Walker Gets Help in His Free Speech Case

This post is an old one, but the mother of the child for whom Grace’s Law is named has found the post and commented.  Aaron also commented.  Rather than let their comments sit on an ancient blog post with no other readers, I have made this a ‘sticky’ seen at the top of this blog for the next day.

As Aaron states in his comment, we feel compassion for all those affected by the loss of a child.  On the other hand, some laws are just bad policy in the long run.

My personal opinion of hate speech laws and even hate crime laws are similar.  It’s not an easy subject, but it is important if we are to avoid bullying one group of people in the name of anti-bullying. 

The original post:


Content of speech can’t be restricted by the government

So Says the Supreme Court,  Prof. Eugene Volokh and Michael F. Smith..

Volokh and Smith have written a amicus curiae in support of Aaron Walker’s Grace’s Law suit.  Both are heavy hitters, respected by other lawyers, and on the correct side.

Aaron Walker has gone to court to get rid of Grace’s Law, a Maryland a so-called cyberbullying law, which makes it a crime to repeatedly and maliciously use a computer or smartphone to bully someone under the age of 18. 

Occasionally here we discuss ‘hate speech’ and the fact that legislation which criminalizes non-libelous, non-obscene non-threats and the like are wrong-headed.  I’m not in favor of actual hate speech. Links here and here.

Similarly, Aaron Walker does not want free reign to harass teenagers.  I’m guessing a bit here, but I actually think Walker thinks the First Amendment matters.  Walker was accused of violating Grace’s Law, but the accusation was without merit.  North Carolina’s cyber-bullying law was ruled unconstitutional recently.  Walker is on very solid ground here.

Volokh and Smith:


This matters because?  Volokh explained in an article last year in the Washington Post:

The Supreme Court has often said that the government generally may not impose content-based speech restrictions. Content-neutral restrictions, such as evenhanded restrictions on sound amplification, on blocking traffic, and the like are often constitutional; and that extends to content-neutral restrictions aimed at promoting aesthetics, such as limits on the size and quantity of signs.

But when the government restricts speech based on its content, such restrictions are generally unconstitutional.

(I’m speaking here of restrictions that the government imposes in its capacity as regulator, and not as employer, educator, or speaker; and I’m setting aside the historically recognized content-based exceptions, such as for libel, obscenity, threats, and the like.) They can only be upheld if they are “narrowly tailored” to a “compelling government interest” — the famous “strict scrutiny” test, which is quite hard to satisfy. And this is true not just for viewpoint-based laws (e.g., “no antiwar speech” or “no racist speech”) but also for viewpoint-neutral but not content-based ones (e.g., “no advocacy by corporations or unions related to any political candidate”).

He ran me right into the weeds on that last part, but obviously obscenity, threats and libel are content restrictions, and are just fine.

WE at Dave Alexander and Company wish Aaron good luck in this fight against those who would define away our free speech rights.

The entire  amicus curiae is posted here.



This entry was posted in Free Speech, freedom, Uncategorized. Bookmark the permalink.

13 Responses to Walker Gets Help in His Free Speech Case

  1. Jeanette Victoria says:

    North Carolina’s law banning cybyerbullying was struck down as well because it unconstitutionally restricts free speech,

    Liked by 3 people

  2. This Other Latin F*cker says:

    Gee that’s funny. I swear that William “Stolen Valor” Schmalfeldt said the only reason Walker wanted the law struck was so he could harasses little girls. I’d be VERY interested in Bill replying here with his reasons why he, by extension, must think that the premier 1st Amendment lawyer in the nation wants to harass little girls.

    Liked by 3 people

    • Grace says:

      Indeed, TOLF. And, lest we forget… it hasn’t solely been William “Stolen Valor” Schmalfeldt who has been running around the interwebz spewing those ridiculous lies and defamatory accusations.

      Let’s see The Deranged Cyberstalker BILL SCHMALFELDT, The Anklebiter WILLIAM A. FERGUSON, Bunny Boy MATT OSBORNE, and/or their slew of filthy socks over at BreitbartUnmasked accuse Mr. Volokh (and, Mr. Smith) of wanting to stalk and harass minor girls online with abandon. After all, these two gentleman are defending and supporting Aaron Walker and Mr. Walker’s arguments regarding the unconstitutionality of Grace’s Law via their amicus curiae.

