Forgetting Brandenburg And The Rule of Law: Brett Kimberlin Censorship-Through-Lawfare Update

Law

Last week I wrote about how blogger Aaron Walker was arrested at a hearing on one of Brett Kimberlin's "peace orders" in Maryland. Since then, there have been significant developments to the matter:

1. What happened to Aaron Walker: The day of the arrest, it wasn't clear why Aaron had been arrested — there was speculation that he was arrested on the original peace order, that he was arrested for contempt, that he was arrested on some new peace order, and that he was arrested on Kimberlin's false and manufactured assault allegations. Now it's clearer. It appears that Brett Kimberlin sought a new peace order after Everyone Blog About Brett Kimberlin day and contrived to have Aaron arrested on that when he came to court on May 29th. The order — provided and analyzed by David Hogberg — is shockingly conclusory and vague. Yet even with that vagueness, it's clear that Kimberlin is explicitly seeking to have Aaron prohibited from discussing Kimberlin, and equally clear that a unprincipled and limp judiciary uncritically acquiesced. Kimberlin's filing is also notable for a common theme with his crew: any threats he gets (or that he, a convicted perjurer, claims he got) may be attributed to anyone or everyone who criticized him:

Mr. Walker has tweeted on Twitter about me in alarming and annoying ways over hundreds of times in the past week and urged others to attack me. He has generated hundreds of blog posts directly and indirectly based on false allegations that I framed him for an assault.

Mr. Walker has had many people threaten me directly with death, and told me to stop talking to the police, and not show up in court or I would die.

I've actually read Aaron's blog posts and Twitter comments. None of them urge anyone to "attack" Kimberlin, unless by "attack" you mean "criticize." Moreover, as Lee Stranahan points out, easily available public information shows that Kimberlin lied when he said that Aaron arranged "Blog About Brett Kimberlin Day." A judiciary that was not asleep at the wheel — a judiciary that took its role seriously, particularly when First Amendment rights are at stake — would have demanded to see the particular blog posts and tweets Kimberlin was referencing. But that would have required effort, attention, responsibility, and a vague grasp of the technology that the judges here were ruling upon. Rubber-stamping is much easier.

[Of course, criminal defense attorneys like me will tell you that rubber-stamping is not the exception -- it is the rule.]

2. What passed for a hearing: Audio tape of the Walker/Kimberlin hearing has been released, and folks are beginning to create unofficial transcriptions. Patterico has audio, transcriptions, and commentary here. The tape is both deeply familiar to anyone who practices law (especially criminal law) and deeply depressing. The "hearing" was a farce. It was governed not by the rule of law, but by the rule of Judge C.J. Vaughey, two rules that proved rather starkly incompatible. Nowhere is this as stark as when Judge Vaughey says, rather shockingly explicitly, that he doesn't care what the law is, and that Aaron is responsible for anything that anyone does (or might do) based on Aaron's criticism of Kimberlin:

THE COURT: –You’ve decided to battle, and he comes back. And see, you’re — you — you’re the kind of guy, you don’t want to get into this to settle this, mano y mano. You want to get all these friends who got nothing else to do with their time, in this judge’s opinion, because — my God, I’m a little bit older than you are, and I haven’t got enough time in the day to do all the things I want to do. And I thought by retirement, I would have less to do. I got more! Because everybody knows I’m free! So they all come to me. But you, you are starting a — a conflagration, for lack of a better word, and you’re just letting the thing go recklessly no matter where it goes. I mean, you get some — and I’m going to use word I (ph) — freak somewhere up Oklahoma, got nothing better to do with his time, so he does the nastiest things in the world he can do to this poor gentleman. What right has that guy got to do it?

WALKER: He has no right to do that, Your Honor.

THE COURT: Well, he’s — you incited him.

WALKER: But, your honor, I did not incite him within the Brandenburg standard though.

THE COURT: Forget Bradenburg [sic]. Let’s go by Vaughey right now, and common sense out in the world. But you know, where I grew up in Brooklyn, when that stuff was pulled, it was settled real quickly.

WALKER: I’m not sure what that means, your honor.

THE COURT: –Very quickly. And I’m not going to talk about those ways, but boy, it ended fast. I even can tell you, when I grew up in my community, you wanted to date an Italian girl, you had to get the Italian boy’s permission. But that was the old neighborhoods back in the city. And it was really fair. When someone did something up there to you, your sister, your girlfriend, you got some friends to take them for a ride in the back of the truck.

WALKER: Well, Your Honor, what–

THE COURT: –That ended it. You guys have got this new mechanical stuff out here, the electronic stuff, that you can just ruin somebody without doing anything. But you started it.

