In the Court of Special Appeals

of Maryland
September Term, 2015,
No. 2092

AARON J. WALKER, ESQ.,

Appellant,
v.
STATE OF MARYLAND, ET AL.,
Appellees.
Appeal from the Circuit Court of Montgomery County, Maryland
(Hon. Michael D. Mason, Judge)
BRIEF OF APPELLANT AARON J. WALKER, ESQ.,

Aaron J. Walker, Esq.

(Va Bar# 48882)
P.O. Box 3075
Manassas, Virginia 20108
(703) 216-0455
(No fax)
AaronJW1972@gmail.com

TABLE OF CONTENTS
Table of Authorities

iii

Appellants Brief

Statement of the Case

Questions Presented

Statement of Facts

Legal Standard

I.

THE
APPELLANT
HAS
STANDING
TO
CHALLENGE
CONSTITUTIONALITY OF MD CODE CRIM. L. 3-803 AND 3-805

II.

MD CODE CRIM. L. 3-803 AND 3-805 ARE UNCONSTITUIONAL

BECAUSE THEY INFINGE ON FIRST AMENDMENT FREEDOMS
9
A.

B.

THE
5

Section 3-805(b)(2) is Unconstitutional Because It Depends on Audience

Reaction, Rendering It an Impermissible Content-Based Restriction on
Expression
9
1.

Section 3-805(b)(2) is a content-based restriction on expression

because it depends on audience reaction and, therefore, it is subject
to the strict scrutiny test
10

2.

Protecting persons from emotional distress is not a compelling

interest
13

3.

Section 3-805(b)(2) is not narrowly tailored

(i).

Section 3-805(b)(2) is not narrowly tailored because there is

the less restrictive alternative of averting ones eyes
16

(ii).

Section 3-805(b)(2) is not narrowly tailored because it strips

away important protections for freedom of expression present
in other harassment statutes
17

Sections 3-803 and 3-805(b)(2) are Unconstitutional

Developments in the Law Since Galloway v. State
1.

15

Based

on
19

Subsequent case law demonstrates that 3-803 and 3-805(b)(1) are

content-based restrictions on expression because criminality depends
on the behavior of third parties
19

III.

2.

Sections 3-803 and 3-805(b)(1) do not promote a compelling interest

22

3.

Sections 3-803 and 3-805(b)(1) are not narrowly tailored because

there is the less restrictive alternative of averting ones eyes
26

MD CODE CRIM. L. 3-803 AND 3-805 ARE UNCONSTITUTIONAL TO

THE EXTENT THAT THEY REGULATE INTERNET ACTIVITY BECAUSE
THEY VIOLATE THE DORMANT COMMERCE CLAUSE
26

CONCLUSION

29

Text of Cited Constitutional Provisions and Statutes

32

Proposed Order

ii

TABLE OF AUTHORITIES

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

28

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

28

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

27-28

Babbit v. United Farm Workers Natl Union, 442 U.S. 289 (1979)

Bachellar v. Maryland, 397 U.S. 564 (1970)

24

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

28

Bradley v. Bradley, 214 Md.App. 229 (2013)

Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995)

24

Coates v. Cincinnati, 402 U.S. 611 (1971)

24

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

16

Conn. v. Snyder, 49 Conn.App. 617, 717 A.2d 240 (1998)

19

Dombrowski v. Pfister, 380 U.S. 479 (1965)

6-7

Forsyth Cty. v. Nationalist Movement, 505 U.S. 123 (1992)

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

10-11, 21-22
i, 9, 17-26, 30

Grayned v. City of Rockford, 408 U.S. 104 (1972)

Hedges v. Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295 (7th Cir.1993)

23

In re Tam, No. 2014-1203 (Fed. Cir., Dec. 22, 2015)

11

Initiative and Referendum Institute v. Walker, 450 F.3d 1082 (10th Cir. 2006)

Joseph H. Munson Co., Inc. v. Secy of State, 294 Md. 160 (1982)

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

McCauley v. U. of V.I., 618 F.3d 232 (3rd Cir. 2010)

iii

1, 3
14-15

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

28

Netherland v. City of Zachary, 527 F.Supp.2d 507 (M.D. LA. 2007)

24-25

Ovadal v. City of Madison, 416 F.3d 531 (7th Cir. 2005)

22-23

PSINet, Inc. v. Chapman, 362 F.3d 227 (4th Cir. 2004)

28

R.A.V. v. St. Paul, 505 U.S. 377 (1992)

13

Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015)

11

Sabelko v. City of Phoenix, 846 F.Supp. 810 (D. AZ. 1994)

21-21

Shirmer v. Nagode, 621 F.3d 581 (7th Cir. 2010)

20-21

Sirpal v. Wang, 2012 WL 2880565, at *4 (D. Md. 2012)

14

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

12

Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761 (1945)

28

Swagler v. Sheridan, 837 F.Supp.2d 509 (D. Md. 2011)

23-24

Terminiello v. Chicago, 337 U.S. 1 (1949)

15

Texas v. Johnson, 491 U.S. 397 (1989)

23

U.S. v. Cassidy, 814 F.Supp.2d 574 (D. Md. 2011)

11

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

27

U.S. v. Marcavage, 609 F.3d 264 (3rd Cir. 2010)

24

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

10, 14, 16-17, 22, 26, 30
U.S. v. Stevens, 130 S.Ct. 1577 (2010)

14

Virginia v. Am. Booksellers Assn, 484 U.S. 383 (1988)

Virginia v. Black, 538 U.S. 343 (2003)

5
25

iv

CONSTITUTIONAL PROVISIONS, STATUTES AND RULES

MD CODE Crim. L. 3-803

passim

MD CODE Crim. L. 3-805

passim

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

passim

U.S. CONST. amend. 1, cl. 4

passim

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

1-4, 26-30

15 U.S.C. 1052(a)

11-11

ARTICLES, BOOKS AND WEBSITES

Dr. Martin Luther King, Jr., LETTER FROM A BIRMINGHAM JAIL

23

STATEMENT OF THE CASE

As alleged in the Third Amended Complaint (TAC), Appellant Walker1 is an
attorney (outside of Maryland), and a journalist. One of his journalistic subjects is the
past and present immoral and criminal conduct of convicted terrorist Brett Kimberlin.
Kimberlin v. White, 7 F.3d 527, 528-29 (6th Cir. 1993). Mr. Kimberlin has retaliated
against Mr. Walker by filing two peace orders in the last four years based in whole or in
part on MD CODE Crim. L. 3-803, and by filing (with his wife) false criminal charges
alleging harassment, violation of a peace order which was based on allegations of
harassment, and electronic harassment under MD CODE Crim. L. 3-805. All of these
were based on nothing more than Mr. Walkers peaceable expression, protected by the
First Amendment, and peaceful representation of clients whom Mr. Kimberlin was
targeting with similar misconduct. Mr. Walker sued the State of Maryland, and Mr. and
Mrs. Kimberlin to stop this abuse of these laws. Specifically in relation to this current
appeal, Mr. Walker sought a declaratory judgment holding that 3-803 and 3-805 are
unconstitutional under the First Amendment and the Commerce Clause of the U.S.
Constitution. At a November 6, 2015, motions hearing, the Honorable Michael D. Mason
first granted the States Motion to Dismiss for lack of standing and, reasoning in the
alternative, he granted a Declaratory Judgment to the State upholding both statutes. Mr.
Walker seeks to have that ruling reversed: for this Court to hold that Mr. Walker has
standing to challenge these statutes; that both statutes violate the First Amendment
because they represent impermissible content-based restrictions on free expression; and,
1

Mr. Walker refers to himself in the third person for stylistic purposes.
1

that to the extent that these statutes regulate Internet activity, they are unconstitutional
under the Federal Commerce Clause.
QUESTIONS PRESENTED
1.
Whether the Circuit Court erred in holding that Mr. Walker lacked
standing to challenge MD CODE Crim. L. 3-803 and 3-805.
2.
Whether MD CODE Crim. L. 3-803 and 3-805 are impermissible
content-based restrictions on freedom of expression in violation of First
Amendment to the U.S. Constitution.
3.
Whether MD CODE Crim. L. 3-803 and 3-805(b)(1) are
unconstitutional under the dormant Federal Commerce Clause to the
extent that they apply to the Internet.
STATEMENT OF FACTS
As a preliminary matter, it is worth taking a moment to review what this appeal
does not involve. First, it does not involve the prior complaints in this case: Mr. Walker
has only appealed the States victories in relation to the Third Amended Complaint
(TAC). Second, this appeal involves only one of the several state-actor defendants
listed in the TAC: the State of Maryland.

