin has twice
attempted to obtain peace orders against Mr. Walker alleging harassment only to have each of
them denied.5
Further, Mr. Kimberlin has sued Mr. Walker three times for engaging in protected
expression. First, he sued Mr. Walker, Mr. Hoge, and four others for defamation. Kimberlin v.
Walker, et al., No. 380966V (Md. Mont. Co. Cir. Ct. 2013). In that suit, he claimed that Mr.
Walker defamed him by: (1) calling him a terrorist (even though he is a convicted terrorist
known as the Speedway Bomber, whose last bomb cost an innocent man his life, Kimberlin v.
White, 7 F. 3d 527, 528-29 (6th Cir. 1993)); (2) claiming that Mr. Kimberlin lied to officials about
falsified evidence Mr. Kimberlin used in an attempt to frame Mr. Walker for a crime; and
(3) claiming that Mr. Kimberlin is a pedophile who has acted on his desires. After a two-day trial
Mr. Walker refers to himself in the third person for stylistic purposes and to de-personalize this
case.
3
Mr. Hoge has been charged under a virtually identical Application for Statement of Charges in
State v. Hoge, No. 3D00333028 (Md. Mont. Co. Dist. Ct. 2015).
4
The first two charges referred to are State v. Walker, No. 0D00276493 (Md. Mont. Co. Dist. Ct.
2012) and State v. Walker, No. 5D00279004 (Md. Mont. Co. Dist. Ct. 2012). The latter two
against Messrs. Hoge and Walker for alleged harassment were not only nolle prossed but were
expunged at the request of the Montgomery County States Attorneys Office. As a result, we do
not presently have their case numbers.
5
Kimberlin v. Walker (I), No. 0601SP005392012 (Md. Mont. Co. Dist. Ct. 2012), appealed as
Kimberlin v. Walker (I), No. 8444D (Md. Mont. Co. Cir. Ct. 2012) and Kimberlin v. Walker (II),
No. 0601SP019792012 (Md. Mont. Co. Dist. Ct. 2012) appealed as Kimberlin v. Walker (II), No.
8526D (Md. Mont. Co. Cir. Ct. 2012).
2

last August, the court ruled in the defendants favor for the most substantive reason possible:
truth.
Second, he sued Messrs. Walker and Hoge, and around two dozen media websites and
commentators, including the Breitbart.com news site, syndicated columnist Michelle Malkin, and
talk show host Glenn Beck. Kimberlin v. National Bloggers Club, et al. (I), No. GJH-13-3059
(D. Md. 2013).

Mr. Kimberlin claimed that these people were members of a massive

racketeering mafia out to make false statements about him on the Internet, in violation of 18
U.S.C. 1961 et seq.; it was a civil suit alleging criminal conduct. A motion to dismiss was
granted in that case on March 17, 2015, for all but one defendant (Patrick Frey) and for all but
one claim, and that claim is presently in discovery.6 Finally, he has filed a new case in state court
over the same falsehoods on the Internet, despite the fact that he has been told this entire case is
barred by res judicata. Kimberlin v. National Bloggers Club, et al. (II), No. 380966V (Md.
Mont. Co. Cir. Ct. 2015). In each of these civil suits he has sought unconstitutional prior
restraints on Mr. Walkers and Mr. Hoges expression.
This criminal charge represents the latest innovation in Mr. Kimberlins strategy
attempting to use his daughter (hereinafter K.K) 7 as a human shield, claiming that writing
negative things on the Internet about him to a general audience somehow amounts to harassment
of her. He has attempted to press this theory twice in peace order hearings against Mr. Hoge, and

The same week that Kimberlin v. NBC (I) was dismissed, he filed a new suit against Mr. Hoge,
asserting that he is in another racketeering conspiracy with around two dozen other individuals
and entities, including the U.S. Chamber of Commerce and an agency of the United States
Department of Energy. Kimberlin v. Hunton & Williams, LLP, et al., No. 15-CV-00723-GJH (D.
Md. 2015).
7
Since she is a minor, Mr. Walker will only refer to the person at the center of this case by her
initials. So there is no room for ambiguity, all references to K.K. refers to the elder daughter
of Tetyana Kimberlin.
6

he has been refused each time. 8 The only reason why Mr. Kimberlin didnt file the instant
criminal charge himself is becauseupon information and beliefthe States Attorney set up a
fast tracking process to eliminate frivolous charges filed by Mr. Kimberlin after he filed criminal
charges against his wifes boyfriend Jay Elliott,9 and Mr. Kimberlin hoped to evade this fasttracking process. However, the fact that he used his wife to make these charges doesnt change
the fact that they are frivolous.
The charges in this case must be dismissed for three reasons.
First, MD. CODE Crim. L. 3-805(b)(2) is simply unconstitutional. Because criminality
turns on the emotional reaction of the audience, it represents a content-based restriction on
expression that cannot survive scrutiny under the First Amendment. U.S. CONST. amend. 1, cls.
3 and 4. Further, unlike the general harassment statute 3-803, this statute has stripped away
important protections for free expression, including two provisions that specifically exempts
protected expression from its coverage.

This renders the statute unconstitutionally vague.

Finally, this statute invades an area of federal dominion under the Interstate Commerce Clause of
the U.S. Constitution. U.S. CONST. art. I, 8, cl. 3. As such, the law is unconstitutional both as
applied and on its face. It must be struck down.
Second, the complaint is fundamentally about words Mr. Walker allegedly placed on the
Internet for a general audience, and there is no allegation that Mr. Walker wrote those words in
the State of Maryland. Given that Mr. Walker is a Virginia resident and lawyer who is not
licensed to practice law in Maryland, common sense tells this Court he did not publish these
alleged words in Maryland, and, in any case, the state has failed its burden to establish that he
did. Therefore, under the Due Process Clause of the Fourteenth Amendment, U.S. CONST.
K.K. v. Hoge, No. 0601SP012712015 (Md. Mont. Co. Dist. Ct. 2015), appealed as K.K. v.
Hoge, No. 9148D (Md. Mont. Co. Cir. Ct. 2015).
9
State v. Elliott, No. 6D00291605 (Md. Mont. Co. Dist. Ct. 2013).
8

amend. 14, 1, cl. 3, Maryland cannot hale Mr. Walker into its courts. Simply put, what Mr.
Walker writes while in Virginia to a general audience is none of Marylands business.
Finally, the Application for Statement of Charges (hereinafter Application) simply
doesnt support a finding of probable cause as the Commissioner acted as a rubber stamp to the
false allegations of Mrs. Kimberlin. Thus, there is no probable cause as required under Maryland
law and the Fourth Amendment. U.S. CONST. amend. 4.
For these three reasons a charge should not have been submitted and it should now be
dismissed for the protection of freedom of expression across the entire country.
THE TEXT OF THE RELEVANT STATUTES
It is helpful to start with the text of the statute Mr. Walker is accused of violating. He is
accused of violating MD. CODE Crim. L. 3-805(b)(2), which reads in relevant part:
(2)

A person may not use an interactive computer service 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:
(i)

to kill, injure, harass, or cause serious emotional distress to the

minor; or

(ii)

to place the minor in reasonable fear of death or serious bodily

injury.

