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May 29, 2012 
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Despite what you believe, you can be imprisoned in America for writing about public controversies. Aaron Walker — who until recently blogged as Aaron Worthing — found that out today.
I first wrote about Aaron when I sent out the Popehat Signal seeking pro bono help for him in Maryland in connection with his disputes with convicted bomber and perjurer Brett Kimberlin. Much more recently, I wrote about him when he revealed how Kimberlin had pursued him in retaliation for his writing, including making a demonstrably false criminal accusation against him.
After Aaron temporarily prevailed over Kimberlin and told his story, Kimberlin sought, and obtained, a new "peace order" (Maryland law-speak for a restraining order) against Aaron, trying to portray Aaron's protected expression as harassment and threats.
Today Aaron showed up in court in connection with that order, and was taken into custody for violating it — apparently on the grounds that by blogging about Kimberlin's behavior, he had violated the peace order.
Robert Stacy McCain is collecting reports about what happened. I'd caution that oral reports about what happened in court are notoriously unreliable, and I won't feel completely confident that I know exactly what happened until I read a transcript or hear it from a non-party lawyer I trust who was present. McCain's sources assert that Judge C.J. Vaughey was upset with Aaron, that Kimberlin claimed he received death threats as a result of Aaron's blogging, and that the judge concluded that Aaron violated the peace order by blogging. I'll update here with more sources as I see them. [If anyone has information on how to order transcripts in this particular court, please let me know.]
McCain provides links to a fund previously set up to assist Aaron after the havoc Kimberlin wreaked on him. I understand more assistance efforts are in the works; I will link them as I hear of them.
I work with words for a living. But I have no words, yet, for how outrageous and despicable this is.
For now, I offer only a series of preliminary observations:
1. This is about everybody's rights, not just the rights and interests of "conservatives" or any other political group. We need to transcend partisanship over this — conservatives need to transcend it because making this partisan will marginalize the situation, and liberals and others need to transcend it because this could happen to then.
2. In that vein: don't like the figures involved? Get the fuck over it, or don't pretend to be serious about free expression any more. This could happen to you. It could happen in a context utterly unrelated to politics as you understand them. Brett Kimberlin is a remorseless and amoral psycho whose crazy is currently being expressed (and joined by others) along ideological lines, but he could just as easily be doing the same things under any other flag. Crazy stalking can happen to anyone for any reason. It could happen to you because you write about politics, or law, or movies, or comic books, or a zoning dispute in your neighborhood. So if you write this off because of whose ox is being gored this time, and who seems to care, you're a fool. People who have read this blog for a while know me well enough to understand that I hold little in common with McCain, or Malkin, or even Patterico, all of whom have written about this. That's irrelevant.
3. Aaron's arrest illustrates how well lawfare can work and how dangerous unprincipled rubber-stamping of protective orders can be. Imagine it: you write something about a dispute. Someone involved in that dispute goes to court in another state and accuses you of harassment and gets a "peace order" against you. That person claims that your writing is threatening, that it has led to threats, or that it constitutes persistent harassment. If you are very lucky, the judge denies the application because it is too vague, or because it seems to complain about protected speech — but if you are unlucky, the judge rubber-stamps it without even demanding to see the allegedly offending posts. (Note that here Kimberlin characterized Aaron's posts, rather than submitting them all.) Now you've got a vague order against you forbidding you from contacting or harassing the "victim." But what does that mean? Surely, you tell yourself, under a century of America's First Amendment heritage, it doesn't mean I can't write a blog post discussing the dispute and explaining why the peace order application is made by a convicted perjurer and notorious domestic terrorist. Well — maybe. Or maybe not. Again, it depends upon your luck with the judge. Here, based at least on initial reports, it appears that the court construed Aaron's blog as a violation of the peace order. I've read all of Aaron's posts on the subject, and none satisfy any principled or constitutional definition of unlawful harassment. None of them incited lawless behavior. If, as reports indicate, the judge jailed Aaron based on those posts, the judge did so lawlessly because Aaron violated a vague and ambiguous prior restraint on protected speech.
4. Kimberlin's success in this regard will embolden other practitioners of lawfare, and allow them to chill and deter speech they don't like. Consider Aaron's dilemma upon being informed of the new and overtly bogus peace order: was he to cease speaking on an issue of public interest regarding a public figure, or was he to spend money on a lawyer to try to get the order lifted? Now imagine lawfare practitioners demanding such protective orders in multiple jurisdictions far from the writer. Imagine the costs and legal risks, and ask yourself how many people will be willing to incur them.
5. I don't agree with Aaron on a whole lot, but I like him. So I regret saying this: he acted like an utter fool when he went to court today without counsel. Don't go to court without counsel. Sure, it might go like it goes in the movies. Or, more likely, you'll get eaten alive. (This does not go less for people who are lawyers themselves. It goes double for people who are lawyers themselves.)
