by Allergic to Bull Aaron Walker
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Sunday, October 27, 2013
This is the latest post in what I half-jokingly call The Kimberlin Saga®. If you are new to the story, that’s okay! Not everyone reads my blog. The short version is that Kimberlin has been harassing me for over a year, his worst conduct being when he attempted to frame me for a crime. I recognize that this might sound like an incredible claim, but I provide video and documentary evidence of that fact; in other words, you don’t have to believe my word. You only have to believe your eyes. So, if you are new to the story, go to this page and you’ll be able to catch up on what has been happening.
Update (I): See at the end for a further distinction between this case and other hypotheticals.
Update (II): Popehat links, saying that I have made the point about bipartisan opposition to Shuler’s arrest “more eloquently than I could.” Um, this is eloquent? Are we talking about the same post?
Joking aside, do read Popehat’s post.
You know, I admit when I started working on this, I expected to engage in a little bit of schadenfreude, and nothing else. Over a year ago, Roger Shuler wrote a piece about me, praising the anti-free-speech thuggery of Brett Kimberlin It was written on June 8, 2012, shortly after I had been prohibited from writing about Brett Kimberlin to a general audience, and had been arrested on false charges that I had threatened Kimberlin (which were quickly dropped). Here’s a sample of what Shuler wrote about the whole thing:
One of my ongoing concerns with Democrats is that too many of them are timid, distracted, disorganized, and generally wussy.
Liberal activist Brett Kimberlin is none of those things, and that apparently is why the radical right has launched an extraordinary online jihad against him. In a delicious example of "turnabout is fair play," Kimberlin has used right wingers' tactics against them--causing the recent arrest of one thug, the outing of another as a criminal, and the transmission of a notice to others that they face possible legal action...
Key bloggers have written anonymously, but Kimberlin was able to determine their identities and bring legal action against them. That led to the eventual arrest of a blogger/lawyer who posts as Aaron Worthing (real name: Aaron Walker). And that sparked the right-wing blogapalooza against Kimberlin.
He seemed to back off his loving praise of Kimberlin in the comments, in a ham-handed sort of way:
As I state in the post, Walker and anyone else should be free to write accurately about Kimberlin's past. The MD judge apparently agrees with Kimberlin that Walker's actions have gone beyond the bounds of free-speech protection. Is the judge right about that? I don't know enough about the relevant facts and law to say. But I'm not shy about calling out judges who rule contrary to law, and I will follow the case from a distance.
Gee, did you miss the part where I cited controlling Supreme Court precedent on the subject, Brandenburg v. Ohio? You know, the case where the Supreme Court said that
the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
Did you miss the part where I pointed out to the judge that my conduct did not meet that test, that indeed I have never advocated violence against Kimberlin (and even taken steps to protect him from mob violence), but the judge said, “Forget Brandenburg”? Is it really so difficult to figure out that a judge saying he was disregarding controlling Supreme Court precedent by name might have been wrong?
No, Mr. Shuler, you were plainly playing cheerleader to an anti-freedom-of-expression thug. The most charitable interpretation is that you were such a partisan hack on this that you refused to see how you were cheerleading a clear violation of my First Amendment rights, that you were engaged in willful ignorance and cheering on a precedent that might be used against you in the future.
So part of me feels it is just deserts when I learned that recently you were ordered not to blog about something, that you were found to be in contempt of that order, that you were arrested as a result and when you allegedly resisted arrest, you were beaten to some degree because of it. I admit that part of me chuckled, reading back over your old post praising what Kimberlin had done to me.
But even Brett Kimberlin’s bootlickers have rights. And if the documents in Mr. Shuler’s Scribd account is correct, this order was unlawful.
Let me back up for a moment here. Mr. Shuler allegedly wrote that Alabama Republican mover and shaker Robert Riley and Liberty Duke had an extramarital affair together, that they conceived a child together and that Riley then paid for Duke to have an abortion. Now Riley and Duke are suing him for defamation and given Shuler’s terrible reporting on other subjects, I suspect they have a good case. But the correct remedy for defamation is monetary damages: money. Permanent injunctions against people saying “you may not say X” shouldn’t be happening. (Update: At Ali Akbar's question, the injunction in question was a preliminary one.)