The other state-actor defendants were

dismissed from the case before the November 6, 2015, hearing (R55), and Mr. Walker is
not appealing that decision. Third, this appeal does not involve co-Defendants Mr. and
Mrs. Kimberlin. On the States motion, the case involving the State was severed from the
case involving the other two defendants (the Kimberlins). (E125, 167) Therefore, this is
not properly considered an interlocutory appeal. The moment the case was severed, the
previous single case became two cases, and it was only after severance that the States

motion to dismiss was granted (E142-144).

Therefore, that dismissal was a final

judgment for purposes of appeal.

The question before this Court is whether MD CODE Crim. L. 3-803 and 3-8052
are unconstitutional because they violate the First Amendment, U.S. CONST. amend. 1,
cls. 3 and 4, or the Interstate Commerce, U.S. CONST. art. I, 8, cl. 3, and whether Mr.
Walker has standing to bring this suit.
The relevant facts are summarized as follows.3 Mr. Walker is an attorney who also
writes journalistically as a hobby. (E33) Brett Kimberlin is a convicted terrorist. White, 7
F.3d at 528-29. Since being released from prison, Mr. Kimberlin has tried to intimidate
anyone who criticizes his past and present criminal and immoral activities. (E28, 32-34,
58) Mr. Walker became a particular target of Kimberlins ire by providing free legal help
to two targets of Kimberlins campaign of intimidation, and by writing truthfully about
Mr. Kimberlin. (E28-29, 31-35, 51-54) Mr. Kimberlin is like Al Capone, using muscle
in an attempt to silence Mr. Walker, but instead of using criminal thugs as enforcers, Mr.
Kimberlin uses the instrumentalities of the State to do his dirty work. (E28-29, 35-48, 5154, 58-62)
Twice, Mr. Kimberlin obtained unconstitutional peace orders in Montgomery
County District Court, relying on 3-803, based on nothing more than peaceful
2

In Count V of the TAC, Mr. Walker inadvertently referred to these statutes as MD CODE
Cts. & Jud. Proc. 3-803 and 3-805 instead of MD CODE Crim. L. 3-803 and 3-805 as
he did throughout the rest of the Complaint. He apologizes for this error and appreciates
the States willingness to read the Complaint generously, recognizing this typographical
error for what it was. See, e.g. E77.
3
Since this is an appeal of a motion to dismiss the decision, all facts properly alleged in
the TAC must be accepted as true. See infra p. 5.
3

expression directed to a general audience. (E29, 41-48) Both orders were dismissed on
appeal to the circuit court. (E29, 42, 47-48) Additionally, Mr. Kimberlin and his wife
have filed false criminal charges claiming that 1) Mr. Walker violated the second peace
order, 2) that Mr. Walker harassed Mr. Kimberlin under 3-803 by peaceful expression
and providing legal help to his enemies, and 3) that Mr. Walker harassed Mrs.
Kimberlins minor daughter under 3-805(b)(2) by peacefully and truthfully reporting on
the conduct of Mr. Kimberlin. (E29, 47, 54, 58-62) Each charge has been dismissed on a
plea of nolle prosequi. (E29, 54, 61-64) Focusing solely on the claims against the State,
Mr. Walker asked the Montgomery County Circuit Court to declare that 3-803 and 3805 violated the right of free expression under the First Amendment, and, to the extent
that these statutes regulate the Internet, they violated the Commerce Clause. (E66-67)
The State filed a motion to dismiss, and it was opposed by Mr. Walker. (E69-102, 103118) On November 6, 2015, Judge Mason dismissed the case against Maryland for lack
of standing and, in the alternative, granted a Declaratory Judgment that 3-803 and 3805 were Constitutional. (E142-144, 167-172) Mr. Walker seeks to reverse these rulings,
and for this Court to strike down both statutes.
LEGAL STANDARD
Because this is an appeal from a successful motion to dismiss, the correct standard
for review is as follows:
We review a trial courts grant of a motion to dismiss de novo.... [W]e
assume the truth of all of the well-pled facts in the complaint and attached
exhibits, and the reasonable inferences drawn from them, in a light most
favorable to the non-moving party.... Dismissal is proper only if the well4

pled facts and permissible inferences would, if proven, nonetheless fail to

afford relief to the plaintiff.... Because we deem the facts to be true, we
determine only whether the trial court was legally correct in its decision to
dismiss.
Bradley v. Bradley, 214 Md.App. 229, 234 (2013).
I.
THE APPELLANT HAS STANDING TO CHALLENGE THE
CONSTITUTIONALITY OF MD CODE CRIM. L. 3-803 AND 3-805
The Court below erred by determining that Mr. Walker lacked standing to
challenge 3-803 and 3-805. Judge Masons reasoning was vague, stating only that the
State made a valid argument. (E143) The State, in turn, argued the following:
Plaintiff Walker lacks standing to challenge the Constitutionality of these
[statutes.] Plaintiff is not now imprisoned nor is he currently facing
criminal prosecution based on 3-803 and 3-805 of the Criminal Law
Article and thus, he lacks standing to challenge the constitutionality of
these statutes under the Maryland Declaration of Rights or the United
States Constitution. In order to have standing to challenge a statute on First
Amendment grounds, a Plaintiff must demonstrate an actual well-founded
fear that the law will be enforced against them. Virginia v. Am.
Booksellers Assn, 484 U.S. 383, 393 (1988). Plaintiff has no such
reasonable fear.
Although Plaintiff faced charges related to these statutes, Plaintiff was not
convicted because, based on the application of the statute, his conduct was
not found to have violated either 3-803 or 3-805.
The standing standard for non-first-amendment claims is slightly higher
and requires a realistic danger of sustaining a direct injury as a result of
the statutes operation or enforcement. Babbit v. United Farm Workers
Natl Union, 442 U.S. 289, 298 (1979). Here, as the facts show, Plaintiff
does not face a realistic danger of being prosecuted based on the application
of the statutes as the fact that Plaintiff was charged but was not ultimately
found guilty of violated 3-803 or 3-805. Simply because Mr. or Mrs.
Kimberlin were able to manipulate facts in order to have a Commissioner
issue charges against Plaintiff Walker does not mean that the statute is
flawed. Thus, Plaintiffs claims based on 3-803 and 3-805 of the
Criminal Law Article must be dismissed.
5

