This is the first in a multi-part series exploring the legal significance of violent online rhetoric by individuals including the vile Bill Schmalfeldt.
I defend some spectacularly awful speech here. I don't often defend it morally — I call out ugly speech all the time — but I routinely argue that hateful speech is protected by the First Amendment.
When I do, people occasionally ask me if I could so easily reach the same conclusion if I were the target of the speech. Would I so easily dismiss speech as mere rhetoric not satisfying the true threat doctrine if it gleefully imagined my murder? Would I snark about "butthurt in the first degree" if extreme words were directed at me?
On the one hand, I could argue that it's not an apt question. The essence of the rule of law is that we don't let the alleged victim decide whether the alleged perpetrator is charged or convicted or punished. Rather, we put the question before someone we hope to be a principled neutral to apply a predetermined set of rules.
But on the other hand, it's a fair question.
So. Let's see, shall we? Let's see how I analyze someone who publishes my address and phone number and fantasizes at length about me being brutalized and murdered.
My name is Ken, and I will be your potential victim of threats and/or incitements. Our special tonight is a disturbed self-styled journalist named Bill Schmalfeldt.
Who is Bill Schmalfeldt?
Schmalfelt's a guy who describes himself as a progressive and has written for various online venues, including the the Examiner. De gustibus non est disputandum, but to me his writing is banal, belabored, and unpersuasively angry. He leaves no sense of what values he promotes, only of what groups and individuals he hates. There's only one circumstance when you get a sense that he's enjoying what he does, that he has a craft or a calling. That's when he's describing someone being raped, murdered, or otherwise abused, or when he's pursuing the families of someone he hates.
This has led to trouble.
He describes himself as being "unceremoniously dumped from the Examiner's cadre of 60,000 or so independent contractors" by a letter that cited his using articles as personal attacks and being "antagonistic" in the comments section. In response he fulminated that the Examiner failed to grasp his journalist excellence or his devotion to Important Issues. The Ignatius J. Reilly reaction is a hallmark of Schmalfeldt's relationship to anyone who disagrees with him.
At Daily Kos — which is, quite reasonably, tolerant of strong words about conservatives — he found himself unwelcome after penning a thoroughly creepifying diary entry suggesting that social conservative opposition to gay marriage is rooted in fear that "gay sex" is too alluring. Schmalfeldt continued to demonstrate that he is closest to his sweaty-palmed Happy Place when he is describing degradation of others:
So, it's not anal sex (as a practice) to which these small, frightened men object.
Heck, if you're a man and you're honest with yourself, you LIKE being on the "doling it out" end of anal sex. How many heterosexual men reading this diary right now have never asked their wife or girlfriend to just take a deep breath, relax, "I'll just put in the tip and we'll see how it goes," and then you ram it home like Captain Kidd jamming his sword back into his scabbard while she hollers "takeitouttakeitouttakeitout" and you tell her to just relax and it won't hurt so bad and she starts kicking and screaming "takeitOUTtakeitOUTtakeitOUT youfuckingbastardpieceofshit" and you finally do (because the walls are thin and your neighbors just LOVE calling the cops) and you tell her she should have at least given herself a chance to relax and enjoy it and she (if she's your wife) doesn't let you anywhere near her with "that thing" for weeks and if she's your girlfriend she stops returning your calls?
Schmalfeldt thinks this is cutting satire. Most people see the gleeful enthusiasm as Schmalfeldt pulling back the mask a bit and showing who he is, and are repulsed. This led to criticism, which as reliably as the dawn led to Schmalfeldtian petulance in the form of a bitter, angry, and deeply embarrassing stop-reading-my-Daily-Kos-diaries-if-you-don't-savor-my-excellence post. Schmalfeldt was kicked out of Daily Kos, only to reappear recently under yet another name, this time portraying himself as a halplesss victim of a right-wing conspiracy and an insufficiently spineful Daily Kos: "As I am a hated enemy of the remaining Andrew Breitbart empire, I expect there will be much more of this nonsense in efforts to drive me out of here once again."
Schmalfeldt's ire was not restricted to relatively mainstream venues like the Examiner or Daily Kos. On his own various sites, internet radio shows, and twitter feeds, conducted under various handles and names and guises, he has railed at real and imagined enemies.
There are constant themes. The first is that, though he is nominally "progressive," he delights in using homoerotic imagery and insults normally associated with homophobes to attack people he doesn't like:
Second, despite being nominally "progressive," he is perfectly willing to indulge in racism to revile people he doesn't like. In reference to an enemy whose wife is Asian:
That one also reveals a stinking streak of misogyny, another unpleasant attribute of Mr. Schmalfeldt.
