CEI Senior Attorney Hans Bader on yesterday’s maneuvering in the Walker/Kimberlin saga and a Maryland judge’s ruling that has resulted in much leftwing online triumphalism, despite the clear assault on free speech such a ruling represents.
— Or perhaps that’s the part of the ruling they’re most excited about. Tyranny being to the progressive a necessary condition for policing the Great and Good they insist their subjects adopt.
Writes Bader:
[…]
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, for reasons that are not yet clear. 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.’”
As I noted last evening on Twitter during a particularly testy back and forth with a leftwing Kimberlin apologist who was trumpeting the judge’s decision, by this judge’s metric — which she claimed to support (being all for law and order, you see; and what says law and order more than throwing your support behind a con man and convicted domestic terrorist who is using the court system to torment those who seek to expose him?) — she was actually HARASSING both me and Aaron Walker by consistently including our Twitter IDs in her Tweets.
The very idea was ludicrous, of course, but this judge’s misapprehension of how Twitter and blogs work led him to make a cocksure ruling that is on its face a clear attack on First Amendment protections.
That the left would celebrate such an ill-informed and frightening ruling is further proof that “progressivism” — for all its talk of fairness and protection for the little guy — is about nothing more than power and control. And any way they can seize it is fine with them, the ends justifying the means and all.
— Which is why it isn’t at all unhelpful or “fundamentally unserious” to point out how and why progressives adopt a particular view of language and a particularly convenient anti-foundationalist epistemological stance: it is through the institutionalizing of the collectivist assumptions inherent in the left’s philosophical outlook (which is inherently egalitarian, and so inherently anti-liberty and, in the strictest sense therefore anti-American) that they’ve been able to lay the foundation for the normalizing of a postmodernist worldview, one in which Enlightenment principles are overthrown and replaced by a cheap relativism in order to reach an end stage where a mandate to rule is the product of coalition politics, a Balkanized society, and manufactured consent aided greatly by a compliant propaganda arm in the media.
Fighting each individual battle on the local level is certainly important and useful; but it isn’t nearly as important or useful as exposing and combating the incoherent linguistic and philosophical assumptions that give rise to all the individual battles.
Swatting away the flies is well and good. But if you’re already dead, it’s also largely moot.
****
update: More, from Patterico.
I have nothing to add. I’ll pass it around, though.
No fair using logic, Jeff.
Reason is, obviously, also right out.
Great line.
Not having seen a transcript, I can’t state it as fact but it was reported that Walker referenced Brandenberg and the judge said he didn’t care about it. I truly hope Walker gets the same judge on appeal. Kimberlin is going to have fun explaining how when the court vacated his peace order, he just went and got another one.
Oh, and I’m pretty sure that Nicole Genette character is a dude. If the name sounds familiar, that’s because it’s derived from this chick. How weird is that?
Judge Vaughey may want to consider whether under his view of speech acts li’l Barry Obama didn’t incite the Poles into a murderous rage by means of his “Polish death camp” remarks, n’est-ce pas?
Jeff, you’ll be disturbed to know that timb is still fixated on your genitalia.
Patterico is longer winded but what transpired as to Walker’s arrest comes down to this comment. Getting away with this type of thing requires political clout and/or a victim that gives up due to fear or lack of resources, financial and legal, to mount a long term defense. The political part is the function of BK’s only companion there, NR.
Timmah deserves only one response: “Your opinion has been recorded, and will be ignored in the order in which it was received.”
It’s not nice to pick on the handicapped, you guys.
I think you’ll find that “reason” and “logic” are tools for white man to oppress the 99%.
Is there a way to follow a conversation on twitter? I’d like to read the conversation between @NicoleGennette and pw, but can only see the one tweet. Is there a trick to showing full conversations, or do we have to wade through every tweet?
Thanks in advance.
[…] an excellent review of the legal issues relating to Judge Vaughey’s decision yesterday. (H/T, Protein Wisdom, where you’ll find further useful discussion) In 2005, a New Mexico judge appalled people […]
[…] Jeff Goldstein sees a vindication of what he’s been saying all along: control of language is everything. That the left would celebrate such an ill-informed and frightening ruling is further proof that […]
Did Jeff encounter OccupyRebellion? And I missed it?! Damn
This whole thing is surreal. Bizarro.
In a world where HHS defines religion for the Catholic Church? It’s not so unexpectedly surreal as all that, JD.
Did you know the Kenneth Gladney mugging is an example of a right wing lynch mob?
Kevin. What I do is click on the link, then click Proteinwisdom, then click “more Tweets” and then click “expand” to see several at a time. Not great but you get both sides.
That should be “view conversation” not expand there.
[…] -Jeff Goldstein’s post is a must-read. A highlight: That the left would celebrate such an ill-informed and frightening ruling is further proof that “progressivism” — for all its talk of fairness and protection for the little guy — is about nothing more than power and control. And any way they can seize it is fine with them, the ends justifying the means and all.– Which is why it isn’t at all unhelpful or “fundamentally unserious” to point out how and why progressives adopt a particular view of language and a particularly convenient anti-foundationalist epistemological stance: it is through the institutionalizing of the collectivist assumptions inherent in the left’s philosophical outlook (which is inherently egalitarian, and so inherently anti-liberty and, in the strictest sense therefore anti-American) that they’ve been able to lay the foundation for the normalizing of a postmodernist worldview, one in which Enlightenment principles are overthrown and replaced by a cheap relativism in order to reach an end stage where a mandate to rule is the product of coalition politics, a Balkanized society, and manufactured consent aided greatly by a compliant propaganda arm in the media. […]
Time to go to the mattresses?
Thanks, geoffb! That’s a helluvalot better than the method I was using.
The ruling, based as it is on the peace order itself, is a crock.
But man, oh, man–Walker needs to hire competent counsel, stat.
[…] with a strategy for dealing with Kimberlin and his ilk. What he did to Aaron Walker is disturbing. Even more disturbing is the number of progressives who are celebrating a blow to free speech. Geez, none of this even […]
“Terrorist-Turned-Left-Wing Activist”
That could also be restated as “Terrorist-Turned-Terrorist” or “Left-Wing Activist-Turned-Left-Wing Activist.”
I’m sure that Walker can get this overturned (if there are anymore honest judges).