Patterico's Pontifications

6/5/2012

Volokh Joins Aaron Walker Defense

Filed under: General — Patterico @ 6:27 pm



Huzzah!

I’m pleased to say that I’ll be consulting with Aaron Walker’s defense lawyer in the case I discussed last week, in which a Maryland judge issued a “peace order” — in other states, generally called a “restraining order” — that the judge seemed to interpret as limiting Aaron Walker’s blogging about Brett Kimberlin. (See, e.g., this audio recording, starting at 46:01.)

The order prohibiting Aaron from blogging will, of course, be reversed. It’s just a question of when.

What is needed is an immediate stay of the unconstitutional portions of the judge’s order, and an injunction against Kimberlin’s seeking another peace order based on public speech about a public figure.

In the meantime, I advise Eugene to be careful. These aren’t your average Internet opponents. They’re dangerous, nasty, evil people, and they will probably try to come after him on a personal level, as they do with anyone who tries to help us.

UPDATE: Forgot to add, the good Professor is doing this pro bono. Good for him.

58 Responses to “Volokh Joins Aaron Walker Defense”

  1. I have great respect for Prof Volokh, (I’ve stolen his great material for several classes I’ve taught). I think Eugene knows what he’s up against here.

    SPQR (26be8b)

  2. Pray for Eugene’s family. Seriously.

    It takes a real backbone to help the good guys in a material way.

    As Patterico said: they are nasty, evil people fighting Aaron.

    This is awesome news.

    Dustin (330eed)

  3. I hope he is prepared for when they go after his employer and his family.

    JD (318f81)

  4. Great news!!

    Chris (eafa5f)

  5. What I would do is ignore the “peace order” and appeal any contempt order, but that’s just me talking.

    In the meantime, a letter to the Chief Judge and the local version of the judiciary disciplinary authority. About a demented old fool who does not know the difference between a courtroom and an Irish neighborhood.

    nk (875f57)

  6. nk, you can’t actually do that except in narrow circumstances. There is long established precedent to that effect. Its not something I’d recommend to anyone.

    SPQR (26be8b)

  7. Eugene Volokh does not strike me as a wilting violet. That said, your caution is correct.

    I’m glad Professor Volokh chose to help in this important case.

    Random (fba0b1)

  8. It will be interesting to see if the judge is more upset with the pro-Aaron pushback or with BK and co. for drawing him into this mess.

    meanwhile, it looks like it’s ON Wisconsin!!!

    MD in Philly (3d3f72)

  9. Hmm,

    Ok, then, notice of appeal. Deprives the trial court of jurisdiction. Motion for stay based on prior restraint. Request for expedited hearing.

    (Err, have’t done it but seen it, the court holding against the contemptor but saying, “No penalty, he just wanted his case heard”.)

    nk (875f57)

  10. Thank you, Prof. Volokh. Everybody stay safe —

    ukuleledave (5f2a17)

  11. MD,

    The judge likely wanted to say “what did I do to deserve you two jackasses?”. But he was wrong on tha law and went too far with his analogies.

    nk (875f57)

  12. Volokh grew up in communist Ukraine; he knows what happens when the thugs win. So I’m not surprised that he’s willing to get involved in this.

    Steven Den Beste (99cfa1)

  13. Eugene is the perfect person to take these folks on.

    But please keep his family in your prayers anyway; the opposition is ruthless and crazy-evil.

    Joy McCann/Little Miss Attila (59dda8)

  14. They’re nothing. They are only as important as you want them to be.

    Just for purposes of illustration, not for advice, you go to a real biker bar, not the fag ones, sit next to a guy with a gang cut off, drop a roll of $1,000.00, with a piece of paper with a name and address in it, on the floor, pick it up, hand it to him, and say, “Sir, you dropped this”.

    nk (875f57)

  15. Thank God for this news. I’d been hoping.

    rrpjr (b23691)

  16. Eugene is not in the least either a shrinking violet, an over reactor, or an computer naif unless something has happened in recent years to dramatically change him. He is also a VERY staunch defender of the First Amendment. Mr. Walker has acquired a very able proponent in his battles. (Erm, I first met him pre-juris doctorate when he was still in his teens. He impressed me as one of the most brilliant people I’d ever met. We talked computers when we first met. He programmed the silly things, too. Last seen he’d succeeded in convincing this aging extreme cynic that “Wil Shakespeare Day” would not solve anything. That took some convincing, too.)