      Come on, boys! Stand by the strength of those convictions! Do it for all of those poor, poor children you, and your master The Speedway Bomber BRETT KIMBERLIN, claim y’all care so much about!

      We already know the evil, lying goons are really, really damn stupid… but, let’s just see how stupid they really can be. I’d bet we haven’t even come close to plumbing the depths that barrel yet.

      Liked by 1 person

  3. Aaron "Worthing" Walker says:

    Minor correction. i am challenging Grace’s law and two other harassment statutes. Otherwise, thanks for the writeup and the help from Volokh in company is greatly appreciated.

    Liked by 4 people

    • As the mother of Grace McComas, I am appalled at what you are trying to do here.
      This law is NEEDED to protect CHILDREN from the type of abuse whuch we knew about but couldnt get help for.
      It has been carefully crafted to pass muster. No fears for your 1st Amendment rights.
      Shame on you Mr. Walker.


      • gmhowell says:

        Boy, that was a substantive response. You’re going to need a lot more than assertion to get past “Congress shall pass no law…” You sound like the Brits and Canadians who pretend they have freedom of speech.


      • Ms. McComas, if the law was needed, why have there been exactly zero prosecutions under its provisions? I don’t even know of any attempt to invoke it, other than the unsuccessful [in part because it was fraudulent] attempt against Mr. Walker.

        In case you thought the mere existence of the law ended online bullying, nope. The prosecutors of MD will not be bringing charges against anyone, because they know this law will just be overturned should they actually get a conviction. That is in fact the largest hurdle for Mr. Walker. He wasn’t actually prosecuted, not arrested, not even questioned. The lack of clearly demonstrable harm from the Kimberlin’s perjurious bamboozling of a court commissioner makes it too easy for the MD courts to just wave away the clear 1st Amendment violation this law represents.

        Liked by 2 people

      • Aaron "Worthing" Walker says:

        Mrs. McComas,

        For starters, I am deeply sorry for your loss. And I will credit your position as being one born out of concern for protecting children, which is noble.

        But I think if you look at how the law bearing your daughter’s name is being used, you would be dismayed. Let’s talk about Brett Kimberlin. Mr. Kimberlin is a convicted serial bomber known as the Speedway Bomber. (Speedway is a town in Indiana, famous for being the actual location of the track of the Indianapolis 500.) It is long suspected that Mr. Kimberlin’s campaign of terror was motivated by a relationship with an underage girl named Debbie Barton. Debbie was 10 when she entered his life, 14 when she left it.

        The police’s suspicion—and I wish to emphasize that at this time it is merely a suspicion—goes as follows. Mr. Kimberlin moved in with Debbie’s mother, Sandi, and had some kind of relationship with this girl. We don’t know for sure he had sex with her, but there were suspicious circumstances. Mr. Kimberlin told several of his friend and later his wife that Debbie was his “girlfriend.” He went on trips with this girl, just him and her, to places like Disney World and Florida. Later when he was faced with the prospect of no longer being in her life, he became suicidal. In any case, Sandi was fine with… whatever the relationship was, but Debbie’s maternal grandmother, Julia Scyphers, was extremely upset and extremely vocal about it. And then one day someone murdered Mrs. Scyphers. And the lead suspect was a person in the drug business with Mr. Kimberlin (Kimberlin was also a major drug dealer). So the suspicion was that the bombing campaign which consisted of 8 bombs set off in 6 days, was a ploy to keep the police busy so they could not focus on the investigation into the murder. Which admittedly doesn’t seem like rational behavior, but then again, is there a rational reason to bomb a town for nearly a week?

        By the way, bolstering the suspicion of an untoward relationship with Debbie Barton is the mountain of evidence that Mr. Kimberlin is into underage girls. For instance, here is an interview he gave where he talked about wanting to f—k underage girls. http://www.washingtoncitypaper.com/arts/music/article/13010250/jailbird-rock And in a recent trial, his wife, Tetyana Kimberlin, stated under oath that Brett Kimberlin seduced her at the age of fourteen. Mr. Kimberlin claimed that he thought she was two years older: in other words, she looked 16, I suppose.

