Respondents Brief - First Amendment Defense

This brief is an excellent reference for a First Amendment Defense of Contempt of Court by speech via the internet and World Wide Web publication. See also answer brief of Erin Baldwin

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DARYL J. SCHMIDT, Petitioner

v. Case No. 2010CV01611 JILL M. FERGUSON,



Respondent JILL M. FERGUSON, by her attorneys, GERARD F. KUCHLER and BRADLEY J. BLOCH, has moved for relief from provisions of the Injunction which remains in

.. . effect until April 22, 20l~Inpractical terms, the motion for reliefsays that the Court should


narrow or abandon the extraordinarily and unnecessarily broad prohibitions of this extreme Section 813.125 Harassment injunction that impermissibly restricts Respondent's expressive rights guaranteed by the minimum standards of the First and Fourteenth Amendments to the United States Constitution and the even broader protections of Article 1, §3 of the Wisconsin Constitution.

It may be helpful to commence this Supplemental Brief by succinctly reviewing the timeline material to the case:

April 9, 2010 > Petitioner Daryl J. Schmidt files Petition for Section 813.125 Harassment Temporary Restraining Order executed by the Circuit Court for Waukesha County.

April 10, 2010> Temporary Restraining Order is served upon Respondent at 7:40 P.M.. April 20, 2010> United States Supreme Court releases United States v. Stevens, 559 U.S. _ ,

130 S.Ct. 1577, 176 L.Ed.2d 435 (2010).

April 22, 2010 > Waukesha County Court Commissioner Linda Georgeson conducts Section 813.125 Injunction hearing where Respondent asserted her First Amendment expressive rights. Injunction is issued and served upon Respondent prohibiting use ofthe Internet in any manner "to communicate about Petitioner," ordering an existing website be "removed immediately,"


prohibiting website creation "or posting on other websites regarding Petitioner" and prohibiting "media or licensing agency contacts re: Petr ... by Respondent."

July 23, 2010> Waukesha County District Attorney files State v. Jill M Ferguson, Case No. 2010 CM 1473 charging Count 1, Violation of Harassment Restraining Order and Counts 2 Violation of Harassment Injunction in 10 CV 1611 and Count 3 Violation of separate harassment injunction secured by Petitioner's attorney in Case No. 10 CV 2326.

August 18, 2010 > SPD Richard Martin files Motion to Dismiss. Judge James R. Kieffer recuses "due to alleged victims being colleagues."

August 26, 2010 > Case No. 2010 CM 1473 is ordered assigned to Jefferson County Circuit Judge Jennifer L. Weston.

March 1,2011 > Following briefing by State and Ferguson's SPD, Judge Weston issues Memorandum Decision finding probable cause for Count 1 limited to Ferguson violating the 10 CV 1611 TRO's phrase "not to utilize the internet to harass the petitioner" while dismissing Count 2 for want of allegation of harassing behavior directed toward Respondent Schmidt and dismissing Count 3 for want of personal jurisdiction as to the 10 CV 2326. Judge Weston' s Memorandum Decision, as to Count 1, also concluded "defendant may not seek to collaterally attack that count within the criminal case."

March 2, 2011 > United States Supreme Court releases Snyder v. Phelps, 562 U.S. _ , 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011).

June 27, 2011 > United States Supreme Court releases Brown v. Entertainment Merchants Association, 564 U.S. _ , 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011).

July 8, 2011 > SPD Martin files in Case No.1 0 CV 1611 a Section 806.07(l)(h) Motion for Relief from the TRO and Injunction together with a Brief in Support.

September 20-21 , 2011 > Office of State Public Defender appoints Attorney Gerard Kuchler to represent Ferguson as to the pending misdemeanor and as to SPD Martin's pending Motion for Relief.

Respondent Jill Ferguson's current counsel contend that there are far more direct arguments in support ofthe Motion for Reliefthan those that prior counsel, SPD Richard Martin, cited in his earlier effort seeking relief which was dismissed by the Court. The United States Supreme Court has expressly and unanimously found "state action" in a case reviewing a damage award and injunction:

Although this is a civil lawsuit between private parties, the application of state rules of law by the Mississippi state courts in a manner alleged to restrict First Amendment freedoms constitutes "state action" under the Fourteenth Amendment. New York Times v. Sullivan, supra, [376 U.S. 254] at 256, 84 S.Ct. 710, 11 L.Ed 2d 686. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916, note 51, 102 S.Ct. 3409, 73 L.Ed.2d 1215, 1238, note 51 (1982).