    {^_^}

    JBD (d85c92)

  17. Great story, JBD! I didn’t know that about his interest in computers and it was interesting seeing the impression a youthful Volokh made on you.

    I’m glad you’re both still around to do your thing.

    Random (fba0b1)

  18. Good news – Eugene can handle these guys. They manipulate the law; he lives the law.

    Estragon (ec6a4b)

  19. “The order prohibiting Aaron from blogging will, of course, be reversed. It’s just a question of when.”

    Better not take too long, because I think i’ts only in effect for six months.

    Dave Surls (46b08c)

  20. That is good news. But I would seriously suggest and propose a 401(c) non-profit Organization for the Protection and Advocacy of Conservative Free Thought, or NOPACFT. Funded the same way the other organizations by donations, charity contributions, etc., with highly qualified Attorneys hired within the organization to specifically deal with these issues of legality of any of it’s members.. Just like the NAACP, ACLU, etc…

    Do I have an adequate appropriate suggested solution of this particular area.

    TeaPartyPatriot4ever (9ff7d1)

  21. @nk

    I would urge you to reflect upon the infantile mentality that makes you think it is appropriate to refer to gays in a public forum as “fags.” Obviously, you feel comfortable using that kind of deragatory language. Irrespective of one’s views on homosexuality, I think it’s inappropriate.

    Guy Jones (006707)

  22. Guy Jones, nk wasn’t refering to gays, he was refering to faux biker bars. Can’t you read?

    SPQR (26be8b)

  23. ________________________________________________

    It will be interesting to see if the judge is more upset with the pro-Aaron pushback or with BK and co.

    That’s why it would interesting to know the full history of Cornelius Vaughey and the way he’s ruled over the decades. Of course, it also would be far more revealing to know how he’s voted in the election booth through the years. If his ballot has consistently been that of a staunch, dyed-in-the-wool liberal/Democrat, we’d have an easier time guessing the answer to your question.

    My own hunch is because I don’t think the following is necessarily true…

    The judge likely wanted to say “what did I do to deserve you two jackasses?”.

    …because some of the key quotes from Vaughey point to his having the warm fuzzies for Kimberlin and just the opposite for Walker, I’d say that the judge is more likely to be similar to the various leftists in places like Hollywood or Berkeley (or “Berserkly”) who give their time and money (and lots of their sympathy) to radicals like Kimberlin.

    When Vaughey was waxing poetic about street-side justice as recalled from his years growing up in New York, but then became quite indignant about Worthing trying to, in effect, take the law into his own hands by goading the system to strike back at Kimberlin, I think that’s an important contradiction to keep in mind.

    Mark (aa1ab7)

  24. Best news I’ve heard all week. Including WI. And, God bless the the Bain of the Bumptious, from his mitre to his snortable parts.

    sarahW (b0e533)

  25. Mark,

    I know we’ve talked about this before and I apologize for belaboring my earlier point, but it’s not a contradiction if the judge’s point was that people should settle their differences directly — instead of relying on a mob of internet supporters. If that’s the case, the real contradiction (and irony) is that Kimberlin is the one with the mob.

    DRJ (a83b8b)

  26. _____________________________________________

    but it’s not a contradiction if the judge’s point was that people should settle their differences directly

    DRJ, I did think of that angle, but my sense is that Vaughey, by expressing indignation about Walker — a member of the public — trying to trigger the assistance of law enforcement and the judiciary instead of going it alone, was revealing another side of his biases. Namely, one where Vaughey feels “how dare you take the law into your own hands! WE are the ones who determine who’s arrested or not! Not YOU, you prole and peon!”