Brandenbug, as I mentioned in my earlier post, is the United States Supreme Court case that articulates the relevant standard: speech may only be banned on the theory that it is incitement when it is intended to create, and likely to create, a clear and present danger of imminent lawless action. But Honey Vaughey don't give a shit. In his courtroom, he is the law, and he's suspicious of all this new-fangled stuff, and he'll impose any damn standard he wants. And so he forbade an American citizen from writing about a public figure — a convicted domestic terrorist — for the next six months based on that convicted perjurer's vague and undocumented claims that he had suffered threats from unidentified people.

It appears that Judge Vaughey has had a respectable career. Moreover, I am sympathetic to the notion that everyone, including judges, makes mistakes. But I believe that Judge Vaughey's behavior — whether it is based on hostility to free expression and modern technology or merely mundane black-robe fever — is so extreme that it should be his legacy. Judge Vaughey ought to be remembered henceforth as a lawless Luddite indifferent at best, and scornful at worst, to the most fundamental rights Americans possess.

3. This will not stand: People aren't accepting Judge Vaughey's ruling meekly. It will be fought. It will be overcome. First Amendment demigod Eugene Volokh is assisting. I'm doing what modest things I can to round up more help. People are organizing, writing more, defying Kimberlin and his clan.

4. Aaron is not the only target of lawfare by the Kimberlin crew. The Examiner reports that a lawyer named Kevin Zeese — possibly the political activist of the same name — is now threatening Ali A. Akbar of the National Bloggers Club on behalf of "Velvet Underground Revolution," a charity associated with Kimberlin. Zeese's threats will sound familiar to people who follow this blog and read about legal threats calculated to chill speech:

According to Zeese, the information that has been provided by a number of conservative blogs regarding Kimberlin is false, but he would not elaborate what information, specifically, was incorrect.

He was also unwilling to state what threats had been made, and was unwilling to provide any documentation when pressed.

"Get your facts straight," he said repeatedly.

When asked what, specifically, Akbar had done to spur the alleged threats, Zeese again responded by saying people should "get their facts straight."

As I have said repeatedly in the context of many different threats, ambiguity in a legal threat is a hallmark of empty thuggery and bad-faith censorious aims.

Should Mr. Zeese escalate to filing suit — or should his bumptious threats continue — I'll offer Mr. Akbar what I've offered all sorts of bloggers of all political persuasions: I will try to find you pro bono counsel and assist you myself to the extent I can.

[I'm feeling chuffed about the potential value of my own help today; we won another SLAPP motion for a client. Booyah.]

Kimberlin allies have also posted a picture of the home of Akbar's mother, apparently on the justification that one of Mr. Akbar's organizations uses that address in one of its filings. In context, given the connection to a convicted bomber, it's rather clearly intended to terrorize Akbar and his family.

5. Akbar is not the only additional victim. I'm trying to help another blogger faced with particularly despicable lawfare, apparently by Kimberlin allies. I put up the Popehat signal here. I've gotten some responses, but I'm still looking for federal criminal practitioners in the Middle Districts of Florida and Tennessee.

6. I asked people to transcend partisanship on this issue. Some are. Some aren't. There's still a disappointing tendency on the right to frame this as "see why the Left is full of evil people." There's still on the Left either too much silence or too much "lol it's just wingnut hysteria." That's regrettable. But I'm warmed by that support that has come from both sides. Keep it up. Support someone whose views you hate.

Last 5 posts by Ken White

43 Comments

25 Comments

  1. Scott Jacobs  •  Jun 5, 2012 @4:06 pm

    In his courtroom, he is the law

    Was I supposed to read that in the voice of Sylvester Stallone?

  2. Scott Jacobs  •  Jun 5, 2012 @4:07 pm

    And yes. That is indeed the same Kevin Zeese.

    So he is exactly as scummy a person and you thought he might be. And not just because he is a lawyer. :)

  3. Dave  •  Jun 5, 2012 @4:44 pm

    "When someone did something up there to you, your sister, your girlfriend, you got some friends to take them for a ride in the back of the truck." "That ended it. "

    Did that judge just recommend getting a group together to kidnap the censorious thug, take him somewhere quiet, and beat the censoriousness out of him? I suppose it doesn't count as any type of 'inciting' speech if you do it in a black robe while reminiscing about violent felonies back in the good old days…

  4. Scott Jacobs  •  Jun 5, 2012 @4:53 pm

    Despite the fact that the suggestion came from a judge, I shall not be following it, nor do I recommend anyone else doing so.

    I would, however, be amused if this judge heard the next round of this farce, and a group came roaring up to the courthouse in an old beater truck (wearing clothing that would suggest them to be the primary villains in "Deliverance 2: The Cornholing"), and they came into court an announced "We're here to follow your suggestions, judge!" in the best drawl they could muster…

    And then burst out laughing, leave, get back in the truck, and drive to Atlantic City to experience the Jewel of the Garden State.