Successor counsel emphasize that Petitioner Schmidt's April 22, 2010 Injunction hearing testimony, itself, established that none of Respondent Ferguson's contacts were "true threat" within the category of proscribable expression. Mr. Schmidt testified that none of Ms. Ferguson's behavior "ever threatened you (Schmidt) physically or caused you (Schmidt) to fear for your life," Tr. 4-22-10 at 33-34, that his firearm prohibition-related allegation was a mistake, Id. at 36, which was withdrawn, Id. at 37. Constitutionally proscribable "true threat" requires the subjective specific intent to threaten unlawful violence with the threat reaching bodily harm:

"True threats" encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.... 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. Virginia v. Black, 538 U.S. 343, 359-360, 123 S.Ct. 1536, 1548, 155 L.Ed.2d 535,552 (2003)

There simply was no "true threat" predicate laid by Petitioner at the April 22, 2010 Injunction hearing. Instead, the evidence only showed what Claiborne Hardware long ago held to be protected expression: "threat of social ostracism," vilification, traduction, 458 U.S. at 921. That the message was intentional and/or embarrasses and/or is coercive does not deny the message protection. Id. at 909-910. That Mr. Schmidt related the messages to his business as a physical therapist is no different than the real estate broker who secured a state injunction to suppress leaflets "critical of his business practices" that "were coercive and intimidating, rather than informational" only to see the Highest Court nullify the injunction on First Amendment grounds in Organization/or a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575,29 L.Ed.2d 1 (1971). Keefe was summarized and re-affirmed in Claiborne Hardware, 458 U.S. at 910-912.

The existing injunction, in restricting Respondent's otherwise protected speech and expressive conduct, must meet the First Amendment standards for either content-based or


content-neutral injunctions. The standards were clarified in Madsen v. Women's Health Center, 512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994):

"(To enforce a content based exclusion the State must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.)" 512 U.S. at 761.

Our close attention to the fit between the objectives of an injunction and the restrictions it imposes on speech is consistent with the general rule, quite apart from First Amendment considerations, "that injunctive relief should be no more burdensome to the defendants than necessary to provide complete relief to the plaintiffs." Califano v. Yamasaki,442 U.S. 682, 702 (1979). See also Dayton Bd. ofEd. v. Brinkman, 433 U.S. 406, 418-420 (1977). Accordingly, when evaluating a content neutral injunction, we think that our standard time, place, and manner analysis is not sufficiently rigorous. We must ask instead whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest. See, e.g. Claiborne Hardware, supra, at 916 (when sanctionable "conduct occurs in the context of constitutionally protected activity ... 'precision of regulation' is demanded") (quoting NAACP v. Button, 715 U.S. 415, 438 (1963)); 458 U.S. at 916, n. 52 (citing Carroll, supra, and Keyishian v. BoardofRegents, State Univ. ofNY, 385 U.S. 589,604 (1967); Carroll, supra, at 183- 184. SOURCE: 512 U.S. at 765-766.

Justice Scalia observed while dissenting in Madsen v. Women's Health Center, 512 U.S. 753, 793-794, 114 S.Ct. 2516, 2539, 129 L.Ed.2d 593 (1994):

Normally, when injunctions are enforced through contempt proceedings, only the defense of factual innocence is available. The collateral bar rule of Walker v. Birmingham, (cite deleted), eliminates the defense that the injunction itself was unconstitutional. Accord, Dade Classroom Teachers' Assn. v. Rubin, 238 So.2d 284, 288 (Fla. 1970). Thus, persons subject to a speech- restricting injunction who have not the money or not the time to lodge an immediate appeal face a Hobson's choice: They must remain silent, since if they speak their First Amendment rights are no defense in subsequent contempt proceedings. This is good reason to require the strictest standards for issuance of such orders.