    Vaughey may be typical of various liberals (and also libertarians and some conservatives) who display mixed emotions about authority when it comes to police, law enforcement in general, and the courts. So, on one hand, they generally don’t shudder about a huge bureaucracy and its nanny-state policies and restrictions — and the taxes required to keep it all afloat — but they also may be quietly subversive if they believe the “rule of law” is too conforming, too elitist, too pro-capitalist, and too old fogeyish.

    I can easily see Vaughey being caught between those two dynamics, with his subtly falling for the notion that Kimberlin — envisioning him as having wonderful, idealistic, big-hearted “Occupy Wall Street,” “Che Guevara” and “I’m for the little guy!!” credo — was “fighting the good fight!,” and Aaron was merely the “uptight, pro-establishment, neo-Nazi-sympathizing spoilsport!”

    If it can be determined that Cornelius Vaughey is even somewhat like a George Soros, then the reason he ruled the way he did can be pretty easily pegged and nailed down.

    Mark (aa1ab7)

  27. I know Eugene Volokh personally, and among other things, he’s incredibly bright. I think Aaron’s case is in good hands.

    Karl (ff486c)

  28. A question for the assembled crowd:

    What is it that makes a person a public figure? Is it just exposure?

    In other words, if I decide I want to slander somebody, should my tactic include slandering him in front of a huge audience so he becomes a public figure as a result and those rules apply?

    Just asking.

    Karl (ff486c)

  29. Is that really you, Karl?

    sarahW (b0e533)

  30. Sarah, this doesn’t seem like the same Karl.

    What is it that makes a person a public figure? Is it just exposure?

    In other words, if I decide I want to slander somebody, should my tactic include slandering him in front of a huge audience so he becomes a public figure as a result and those rules apply?

    I had this conversation with nk, who explained that you have to step into the limelight yourself to become a public figure. You can’t make someone else a public figure. Of course, setting eight bombs and signing a book deal, as Kimberlin did, is stepping into the limelight.

    Dustin (330eed)

  31. Sue the judge to remove him from state pension plan for clear civil rights violation and gross official misconduct. After all, state/city pension is not guaranteed before its finally approved when retired. He will not be entitled to taxpayers
    to pay for defence. Enrolment in state pension plan is his PRIVATE matter.

    That should put judge in line. Let him keep social security.

    name here (e9e67b)

  32. I should add that my summary is not a comprehensive discussion of the issue. It would be a great one to bring up at Volokh’s blog, though that blog’s comment section is overrun by a couple of extremely dedicated trolls, so you need to be ready to ignore a lot of nonsense.

    Dustin (330eed)

  33. Yeah, that’s a different Karl.

    Karl (f07e38)

  34. Yes, different Karl.

    Another impertinent question:
    If a judge makes an egregiously bad ruling, is there a way to hold him personally liable for the costs incurred in appealing it?

    Karl (ff486c)

  35. The new Kkkarl sux

    JD (318f81)

  36. Different Karl, is there any chance you could comment under another name, just for clarity’s sake?

    Dustin (330eed)

  37. Name here and diff–Karl both bring up suing the judge.

    I think that we just need our freedom of speech back.

    Undo the wrong ruling. Suing judges because we didn’t like the ruling is a little strange. Unless you can show actual misconduct (And no, I don’t mean Kimberlin style accusations of misconduct every time anyone in the government does the right thing), then what’s there to sue for?

    Maybe the state of Maryland’s awful peace order procedure is a Section 1983 claim. Maybe it isn’t. Thankfully, Aaron has folks like Eugene Volokh he can ask about it.

    But the most fitting justice for the judge’s behavior is not to take away his pension, but rather to use the free speech he should have respected to criticize the judge’s ruling. Make this mistake his legacy. It’s bad enough to justify that.