But that is apparently what did happen here. Reading over the order, this is what happened. Riley and Duke filed for a preliminary injunction. Shuler and his wife (sued as co-administrator of the blog) allegedly dodged service, until finally they were served. Oh and they threw the service out the window, allegedly. Then, once served, they didn’t appear at the hearing. Which, yes, is a dumb mistake but a judge shouldn’t need a defendant present to do the right thing.
Anyway, the judge correctly says that in order to get the injunction the petitioners have to show 1) without it they will suffer immediate and irreparable injury, 2) that they have no adequate remedy at law, 3) the petitioners are likely to succeed on the merits and 4) the hardship imposed on the respondents will not unreasonably outweigh the benefit to the plaintiff.
I can’t say anything about point number 3—the judge heard the testimony and I didn’t. But as for irreparable harm, the judge makes two arguments. The first is because Riley and Duke are an attorney and lobbyist, respectively, that they live and die by their reputations and therefore they suffer irreparable harm. So attorneys and lobbyists automatically get gag orders but the rest of the plebs have to have their reputations trashed and have to get them back the ordinary way? Sorry, that is not credible.
The other argument is that this might expose them to violence because, I kid you not:
Some people in Alabama have very strong opinions about the ethics of abortion, and false statements about the Petitioners and abortion could subject Petitioners to ire, a physical altercation, or serious bodily harm.
Does that sound familiar? It is almost the exact same theory that Brett floated: that reporting negative claims about him was equivalent to inciting violence against him, even that incitement doesn’t meet the Brandenburg standard. So, Mr. Shuler you need to tell the judge not to forget Brandenburg. Indeed, Roger, if you are reading this, let me gently suggest you seek some kind of immediate relief, and borrow heavily from my attorney Mr. Bours’ motion for a partial stay or modification of the peace order against me which you can read here. In particular I would like to point out what the Supreme Court said in Near v. Minnesota, where the Supreme Court wrote that
There is nothing new in the fact that charges of reprehensible conduct may create resentment and the disposition to resort to violent means of redress, but this well-understood tendency did not alter the determination to protect the press against censorship and restraint upon publication.
Indeed, in Near, the newspaper in question’s accusation of reprehensible conduct were found by the Supreme Court to be defamatory as well, and yet this didn’t prevent the Supreme Court from declaring that the injunction preventing publication was unconstitutional. The correct remedy for defamation, the Supreme Court found, was monetary damages, not an injunction.
Anyway, based on that faulty reasoning, the judge forbade Mr. and Mrs. Shuler from defaming Riley or Duke, particularly by repeating that story about the abortion and affair, and he was ordered to take down old posts, YouTube videos, etc. containing those allegations. And this was in light of a previous order sealing the proceedings. Riley and Duke really don’t want this to be seen in the light of day.
The irony of all of this is that I suspect that Riley and Duke are factually right. I have seen Shuler’s dishonesty first hand, not only cheering Brett Kimberlin as he did the same thing to me, but also I also learned in conjunction with learning about this story that he apparently defamed my friend Ali Akbar. I won’t repeat what he said in order to give it oxygen, but Ali is already talking about suing him and I suspect he will get a sizeable judgment in monetary damages. And anyone who has been falsely accused might feel the temptation to do whatever is possible just to shut the other person up. And so the irony is that Riley and Duke might be the recipient of a full on Streisand Effect...
...calling attention to claims by Shuler that ultimately prove to be false. I mean after all, the court was required to find that Riley and Duke were likely to succeed at trial, which means that the judge was supposed to find that the charges Shuler made were probably untrue. But be that as it may, if they feel a Streisand Effect, it is their own stupid fault for going too far to suppress comments made against them, even if those comments were defamatory as I suspect they are.
Over a year ago, Shuler rationalized Brett Kimberlin’s anti-free-speech thuggery against me. I admit it is difficult for me to feel sympathy as he is subjected to almost exactly what he cheered on (though I never resisted arrest even though I knew my arrest was manifestly bogus). Indeed, I don’t feel sympathy at all: what I have written today is the product of almost “Spock-like” emotionless logic. There are more than a few people who would call his “karma.” But free speech is for everyone, even anti-free-speech, terrorist bootlickers like Shuler. I grit my teeth as I write this, but I will even try to get this information to him. Perhaps he will be big enough to admit he owes me an apology, for suggesting that I deserved this kind of treatment. One can hope. But really, in a situation like this you have to do the right thing for its own sake, not because you expect a person who previously was a jerk toward you to mend his ways and apologize.