Indeed, the Madsen majority, in reflection on Justice Scalia's analysis, defended its more rigorous standard specifically for injunctions analyzing in part:

Carroll, for example requires that an injunction be "couched in the narrowest terms that will accomplish the pin pointed objective" of the injunction. 393 U.S. at 183. We require that the injunction "burden no more speech than necessary" to accomplish its objective. We fail to see a difference between the two standards. 512 U.S. at 767.


As a result, the Madsen majority, in its concluding paragraph, struck material provisions ofthe injunction reviewed, provisions that were far more "pin pointed" than those in the injunction that applies to Ferguson:

We strike down as unconstitutional the 36-foot buffer zone as applied to the private property to the north and west ofthe clinic, the "images observable" provision, the 300 foot no approach zone around the clinic, and the 300 foot buffer zone around the residences, because these provisions sweep more broadly than necessary to accomplish the permissible goals ofthe injunction. 512 U.S. at 776.

Respondent Ferguson's current counsel believe that the more efficient route to the same conclusion of law is to honor the 2010 and 2011 United State Supreme Court precedent; Stevens, Snyder and Brown; which Wisconsin must adapt to in any event when addressing the limited subject matter jurisdiction of its courts on the Section 813.12, 813.122, 813.123 and 813.125 TRO/Injunction procedures.

Wisconsin case law is frequently found to assert essentially universal subject matter jurisdiction of its courts with such jurisdiction created by the Wisconsin Constitution. See, for example, Village a/Trempealeau v. Mikrut, 2004 WI 79, 'Ill, 273 Wis.2d 76,82,681 N.W.2d

190, reporting "never without subject matter jurisdiction" from a Wisconsin Constitution provision. But the federal Supremacy Clause, Article VI, Clause 2, "trumps" the Wisconsin Constitution so that the Wisconsin Supreme Court has recognized that "All state courts, of course, are bound by decisions of the United States Supreme Court on matters of federal law." State v. Jennings, 2002 WI 44, 'Il18, 252 Wis.2d 228, 237-238, 647 N.W.2d 142.

Chief Justice Roberts wrote the lead opinion of Stevens in April of last year. The Court rejected "ad hoc interest balancing" initially emphasizing the First Amendment's impact on "subject matter:"


The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech." "[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." ... "From 1791 to the present," however, the First Amendment has "permitted restrictions upon the content of speech in a few limited areas," and has never "include[d] a freedom to disregard these traditional limitations." 130 S.Ct. at 1584. (Emphasis added.)

The Court specifically rejected the kind of interest balancing employed since Wisconsin adopted the various Chapter 813 abuse-harassment procedures:

The Government thus proposes that a claim o f categorical exclusion should be considered under a simple balancing test: "Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing ofthe value ofthe speech against its societal costs." Brief for the United States 8, see also id. at 12.

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. 130 S.Ct. at 1585.

The Stevens Court explained that the Government's error derived from language ofpast cases, periodically quoted for decades in Wisconsin published case law, that is "just that- descriptive. They do not set forth a test that may be applied as a general matter to permit the Government to imprison any speaker so long as his speech is deemed valueless or unnecessary, or so long as an ad hoc calculus of costs and benefits tilts in a statute's favor." 130 S.Ct. at 1585- 86.

For instance, the very same quotation from Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942), that was the example quoted by the Stevens Court is quotation used by the Wisconsin Supreme Court in State v. Zwicker, 41 Wis.2d 497,510, 164 N.W.2d 512 (1969) as "a test" and then repeated in, for instance, State v. A.S., 2001 WI 48, ~ 15,243 Wis.2d 173, 189,626 N.W.2d 712. The Stevens Court concluded: "Our decisions in Ferber and other cases cannot be


taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment." 130 S.Ct at 1586.

Ever since Bachowski v. Salamone, 139 Wis.2d 397, 411, 407 N.W.2d 533 (1987), denied succinctly a First Amendment overbreadth challenge to the original Section 813.125 Harassment TRO/lnjunction statute, our State has been ad hoc interest-balancing. Bachowski said "The intent requirement and the phrase 'no legitimate purpose' make clear that protected expression is not reached by the statute," - analysis slam-dunked by a Court Commissioner who actually said on record "any 15t Amendment right is tempered by the laws, common sense," Tr. April 22, 2010 at 58, and much stunningly more as to said purported "tempering" - and explained the interest balanced against free expression: "It is not directed at the exposition of ideas but at oppressing repetitive behavior which invades another's privacy interests in an intolerable manner." The ad hoc interest-balancing paragraph is located at 139 Wis.2d at 411.