The statute carries a penalty of up to a year in prison and/or a fine up to $500. Interactive
computer service is defined in subsection (a)(3) of the same statute as
an information service, system, or access software provider that provides or
enables computer access by multiple users to a computer server, including a
system that provides access to the Internet and cellular phones.
Finally, the term course of conduct is defined in 3-801 as a persistent pattern of conduct,
composed of a series of acts over time, that shows a continuity of purpose.
It is also worth noting that the entirety of 3-805 applies exclusively to Internet activity.
4

I.
MD. CODE CRIM. L. 3-805(B)(2) IS UNCONSTITUTIONAL BECAUSE IT
INFRINGES ON FREEDOM OF EXPRESSION PROTECTED BY
THE FIRST AMENDMENT
The statute under which Mr. Walker is being prosecuted is unconstitutional because it
represents an impermissible content-based restriction forbidden under the First Amendment and
because it strips away important safeguards for protected expression ordinarily present in
Marylands harassment statutes, rendering the statute vague and overbroad. Therefore, the
statute is unconstitutional as applied to Mr. Walker because it punishes protected expression, and
it is unconstitutional because its vagueness and overbreadth creates a chilling effect on protected
expression.
A.

MD. CODE Crim. L. 3-805(b)(2) Represents an Unconstitutional Restriction on

Content Because it Depends on Audience Reaction
The most obvious flaw in this statute is that it is dependent on the reaction of the

audience, which in turn is dependent on the viewpoints being expressed. That is, expression that
is normally lawful suddenly becomes criminal if one person claims they have felt severe
emotional distress because of it.
In this MD. CODE Crim. L. 3-805(b)(2) bears a close resemblance to 18 U.S.C.
2261A(2)(A), which was struck down by the District of Maryland in U.S. v. Cassidy, 814
F.Supp.2d 574 (D. Md. 2011). Thus, just as under 3-805(b)(2), a person peacefully writing on
the Internet could commit a crime under 2261A(2)(A) simply by inflicting emotional distress
on another person. In Cassidy this was seen as a fatal flaw.
Like the instant case, Cassidy concerned criticism of another person, only identified in
the opinion as A.Z. by the use of blogs and Twitter. First, the court in Cassidy found that the
statute represented a content-based restriction on the defendants expression as follows:

Typically, a restriction is content-based if it regulates speech based on the effect

that speech has on an audience. For example in Playboy Entertainment Group, the
Supreme Court held that the Telecommunications Acts signal bleed provision,
requiring cable operators either to scramble sexually explicit channels in full or
limit programming on such channels to certain hours, amounted to a contentbased restriction. 529 U.S. [803,] 81112, 120 S.Ct. 1878 (2000). The provision
single[d] out particular programming content for regulation as well as
particular programmers, applying by its terms only to channels primarily
dedicated to sexually-oriented programming. 47 U.S.C. 561(a) (1994 Supp.
III.). Id. at 806, 120 S.Ct. 1878. Because the provision focused only on the
content of the speech and the direct impact that speech had on viewers, the
provision was a content-based restriction. Id. at 812, 120 S.Ct. 1878, see also
Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (holding
that a Washington, DC regulation making it unlawful, within 500 feet of a foreign
embassy, either to display any sign that tends to bring the foreign government into
public odium or public disrepute amounts to a content-based speech
restriction because it focuses on the direct impact of the speech on a foreign
government); Reno v. Am. Civ. Liberties Union, 521 U.S. 844, 877, 117 S.Ct.
2329, 138 L.Ed.2d 874 (1997) (holding that Provisions of the Communications
Decency Act (CDA) prohibiting transmission of obscene or indecent
communications by means of a telecommunications device to persons under the
age of 18, or sending patently offensive communications through use of
interactive computer service to persons under the age of 18 is a content-based
restriction on speech as it focuses on the impact of that speech); PSINet Inc. v.
Chapman, 362 F.3d 227, 233 (4th Cir.2004) (same).
In the present case, the only portion of Section 2261A(2)(A) mentioned in the
Indictment amounts to a content-based restriction. Section 2261A(2)(A)
criminalizes anyone who:
(2)

with the intent

(A)

to kill, injure, harass, or place under surveillance

with intent to kill, injure, harass, or intimidate, or
cause substantial emotional distress to a person
in another State or tribal jurisdiction or within the
special maritime and territorial jurisdiction of the
United States ... uses the mail, any interactive
computer service, or any facility of interstate or
foreign commerce to engage in a course of conduct
that causes substantial emotional distress to that
person ... (emphasis added)

Mr. Cassidy allegedly violated the statute by intentionally causing substantial

emotional distress to A.Z., specifically on Twitter and Blogs. The portion of
Section 2261A(2)(A) relied on in the Indictment amounts to a content-based
6

restriction because it limits speech on the basis of whether that speech is

emotionally distressing to A.Z.
Id. at 584. This reasoning was closely parallel to the Supreme Courts reasoning in a case
decided earlier in the same year, Snyder v. Phelps, 131 S. Ct. 1207 (2011). Phelps involved a
lawsuit against members of the Westboro Baptist Church, who are in the habit of picketing
funerals for soldiers who died honorably in service to this country with signs such as God Hates
the USA/Thank God for 9/11, Thank God for Dead Soldiers, God Hates Fags, Youre
Going to Hell, and other vile messages. Id. at 1213. Albert Snyder sued members of this
church for intentional infliction of emotional distress and won a sizeable judgment in his favor.
The Supreme Court determined, however, that the verdict amounted to an impermissible penalty
against the Westboro Baptists for the content of their expression as follows:
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. Thus, the Supreme Court held that a verdict punishing protected expression in a civil
case had to be set aside. The logic of that decision only has more force when the threat is that of
criminal conviction.
The fact that this statute amounts to content regulation is obvious on the face of the
Application. Messrs. Walker and Hoge wouldnt be facing criminal charges today if they had
written flatteringly about Mr. Kimberlin. In fact, many people have written about the Kimberlin
family. For instance, K.K. was featured in THE WASHINGTON POST when she was eight years
old because she had won a video contest sponsored by Lego. 10 Likewise, K.K. has been
Monica Hesse, A Little Surprise for the Prize Giver, WASHINGTON POST, November 8, 2007
(available
at
http://www.washingtonpost.com/wp-dyn/content/article/2007/11/07/
AR2007110702898.html) visited June 8, 2015 and attached as Exhibit A.
10