Third, he's really, really into the rhetoric of violence and murder. Take, for instance, his outrage when conservative bloggers were writing about recent court proceedings in which the wife of convicted perjurer, drug dealer, and domestic terrorist Brett Kimberlin was seeking a restraining order:
Fourth, Schmalfeldt enjoys attacking the family of his political targets. He became incensed with blogger Lee Stranahan. Now, there are any number of really excellent reasons to oppose Lee Stranahan's political views on their merits, and people should continue to exercise free speech to do so. Most people accomplish this by writing about him and his actions and his words. Schmalfeldt has accomplished it by a grotesque campaign against Stranahan's wife and children. Schmalfeldt produced "satirical" radio ads about Stranahan pimping his teen daughters and responded to criticism with characteristic evasion, petulance, rage, and insults incorporating sexual imagery. Schmalfeldt became preoccupied with sexual discussions of Stranahan's wife. Schmalfeldt conducted a sick and obsessive "investigation" of the death of Stranahan's daughter, demanding proof of the circumstances of her death and even her existence. Schmalfeldt also reported Stranahan to the Dallas Police, the FBI, the District Attorney, the Center for Missing and Exploited Children, and Texas Family Protective Services, apparently on the theory that Stranahan had once taken erotic potographs and (1) Stranahan wouldn't provide Schmalfeldt with releases and therefore must have taken pictures of underaged girls, and (2) Stranahan must be providing an unfit home for his family. Schmalfeldt now claims that he never mocked the Stranahans over the death of their daughter. But he's prone to dropping witticisms like this, referring to the home birth of their twins, one of whom died:
And yes, if you are keeping track, that's the same Bill Schmalfeldt who was inspired to violent imagery by other people "meddling" by reporting on a court proceeding, the same Bill Schmalfeldt who said this about reporting on restraining order proceedings:
Does that seem inconsistent? It's easier to reconcile when you realize this: Bill Schmalfeldt doesn't have principles. Bill Schmalfeldt doesn't have values. Bill Schmalfeldt doesn't have beliefs. Bill Schmalfeldt has enemies, and then nothing, a black and dank and empty void of sullenness. That's how he can say things like this without recognizing the irony:
So Why Would Bill Schmalfeldt Be Angry At Me?
So why would the disturbed Mr. Schmalfeldt be angry at me?
There are a few reasons. First, he's incensed that I represented Patrick Frey pro bono in a vexatious and malicious lawsuit attacking him for blogging at Patterico.com.
Second, he's angry that I, like many others, have talked about the abuses and evils of the sociopathic perjurer, drug dealer, and domestic terrorist Brett Kimberlin. Kimberlin is some sort of hero and idol to Schmalfeldt and shares hosting with him; he and his ilk think that anyone who opposes Kimberlin must be a right-wing activist seeking to undermine left-wing causes. Personally I oppose Kimberlin because he abuses the legal system to suppress criticism and for many other purposes, is a jailhouse snitch, and has unrepentantly defied a civil judgment against him resulting from the death of one of his bombing victims. Schmalfeldt and his ilk support Kimberlin because they are gullible and credit Kimberlin's mouthing of progressive rhetoric. There are always fools like that; it's how Manson and Bundy and their like get followers.
Schmalfeldt has long made it clear that writing anything bad about Brett Kimberlin will have consequences:
So: onto the enemies list I go.
What Did Bill Schmalfeldt Say About Me?
Last year, between Christmas and New Years, Bill Schmalfeldt posted a fantasy about mob violence and murder, enthusiastically imagining the death of Patrick Frey and me.
He posted our office addresses and phone numbers, and then — using the rhetorical device of pretending that we had been "whining" about being "targeted" — said the following. I quote it rather extensively because the entire context is important and because he may memory-hole it.
I say that unless someone is dragging @Popehat……and Frey OUT OF THEIR OFFICES and BREAKING THEIR KNEES WITH BASEBALL BATS because of this, then there is nothing for them to worry about. Words are just words, and they cannot harm you. “Sticks and stones,” as they say.
Or, baseball bats.
And let it NOT be said that the Liberal Grouch advocates anyone using baseball bats to break the kneecaps of either Mr. White or Mr. Frey! Nothing could be further from the truth. In fact, if you have it in your mind that if Nadia Naffe were a friend of yours and some scumbag attorney used the powers of his office to dig up and use private information against her, whoever did it (or defends him) DESERVES to have their knees broken with baseball bats, let me dissuade you of that notion here and now.
That is not what baseball bats were made for.
For one thing, a wooden bat could break if it were used in such a reckless and lawless fashion. And if you think you can get around that by using an aluminum bat, guess again. An aluminum bat (unless it is reinforced with a lead center) would likely bend under such pressure. Now, I hear the crafty ones out there saying, “Yeah? Well, what if I drill out the center of a WOODEN baseball bat, fill IT with lead, cover the tip with Plastic Wood? Wouldn’t THAT do the job?”