With so dramatic a limit on "freewheeling authority" so often previously exercised in lower courts, there was, understandably, some question by government whether the Stevens Court could possibly have meant what Chief Justice Roberts' Opinion so clearly said. Such doubt was answered in June when the Brown Opinion totally invalidated a California statute on First Amendment overbreadth grounds with the Opinion ofthe Court this time authored by Justice Scalia:

Last Term, in Stevens, we held that new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated. Brown, 131 S.Ct. at 2734.

Citing Stevens as controlling, Id., the Brown Court exemplified from its 1948 decision in Winters v. New York, 333 U.S. 507, 514, invoking interests of"the corruption ofpublic morals or other analogous injury to the public" concluding: "That is of course the same expansive view of


governmental power to abridge the freedom of speech based on interest-balancing we rejected in Stevens." Brown, 131 S.Ct. at 2735.

On the instant claim of "harassment," the Snyder v. Phelps Opinion by Chief Justice Roberts is also highly material. Indeed, the lone dissent by Justice Alito characterized, without difference expressed by any Justice, the repetitive behaviors ofPhelps and his Westboro Church as "harassment," 131 S.Ct. at 1228, and "parts of a single course of conduct," Id. at 1225, note

15. This was the case that addressed the Westboro Church protesting at nearly 600 military funerals plus the funerals for fallen police officers, firefighters, victims ofnatural disasters or accidents as well as victims of shocking crimes. Id. at 1224. Nevertheless, the Snyder majority vacated a State of Maryland judgment for a well-established intentional infliction of emotional distress claim on grounds that the First Amendment protects expression far more damaging than anything testified to here by Petitioner Schmidt. The Snyder majority plainly rejected Justice Alito's long list of other ways the Westboro Church could have conveyed its messages concluding, quite ironically here, with the very means the Schmidt injunction prohibits:

Respondents and other members oftheir church have strong opinions on certain moral, religious, and political issues, and the First Amendment ensures that they have almost limitless opportunities to express their views. They may write and distribute books, ... they may appear on television and speak on the radio; they may post messages on the Internet and send out e-mails. And they may express their views in terms that are "uninhibited," "vehement" and "caustic." Id. at 1222. (Emphasis added.)

If the expressive conduct of the Westboro Church is absolutely privileged by the First Amendment, Ferguson's counsel have no idea how the Law of the Land can permit the Injunction issued in Case No. 10 CV 1611 or any other injunction similarly issued using the Chapter 813 abuse-harassment TRO/Injunction standards. Of course, Wisconsin published cases have already held that expressive conduct holds the same First Amendment privilege as speech

itself, State v. Baron, 2009 WI 58, ~ 14, note 6, 318 Wis.2d 60,68,769 N.W.2d 34 and that all 8

related to "domestic disputes" are matters of public not purely private concern. State v. Schwebke, 2002 WI 55, ~ 31,253 Wis.2d 1,23,627 N.W.2d 213. The latter principle of law denies Wisconsin "the one out" that counsel see in the Snyder majority opinion. While the Chief Justice acknowledged for the Court that "the boundaries of the public concern test are not well defined," 131 S.Ct. at 1216, Schwebke denies "domestic disputes" are "matters of purely private significance," Id. (Emphasis added), which looks to us like "the one out" that is arguable.

We note that predecessor counsel earlier cited Highest Court authority for "noxious, offensive, or irresponsible speech (being) constitutionally protected," Brief in Support at 4. Snyder and Brown add two more descriptors or attributes that are also protected. Snyder added "outrageous" content to "misguided, or even hurtful" as no basis to deny constitutional privilege. Snyder, 131 S.Ct at 1219. Brown added "... disgust is not a valid basis for restricting expression," Brown, 131 S.Ct. at 2738.