attempting to start a music career and received positive coverage in THE BETHESDA GAZETTE,
when she wrote a song about two children who died tragically and her video for this song got
over 50,000 views on YouTube.11 After she testified in open court in the trial last August in
Kimberlin v. Walker, et al., she was prominently mentioned in an article in THE DAILY BEAST
the successor publication to NEWSWEEKas part of a discussion of the trial in general. 12 The
State of Maryland hasnt charged any of those authors with harassing the Kimberlins because the
Kimberlins evidently didnt mind what they wrote.
Consider this hypothetical example. The Application alludes to the fact that K.K. is a
musician. She has released an album called No Ordinary Girl and is attempting to sell copies
of it. Imagine, then, that a critic decided to review that album and gave it a blisteringly
unfavorable appraisal, perhaps even hoping to convince her to quit making music entirely?
Since such writing would appear to meet every element of 3-805(b)(2), that critic could be
haled into this Court with his expression being declared a crime because he hurt the feelings of a
minor who had put herself into the marketplace. Thats certainly one way to help a young
womans commercial music career: make it a crime to criticize her too harshly. But all of this
which meets every element of the statuteis a content-based restriction on free expression.
Indeed, in this case, the application of the law is arbitrary. For instance, in the fourth
paragraph on the first typed page, the Application claims that [t]hey have attacked her
Cara Hedgepeth, Video from local singer [K.K.] Surpasses 50,000 Views on YouTube, THE
BETHESDA GAZETTE, August 28, 2013 (available at http://www.gazette.net/article/20130828/
ENTERTAINMENT/130829064/1265/video-from-local-singer-kelsie-kimberlin-surpasses50000-views-on&template=gazette) visited June 8, 2015 and attached as Exhibit B.
12
David Weigel, The Weirdest Story About a Conservative Obsession, a Convicted Bomber, and
Taylor Swift You Have Ever Read, THE DAILY BEAST, August 30, 2014 (available at http://www.
thedailybeast.com/articles/2014/08/30/the-weirdest-story-about-a-conservative-obsession-aconvicted-bomber-and-taylor-swift-you-have-ever-read.html), visited on April 26, 2015 and
attached as Exhibit C.
11

repeatedly, directly and indirectly, through their online presence by falsely accusing Brett
Kimberlin of sexual offenses and insinuating and imputing that [K.K.] is in danger. What Mrs.
Kimberlin is not telling this Court is that both Mr. Kimberlin and Mrs. Kimberlin have accused
Brett Kimberlin of being a pedophile.
On July 28, 2013, Mrs. Kimberlin filed criminal charges, alleging that Mr. Kimberlin first
seduced her in Ukraine when she was fourteen years old and he was in his forties, that he
transported her to Maryland when she was fifteen and seduced her at least fifty times, and that he
also attempted to seduce her twelve year old cousin who was visiting them. State v. Kimberlin,
No. 0601SP005392012 (Md. Mont. Co. Dist. Ct. 2013). The Application for Statement of
Charges she filed in that case is attached as Exhibit D. She had also stated in protective order
petitions that she was afraid for her life and the safety of her daughters, especially K.K. who is
not Mr. Kimberlins biological child.13 Attached as Exhibit E is the post Mr. Walker wrote first
accusing Mr. Kimberlin of being a pedophile. It was based significantly on Mrs. Kimberlins
own filings. However, in an apparent confession that she violated MD. CODE Crim. L. 9-503,
she is claiming now that her husband was innocent of everything she had accused him of and that
Messrs. Walker and Hoge somehow harassed her daughter by quoting her and believing her prior
claims.
Meanwhile, Mr. Kimberlin has gone on record admitting that he is a pedophile, at least in
orientation. According to the WASHINGTON CITY PAPER, between stints in prison, Mr. Kimberlin
released an album called Escape from Hell. The WASHINGTON CITY PAPER stated that the
See Exhibit F a petition for a protective order written by Mrs. Kimberlin, stating that when she
separated from Brett Kimberlin, He told me if I will try to take my kids with me he will hurt me
and I will see what will happen to me. Coming from convicted bomber who caused one man to
lose his life and is suspected in a murder-for-hire, any reasonable person would take that threat
seriously. That petition for a protective order was filed in Tetyana Kimberlin v. Brett Kimberlin,
No. 0602SP01843-2013 (Md. Mont. Co. Dist. Ct. 2013).
13

album described Mr. Kimberlins attraction to underage girls as follows (with apologies for the
language quoted):
Not all the songs on his albumwhich Mahern characterizes as minimally
produced and pretty much Bretthave political overtones, which in some
respects may be unfortunate: While tracks like Lifes a Bitch (For a Government
Snitch) and Whos Next (a song about unfounded sex crime accusations) have
a definite edge to them, others, like Waiting to Meet and Teen Dream (both
about having sex with teenage girls) are lacking in subtlety and tend to make one
squirm. But this is exactly what Kimberlin wants.
I say things a lot of people are afraid to say. Yeah, Teen Dream is about fucking
a teenage girl. Every guy whos seen a good-looking teenage girl has thought
about it. Im talking about that lecherous quality that every man, though he wont
act on it, has.
Jason Vest, Arts and Entertainment: Music Review, WASHINGTON CITY PAPER, February 23,
1996 (available at http://www.washingtoncitypaper.com/articles/9854/jailbird-rock) visited
December 14, 2013, attached as Exhibit G. Mr. Kimberlin doesnt mind people saying he is
attracted to underage girlsas long as they dont say it is a bad thing.
The Application also does not tell this Court that the Montgomery County Circuit Court
has already found all of these allegations related to Mr. Kimberlins sexual conduct to be true.
Mr. Kimberlin sued Messrs. Walker and Hoge (and others) for accusing him of (among other
things) being a pedophile, of seducing Tetyana Kimberlin when she was underage (he was in his
forties), and of attempting to seduce her cousin who was twelve years old at the time. After a
two-day trial, Judge Eric Johnson granted a motion for directed verdict on the most substantive
grounds possible: truth. This means that Mr. Kimberlin is collaterally estopped from denying
that he is a pedophile and that he acted on his desires. While the prosecution in this case might
not be bound by that ruling, it is a stunning absurdity that the Montgomery County Circuit Court

10

has determined Messrs. Walker and Hoge are not civilly liable for having made these
accusations, but a District Court Commissioner believes it is somehow a crime.14
In another example of the arbitrariness of the application of the law in this case, on the
bottom of the first typed page of the Application, Mrs. Kimberlin complains that [t]hey have
posted comments on blog posts talking about [K.K.]s titties and falsely insinuated sexual
abuse. First, this passage is not accusing Messrs. Walker or Hoge of talking about K.K.s
breasts or any potential sexual abuse, but that they commented in a discussion where it was
mentioned without any attempt to describe their contribution to that discussion. Thus, the
Application is attempting to practice guilt by association without any attempt to explain how
Messrs. Walker and Hoge could be held responsible for the words of third parties.
However, Mr. Walker has looked for the post in question and believes it is the one
attached as Exhibit H. What the relevant discussion (id. at 64-66) concerns is a music video
created by K.K. and unknown others called Whisper. The discussion of her breasts was in the
context of discussing how K.K. wore an extremely low-cut blouse in that video and leaned
forward through about half the video, displaying her cleavage. A screenshot of one such moment
is attached as Exhibit I. The entire video can be viewed at https://www.youtube.com/watch?
v=T6uy-kkqeP0. Because the video was published when K.K. was only fifteen years old, one
commenter quite reasonably was repulsed by what they called a titty shot (id. at 65) and others
voiced the concern that an adjudicated pedophile was sexualizing his underage daughter. This is
an entirely valid (albeit crude) and reasonable criticism of this video that K.K. and her family has
This also seems to run counter to the fact that the common-law crime of defamation has been
abolished in Maryland. MD. CODE Crim. L. 9-507. It is also worth noting that under Garrison
v. Louisiana, 379 U.S. 64 (1964) when a state seeks to punish the criticism of a public figure
(Brett Kimberlin became one by bombing a town for nearly a week), it must meet the
constitutional malice standard first enunciated in New York Times Co. v. Sullivan, 376 U.S. 254
(1964).
14

