AARON J. WALKER, ESQ. Inthe Petitioner COURT OF APPEALS . OF MARYLAND STATE OF MARYLAND, ET AL. September Term, 2018 Respondents Petition Docket No PETITION FOR WRIT OF CERTIORARI ‘As alleged in the Third Amended Complaint! (“TAC”), Petitioner Aaron J. Walker? is an attomey® and a journalist, One of his journalistic subjects is the past and present immoral and criminal conduct of convicted serial bomber Brett Kimberlin. See Kimberlin ¥ White, TP.3A 8 ng some of his criminal couduet). Mr. 528-29 (6 Cir. 1993) (deta Kimiberlin has retaliated aguinst Mr. Walker for this reporting by fling two peace orders in four years based in whole or in part on Mb Cobe Crim. L. §3-803 and by filing (with his wife) false criminal charges alleging harassment under §3-803, violation of @ peace order (Which was based on allegations of harassment under §3-803), and “electronic harassment” under Mp CODE Crim, L. §3-805. All of these were based on nothing more than Mr. Walker’s peaveful expression, protected by the First Amendment, and peaceful representation of clients whom Mr. Kimberlin was targeting with similar misconduct ' This is a petition to appeal a successful motion to dismiss of the TAC, and therefore all facts properly alleged in the TAC must be accepted as true. Mr. Walker refers to himself throughout ths filing in the third person facstyiepepeasons. > Mr. Walker is not admitted to practice in Maryland, efarenn AUG 0.9 2018, Towsu Office ofthe Attorney GeneralMr. Walker sued the State of Maryland and organs ofthe state, secking a declaratory judgment holding that §§3-803 and 3-805 are unconstitutional under the First Amendment of the U.S. Constitution so that these laws could no longer be used to silence protected speech. Ata November 6, 015, motions hearing, the Circuit Court first granted the State’s ‘Motion to Dismiss for lack of standing and, reasoning in the alternative, also granted a declaratory judgment upholding both statutes. On appeal, the Court of Special Appeals ruled that Mr, Walker lacked standing to challenge these statutes, and ignored the constitutional challenge to §§3-803 and 3-805. It is desirable and in the public interest to grant certiorari for three reasons. First, the Court of Special Appeals has ignored the law and common sense in holding that Mr. Walker has no reasonable fear of future prosecution and has not been reasonably chilled by the State's conduct. Because it has set the bar on standing so high, the Court of Special Appeals has essentially told free speech activists that their only choice is to actually break «law in order to challenge its constitutionality. This is contrary to the orderly operation of ‘our justice system, Second, §§3-803 and 3-805 are plainly content-based regulations of expression because they are triggered by audience reaction. Therefore, these laws are subject to the strict scrutiny test, and they cannot survive that test. Thus, itis in the public's interest to strike down these statutes to vindicate freedom of expression, ‘Third, even if this Court is not convinced by this petition that these statutes are ‘unconstitutional, this Court should grant certiorari in order to resolve the serious doubts as, This appeal presents a novel and strong challenge to both statutes, 2 to their constitutionsand the Maryland Office of Attomey General has itself suggested that §§3-803 and 3- '805(0)(2) are doubtful from a constitutional perspective. It is in the public's interest for this Court to resolve these doubts For all ofthese reasons, this Court should grant certiorari QUESTIONS PRESENTED 1, Does a person who has been repeatedly subjected to prosecution and peace orders under §§3-803 and 3-805 in violation of his or her right to freedom of expression have standing to challenge the constitutionlity of those statutes based on fear of future prosecution and/or a present chilling effect? 2. Does $§3-803 and/or 3-805 represent content-based discrimination subjecting the statutes to stit scrutiny? 3. Iso, can §§5-8U andor 3-405 survive the strict serutiny test? PERTINENT STATUTORY AND CONSTITUTIONAL PROVISIONS US. Constitution Amendment 1 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof: or abridging the freedom of speech, ot ofthe press: or the right ofthe people peaceably to assemble, and to petition the Government for a redress of grievances. ‘Mp Cope Crim. L. §3-803. Harassment (@) Prohibited. -- A person may not follow another in or about a public place or ‘maliciously engage in a course of conduct that alarms or seriously annoy’ the other: (1) with the intent to harass, alarm, or annoy the other; 2) after receiving a reasonable warning or request to stop by or on behalfof the other; and. 3) without a legal purpose©) © Exception. -- This section does not apply to a peaceable activity intended to express a political view or provide information to others, Penalty, -- A person who violates this section is guilty of a misdemeanor and on conviction is subject to: (2) for a first offense, imprisonment not exceeding 90 days or a fine not exceeding $500 or both; and (2) fora second or subsequent offense, imprisonment not exceeding 180 days or a fine not exceeding $1,000 or both, Mp Cope Crim. L. §3-805. Misuse of electronic communication or interactive computer service. @ © Definitions. — (1) __Inthis section the following words have the meanings indicated. 