Maryland Court Dissolves Injunction Against Blogger; Massachusetts Judge Orders Blogger to Take Down Blog Posts

by Hans Bader on July 6, 2012 · 21 comments

in Legal, Personal Liberty

A Maryland judge has vacated an injunction obtained by ex-terrorist and convicted felon Brett Kimberlin against a conservative blogger, Aaron Walker, who repeatedly criticized him. On July 5, “Judge Rupp ruled that nothing Mr. Walker had done, said, or written fell under the Maryland statutes relating to harassment, stalking, or Peace Orders.” The injunction in Kimberlin v. Walker had originally been issued by a different judge, C.J. Vaughey, who apparently understood neither the Internet nor the First Amendment. I earlier explained why the injunction prohibiting Walker from blogging violated the First Amendment. (Walker was also briefly jailed over his constitutionally protected blog posts and tweets. The prosecutor later dropped the criminal charges filed against Walker over his blog posts and tweets.)

Shortly before the unconstitutional injunction against blogging was dissolved in Maryland, a Massachusetts judge issued an equally unconstitutional order against a blogger in the Berkshires. Massachusetts District Court Judge Bethzaida Sanabria-Vega issued a “harassment prevention order” against a blogger, Dan Valenti, whose web site provided critical coverage of the actions of Meredith Nilan, the daughter of a senior court official, who struck a pedestrian with her car (leaving him with a broken neck), and then drove off (she was charged with leaving the scene of a personal injury accident and negligent operation of a motor vehicle, but in a deal with prosecutors, she will avoid any jail time in the case). The judge ordered Valenti to stop blogging about Nilan, demanding that he take down his prior blog posts about her, and remove “any and all references” to Nilan on “any and all” web sites.”

The judge’s order in Nilan v. Valenti is a patent, flagrant violation of the First Amendment, as two lawyers, a law professor, and I noted in a July 4 story in the Berkshire Eagle that quoted us.

Restricting blog posts or tweets under the theory it is “harassment” violates the First Amendment, under federal court rulings like United States v. Cassidy, 814 F.Supp.2d 574 (D.Md. 2011), which ruled that repeated tweets denouncing someone were protected. This is even more true in the Nilan case, which is newsworthy and involves a matter of public concern.

Nilan apparently argued that Valenti’s blog posts resulted in angry members of the public (who may have perceived Nilan as receiving preferential treatment due to her being the daughter of a court official) making threats against her. But even if this is true, that would not change the fact that his blog posts were protected by the First Amendment. Speech is protected by the Supreme Court’s decisions in Brandenburg v. Ohio, 395 U.S. 444 (1969) and Hess v. Indiana, 414 U.S. 105 (1973), even if some outraged readers make threats as a result, unless the speech deliberately incites such threats. None of Valenti’s blog posts contained any such incitement. As Los Angeles lawyer Ken White has noted, the judge’s order violates well-established First Amendment principles, under which “only incitement that is calculated to cause, and likely to cause, imminent lawless action may be prohibited or punished.”

The judge’s order violates Massachusetts law, not just the First Amendment. Even if Valenti’s blog posts contained errors, as Nilan claimed, that is not a basis for a harassment prevention order, whose statutory purpose is to prevent harassment, not erroneous commentary or even defamation. The judge’s order conflicts with rulings by Massachusetts appellate courts, like O’Brien v. Borowski, 461 Mass. 415 (2012), which indicate that anti-harassment orders can only be issued against speech if it fits within the “fighting words” and “true threats” exceptions to First Amendment protection — which is obviously not the case here, since Valenti’s blog posts did not make threats or contain fighting words. As the Massachusetts Supreme Judicial Court noted in the O’Brien case, “Because the definition of ‘civil harassment’ is substantially broader than the definition of ‘fighting words,’ we discern no legislative intent to confine the meaning of harassment to fighting words, but we do discern an intent to confine the meaning of harassment to either fighting words or ‘true threats.’”

Even if Massachusetts law permitted the judge to enjoin defamation, rather than just harassment, the First Amendment rule against prior restraints would bar her from doing so. The rule against prior restraints bars judges from issuing injunctions against even defamatory  speech (assuming for the sake of argument that Valenti’s blog posts were false). The proper remedy for defamation is a suit for damages, not an injunction restricting speech. The Supreme Court made that clear in its 1931 ruling in Near v. Minnesota. As lawyer Ken White observed, “the theories on which Nilan sought” the harassment order, and on which the judge granted it, are “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,” he wrote.

The judge’s order was a very obvious violation of the First Amendment, as legal commentators and First Amendment experts pointed out. As the Berkshire Eagle noted,

University of Tennessee law professor Glenn Reynolds, writing on the blog, called the judge’s order unconstitutional and bemoaned what he called the “absolute immunity” of judges. Radley Balko, a senior writer for Huffington Post, in a recent Twitter post called the judge’s order “outrageous.” Robert J. Ambrogi, the executive director of the Massachusetts Newspaper Publishers Association who is a lawyer and blogger, also weighed in. He said if publishing material that portrays people in a bad light qualified as harassment “every newspaper in the country would be shut down tomorrow.”

