Patterico's Pontifications


Protective Order Muzzles Blogger

Filed under: Brad Friedman,Brett Kimberlin,General,Neal Rauhauser — Patterico @ 11:16 pm

I just got interested in the muzzling of a blogger by a judge who cares little about the First Amendment. I saw the story on Radley Balko’s site, noticed that the judge had actually ordered the blogger to take down his posts (!), and had just started to do some independent research — pulling Google Cache shots of the deleted posts (here, here, here, and here) — when I saw Popehat already had the whole thing covered.

In a post published a few minutes ago.

This, in some ways, is worse than the egregious order Brett Kimberlin got against Aaron Walker. Judge Sanabria-Vega has not merely prohibited someone from speaking about a criminal proceeding — she’s ordered that person to delete what he’s previously written, all without a hearing. Moreover, the theories on which Nilan sought an order — and on which Judge Sanbria-Vega apparently granted it — appear plainly unconstitutional. Prior restraint on otherwise protected speech (that is, preventing Valenti from writing about Nilan at all) is only permissible in very rare cases, and orders requiring the removal of defamatory material generally come only after a full trial on the merits. Moreover, Valenti tells me that Nilan has never informed him of what specific facts he has printed are false, and nothing in the press coverage of this order or her statement identifies any such specific facts. Remember my mantra — vagueness in legal threats is the hallmark of censorious thuggery.

As to threats, Nilan’s theory appears to be similar to that of convicted domestic terrorist Brett Kimberlin — that if a blogger strongly criticizes someone, that blogger is legally responsible for reader reactions, and may be prohibited from blogging further if readers react with bad behavior like threats. As the appellate court has found in Kimberlin, that’s just not the law — only incitement that is calculated to cause, and likely to cause, imminent lawless action may be prohibited or punished. That’s a good thing. Otherwise, all the nuts of the internet have a heckler’s veto over Dan Valenti’s speech, and your speech, and mine. If we’re responsible for bad people responding to critical (as opposed to genuinely inciting) speech, then the more contemptible somebody’s behavior, the more dangerous it would be to write about them. Moreover, in the digital age, such an unprincipled legal rule is ripe for fraud — it’s trivially easy for someone seeking a protective order to lie about receiving threats, and nearly as easy to send false-flag threats to create a justification for censorship.

Dan Valenti’s case, like Aaron Walker’s, highlights how protective orders can pose a grave risk to First Amendment rights if judges issue them without applying scrutiny premised on fundamental First Amendment principles. The more that judges approve applications like Brett Kimberlin’s and Meredith Nilan’s, the more that people will be emboldened to abuse the protective order system to silence criticism. If Dan Valenti has written false facts about Meredith Nilan, she can sue for libel, and carry the appropriate burden dictated by the First Amendment. If she’s been subjected to threats, she can seek remedy against the actual culprits. But there’s no excuse for judges to use their coercive power to protect her from commentary because of how unidentified strangers on the internet might react.

I do have a quibble with the first sentence from that block quote. Of course, Aaron’s situation is worse in many ways, because a) he was arrested, b) he was fired, c) he was SWATted, and d) he remains threatened by a violent psychopath. So he’s got that going for him. Which is nice.

But at least he never was ordered to take down any blog posts.

Anyway, that quibble aside, Ken has done a great job laying out the facts and why it all matters.

That’ll allow me to go to bed a lot sooner. Thanks, Ken!

29 Responses to “Protective Order Muzzles Blogger”

  1. I’m just an engineer, no lawyer, and even I seem to know more about Brandenburg than these judges we hear about.

    Russ (13eae2)

  2. Gov. Deval L. Patrick on Thursday tapped a Springfield lawyer and former Hampden prosecutor to be a judge at Holyoke District Court.Patrick nominated Bethzaida Sanabria-Vega of Springfield to the position, which pays $129,694 a year.
    This nominee will bring valuable legal expertise and life experiences with her to the District Court bench,” Patrick said in a statement.

    Aparently not. Good job, Gov.

    Gazzer (e4d194)

  3. That’s because you care. They don’t. They’re local political hacks who have inched their way up the system to their most recent sinecure, and when the system says that someone’s rocking the boat, they do whatever is asked of them. In many places “good government” is an oxymoron.

    Kevin M (bf8ad7)

  4. Just yesterday the Supreme Court reaffirmed the general idea that even verifiably false statements of facts, whose truth or falsity is unquestionably within the personal knowledge of the person saying them, are protected by the First Amendment and any law limiting that must be very carefully drawn and limited, and when there is a political context there has to be even more care. United States v Alvarez (the Stolen Valor Act)

    I got the impression, though, in reading the opinions, that the Justices have no idea what is going on in cases involving Brett Kimberlin and similar cases. Otherwise they would comment on this thing.

    Sammy Finkelman (976d9e)

  5. Which isn’t nice.

    I think that the important point is not which case is “worse”. The important point is that such cases should not be happening at all!