Again, I say, you are wasting your time with all that effort. Tire irons are much more readily available.
And I am NOT saying that Patrick Frey and Kenneth White deserve to be dragged from their offices, out to the street in front of their offices, and thus have their knees broken by ANYTHING, be it a tire iron, or a lead pipe, or a lead-filled baseball bat. Nor should they be taken by a group of four or five strong men (or women) and thrown in front of a moving truck. You would have to consider the emotional damage that would be done to the innocent truck driver, unless the truck driver agrees to be part of your conspiracy in the first place. And a truck might swerve to miss Mr. Frey and/or Mr. White, the driver could lose control, jackknife his trailer and cause a lot of damage to people and property. And if it’s a truck with a hazardous payload, like sulfuric acid, I don’t think I need to tell YOU how severe the environmental damage would be.
So, NO! Do NOT hit Mr. Frey and/or Mr. White with baseball bats or lead pipes or tire irons on their knees, arms, elbows, shins, or any other parts of their bodies. It would be painful and degrading, moreso to you as an outraged, but otherwise law-abiding citizen. It would ruin your life. If the authorities caught you. And if they did, if they pressed charges. I understand in some communities, the authorities tend to turn a blind eye to bullies getting their deserved comeuppance. I don’t think Los Angeles is such a community.
So, let’s leave things as they are. Let Mr. Frey and Mr. White FEEL they are being retaliated against in a war of words they started and are being smeared with feces being hurled back at them after being first hurled BY them. Let yourself not be dragged down to the Neanderthal level of a Mr. Frey or a Mr. White (or a Mr. R. Stacy McCain or a Mr. Lee Stranahan or a Mr. Ali Akbar or a Mr. Aaron Worthing) and degrade yourself by using brute force to punish them for their many, many alleged (by me) crimes against nature and humanity.
Know that the sternest punishment one can legally employ against such blackguards is the sure and certain knowledge that when they awake in the morning, they will still be…
And let God deal with their sins. As He will. Probably with sores and painful boils. On their faces.
As usual, you can feel the subject of violence elevating Schmalfeldt's rhetoric out of its customary doldrums.
Is That A True Threat?
In determining whether Mr. Schmalfeldt's post is a "true threat" — that is, a threat of violence that can be prosecuted consistent with the First Amendment under, for instance, federal interstate threats statute, we're faced with a number of questions.
First, is it a threat at all, as opposed to an incitement for others to beat or murder Patrick and me? On the one hand, it seems as if Schmalfeldt is snidely suggesting that others use violence, not suggesting that he will himself. On the other hand, at least one federal court has recently blurred the line. I wrote about United States v. Hal Turner, in which the Second Circuit held that white supremacist Hal Turner had threatened federal judges by calling for their murder. (Turner, like Schmalfeldt, published the addresses of his targets as part of the exhortation.) There the court recognized that a threat can be cloaked in various types of rhetoric, and that a nominal call for action can actually be a threat: "[Turner's] argument, however, again relies overmuch on the literal denotation and syntax of Turner’s statements, refusing to acknowledge that threats—which may be prohibited, consistent with the First Amendment—need be neither explicit nor conveyed with the grammatical precision of an Oxford don." Therefore, to the extent Turner is good law, the fact that Schmalfeldt framed his murder fantasy as a call for action does not necessarily mean it's not a threat.
Second, is it a threat, as opposed to a rhetorical device? Schmalfeldt, if asked if this was a threat, would probably first resort to vaguely misogynistic mockery, as he did recently:
But having indulged himself in that, Schmalfeldt would probably cry, "look! I said not to do those terrible things!" Once again, this argument isn't an absolute barrier, for the same reason articulated by the Turner court. Schmalfeldt is engaged in apophasis, the rhetorical device of saying something by asserting you are not saying it. The disclaimer at the end is tepid, like most of his writing — the meat and heat of it is in his fervid imaginings of violence against us. It's perfectly possible to frame a threat as a non-threat. What Schmalfeldt is doing is like me saying "I am not saying that you should go to the home of Political Enemy Paul at [address] and crouch in the hedge outside his front door and beat him with a pipe when he exits his house, because you could get your clothes dirty."
Third, and most importantly, does this meet the definition of a true threat? The Turner court applied the Second Circuit's objective test: "namely, whether an ordinary, reasonable recipient who is familiar with the context of the [communication] would interpret it as a threat of injury." The Turner Court noted that other courts have also applied that test to similar expressions urging murder. Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, 290 F.3d 1058, 1079 (9th Cir. 2002) (en banc) (finding that a “WANTED” poster naming a specific victim constituted a true threat after three individuals who had previously been featured in such “WANTED” posters had been murdered). Other courts have used a subjective standard in addition, or instead, requiring proof that the defendant intended for his threat to be taken as a genuine expression of intent to cause harm.