    Dustin (330eed)

  38. I think you want a law-blog, DifferentKarl.

    sarahW (b0e533)

  39. At least if you mean to address the commenters.

    sarahW (b0e533)

  40. Mark,

    Neither OpenSecrets (since 1990) nor Fundrace (since 2008) indicate Judge Vaughey has ever given $200 or more to a political cause. In fact, according to those websites, most of the people named Vaughey who have made political donations since 1990 live in Mississippi, Colorado, Montana and Washington state. All or virtually all of them gave to Republicans.

    DRJ (a83b8b)

  41. if I decide I want to slander somebody, should my tactic include slandering him in front of a huge audience so he becomes a public figure as a result and those rules apply?

    This question does seem a bit odd. Are you talking about ‘slandering’ Brett? Because the truth is an absolute defense. Speculation and other opinions are absolutely protected regardless. So I’m not sure I get how anything there would change.

    Are you talking about slandering one of Brett’s critics? Something like Neal’s ‘beandog’ comment astroturf, meant to troll someone mercilessly by talk about their kids, until they are dragged into responding in front of the huge audience you then slander them in front of?

    Hopefully I’m reading too much into this, but I think my confusion is because I don’t understand how your questions relate to the topic. If you’re just seeking a discussion of the legal issues, I really do think a law blog will be more helpful.

    Dustin (330eed)

  42. Suing a judge for making a decision you don’t like sounds wrong to me, especially since there are already in-place mechanisms for 1) dealing with bad decisions through appeals, and 2) removing corrupt judges for cause.

    What do we get by suing judges for making decisions we don’t like? Sounds like an intimidation tactic to me. Definitely not what our side does.

    Pious Agnostic (7c3d5b)

  43. DRJ, you are not the one belaboring the point.

    Icy (b95ea4)

  44. In general, judicial immunity protects judges acting in their official capacity from civil liability and damages. Here’s a link to a Cato article that discusses judicial immunity in more detail.

    DRJ (a83b8b)

  45. I had this conversation with nk, who explained that you have to step into the limelight yourself to become a public figure.

    That’s not entirely true. George Zimmerman is a public figure, but he didn’t do anything with the intent to thrust himself into the spotlight.

    I think that someday in the future, the Supreme Court is going to have to take a hard look at its “public figure” doctrine. In the world of the Internet, a lot of people could (arguably) qualify as a “public figure”, despite the fact that 99.99% of the people never heard of them. Take, for example, a Twitterer who has 2,000 followers, most of whom are not within his offline social circle. Public figure or not? What about 1,000? 10,000? Tough to say.

    That said, I don’t think it has any bearing on the Kimberlin/Worthing “peace order” matter.

    Kman (5576bf)

  46. Following up on judicial immunity, whether the judge has immunity from a civil claim is a different question than whether the government has immunity for what the judge said or did. Shipwreckedcrew posted this comment at Volokh on the second topic.

    DRJ (a83b8b)

  47. I applaud Prof. Volohk’s decision; I have no doubt that he’ll bring a great deal of intellectual firepower to the mix, and he’s remarkably pragmatic for someone who’s day-job is as a law professor. But I don’t think what Aaron’s been missing has been expertise on constitutional law.

    Beldar (f9a493)

  48. He also probably would have caught, and corrected, my misuse of “who’s” above.

    Beldar (f9a493)

  49. Fine. Different Karl, now with a last initial.

    Thanks, Kman, for bringing up Zimmerman, so I didn’t have to. His case is what got me thinking about “he’s a public figure”. “Joe the Plumber” got thrust into the limelight, but evinced willingness to stay there. Zimmerman made the headlines and as a result is now being called a “public figure”. So it seems reasonable to ask, if causing enough people to hear a person’s name makes him a public figure, then if I slander someone in front of a huge audience, does that change the rules under which he can sue me?

    Karl_L (ff486c)

  50. I doubt that in the eyes of the law you could make someone a pubic figure by slandering them to a wide audience, at least in that specific case.

