Blogging: More Than The Cost of Admission

Many readers are aware of my friend Ken’s initiative to help bloggers who are attacked for what they write by putting up the Popehat Signal, a call for lawyers and supporters to back a blogger who has been threatened or sued by what Ken calls a “censorious asshat.”  By this, he’s become the “go to” guy in the blawgosphere for those in need of pro bono assistance in fending off assaults on their First Amendment rights.

It goes in hand with Ken’s other interest, naming and shaming those who have the misfortune of coming across his radar.

Speech has consequences.  It ought to.

In America, we have an elaborate set of laws strictly limiting the government’s ability to inflict those consequences.  That is right and fit; the First Amendment prevents the government from punishing us for most speech.

Private consequences are something else.  Speech is designed to invoke private and social consequences, whether the speech is “venti mocha no whip, please,” or “I love you,” or “fuck off.”  The private and social consequences of your speech — whether they come from a barista, or your spouse, or people online, or people at whom you shout on the street — represent the free speech and freedom of association of others.

Ken’s efforts have been wildly popular, though not with the targets of his invective.  While I agree with Ken in principle, and support his efforts to bolster free speech in general, there remains a strong element of ambivalence in how things have developed. There are three primary reasons: first, it’s not always clear that the targets of his criticism deserve it. This wouldn’t be particularly troubling, except that his popularity has given rise to not merely the criticism of one person, or one blog, but a large group of followers as well who don’t appear particularly concerned or careful to be sure that they have scrutinized the “evidence” of wrongdoing, but rather blindly jump on the bandwagon.

The second issue is one of personal responsibility.  The potential for someone either threatening or suing those of us who publish assertions keeps us in line, as it should. Even when it’s putatively wrong to seek legal redress for public utterances, whether because they are true even if critical or insulting, or opinion and thus outside the realm of defamation, there are times when the issue is sufficiently close, or the assertion sufficiently harmful, unwarranted and unjustifiable, that the blogger needs to bear the responsibility for his words.

Another aspect is that there are many in the world in need of, and deserving, pro bono legal support. What of the indigent innocent man convicted of a heinous crime? Is he not deserving? So it troubles me that Ken rallies free legal support only for bloggers, and without consideration of whether they have the ability to provide for their own defense, or they are supported by others, usually political, who can readily manage the defense of one of their own. But they don’t have to once the Popehat Signal goes up and friends of the First Amendment rush to their aid.

Like Ken, I fully agree that defense of the First Amendment shouldn’t be limited to those with whom we share a political affinity. It’s there for all of us, whether we agree or not, and a principled view is to ignore the message and defend the messenger’s rights. But why is the messenger absolved of all responsibility? What about the messenger’s well-to-do friends and allies? It’s not that Ken is wrong to assume the burden, but that by doing so, he lifts the burden from others who could, and should, shoulder it, or at least share in it.  Where is their responsibility in all this?  It doesn’t appear that anybody gives this any thought at all.

Third, there are times when some seriously harmful things are said, and it shouldn’t be dismissed so cavalierly.  In the latest chapter, some conservative bloggers called someone a pedophile. That’s harsh stuff, and while there is some support for the “opinion,” he has never been so adjudicated and it’s by no means a fact. The target of this assertion, on the other hand, is an awful person in his own right, and if bad things were said about a person, this would be the guy you would say them about.

The bloggers who decided to call this disgraceful mutt a pedophile didn’t ask in advance whether anyone else was cool with their characterization, but when the mutt sued, they ran for free help from the Popehat Signal.  They are highly political bloggers, and could have sought the comfort of others who share their politics, but didn’t. Indeed, there is no support from their own, who are more than happy to let Ken manage their principled First Amendment defense so they can spend their time on the things that interest them more.

But this isn’t a run-of-the-mill SLAPP suit, frivolous in nature and designed to limit the conservative bloggers’ public participation. They called the guy a ped. There is no political virtue in doing this, and I have deep reservations about whether this is opinion and thus not defamatory. This was a basic personal attack of a horrendous nature against a political enemy.  If it had been anyone else, the Popehat Signal might have gone up for the other side.