11

put before the public, and it is protected opinion under the First Amendment. But as if all of that
was not ridiculous enough, the very first comment by Mr. Hoge after these statements were made
was Please leave Miss Kimberlin alone. 15 So according to the Application, it was somehow
criminal for Mr. Hoge to ask people not to talk about K.K.! Accordingly, this statute is a contentbased restriction on its face and in practice is a ludicrously arbitrary one at that.
Therefore, 3-805(b)(2) is presumptively invalid. See, e.g., U.S. v. Stevens, 130 S. Ct.
1577 (2010) (holding that because a statute regulates expression based on content, it is
presumptively invalid, and the Government bears the burden to rebut that presumption)
(internal quotation marks and citations omitted). Therefore, it is the burden of the state to
establish that it can survive the strict scrutiny test. As stated in U.S. v Playboy Entertainment
Group, 529 U.S. 803, 813 (2000), that test is formulated as follows: [i]f a statute regulates
speech based on its content, it must be narrowly tailored to promote a compelling Government
interest.
Even if the interest is considered compelling, courts have regularly held that bans such as
that provided by 3-805(b)(2) cannot be narrowly tailored. For instance, in Reno v. ACLU,
521 U.S. 844 (1997), like the present case, part of the concern was the protection of children.
The Reno Court struck down a statue banning websites from allowing minors to view sexual
content (even if it was not obscene), but the logic of that decision applies with equal force to the
present situation:
It is true that we have repeatedly recognized the governmental interest in
protecting children from harmful materials. See Ginsberg [v. New York, 390 U.S.
629, 639 (1968)]; [FCC v. Pacifica Foundation, 438 U.S. 726, 749 (1978)]. But
that interest does not justify an unnecessarily broad suppression of speech
addressed to adults. As we have explained, the Government may not reduc[e] the
Id. at 65-66. Meanwhile, Mr. Walker does not comment on the post at all, in keeping with Mr.
Kimberlins overall pattern in litigation of saying they when he often is only referring to one
person.
15

12

adult population . . . to . . . only what is fit for children. [Denver Area Ed.
Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 759 (1996)] (internal
quotation marks omitted) (quoting [Sable Communications of Cal., Inc. v. FCC,
492 U.S. 115, 128 (1989)]). [R]egardless of the strength of the governments
interest in protecting children, [t]he level of discourse reaching a mailbox
simply cannot be limited to that which would be suitable for a sandbox. Bolger
v. Youngs Drug Products Corp., 463 U.S. 60, 74-75 (1983).
Id. at 875 (footnote omitted). Further, in Reno, the Supreme Court found a statute could not be
considered narrowly tailored when a less restrictive alternative existedand in that case, that
less restrictive alternative was self-help. Specifically, the Reno court noted that
the District Court found that [d]espite its limitations, currently available userbased software suggests that a reasonably effective method by which parents can
prevent their children from accessing sexually explicit and other material which
parents may believe is inappropriate for their children will soon be widely
available.
521 U.S. at 877. In short, the Supreme Court held that the impending existence of self-help net
nanny programs made censorship of the Internet by the government unnecessary. Parents that
wanted to shield their children could simply install these types of computer programs.
Meanwhile, in Playboy, the Supreme Court found a low-tech less restrictive alternative to a
ban: looking away.
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).
529 U.S. at 813. Nothing in the Application that is related to the use of computers involves
expression that K.K. simply cant turn away from. 16 But rather than turning away, at a March 13,

The only expression that K.K. allegedly cannot turn away from or block alleged in the
Application is the bullying and shunning at school by other students, but since the Application
does not explain how Messrs. Hoge and Walker can be held criminally liable for the actions of
these third parties at her school, the Kimberlins complaint is with those students and not Messrs.
Hoge and Walker.
16

13

2015, District Court hearing in K.K. v. Hoge, K.K. revealed that Brett Kimberlin actively seeks
out offensive comments about her and brings it to her to read so she can be scandalized.
Applying the principles of Reno and Playboy, the Cassidy court held that the alleged target of the
offensive comments, A.Z., should be expected to help herself: Here, A.Z. had the ability to
protect her own sensibilities simply by averting her eyes from the Defendants Blog and not
looking at, or blocking his Tweets. 814 F.Supp.2d at 585. 17 There is no reason why K.K.and
indeed the entire Kimberlin familycannot do the same.
Thus the statute is an unconstitutional content restriction, both as applied to the present
facts and on its face. It should be rendered a nullity in this Court for this reason alone.
B.

MD. CODE Crim. L. 3-805(b)(2) is Also Unconstitutional Because it Eliminates

Important Protections for Freedom of Expression, Rendering it Unconstitutionally
Vague
In addition to the infirmities identified in Cassidy, MD. CODE Crim. L. 3-805(b)(2)

eliminates protections for free expression deemed critical by the Court of Appeals in Galloway v.
State, 365 Md. 599, 781 A.2d 851 (2001). In Galloway the Court of Appeals confronted a
constitutional challenge to the general harassment statute, codified then as Maryland Code,
(1957, 1996 Repl.Vol., 2000 Cum.Supp.), Article 27, 123. This statute was identical to the
current MD. CODE Crim. Law 3-803 in every relevant way. The defendant in that case
challenged the statute as overbroad and vague, in violation of the First Amendment.
However, the Court of Appeals found that the statute was constitutional based
significantly on the inclusion of two limitations. First, 123(b) included limiting language,
stating that [t]his section does not apply to any peaceable activity intended to express political
views or provide information to others. Second, 123(c)(3) required that the state prove that
If this court is unfamiliar with how blogs and Twitter works, Cassidy also contains a useful
primer on the subject on pages 576-578.
17

