In 2005, a New Mexico judge appalled people across America by issuing a restraining order against David Letterman after a wacky woman accused Letterman of harassing her across the country through coded messages in his TV show. That restraining order was dissolved after it became obvious even to the judge that the allegations could not possibly be true. But a court in Montgomery County, Maryland — a liberal bastion — recently did something similarly bizarre by jailing and issuing a restraining order against a lawyer, Aaron Walker, who represented a party sued by ex-terrorist Brett Kimberlin.
Kimberlin is a left-wing activist who was sentenced in 1981 “to 50 years in federal prison for his crimes, including the 1978 terrorist bombing that brutally maimed Vietnam veteran Carl DeLong,” contributing to his death. (Granting Kimberlin a restraining order made as little sense as disgraced prosecutor Michael Nifong’s decision to bring baseless rape charges against Duke lacrosse players over contradictory allegations made by a woman with a history of violence.)
The Maryland court’s original restraining order against Walker, which caused him and his wife to lose their jobs, was dissolved when Walker submitted video evidence debunking Kimberlin’s charges. Kimberlin’s charges, which have been described as an abuse of the legal system by many legal commentators including a prominent law professor and the world’s oldest law blog, unsurprisingly resulted in a large number of blog posts and a Washington Examiner editorial critical of Kimberlin. But Kimberlin, undeterred, went back into court today, and got yet another restraining order against Walker. Why? Because Kimberlin claims that the blog posts resulted in death threats against him.
The judge’s order claims that there are “countless number of blogs either threatening death [sic],” without citing a single example. I have read a great many blog posts criticizing Kimberlin’s misuse of the courts against Walker and can attest that none made threats, or encouraged any threats. Any judge could confirm the absence of threatening blog posts by using Google, so I am charitably assuming, as law professor Glenn Reynolds does, that the judge is not a liar, but rather meant to say that the blog posts incited threats by third parties, such as blog comments or emails in response to blog posts. The judge, an elderly man, has a very meager understanding of the Internet, and likely does not understand what a blog is, as opposed to blog comments or blog-generated responses, as this account of the proceedings illustrates.
But even if the blog posts actually did somehow incite death threats, criticism does not lose its First Amendment protection merely because third parties react to it by making threats. (The court also ordered Walker’s arrest. Twitchy reports, “This is absolutely outrageous. In a positively Kafka-esque turn of events, a Maryland judge has ordered that Walker be taken into police custody while serial harasser, terrorist, and killer Kimberlin remains free.”) As Professor Reynolds notes, the restraining order appears to violate the Supreme Court’s Brandenburg decision.
Even speech that triggers illegal acts by third parties remains protected by the First Amendment unless the speaker intends to incite a violation of the law that is both imminent and likely. For example, in Hess v. Indiana (1973), the Supreme Court found that Hess’s words did not fall outside the First Amendment, because his speech “amounted to nothing more than advocacy of illegal action at some indefinite future time,” and therefore did not meet the imminence requirement.
Similarly, in White v. Lee, 227 F.3d 1214 (9th Cir. 2000), an appeals court held that federal officials could be sued under the First Amendment for threatening civil penalties against citizens who advocated violations of the federal Fair Housing Act, since the First Amendment protects even speech advocating legal violations unless the urged course of action is imminent like a riot.
Blog posts that criticize a convicted terrorist for misuse of the legal system 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. Judge Cornelius J. Vaughey needs a remedial course in the First Amendment.
Judge Vaughey also needs a basic tutorial on the Internet and what blogs are. As a chronicler of the court proceedings notes, the Judge “was clearly was technically ignorant of even basic facts about what Twitter is, in one instance point saying ‘He Googled you 500,000 times’ through the Tubes or whatever. The Judge had identified himself, earlier, as being ‘of the Royal Typewriter Generation.’”
UPDATE: The court’s jailing of Walker was apparently based on his blog posts, and thus violated the First Amendment, according to law professors like Case Western Reserve University’s Jonathan Adler and U.C.L.A.’s Eugene Volokh, and journalists like David Hogberg of the Investors Business Daily. The court’s rationale for the jailing was previously unclear. But as Professor Adler notes, Walker was indeed “arrested for blogging.”