20-3487

EIGHTH CIRCUIT
COURT OF APPEALS

BROCK FREDIN,
Plaintiff-Appellant,

-against-

GRACE MILLER,
CATHERINE SCHAEFER,

Defendant-Appellees’.

-against-

LINDSEY MIDDLECAMP,

Defendant-Appellee.

-against-

JAMIE KREIL,

Defendant-Appellee.

On Appeal from the United States District Court for the

District of Minnesota

Appellate Case: 20-3487 Page: 1 Date Filed: 10/26/2021 Entry ID: 5091233
 APPELLANT’S REPLY TO DEFENDANT’S OPPOSITION FOR
REHEARING AND REHEARING EN BANC

Brock Fredin K. Jon Breyer Ann Lockner

PO BOX 1051 Kutak Rock Robins Kaplan
th
Saint Croix Co. WI 54016 60 South 6 St 800 Lasalle Ave
(612) 424-5512 (tel.) Minneapolis, MN 55402 Minneapolis, MN
brockfredinlegal@icloud.com jonbreyer@kutakrock.com annelockner@robinskaplan.com
Plaintiff-Appellant, Pro Se Attorney for Appellees’ Attorney for Appellee

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 TABLE OF CONTENTS

ARGUMENT ............................................................................................................1

CONCLUSION .......................................................................................................11

CERTIFICATE OF COMPLIANCE ......................................................................12

CERTIFICATE OF SERVICE ................................................................................13

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Cases

Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017) .................................2

3M Company v. Moldex-Metric, Inc., 641 F. Supp. 2d 834, 845 (D. Minn. 2009) ...6

Exeter Bancorporation, Inc. v. Kemper Securities Group, Inc., (8th Cir. 1995) ......5

Gilster v. Primebank, 884 F. Supp. 2d 811, 848 (N.D. Iowa 2012) ..........................5

Reno v. American Civil Liberties Union,521 U.S. 844, (1997) .................................2

Roadway Exp., Inc. v. Piper, 447 U.S. 752, 767 (1980) ...........................................3

U.S. v. Blodgett, 412 F. App'x 935 (9th Cir. 2011) ...................................................3

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 Appellant Brock Fredin, proceeding pro se, hereby submits this reply in

response to Appellees’ briefs and the Court’s September 8, 2021 briefing Order.

ARGUMENT

I. THE COURT HAS A DUTY TO DECIDE THE FIRST AMENDMENT

ISSUES, NOTWITHSTANDING APPELLEES’ INCREDIBLE
CONTENTION THAT THIS COURT SHOULD SUMMARILY
AFFIRM AND IGNORE THE CONSTITUTIONAL ISSUES WITH
THE DISTRICT COURT’S INJUNCTION

Appellees main contention in their brief is that the Court should not reach any

First Amendment issues in this case – even if the District Court’s sanction decision

and ultimate injunction are unconstitutional – because the facts of this case are

“extreme” and “unusual.” (See, e.g., Kriel Br. at 18; Middlecamp Brief at 2.) More

specifically, they maintain that this case does not have requisite “utility” for the

Court to address “broader First Amendment issues.” (See id.) This is a truly bizarre

and dumbfounding appellate defense that, most importantly, has no merit in the law

and flies in the face of our constitutional republic and system of jurisprudence.

Notably, Appellees cite no case law to support their position that the Court

has discretion to decline addressing First Amendment or any other constitutional

issues because the case has “bad facts.” This is because there are no such cases.

Indeed, the Court’s duty is to do exactly the opposite, to uphold the constitutional,

redress constitutional deprivations and decide cases impartially no matter how

“bad,” “unusual” or unique the facts are. In raising such a low-IQ appellate defense,

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Appellees have not so subtly proffered the position that the Court should shred the

Constitution and that the judges on this Court should disregard their Article III duties

to decide cases and controversies according to the law and the constitution.

Appellees’ contention is all the more troubling in this case as it involves the

First Amendment. Indeed, the First Amendment contains the most important and

sacrosanct right in our Republic – free speech. This is all the more important because

the speech here took place on the Internet. Indeed, the “most important places for

the exchange of views … is cyberspace … and social media in particular.”

Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017) (citing Reno v.

American Civil Liberties Union, 521 U.S. 844, 868, 117 S.Ct. 2329, 138 L.Ed.2d

874 (1997)).

What is troubling about Appellee’s contentions in this en banc appeal is that

it stems from a radical left philosophy that is invading our great American culture.

