Fighting Lawfare and Unintended Consequences

Last week was Blog about Brett Kimberlin Day, and it apparently raised a some serious consciousness.  It also raised some mindless anger, with some people across the internet allegedly retaliating against Kimberlin with death threats.  Impropriety and stupidity knows no politics. 

But the gravamen of the exercise was that people across the political spectrum would not allow Lawfare to murder free speech, regardless of whether the speaker was on your side, the other side, or no side.  The story that  gave rise to this was that of Aaron Walker, who blogged as Aaron Worthing at Allergic2Bull.  Calling upon those who believe that free speech shouldn’t be shut down by outrageous use of police and the legal system seemed like a pretty good idea at the time.

As it turned out, this may not have been the case.  Aaron Walker was  taken into custody yesterday because of it.  Via Eugene Volokh :

  David Hogberg (Investor’s Business Daily Politics and Markets Blog) reports that the arrest was indeed based on Walker’s blogging, which would mean that it is indeed a First Amendment violation (see, e.g., this recent case):

This was the second peace order that Kimberlin has filed against Walker, demanding that Walker cease any contact with Kimberlin. In it, Kimberlin claims that Walker has “continually harassed” him with “alarming posts, tweets, alerts that arrive in my email box, which I consider threats to me personally and to my business.” Kimberlin came to court with pages upon pages of threatening emails and tweets that he claimed had resulted from Walker’s blog posts about him. None of them, though, were sent by Walker….

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….

It seemed like Walker did himself in when the judge asked, “Where do you see this case going?”

Walker, who has tried to get the Maryland State Attorney to file charges against Kimberlin for filing what Walker claims are false criminal charges against him (see here), replied, “I hope to raise enough consciousness to get the State’s Attorney to file charges.”

“How are you going to do that?” Vaughey asked.

Walker replied, “I’ve been raising awareness. There’s now 400,000 posts on Google discussing him (Kimberlin), and I’m guessing 300,000 of them are not very pleasant. These are people calling for charges to be filed.”

At this point, those of us who understand what Walker is talking about are nodding, “see, it works.  The internet did what it’s supposed to do, galvanize a few hundred thousand people who stand together to support free speech and abhor abuse of the system.  This strikes us as a good thing.

But then, we’re not a Maryland judge.

If you are a judge who knows very little about the Internet, Walker has just made it sound as though he’s able to generate all of this Google traffic against Kimberlin. And Vaughey seemed to believe that is what caused Kimberlin to get death threats….

The judge then said that Walker was the type who didn’t want to get into it “mano-y-mano” with Kimberlin but “you want to get together with all of your friends, who have nothing else to do with their time, in this judge’s opinion … and you are creating a conflagration, and you don’t care where it goes. And so you get some freak out in Oklahoma with nothing better to do with his time, so he does the nastiest things he can to this poor gentlemen (Kimberlin). What right does he have to do that?”

Speech creates a conflagration?  Sometimes, on a really good day, it creates a conflagration of ideas.  And is it possible that “some  freak out in Oklahoma with nothing better to do” will say nasty things to “this poor gentleman?”  It is possible.  As we are already too well aware of the fact that they sell keyboards to the stupid and psychotic alike, it’s very possible that someone who sees something on the internet will be inflamed and write nasty words.

“He has no right to do that, your honor,” Walker replied.

“But you incited him,” Vaughey said….

At the end, the judge said, “All I’ve learned here is one guy hides behind the sheets while the other guy suffers. I don’t care what (Kimberlin’s) background is. A prostitute can also be raped. He’s an individual, he’s entitled to his own privacy and can’t be threatened. What I didn’t like is these death threats that are coming and his children are reading it. That is nasty and wrong.”

The judge signed off on the peace order, which means that Walker can’t say one word about Kimberlin for six months.

“I find that this is worse than harassment. It’s a nasty, dirty thing to do to somebody … you’ve got people all over writing these things. He’s got 54 pages that he says come directly from you, and he’s got volumes of people who are doing it.”

And so Aaron Walker got what he wanted, consciousness raised, and what he didn’t want as well.

While many of us, myself included, came at this from a distance to fight the overarching issue, Walker had his feet on the ground.  He went in without counsel. He faced a judge who, as should come as little surprise, misapprehended the nature of what happened, see what happened on the internet not as an exercise in 300,000 acts of individual discretion, but as the cybermob under the Svengali-like control of the evil Aaron Walker.  Even people who should have the flimsiest grasp of the internet make such an absurd mistake, so this is hardly a shock.

The raising of consciousness of the use of SWATing and Lawfare to shut down free speech was, and is, a worthy cause. As a tactic for an individual facing a “peace warrant” in a local Maryland court, it may not have been such a good idea. 

Eugene Volokh opines that if this happened as it’s currently understood, then it’s a clear violation of the First Amendment, to sanction Aaron Walker for public speech, and for the public speech of others.  Eugene urges Walker to file an “emergency mandamus petition or some Maryland equivalent.” Given the courtroom prowess Aaron Walker has shown thus far, this seems a stretch.