Because if nothing else, it is enlightened self-interest. After all, the precedent set today in Alabama might tomorrow be used against us anywhere. And so the erosion of the protection of freedom of speech must be opposed in all circumstances, even when those circumstances requires you to protect the rights of one of Brett Kimberlin’s suck ups. Because as of this moment, if that copy of the order is true and correct, there is almost no logical difference between the unlawful injunction against Shuler and Kimberlin’s unlawful peace order against me. And ultimately we have to be on the side of truth and Freedom of Expression, not just on the other side of our opponents.
Update (I): One discussion I have had, and I see going on in the academic literature is the difference between enjoining Shuler from repeating specific claims that are found to be defamatory and a general prior restraint on speech. The order has both. First it says
Respondents are ordered to cease and desist immediately from publishing (including oral publication to any third party), posting online, or allowing to be posted online any defamatory statement about Petitioners...
That takes the ordinary prohibition against defamation into a matter of criminal law.
Then it goes on to say that this injunction very specifically covers specific allegations he has allegedly made in the past, continuing literally the same sentence from the last quoted passage:
...including, but not limited to, any statement that Petitioners had an extramarital affair, that Petitioner Riley fathered a child out of wedlock with Petitioner Duke or anyone else, that Ms. Duke had an abortion, that Petitioner Riley paid or was in any way involved in paying to Ms. Duke or anyone else monetary funds from any related to said alleged extramarital affair or abortion, that any such funds were paid by Petittioner Riley or anyone acting on his behalf in exchange for Ms. Duke having an abortion or were in any way related to an affair or an abortion and/or as part of an effort to conceal an abortion, and that Petitioner Duke received such funds.
And then it goes on to say that they have to remove it from their websites, etc.
I think there is an important legal distinction between a general prior restraint, either forbidding speech entirely, or just defamatory speech, and forbidding a person from saying a specific defamatory thing or even removing a specific defamatory statement from their site. The difference is in the chilling effect. In the first case, there is some question of what you could or could not say while in the second it is much more clear. I don’t think an injunction should be allowed in either case, except maybe in extreme cases where you are dealing with a judgment-proof defendant. But a general “don’t defame this person” injunction should not be issued at all, in my opinion. And I suspect the Supreme Court will not allow that ultimately, though they might allow the second scenario.
Shuler is, as best as I can tell, a cheerleader for Brett Kimberlin’s shutupery, so there is a certain amount of karma involved in his arrest. But I still believe it was incorrect to arrest him and overall I think the court has a pinched understanding of the First Amendment.
Exit question: Will Bill Schmalfeldt, who is denouncing what happened to Shuler, be principled enough to admit that Brett’s second peace order was a wrongful attempt to suppress my protected speech? Yeah, I’m not holding my breath, either.
My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years. I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence. If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the donation link on the right. And thank you.
Follow me at Twitter @aaronworthing, mostly for snark and site updates. And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here. And you can read a little more about my novel, here.
I have accused some people, particularly Brett Kimberlin, of reprehensible conduct. In some cases, the conduct is even criminal. In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system. I do not want to see vigilante violence against any person or any threat of such violence. This kind of conduct is not only morally wrong, but it is counter-productive.
In the particular case of Brett Kimberlin, I do not want you to even contact him. Do not call him. Do not write him a letter. Do not write him an email. Do not text-message him. Do not engage in any kind of directed communication. I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.
And for that matter, don’t go on his property. Don’t sneak around and try to photograph him. Frankly try not to even be within his field of vision. Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).
And do not contact his organizations, either. And most of all, leave his family alone.
The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report. And even then if he tells you to stop contacting him, obey that request. That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.
And let me say something else. In my heart of hearts, I don’t believe that any person supporting me has done any of the above. But if any of you have, stop it, and if you haven’t don’t start.