14

there is no legal purpose to the alleged conduct. When 123 was re-codified as MD. CODE
Crim. Law 3-803, these provisions were preserved with no relevant change. When 3-805 was
passed, originally without any special provisions applying to minors, the same limitations were
applied.18 But when the original prohibitive language was re-codified as 3-805(b)(1), and a
subsection (b)(2) was added, applying specially to minors, these protections for free expression
were stripped from subsection (b)(2).
The Galloway court was particularly impressed with 123s statutory assurance that
[t]his section does not apply to any peaceable activity intended to express political views or
provide information to others and its requirement as an element of the offense that the state
prove that the Defendant had no legal purpose. As the Galloway court observed:
123 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. Cf. [M. Katherine Boychuk, Are
Stalking Laws Unconstitutionally Vague or Overbroad? 88 NW. U.L.REV. 769,
788 (1994)] (suggesting that employing language in stalking and harassment
statutes that specifically except[s] protected activities from the scope of the
statute would aid in ensuring that such statutes do not infring[e] on legitimate
activities). In People v. Shack, 86 N.Y.2d 529, 634 N.Y.S.2d 660, 658 N.E.2d
706 (1995), the New York Court of Appeals determined that the New York
harassment statutes limiting clause `without legitimate purpose of
communication... expressly excludes constitutionally protected speech from its
reach [and] plainly distinguishes this statute from those which impose criminal
liability for `pure speech. Shack, 658 N.E.2d at 710. The court concluded that
because of the restrictive clause the defendant could not rely successfully on the
First Amendment to support a challenge to its facial validity, id., and it is this
limitation that distinguishes the statute from those harassment statutes that have
been declared unconstitutionally broad. Shack, 658 N.E.2d at 711 (citing People
v. Klick, 66 Ill.2d 269, 5 Ill.Dec. 858, 362 N.E.2d 329 (1977)).
781 A.2d at 878 (emphasis added). Thus, these two limitations were seen as critical to assuring
that the statute was constitutional both in terms of actually protecting freedom of expression and
18

See Exhibit J, a copy of 3-805 as it read in 2013, as downloaded from Fastcase.

15

assuring the public that First Amendment freedoms were safeguarded so that their protected
expression would not be chilled for fear of being prosecuted under a vague law.
The present general harassment statute, MD. CODE Crim. Law 3-803, includes the
same limitations, worded virtually identically (see 3-803(a)(3) and (b)). As recently as early
2013, MD. CODE Crim. Law 3-805 also included those limitations. This is how the statute read
then (in relevant part):
(b) Prohibited. -- A person may not maliciously engage in a course of conduct, through
the use of electronic communication, that alarms or seriously annoys another:
(1) with the intent to harass, alarm, or annoy the other;
(2) after receiving a reasonable warning or request to stop by or on behalf of the
other; and
(3) without a legal purpose.

(d) Exception. -- This section does not apply to a peaceable activity intended to express a
political view or provide information to others.
See Exhibit J.
However, as it stands today, 3-805 eliminates these two protections when a minor is
involved. What was originally contained in subsection (b) was placed in a newly-designated (b)
(1) and the entirety of (b)(2) was added, as follows:
(b)

Prohibited. -(1)

A person may not maliciously engage in a course of conduct,

through the use of electronic communication, that alarms or
seriously annoys another:
(i)

with the intent to harass, alarm, or annoy the other;

(ii)

after receiving a reasonable warning or request to stop by

or on behalf of the other; and

16

(iii)
(2)

without a legal purpose.

A person may not use an interactive computer service 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:
(i)

to kill, injure, harass, or cause serious emotional distress to

the minor; or

(ii)

to place the minor in reasonable fear of death or serious

bodily injury.

So the element requiring the state to prove the defendant acted without a legal purpose exists
solely as a limitation on subsection (b)(1). Meanwhile, subsection (d) was changed to read:
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). In other words, the very language that the Court of Appeals praised as
expressly eliminat[ing] constitutionally protected speech from [the statutes] ambit, 781 A.2d
at 878, does not apply under 805(b)(2).
Stripped of these protections that the Court of Appeals had read as explicitly protecting
freedom of expression, many of the remaining terms of the statute, such as harass or serious
emotional distress are rendered unconstitutionally vague. For instance, in Church of American
Knights Ku Klux v. City of Erie, 99 F. Supp. 2d 583 (W.D Penn. 2000), that court struck down a
Klan Act prohibiting people from wearing face-covering masks or hoods in public [w]ith the
intent to intimidate, threaten, abuse or harass any other person stating that
Notably, the terms intimidate, threaten, abuse, and harass, are not defined
in 733.05(c). However, each of these terms, given their ordinary meaning, can be
understood as encompassing forms of expression that are constitutionally
protected.
Id. at 591. Like in the instant case, there was nothing in that KKK Act explicitly exempting
protected expression under the First Amendment. Absent any language assuring people that they
17

could not be prosecuted for engaging in free expression, the Erie court declared ordinary people
would believe that the law applied to protected expression, and, therefore, the law was vague and
unconstitutional. Under 3-8059b)(2), Mr. Walker can have a lawful purpose, Mr. Walker can
engage in expression fully protected by the Constitution, and he must still wonder if he will be
haled into this Court with his freedom at jeopardy. Indeed, that is precisely what has happened
in this case.
In Johnson v. Transportation Agency, Santa Clara Cty., 480 U.S. 616 (1987), the
Supreme Court pointed out that there was a dialogue between the legislature and the courts in
statutory interpretation. Quoting Mr. Walkers former Professor, Hon. Guido Calabresi, the court
wrote:
As one scholar has put it, When a court says to a legislature: `You (or your
predecessor) meant X, it almost invites the legislature to answer: `We did not.
G. Calabresi, A COMMON LAW FOR THE AGE OF STATUTES 31-32 (1982).
Id. at 629 n. 7. The same can be said when the legislature takes language interpreted a certain
way in one statute and applies it to multiple statutes. See, e.g. Hawaiian Airlines v. Norris, 521
U.S. 246, 254-55 (1994) (interpreting the term grievance in one statute consistent with how it
had been interpreted in others). The presumption is that the legislature was aware of how their
statutory language had been interpreted and liked that interpretation enough to ensure that it
applied to this new law.
When the Maryland Assembly first included the language in 123 that [t]his section
does not apply to any peaceable activity intended to express political views or provide
information to others and requiring the state to prove the defendant did not have a legal
purpose, the Court of Appeals interpreted it to mean that the legislature wanted to protect
freedom of expression. When the Assembly used virtually identical language in 3-803, they

18

reaffirmed their commitment to protecting freedom of expression, and as late as early 2013, 3805 continued to demonstrate Marylands commitment to freedom of expression. Thus, when
the Maryland Assembly refused to include such limiting language in the current 3-805(b)(2),
they demonstrated they were no longer interested in protecting free expression.
Indeed, given the disdain the legislature has shown for freedom of expressionadopting
language declared unconstitutional after the District of Marylands decision in Cassidy, and
eliminating language considered critical to a harassment statutes constitutionality in Galloway
the suspicion arises that the fact this law is unconstitutional is intentional. It suggests that in a
moment of moral panic,19 the Assembly passed a law that was flagrantly unconstitutional hoping
the Maryland Judiciary would do their dirty work for them. They expected the courts to strike
down the law and give legislators cover: Gee, we wanted to do something to protect children,
but the courts wouldnt let us. Whatever their motives, it is time to tell the Maryland Assembly
that if they actually want a constitutional law that would protect children, they need to go back to
the drawing board and try again. It is time to strike down this law as unconstitutional and
dismiss this criminal case.