2) “Electronic communication” means the transmission of information, data, or ‘communication by the use of a computer or any other electronic means that {is sent to a person and that is received by the person, (3) “Interactive computer service” means 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. Prohibited. — (1) Apperson may not maliciously engage in a course of conduc, through the use of electronic communication, that alarms or seriously annoys another: (with the intent to harass, alarm, of annoy the other; (i) afterreceiving a reasonable warning or request to stop by or on behalf of the other; and Git) without a legal purpose, (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 4© @ © Jour: places a minor in reasonable fear of death or serious bodily injury with the intent () _ COkill, injure, harass, or cause serious emotional distress to the minor; Gil) to place the minor in reasonable fear of death or serious bodily injury, Construction of section. -- Ibis nota violation of this section for any of the following persons fo provide information, facilities, or technical assistance to another who is authorized by federal or State law to intercept or provide electronic communication of fo conduct surveillance of electronic communication, if @ court order ditects the person to provide the information, facilites, or technical assistance: (2) aprovider of electronic communication; (2) anofficer, employee, agent, landlord, or custodian of provider of electronic ‘communication; oF (3) @ person specified in a court order directing the provision of information, facilities, or technical assistance to another who is authorized by federal or State law to intercept or provide electronic communication or to conduct surveillance of electronic communication. Exception. -- Subsection (b)(1) of this section does not apply to a peaceable activity intended to express a politcal view or provide information to others. A person who violates this section is guilty of a misdemeanor and on ment not exceeding | year or a fine not exceeding Penalty. ‘conviction is subject to imy '$500 or both. FACTUAL AND PROCEDURAL HISTORY Based on the allegations in the TAC, Mr. Walker is an attorney who also writes ically. Brett Kimberlin is a convicted terrorist. Since being released from prison, ‘Mr. Kimberlin has tried to intimidate into silence anyone who criticizes his criminal and immoral activities. Mr. Walker became a particular target of Kimberlin’s ire by writingtruthfully about Mr. Kimberlin and by providing free legal help to targets of Kimberlin’s campaign of intimidation, Twice, Mr. Kimberlin obtained unconstitutional peace orders in Montgomery County District Cour, relying on §3-803, based on nothing more than peaceful expression directed to a general audience, In the second case, Mr. Kimberlin accused Mr. Walker of hharassment on the theory thet when Mr. Walker published articles accusing Mr. Kimbetin of reprehensible conduct that this amounted to incitement. Mr. Walker noted that his expression did not meet the constitutional test for incitement in Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) His expression did not meet even the most basic requirement ofthe Brandenburg test: He never advocated violence or unlawful conduct, Judge Vaughey replied, "Forget Brandenburg. Let's go by Vaughey right now, and common sense out in the world” and determined—contrary to controlling Supreme Court precedent—that Mr. ‘Walker had committed incitement, Both peace orders were ultimately dismissed on appeal to the Cieuit Court—after being in place for weeks—an unconstitutional prior restraint on Mr, Walker's freedom of expression ‘Additionally, Mr. Kimbertn and his wife have filed false eriminal charges claiming that: 1) Mr, Walker violated the second peace order (causing Mr. Walker to be arrested for ‘the first time in his life), 2) Mr. Walker harassed Mr. Kimberlin under §3-803 by peaceful expression and providing legal help to Mr, Kimberlin's “enemies,” and 3) Mr, Walker harassed Mrs. Kimberlin’s then-minor daughter, Kelsie Kimberlin, in violation of §3- 805(b)(2) by peacefully and truthfully reporting on the misconduct of Mr. Kimberlin. Each charge has been dismissed on a plea of nolle prosegul, 6‘The instant suit was filed on January 9,2015, in Montgomery County Circuit Court Mr. Walker asked the lower court to declare that §§3-803 and 3-805 violated the right of free expression under the First Amendment, The