(E78-79)
The first error the State makes in this argument is that it asserts that a past injury is
insufficient. This directly contradicts Joseph H. Munson Co., Inc. v. Secy of State, 294
Md. 160, 171 (1982) where the Court of Appeals declared that Munson clearly had
standing to challenge the facial constitutionality of Art. 41, 103D, because Munson
has clearly suffered injury as a result of that provision. Applied here, Mr. Walker has
been injured by both statutes because 1) he has been repeatedly prosecuted under them
and 2) faced repeated peace orders which were granted by the District Court only to be
overturned by the Circuit Court. This injury is sufficient to confer standing.
Second, the State misapplied the standards for when a chilling effect is sufficient,
saying that Mr. Walkers fear of future prosecution is not reasonable based on the facts
alleged in the TAC. The state seems to think that only the fear of successful prosecution
can create standing, which is contradicted by Dombrowski v. Pfister, 380 U.S. 479, 482
(1965), where the plaintiffs alleged that they were subjected to constant prosecution
under an unconstitutional statute and that
the complaint further alleges that the threats to enforce the statutes against
appellants are not made with any expectation of securing valid convictions,
but rather are part of a plan to employ arrests, seizures, and threats of
prosecution under color of the statutes to harass appellants and discourage
them and their supporters from asserting and attempting to vindicate the
constitutional rights of Negro citizens[.]
As in Dumbrowski, Mr. Walker has been threatened with prosecution because he has
engaged in protected expression (E28-29), and he has been unlawfully arrested (E47), in
a campaign to discourage Mr. Walker from exercising his right to freedom of expression
6

(E28-29). Further, the Dumbrowski court did not believe a likelihood of obtaining a
conviction was necessary to create a chilling effect sufficient for standing purposes:
Even the prospect of ultimate failure of such prosecutions by no means dispels their
chilling effect on protected expression. 380 U.S. at 494.
This only makes sense. Many ordinary people fear prosecution and arrest even if
acquittal is assured. Therefore, many ordinary people will be intimidated into silence by
the mere threat of a criminal charge. This kind of chilling effect is forbidden under the
First Amendment, and, as a continuing injury, provides a basis for standing.
Third, alternatively, standing can be triggered by a reasonable fear of any other
consequences flowing from the statutes enforcement.

As stated in Initiative and

Referendum Institute v. Walker, 450 F.3d 1082, 1088 (10th Cir. 2006) (citations, quotation
marks and brackets omitted):
a chilling effect on the exercise of a plaintiffs First Amendment rights may
amount to a judicially cognizable injury in fact, as long as it arises from an
objectively justified fear of real consequences....
Although mere
allegations of a subjective chill are not an adequate substitute for a claim of
specific present objective harm or a threat of specific future harm...,
plaintiffs may bring suits for prospective relief in First Amendment cases
where they can demonstrate a credible threat of prosecution or other
consequences flowing from the statutes enforcement.
Thus standing could be satisfied by the fear of being repeatedly subjected to peace orders
as an other consequence of the enforcement of these statutes. Mr. Kimberlin has
already obtained two unconstitutional peace orders against Mr. Walker in district court
based on 3-803, and there is no reason to believe he couldnt obtain a third.

Further, the State asserts that the fact that Mr. Walker is claiming that these
statutes were wrongfully applied to him somehow means that he does not have standing.
One of Mr. Walkers arguments is that the statutes are vague enough that persons of
common intelligence can mistakenly believe they apply to conduct fully protected by the
First Amendment. One harm that flows from vague statutes is that those who enforce
these laws might accidentally enforce them against people engaged in protected
expression. See generally Grayned v. City of Rockford, 408 U.S. 104, 108-9 (1972).
This has happened twice to Mr. Walker, his freedom of expression being abridged
unconstitutionally by the district court while he waited for months to appeal to the circuit
court.
Mr. Walker poses three questions the State should answer in its response to this
brief. First, is it unconstitutional to continually charge someone with a crime because he
or she has engaged in protected speech, so long as the charges are dropped eventually?
Second, is it unconstitutional for someone to be continually subjected to unconstitutional
peace orders that restrict protected freedom of expression so long as they are eventually
dismissed on appeal even as the orders apply in the interim? Finally, if the answer to the
first two questions is yes, how would a person in Mr. Walkers position vindicate
his/her constitutional rights?
According to the State thus far, Mr. Walker has no way to ask Marylands courts
to stop this injustice. He simply must bear it, or forego the very Constitutional rights he
seeks to vindicate in this case. That is not the law in Maryland.

II.
MD CODE CRIM. L. 3-803 AND 3-805 ARE UNCONSTITUIONAL BECAUSE
THEY INFINGE ON FIRST AMENDMENT FREEDOMS
The lower court also erred by refusing to grant a declaratory judgment that 3803 and 3-805 violated the First Amendment.
In relation to 3-803 and 3-805(b)(1), Galloway v. State, 365 Md. 599, 781 A.2d
851 (2001) should be overturned. Mr. Walker recognizes that this Court is unlikely to
declare that Galloway was wrongly decided at the timethis Court is likely to believe
that determination is reserved for the Court of Appealsbut this Court can hold that even
if Galloway was rightly decided at the time, subsequent developments in the law have
rendered Galloway unconstitutional.
Meanwhile, 3-805(b)(2) does not enjoy the shield of precedent to protect it.
Taking this issue on first impression, this statute is a content-based restriction on
protected expression that cannot withstand the strict scrutiny test. Indeed, the statute fails
even on Galloways terms, because it removes protections for free expression that were
critical in Galloway.
Accordingly, the Circuit Courts declaratory judgment should be vacated with
instructions to the lower court to enter a declaratory judgment holding that both statutes
are unconstitutional.
A.

Section 3-805(b)(2) is Unconstitutional Because It Depends on Audience

Reaction, Rendering It an Impermissible Content-Based Restriction on
Freedom of Expression
Because this is a case of first impression, 3-805(b)(2) is the most vulnerable of

the provisions at issue. Because criminality can turn on audience reactionthat is, a
9

minors feeling of serious emotional distress can satisfy an element of the offense3805(b)(2) is a content-based regulation of expression. Therefore, this statute must pass
strict scrutiny: it must be narrowly tailored to serve a compelling interest. Section 3805(b)(2) fails this test.
1.

Section 3-805(b)(2) is a content-based restriction on expression because it

depends on audience reaction and, therefore, it is subject to the strict
scrutiny test

The Supreme Court has said time and again that if a statute regulates the content
of expression, it must survive the strict scrutiny test.

See, e.g., U.S. v. Playboy

Entertainment Group, Inc., 529 U.S. 803, 813 (2000) (Since 505 is a content-based
speech restriction, it can stand only if it satisfies strict scrutiny). Under 3-805(b)(2),
criminal liability depends on the reaction of the audience to speech. Namely, a person
can be convicted under 3-805(b)(2) if she engages in Internet activity that inflicts
serious emotional distress on a minor with the appropriate intent.

Courts have

repeatedly held that a statute that regulates expression according to audience reaction is
not content-neutral.
For instance, in Forsyth Cty. v. Nationalist Movement, 505 U.S. 123 (1992), the
Supreme Court struck down an ordinance that varied the fee for parade permits based on
the estimated cost of maintaining public order. At first glance, this regulation does not
seem to regulate the content of speech, but the Supreme Court held that in reality it was
not content-neutral because the danger of a breach of peace was directly related to
audience reaction, which would turn on how offensive the speakers message was. A
parade of flag burners was more likely to be violently attacked by opponents than a
10

patriotic Fourth of July parade. Reasoning that Listeners reaction to speech is not a
content-neutral basis for regulation, id. at 134, the Supreme Court struck down this
statute.
This principle has been upheld as recently as last December in In re Tam, No.
2014-1203 (Fed. Cir., Dec. 22, 2015). Simon Tam, an Asian American, founded a band
called The Slants to combat anti-Asian stereotypes, but found he could not register
The Slants as a U.S. Trademark because it was allegedly offensive to Asian Americans.
The Federal Circuit wrote that
It is beyond dispute that 2(a) [15 U.S.C. 1052(a)] discriminates on the
basis of content in the sense that it applies to particular speech because of
the topic discussed. Reed [v. Town of Gilbert, 135 S.Ct. 2218, 2227
(2015)]. Section 2(a) prevents the registration of disparaging marksit
cannot reasonably be argued that this is not a content-based restriction or
that it is a content-neutral regulation of speech. And the test for
disparagementwhether a substantial composite of the referenced group
would find the mark disparagingmakes clear that it is the nature of the
message conveyed by the speech which is being regulated. If the mark is
found disparaging by the referenced group, it is denied registration.
Listeners reaction to speech is not a content-neutral basis for regulation.
Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 134 (1992).
Id. at *18-19. Accordingly, the Tam court struck down 15 U.S.C. 1052(a) (prohibiting
the registration of disparaging trademarks) because it violated the First Amendment.
Federal courts have specifically found that prohibitions on the infliction of
emotional distress amount to content-based regulation. For instance, the statute struck
down in U.S. v. Cassidy, 814 F.Supp.2d 574, 584 (D. Md. 2011) was very similar to 3805(b)(2), the court describing the statute as follows:

