Not Commenting Is Not Commenting

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

Comments

  1. BradnSA says

    Ken, do people bother you that often about what you cover, or where you qualifying your statement about Bill?

    Fwiw, I don't think anyone who reads you would make a claim you only rep conservatives. Screw that guy.

  2. Ivraatiems says

    There'll always be crazy people. They will always say crazy things. Ken, I appreciate your stance on this – but I'm confused as to why you felt it was necessary to even respond to him in the first place.

    It won't stop him from doing what he does/saying what he says, and it won't stop people who swallow his bilge from doing so, because they're coming from the same unprincipled place that he is. All it does is feed him more of the attention he so craves.

    Why even bother?

  3. says

    I actually get a fair amount of "you haven't written about X. Does that mean X is ok?" Some of them are not as dishonest as Schmalfeldt. Plus, I would like to make it clear to liberals that need help that I will be happy to help them, absent conflicts.

  4. Grifter says

    At least now you have a post to explicitly point to when someone whinges (as they will) about a perceived (but clearly not present) partisan bias on your part as to who you give help to–though I think his "being a dick to you personally" is reason enough not to offer him help, advice, or comment.

    (Side note: isn't "Moreover, I think by ability to be an effective advocate…" supposed to be "Moreover, I think MY ability to be an effective advocate…"?)

  5. TomB says

    Dear god. How old's this guy?

    Chronologically? Mentally? Emotionally?

    It matters because they're all very, very different.

  6. Adam says

    Maybe you could refer him to somebody you respect and who might not have a conflict of interest?

  7. TomB says

    Maybe you could refer him to somebody you respect and who might not have a conflict of interest?

    And who isn't afraid of death threats….

    Talk about "don't do me any favors".

  8. says

    Ken, respectfully, the only reason anyone's ever heard of Bill Hasenpfeffer, or whatever his name is, is that you and Patterico mention him frequently.

    I understand why, but the best way to kill a fire (in this case, an ember) is to starve it of oxygen. You and Frey blow on this ember like a Kansas tornado.

  9. htom says

    Karma in action: when you wish for people's deaths, don't then expect them to come to your aid.

    Ken, you seem to really "get" freedom of speech, which few on either extreme of the political war appear to. Further, you stand up and say so. Thank you.

  10. Sparky says

    Patrick, you're completely wrong. Remember, Ken came into BS's crosshairs due to the simple fact that he dared help someone who had a problem with Brett Kimberlin, not BS himself. BS also has a history of doxing people who merely disagree with him on forums and threatening them. Did you read the part where he went after Lee Stranahan?

    If Ken and the others would leave him alone he would be free to go after those who cannot help themselves.

  11. Sparky says

    Here is the loving and caring BS mildly disagreeing with someone because he had the temerity of upvoting a Facebook post.

    So, you LIKED that crap on Facebook, eh?

    I'm thinking of writing a story, Doug. I have a screencap of you LIKING some of the filth being written about me at the POINT AND LAUGH Facebook page, run by your old Wisconsin buddies.

    Now, I have pictures of you that I got just by clicking your name there on the "Doug Likes This" link. I am going to dig deeper into your background and find out what there is to find out about you, Doug.

    Unless you can convince me that it was an innocent mistake and you didn't mean anything by "liking" filth being printed about me.

    Wanna know how you can convince me?

    By 5pm today, October 25, Eastern Time, you will write to me at editor@theliberalgrouch.com and tell me everything you know about relationship with the whole Knot group. Is he Jerry Fletcher? WHO is Jerry Fletcher. I want it all Doug.

    Or, we'll see how YOU like having the TRUTH written about you. I won't lie, Doug. I'm not in a good mood. But I won't print anything that isn't true.

    5pm ET.

    OK? Great.

    Peace, my new best friend!

    Bill

    Remember, that was for the crime of LIKING a Facebook post

    Bill is a deeply disturbed individual.

  12. Rhonda Lea Kirk Fries says

    @Adam,

    Schmalfeldt's behavior is akin to self-selection for ostracism. What lawyer in his right mind would want him?

  13. SPQR says

    Schmalfeld has never been prohibited from writing any specific conduct – contrary to his many brazen, incoherent lies – rather his conduct has been constrained. His only real defense would be his inability to control himself.

  14. Matthew Cline says

    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.

    Maybe I'm just looking at things the wrong way, but it seems to me that being prohibited from contacting one private citizen isn't much a of a free speech issue.

  15. Christopher Jones says

    @Adam

    If I respect someone professionally and they will accept a referral from me, they probably respect me as well. I suspect those people would have an issue working for anyone who threatened me just as I would.

  16. Brad Hutchings (@BradHutchings) says

    Why not refer him to someone you despise? I've certainly done this with customers who were a pain in the ass. Just referred them to a competitor I didn't like or knew was incapable of dealing with them.

  17. Rich says

    Please choose to check out the free speach issues going on with Carlos Miller and his website photography is not a crime. He might do ten years for tampering with a witness for saying MAYBE we should give the police spokesperson a call. Please look, it might be something you choose to comment on. Or not. I thought it might be of interest to you. I understand your a busy person and maybe this comment qualifies as a only if you buy me a pony comment. Check it out its interesting.

  18. Decline to disclose says

    @BradHutchings

    While I don't see anything wrong with referring him to someone you find disagreeable but competent, I can't say the same about sending him to someone incapable of handling the case. No matter how much of an asshat this guy may be, he still deserves competent representation.

  19. That Anonymous Coward says

    YAY 'MERIKA!
    Everything is black and white.
    If your not running around carrying a sign, you are against us and we should attack you.

    I think I am a really good example that everything is not black and white in the world. I've never sat with Ken and discussed/debated copyright law. I do not claim to know his position, or assume that he is copyright zealot because he isn't cheering my own viewpoint.
    He does not assume that I am a terrorist out to destroy copyright (I hope :D ).
    People see the nym, see the avatar, and immediately want to put me into a properly labeled box. Often I think they are shocked that I have viewpoints that might match their own on some topics.

    Everyone wants the easy to use system of Yes, No, Black, White… and I think that this has hurt everyone. We no longer look for ways to make everyone happy (or at least find it acceptable) with something we stick to our guns of we are 10000% right and your just as wrong if you disagree.

    If your world is just black and white, it is really sad and stark. Maybe if he started looking for the shades of gray we once had we'd be better off.

  20. says

    I think the purpose of his request was to set up an accusation that I only support the First Amendment rights of conservatives.

    One may be inclined to point out to him the legal assistance you offered and provided for me, an east coast liberal atheist.

  21. CJK Fossman says

    @That Anonymous Coward

    we stick to our guns of we are 10000% right and your just as wrong if you disagree don't agree enough.

  22. Rhonda Lea Kirk Fries says

    @Matthew Cline,

    He's a personality-disordered fruitcakeellow who has the delusion he's sending a message thereby.

    Never try to understand crazy people; if you creep too close to the edge, there's a risk you might just topple over.

  23. Docrailgun says

    Ken wrote:
    "Mr. Schmalfeldt is a dishonest and unprincipled partisan…"

    He's simply a dishonest and unprincipled person. Schmalfelt is a "progressive" in the same way that Rush Limbaugh is a "conservative" – which is not at all. They just know how to talk to an audience and push their buttons.

  24. TomB says

    He's simply a dishonest and unprincipled person. Schmalfelt is a "progressive" in the same way that Rush Limbaugh is a "conservative" – which is not at all. They just know how to talk to an audience and push their buttons.

    You'd have a point if BS actually had an audience. He speaks and acts only at the behest of Kimberlin and Rauhauser.

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