Subsection (b)(2) is colloquially known as Graces Law, passed after Grace McComas
committed suicide, reportedly after being made fun of online by students at her school. See,
Blair Ames, Grace's Law, a Cyberbullying Bill, Called 'Landmark Legislation,' BALTIMORE SUN,
April 11, 2013 (available at http://www.baltimoresun.com/news/maryland/howard/ellicottcity/ph-ho-graces-law-passes-20130410-story.html) visited June 8, 2015. Ilya Somin, Professor
of law at George Mason University wrote that My rule of thumb is a strong presumption that
any law named after a victim is poor public policy enacted by legislators who confuse voting
against a law with voting against an innocent person. Illya Somin, Political Ignorance and
Caylees
Law,
VOLOKH
CONSPIRACY,
July
11,
2011
(available
at
http://volokh.com/2011/07/11/political-ignorance-and-caylees-law/) visited on June 8, 2015
(quoting attorney Ted Frank).
19

19

Also, in the name of judicial economy Mr. Walker asks this court to dismiss Mr. Hoges
case as well and to instruct the Commissioners Office that this statute is a dead letter in
Montgomery County.
II.
MD. CODE CRIM. L. 3-805 IS UNCONSTITUTIONAL BECAUSE IT ATTEMPTS TO
REGULATE AN INSTRUMENTALITY OF INTERSTATE COMMERCE IN
VIOLATION OF THE DORMANT COMMERCE CLAUSE OF THE U.S.
CONSTITUTION
The entirety of MD. CODE Crim. L. 3-805 is also unconstitutional because the statute on
its face attempts to regulate an instrumentality of interstate commerce, in violation of the
dormant Commerce Clause of the U.S. Constitution. U.S. Const. art. I, 8, cl. 3. Simply put,
by attempting to tell every person in America what she can and cant say on the Internet,
Maryland inappropriately intruded on the domain of the federal government.
In U.S. v. Lopez, 514 U.S. 549, 559 (1995), the Supreme Court held that the interstate
commerce clause made the regulation and protection 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
than it was in 1997 when American 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 on streaming
services such as Netflix, pay their utility bills online, purchase a dizzying array of products
through sites such as Amazon, and even donate to political candidates. A person with the right
resources could literally never leave her home, having all of her necessities (and even most
luxuries) delivered to her via online ordering and paying for all of it by telecommuting to work.
That is how thoroughly the Internet has become an instrument of commerce.

20

Accordingly, federal courts have regularly held that the states may not regulate the
content of the Internet. For instance, in Pataki, that court confronted another statute designed to
protect minors, this time from obscenity.20 There, the State of New York had passed a statute
making it a felony to allow minors to view obscene materials over the Internet. The Pataki court
held that the statute was unconstitutional under the negative or dormant commerce clause
holding that even if there were no conflict with federal regulation, states could not regulate in
that domain. The Pataki 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 United States much the way that railroads and 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
Pataki, 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 than it was with railroads and trucks, stating that:
As discussed at length above, 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.

The statute in question intentionally tracked the traditional test for obscenity laid down in
Miller v. California, 413 U.S. 15 24-25 (1973), as an example of the legislative dialogue
mentioned supra 14-20. They made sure to use the test endorsed by the Supreme Court so there
would be no question the speech was not protected by the First Amendment.
20

21

Id. at 183; see also American 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). This reasoningand even that same block-quoted passagewas
adopted wholesale by the Fourth Circuit in PSINet, Inc. v. Chapman, 362 F.3d 227, 240 (4th Cir.
2004), with this additional rhetorical 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.
The PSINet court, therefore, struck down another state Internet decency law, stating that even if
the statute was construed to exclude out-of-state websites, it would still violate the Commerce
Clause because such regulation would be pointless:
By construing the Act so that it only reaches intrastate communication, the
Commonwealth [of Virginia] again finds itself in the same conundrum as it did in
its First Amendment analysis. If the Commonwealth is capable of limiting its
Internet regulation as not to directly offend the Commerce Clause, then it will
have no local benefit given the vast number of other communication options
available to a juvenile seeking them.
Id. In other words, its a big Internet and removing objectionable content only from one states
websites is the equivalent of trying to bail out the ocean with a thimble. Thus, even if 3-805
were interpreted only to apply to intrastate conduct only, it would still be unconstitutional under
the Commerce Clause.
Indeed, even artificially paring back the statute to regulate messages that began and
ended in Marylandwhich is not supported by the plain language of 3-805would not be
sufficient under ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999). Also adopting the Pataki
courts reasoning (it is a very influential case), the Tenth Circuit reasoned in Johnson that
[e]ven if [the interpretation of the statute] is limited to one-on-one e-mail
communications, ... there is no guarantee that a message from one New Mexican
to another New Mexican will not travel through other states en route.... We
22

therefore agree with the district court that section 30-37-3.2(A) represents an
attempt to regulate interstate conduct occurring outside New Mexicos borders,
and is accordingly a per se violation of the Commerce Clause.
Id. at 1161. The Application makes no effort to claim where Mr. Walker was when any of the
allegedly unlawful Internet use occurred. Logic suggests most, if not all, of the alleged writing,
occurred in Virginia. However, even if the statute was interpreted solely to include intrastate
conductand it was shown that Mr. Walkers had engaged in such intrastate conductthe
statute would be unconstitutional. Accordingly, the case should be dismissed, both for Mr.
Walker and, in the name of judicial economy, for Mr. Hoge as well.
III.
MARYLAND HAS NOT ESTABLISHED PERSONAL JURISDICTION OVER MR.
WALKER CONSISTENT WITH THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT
As mentioned before, Mr. Walker is not a Maryland resident. The Application correctly
states he lives in Manassas, Virginia. Mr. Walker is an attorney licensed in Virginia and the
District of Columbia, but not in Maryland. There is no allegation that Mr. Walker has real
property, or does business in Maryland. Indeed, he is barred by law from practicing his chosen
profession in Maryland.
MD. CODE Crim. L. 3-805(b)(2) concerns itself entirely with internet communication,
and, therefore, the only facts relevant to this case relate to such communication. There is no
allegation that Mr. Walker used a computer in Maryland when making such communications,
and common sense tells this Court that he probably didnt drive up to Maryland to post on the
Internet when he could do so much more conveniently at home in Virginia.
Because of these undisputed facts, Maryland cannot exercise jurisdiction over Mr. Walker
without violating the Due Process Clause of the Fourteenth Amendment. The Fourth Circuit has
held that placing information on the Internet is not sufficient by itself to subject[] that person to
23

