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For the term ""eugene volokh"".
87

Did The Department of Justice Get A Gag Order Silencing Reason About The Grand Jury Subpoena?

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On June 8 — ably assisted, as I am now, by my co-blogger Patrick — I reported on a federal grand jury subpoena issued to Reason.com in an effort to unmask commenters who used obnoxious hyperbole about Judge Katherine Forrest, who sentenced Ross "Dread Pirate Roberts" Ulbricht to life imprisonment in the Silk Road case.

In that post, I reported that Assistant U.S. Attorney Niketh Velamoor indicated that he "believed" that there was a gag order prohibiting Reason.com from disclosing the existence of the subpoena. I expressed skepticism about that claim because Mr. Velamoor had just two days before signed a letter telling Reason.com that the Department of Justice asked, but did not require, that the subpoena be kept secret.

Since then, additional factors lead me to believe that there is, in fact, an under-seal gag order purporting to prohibit Reason.com from disclosing or discussing the grand jury subpoena.

This post discusses why I think that, and why such a gag order would be an abuse of the law and a grave abuse of power.

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39

Partial Victory In Patterico's Free Speech Case Before Ninth Circuit

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Long-time readers may recall that, together with Ron Coleman, I'm pro bono counsel to Patrick Frey, who blogs as Patterico.

Patrick was targeted with a thoroughly vexatious lawsuit attacking his blogging. Ron and I won the case in the trial court, securing the dismissal of plaintiff Nadia Naffe's federal and state claims.

Today the Ninth Circuit upheld the result in part and reversed it in part. The opinion is here.

You may recall that the trial court dismissed the entire case based on two points. First, the court agreed with us that Ms. Naffe did not state any facts showing that Mr. Frey blogged in his official capacity as a Deputy District Attorney, and therefore her Title 28 U.S.C. section 1983 claim for civil rights violations "under color of law" could not survive, because Section 1983 only applies to state actors. Second, the trial court — on its own — questioned whether Ms. Naffe could prove the $75,000 in damages necessary for diversity jurisdiction1, and eventually found that she had failed to make a showing of sufficient damages.

The Ninth Circuit agreed on the first part and disagreed on the second.

In a published decision that will be significant for public employees who blog, the Ninth Circuit agreed that Mr. Frey didn't blog as a "state actor" for purposes of Section 1983 just because he's a county employee. The Court agreed that Naffe had not stated any facts giving rise to a reasonable inference that Patrick was blogging as part of his official responsibilities. "Frey is a county prosecutor whose official responsibilities do not include publicly commenting about conservative politics and current events." The Court also rejected Naffe's argument that Patrick's blogging was related to his work as a county prosecutor because he discussed criminal law issues. Finally, the Court noted that Patrick frequently reminded readers that he blogged and Tweeted in his private capacity, not his official capacity.

Crucially, the Ninth Circuit confirmed that a state employee can talk about the nature of their work without transforming their speech into state action. That's key for the free speech rights of all public employees. The Court noted "if we were to consider every comment by a state employee to be state action, the constitutional rights of public officers to speak their minds as private citizens would be substantially chilled to the detriment of the 'marketplace of ideas.'" That's what we argued on appeal, and Eugene Volokh ably argued in his amicus brief on behalf of the Digital Media Law Project: Naffe's proposed interpretation of the law would mean that a teacher couldn't blog about teaching, or a police officer about police work, without transforming their writing into official "state action" subject to civil rights lawsuits. That portion of the Ninth Circuit's opinion will be useful whenever a state employee is sued under the theory that their private speech should be treated as official action.

However, the Ninth Circuit reversed the trial court's dismissal of the state claims. At issue was the standard the trial court applied. Having questioned whether Ms. Naffe could prove $75,000 in damages, as required for diversity jurisdiction, the trial court found that she had not proven such damages by a preponderance of the evidence. The Ninth Circuit found that was the wrong standard. Instead, it found, a trial court should only dismiss a case for lack of diversity jurisdiction when it appears to a "legal certainty" that the plaintiff cannot recover at least $75,000. That's an extremely low standard for Naffe to satisfy, and the court found she satisfied it.

