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Federal judge says writer
not properly endowed
Judge John E. Jones III describes Pennsylvania author as a 'self-proclaimed professional writer of books' with no constitutional protections against judges he writes about
Keisling replies that 'Writers are naturally selected, not selected by government or courts'
Posted May 24, 2010 -- A federal judge in Pennsylvania has ruled that yardbird.com author and writer Bill Keisling is not an American writer who enjoys constitutional First Amendment protections.
Judge John E. Jones' order also suggests that other judges whom Keisling writes about are free to sit on cases involving Keisling's writings about them, and so can misuse their court positions to retaliate against Keisling, or other writers, with impunity.
Keisling, in court papers, calls this "judicial tyranny."
Judge Jones' preliminary ruling implies that judges whom Keisling writes about are free to disregard Keisling's First Amendment and other constitutional rights and so can demand that Keisling turn over the names of sources and materials involving these judges, and others.
Federal Judge John E. Jones III, of the Middle District Court of Pennsylvania, came to national prominence in 2005, when he presided over a case involving an "intelligent design" curriculum imposed by a central Pennsylvania school district. In Kitzmiller v. Dover Area School District, Jones ruled that "intelligent design" amounts to creationism and so cannot be taught as science in public schools in place of evolution.
In an angry court order filed on May 12, 2010, Judge Jones granted immunity to several Pennsylvania judges who have openly retaliated in court against Keisling for writing about them.
In his order, Judge Jones dismissed Keisling as a "self proclaimed 'professional writer of books.'" The order, which was filed without benefit of a hearing or evidence, implies that Keisling or other writers must first be "proclaimed" as a writer by a court to be subject to constitutional protections of free speech.
Keisling responded to Judge Jones' ruling by filing a 17-page recusal motion requesting that Jones get off the case.
"Writers in the United States do not have to be 'proclaimed' as a writer by anyone," Keisling responded to Judge Jones in court papers. "No political patrons are necessary to become a writer in the United States. There is no Senate confirmation. Nor is permission required from the government, or the courts, to research, form opinions, to write, or to publish."
Was Mendel a 'small self-proclaimed' writer?
Keisling suggested in court papers filed on May 20 that Judge Jones "has size issues."
"These judges in fact are expressing their opinion that I am not a 'big' writer, who writes, say, for The New York Times," Keisling writes.
"That I am not 'big enough' for Judge Jones tastes is ... an unconstitutionally contemptuous idea," Keisling writes. "Yet our constitution protects all Americans, regardless of size, or wealth. The First Amendment is not only for the wealthy, or corporate interests, as we lamentably see lately expressed by our American courts."
'Many great and wonderful writers and thinkers in fact produced no books or audience whatsoever in their lifetimes. Emily Dickinson, Franz Kafka, and Anne Frank come to mind'
In January 2010, the U.S. Supreme Court ruled 5 to 4 that corporations enjoy First Amendment protections, overturning a century-old ban on the use of corporate money to sway elections.
Keisling told the court that he has been a professional writer for more than three decades, and that his books, novels, articles and essays have been blessed with readers.
"Even if a writer had no readers, he or she can still be a writer, if they choose, and would still be protected by our First Amendment," Keisling told the court. "Many great and wonderful writers and thinkers in fact produce no books or audience whatsoever in their lifetimes. Emily Dickinson, Franz Kafka, and Anne Frank come to mind.
"Oliver Wendell Holmes, Sr., himself an accomplished writer, chose instead to work as a physician, while his son, Oliver Wendell Holmes, Jr., a frustrated writer, had to settle on a lesser station in life and so became a U.S. Supreme Court justice," Keisling pointed out. "Holmes, Jr., went on to lay the foundation for much of American common law, including the decidedly unsettled concepts of judicial immunity at the center of my case."
"I would comment to Judge Jones that writers are naturally selected, and not selected by government officials," Keisling told the federal court.
Keisling suggested that Judge Jones, who presided over a famous case involving Darwinian evolution, might do well to study the example of obscure nineteenth century writer Gregor Mendel.
"Judge John E. Jones III is perhaps familiar with the work of Gregor Mendel, the Augustinian monk," Keisling told the court.