        So if you are concerned about the safety of children—as all good people are—then obviously the children of Montgomery County, Maryland, (where he lives) need to be protected from Mr. Kimberlin. This would suggest maybe he should be prosecuted. And, certainly, if he isn’t prosecuted, the parents of his community should at least be warned, right?

        Well, that’s what I did—I warned the community by peacefully writing about it on the internet—and I was charged with a crime. Specifically, a violation of Grace’s Law. That is, the law you advocated in order to protect children, was being used as a shield for a man who has been credibly accused of being a child predator. The theory was that by accusing Mr. Kimberlin of this kind of conduct to the world at large that somehow it harmed his wife’s eldest daughter, and thus I was committing a crime, somehow. This was true despite the fact that there was no evidence of any communication targeted toward her.

        Indeed, in part the charges stemmed out of my help to Tetyana Kimberlin as a lawyer. You see at one point Tetyana left her husband and wanted custody of their children. I am a lawyer in Virginia and D.C. but not in Maryland. So I could give her advice (while present in D.C. and VA), but I could not represent her in court in Maryland. I did this pro bono—that is free of charge—because I agreed that Mrs. Kimberlin was obviously a better choice to raise their two young daughters, who were aged 10 and 14 at the time. I was particularly concerned about Mr. Kimberlin being alone with his eldest daughter because Mrs. Kimberlin told me that she was not genetically his (he disputes this, but I believe my former client). I am not sure if Mr. Kimberlin would touch either of her daughters, but 1) I didn’t think it was appropriate to take the chance, and 2) those daughters could give him access to other teenage girls that might be in danger from him.

        So I 1) warned the community of a possible sexual predator in their midst by engaging in peaceable speech on the internet and 2) provided legal representation to a woman in a custody dispute with said possible sexual predator. And for that, I was charged with a crime, under a law designed to protect children.

        Now, to be fair to the Montgomery County State’s Attorney’s office (MCSA), these charges were citizen complaints—that is, they were not issued by the police or the MCSA. And the MCSA dismissed the charges voluntarily when they realized what was actually going on here. But this is just one example of the more than 5 years of abuse of the legal system that Mr. Kimberlin has inflicted upon me and others, to try to shut us up about him. He has admitted to criminal conduct that could get him up to 10 years in prison. The MCSA refuses to prosecute him.

        (And, given that this has been 5 years, I am giving you a greatly truncated version of events.)

        As for Grace’s law, a law like this might be a good thing, but as it is written it is unconstitutional. I invite you to read my brief and Mr. Volokh’s brief as well. Mr. Volokh felt so strongly about this he is doing this free of charge, too. Bluntly, the persons you should denounce isn’t those challenging the law but those who wrote one that is so flagrantly unconstitutional as written. I could show you, how in many respects, it is as though they read all the case law on how to write a constitutional harassment statute and did the opposite.

        So as far as Grace’s law is concerned, if you wish to discuss how the law can be improved so it can pass constitutional muster, feel free to contact me at AaronJW72@gmail.com. And if you are starting to think that it is appalling that Brett Kimberlin is walking around a free man in Montgomery County, and want to try to get officials to do something about that, too, contact me the same way.

        And like I said, I am deeply sorry for your loss and I don’t fault you for having a visceral reaction. I hope by writing this or with further dialogue, I will convince you to see this matter as being a little more complicated and hopefully motivate some positive action.


        P.S.: You can read much more about what I have been talking about by buying the book at this link: https://www.amazon.com/Citizen-Deeply-American-Journey-Kimberlin/dp/0679429999 The majority of the allegations I just made against Mr. Kimberlin were from that book.

        Liked by 3 people

      • Gus Bailey says:

        A law, not this one.

        Liked by 2 people

      • Grace says:

        “A law, not this one.”

        Indeed, Gus. It is very clear to anyone paying attention that cyberbullying is an acute problem… a problem that deserves a serious and long-term remedy. However, a serious remedy is not worth the paper it’s written on if it will not pass constitutional challenges.