    Sue (6623c5)

  6. I woke up in some strange country where liberty isn’t much of a priority.

    Sarahw (b0e533)

  7. The Streisand Effect strikes again.

    I never would have learned about the original hit-and-run story if not for the attempted censorship.

    aunursa (7014a8)

  8. Ordered to take down the old posts… something tells me the only reason Vaughey didn’t do the same is because he didn’t think of it in his rush (he repeatedly complained about how long Aaron’s case was taking, originally hoping to be done in ten minutes).

    Hopefully Popehat and others who were motivated to help Aaron get his rights back will be successful helping Mr Valenti too. This is ridiculous. How many more cases like this are there? It’s not easy to ask for help when a judge has taken away your freedom of speech.

    Dustin (330eed)

  9. Judge Bethzaida Sanabria-Vega? nominated by Gov. Deval L. Patrick?

    Ahem . . . *cough* [clears throat]


    Icy (11b47c)

  10. “…— only incitement that is calculated to cause, and likely to cause, imminent lawless action may be prohibited or punished.”

    And yet sharpton and jackson walk around free men.

    Jim (bd60ff)

  11. They’re making it up as they go along. Obey or ….

    htom (412a17)

  12. You have the muzzling of bloggers and someone else was sent to jail for 10 years, I believe, for recording the police arresting someone.

    Our freedoms are under attack.

    Harrison (9264e7)

  13. My prediction is that a year from now not a single so-called “conservative” blog will allow comments.

    Jaynie59 (058ebb)

  14. This judge wouldn’t happen to be the corrupt MA Democrat caught on camera stuffing a bribe into her bra?

    PCD (1d8b6d)

  15. Different person.

    Icy (11b47c)

  16. My prediction is that a year from now not a single so-called “conservative” blog will allow comments.
    Comment by Jaynie59 — 6/29/2012 @ 9:38 am

    — Hopefully, you are not wagering any real money on that outcome.

    Icy (11b47c)

  17. I’ll take that bet, Jaynie59. $1000?

    JD (ad6f40)

  18. Readers might be interested in reading about this case, where a crazy woman has been using her blog to attack others.

    It would be nice to have a few links – this woman is slandering attacking a rape victim, pretending to be the victim herself even after a court judgement, and yet wants to be a counselor.

    It’d be really nice to get a few more links so that googling her name lets people know to be wary of her!

    scrubone (4f0412)

  19. I guess you can no longer say that Senator Ted Kennedy got exclusive treatment.

    As far as the accident is concerned.

    I don’t recall any injunctions to anyone writing or speculating about Chappaquidick…

    But that was in 1969. Now we are in the Twentieth-First Century, and lawyers have thought up some new tricks.

    Also, maybe sometimes it even hurts to be a Senator.

    Did the fact that this time the victim didn’t die make this any easier?

    Sammy Finkelman (d22d64)

  20. 18. The New Zealnd judge was very cautious about restricting freedom of speech rights That judge also said that once something was up, it was useless to ask it being taken down because people had made copies. Not so here.

    Acvtually the blogger here was only asked to redact the name I think.

    I think the New Zeland judge’s analysis was definitely wrong on the point of something being delivered. If it printes material, it can sometimes be left on a target;s doorstop. that’s all the New Zealand covered. Not making available for many people even knowing that a certain person might also look at it.

    Sammy Finkelman (d22d64)

  21. I don’t know why, but I’ve been having a hard time getting my comments posted. Anyway, first off, the agitator link isn’t working right.

    But second, wtf is up with these judges? Isn’t a comprehensive reading of the constitution required to pass law school, let alone become a judge? The hell?

    Ghost (6f9de7)

  22. Are we still pretending that there’s a such a thing as the Constitution?

    Chuck Roast (47d9aa)

  23. 2012. The year judges lost their minds.

    Virtual Insanity (2a2afb)

  24. I don’t know why, but I’ve been having a hard time getting my comments posted.

    — It’s a heckuva lot easier to find the “Submit Comment” button when you’re NOT stoned.

    Icy (11b47c)

  25. obviously like your web site but you need to test the spelling on several of your posts. Several of them are rife with spelling problems and I find it very troublesome to tell the reality then again I will definitely come again again.

    tom clancy (ce507d)

  26. Okay, Tom. Is the problem with the comments by other readers? Or is it with basic grammar and capitalization?

    Phillep Harding (1b8b26)

  27. – It’s a heckuva lot easier to find the “Submit Comment” button when you’re NOT stoned.

    You’d think so…

    Ghost (6f9de7)

  28. I guess I don’t have a problem with some political appointee (who got their job by bringing home the bacon/contributions) trying to stifle dissent wherever he/she can. Why don’t I have a problem? I’m in my mid 70’s, I don’t have any grandchildren and if my kids and their contemporaries are dumb enogh to screw up this wondwerful thing my ancestors helped build …. Oh Well, I won’t be around. And I warned tham.

    f1guyus (877ee1)

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