State filed a motion to dismiss opposed by Mr. Walker. Ata November 6, 2015, hearing, Jadze Mason granted dismissal for lack of standing an, inthe alterative, granted a declaratory judgment that §§3-803 and 3-805 ‘were constitutional, Mr. Walker appeals those rulings This ease was decided in the Montgomery County Cireuit Cour, styled then as Walker v. State, et.al, No. 398885 (Mont, Co. Cit. Ct. 2015). The Circuit Cour decision Mr. Walker seeks review of was orally rendered on November 6, 2015 with the writen ‘order issued on Novernber 17, 2015 and offically entered by the clerk on November 20, 2018, The Circuit Court has adjudicated all claims in their entirety and the rights and liabilities of each party. An appeal was decided on July 13, 2018, inthe Court of Special Appeals, siyled as Walker. State, etal, No. 02328 (September Term, 2016). No mandate has boen issued as ofthis writing, ‘A copy of the docket entries evidencing the judgment of the Montgomery County Circuit Court is attached as Exhibit A. There was no opinion issued in the Circuit Court However a copy ofthe relevant Circuit Court orders attached as Exhibit B. The case has been decided by the Court of Special Appeals anda copy of the Court of Special Apeals opinion is attached as Exhibit C.L IT IS IN THE PUBLIC'S INTEREST TO CORRECT THE COURT OF SPECIAL, APPEALS’ ERRONEOUS FINDING THAT MR. WALKER LACKED STANDING ‘The most remarkable element of the opinion below is that the Court of Special Appeals believed that 1) a person who had been prosecuted three times under the relevant statutes had no reasonable belief that he might be prosecuted in the future and 2) that such ' person experiences no continuing injury because he or she experiences a chilling effect con his or het freedom of expression. First, uniquely in the context of the First Amendment, the Supreme Court has ‘counseled that courts should be generous in determining whether a plaintiff has standing, For instance, in Secretary of State of Mé. v. Joseph H. Munson Co,, the Supreme Court stated that Within the context of the First Amendment, the Court has enunciated other cconcems that justify a lessening of prudential limitations on standing. Even where a First Amendment challenge could be brought by one actually engaged in protected activity, there is a possibility that, rather than risk punishment for his conduct in challenging the statute, he will refrain from ‘engaging further in the protected activity. Society as a whole then yvould be the loser. Thus, when there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be ‘outweighed by society’s interest in having the statue challenged, 467 US. 947, 956 (1984). ‘Second, the fact that §§3-803 and 3-805 are on the books is sufficient to creates ‘presumption that Mr. Walker reasonably fears prosecution under them. As stated in North Carolina Right to Life, Inc. . Bartlett, 68 F.3d 705 (4° Cir. 1999) ‘When a plaintiff faces a credible threat of prosecution undera criminal statute he has standing to mount a pre-enforcement challenge to that statute, See Doe 8v. Bolton, 410 US. 179, 188... (1973). A non-moribund statute that “facially restrict(s} expressive activity by the class to which the plaintiff belongs” presents such a credible threat, and a case or controversy thus exists in the absence of compelling evidence to the contrary... This presumption is particularly appropriate when the presence of a statute tends to chill the exercise of First Amendment rights Here, the relevant “class” being restricted is essentially “everyone” under §3-803 and “everyone who uses the Intemet” under §3-80S—Mr. Walker belonging to both classes— and there is no suggestion that either law is moribund, Section 3-803 has been enforced as recently as 2014, Gambrill v. State, 437 Md. 292 (2014), and §3-805 has been amended as recently as 2013. Therefore, there is a presumption that Mr. Walker has @ eredible fear of prosecution. Further, Mr. Walker can show more than a mere presumption: actually has been prosecuted" three times under these statutes and arrested once. ‘Third, the Court of Special Appeals gives only lip service to Mr. Walker's argument that he alleged a present injury caused by the chilling effect ereated by the statute and ‘completely ignored the legal standard by which such chilling effects are judged: ‘The determination of whether government conduct... has a chilling effect or an adverse impact is an objective one — we determine whether a similarly situated person of “ordinary firmness” reasonably would be chilled by the ‘government conduct in light ofthe circumstances presented in the particular case. * The Court of Special Appeals opinion also bizarrely states that Mr. Walker “doesn’t allege... that he has ever been... prosecuted for] the criminal charges brought under CL. §3- 803 and §3-805 because the state entered nolle prosequis.” Exhibit C, p. 8. However, in Hines v. French, 