So: the case goes back to the trial court. When it does, we'll have the opportunity to ask the trial court to address our motions that were mooted by its prior ruling. Specifically, we filed an anti-SLAPP motion attacking Ms. Naffe's claims as meritless attempts to chill speech, and a motion under California Code of Civil Procedure section 1030 seeking to compel her to post a bond to cover the costs of the case. We're confident those motions are correct and look forward to pursuing them.

Meanwhile, as before, it remains a privilege to work with Ron Coleman and to defend Patrick Frey's free speech. Thanks to Eugene Volokh, whose excellent brief on the free speech implications was instrumental.

24

Minnesota Court Rules That Criminal Libel Statute Is Unconstitutional

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A few states retain archaic statutes making some types of libel a crime. They're rarely used. They show up fairly regularly in stupid legal threats, and very occasionally in politically motivated harassment prosecutions.

Yesterday the Minnesota Court of Appeals struck down that state's criminal libel statute.

Minnesota's statute criminalizes statements that "expose[] a person or a group, class or association to hatred, contempt, ridicule, degradation or disgrace in society, or injury to business or occupation." It offers a defense of justification for a few exceptions:

Violation of subdivision 2 is justified if:

(1) the defamatory matter is true and is communicated with good motives and for justifiable ends; or

(2) the communication is absolutely privileged; or

(3) the communication consists of fair comment made in good faith with respect to persons participating in matters of public concern; or

(4) the communication consists of a fair and true report or a fair summary of any judicial, legislative or other public or official proceedings; or

(5) the communication is between persons each having an interest or duty with respect to the subject matter of the communication and is made with intent to further such interest or duty.

Isanti County prosecuted Timothy Robert Turner for violation of this statute when he posted malicious ads on Craigslist in the name of his ex-girlfriend and her daughter soliciting strangers for sex. He added their cell phone numbers. Timothy Robert Turner is scum.

The Minnesota Court of Appeals agreed that Turner's actions were contemptible and defamatory. But they found that the statute violates the First Amendment. First, it doesn't recognize that truth is an absolute defense to defamation — under the statute, you could be criminally prosecuted for making a true statement without "good motives." Second, it criminally punishes false statements about public figures or matters of public concern without requiring the government to show that the statements were made with actual malice — the long-standing standard protecting such speech.

Notice that the loathsome Timothy Robert Turner's speech was unquestionably false, and wasn't uttered about public figures or matters of public concern. But the Court overturned the statute in his case and reversed his conviction anyway. Why? In First Amendment cases, when a statute is so defective that it prohibits a substantial amount of constitutionally protected speech, courts will allow a litigant to challenge the entire statute even if the particular litigant's speech could constitutionally be punished. That's sometimes called the overbreadth doctrine. Here, the state conceded that the statute was overbroad (and possibly even conceded that it's substantially overbroad — it's hard to tell). The state asked the court to employ a remedy in this situation — to construe the statute narrowly to make it constitutional, that is, to say "Minnesota can only use this statute in cases involving false statements, and only by proving actual malice in cases involving public figures or matters of public interest." Courts are supposed to do that when they reasonably can rather than strike down an entire statute. Here, the court not unreasonably found that they'd have to fundamentally rewrite the statute to save it, and refused to do so. The line between narrowly construing a statute to save it and "rewriting" a statute is not perfectly clear.

The bottom line: the Minnesota court recognized that an archaic criminal libel statute was invalid when it didn't include the free speech protections afforded modern civil defamation defendants.

Eugene Volokh submitted a clearly effective amicus brief. Timothy Robert Turner escapes conviction, but hopefully never gets a job or relationship again thanks to Google.

85

How To Spot And Critique Censorship Tropes In The Media's Coverage Of Free Speech Controversies

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American journalists and pundits rely upon vigorous free speech, but are not reliable supporters of it. They both instruct and reflect their fickle audience.

It's easy to spot overt calls for censorship from the commentariat. Those have become more common in the wake of both tumultuous events (like the violence questionably attributed to the "Innocence of Muslims" video, or Pamela Geller's "Draw Muhammad" contest) and mundane ones (like fraternity brothers recorded indulging in racist chants).

But it's harder to detect the subtle pro-censorship assumptions and rhetorical devices that permeate media coverage of free speech controversies. In discussing our First Amendment rights, the media routinely begs the question — it adopts stock phrases and concepts that presume that censorship is desirable or constitutional, and then tries to pass the result off as neutral analysis. This promotes civic ignorance and empowers deliberate censors.

