May 29, 2012

Blogger Arrested for ... Blogging?
UPDATED -- Another UPDATE: Arrested for Assault?
Another UPDATE: IBD at Hearing "1st Amendment Muzzled" a Google Alert?

I'm not sure how a restraining order can stop someone from blogging. Isn't that the very essence of the First Amendment which reads:

Congress shall make no law ... abridging the freedom of speech, or of the press
The very essence of the First Amendment is about protecting political speech, not porn -- which is what most of my students tend to believe.

So, how could a judge issue a restraining order against a blogger for simply writing? It boggles the mind. Even under a hyper-originalist view of the Constitution -- which sees the First Amendment as simply forbidding "prior restraint" of speech -- a restraining order is, by definition, prior restraint!

So I don't see how blogger Aaron Walker could possibly have been legally detained for speech written on a blog about convicted domestic terrorist Brett Kimberlin! But that's exactly what Stacey McCain is reporting.

I certainly hope something else is going on here. That Aaron Walker did something outrageous at the hearing that merited some jail time. Because if his only "crime" is one of writing about a domestic terrorist with an affinity for filing lawsuit after lawsuit, then I'm afraid that the Brave New World we are living in is not one I feel particularly safe in.

UPDATE: I'm still not 100% clear on the facts of this case, but I'm being told that Walker's "violation" of the restraining order was that commenters on blogs that linked to his were threatening Kimberlin.

So, if that's true then: a) Walker didn't threaten Kimberlin; b) Those linking Walker's blog didn't threaten Kimberlin; c) It was commenters on other people's blogs/twitter feeds that made threatening statements to Kimberlin; d) The judge is holding Walker liable for what someone who read someone by someone who linked Walker had said?


It isn't even guilt-by-association. It's guilt-by-association once-removed. As if Charles Johnson became a judge.

Michelle Malkin sent this link along to the original restraining order. She also has a great summary of the twitosphere's reaction here.

One of the bizarre things about this case is that the judge is retired, and that he chose to come out of retirement to hear this case. Is that common? <---UPDATE: Jeff Quinton and Kim Priestap email saying that due to increased caseloads that this is quite common, actually. So, that's one mystery solved

I don't see anything in there restraining Walker from writing and I don't see how any rational person -- even a judge -- could connect dots so disparate as that to come to the conclusion that the restraining order was violated.

But then again, maybe we're missing something here? I certainly hope so, otherwise we are in a bizarro world indeed.

Also, I'm banning any one who posts any personal information about any one. Period. I did the same thing for al Qaeda member Samir Khan, I'll certainly do it for the likes of Kimberlin.

UPDATE: Ok, so the facts seem to be coming out. It seems that the judge ruled that it was the tweeting that did Walker in -- maybe. He kind of hems on that, and says that after he left maybe Walker was held in contempt for getting out of line with the judge. But this is a start.

From a guy who says he was at the hearing today:

Then the Judge ruled. He upheld the Peace Order, and he further stated that Walker was in no way allowed to harm Kimberlin–and by harm or contact the Judge sending blog posts or tweets. The latter was justified, in the Judge’s opinion, on Walker’s supposed “mob” having issued “death threats” to Kimberlin.

I left at that point. But apparently, Walker couldn’t quit while he was ahead, kept talking, and was arrested for, I assume, contempt. I hope contempt, and that he didn’t lose it further.

If it was the former, and not the latter, then this is insane. The judge clearly has no concept of the internet, and if you read the entirety of the above post you'll see that it's true.

And as Decency points out in the comments, there is ample precedent protecting a blog owner from liability for what is said by others in his comments.

UPDATE: Ok, The Blaze is reporting that the arrest was for second degree assault over an incident in which Walker grabbed Kimberlin's iPad. Which is really stupid. Assault isn't what most of you think it is. Most people think of battery when they think of assault. Battery is when you physically touch someone. Assault is just intimidating them. And, to be honest, I've never heard of any one being arrested for second degree assault. It's usually the lowest level misdemeanor available in a state (Class C or something equivalent).

Or, if they are, they get out of jail that same day. The kind of thing where they book you, then let you go since the penalties are so small and the risk of jail time slim to none. So, is Walker out of jail already?

The Blaze:

According to the clerk, he was arrested on second degree assault charges that were previously filed by Kimberlin when Walker, following a separate court hearing, took and held at bay Kimberlin’s iPad.
Here's a video of the event. It's kind of long and drawn out. I wish we just had the video without the commentary. But worse case scenario is that Walker took away Kimberlin's iPad because Kimberlin was taking pics of him. But I'm not sure how that violates a restraining order since the pair were actually outside of the courtroom when the event happened. It's kind of hard to be X number of feet away from a guy when you both are coming out of the same room -- a courtroom.

And wouldn't Kimberlin's actions be those considered "harassing" in this case? Walker was just responding to Kimberlin taking his picture. I guess it's not cool to grab the guy's iPad, but to get arrested for this? (if that is the case) Give me a break!

Thanks to Howie and J for the links.

PS -- The National Bloggers Club has set up a fund to defend Walker.

Update by SH: Investors Business Daily's David Hogberg was also at the hearing today:IBD At Kimberlin Hearing: Walker Handcuffed, 1st Amendment Muzzled Google alerts?

Here’s what seems to have happened. Although Kimberlin’s first peace order against Walker was eventually thrown out on appeal, it appears that while it was in effect Walker wrote a blog post about Kimberlin. This triggered a Google Alert that Kimberlin had set up. Kimberlin filed criminal charges based on that, apparently claiming that constituted “contact.” The court apparently agreed, and Walker was arrested.
Read it all

By Rusty Shackleford, Ph.D. at 11:44 AM | Comments |