157 Md. App. 536, 852 A.2d 1047, 1057 (2004), the same court found that if a person is charged with a crime and the case ended with a nolle prosequi, that is sufficient to meet the prosecution requirement in a malicious prosecution case. 9Baltimore Sun v. Ehrlich, 437 F.3d 410 (4 Cir. 2006), Mr. Walker has faced three prosecutions under these statutes. Further, the Supreme Court has said that “prior restraints ‘on speech and publication are the most serious and the least tolerable inffingement on First Amendment rights,” Nebraska Press Assn. v. Stuart, 427 U.S. $39 (1976). Mr. Walker has been subjected to two such prior restraints. A reasonable person of ordinary firmness would obviously be chilled in future expression by such state conduct ‘Thus, the Court of Special Appeals’ conclusion that Mr. Walker does not have standing is contrary to the law and common sense, It seems that by the Court of Special Appeals’ reasoning, Mr. Walker would not have standing to challenge these laws unless he is actually convicted of violating these laws or has a peace order upheld on appeal to a circuit court. Any free speech activist reading that opinion would be tempted to intentionally break the law in such @ manner as to cause him or herself to be convieted or subjected to a peace order in order to create ajudiciable controversy. In order to affirm that cone does not have to break a law to bring a First Amendment challenge to that law, itis in the public’s interest that this Court grant certiorari. a. ‘THE PUBLIC INTEREST WOULD BE SERVED BY GRANTING CERTIORARI BECAUSE MD CODE CRIM. L. §§3-803 AND 3-805 ARE UNCONSTITUTIONAL, SINCE THEY DISCRIMINATE BASED ON CONTENT AND CANNOT PASS ‘THE STRICT SCRUTINY TEST Because of space limitations, this petition will focus on only one problem with these statutes under the First Amendment, First, there is no reasonable doubt that these laws discriminate based on content, In Forsyth Cty. v. Nationalist Movement, S05 US. 123, 134 (1992), the Supreme Coutt held 10that “Listeners’ reaction to speech is not a content-neutral basis for regulation.” More 137 8. Ct. 1744, 1763 and 1766-67 (2017), the recently in Matal v. Tam, $82U.S.__, Supreme Court held that regulation based on audience reaction was viewpoint discrimination as well. Further, there is no question that §§3-803 and 3-805 can be twiggered by the audience's reaction to expression: §§3-803(a) and 3-805(b)(1) ean be triggered by annoyance and §3-805(b)(2) can be triggered by serious emotional distress, Second, because §§3-803 and 3-805 are not content-neutra, they must survive the strict scrutiny test. “Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, 576 US.__, 135 $.Ct. 2218, 2226 (2018). Third, these statutes cannot survive the strict scrutiny test, Even assuming that the statutes were supported by a compelling purpose (and they are not), they are not narrowly tailored. Ordinarily, the rule for narrow tailoring is that “(if a less restrictive alternative ‘would serve the Govemment’s purpose, the legislature must use that altemative.” U.S. v Playboy Entertainment Group, Inc., 529 US. 803, 813 (2000). However, in Playboy the Supreme 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 thatthe right of expression prevails, even where no less restrictive alternative exists. We are expected to protect our own sensibilities “simply by averting four] eyes.” Cohen v. California, 403 US. 15, 21 (1971).1d. The purpose of §§3-803 and 3-805 is (at least in part) to “shield the sensibilities of listeners[|"and therefore, asin Playboy, the alleged vietims should be expected to avert ther eyes, Accordingly, §§3-803 and 3-805 are not narrowly tailored. Fourth, the question of whether these statutes are subject to strict serutiny and whether they can survive that test has never been addressed by this Court, casting serious doubt over countless convictions. Neither this Court nor the Court of Special Appeals have ever addressed whether §3-805(b)(2) is constitutional, Meanwhile, Galloway v. State, 365 Md. $99 (2001) analyzed a statute virtually identical to the present §§3-803, while 3- 805(b)(1) is virtually the same as §3-803, except it is limited to “electronic communication"—so Galloway's analysis would seem to apply to those provisions. However, Galloway never addressed the question of whether the statute it examined was ‘content and viewpoint-neutral or whether the statute could survive the strict serutiny test Indeed, attached as Exhibits D, E, and F, are the briefS filed in Galloway, showing that those questions were not raised in that case. Still, Forsyth Cty. has made it clear that these laws are not content-neutral, and “Content-based regulations are presumptively invalid.” RAY. v. City of St. Paul, 505 U.S. 377, 382 (1992). Therefore, this Court is justified in jonality ofboth taking this ease ifony to resolve the very serious doubts about the con statutes. Finally, itis