Aaron Walker, Brett Kimberlin, and the Fog of Litigation [see UPDATE at the end]

I’ve been hearing a lot about the latest phase of this controversy, but it’s still hard for me to figure out what is going on. A Maryland court has issued a “peace order” — basically, what most states call a restraining order — against blogger Aaron Walker, ordering him not to “harass” or contact Brett Kimberlin, a convicted bomber who is now a political activist. The order begins with a “finding[]”

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]

This seem like a finding that is both hard to understand and — from what I’ve heard about the story — hard to support, if it means that Walker had threatened Kimberlin with death. [UPDATE: Hans Bader (Open Market), who criticizes the injunction, suggests that it means that Walker’s posts didn’t themselves contain unprotected threats, but prompted some readers to threaten Kimberlin; but that would not be a proper basis for the court’s enjoining or otherwise acting against Walker, at least unless there is evidence that Walker intentionally solicited such threats, or intentionally incited likely imminent threats, and I haven’t heard of such evidence.] Based on this finding, the order bars Walker from injuring or threatening Kimberlin (which would be illegal in any event), contacting or trying to contact Kimberlin, “harass[ing]” Kimberlin, and entering and perhaps approaching very near to Kimberlin’s residence and place of employment. The order may well be factually unfounded, but if it were factually well-founded, and if “harass” were limited to telephone calls, e-mails, and the like to Kimberlin personally, then it would likely be constitutionally permissible. (See generally Rowan v. United States Post Office Department (1970) and lower courts cases that have mostly upheld stop-talking-to-me orders.)

On the other hand, if the order were interpreted as banning Walker’s further speech about Kimberlin — other than constitutionally unprotected “true threats” of violence — then it would be unconstitutional. And The Blaze and others have reported that Walker was arrested following the hearing at which the order was issued, which led to speculation that he was arrested for what he blogged. [UPDATE: Indeed, The Other McCain reports that “One person who attended the hearing in Montgomery County District Court said that Kimberlin asserted that Walker’s continued blogging represented a violation of a ‘peace order.'”] Nonetheless, an UPDATE at the Blaze post states,

The Blaze spoke to a clerk at the District Court of Maryland for Montgomery County who confirmed that Aaron Walker was in fact arrested following his hearing with Brett Kimberlin. He was arrested on second degree assault charges that were filed by Kimberlin when Walker, following a separate court hearing, took and held at bay Kimberlin’s iPad.

So it may be that the arrest was for grabbing Kimberlin’s property out of his hands (see the transcript of an earlier hearing for more on this [UPDATE: and also this statement by Kimberlin]) and not for blogging after all. That’s what little I know about the situation, but I thought I’d pass it along for whatever it’s worth. If readers can point to credible and detailed accounts that shed more light on the matter, and especially indicate what facts the judge specifically found that justified (1) the restraining order and (2) the arrest, I’d love to see them.

UPDATE: 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.”

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?”

“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.”

This account of Walker’s having been arrested for violating the earlier order seems consistent with this docket entry for the peace orders and this one for the arrest. As I noted above, writing about someone — even with harsh criticism — remains constitutionally protected even if some listeners react by sending the target death threats. If the order is indeed understood by the judge as blocking Walker from speaking about Kimberlin, I hope that Walker promptly seeks to have the order overturned (using an emergency mandamus petition or some Maryland equivalent of that); and I expect that the appellate court will indeed overturn the order, much as the U.S. District Court (also in Maryland, as it happens) threw out the indictment in United States v. Cassidy, where the speaker’s behavior seems to have been much less justified than in this case.

But again all this depends on exactly what the basis of the arrest decision was, and (relatedly) how the judge is interpreting the “peace order.” If people have more details on this, I’d love to hear them.

Thanks to InstaPundit for the pointer. FURTHER UPDATE: Patterico’s take on this is similar to David Hogberg’s.

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