    JD (c543e6)

  51. But I would seriously suggest and propose a 401(c) non-profit Organization for the Protection and Advocacy of Conservative Free Thought, or NOPACFT. Funded the same way the other organizations by donations, charity contributions, etc., with highly qualified Attorneys hired within the organization to specifically deal with these issues of legality of any of it’s members.. Just like the NAACP, ACLU, etc…

    Do I have an adequate appropriate suggested solution of this particular area.

    Comment by TeaPartyPatriot4ever

    It’s a 501(c); and Oh, my aching head.

    One of my personal pet-peeves (sorry, the kennel’s getting crowded, so I’m letting this one out for some exercise) is that people found 501(c)’s without a plan for them to achieve a goal and go out of business. Then they “evolve” and the founders wouldn’t recognize the organization.

    Frankly, it’s not so much that it’s a bad idea, as it’s one of those things that can’t be set up on the spur of the moment and without thought. If you’re dead serious, you need to create a set of by-laws that are crystal clear in saying what the organization may do, and what the criteria are for its dissolution.

    Dianna (f12db5)

  52. is that people found 501(c)’s without a plan for them to achieve a goal and go out of business

    I’m not sure if you’re aware of this, but most categories of human problems are ongoing and insolvable — except sometimes on a case by case basis.

    I think you’re trying to make a good point, but you’ve missed somehow.

    Random (27bd11)

  53. I think you’re trying to make a good point, but you’ve missed somehow.

    Comment by Random

    Large parts of non-profit world exist purely to deal with the insoluble human problems, and more power to them. There will always be those who lose their way; I have nothing but admiration for them.

    My pet peeve is a charity set up to deal with one issue – think many of the early AIDS charities, which did sterling work – and then, the issue ceases to be a crisis, and the organization drifts into general social services (and usually does this rather poorly) and stubbornly refuses to merge with a more focused organization or close.

    There’s immense good in non-profit world, but, given that it’s a human endeavor, there’s also incredible inefficiencies. None of this means that every single organization should have a sunset date – many don’t and shouldn’t – but issue specific organizations, in my considered opinion, should.

    Dianna (f12db5)

  54. Yesterday, I read this post by Ken at Popehat. It’s very good and he’s been a real friend to several people here, but I completely missed this hilarious gem:

    Brandenbug, as I mentioned in my earlier post, is the United States Supreme Court case that articulates the relevant standard: speech may only be banned on the theory that it is incitement when it is intended to create, and likely to create, a clear and present danger of imminent lawless action. But Honey Vaughey don’t give a shit. In his courtroom, he is the law, and he’s suspicious of all this new-fangled stuff, and he’ll impose any damn standard he wants.

    DRJ (a83b8b)

  55. Forgive me, that last comment was antecedently challenged to a dreadful degree. I plead weariness.

    Dianna (f12db5)

  56. My pet peeve is a charity set up to deal with one issue – think many of the early AIDS charities, which did sterling work – and then, the issue ceases to be a crisis, and the organization drifts into general social services (and usually does this rather poorly) and stubbornly refuses to merge with a more focused organization or close.

    The very first organised political expression of what became the liberal movement (now known in the USA as the conservative movement) was the Anti Corn Law League. It was founded in 1838 to fight the protectionist Corn Law, and in 1846, when the law was repealed, the League dissolved itself.

    Milhouse (312124)

  57. I don’t know, it seems to me when a judge calls out the correct law that should apply and then goes about creating his own as a substitute I would like to think that there would be a means of removing him from power or punishing him. That would certainly happen in any other profession — at least the ones in the private sector.

    BTW, the prosecutor in the Zimmerman case just made the mistake of calling up Harvard Law School and threatening them with all sorts of legal hazards if they do not curtail Prof. Dershowitz’s free speech rights. Apparently Kimberlin is not the only one who thinks “butt hurt” is a solid legal basis for a defamation suit.

    All of this leads me to believe that the legal profession does an extremely poor job of educating and policing its members.

    Voluble (6bfee6)


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