Of course, the target has done very bad things as well. And he appears to have immediately begun a campaign to damage Ken for his support of First Amendment principles.  A problem with the path taken here by both sides is that it leads to thermonuclear war which obliterates both sides, and neither plans to back down or concede defeat.

Another problem is that even a disgraceful mutt like the target here shouldn’t be the subject of unwarranted, and valueless, personal attacks.  One of the core values of criminal defense is that we protect the constitutional rights of the very worst of society, and we recognize that by protecting their rights, we protect the rights of everyone.

It’s not at all clear whose rights deserve to be protected here. It’s ugly all around, and not everyone who asks for the Popehat Signal deserves it.  While they are entitled to a defense, their first line is personal responsibility, and their second line should be their political friends and natural allies, who appear perfectly happy to let Ken and his fans carry their water.

But the Popehat Signal has gone up, and fans are rushing to help with offers of legal assistance, technical support and money.  While such grass roots support speaks well of the supporters, I can’t help but wonder whether the better answer this time would be a pox on all their houses.


11 thoughts on “Blogging: More Than The Cost of Admission

  1. repsac3

    You bring up several points that definitely deserve consideration…and do so with respect for all sides, which is all too rare here on the internet machine.

    In fact, most of ’em are so worthy of consideration that I want to stew over ’em for awhile before expressing an opinion.

    In part, I’m concerned that my desire not to support the rightwing bloggers on partisan and personal grounds is influencing my opinion of some of what you’ve said here. I believe in free speech and more speech, but I find some of the folks that stance has me defending morally repugnant and personally ungrateful, besides. While I’m defending them, they’re attacking me both personally and via sweeping generalization. It definitely makes one want to just not bother, and some of what you’ve written here might be justification to do just that.

    On the other hand, one’s values are one’s values. No one ever said it was easy, and free speech is often about defending the rights of those one finds repugnant. In any case, I just want to be sure that I’m agreeing with you (or Ken) for the right reasons.

    The only bit I can speak to (at least a little) is whether there isn’t a person or cause more deserving. My take has always been that one does what one does and starts where one starts. Every dollar donated to one cause is a dollar that isn’t donated to any other cause. By donating to help families who lost their homes in a natural disaster, you’re not helping starving children in Africa. By spaying and neutering stray cats, you’re turning your back on programs that help homeless veterans. And yeah, putting money into a defense fund for internet free speech necessarily means those who do will give less to defend the indigent accused of more serious crime.

    I take this all to be a plea to consider what’s really important to you, and to donate accordingly. But at the same time, I also think there have to be people out there for free speech AND folks for indigents accused of murder AND people whose cause is stray cats AND… (etc.) While it’s up to us to put our money where our values are, choosing from among all the competing “goods” there are, it’s also important that someone fights for the local art museum, music education or the grey spotted salamander, even if others believe that money could be much better spent saving the causes they champion instead. We start where we start, and we do what we can (and we hope others do too, so that every worthy cause ultimately gets funded.)

    1. SHG Post author

      Very thoughtful. Let me clarify what I’m saying about the available choices of largesse, that they be both objectively and subjectively worthy of charity to deserve pro bono publico (for the good of the public) representation. Otherwise, it’s just a freebie, and not charitable at all. Where a putative party is financially capable of managing his own representation, or is backed by people with money at their disposal who are far nearer and dearer than the party asked to serve pro bono, then I would suggest that efforts spent pro bono would be better spent elsewhere. Or put another way, they are not necessarily deserving in themselves, plus there are more deserving out there.

  2. Zack Graham

    Legally speaking at least, it looks pretty clear to me that this is pure opinion and not defamatory. Almost all of the bloggers I’ve seen reference the sources of their opinions: the fact that he was a 40 year old man who helped a 16 year old immigrate to this country, the fact that his coworkers expressed discomfort at him saying he was ‘preparing’ her to be his wife, the fact that his wife filed charges against him for having sex with her while underage, among many other pieces of evidence. That’s plenty to base an opinion on that he’s a pedophile- and most people I’ve seen have explicitly cited one or more of these pieces of evidence, and have never cited any ‘hidden information’ that would change the accusation from a pure opinion into a mixed opinion.