I think, on balance, Schmalfeldt's murder fantasy doesn't satisfy the objective standard. Because Schmalfeldt has, through moral cowardice, added a countervailing coda and wiggle language, and because his fantasy is framed as a call for action by unspecified and unknown others, and because there's no indication he has any sort of following, and because of the apophasis framing, a reasonable person familiar with the context probably wouldn't take it as an actual threat of injury. In Turner and Planned Parenthood there were extreme circumstances; the threateners deliberately invoked recent violence against their targets to convey that their murder was very plausible. Turner pointed out that he had previously condemned a judge and that judge's family was subsequently murdered; the Planned Parenthood "wanted" posters followed murders of physicians. Schmalfeldt, by contrast, has nothing but hate and bombast. That's why I didn't report it to law enforcement as a true threat. On the other hand, it's not very hard to imagine modern law enforcement viewing this post and investigating it as a potential true threat, and it's possible that reasonable minds can differ.
On the other hand, I think Schmalfeldt probably satisfies the subjective element. Just as he wants his other foes to be miserable, he rather clearly wanted Patrick and me to fear for our lives and safety whenever we walk out of our offices. He probably wanted to convey that fear while maintaining plausible deniability.
Was That Incitement?
The dissent in Turner argued that Turner engaged in incitement of violence, not threats; the majority disagreed. Could Schmalfeldt's rhetoric be taken as incitement of violence under some federal or state statute? As Turner notes, speech can only be prohibited as incitement when it satisfies the Brandenburg test — when it is " directed to inciting or producing imminent lawless action and is likely to incite or produce such action." That's an outgrowth of the famous "clear and present danger" test.
Thankfully, I don't know Schmalfeldt's mind, and don't know whether he intended to incite violence; I don't know if he thinks he has followers who would commit violence for him. However, on balance, I think that Schmalfeldt's murder fantasy is not likely to produce or incite imminent lawless action, in light of his audience. I suppose this sort of thing could incite convicted bomber Brett Kimberlin, who has a demonstrated history of brutal violence. But Brett Kimberlin is in the business of promoting the interests of Brett Kimberlin; it's hard to imagine him doing something that doesn't directly profit himself legally, financially, or possibly (according to his wife) through underaged girls. As a rule sociopaths don't have their friends' back. Most of Schmalfeldt's other readers and listeners are there to monitor and/or laugh at him. A few other soi-disant journalists and activists who follow him, but they seem more self-serious than violent. If they change their mind I always have the spray bottle I use to keep the cats off the end table. Bill's few true believer followers could pose a threat, I guess, but most of them seem the sort who will have trouble coming to get me because they left their bus pass in their sweat pants again and their mother put it through the wash.
In short, I think it's probably not unlawful incitement. Once again, though, it wouldn't surprise me if it produced a criminal investigation. If Schmalfeldt is ever investigated for incitement of violence, police should — and will — consider his own words about the power of blog posts. When conservative blogger Robert McCain wrote a lengthy blog post excoriating Schmalfeldt's behavior (but without any violent fantasies or encouragement of violence), Schmalfeldt cried — as he has before — that such posts subject him to danger:
This is excellent proof of Bill Schmalfeldt's intent when he posts violent fantasies and calls for violence; if he views mere criticism as subjecting its targets to violence, what must he necessarily intend when he writes posts like he did about Patrick and me?
Unless, of course, his tweets above are simply full of shit — unless he's always simply full of shit.
Bill Schmalfeldt is a disturbed freak, a twisted personification of narcissistic fury. But what he wrote about me and Patrick probably doesn't make him a criminal. I'm really not even tempted to say otherwise.
You may (I hope) be surprised to know that Schmalfeldt has admirers, other "journalists" and "activists," various vapid partisan hacks who favor him and ignore his conduct because he hates the right people and mouths the right dogma. This is salutary; it reminds us not to support somebody's bad behavior just because they are on "our side."
Thus ends this post. But it doesn't end my exploration of Bill Schmalfeldt's violent rhetoric. Next time, I analyze the more troubling case of Schmalfeldt's calls for violence against blogger Aaron Walker.
Last 5 posts by Ken White
- RIP Abe Doe - October 21st, 2016
- Lawsplainer: The Ninth Circuit and Compelled Speech About Abortion - October 17th, 2016
- Thanks and Congrats To Dhillon Law Group For Important Pro-Bono Anti-SLAPP Win - October 10th, 2016
- Hillary Clinton, the Sixth Amendment, and Legal Ethics - October 10th, 2016
- FIRE Attacks Northern Michigan University's Shocking, Wanton Rule Against Students Sharing Suicidal Thoughts - September 22nd, 2016