personal jurisdiction in each State in which the information is accessed. Carefirst of Md., Inc.
v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 399 (4th Cir. 2003) (internal quotation marks
omitted).21 Therefore, this Court may only exercise personal jurisdiction over a nonresident
defendant when he or she (1) directs activity into the [forum] State, (2) with the manifest intent
of engaging in business or other interactions within the State, and (3) that activity creates, in a
person within the State, a potential cause of action cognizable in the States courts. ALS Scan,
Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 714 (4th Cir. 2002). The contacts alleged in
this case arent enough to meet this test.
For instance, Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002) presents facts
similar to this case. That case involved two Connecticut newspapers (and members of their
respective staffs) that ran a corresponding website, which published articles allegedly defamatory
of a Virginia prison warden. That plaintiff attempted to argue that Virginia could exercise
jurisdiction over these Connecticut residents as follows:
the [defendants], knowing that [the plaintiff, the warden of a Virginia prison] was
a Virginia resident, intentionally discussed and defamed him in their [newspaper]
articles, (2) the newspapers posted the articles on their websites, which were
accessible in Virginia, and (3) the primary effects of the defamatory statements on
[the plaintiffs] reputation were felt in Virginia.
Id. at 261-62. However, the Young court found this was insufficient because there was no
evidence of any intent to target a Virginia audience:
As we recognized in ALS Scan, a persons act of placing information on the
Internet is not sufficient by itself to subject[] that person to personal jurisdiction
Although the cases cited here are civil cases, and the instant case is a criminal case, the due
process limits of extraterritorial jurisdiction are the same whether the consequences are criminal
or civil. This only makes sense. If the circumstances do not allow a state to reach out to an outof-state resident and hale that person into its courts and place that persons finances at stake, it
shouldnt be able to drag a resident of another state into its courts in order to put that persons
liberty at stake, either.
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in each State in which the information is accessed. [293 F.3d] at 712. Otherwise,
a person placing information on the Internet would be subject to personal
jurisdiction in every State, and the traditional due process principles governing a
States jurisdiction over persons outside of its borders would be subverted. Id.
315 F.3d at 263. By the Young standard, there is nothing before this Court allowing it to
determine that the writings at issue were meant specifically for a Maryland audience, compared
to a national or even a global audience. Thus, Mr. Walkers alleged conduct fails prongs (1) and
(2). The blogs and tweets where Mr. Walker is alleged to have published are available anywhere
in the world, not just Marylandand the Application makes no allegation of any kind of directed
communication into the state. That people can access them in Maryland is insufficient for
personal jurisdiction. See Carefirst, 334 F.3d at 399.
Even if the Application did allege sufficient contacts (and the Application does not), the
mere allegation is not enough. If all it takes is an allegation, without any attempt to determine if
it is backed up by credible evidence, then the constitutional rule against inappropriate
extraterritorial application of state power is meaningless.
A few examples might illustrate how the allegations simply cannot be supported by facts.
For instance, on the second typed page of the Application, it states that [t]hey have said that
[K.K.] is a proper target for harassment because of corruption of blood. Mr. Walker not only
didnt say that, he said the opposite. As Mr. Walker said in the August trial of Kimberlin v.
Walker, et al. when confronted with the same accusation:
Q [Kimberlin]:

Have you stated on your blog that people have a right to

attack my daughter because of corruption of blood?

A [Walker]

No, I have literally said the opposite of that. I said one of

the things that makes this country great is that we judge
people by them, not by who your father is, not by who your
daughter is, not by anything. And I talked about how in the
treason clause they do away with the principle of the
corruption of the blood. I specifically cite that as an
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example what makes America great. We do not judge

people by race, religion or who your parents are, even when
youre a traitor. We do not judge your children by your
treachery, even when youre a terrorist.
See Exhibit K. Indeed, the entire post where Mr. Walker first made this point is attached as
Exhibit L.

In that post, Mr. Walker explains that is was sharing with his readers public

documents, but that I will as usual be redacting personal information from it, as well as any
information about [Brett Kimberlins] eldest daughter. That is, even though the information is
public, Mr. Walker still redacted some information to protect the privacy of the Kimberlins
going as far as never to mention K.K.s real name on his blog. When explaining why Mr. Walker
believed in being decent toward the children of a man who has been tormenting him for years
with false charges, peace order petitions and lawsuits, Mr. Walker wrote:
For me, one of the great underappreciated clauses of our Constitution is in the
Treason clause. It says: but no Attainder of Treason shall work Corruption of
Blood, or Forfeiture except during the Life of the Person attainted. The second
part of that is fairly easy to understand, but what about the first[?] What the hell
do they mean by the corruption of the blood?
Well, the answer is they are saying you cannot punish the family of a traitor as
though they were traitors, too. It is a talisman of what makes this country great.
Fundamentally we dont care who your ancestors were. They could have been
kings, they could have been beggars. They could have been heroes and they
could have been terrorists. We dont care. Because you are judged as you.
So not knowing this girl, she enjoys the presumption of innocence that belongs to
all strangers. Given the way Brett Kimberlin lies about everything, I have no
reason to think he is telling her the truth about what is going on and therefore I
have no reason to think she approves of what is actually happening here. If she
knew the truth she would know that her father has been working for years to
suppress the truth about his illegal and immoral conduct, and his criminal and
immoral conduct, combined with his attempt to silence his critics, has brought all
this attention on this family.
But allegedly a few people have harassed her online, on her facebook and the like.
There is always concern, of course, that Brett or his allies might be faking a lot of
that behavior. But regardless, if any person draws any negative conclusion about
her based on her father, they are not being charitable enough. They are forgetting
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that even when we are talking about Benedict Arnold, we do not hold the child
responsible for the conduct of the father.
(Internal hyperlinks omitted). Every other time Mr. Walker has discussed the concept of the
corruption of the blood, he has either done so to reiterate that point or to point out where Mr.
Kimberlin has previously lied about what he said. 22 So, far from saying K.K. should be targeted
because of her fathers vile behavior, Mr. Walker has made an eloquent and morally persuasive
argument that she should not be. He has said literally the opposite of what the Application
claims.
Indeed, every allegation of fact in the Application can be divided into two categories.
The first category is outright lies such as the claim Mr. Walker said K.K. should be targeted
because of the doctrine of the corruption of the blood or any other reason. The second is halftruths presented in a way that manifests a deliberate intent to mislead, such as when the
Application claimed somehow it was harassment of K.K. for John Hoge to tell others not to even
criticize her online supra 5-14. While it would take a two hundred page brief and thousands of
pages of exhibits to show how every allegation in the Application is either false or misleading in
this fashion, the examples provided here demonstrate why this Court cant simply take this
complaining witnesss word for anything. Indeed, since Mrs. Kimberlin is now claiming that
facts contained in a previous Application she had filed are false, it leads to the classic question of
was she lying then, or is she lying now? If Mr. Walker allegedly wrote something, the state
must document what he wrote, where he wrote it and provide evidence that he actually wrote it.
Mr. Walkers out-of-state writings should not be subjected to Marylands jurisdiction unless the
state can provide actual evidence that Mr. Walker targeted his writing at a Maryland audience.