11

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)

(emphasis in original). As in the instant case, Cassidy concerned criticism of a person

(identified as A.Z.) by writing to the world at large on the Internet, and the statute
criminalized the infliction of emotional distress by mere words. This was found to be a
content-based restriction on Mr. Cassidys speech:
Typically, a restriction is content-based if it regulates speech based on the
effect that speech has on an audience....
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 restriction because it limits speech on the basis of whether
that speech is emotionally distressing to A.Z.
Id. at 584. In Cassidy, that led to the application of the strict scrutiny standard, which the
statute ultimately failed.
The Supreme Court has also recognized that when pure expression causes
emotional distress, it can become a content-based restriction on freedom of expression.
Snyder v. Phelps, 131 S.Ct. 1207 (2011) involved a civil verdict for intentional infliction
12

of emotional distress against members of the Westboro Baptist Church after picketing the
funeral of a Marine who died in the line of duty. The Westboro protesters displayed
signs that said Thank God for Dead Soldiers, God Hates Fags, and other vile
messages. Id. at 1213. The Supreme Court set the verdict aside after it determined that
the verdict amounted to a penalty based on the content of their expression:
The record confirms that any distress occasioned by Westboros picketing
turned on the content and viewpoint of the message conveyed, rather than
any interference with the funeral itself. A group of parishioners standing at
the very spot where Westboro stood, holding signs that said God Bless
America and God Loves You, would not have been subjected to
liability. It was what Westboro said that exposed it to tort damages.
Id. at 1219. It is not difficult to imagine similar scenarios under 3-805(b)(2). For
instance, many minors have attempted to gain fame in the music business: a negative
album review might create emotional distress in a young artist while a positive one will
not. A blasphemous drawing of Mohammed might make a Muslim teenager feel distress,
while praising Allah will not. Even a truthful recounting of Brett Kimberlins terrorist
activities might cause his daughter distress as she learns he is a violent felon while an
essay praising Mr. Kimberlin as a pillar of the community will not. There can be little
doubt that because 3-805(b)(2) allows emotional distress to satisfy an element of the
crime, it is a content-based restriction on expression. Therefore, 3-805(b)(2) must be
subjected to the strict scrutiny test.
2.

Protecting persons from emotional distress is not a compelling interest

Content-based regulations are presumptively invalid, R.A.V. v. St. Paul, 505

U.S. 377, 382 (1992), and, therefore, the Government bears the burden to rebut that
13

presumption.4 Accordingly, the State must satisfy the strict scrutiny test: it must be
narrowly tailored to promote a compelling Government interest. Playboy, 529 U.S. at
813. The State cannot establish that all of the interests promoted by this statute are
compelling.
First, protecting children from emotional distress does not fall into the
traditional categories of speech that can be regulated according to content. See, e.g.,
R.A.V. 505 U.S. at 382-83 (listing categories of speech that can be regulated by content).
Further, protecting minors from emotional distress is not a compelling interest.5 The case
law and common sense says it is not, if only because children can be easily distressed for
irrational reasons. For instance in McCauley v. U. of V.I., 618 F.3d 232, 251 (3rd Cir.
2010), that court struck down a campus code of conduct that prohibited expression which
caused emotional distress, finding that protecting people from such distress was not a
compelling purpose:
The scenarios in which this prong [prohibiting the infliction of emotional
distress] may be implicated are endless: a religious student organization
inviting an atheist to attend a group prayer meeting on campus could
prompt him to seek assistance in dealing with the distress of being invited
to the event; minority students may feel emotional distress when other
students protest against affirmative action; a pro-life student may feel
emotional distress when a pro-choice student distributes Planned
Parenthood pamphlets on campus; even simple name-calling could be
punished. The reason all these scenarios are plausible applications of
Paragraph H is that the paragraph is not based on the speech at all. It is
based on a listeners reaction to the speech. The Supreme Court has held
4

U.S. v. Stevens, 130 S.Ct. 1577, 1584 (2010).

Even the common law tort of Intentional Infliction of Emotional Distress cannot be
triggered by mere expression. See, e.g., Sirpal v. Wang, 2012 WL 2880565, at *4 (D.
Md. 2012).
5

14

time and again, both within and outside of the school context, that the mere
fact that someone might take offense at the content of speech is not
sufficient justification for prohibiting it.
618 F.3d at 251. Indeed, freedom of expression often serves its most vital purpose when
it creates emotional distress:
a function of free speech under our system of government is to invite
dispute. It may indeed best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction with conditions as they are, or
even stirs people to anger. Speech is often provocative and challenging. It
may strike at prejudices and preconceptions and have profound unsettling
effects as it presses for acceptance of an idea. That is why freedom of
speech, though not absolute,... is nevertheless protected against censorship
or punishment, unless shown likely to produce a clear and present danger of
a serious substantive evil that rises far above public inconvenience,
annoyance, or unrest....There is no room under our Constitution for a more
restrictive view.
Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (emphasis added). Creating a safe space for
fragile emotions is not a compelling interest. In fact, it goes against the very reason why
the First Amendment exists.
Since one of the interests the statute protects is not compelling, it fails the strict
scrutiny standard and, therefore, 3-805(b)(2) is unconstitutional.
3.

Section 3-805(b)(2) is not narrowly tailored

Even assuming that the interests protected by the statute were compelling, 3805(b)(2) is not narrowly tailored to promote them. A statute is not narrowly tailored
when a less restrictive alternative exists and in this case two exist: (1) the limitations that
exist in 3-803 and in 3-805(b)(1), and (2) the less restrictive alternative of expecting
people to look away.

15

(i)

Section 3-805(b)(2) is not narrowly tailored because one can simply

avert ones eyes

It is important to note what is criminalized by 3-805(b)(2).

This provision

applies whenever a person uses an interactive computer service with the appropriate
effect on audiences coupled with the requisite intent. That term, defined in 3-805(a)(3),
includes directed communication, such as emails, text messages and the like, but also
information broadcast to the whole world, such as an article on the New York Times
website, a book readable on a Kindle or Nook, or a personal webpage. And all of this
information can be avoidedoften even blockedby the audience.
This fact renders the statute unconstitutional under Playboy. In Playboy, the
Supreme Court confronted a federal law requiring cable companies to take steps to
prevent children from seeing (partly scrambled) sexually explicit cable channels if their
parents didnt subscribe to them, requiring cable companies to either fully scramble such
channels for non-subscribing households, or to restrict the programming to evening
hours.
The Supreme Court found that the statute was not narrowly tailored. First, the
court noted that [i]f a less restrictive alternative would serve the Governments purpose,
the legislature must use that alternative. 529 U.S. at 813. That is the ordinary rule, but
in Playboy the court set that rule aside for one even less tolerant of speech regulation:
Where the designed benefit of a content-based speech restriction is to shield
the sensibilities of listeners, the general rule is that the right of expression
prevails, even where no less restrictive alternative exists. We are expected
to protect our own sensibilities simply by averting [our] eyes. Cohen v.
California, 403 U.S. 15, 21 (1971)
16

Id. As with the statute challenged in Playboy, the purpose of 3-805(b)(2) is to shield
the sensibilities of listeners[,] including children. Thus the Playboy rule controls: the
right of expression should prevail, and the alleged victims should be expected to avert
their eyes. Accordingly, 3-805(b)(2) is not narrowly tailored under Playboy.
(ii)

Section 3-805(b)(2) is not narrowly tailored because it strips away

important protections for freedom of expression present in other
harassment statutes

An additional reason why 3-805(b)(2) is not narrowly tailored is that a less

restrictive alternative exists in the same statute: the limiting language found in 3805(b)(1) (and also in 3-803).