Specifically, it is the attitude that speech must be silenced if it is objectionable to the

radical left – broad-shoulder, buzz-cut snowflake socialists like Appellee Lindsey

Middlecamp and her @CardsAgstHrsmt Twitter campaign targeting not just men

with her “Shirtless Shamers” campaign, but rather African American men.1 It is

1
Appellee Lindsey Middlecamp and @CardsAgstHrsmt Twitter account are
objectively racist. Appellee Middlecamp – an Assistant U.S. Attorney in the District
of Minnesota – publishes nude and semi-nude photographs of black men as part of
her “Shirtless Shamers” campaign. It is utterly disgusting and particularly
hypocritical in light of Appellees’ contentions in this case.

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inconsequential to them that the speech is protected by our Constitution. Rather, so

long as it offends their delicate sensibilities and infringes on their “safespace” they

believe First Amendment should be ignored, that the speech should be silenced and

the speaker should be jailed. This is precisely the radical left, pink-haired Social

Justice Warrior philosophy behind Appellees’ meritless contention in this appeal that

the Court should merely ignore Appellant’s constitutional claims because his videos

and websites were “bad.” This philosophy is as radical left philosophy is as foreign

to this Republic and American jurisprudence as a $3 bill.

Appellant respectfully asks that this Court not fall for Appellee’s radical left

trap that will only further erode our constitutional values. Appellant has clearly

raised serious issues involving the First Amendment and the District Court’s

sanction order and injunction. Those constitutional issues should be decided

regardless of Appellees’ claims that this case has “bad facts” and lacks some

requisite “utility.” This Court should not fall for the radical left politicking

Appellees are advocating for here.

II. THERE ARE NO FACTS IN THE RECORD TO SUPPORT

APPELLEES’ AD HOMINEM ATTACKS, THEIR ALLEGATIONS
THAT APPELLANT “HARASSED” AND “THREATENED”
ANYONE, OR THAT THE FACTS OF THE CASE ARE “UNUSUAL
AND EXTREME” - THE DISTRICT COURT HELD NO FACT-
FINDING TO SUPPORT THE INJUNCTION; EVERYTHING
SUPPORTING THE INJUNCTION, AS WELL AS APPELLEES’
FACTUAL RECITATIONS IN THEIR RESPONSE, ARE NOTHING
BUT UNSUBSTANTIATED ATTORNEY ARGUMENT

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 As an initial matter, Appellees’ contention that the District Court’s

sanctioning of Appellant with the injunction was warranted and appropriate is

entirely without merit. Indeed, Appellant was denied the most fundamental of Due

Process requirement prior to the issuance of the sanction: a mere hearing. Roadway

Exp., Inc. v. Piper, 447 U.S. 752, 767 (1980). See also U.S. v. Blodgett, 412 F. App'x

935 (9th Cir. 2011).

But, this leads to a larger issue with Appellees’ stance on appeal and with the

District Court’s sanction decision and ultimate injunction. Specifically, without a

hearing to make findings and determine the facts underlying the sanction decision

and the ultimate injunction, Appellee’s purported recitation of the facts in their briefs

are nothing but pure attorney argument. More importantly, the District Court’s

sanction decision and ultimate injunction had no factual basis in the record and was

based on nothing more than attorney argument.

To be sure, Appellees admit this point in their brief as they concede District

Court primarily impetus was based on nothing but attorney argument contained in

their motion papers. For instance, Defendants admit that the District Court’s

motivation for issuing the sanction and injunction was because “[Appellant] … used

websites and videos to harass opposing counsel and the Court; and second, that

[Appellant] … attempted to use his postings to pressure opposing counsel and the

Court. (See Kriel Br. At 14-15; see also District Court Decision at 18.) According

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to Appellees and the District Court, Appellant’s objective was “to bully Defendants

into favorable settlement terms and influence th[e] Court’s rulings.” (Kriel Brief at

15.)

Despite these bold factual assertions, however, the District Court held no fact-

finding hearing to adduce these facts. That’s right. There are zero factual findings

that were rendered or otherwise found by the District Court after a constitutionally

required hearing record to support any of the following factual assertions made by

the District Court or Appellees:

• That Appellant intended to “harass” or did “harass” Appellees and/or the

Court with the websites and videos;

• That Appellant intended to “threaten” or did “threaten” Appellees and/or

the Court with the websites and videos;

• That Appellant ever tried to “bully” Defendants into a favorable settlement

with the videos and websites; and

• That Appellant ever tried to “influence” the Court with the videos and

websites to obtains “favorable” decisions.

Put in perspective, there is not a single line of testimony or other properly

admitted evidence anywhere in the record that support these factual assertions.