Fortunately, this ain't rocket science. Americans can train themselves to detect and question the media's pro-censorship tropes. I've collected some of the most pervasive and familiar ones. This post is designed as a resource, and I'll add to it as people point out more examples and more tropes.

When you see the media using these tropes, ask yourself: what normative message is the author advancing, and does it have any basis in law?

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Is Rapper Brandon "Tiny Doo" Duncan Being Prosecuted For Rapping About Gangs?

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Two things are clear: Brandon Duncan raps under the name "Tiny Doo," and he's being prosecuted for participation in the Lincoln Park street gang in San Diego.

After that, things get a little cloudy. But it appears that the San Diego County District Attorney's Office is prosecuting Duncan on the theory that a gang's activity made his rap music more popular, and that he therefore benefitted from gang activity. That poses some First Amendment problems.

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Protecting The Free Speech of Censors: The Crystal Cox Saga

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This is how the rule of law works: we extend rights to the very people who would deny us those rights if they had the chance.

Ariel Castro imprisoned young women in his basement without anything resembling due process, but he got a lawyer and his days in court until he thoughtfully offed himself. We protected the Nazis' right to march at Skokie, and say what you want about the tenets of National Socialism, dude, but it doesn't protect the free speech or assembly rights of others. We protect the right of Fred Phelps' family to protest at funerals even though the America of Phelps' dreams is a theocratic hellhole.

So it shouldn't be any surprise that we protect the free speech rights of the disturbed and vengeful blogger Crystal Cox, even though she abuses the legal system in an effort to censor and retaliate against people for criticizing her.

That's how we roll.

Last week the United States Court of Appeals for the Ninth Circuit upheld Crystal Cox's First Amendment rights, and in doing so protected yours, and mine, in important ways. This post is about that decision, and about what Crystal Cox was doing to undercut the First Amendment while the Ninth Circuit was thinking about it. As you will see below, I am one of the people Cox has tried to silence with frivolous litigation even as courts were protecting her right to speak.

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An Existential Threat To America

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Sometimes a judicial opinion buries the lede. Other times a court will signal how the case will go from the first sentence.

Let nobody say that Judge Bruce Selya, Circuit Judge of the United States Court of Appeal for the First Circuit, buried the lede in affirming the federal conviction of Tarek Mehanna:

Terrorism is the modern-day equivalent of the bubonic plague: it is an existential threat.

The conclusion flows ineluctably from that premise: Tarek Mehanna's conviction for providing material support to Al-Qaeda must be upheld. And so it was yesterday.

But is the premise correct? And for what purpose do courts and government actors bring it to bear?

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Blawg Review 325.6

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So Long Ed

"Ed," the anonymous proprietor of the Blawg Review, passed away this week. Ed herded cats to make the internet a better place. That is, he organized lawbloggers (a prickly and unreliable lot) to write regular surveys of the legal blogosphere. Here's how he described his labor of love:

Blawg Review is the blog carnival for everyone interested in law. A peer-reviewed blog carnival, the host of each Blawg Review decides which of the submissions and recommended posts are suitable for inclusion in the presentation. And the host is encouraged to source another dozen or so interesting posts to fit with any special theme of that issue of Blawg Review. The host's personal selections usually include several that reflect the character and subject interests of the host blawg, recognizing that the regular readership of the blog should find some of the usual content, and new readers of the blog via Blawg Review ought to get some sense of the unique perspective and subject specialties of the host. Thanks to all the law bloggers who collaborate to make Blawg Review one of the very best blog carnivals of any genre.

Blawg Review did all of that and more. Through Ed's guidance, diverse law bloggers wrote about the subjects that moved them and introduced their readers to other law bloggers across the world. The result was a richer and more inclusive discussion of the law online. Patrick and I were privileged to host a Blawg Review back in 2009.

The best way to celebrate what Ed did is to keep doing it. Today lawbloggers are remembering him by writing Blawg Reviews. We're linking in a chain. Brian Tannebaum linked here, and when you're done here, go read Eric Turkewitz. If you want to read the whole chain, it starts here.

