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Lawyer Arrested for Constitutionally Protected Blogging Against Convicted Bomber, After Hearing Before Judge C.J. Vaughey

Earlier, I wrote about how a judge in Montgomery County, Maryland (a liberal bastion), had silenced a critic of convicted "Speedway Bomber" Brett Kimberlin, who is now a left-wing activist subsidized by the Tides Foundation and the Barbra Streisand Foundation.

On Wednesday, Judge C.J. Vaughey issued a restraining order -- a so-called "peace order" -- against attorney Aaron Walker based on Walker's repeated criticism of Kimberlin. (Kimberlin, who has also been convicted of perjury, has filed countless lawsuits against his detractors). Walker's criticism of Kimberlin had supposedly resulted in outraged members of the public making threats against Kimberlin (although the judge's order did not cite a single example of a threat).  The judge verbally told Walker that the order banned even “blogs" and tweets regarding Kimberlin.

I explained here on May 29 how Judge Vaughey's order patently, flagrantly violated the First Amendment and the Supreme Court's First Amendment rulings in cases like Brandenburg v. Ohio and Hess v. Indiana limiting liability for so-called incitement. I also explained how the Judge's order reflected ignorance about both the Internet and basic First Amendment principles.

I also noted that Walker had been arrested at that hearing, but I said it was "unclear" at the time why he had been arrested. It is now crystal clear that he was arrested for exercising his constitutional right to free speech. The court’s jailing of Walker was based on his blog posts and tweets, and thus violated the First Amendment, a fact lamented by law professors like Case Western Reserve University’s Jonathan Adler and U.C.L.A.’s Eugene Volokh (one of America's leading First Amendment scholars), and journalists like David Hogberg of the Investors Business Daily. As Professor Adler notes, Walker was indeed “arrested for blogging.” This confirms what Los Angeles deputy district attorney Patrick Frey deduced earlier at Patterico, where he noted that "Aaron Walker was arrested today in the United States of America for blogging about a public figure."

In addition to complaining about blog posts criticizing him, Kimberlin also complained about criticism of him on Twitter. As Tiffany Gabay notes at The Blaze, "Kimberlin’s main argument contended that Walker was tweeting about him routinely -- something he claimed was in violation of the peace order."  Restricting such speech violates First Amendment rulings like United States v. Cassidy, 814 F.Supp.2d 574 (D.Md. 2011), which held repeated tweets denouncing someone were protected, and United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999), which held that even intemperate, repeated phone messages denouncing a public figure were protected.  Restraining orders cannot restrict constitutionally protected speech, even when they are sought by a private party and not the government.  See Alberti v. Cruise, 383 F.2d 268 (4th Cir.1967).

Blog posts and tweets that criticize a convicted terrorist are protected under the Supreme Court’s decisions in Brandenburg v. Ohio, 395 U.S. 444 (1969) and Hess v. Indiana, 414 U.S. 105 (1973), even if some outraged readers make death threats as a result. These First Amendment principles fully apply in civil cases as well as criminal cases. In White v. Lee, 227 F.3d 1214 (9th Cir. 2000), a federal appeals court held that federal officials could be sued under the First Amendment for an investigation threatening civil penalties against citizens who advocated violations of the federal Fair Housing Act, even though the penalties were never actually imposed, since the investigation chilled speech, and the First Amendment protects even speech advocating legal violations unless the legal violation involves imminent disorder like a riot. The First Amendment protects speech even when a private party sues over it citing emotional distress it caused, as the Supreme Court made clear in Snyder v. Phelps, 131 S.Ct. 1207 (2011).

At the hearing, Judge Cornelius Vaughey reportedly "said he didn't care" about the Supreme Court's Brandenburg ruling on the First Amendment.  "Forget Brandenburg," he said.  Sadly, Judge Vaughey has absolute immunity against monetary damages for any constitutional violations he has committed against Aaron Walker.  But judges have been removed from the bench for less in neighboring states.  (See this example from Virginia, where the state supreme court removed a judge for actions such as flipping a coin to resolve a holiday visitation dispute between two parents).  Judge Cornelius J. Vaughey should be removed from the bench. (Criticism of judicial misconduct is not only protected by the First Amendment, see Bridges v. California, 314 U.S. 252 (1941), but invaluable in improving the justice system, as former Michigan Supreme Court Chief Justice Clifford Taylor and the late Judge Roger Miner of the U.S. Court of Appeals for the Second Circuit have noted.)

Even putting aside the fact that Judge Vaughey’s ruling violates the Supreme Court’s Brandenburg line of cases, his order still must be set aside by the appeals court if it is faithful to other Constitutional requirements.  Appeals courts have a duty to review Judge Vaughey’s bizarre finding that “threats” came from “countless blogs” de novo without any deference to his factual findings, in light of the First Amendment issue presented.  See In re George T., 93 P.3d 1007, 1013 (Cal. 2004) (applying de novo review to finding that poem constituted “threat,” because of the First Amendment, despite the fact that courts usually defer to trial courts’ factual findings in ordinary cases); Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) (de novo review mandated by U.S. Supreme Court).  The appeals courts also have a constitutional duty to conduct a full examination of the record, and to reject conclusory findings not supported by specific examples (like Judge Vaughey’s restraining order, which alleged “threats” but failed to give a single example).  See Bose Corp. v. Consumers Union, 466 U.S. 485, 513 (1984); Byrd v. Faber, 565 N.E.2d 584, 589 (Ohio 1991) (specificity requirement when conduct might be protected by First Amendment); cf. Foor v. Juvenile Servs. Admin., 552 A.2d 947, 959 (Md. 1989) (even in non-First Amendment case, emotional distress claims must be pled with specificity under Maryland law).