  5. Robert  •  Jun 5, 2012 @5:34 pm

    In all my reading of the aftermath of the "hearing", I've not been able to determine what Aaron's status is. Is he still in jail? If so, for how long? Until a court can be found to overturn this travesty?

  6. Kris  •  Jun 5, 2012 @5:41 pm

    Robert I believe he was released under his own recognizance later the same day. And I understand he has belatedly gotten himself a lawyer, which is why I assume he's been mute since then.

  7. SPQR  •  Jun 5, 2012 @5:46 pm

    Zeese's incoherence is the mark of an incompetent attorney, assuming some bar in some state was lax enough to actually admit him.

  8. Amy Alkon  •  Jun 5, 2012 @10:14 pm

    This is horrible stuff. The judge's words, especially, are obscene. Thank you for blogging this.

  9. Piper  •  Jun 5, 2012 @11:48 pm

    You forgot one other thing. No matter whether Aaron was right or wrong, WTF was he doing representing himself? Arrogance of the highest degree, especially when the peace (restraining) order was already in place. Sometimes Stupidity and hubris carry the death penalty. Aaron is, to a certain degree, lucky that things didn't get worse for him…

    Patrick might like this quote: "Stupidity cannot be cured with money, or through education, or by legislation. Stupidity is not a sin, the victim can't help being stupid. But stupidity is the only universal capital crime; the sentence is death, there is no appeal, and execution is carried out automatically and without pity." – RAH

  10. Paul  •  Jun 6, 2012 @1:45 am

    Dear Piper,

    I lol'd – a Heinlein reference in Popehat.
    The internet is a strange and wondrous place, isn't it. I wonder what RAH would have thought of it.

    Paul

  11. David  •  Jun 6, 2012 @4:37 am

    Wow. I assumed before that the hearing had gone badly because Aaron let Kimberlin get under his skin (and made it worse by appearing pro se), but if the judge is prepared to say "forget Brandenburg" in a speech case, what are you gonna do? Luckily an appellate court isn't likely to be quite that moronic.

  12. Damon  •  Jun 6, 2012 @4:41 am

    Sad,
    What ever happened to "justice", and doing your frickin' job. How about a side campagn to remove this idiot judge?

  13. Patrick  •  Jun 6, 2012 @6:35 am

    The charity is named Velvet Revolution.

    Velvet Underground was the second finest rock band of the 1960s, you elitist opera-worshipping snob.

  14. Ken  •  Jun 6, 2012 @6:40 am

    I think that's my best mistake of the month. Can someone fix it please?

  15. SPQR  •  Jun 6, 2012 @7:49 am

    Hey, Patrick called you a snob. You can't top that. Next, Patrick is going to call me a redneck.

  16. plemmen  •  Jun 6, 2012 @8:12 am

    It made me smile. http://www.youtube.com/watch?v=hugY9CwhfzE which it seems, is apropos …

  17. Dustin  •  Jun 6, 2012 @9:35 am

    Great post. I like that you don't stay focused on this one outrage, but explain how there are systemic problems that come into play with this outrage.

  18. rmv  •  Jun 6, 2012 @10:14 am

    Only second finest? Surely, you jest.

  19. Ken  •  Jun 6, 2012 @12:57 pm

    I am reliably informed by an expert on Reddit that even though the six-month peace order was premised on incitement, and even though Brandenburg is a key case on incitement, and even though a litigant argued it, and even though the judge suggested that the litigant "forget" it in favor of the judge's own interpretation of the law, that Brandenburg is only "distantly connected" to the case at issue at the hearing.

  20. SPQR  •  Jun 6, 2012 @3:41 pm

    Well, if its on Reddit, it has to be true.

  21. Grifter  •  Jun 6, 2012 @3:56 pm

    I am not a lawyer.
    I am not particularly bright.
    But I'm confused how anyone could possibly say that, Ken? Am I just not smart enough to see how a specific and major case on incitement would be only distantly related? Was there any argument proffered, or was it just a bald and short statement?

  22. Scott Jacobs  •  Jun 6, 2012 @4:10 pm

    Grifter, there was so much stupid even *I* was unable to unleash a wave of profanity.

  23. Xenocles  •  Jun 6, 2012 @5:28 pm

    You've got a pretty good thing going collecting fees from your opponents. Maybe you should branch out into helping your opponents sue their attorneys for malpractice after your easily predictable victories.

  24. Mr. Mark  •  Jun 6, 2012 @8:28 pm

    Idea (maybe good, maybe not): End qualified immunity.

  25. Lee  •  Jun 7, 2012 @9:13 am

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