Rather, the above factual assertions reached by the District Court are nothing but

unsubstantiated and unsupported attorney argument. The District Court

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fundamentally erred and infringed on Appellant’s constitutional rights by failing to

hold a hearing and instead relying on pure attorney argument contained in motion

paper to support its sanction decision and injunction that clearly runs afoul of the

First Amendment.

Attorney argument, as a matter of law, cannot substitute facts and evidence.

Any "statements of counsel are not evidence and do not create issues of fact." Exeter

Bancorporation, Inc. v. Kemper Securities Group, Inc., 58 F.3d 1306, 1312 n. 5 (8th

Cir. 1995) (internal citations omitted). Moreover, “Argument by counsel is not

evidence.” Wittenburg v. American Exp. Financial Advisors. Inc., 464 F.3d 831,

838 (8th Cir. 2006). It is “improper for counsel to argue facts not in evidence.”

United States v. Vazquez–Garcia, 340 F.3d 632, 641 (8th Cir.2003). Gilster v.

Primebank, 884 F. Supp. 2d 811, 848 (N.D. Iowa 2012).

Magistrate Judge Hildy Bowbeer – then a 3M lawyer – successfully argued

on the same basis that attorney argument is not evidence. Specifically, she said

“these arguments are nothing more than attorney-generated and conclusory

depictions that are not evidence capable of supporting a finding … [Bowbeer as a

3M lawyer] further argues the fact that Moldex had to resort to its own drawings

establishes that the [attorney arguments] were not [facts] — which is required to

establish [findings].” 3M Company v. Moldex-Metric, Inc., 641 F. Supp. 2d 834,

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845 (D. Minn. 2009). Here, Appellees’ resort to substantially worse distortions and

dishonesty.

Unfortunately, in this en banc appeal, Appellees are yet again trying to pass

off their attorney argument as fact. Appellees have even gone so far as to argue that

the “facts” of this case are so “unusual” and “extreme” that this Court should

summarily affirm the Panel’s decision – even if the District Court’s injunction is

unconstitutional. This smokescreen defense by Appellees quickly dissipates when

one simply reviews the District Court record – a record completely devoid of any

hearing or fact-finding whatsoever. In other words, everything Appellees try to spin

as “fact” in their briefs is nothing more than unsubstantiated and unreliable attorney

argument.

Appellees’ attempts to spin attorney argument as “fact” in this case is not only

unethical, but is serves to highlight the importance of this Court reconsidering the

Panel’s decision. An injunction as bold and sweeping as the one issued by the

District Court should unequivocally be based on factual findings after Appellant had

an opportunity to be heard. This is particularly so where the District Court’s

injunction runs squarely up against the First Amendment and prohibitions on prior

restraints of free speech.

The Court should reverse and remand the District Court’s sanction decision

and injunction. Appellant should have been afforded an opportunity to defend

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himself and be heard prior to the issuance of the sanction decision and injunction.

Any decision issued by the District Court should have been based on facts adduced

and judicially found at a contested hearing in compliance with Due Process. Neither

happened in this case. Instead, we have a sanction decision and injunction

prohibiting speech that is based solely on attorney argument that the District Court

cribbed from counsel’s motion papers. Such an injunction cannot stand as a matter

of law or under our Constitution.

III. THIS CASE IS PREDICATED ON APPELLEES MAKING

NUMEROUS POSTS ON SOCIAL MEDIA FALSELY CALLING
APPELLANT A “RAPIST” AND ATTACKING HIS REPUTATION
AND EMPLOYMENT

It is ironic that this case started with Appellee Middlecamp and Appellee Kriel

making false accusations on Twitter that Appellant “raped” Kreil – a woman who

Appellant never had sex with despite her clear attempts to initiate sex with Appellant

while she was engaged to now-husband.2 These Twitter posts by Appellee

Middlecamp and Appellee Kreil were targeted and specifically designed to attack

Appellant’s reputation and livelihood. And it did – Appellant lost his job, his family

was alienated and he was publicly humiliated. Even worse, Appellee Middlecamp,

2
Just so the Court knows, it is absurd to think that a successful, highly
educated, good looking Alpha Chad like Appellant would ever have any desire to
fornicate with an objectively unattractive, overweight and low-IQ woman like Jamie
Kreil.

