There are many free speech cases out there. I don't comment on all of them.
When I don't comment on a case, that doesn't mean that I approve or disapprove of what's happening in the case, or that I agree or disagree with the First Amendment arguments being asserted in that case.
Sometimes I don't comment on a case because I'm busy. Sometimes I don't comment on a case because I can't think of an angle that hasn't been covered better by someone else. Sometimes I'm just not inspired to write.
And sometimes I feel that I shouldn't comment either because of an ethical rule, or because of an ethical appearance with which I am not comfortable.
Any reasonable reader should perceive that doesn't mean I am taking a position on the case.
For instance: today Bill Schmalfeldt made what I interpret as a public request on Twitter for my legal assistance in his dispute with John Hoge, which involves a protective order Mr. Hoge secured to prevent Mr. Schmalfeldt from contacting him.
Mr. Hoge is a defendant in Brett Kimberlin's frivolous and censorious state and federal lawsuits against critical bloggers; Mr. Schmalfeldt is a vigorous advocate for Mr. Kimberlin, a bearer of Mr. Kimberlin's tales, an apparent recipient of tips and leaks from Mr. Kimberlin about lawsuits and legal strategy, and an enthusiastic supporter of Mr. Kimberlin's abuse of the court system and the First Amendment.
I've offered and given limited assistance to Mr. Hoge, and other defendants, in the Kimberlin suits. I believe that rules governing conflicts of interest would prohibit me from offering assistance to Mr. Schmalfeldt in a case in which he is directly adverse to Mr. Hoge, especially because the adversity is connected to Mr. Schmalfeldt's efforts on behalf of Brett Kimberlin. I understand that the restraining order against Mr. Schmalfeldt arose from his campaign against Mr. Hoge because of Mr. Hoge's criticism of Mr. Kimberlin.
Moreover, I think my ability to be an effective advocate for Mr. Schmalfeldt is compromised, and could be questioned, because he has posted a fantasy about me being murdered, apparently because he is angry that I offered pro bono assistance to Patrick Frey in a First Amendment suit. Though I think his murder fantasy ultimately did not constitute a true threat that could be subject to criminal or civil sanction, I think his intent was to threaten me over my pro bono work on behalf of someone he doesn't like, and that he would have been very happy if someone had murdered me in reaction to him encouraging them to do so and posting my office address. That may not have been a likely result of his post, given his limited (in every sense of the word) readership, but it was a possibility, and one I suspect he relished. That would make it unreasonably difficult for me to be effective on his behalf.
Because of those two factors, I have declined to give assistance to Mr. Schmalfeldt. However, no reader should infer from that declination — or from the fact that I have not written about his dispute with Mr. Hoge — that I take a position on it. My silence should not be confused for approving, or disapproving, the restraining order and charges against him or from suggesting they do or don't comply with the First Amendment.
For what it is worth, I don't think Mr. Schmalfeldt's request was honest. I think the purpose of his request was to set up an accusation that I only support the First Amendment rights of conservatives. I think that honest readers can assess the variety of people I have helped and the free speech issues I have written about and draw their own conclusions. Mr. Schmalfeldt is a dishonest and unprincipled partisan, and will never honestly assess my position; it is a lost cause expecting him to do so.
Bill Schmalfeldt is no free speech hero. I think it would be more accurate, based on his role in promoting Brett Kimberlin's lawsuits, to describe him as an anti-First-Amendment activist. But even disturbed freaks, and even anti-First-Amendment activists, have rights. I would certainly have no quarrel with anyone deciding to look at Bill Schmalfeldt's case and make their own determination of whether they would like to offer him assistance. Whatever the merits of his arguments, First Amendment disputes are best resolved with competent counsel on both sides.
Last 5 posts by Ken White
- Update on The Popehat Podcast - November 30th, 2016
- Lawsplainer: Why Flag Burning Matters, And How It Relates To Crush Videos - November 29th, 2016
- Update: Ninth Circuit Rejects Attack on "Comfort Women" Monument - November 28th, 2016
- True Threats v. Protected Speech, Post-Election Edition - November 16th, 2016
- Lawsplainer: About Trump "Opening Up" Libel Laws - November 14th, 2016