Popehat's Blawg Review entry will review — not surprisingly — recent developments in free speech law.

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The Socially Acceptable Range of Discrimination, Revisited

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Back in July, in the context of a baker investigated for refusing to provide a cake for a same-sex-marriage celebration, I posed this question:

My question is this: is there a principled reason that some people are outraged when anti-discrimination laws are applied to forbid discrimination against gays, but not to discrimination against Jews, or African-Americans, or any other group?

In other words, if people are outraged that anti-discrimination laws make merchants sell goods and services to same-sex couples, is there a good reason they aren't also outraged that the same laws require the same merchants to sell to Jews, or African-Americans, or white guys like me?

I raise the question again because the Supreme Court of the State of New Mexico has issued a decision in Elane Photography v. Willock, a well-known case in which a wedding photographer refused to photograph a same-sex ceremony and was sanctioned under New Mexico's anti-discrimination law as a result.

The New Mexico Supreme Court's decision is worth reading for several reasons. First, you will see social conservatives citing this decision as encroaching Gay Tyranny and proof that soon the government may be forcing churches at subpoena-point to conduct gay marriages. The actual facts and legal analysis of the decision show otherwise; the Court carefully explains why compelling public accommodations to obey anti-discrimination laws is different than compelling speech, and its language could not be rationally used to support compelling a church to administer a sacrament in violation of its beliefs.

Second, the Court raises the same point that I have been making: that there is no logical way to attack anti-discrimination laws when they apply to gays and lesbians without attacking them when they apply to, for instance, African-Americans. Consider how the Court replies to the photographer's hypothetical about whether an African-American photographer cold be compelled to photograph a Klan rally:

Elane Photography also suggests that enforcing the NMHRA against it would mean that an African-American photographer could not legally refuse to photograph a Ku Klux Klan rally. This hypothetical suffers from the reality that political views and political group membership, including membership in the Klan, are not protected categories under the NMHRA. See § 28-1-7(F) (prohibiting public accommodation discrimination based on “race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap”). Therefore, an African-American could decline to photograph a Ku Klux Klan rally. However, the point is well-taken when the roles in the hypothetical are reversed—a Ku Klux Klan member who operates a photography business as a public accommodation would be compelled to photograph an African-American under the NMHRA. This result is required by the NMHRA, which seeks to promote equal rights and access to public accommodations by prohibiting discrimination based on certain specified protected classifications.

However, adoption of Elane Photography’s argument would allow a photographer who was a Klan member to refuse to photograph an African-American customer’s wedding, graduation, newborn child, or other event if the photographer felt that the photographs would cast African-Americans in a positive light or be interpreted as the photographer’s endorsement of African-Americans. A holding that the First Amendment mandates an exception to public accommodations laws for commercial photographers would license commercial photographers to freely discriminate against any protected class on the basis that the photographer was only exercising his or her right not to express a viewpoint with which he or she disagrees. Such a holding would undermine all of the protections provided by antidiscrimination laws.

The Court makes my point: you can't rationally attack anti-discrimination laws only when they apply to groups particularly important to you. If people want to argue that freedom of speech, or of association, or free exercise of religion means that a business should be able to refuse to provide services to gays and lesbians, then I think they need to be prepared to make the argument that those same rights protect refusal to do business with Jews or African-Americans or any other group you can name.2

The Court also rejected what I think was the photographer's strongest argument: that photography is so inherently artistic that compelling a photographer to work at an event she opposes violates the First Amendment. That was Eugene Volokh's argument, and I think it was a very colorable one, rejected rather too easily by the Court. However, as the Court suggests, it's not an argument that can be rationally limited to sexuality-based objections to work.

Finally, I recommend you read the concurrence by Justice Bosson. It's notable because it so explicitly recognizes that anti-discrimination laws necessarily involve an intrusion into personal belief, and explains — through a history of anti-discrimination law — how we got to that point:

All of which, I assume, is little comfort to the Huguenins [the owners of the photography business], who now are compelled by law to compromise the very religious beliefs that inspire their lives. Though the rule of law requires it, the result is sobering. It will no doubt leave a tangible mark on the Huguenins and others of similar views.

{91} On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.

{92} In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship. I therefore concur.