"In 1865 Mendel presented a research paper titled 'Experiments on Plant Hybridization,' concerning his arduous work involving some 28,000 tiny pea plants," Keisling writes. "Mendel's paper was all but ignored in his lifetime, and cited only three times in scientific journals over the next 35 years. At his own expense, Mendel reprinted his paper and sent 40 copies to leading biologists around Europe, including to Charles Darwin. No one knew of the obscure monk, and everyone ignored his paper. Mendel was apparently 'too small' to matter. Darwin's copy of Mendel's paper was later found with its double pages uncut: it had not even been read."
"The powerful truth of Mendel's insights involving laws of heredity have gone on to change the world, as Judge Jones well should know. Small things often become big things... Hard truth cannot be crushed, as blatantly biased court officials are attempting to do here."
Court patronage seen as issue
The current controversy was fueled in January when Keisling asked the Third Circuit Court of Appeals in Philadelphia to move his case from Pennsylvania's federal Middle District Court, where Keisling has spent years writing about court corruption, judges, and their political patrons.
"(J)udges continue to sit on cases involving their personal and private interests, about which Keisling has written and continues to write about, while at the same time they openly announce they will rule against Keisling," Keisling told the Third Circuit Court of Appeals, which refused to act.
Writer Keisling called the involvement in his case of the federal Middle District Court's Magistrate Judge J. Andrew Smyser "repugnant." Magistrate Judge Smyser had been a central subject of Keisling's 1988 book The Sins of Our Fathers.
Writers Anne Frank, Gregor Mendel, Emily Dickinson and Franz Kafka all wrote without an audience: would they be denied 1st Amendment protections in US courts today?
In Keisling's book, two retired senior Harrisburg police officers accused Judge Smyser and others of refusing to investigate allegations that then-Pennsylvania Attorney General LeRoy S. Zimmerman had life-long associations with gamblers and organized crime figures.
Former Pennsylvania Attorney General Zimmerman is Judge Smyser's political patron. Smyser previously worked for Mr. Zimmerman in the Dauphin County District Attorney's Office as a deputy district attorney. Smyser went on to work in the U.S. Attorney's Office in Harrisburg, where an investigation involving Zimmerman was quashed.
LeRoy Zimmerman currently sits as Chairman of the Board of the Hershey Trust. The Hershey Trust is charged with overseeing the will of the late chocolate manufacturer Milton S. Hershey.
In response to Keisling, federal Magistrate Judge Smyser wrote in an order filed April 19, 2010, that, "I was not in a decision-making capacity about the course of the investigation to which (Keisling) refers in his writings."
Judge Smyser continues, "A judge's knowledge that untrue inferences have been drawn and incorrect assumptions have been made by a person who has written about matters about which the judge has personal knowledge can cause the judge to doubt the reliability of the process used by that person to draw inferences and to form opinions."
Keisling responded, "An uninterested third party would certainly be a better judge of the conduct of Mr. Smyser, than would Mr. Smyser."
"What we see here is judicial tyranny," Keisling told the court. "Judge Smyser is misusing his trust, position, and oath to censor his own past, and to ignore my constitutional rights, and to ridicule and coerce me. He's also blatantly announcing his prejudice against me, and his intent to pre-judge me, without benefit of evidence, witnesses, or hearings."
Magistrate Judge Smyser nevertheless refused to recuse himself, and instead recommended to Judge Jones that the state judges Keisling had written about be granted federal judicial immunity for their retaliatory actions against Keisling.
Federal Judge Smyser further wrote in his order that Keisling "has stated negative things about United States District Court Judges," as well as state judges. Keisling maintains that he has a right to write about judges and other court matters free of government interference, suppression and coercion, such as exhibited here.
Writer Keisling filed his federal civil rights lawsuit in November 2009, after York County Common Pleas Judge Richard Renn ruled that Keisling was not a professional writer protected by the First Amendment or shield laws involving Keisling's 2004 book The Midnight Ride of Jonathan Luna, which discusses Judge Renn.
Suppressing the Luna book
Keisling's federal lawsuit, Keisling v. Renn, et al, states that Judge Richard Renn unconstitutionally misused his position as a Pennsylvania judge in a case involving a book about himself to silence and threaten any who would speak out against Judge Renn.