This language was critical in shielding another

harassment statute from constitutional attack in Galloway, but was stripped from 3805(b)(2) for no rational reason.
The leading case in Maryland on the general harassment statute, currently codified
as 3-803, is Galloway v. State. The Galloway court faced a First Amendment challenge
to a general harassment statutewhich was identical to the current 3-803 in every
relevant waybased on the overbreadth and void-for-vagueness doctrines. However, the
Galloway court found that the statute was constitutional based significantly on the
inclusion of two limitations, writing that
[Section] 123 [the harassment statute] expressly eliminates constitutionally
protected speech from its ambit. Section 123 does not apply to any
peaceable activity intended to express political views or provide
information to others and the conduct to be prohibited must have no legal
purpose. Other states have concluded that similar restrictive language
helps to abate any over breadth.

17

781 A.2d at 878 (emphasis added). Thus, these two limitations in particular were seen as
critical to ensuring that the statute was constitutionalboth by actually protecting
freedom of expression and by avoiding a chilling effect.
However, 3-805(b)(2) eliminates these protections when a minor is involved.
For instance, subsection (b)(1)(iii) makes it an element of the offense that the defendant
is acting without a legal purpose, but no such element is found in subsection (b)(2).
Further, 3-805(d) states that Subsection (b)(1) of this section does not apply to a
peaceable activity intended to express a political view or provide information to others
(emphasis added) but that also does not apply to subsection (b)(2). Thus, the language
that the Galloway court praised as expressly eliminat[ing] constitutionally protected
speech from [the statutes] ambit, 781 A.2d at 878, does not apply to 3-805(b)(2).
Logically, if one believes that 3-803 and 3-805(b)(1) is neither vague nor
overbroad because of the inclusion of this language, then the exclusion of this language
from 3-805(b)(2) renders it vague, overbroad, and, additionally, not narrowly tailored.
Indeed, this is directly implied by the States own Motion to Dismiss below, which states
that Sections 3-803 and 3-805 are also not overly broad because each statute contains
limiting language that speech or conduct with a legal purpose is not punishable. (E82)
This is an implicit confession that 3-805(b)(2) is overbroad and not narrowly tailored.
In summary, 3-805(b)(2) is a content-based restriction on freedom of expression
because criminality can turn on the audiences reaction to the expression. Accordingly,
the State must show it can survive the strict scrutiny test, and it cannot. The interest in
preventing emotional distress is not compelling, and the statute is not narrowly tailored to
18

any of its purposes because it doesnt contain the protections for freedom of speech found
in other harassment statutes, and because the victim can simply look away. Therefore,
3-805(b)(2) is unconstitutional under the First Amendment, and the Circuit Court erred
in failing to declare it unconstitutional.
B.

Sections 3-803 and 3-805(b)(2) are Unconstitutional Based on Developments

in the Law Since Galloway v. State
Turning to the remaining sections of these laws, Galloway is the leading case on

the constitutionality of 3-803 and 3-805(b)(1).

Although Galloway dealt with a

different statute, the statute in Galloway is essentially the same as the current 3-803.
Meanwhile, 3-805(b)(1) is virtually identical to 3-803, except it only applies to the
Internet.
As noted above, this Court does not have to believe that Galloway was wrongly
decided at the time in order to find in Mr. Walkers favor. Since Galloway was decided,
the law of free expression has developed in ways that undermine that decision. Thus,
even if Galloway was a correct reading of the law at the time, it is no more.
1.

Subsequent case law demonstrates that 3-803 and 3-805(b)(1) are

content-based restrictions on expression because criminality depends on the
behavior of third parties

The Court in Galloway seemed to believe that this speech restriction was contentneutral.6 The Galloway court also seemed to believe that the requirement of a warning to
stop7 helped make the statute more palatable under the First Amendment.8

See 781 A.2d at 876 (quoting from Conn. v. Snyder, 49 Conn.App. 617, 717 A.2d 240,
244 (1998) as saying Since the statute proscribes conduct, rather than content of the
19

However, since Galloway was decided, the Seventh Circuit has called these
assumptions into question in Shirmer v. Nagode, 621 F.3d 581 (7th Cir. 2010), holding
that a restriction was not content-neutral when it was based on the conduct or expression
of third parties as follows:
The City of Chicago has enacted an ordinance prohibiting disorderly
conduct. One controversial portion of that ordinance makes it a crime for a
person to fail to disperse from a group when ordered to do so by a police
officer while others are engaging in disorderly conduct nearby: A person
commits disorderly conduct when he knowingly ... (d) Fails to obey a
lawful order of dispersal by a person known by him to be a peace officer
under circumstances where three or more persons are committing acts of
disorderly conduct in the immediate vicinity, which acts are likely to cause
substantial harm or serious inconvenience, annoyance or alarm.... Chicago
Municipal Code 8-4-010(d). This provision... lends itself to overly broad
application that can interfere with core First Amendment rights of free
speech and assembly. The three or more persons ... committing acts of
disorderly conduct could be reacting to (or even attempting to disrupt) the
speech of the person arrested for a failure to disperse, so this provision can
be applied to impose what amounts to an unconstitutional hecklers veto
of protected speech.
Id. at 583-84. Shirmer stands for the common sense proposition that if criminality
depends on the actions of third parties, it will be applied unevenly, depending on the
content of speech. Perhaps if the Galloway court had the benefit of that decision, it
would have recognized the reality that whether one asks a person to stop engaging in

mailings, the risk that the statute will chill people from the exercise of free speech is
minor).
7
See 3-803(a)(2) and 3-805(b)(1)(ii), both requiring as an element that the conduct
occurred after receiving a reasonable warning or request to stop by or on behalf of the
other.
8
Id. at 870 (We have held that such a warning ensures that the offender is aware that
further conduct will alarm[] or seriously annoy[] the other person, and as such, the
offender has fair notice that he or she may be subject to prosecution.)
20

expression is also likely to turn on the content being expressed. A person holding a sign
that says thank God for dead soldiers is more likely to be told to stop than a person
holding a sign that says God bless America. With the benefit of Shirmer, the Galloway
court would have recognized that making criminality depend on a request to stop doesnt
help to shield laws such as these from constitutional attack. Instead, it renders such laws
content-based restrictions on expression, which are subjected to strict scrutiny.
Meanwhile, Sabelko v. City of Phoenix, 846 F.Supp. 810 (D.AZ. 1994) is
precedent that pre-dated Galloway, but Sabelko was not discussed or distinguished in
Galloway. Like the instant statutes, the ordinance in Sabelko criminalized behavior
depending on the wishes of third parties by requiring people participating in certain
demonstrations to withdraw to a bubble of eight feet away from a person if asked to do
so by that person. The city asserted that the law was content-neutral: it simply applied to
whomever was asked to withdrawjust as criminality under the instant statutes depend
on a defendant being first warned to stop, 3-803(a)(2) and 3-805(b)(1)(ii).

