May 30, 2012

Walker Freed, Was Arrested for BLOGGING

The news that blogger Aaron Walker was arrested for writing words on the internet was so astounding that, to be honest, I didn't want to believe it. Due to conflicting reports as to why Walker was arrested I had hoped that it was due to some ill behavior on his part in the courtroom. That hope was founded in the utter disbelief that anyone -- anyone -- could be arrested for engaging in behavior clearly protected by the First Amendment of the Constitution. A judge should fundamentally understand the First Amendment, right?

Wrong. Walker was arrested for simply writing words on the internet.

Patterico clears some up some of the earlier reports that Walker had been arrested for either assault or contempt:

Aaron was not arrested for second degree assault, contrary to some false reports floating around....

It does not appear that Aaron was held in contempt for his behavior in court today.

He was, in fact, arrested for BLOGGING!

From an IBD reporter who as at the hearing:

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.

I cannot believe just how stupid the judge is in this case. I'm talking criminally stupid. Both of the Constitution of the United States and of the internet, in general.

The Google alert was set by Kimberlin. That is, the thing in which the judge considered "contact" -- the Google alert -- was initiated by Kimberlin himself. How could Walker be guilty of "contact" when it was Kimberlin who initiated said contact?

As DMartyr said in an email:

So the 14,000 'contacts' the judge mentioned must have been various blog posts on "blog brett kimberlin day", of which 13,999 weren't Walker.
Exactly! Walker didn't even write most of what constituted a violation of the judge's order. Walker didn't contact Kimberlin. He just wrote about the ordeal Kimberlin had put him through. Both are public figures and therefore both have heightened, not lowered, First Amendment protection over what can be said about either.

Kimberlin is a convicted domestic terrorist. He is a public figure. Bad things are said about convicted domestic terrorists. They must expect that.

Under this ruling, the leader of the KKK can take out restraining orders against people who don't like the KKK. It's utterly insane!

For a good legal analysis of this miscarriage of justice, see this post by Hans Bader. Here's a bit of it:

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.
For the legal angle see also: Volokh here and here.

This, too, from Patterico -- also a victim of Brett Kimberlin:

It’s a Catch 22 for people who want to blog about public figures. You either go to court and risk arrest on a bogus criminal charge, or stay away and risk default on a bogus civil claim.

The combination of frivolous civil and criminal actions is a creative abuse of process and it’s bound to be repeated — until judges start noticing that Kimberlin repeatedly makes false statements in the course of filing flurries of court actions against his critics.


If it's that easy to get a restraining order, and you can violate that restraining order simply through blogging or tweeting about a public figure, then the days of free speech are over and goodbye to the internet.

Which is why even those on the Left should rally around Walker's cause. Michelle Malkin links to this post by Popehat which lists the reasons why all bloggers need to be worried about this kind of lawfare and the attack on free speech it represents:

Kimberlin's success in this regard will embolden other practitioners of lawfare, and allow them to chill and deter speech they don't like. Consider Aaron's dilemma upon being informed of the new and overtly bogus peace order: was he to cease speaking on an issue of public interest regarding a public figure, or was he to spend money on a lawyer to try to get the order lifted? Now imagine lawfare practitioners demanding such protective orders in multiple jurisdictions far from the writer. Imagine the costs and legal risks, and ask yourself how many people will be willing to incur them.
There's much more at this link, so go read it all.

The only good news here is that, as I predicted, Walker was arrested and then promptly released.

Every one ought to be frightened by the judge's decision in this case. If it stands, then the days of non-commercial direct reporting and opining -- which is essentially what blogging is -- are over.

By Rusty Shackleford, Ph.D. at 12:54 PM | Comments |