particularly important to resolve doubts about the consttuionality of §§3-803 and 3-805, because the Respondents’ counsel shares those doubts. In its last session, the Maryland Assembly considered and ultimately rejected $B. 726 which would have expanded the reach of §3-805. Attached as Exhibit G is a true and correct copy of @ 12letter sent by the Office of the Maryland Attorney General to Delegate Vala the House Judiciary Committee. That letter raised serious doubts as to the constitutionality of the bill and may have been instrumental in its defeat However, much of the leter’s analysis applies equally 1o §§3-803 and 3-805(6)(2) as currently written, Most notably the letter states that $.B. 726 rewrites the definition of electronic communication to include not only communications that are directed to and received by the target of the harassment, but also to communications that are directed to the public in general on internet websites, social media, and so on. As you know, I have previously advised that a harassment statute ofthis type should not apply to situations where all of the communications are made in places open to the general public unless the communications contain “true threats.” ‘That analysis calls into question the constitutionality of §§3-803 and 3-805(b)(2). While §3-805(b)(1) is limited to harassment by “electronic communication” and the definition of | electronic communication” is limited to one-on-one communication, §§3-803 and 3- 805(b\2) do not have that limitation. Section 3-805(6)2) applies to any use of an “interactive computer service,” which includes communications to the world at large, while 3-803 applies to any activity that has the required effect on the audience, Thus, for instance, if President Trump's minor son reads an article on THE WASHINGTON Posts ‘website about his father that “seriously annoys” him and causes him “serious emotional distress” (while he is in Maryland), the authors could be charged under §§3-803 and 3- 805(b)(2), respectively. By the Office of the Attomey General's analysis, the constitutionality of these laws is doubtful at best. ‘Thus, there are two reasons why it is in the public interest to grant certiorari with respect to these substantive arguments. Fist, if Mr. Walker is right that these statutes are 3‘unconstitutional limitations on freedom of expression, then the public would benefit from having these laws thrown into the dustbin of history. Second, the public is not well-served by the doubt as to the consttutionality of these laws, fostered in part by the Office of the ‘Maryland Attomey General. For either of these reasons, this Court should grant certiorari, CONCLUSION It's desirable and in the public interest to grant certiorari for three reasons. Fist, it is in the public interest to correct the mile-high barrier that the Court of Special Appeals has erected to standing, especially in a case involving First Amendment freedoms. As it sands now, the Court of Special Appeals’ approach creates an incentive for free speech activists to break a law simply to challenge that law. Second, §§3-803 and 3-805 are content and viewpoint-based restrictions on expression that cannot withstand the strict scrutiny test and the publie would benefit from seeing those statutes struck down, In these times, more than most, the public would benefit from an affirmation of the principles of freedom of speech and of the press. Third, even if this Court does not yet agree that §§3-803 and 3+ 805 are unconstitutional, the public would benefit from this Court clarifying the constitutional status of these laws. For all of these reasons, this Court should grant certioratWednesday, August 8, 2017 Respectfully submitted, Mya Phone: (703) 216-0455 (no fax) AaronJ W1972@amail.com CERTIFICATION OF WORD COUNT AND COMPLIANCE WITH RULE 8-112 1. This document contains 3,868 words, excluding the parts of the document exempted from the word count by Rule 8-503, ‘This document complies with the font, spacing, and type size requirements stated in Rule 8-112. Specifically, this document was typed in Times New Roman, 13- point font 1 cerify that on August 8, 2018, served copies ofthe Appellant's Brief onthe State by Alexis Rohde, Esq., Office of the Attomey. General, 200 St. Paul Place, 20th Floor, Baltimore, Maryland, 21202 by frst class mail PieIypex o Extsurs: Exhibit A: Docket Entries for Walker v. Maryland, et al, No. 398855-V (Mont. Co, Cir. Ct. 2015), Exhibit B: Order and Declaratory Judgment of November 17, 2015 Exhibit C: Court of Special Appeals Opinion. Exhibit: Petitioner's Brief in Galloway v. State 365 Md, $99 (2001), Exhibit: Respondent's Brien Galloway x State 365 Ma. 599 2001). ExhibitF: Potitionr’s Reply Brief in Galloway v, State 365 Md, $99 (2001) Exhibit G: Letter from Office of the Maryland Attomey General to Delegate Vallario, Chair of the House Judiciary Commitee, April 2, 2018. 16EXHIBIT A