The

Sabelko court brushed that argument aside, stating that:

[the defendants] claim the Ordinance does not target any type of speech,
but rather would provide for criminal liability of any speaker who failed to
withdraw to the eight-foot minimum distance, even if the speaker is
demonstrating support. The Court finds this argument unpersuasive since
the invocation of the bubble zone will likely depend upon whether the
listener agrees with or disagrees with the content of the speakers
communication. Listeners reaction to speech is not a content neutral
basis for regulation. Forsyth, [505] U.S. at [134.]
Id. at 819. Certainly this Court, with the benefit of precedents like Shirmer, should
recognize that these statutes are not content-neutral and apply the strict scrutiny standard
21

to both 3-803 and 3-805(b)(1). Accordingly, unlike in Galloway, the State must prove
that these statutes are narrowly tailored to promote a compelling Government interest.
Playboy, 529 U.S. at 813.
2.

Sections 3-803 and 3-805(b)(1) do not promote a compelling interest

There are three potential interests promoted by these statutes. The first two are
found in the text, indicating that criminality is triggered by conduct that alarms or
seriously annoys the other 3-803(a) and 3-805(b)(1) (emphasis added). Therefore,
these statutes seek to protect listeners from annoyance or alarm. A third purpose can be
gleaned from Galloways quotation of the relevant committee report for the prior version
of 3-803 which claimed that the statute will help law enforcement agencies in their
attempts to defuse ongoing feuds and longstanding disputes between neighbors, former
boyfriends and girlfriends, and adults which arise on a daily basis, 781 A.2d at 859. In
short, the hope was that the statute would help keep the peace. Case law that has arisen
since Galloway demonstrates that none of these interests are compelling.
For instance, the Galloway court did not have the benefit of Ovadal v. City of
Madison, 416 F.3d 531 (7th Cir. 2005) which ruled that speech could not be suppressed
merely to keep the peace. In Ovadal, a religious group displayed signs on a pedestrian
overpass on controversial topics which caused severe traffic congestion and several nearaccidents. Finding that the polices order to disperse violated the protesters right to free
expression, the Ovadal court wrote that:
Listeners reaction to speech is not a content-neutral basis for regulation.
Forsyth County v. Nationalist Movement, 505 U.S. 123, 134, 112 S.Ct.
2395, 120 L.Ed.2d 101 (1992). Speech cannot . . . be punished or banned,
22

simply because it might offend those who hear it. Id. at 134-35, 112 S.Ct.
2395. It cannot be denied that drivers who yelled, gestured, and slammed
on their brakes when they saw Ovadals signs created a safety hazard on the
Beltline. However, it is the reckless drivers, not Ovadal, who should have
been dealt with by the police, perhaps in conjunction with an appropriate
time, place, and manner restriction on Ovadal. The police must preserve
order when unpopular speech disrupts it; [d]oes it follow that the police
may silence the rabble-rousing speaker? Not at all. The police must permit
the speech and control the crowd; there is no hecklers veto. Hedges v.
Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295, 1299 (7th Cir.1993).
Id. at 537. Applied to the instant case, what is the fear that justifies silencing Mr.
Walker? That Mr. Walkers peaceful activity publicizing Mr. Kimberlins misconduct
might drive Mr. Kimberlin to violence in retaliation? That is a reasonable fear, but the
solution is to prevent any criminal conduct from Mr. Kimberlin, not to suppress Mr.
Walkers complaints about it. As Dr. Martin Luther King, Jr. once said, peace is not
merely the absence of... tension, but the presence of justice. Dr. Martin Luther King, Jr.,
LETTER FROM A BIRMINGHAM JAIL. Silencing grievances does not lead to justice or true
peace.
Likewise, the Galloway court would not have found that the prevention of
annoyance was a compelling interest in light of Ovadal or other precedents such as
Swagler v. Sheridan, 837 F.Supp.2d 509 (D. Md. 2011). Swagler concerned another
protest that disrupted traffic, resulting in an order to disperse by Maryland police. The
Swagler court ruled that this violated the protesters rights:
If there is a bedrock principle underlying the First Amendment, it is that
the government may not prohibit the expression of an idea simply because
society finds the idea itself offensive or disagreeable. Texas v. Johnson,
491 U.S. 397, 414 (1989). Moreover, [i]t is firmly settled that under our
Constitution the public expression of ideas may not be prohibited merely
because the ideas are themselves offensive to some of their hearers, or
23

simply because bystanders object to peaceful and orderly demonstrations.

Bachellar v. Maryland, 397 U.S. 564, 567 (1970).... Put simply, there is no
hecklers veto to the First Amendment.... to the United States Constitution.
As the United States Court of Appeals for the Third Circuit recently
concluded, [n]o matter ones personal feelings about abortion, the images
[of aborted fetuses] are jarring, their shock value unmistakable.
Presumably, that was the point. But speech cannot be . . . punished or
banned[] simply because it might offend its audience. United States v.
Marcavage, 609 F.3d 264, 283 (3d Cir. 2010).
Id. at 527.
Meanwhile, another post-Galloway decision verifies that annoyance is simply
another word for offense:
The government has no rational or compelling interest in using a contentbased restriction to silence Mr. Netherlands views. Even if such views are
unpopular, disquieting, annoying, or offensive, a compelling governmental
interest is not achieved by threatening Mr. Netherland with arrest. See,
e.g., Coates v. Cincinnati, 402 U.S. 611... (1971); Texas v. Johnson, 491
U.S. 397, 398... (1989). Religious speech cannot be silenced because it is
controversial or offensive. Capitol Square Review and Advisory Bd. [v.
Pinette,] 515 U.S. [753, 760 (1995)] (requiring state to permit Ku Klux
Klan to erect a cross on states open public forum).
Netherland v. City of Zachary, 527 F.Supp.2d 507, 516 (M.D. LA. 2007) (boldface
added). In Netherland, a man stood on public land near a bar, preached loudly about the
evils of alcohol, and the police ordered him to be silent.

Finding the order to be

unconstitutional, the Netherland court wrote that

In an attempt to persuade this Court that Mr. Netherlands speech is not
protected speech, the Defendants argue that Mr. Netherlands preaching
constituted fighting words. Defendants claim that they threatened Mr.
Netherland with arrest due to a serious concern . . . that some annoyed and
upset patron(s) may harm Netherland. (Doc. 32, p. 4; Transcript at
103:11). Even if this is true, the Defendants did not properly respond
because even where the audience is so offended by the ideas being
expressed that it becomes disorderly and attempts to silence the speaker, it
24

is the duty of the police to attempt to protect the speaker, not to silence his
speech if it does not consist of unprotected epithets.
Id. at 519 (emphasis added, internal quotation marks omitted). The way to suppress
violence in response to annoying or otherwise offensive expression isnt to suppress
speech: it is to suppress the violence.
Likewise, the Galloway court would have been unlikely to find that there was a
compelling interest in protecting Marylanders from mere alarm if it had the benefit of
Virginia v. Black, 538 U.S. 343 (2003). There, the Supreme Court dealt with a statute
making it a criminal act to burn a cross with intent to intimidate[,] id. at 347. The
statute was upheld, but only because the Supreme Court interpreted the term
intimidation as follows:
Intimidation in the constitutionally proscribable sense of the word is a type
of true threat, where a speaker directs a threat to a person or group of
persons with the intent of placing the victim in fear of bodily harm or death.
Id. at 360. If Galloway court had the benefit of Black to guide it, that court would have
realized that if the only type of intimidation that can be constitutionally proscribable is
a true threat, then logically, preventing mere alarm (which plainly can be less than a
true threat) cannot serve as a compelling purpose.
These post-Galloway precedents demonstrate that maintaining order (by
preventing all speech that might anger listeners, not just fighting words), preventing
annoyance, and protecting citizens from mere alarm are not compelling interests.
Therefore, 3-803 and 3-805(b)(1) fail the strict scrutiny test and are unconstitutional
under the law as it stands today.
25

3.