Another York County, PA judge, Maria Musti Cook, had earlier held a hearing without Keisling's knowledge in which Keisling was denied his First Amendment Rights and ordered to turn over sources or other materials to a law firm where Judge Cook once worked while in private practice, Katherman, Heim and Perry, of York.
Robert Katherman, of that firm, served as Judge Musti Cook's campaign chairman when she was seeking her state judgeship. Judge Musti Cook's order stripping Keisling of his First Amendment rights was signed on that law firm's stationery. "Again we see blatant politics, inside dealing, favoritism, and patronage in the workings of these courts."
Keisling wrote in The Midnight Ride of Jonathan Luna that York County, PA, judges and officials are actively covering up a courthouse prostitution ring involving a county and state security contractor. Powerless citizens also complain that at least one lawyer from the Katherman and Heim law firm boasts to clients of traveling to Costa Rica to buy sex from underage minors.
In the Luna book, Keisling quotes complaints from the York City Police Commissioner and the city controller that they were unable to do anything about blatant corruption in their county courthouse, due to systemic corruption in the Pennsylvania judiciary.
Keisling not only wrote about these judges in his articles and books, he filed complaints against them with the Pennsylvania court system. State court officials, crippled by notorious corruption, investigated none of the complaints.
Renn and the other state judges continue to retaliate against Keisling by refusing to grant him hearings, forbidding him to gather or present evidence, and issuing orders against him, in favor of other parties named in Keisling's federal lawsuit.
Keisling, in his May 20, 2010 recusal petition to federal Judge John E. Jones III, suggests that Judge Jones' federal court, the U.S. District Court for the Middle District of Pennsylvania, is itself a patronage-ridden court more interested in protecting court patrons, friends, and corrupt Pennsylvania judges, than it is interested in protecting the constitutional rights of all Americans, like Keisling.
"In the U.S. District Court for the Middle District Court of Pennsylvania, I continue to be coerced and ridiculed for my informed belief that this federal court is largely composed of a political old-boy network, which in turn suppresses or otherwise exploits the many victims of a related political old-boy network in the state courts," Keisling wrote federal Judge Jones.
Keisling points out that Judge Jones' political patron is former Pennsylvania governor and U.S. Department of Homeland Security Secretary Tom Ridge. Ridge was appointed to the Hershey Company's Executive Board in 2007, and so works with Judge Smyser's patron, LeRoy Zimmerman, on the Hershey Trust.
Keisling told the court, "As my federal court case has unfolded, I have been given cause to wonder, in the reading of Judges Jones' and Smyser's orders, whether these federal judges are protecting their own personal interests, the interests of their fellow party judges in Pennsylvania courts, or the interests of their personal political patrons at the Hershey Trust."
"There are striking similarities between the state judges who are defendants in my case, and Judges Jones and Smyser, who are presiding on my case," Keisling continues. "The defendant state court judges are all Republican, as are the federal judges. I have also written professionally about several of the state and federal judges involved.
"More troubling, and at the core of the unconstitutional treatment of me before the federal Middle District Court of Pennsylvania, is that each of the state and federal judges have written in their opinions that I am not a writer. And so, they clearly imply, I have no guaranteed First Amendment rights.
"Many people who are the subjects of books, newspaper and magazine articles dispute the accuracy of the writings about them," Keisling points out. "Few, unlike Judge Smyser and Judge Renn, are allowed the opportunity and the undoubted selfish pleasure to misuse their public trust and oaths to retaliate against the writer and bearer of the news, as we see here," Keisling adds.
"Suffice it to say, if I had written about these judges in the Times, or the Philadelphia Inquirer, they would immediately recuse themselves from any case involving themselves and the writer in question, less they face stern court discipline and swift public condemnation."
Keisling goes on to quote Lord Northcliffe, an early twentieth century British newspaper publisher.
"News is what somebody somewhere wants to suppress; all the rest is advertising," Lord Northcliffe observed.
Keisling plans to appeal federal Judge Jones' grant of immunity to the state judges.
Keisling does not plan to seek a court proclamation that he is an American writer.
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