Mr. Hoge has similarly only mentioned the concept of the corruption of the blood to point out
that Mr. Kimberlin had lied about what Mr. Walker said.
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Accordingly, this case should be dismissed for lack of personal jurisdiction, or in the
alternative, this court should require the state to provide actual evidence that Mr. Walker can
lawfully be subjected to Marylands jurisdiction.
IV.
MARYLAND HAS FAILED TO ESTABLISH PROBABLE CAUSE THAT MR. WALKER
HAS COMMITTED A CRIME UNDER MD. CODE CRIM. L. 3-805(B)(2) IN
VIOLATION OF MARYLAND LAW AND THE FOURTH AMENDMENT
In the past, Mr. Walker has spoken to the Commissioners Office about its practice of
charging Mr. Walker with crimes either based on no evidence or based on the word of a person
incompetent to provide evidence.23 They have claimed that they do not gather evidence or weigh
the credibility of the accuser.
This is wrong as a matter of black letter law and because it means Mr. Walker is being
seized without probable cause, it violates the Fourth Amendment of the U.S. Constitution as an
unlawful seizure, U.S. CONST. amend. 4,24 and it violates Maryland law as well.25 As stated in
Reisterstown Lumber Co. v. Royer, 91 Md.App. 746, 758 (Md. App. 1991), probable cause is
defined as [r]easonable cause; having more evidence for than against. (emphasis added). This
requires taking in evidence, and evaluating its sufficiency. For instance in Patterson v. State, 930

Under MD. CODE Cts. & Jud. Proc. 9-104, convicted perjurers are categorically prohibited
from testifying. Perjury is one of the many crimes Mr. Kimberlin has been convicted of. See,
e.g. Kimberlin v. Dewalt, 12 F. Supp. 2d 487, 490 n. 6 (D. Md. 1998). Therefore, every criminal
charge filed in the past based on Mr. Kimberlins claims was based on incompetent testimony.
24
Mr. Walker has been undoubtedly seized, or he is about to be. Mr. Walker will show up at the
July 2, 2015 hearing and on any other court dates if instructed to. However, if he doesnt show,
he will almost certainly face a bench warrant. Whatever he wanted to do, whatever work he
might have needed to do for paying clients, Mr. Walker has no choice but to be in Maryland to
answer these unsupported charges.
25
See MD. CODE Cts. & Jud. Proc. 2-607(c)(1) (stating that one of the duties of a commissioner
is to receive applications and determine probable cause for the issuance of charging
documents) and Md. R. 4-202(c)(2) (requiring a statement of charges in the form of
Application for Statement of Charges... which is sufficient to establish probable cause).
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A. 2d 348, 379 n. 12, 366, 401 Md. 76 (2007), the Court of Appeals stated that before a person
can be searched or seized the judge must determine probable cause by considering the totality of
the circumstances, including the accusers reliability, credibility, veracity or basis of
knowledge. In other words, the determination of probable cause must follow a process that
involves meaningfully and critically evaluating the evidence presented, U.S. v. Koerth, 312
F.3d 862, 868 (7th Cir. 2002). In no case should the commissioner allow him or herself simply be
a rubber stamp. E.g. Aguilar v. Texas, 378 U.S. 108, 111 (1964).
Instead, in this case the issuing judge [the commissioner] wholly abandoned his [or her]
role. Patterson, 930 A. 2d at 366. In the Application, Mrs. Kimberlin is allowed to allege that
Messrs. Walker and Hoge wrote things, but there is no effort to require her to quote what they
wrote (except for a few out-of-context snippets), let alone provide copies of the relevant writings.
Mrs. Kimberlin alleges that Messrs. Walker and Hoge did things that were plainly out of her
view, but she doesnt explain how she knows who did what. She doesnt even explain how she
knows anything she claims were written by Messrs. Walker or Hoge were actually written by
them.
For instance, in the second paragraph on the first typed page, Mrs. Kimberlin blames
Messrs. Walker and Hoge for allegedly causing K.K. to be bullied at school by third parties
because of what they wrote online. She doesnt define what she means by bullying. She
doesnt describe with any particularity what any person said or did. She doesnt tell us who did
this bullying or when they did it. She doesnt identify what in particular they read from Messrs.
Walker or Hoge, how she knows the alleged bullies read it, how she knows Messrs. Walker and
Hoge wrote it, or how that writing motivated the alleged bullying. These allegations give

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Messrs. Walker and Hoge absolutely no notice of what they are accused of so they can prepare
their defense, and these allegations do not support probable cause.
Likewise, on the last paragraph on the first typed page the Application alleges that
Messrs. Walker and Hoge incited third parties to write bad things about K.K. Putting aside
that there is no allegation that these third parties actually did anything criminal, there also is no
attempt to meet the constitutional test for incitement under Brandenburg v. Ohio, 395 U.S. 444,
395 (1969), namely that
the constitutional guarantees of free speech and free press do not permit a State to
forbid or proscribe advocacy of the use of force or of law violation except where
such advocacy is directed to inciting or producing imminent lawless action and is
likely to incite or produce such action.
This test requires three elements 1) advocacy of the use of force or lawlessness, 2) directed to
inciting or producing imminent lawless action and 3) likelihood that it would produce such
action. The Application simply states a legal conclusionthat Messrs. Walker and Hoge incited
some undefined actionwithout even alleging that anything they wrote met the first prong:
advocacy of violence or lawlessness (and it didnt).
It is not, as a practical matter, possible to review every allegation to demonstrate how it is
lacking in any foundation in this motion.

The purpose of citing these examples is to be

illustrative, not to comprehensively list all the flaws in the Application. With each allegation, if
the commissioner had meaningfully and critically examined the claims, he or she would have
realized there was nothing there. In truth, the online writing of Messrs. Hoge and Walker simply
amounts to ordinary journalism and commentary (and providing public documents), and it is
neither immoral nor illegal. Thus, this case represents nothing more than the rage of a habitual
criminal (Mr. Kimberlin) at having his conduct exposed. Accordingly, with the Application
failing utterly to establish probable cause, this charge should be dismissed.
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CONCLUSION
Mr. Walker has demonstrated that the charges against him should be dismissed for four
separate reasons. First, MD. CODE Crim. L. 3-805(B)(2) is unconstitutional under the First
Amendment to the U.S. Constitution, because it is an unconstitutional content-based limitation
on free expression and because it vague and overbroad since it strips out important protections
for protected expression. Second, 3-805 is unconstitutional as a whole because it invades an
area reserved for national regulation under the Interstate Commerce Clause of the U.S.
Constitution. Third, the state has not established that it can exercise extraterritorial jurisdiction
over Mr. Walker consistent with the Due Process Clause of the Fourteenth Amendment. Finally,
the vague and conclusory factual allegations in the Application, lacking in specificity or even any
base of knowledge, do not establish probable cause. Through seven civil suits, and now six
criminal charges, the Kimberlin family has been trying to convince someone, anyone, that
Messrs. Walker and Hoge peacefully writing about Mr. Kimberlin is criminal or tortious and that
it must be stopped. This Court should dismiss this latest attempt to silence them for the grubby
attempt to censor protected expression that it is, and, in the name of judicial economy, dismiss it
for both Messrs. Walker and Hoge.

WHEREFORE Defendant Walker requests that all charges be dismissed, with prejudice.

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Tuesday, April 28, 2015

Respectfully submitted,

Aaron J. Walker, Esq.

Va Bar# 48882
7537 Remington Road
Manassas, Virginia 20109
(703) 216-0455
AaronJW72@gmail.com
(no fax)

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