Sections 3-803 and 3-805(b)(1) are not narrowly tailored because there is
the less restrictive alternative of averting ones eyes

Just as with 3-805(b)(2), 3-803 and 3-805(b)(1) are not narrowly tailored
because in most cases the viewers of annoying or alarming messages can be expected to
avert their eyes. Playboy, 529 U.S. at 813. While Playboy was not decided subsequent
to Galloway, it was not addressed in Galloway either, probably because the Galloway
court seemed to believe that the restriction was content-neutral. Supra n. 6. If this
Courtaided by more recent precedentsdetermines that 3-803 and 3-805(b)(1) are
not content-neutral restrictions on expression, then this Court must apply Playboy and
find that the statutes are overly broad and not narrowly tailored.
In conclusion, this Court can find that subsequent precedents have undermined
whatever vitality Galloway had. Aided by these later cases, this Court can determine that
3-803 and 3-805(b)(1) are content-based restrictions on expression that fail strict
scrutiny. Specifically, these provisions are not supported by a compelling purpose, or
narrowly tailored. Therefore, the lower court erred by failing to declare that 3-803 and
3-805 are unconstitutional under the First Amendment.
III.
MD CODE CRIM. L. 3-803 AND 3-805 ARE UNCONSTITUTIONAL TO THE
EXTENT THAT THEY REGULATE INTERNET ACTIVITY BECAUSE THEY
VIOLATE THE DORMANT COMMERCE CLAUSE
Another way this Court could provide Mr. Walker relief without contradicting
Galloway is by relying on the Federal Commerce Clause, which was not addressed in
Galloway. Specifically, courts have held repeatedly that the content of the Internet is
uniquely a federal domain, and, therefore, the states have no power to regulate it even in
26

the absence of federal preemption. Therefore, 3-805 and 3-803 are unconstitutional to
the extent that they attempt to regulate the Internet.
U.S. v. Lopez, 514 U.S. 549, 559 (1995) held that the Commerce Clause made the
regulation of the instrumentalities of interstate commerce a matter of Federal concern
even though the threat may come only from intrastate activities. The Internet is very
obviously an instrumentality of interstate commerce, more so today than it was in 1997
when Am. Libraries Assn v. Pataki, 969 F.Supp. 160, 173 (S.D.N.Y. 1997) ruled that it
was. Using the Internet, people can watch television and movies, pay their bills and
purchase groceries and other products. A person with the right resources could never
leave her home, having all she needs delivered to her via online ordering and paying for
all of it by telecommuting to work. That is how thoroughly the Internet is an instrument
of commerce.
Accordingly, federal courts have regularly held that the states may not regulate the
content of the Internet. For instance, the Pataki court held that a statute making it a
felony to allow minors to view obscene materials over the Internet was unconstitutional
under the dormant Commerce Clauseholding that even if there were no conflict with
federal regulation, states could not regulate in that domain.9 Instead, the content of the
Internet could only be regulated by the federal government because the nature of the
Internet demanded uniformity across the United States much the way that railroads and

See Pataki, Id. at 169, for a summary of the doctrine of the negative or dormant
Federal Commerce Clause.
27

trucks did in Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761 (1945) and Bibb
v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959), respectively:
The Internet, like the rail and highway traffic at issue in the cited cases,
requires a cohesive national scheme of regulation so that users are
reasonably able to determine their obligations. Regulation on a local level,
by contrast, will leave users lost in a welter of inconsistent laws, imposed
by different states with different priorities.
969 F.Supp. at 182. Indeed, the Pataki court found that the need for uniformity was even
more pressing in the case of the Internet as follows:
an Internet user cannot foreclose access to her work from certain states or
send differing versions of her communication to different jurisdictions. In
this sense, the Internet user is in a worse position than the truck driver or
train engineer who can steer around Illinois or Arizona, or change the
mudguard or train configuration at the state line; the Internet user has no
ability to bypass any particular state. The user must thus comply with the
regulation imposed by the state with the most stringent standard or forego
Internet communication of the message that might or might not subject her
to prosecution.
Id. at 183; see also Am. Booksellers Foundation v. Dean, 342 F.3d 96 (2nd Cir. 2003)
(endorsing the Pataki courts reasoning); Midwest Title Loans, Inc. v. Mills, 593 F.3d 660
(7th Cir. 2010) (citing Dean favorably); and ACLU v. Johnson, 194 F.3d 1149, 1161 (10th
Cir. 1999) (endorsing the Pataki courts reasoning).

This reasoning was adopted

wholesale by the Fourth Circuit in PSINet, Inc. v. Chapman, 362 F.3d 227, 240 (4th Cir.
2004), with this flourish:
The content of the Internet is analogous to the content of the night sky.
One state simply cannot block a constellation from the view of its own
citizens without blocking or affecting the view of the citizens of other
states.
In short, its a big Internet, and it is not up to any one state to regulate its content.
28

Sections 3-803 and 3-805 not only offend the Commerce Clause but the principle
behind it that those who are affected by a law should have a say in the law. The Founders
rebelled under the battle-cry of No Taxation Without Representation! and they would
certainly be offended by Criminalization Without Representation, especially when
applied to expression. Yet, here we have Maryland telling a Virginian what he cant say
on the Internet while hes in Virginia. He cant vote in Maryland, and there is no
practical way for him to keep his writings on the Internet at large from entering
Maryland. Therefore, his expression is being limited by laws he has no say in and has
not consented to. However, if this Court found that only the Federal Government could
regulate Internet content, the solution for those who are rightfully troubled by abusive
conduct online would be to petition Congress, giving every voter of every state a say in
any law that is passed. That is criminalization with representation.
Accordingly, 3-803 and 3-805 are unconstitutional under the dormant
Commerce Clause to the extent that these statutes regulate Internet activity. This is
because the Internet cries out for a single national standard. A person shouldnt have to
learn the criminal law of every state in order to use the Internet, and a person should not
be subject to criminal laws they have no say in.
CONCLUSION
The order below should be reversed. First, it is plain that Mr. Walker satisfies the
requirements for standingif only because he was actually injured by the application of
these laws, or because he has a reasonable fear of future criminal charges or other
consequences flowing from these statutes.
29

Turning to the merits, 3-805(b)(2) is a content-based regulation because it

depends on audience reaction and, accordingly, it is subject to strict scrutiny. However,
protecting citizens from emotional distress is not a compelling interest, and the statute is
not narrowly tailored because it needlessly sheds important protections for free speech
when the audience could simply look away.
Similarly, 3-803 and 3-805(b)(1) violate the First Amendment even when one
considers only the developments in the law since Galloway. They are both content-based
limitations on expression and, thus, subject to the strict scrutiny standard. Under todays
law, the State has no compelling interest in suppressing speech to keep the peace, to
prevent annoyance or to prevent mere alarm, and the law cannot be narrowly tailored
under Playboy.
Finally, 3-803 and 3-805 are unconstitutional to the extent that they regulate
Internet activity under the dormant Federal Interstate Commerce Clause because the
Internet is a federal domain demanding uniformity in American law.

WHEREFORE, the Appellant respectfully requests that this Court reverse the decision of
the Montgomery County Circuit Court, hold that the Appellant does have standing and
direct that the Circuit Court enter a Declaratory Judgment stating that 3-803 and 3-805
violate the First Amendment of the U.S. Constitution and, to the extent that they apply to
Internet activity, the dormant Commerce Clause, and that this Court provide any other
relief it deems just and equitable.

30

TEXT OF CITED CONSTITUTIONAL PROVISIONS AND STATUTES

Maryland Constitution Maryland Declaration of Rights Article 19
That every man, for any injury done to him in his person or property, ought to have
remedy by the course of the Law of the Land, and ought to have justice and right, freely
without sale, fully without any denial, and speedily without delay, according to the Law
of the Land.
U.S. 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, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress of
grievances.
U.S. Constitution, Article I, Section 8, Clause 3 (the Commerce Clause)
The Congress shall have Power... To regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes;
MD CODE Crim. L. 3-803. Harassment
(a)
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 annoys 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 behalf of

the other; and

(3)

without a legal purpose.