Whether or not you agree with Justice Bosson's conclusion, I think it's important that he is explicitly recognizing that these laws — like so many others — involve some sort of intrusion into personal liberty of which we should be aware. You may believe that the intrusion is justified, or you may not, but our discussion of the subject is incomplete and even dishonest without that recognition.

What Kind of Nutter Calls For Censorship?

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When a public official acts like a censorious asshat, and flogs one of my least-favorite stupid pro-censorship quotes, and is named "Nutter," my fundamentally suspicious and misanthropic nature leads me to look around nervously. Am I being Akbarred here? Or is this giddy warmth and pre-pounce quivering anticipation I feel further evidence of a God that loves me?

It's the giddy warmth one.

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Barbra? Barbra Streisand? Never Heard of Her. Now, Back To My Threat.

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Some time ago, one Raphael Golb got in trouble for harassing people about the Dead Sea Scrolls. Everyone, I suppose, needs a hobby. Golb was convicted for actions including sending emails maliciously impersonating Yeshiva University vice provost Lawrence H. Schiffman, creating fake identities and sock puppets to promote his father's research, and generally acting like a dick.

In January Golb's conviction was affirmed. His behavior is odd.

But the behavior of a lawyer purporting to act on his victim's behalf is even odder.

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Mo The Rutabaga Isn't Safe In The U.S., Either

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I've been pretty tough on the United Kingdom recently, what with them arresting people for burning poppies and trying to make Twitter free of offense and threatening U.S. websites and thus-and-such.

But it's only fair to point out that it's not necessarily safe to carry around my rutabaga named Mo here in the United States, either. Courtesy of commenter Trebuchet and Ed Brayton, I discovered Eugene Volokh's testimony to the U.S. Commission on Civil Rights, which offers numerous examples of embarrassing attempts by American academics to suppress speech. They don't call it blasphemy, but they might as well. Volokh's conclusion is apt:

As I said at the outset, I firmly support the free speech, religious freedom, and property rights of Muslims. My concern is simply that all speakers and religious observers be protected, whether they are Muslim or non-Muslim, or pro-Islam or anti-Islam. Nor does this need to be difficult: The government should tell Muslims (as it tells other groups), “We respect you and your rights, and we will defend you and your rights from violence and government oppression, but if you find certain kinds of speech offensive you should respond with speech of your own; we cannot respond by trying to suppress such speech.”

But the government ought not try to define political and religious speech as “discrimination” or “harassment,” and then suppress it in the name of civil rights. Nor should the government conclude that the speech is stripped of protection because it is supposedly constitutes “hate speech”; the Supreme Court’s precedents solidly reject the view that there is a “hate speech” exception to the First Amendment. Nor should it surrender to the threat of violence, a course of action that only encourages more such threats in the future. Instead, the government should protect the civil rights of all, regardless of their religion or ideology.

Some foreign countries, to be sure, do indeed seem to prohibit speech that is perceived as blasphemy or undue criticism of religion — not just Islam but also, for instance, Christianity: Consider, just over the last two years, foreign incidents involving Jesus Christ Superstar, a parody of the venerated Greek Orthodox monk Elder Paisios, mockery of the Bible, and a painting of Jesus with a Mickey Mouse head. But in America, such speech is of course fully protected against government suppression. That must remain so, whatever religion is targeted.

Quite right.

Further Sunday Thoughts On "The Innocence of Muslims" and the Arrest of Nakoula

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A few more thoughts, following up my earlier ones, on the arrest of Sam Bacile aka Nakoula Basseley Nakoula:

1. I do not know what spurred the arrest and questioning of Nakoula. But I do know, as a few news outlets have realized, that federal convicts on supervised release are supervised by probation officers, who are part of U.S. Probation, which is an arm of the United States Courts, not the United States Department of Justice:

Karen Redmond, a spokeswoman for the Administrative Office of the U.S. Courts, said Friday that Nakoula's federal probation was under review.

It is possible that someone in the Obama Administration made a call or leaned on someone in probation, either nationally or in the Central District of California? Yes, it's possible. Evidence, please. If it happened, I'd like to see a Congressional inquiry into it. But probation offices acting on their own upon a high-profile event involving a probationer is common. I suspect some offices have Google alerts set up; I've seen DUI arrests reported in the paper result in almost immediate action by federal probation officers.