        Firstly, I want to state that as a Mother myself, words cannot begin to express the sympathy I have for Mrs. McComas who has experienced what can only be Hell on Earth due to the loss of her precious child. Like Aaron… I, too, will credit Mrs. McComas’ position as being one born out of concern for protecting children. The fact she has suffered such a loss, yet has managed to find the strength and determination to move forward, determined to prevent such a horrific experience and outcome for other children and their families, is very noble. I am in awe of her efforts, and extend my appreciation for them.

        With that said… as previously stated, the reality is there have been no prosecutions under Grace’s Law. And, taking into consideration cyberbullying continues to be a raging epidemic… I believe there is much need and value behind asking the question as to “Why?” this is the case – then dutifully pursuing an answer and changing this unacceptable reality. It has been posited it is due to the fact the powers-that-be “know this law will just be overturned should they actually get a conviction” – and, I wholeheartedly agree.

        Unfortunately, we far too often find ourselves with government officials, elected or otherwise, who believe doing something… anything… is simply good enough – even though the effort and/or the legalities and/or the intentions behind it may be flawed – even if that “something or anything” has the very real potential of producing a negative result, or in the case of Grace’s Law… really no result or solution at all.

        The McComas family, and families like them, have already endured heartbreak and sadness the likes of which the majority of us have never had to face. It would be a real shame for them to have to endure even more when the very law they have relied upon to prevent another tragic death proves to be impotent, and is inevitably overturned due to its unconstitutional nature.

        I will reiterate what Gus stated above… “A law, not this one.” I truly hope Mrs. McComas is able to eventually step back for a moment, hit her internal pause button, and strongly consider taking Aaron up on his generous offer to discuss how Grace’s Law can be improved to pass constitutional muster. He knows of what he speaks – and his intentions, too, are very sincere and noble. Over the course of the four+ years I have come to know Aaron Walker, and have closely followed along and supported his efforts in defending our constitutional rights, I know him to be a man of strong and virtuous conviction. He is a man of strong moral fiber with the wisdom and desire to help others and do what he can to right wrongs… often times at great personal sacrifice.

        I, too, hope Mrs. McComas comes around to eventually realize that not Aaron, nor Law Professor Volokh, nor those of us who support their efforts in challenging Grace’s Law, are the enemy here. I am not judging Mrs. McComas for the knee-jerk, emotional comment she posted above. In light of her loss, it is quite understandable. However, I believe if she takes the time to familiarize herself with Aaron and Professor Volokh’s experiences and knowledge, reads the Walker and Volokh briefs, and sincerely attempts to understand the unconstitutional issues inherent in Grace’s Law, she, too, will understand that some much-needed changes are necessary in order to truly protect and defend our children from cyberbullying with something more than a static, ineffectual, and unconstitutional law.

        Lastly, I extend my heartfelt prayers to the McComas family. May God continue to afford them His peace which passes all understanding. And, may He continue to keep His beautiful child Grace wrapped safely in His steadfast and loving arms.


  4. Pingback: Dear Judge, are you as lonely as me? | Dave Alexander & Company with David Edgren and Gus Bailey – The Artisan Craft Blog

  5. The least efficient way to harass a child is to a) go to court to change the law, then b) harass away.
    The Schmalfeldtian-Kimberlinian perspective on this is just illogical. As usual.

    Liked by 2 people

    • onwyrdsdream says:

      A moment of devil’s advocacy.

      If K wanted the law gone, accusing Walker would be pretty effecient. Walker is a sufficiently riled 1st ammendment advocate with a strong sense of justice, and at this point K presumably thinks no matter what accusation he makes, the court won’t hold him responsible for wasting their time. Besides that, if Walker did attack the law, it is another Avenue for accusations without evidence. Which actually happened.. writing about how he was going after this law for protecting children… Though the law itself is ineffectual and likely wouldn’t survive a legal challenge, some of his alleged associates do a certain amount of dumpster diving for family members and would potentially find it damaging if used against them, so there is at least some motive.

      Now returning to regular advocacy mode.

      Liked by 1 person

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