(b)

Exception. -- This section does not apply to a peaceable activity intended to

express a political view or provide information to others.

(c)

Penalty. -- A person who violates this section is guilty of a misdemeanor and on

conviction is subject to:
32

(1)

for a first offense, imprisonment not exceeding 90 days or a fine not

exceeding $ 500 or both; and

(2)

for a second or subsequent offense, imprisonment not exceeding 180 days

or a fine not exceeding $ 1,000 or both.

MD CODE Crim. L. 3-805. Misuse of electronic communication or interactive

computer service.
(a)

(b)

Definitions.
(1)

In this section the following words have the meanings indicated.

(2)

Electronic communication means the transmission of information, data,

or a 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)

(2)

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

(iii)

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
33

(ii)

(c)

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

injury.
Construction of section. -- It is not a violation of this section for any of the
following persons to provide 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, if a court
order directs the person to provide the information, facilities, or technical
assistance:
(1)

a provider of electronic communication;

(2)

an officer, employee, agent, landlord, or custodian of a provider of

electronic communication; or

(3)

a 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.

(d)

Exception. -- Subsection (b)(1) of this section does not apply to a peaceable

activity intended to express a political view or provide information to others.

(e)

Penalty. -- A person who violates this section is guilty of a misdemeanor and on

conviction is subject to imprisonment not exceeding 1 year or a fine not exceeding
$ 500 or both.

MD CODE Crim. L. 3-805. Misuse of electronic communication (Maryland Code

(2013 Edition)).
(a)

Electronic communication defined. -- In this section, electronic

communication means the transmission of information, data, or a 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.

(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
34

(3)
(c)

without a legal purpose.

Construction of section. -- It is not a violation of this section for any of the

following persons to provide 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, if a court
order directs the person to provide the information, facilities, or technical
assistance:
(1)

a provider of electronic communication;

(2)

an officer, employee, agent, landlord, or custodian of a provider of

electronic communication; or

(3)

a 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.

(d)

Exception. -- This section does not apply to a peaceable activity intended to

express a political view or provide information to others.

(e)

Penalty. -- A person who violates this section is guilty of a misdemeanor and on

conviction is subject to imprisonment not exceeding 1 year or a fine not exceeding
$ 500 or both.

15 U.S. Code 1052 - Trademarks registrable on principal register; concurrent

registration
No trademark by which the goods of the applicant may be distinguished from the goods
of others shall be refused registration on the principal register on account of its nature
unless it
(a)

Consists of or comprises immoral, deceptive, or scandalous matter; or matter

which may disparage or falsely suggest a connection with persons, living or dead,
institutions, beliefs, or national symbols, or bring them into contempt, or
disrepute; or a geographical indication which, when used on or in connection with
wines or spirits, identifies a place other than the origin of the goods and is first
used on or in connection with wines or spirits by the applicant on or after one year
35

after the date on which the WTO Agreement (as defined in section 3501(9) of title
19) enters into force with respect to the United States.
(b)

Consists of or comprises the flag or coat of arms or other insignia of the United
States, or of any State or municipality, or of any foreign nation, or any simulation
thereof.

(c)

Consists of or comprises a name, portrait, or signature identifying a particular

living individual except by his written consent, or the name, signature, or portrait
of a deceased President of the United States during the life of his widow, if any,
except by the written consent of the widow.

(d)

Consists of or comprises a mark which so resembles a mark registered in the

Patent and Trademark Office, or a mark or trade name previously used in the
United States by another and not abandoned, as to be likely, when used on or in
connection with the goods of the applicant, to cause confusion, or to cause
mistake, or to deceive:
Provided, That if the Director determines that confusion, mistake, or deception is
not likely to result from the continued use by more than one person of the same or
similar marks under conditions and limitations as to the mode or place of use of
the marks or the goods on or in connection with which such marks are used,
concurrent registrations may be issued to such persons when they have become
entitled to use such marks as a result of their concurrent lawful use in commerce
prior to (1) the earliest of the filing dates of the applications pending or of any
registration issued under this chapter; (2) July 5, 1947, in the case of registrations
previously issued under the Act of March 3, 1881, or February 20, 1905, and
continuing in full force and effect on that date; or (3) July 5, 1947, in the case of
applications filed under the Act of February 20, 1905, and registered after July 5,
1947. Use prior to the filing date of any pending application or a registration shall
not be required when the owner of such application or registration consents to the
grant of a concurrent registration to the applicant. Concurrent registrations may
also be issued by the Director when a court of competent jurisdiction has finally
determined that more than one person is entitled to use the same or similar marks
in commerce. In issuing concurrent registrations, the Director shall prescribe
conditions and limitations as to the mode or place of use of the mark or the goods
on or in connection with which such mark is registered to the respective persons.

(e)

Consists of a mark which (1) when used on or in connection with the goods of the
applicant is merely descriptive or deceptively misdescriptive of them, (2) when
used on or in connection with the goods of the applicant is primarily
geographically descriptive of them, except as indications of regional origin may be
registrable under section 1054 of this title, (3) when used on or in connection with
36

the goods of the applicant is primarily geographically deceptively misdescriptive

of them, (4) is primarily merely a surname, or (5) comprises any matter that, as a
whole, is functional.
(f)

Except as expressly excluded in subsections (a), (b), (c), (d), (e)(3), and (e)(5) of
this section, nothing in this chapter shall prevent the registration of a mark used by
the applicant which has become distinctive of the applicants goods in commerce.
The Director may accept as prima facie evidence that the mark has become
distinctive, as used on or in connection with the applicants goods in commerce,
proof of substantially exclusive and continuous use thereof as a mark by the
applicant in commerce for the five years before the date on which the claim of
distinctiveness is made. Nothing in this section shall prevent the registration of a
mark which, when used on or in connection with the goods of the applicant, is
primarily geographically deceptively misdescriptive of them, and which became
distinctive of the applicants goods in commerce before December 8, 1993.
A mark which would be likely to cause dilution by blurring or dilution by
tarnishment under section 1125(c) of this title, may be refused registration only
pursuant to a proceeding brought under section 1063 of this title. A registration for
a mark which would be likely to cause dilution by blurring or dilution by
tarnishment under section 1125(c) of this title, may be canceled pursuant to a
proceeding brought under either section 1064 of this title or section 1092 of this
title.

37

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

AARON WALKER,
Appellant

September Term, 2015,

No. 2092

v.
STATE OF MARYLAND, ET AL.,
Appellee

ORDER REVERSING THE JUDGMENT OF THE CIRCUIT COURT

Upon consideration of the Appellants Brief, any brief by the Appellee and any
other filing in support or opposition thereto, it is this
201

day of

, hereby
ORDERED that the Judgment of the Circuit Court for Montgomery County

dismissing the State from Walker v. State, No. 398855 (Mont. Co. Cir. Ct. 2015) R. 79 is
REVERSED, this Court finding that Mr. Walker did have standing to bring suit; and it is
further
ORDERED that such reversal is granted with instructions to the Montgomery
County Circuit Court to grant Mr. Walker a Declaratory Judgment in his favor, this Court
finding that MD CODE Crim. L. 3-803 and 3-805 both violate the First Amendment of
the U.S. Constitution; and that, to the extent that these statutes attempt to regulate

Internet communications, they violate the Interstate Commerce Clause of the U.S.
Constitution; and it is further
ORDERED that both statutes should be treated as a nullity; and it is further
ORDERED that the Appellee shall pay costs.

__________________________________________
Judges, Court of Special Appeals