    So, as I understand it, it would be equally protected if I said you must be a thief, because you’re a lawyer and lawyers are always thieves. Or if I said you must be a liar and a perjurer, because you’re a lawyer, and a lawyer’s job is to lie as much about their client or the person they’re prosecuting as they can get away with- in both cases I have cited the full sum of the information that lead me to form that opinion, so it is pure opinion in both cases and not implied any hidden information exists. Ditto in reverse with you calling me a ‘moron’, ‘idiot’, ‘liar’, ‘libeller’, ‘defamer’ or any similar label on the basis of my opinion about you.

    I could always be wrong, but this is what I understand the law to be.

    1. SHG Post author

      I think that’s a fair representation of the basis for the pedophile claim, and I leave it to anyone reading to decide whether it suffices as basis, it’s possibly defamatory or, most importantly, it’s an appropriate assertion to attack someone with a different political view.

  3. An anonymous coward

    The problem with this is a single point:
    This didn’t start out as a political battle. The first to be drawn into this was Aaron Walker, who was drawn in byhelping a liberal blogger. Kimberlin went after him personally, doxing him in court records (which Aaron had to have sealed), as Aaron was involved in some contraversial blogs and was anonymous at the time. Kimberlin went as far as to contact Walker’s employer, which resulted in his termination, and to attempt to frame Walker for an assault, which his followers continue to cling to after video showed it didn’t happen. McCain, Hoge, and Akbar were drawn into this by covering (and yes, taking sides) the situation.

    Are Walker, et al, blameless in this? Not at all. Appearing at Kimberlin’s unrelated court procedings reaks of them having an axe to grind with him. Interviewing, and trying to help fund, his wife when she was seeking a divorce is a questionable tactic as well.

    Kimberlin’s followers egged the situation on, also, which caused this to greatly escalate.

    But, regardless of the fact that these people are political adversaries, this did not start political. This all started when a lawyer tried to do something good, to help someone he strongly disagreed with politically, who couldn’t afford a lawyer…and it blew up in his face.

    1. SHG Post author

      Yes, I know, and when Kimberlin tried to frame Walker, I supported Walker as well. But none of this either explains or justifies what’s happening now, or makes the pedophile accusation less problematic. You comment sounds more like a five year old on the playground arguing, “but he started it.”

      1. An anonymous coward

        Actually, I view a lot of this as a series of escalations between both sides.
        My only point was that it wasn’t politics that began this entire situation, it was Kimberlin attacking someone who dared to defend his enemy.

        Beyond that, I think both sides have acted questionably at many times. I think the only reason the Popehat signal has gone off on this, is because Kimberlin has a history of using the courts to try to silence critics (and their defenders), and frankly because Kimberlin’s allies, in particular, have made it personal with Ken.

        The curious timing of 20k+ spam accounts following Popehat certainly wasn’t a great way to deescalate the situation, either…

        1. SHG Post author

          While I think you are correct that this has become personal, the Popehat Signal went up before the 20k twitter followers, which would be in retaliation, and the Popehat Signal has gone up for others who have nothing to do with Kimberlin. Does a guy who creates a website for the purpose of attacking his dentist have any responsibility for himself when the dentist fights back? Do a thousand knitters have the ability to reach into their pocket and contribute to a legal defense fund?

          Better yet, when the first round of Kimberlin/Walker happened, there was no shortage of conservative pundits raising arguments about how non-conservatives didn’t speak out against Kimberlin (except there were, of course, with Ken at the lead), but even though the convservative groups were lousy with both lawyers and money, not one stood up to take Walker’s case nor did a dollar appear to pay for his defense. All talk, no action, no responsibility. Is it really a good message that anyone can do anything without any responsibility for themselves or their own?

  4. Pingback: Update On Brett Kimberlin's Lawfare And The Popehat Signal: Kimberlin's New RICO Case | Popehat

  5. Quackenbush

    I think you need to look up the word pedophile. None of these bloggers has ever claimed that he has been convicted of a sex offense. A pedophile is someone who has an attraction for children up to the age of 13. Given that Kimberlin has stated that guys want to “f*ck a teenage girl,” and has written to songs about that, it is not far-fetched to believe that he has such an attraction.

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