6. Kimberlin claims, and the judge apparently accepted, that he received death threats as a result of Aaron's blog posts. I have no faith in the word of a crazed and amoral convicted perjurer, but it wouldn't surprise me. The internet is full of jackasses, and many of them feel very strongly about politics. But a blogger can't be held responsible for how trolls and assholes and the easily agitated react to a discussion of a public controversy. The old and familiar standard should govern: was the speech likely to create, and was it intended to create, a clear and present danger of imminent lawless action? Nothing Aaron wrote comes close to satisfying this standard. That said — if you are the sort of person who reacts to a story like this by sending anonymous threats, you are part of the problem — you are a useful idiot for censors, and part of the reason that Aaron is in jail. For that matter, if you're the sort of juvenile twerp who leaves "jokey" comments about violence, you're part of the problem too. Grow up, fool.
7. I've heard people suggest that citizens should write or call the judge. That might be an exercise of First Amendment rights. It's also useless and, practically speaking, likely to make life more difficult for Aaron. If you want to write, and you want to help rather than just vent your spleen, write a blog post, or a letter to the editor, or a letter to local or federal authorities. If you write angry screeds to the judge you aren't helping.
It's a very busy week, but I will try to write more as the situation develops. Today is a setback for freedom of expression and a victory for sociopathy and the abuse of the legal system for crass political ends. But it is not over. Not by far. It's time to pull in some First Amendment heavy hitters to assist. It's time to get more attention to the situation, and inflict the Streisand Effect even more than Blog About Brett Kimberlin Day already did. It's time to fight.
First edit: Here is a first-hand account, though because it's not by a practitioner, it's difficult to determine exactly what happened. It certainly seems to confirm that Aaron shouldn't have gone unrepresented. It might suggest that he was actually jailed for contempt during the hearing, not for violating the peace order, though I'd want confirmation on that. It does seem to confirm an unconstitutionally broad prohibition against writing, as well as the difficulties presented by judges who don't understand the technology at issue.
Second edit: Apparently I'm left-leaning. That would be a surprise to people who read my nanny-state stuff. Oh well. Visitors, welcome. At Popehat, in addition to talking about law, the pending zombie apocalypse, and games, we talk about free speech a lot. You can see it on our free speech tab. Or read about how an interest in free speech could have had me balls-deep in dreamcatchers and macrame. Or check out 2011's censorious asshat of the year awards. But be careful. You'll also be exposed to stuff about abuses of government power that don't involve taxes or regulations.
Third edit: Via Eugene Volokh, a suggestion that Aaron was actually arrested on the transparently bogus assault charges that Kimberlin had earlier sought. "Fog of war" indeed. Note the discussion of the constitutionality of the scope of the six-month "peace order."
Fourth edit: McCain now reporting that Aaron was charged with "incitement."
At the end, the judge said, “All I’ve learned here is one guy hides behind the sheets while the other guy suffers. I don’t care what (Kimberlin’s) background is. A prostitute can also be raped. He’s an individual, he’s entitled to his own privacy and can’t be threatened. What I didn’t like is these death threats that are coming and his children are reading it. That is nasty and wrong.”
The judge signed off on the peace order, which means that Walker can’t say one word about Kimberlin for six months.
“I find that this is worse than harassment. It’s a nasty, dirty thing to do to somebody … you’ve got people all over writing these things. He’s got 54 pages that he says come directly from you, and he’s got volumes of people who are doing it.”
A six-month injunction against any writing about Kimberlin under these circumstances is freakishly unconstitutional and patently lawless.
Fifth edit: This is a very good account of the hearing from an eyewitness. Though it doesn't clarify the reason for the arrest, it does shed light on the judge's thinking:
At the end, the judge said, “All I’ve learned here is one guy hides behind the sheets while the other guy suffers. I don’t care what (Kimberlin’s) background is. A prostitute can also be raped. He’s an individual, he’s entitled to his own privacy and can’t be threatened. What I didn’t like is these death threats that are coming and his children are reading it. That is nasty and wrong.”
The judge signed off on the peace order, which means that Walker can’t say one word about Kimberlin for six months.
“I find that this is worse than harassment. It’s a nasty, dirty thing to do to somebody … you’ve got people all over writing these things. He’s got 54 pages that he says come directly from you, and he’s got volumes of people who are doing it.”
A six-month injunction against discussing Kimberlin under these circumstances is — well, it's lawless. It's freakishly unconstitutional.
Note also Patterico's summary. He notes the language of what appears to be the Court's written order:
That there is clear and convincing evidence that within 30 days before the filing of the Petition, [Walker] committed the following act(s):
Placed [Kimberlin] in fear of imminent serious bodily harm: COUNTLESS NUMBER OF BLOGS EITHER THREATENING DEATH [sic]
Call me crazy, but in the United States of America, under our heritage of due process and freedom of expression, I don't think it's too much to ask a Court to provide a coherent, grammatical sentence justifying six months of prior restraint of political comment on a public figure.
As multiple commentators suggest, this judge seems to have no grasp whatsoever of the technology involved. Now, judges have to rule on cases touching on unfamiliar technology all the time. But a judge has no business restricting rights based on technology he doesn't understand and knows he doesn't understand. In such circumstances, even minimal responsibility and professionalism requires a judge to say, "I'm sorry, I can't rule on this until you educate me — or I educate myself — on the technology enough to understand what is going on." This judge didn't. That's a violation of his oath to uphold the constitution.
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Brett Kimberlin, Free Speech