The  judge’s order against Aaron Walker begins with a finding that speaks volumes:
That there is clear and convincing evidence that within 30 days before the filing of the Petition, [Walker] committed the following act(s):

Placed [Kimberlin] in fear of imminent serious bodily harm: COUNTLESS NUMBER OF BLOGS EITHER THREATENING DEATH [sic]

Ironically, the First Amendment, and our right to enjoy it, is in far worse shape today than it was a week ago.  So too is Aaron Walker.  This wasn’t what anybody had in mind when we spoke out in support of the constitutional right of free speech and the outrage used to thwart it.

10 comments on “Fighting Lawfare and Unintended Consequences

  1. Bruce Godfrey

    Montgomery County, Maryland, at 1 million residents strong, believes in nothing if not the power of public administration to solve the myriad problems of Fallen Man. Walker’s failure to know and anticipate this culture – from his nearby office in Virginia – and its possible results is Exhibit A for “fool for a client.” Walker isn’t even licensed here in Maryland according to the MD Client Protection Fund, yet found himself at the mercy of law, procedure and culture with which he was insufficiently familiar. Moral: The rule of doing the work right or referring the work out applies equally when an attorney himself is a party.

    Sometimes judges make errors small and large, hence the existence of appellate review. Judge Vaughey (pronounced VEIGH-hee) is a former chief administrative judge of that county’s District Court, and is in court smart, congenial and quick. He got the 1st Amendment issue dead wrong, but habeas relief, a suitable bond and appellate review down the street in CIrcuit Court may help Walker regain his freedom. Volokh’s suggestion of mandamus is along the right track though habeas relief is probably more on point right now (and, I hope, has by now been filed.)

  2. SHG

    Rather than explain it here, my guess is Walker could use some friendly advice right about now. If you have a few minutes, you could always walk over to the courthouse and  . . .

  3. Frank

    Throughout all this, Patterico still comes off as an arrogant ass, withhis utter shock that a crime victim can press charges without prior abasement before a cop or prosecutor.

    The man needs to learn that he’s not the Baron, we’re not peons, and he doesn’t get to deflower the bride the night before the wedding.

  4. SHG

    You don’t need to like him, when it comes to something like this. Another time, we can kick his butt. Just not today.

  5. Bruce Godfrey

    Under Maryland procedure, only a few civilian-filed misdemeanor charges may result in an arrest of a defendant; others result in a “statement of charges” which is served on a defendant in due course without arrest. In addition, everyone arrested on a criminal has a right to a bail set by a court commissioner, a bail review in front of a District Court judge within 24 hours and then habeas review upon petition in front of a Circuit Court judge. Further, incarceration that deprives a defendant of a substantial right to an appeal will usually be stayed on misdemeanors pending a small bond or no-bond recognizance.

    Early in my career, one particular judge (whom I won’t name out of general policy) in one Maryland county was infamous for locking misdemeanor defendants up in District Court and allowing neither stays of sentences nor appeal bonds pending the right of de novo appeal to the Circuit Court. The local public defender wrote a special chapter in its training manual on how to file habeas petitions rapidly and walk them through just to cope with this one judge’s sentencing recalcitrance. Even conservative Circuit Court judges gladly signed recog releases on habeas pending review, as to incarcerate someone pending appeal in such cases is to deny the appeal right as a whole if no reasonable bail terms are offered.

    Maryland is fortunate to have a Chief Judge (under federalism principles we do not call our highest judges “justices”) who was arrested for civil disobedience when he was a teenager in protest of Baltimore segregated lunch counters. It’s not paradise here but due process is taken reasonably seriously by the Maryland bench, Patterico’s well-intentions conclusions notwithstanding.

  6. Bruce Godfrey

    Am forty miles away, though I have an ally who may be better suited and more experienced than myself there….

    FYI maybe this is now common knowledge but he got released ROR (recog, i.e. no bail needed) yesterday according to Maryland’s CJIS. I won’t post the link here out of respect for blog policy, but if you run a search for Maryland Case Search on Google, you can run your own search within CJIS. Case number 5D00279004 State v. A Walker, Montgomery County District Court.

  7. Sgt. Schultz

    This is like a Pavlovian reaction to the common Maryland practice of deflowering the bride the night before the wedding, right?

  8. Scott Jacobs

    Except that Kimberlin is not only not the victim of a crime, but is the cause of several crimes, not the least of which is a couple of SWATtings.

    Yes yes, Kimberlin says he received death threats…

    He also said he sold drugs to Dan Quayle, was assaulted when he clearly wasn’t (and provided fake medical reports and statements to back up his lie), and claims to have received a “secret exoneration” for his bombings.

    Forgive me if I take his claim with more than a grain of salt.

  9. SHG

    Have you no self-control at all? Not here. Not now. That goes for you as well. This is not about politics.

  10. Scott Jacobs

    You are correct, it is not.

    In this very limited instance it is about people thinking Kimberlin is somehow the victim instead of the villain.

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