Finally, SPD Martin's filings address "remedy" in general language where current counsel offer specifics. In light of Bachowski's invoking privacy interests as the motivation for the statute, Branch 9 should narrow the enjoined conduct to that narrow privacy interest for which the United States Supreme Court has tradition in limiting "even good ideas." Frisby v. Schultz, 487 U.S. 474,108 S.Ct. 2495,101 L.Ed.2d 420 (1988) protects the privacy interests of the unwilling recipient ofmessages in the recipient's home. Reference to Frisby is found in Wisconsin law:

Even ifthe sanctions ofthe statute indirectly prohibit speech, the state can ban speech directed primarily at those who are unwilling to receive it. See Frisby v. Schultz, 108 S.Ct. 2495, 2504 (1988). "Individuals are not required to welcome unwanted speech into their own homes and ... the government may protect this freedom." Id. Authority: Schramek v. Bohren, 145 Wis.2d 695, 710,429 N.W.2d 501 (Ct. App. 1988).


The Schramek Court's direction that readers "see" Frisby leads the obedient to realization that the Schramek Court's first sentence is not supported by the Frisby Opinion - or any other Highest Court precedent - and that the Frisby Court carved out an exceedingly narrow exception to free speech guarantees. The Snyder decision this last March is another example where a party has sought to have the Court broaden the exception and another example ofthe Court's refusal to broaden:

As a general matter, we have applied the captive audience doctrine only sparingly to protect unwilling listeners from protected speech. For example, we have upheld a statute allowing a homeowner to restrict the delivery of offensive mail to his home, see Rowan v. Post Office Dept., 397 U.S. 728 (1970), and an ordinance prohibiting picketing "before or about" any individual's residence, Frisby [v. Schultz,] 487 U.S. [474]at 484-485 . . . .

We decline to expand the captive audience doctrine to the circumstances presented here. Snyder, 131 S.Ct. at 1220.

Relying on Frisby, the Court has jurisdiction to enjoin Respondent's unwelcomed messages into Petitioner's residence. Petitioner's court action has made clear that "even good ideas" thrust into his home should stop. Modes of communication addressed in Mr. Schmidt's injunction hearing testimony like e-mails and packages delivered to the residential property are well within the captive audience/unwilling recipient doctrine.

However, nothing in Frisby allows lower courts to protect residential privacy interests outside the residence. The Frisby right-to-life pickets had Supreme Court imprimatur to march throughout the Town of Brookfield neighborhood with signs identifying the resident as a doctor who perfonns abortions. Nothing permits lower courts to prohibit use of the Internet or to prohibit contact with the media or with government regulators or with regulators of professionals. If Mr. Schmidt or his loved ones choose to review public messages in the confines of a home, they are no longer unwilling recipients. They have, instead, materially "opened the door." Givhan v. Western Line Consolidated School District, 439 U.S. 410,415,99 S.Ct. 693 ,


696,58 L.Ed.2d 619 (1979): "Having opened his office door to petitioner, the principal was hardly in a position to argue he was the 'unwilling recipient' of her views."

Moreover, Petitioner Schmidt has no right to initiate or cooperate with Internet-based or other public debate on the quality of his professional service and then complain that that some share the negative team's views on that debatable topic. If the negative debate team resorts to falsehood, the law offers defamation lawsuits but Petitioner Schmidt's filings and testimony in 10 CV 1611 did not claim that anything Respondent wrote was false. Schmidt sought instead to suppress truth.

The Motion for Relief addresses whether the Circuit Court had subject matter jurisdiction to attack our Nation's most cherished freedom over the course often pages of transcript, Tr. April 22, 2010 at 56 to 65, and deter timely appeal by characterizing review as "stupid." Id. at 59 to 60. All ofthat was capped offby Petitioner's attorney, as literally the last gasp, requesting and getting suppression of the freedom of the press as well. Id. at 64. Relief is due as Respondent's protected rights deserve protection.

Dated in Waukesha, Wisconsin this _ _ day of December, 2011.



~ _-_-<:2.62-542-4219


JOINT ADDRESS: 1535 East Racine Avenue VVaukesha, VVI53186


Nothing contained herein is tendered as nor should it be considered as legal advice.  What is legal is not necessarily justice.  Almost all of reality is non-"published", ergo, what is legally affirmed is always a retarded misrepresentation of reality.   Use at your own risk!