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Appellee Miller and Appellee Kreil admittedly colluded and published these false

“rape” allegations on Twitter in an attempt to try to persuade city police and

investigators to re-open a two-year old complaint filed by Appellee Miller and arrest

him. Appellees even went so far as to admittedly “fabricate” “unique” evidence as

part of their scheme to not only publicly ruin Appellant, but to get him arrested and

thrown in jail.3

They have never taken responsibility for these bogus Twitter posts. Indeed,

they have refused to take them down to this day. Here, Appellant brought this suit

merely to have them removed. After being stonewalled, harassed, stalked and

terrorized, even to the point where the District Court denied Appellant discovery,

Appellant simply invoked his First Amendment right to speak out. More

specifically, Appellant published videos to criticize Appellees’ and their counsel’s

misconduct and parodied them.

In fact, Appellant’s videos and websites do not even come close to what

Appellees posted about Appellant. They do not even approach the drastic life

altering allegations of accusing someone of “rape” without a police report, without

3
https://www.scribd.com/document/535318021/United-States-Assistant-
Attorney-Lindsey-Middlecamp-Admits-To-Maliciously-Prosecuting-Litigant-For-
Launching-Website; https://www.scribd.com/document/535318228/United-States-
Assistant-Attorney-Lindsey-Middlecmap-Admits-to-Fabricating-The-Most-
Believable-False-Information;
https://www.scribd.com/document/535318480/United-States-Assistant-Attorney-
Lindsey-Middlecamp-Admits-To-Scheming-Against-Her-Adversary.

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evidence and while at the same time admitting to producing “the most believable

false information,” “fabricating unique false information”, and “coaching” each

other (specifically, Appellee Middlecamp with her knowledge of the law as a lawyer

and federal prosecutor) to terrorize Appellant. At worse, Appellant’s videos and

websites simply criticize and mock Appellees and their counsel – such as with a

wildly popular parody law firm advertisement for Robins Kaplan LLP attorney

Haynes Hansen set to the famous “Ram Ranch” song.4 It is ludicrous and pathetic

that when the tables are turned, they cry foul to the Court and want to conceal their

misconduct called out in the videos and websites at issue with an unconstitutional

injunction issued by the District Court – notably without filing a defamation suit or

bringing their claims to a jury who would laugh them out of Court.

Appellant’s videos and websites5 detail how Appellees’ engaged in

misconduct, made fun of them, and parodied them. Here, it is absurd that Appellee

Middlecamp’s and Appellee Kriel’s posts remain online after bringing a defamation

case where Appellant was denied a fair opportunity to litigate by the District Court

– even being denied basic discovery. Yet, Appellant’s videos and websites that

4
See https://ifunny.co/video/an-actual-youtube-ad-haynes-hansen-associate-
at-robins-kaplan-ug3V3SaG8
5
Appellees’ and their counsel are particularly hypocritical in light of the fact
their counsel K. Jon Breyer is accused of drugging and raping multiple women at
Lehigh University.

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detail their misconduct have been removed without a hearing or an opportunity to

be heard.

CONCLUSION

For the reasons set forth herein, Plaintiff-Appellant requests that this Court

reverse the Court’s November 13, 2021 injunction and remand for further

proceedings.

Dated: October 26, 2021

s/ Brock Fredin
Brock Fredin
(tel.) 612-424-5512
brockfredinlegal@icloud.com
Plaintiff-Appellant

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 CERTIFICATE OF COMPLIANCE

This petition/brief complies with the page limitation established by Federal

Rule of Appellate Procedure 35(b)(2) in that it does not exceed fifteen (15) pages in

length, excluding the parts of the petition/brief exempted by Federal Rule of

Appellate Procedure 32(a)(7)(B)(iii). This petition/brief also complies with the

typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and (a)(6),

as it has been prepared in Microsoft Word using a proportioned spaced typeface of

14-point Times New Roman font.

Dated: October 26, 2021

s/ Brock Fredin
Brock Fredin
(tel.) 612-424-5512
brockfredinlegal@icloud.com
Plaintiff-Appellant

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 CERTIFICATE OF SERVICE

I hereby certify that on October 26, 2021, I electronically filed the foregoing

Appellant’s Reply to Defendant’s Opposition For Rehearing And Rehearing En

Banc with the Clerk of the Court for the United States Court of Appeals for the

Eighth Circuit by using the appellate CM/ECF system. The following participants in

the case who are registered CM/ECF users will be served by the appellate CM/ECF

system:

K. Jon Breyer Ann Lockner

Kutak Rock Robins Kaplan
60 South 6th St 800 Lasalle Ave
Minneapolis, MN 55402 Minneapolis, MN
jonbreyer@kutakrock.com annelockner@robinskaplan.com
Attorney for Appellees’ Attorney for Appellee

Dated: October 26, 2021

s/ Brock Fredin
Brock Fredin
(tel.) 612-424-5512
brockfredinlegal@icloud.com
Plaintiff-Appellant

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