2. I disagree completely with the sentiment expressed by Jack Marshall and elsewhere that the Probation Office should have refrained from action to avoid the appearance that the government is retaliating against speech. What separates us from the mob is the rule of law. We shouldn't ignore the rule of law by violating First Amendment principles in what Eugene Volokh correctly points out would be an utterly vain attempt to appease a mob. On the other hand, we shouldn't hinder the rule of law to avoid the appearance of appeasement, either. That's still letting the mob dictate our actions and our adherence to our own laws. "We would normally do X, but we musn't because it might enrage the mob" is just the flip side of "We would normally do X, but we musn't because it might embolden the mob." Both are a sucker's game. The mob's actions are going to be driven by its own culture and by the people manipulating the mob for their own political gain. Jack, and others, seem to be saying that the mob will misunderstand the orderly administration of the law in this instance: but is there really any chance that the mob will ever make an honest attempt to understand, or will care, or that the forces manipulating them will react honestly? Respect the rule of law and fuck 'em if they don't like it.

Also, it's not clear to me what people taking this point of view are suggesting. Should local probation officers make decisions about enforcement of terms of release based on foreign policy considerations? (Surely we'd be upset if the probation officer took foreign policy into account in the other direction, by saying "I have to make sure to start revocation proceedings because this defendant's words are offending mobs and causing violence.") If not, are people really suggesting that the administration should pick up the phone and intervene in the administration of probation in individual federal criminal cases to achieve foreign policy aims?

3. I see a lot of outrage about the optics of a crowd of armed law enforcement officers arresting Nakoula at his home late at night. The word "brownshirts" is being thrown around. If you live in this country and this is the first time you are being moved to say "brownshirts" over law enforcement behavior, you're blind or a partisan hack. In this country we tolerate a vast amount of rank law enforcement thuggery against citizens. We endure it, tolerate it, wink at it in the name of the War on Drugs, in the name of post-9/11 "security," in the name of thinking of our children, in the name of "law and order" and of police being the "thin blue line" between us and anarchy.

If the administration did, in fact, intervene in the supervision of an individual convict's supervised release, that should be the subject of widespread interest and condemnation. But where the hell was this outrage about law enforcement excess before?

4. This subject involves very important questions of free speech and foreign policy. Right now, thanks to the election season, it's being driven by sheer partisan rancor and opportunism by both sides. For the record, I'm voting against Obama and Romney.

Kimberlin Lawfare Update: Major Pushback By Aaron Walker [Now with court documents]

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Note: our prior coverage regarding Team Kimberlin's censorious activities is here.

In our last episode of the struggle against Team Kimberlin — and for free expression without legal harassment — blogger Aaron Walker was muzzled by a Maryland judge who told him to "forget" applicable United States Supreme Court precedent, and had been arrested based on Brett Kimberlin's latest bogus claim of breach of the "peace order" he obtained from a compliant Maryland court.

The tide has turned.

First, Maryland prosecutors declined to prosecute Aaron Walker based on Kimberlin's latest bogus assertion that he'd breached a peace order by blogging.

Second, Aaron Walker — assisted by Maryland counsel Reginald Bours and ridiculously overqualified First Amendment expert Eugene Volokh — has filed an emergency appeal of the latest unconstitutionally overbroad "peace order". I'll try to comment on it next week. I've been kind of busy with comics and Bigfoot and yarn, y'all.

Third, Aaron Walker has filed a federal lawsuit against Brett Kimberlin in United States District Court in Maryland. I've pulled the documents off PACER and hosted them. You can read the complaint here and the motion for a temporary restraining order here. No exhibits — too big, sorry. I will not be commenting on this lawsuit. On several occasions I attempted to assist Mr. Walker in securing local counsel. When I've written about the case I've used other sources and never revealed a confidential communication with him, except as specifically authorized in order to ask for help. However, I feel precluded from discussing his federal case, as opposed to the state court proceedings.

More next week.

Edited to add: changed the motion document to the points and authorities rather than the notice, and redacted addresses from both, even though it's a public document.

Edited June 25 to add: A Montgomery County Circuit Court has granted an emergency motion to permit Walker to resume blogging, at least until a hearing on July 5.

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

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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.