Blogs, like newspapers, qualify as the press, and thus logically are entitled to freedom of the press, as well as freedom of speech. For example, the California Court of Appeal held that the ”O’Grady’s PowerPage” blog was protected by the media shield provision covering any ”publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication. See O’Grady v. Superior Court, 139 Cal.App.4th 1423  (Cal. App. 6th Dist. 2006). See also EPIC v. DOD, 241 F.Supp.2d 5 (D.D.C. 2003) , in which a federal court ruled that the publisher of a bi-weekly electronic newsletter qualified as the media, entitling it to a waiver of fees on its freedom-of-information request.

The First Amendment prohibits court injunctions and damage awards over constitutionally-protected speech, even in cases brought by private parties, as the Supreme Court made clear in Snyder v. Phelps (2011) and New York Times v. Sullivan (1964).

cubanbob July 6, 2012 at 12:35 pm

Can anyone in the general public get Nilan’s deal? If not, the blogger is right. Besides if even a case can be made for Nilan under MA law, since when does a state court have the power to abrogate someone’s rights under the US Constitution? The judge should be removed from office, stripped of his pension and bar license and be compelled to pay the defendant’s legal bills.

Duke July 6, 2012 at 12:50 pm

I’m guessing Ms. Nilan and Judge Sanabria-Vega are rapidly becoming familiar with the Streisand principle. If Ms. Nilan wanted to keep her auto incident out of the public’s eye there’s few worse choices she could have made than to seek an injunction against a blogger. Having it granted has made her and the judge national. HA

EBL July 6, 2012 at 1:15 pm

I am posting on it. Thanks for doing so. This is an important story because an attack like this on free speech is an attack on us all.

In addition, the public has a right to know about criminal cases like this one.

SteveAR July 6, 2012 at 1:18 pm

“Massachusetts District Court Judge Bethzaida Sanabria-Vega issued a ‘harassment prevention order’…”

She was nominated by Deval Patrick (link: ). Why am I not surprised?

I’m glad Walker was able to get that ridiculous injunction against him lifted.

Sean July 6, 2012 at 1:23 pm

Well I guess the perception of preferential treatment is validated as true…

vic July 6, 2012 at 2:13 pm

I suggest public flogging of out of control judges and DA’s

if that doesnt work- ? castration

richard40 July 6, 2012 at 6:39 pm

Better watch it. Your comment might be construed as advocating violence, and thus in MA you are guilty of criminal harassment.

Ankylus July 6, 2012 at 3:41 pm

That’s why public officials immunity is qualified. If they knowingly violate someone’s rights, even under color of law, they are personally liable. I think also somebody should go to the FBI or the DOJ for suppression of civil rights. When public officials violate their public trust like that, the public needs to let them know it.

Robin July 6, 2012 at 4:39 pm

So just ignore the judge.

Hans Bader July 6, 2012 at 5:43 pm

Sadly, you can’t ignore the judge even when a judge does something unconstitutional. In federal court (and in most state courts), you have to follow even an unconstitutional injunction until it is dissolved, under the U.S. Supreme Court’s decision in Walker v. Birmingham, available at this link:

Some states, like California, apparently don’t follow this rule. But most do.

Judges and their law clerks also have absolute civil immunity from damages for their constitutional violations. (When I was a law clerk to a federal judge, I really appreciated that immunity, given the crackpot litigants who would try to sue my boss, the late federal district judge Larry Lydick.)

Horatio July 7, 2012 at 9:01 am

Of course you can ignore it. You just have to be prepared for the consequences. As far as the civil immunity is concerned, that is perhaps the most egregious abomination associated with the legal system – an immunity created by the judiciary for the judiciary – along the lines of Congress exempting themselves from the laws that apply to the rest of us.

RivahMitch July 10, 2012 at 5:31 pm

That’s a statement of fact but hardly relevant. After all, cannot one can ignore the laws against anything (including murder) if one is “prepared for the consequences”?

Gregory Koster July 7, 2012 at 12:08 am

Dear Mr. Bader: I don’t think you’ve thought this through. No matter what the “law” says, any judge can just toss it to one side and whaddaya gonna do about it, sucker? Consequences for Bethzaida Sanabria-Vega after her ruling? None that I can see. At the very least, an appellate reversal of this order should contain a rebuke to Bethzaida Sanabria-Vega. The optics on this case are bad. Is this likely to happen? No. So even when her ruling is abolished, she’s still suppressed speech, and made people think and think again, before tangling with her. No matter what judges say, that’s a road to corruption. After all, no one is drafted to be a judge. Can’t stand the criticism or worse? Get out. I suppose judges could argue that this standard would lead to callous, indifferent judges. What is Bethzaida Sanabria-Vega, the epitome of wisdom?

Sincerely yours,
Gregory Koster

Hans Bader July 9, 2012 at 2:43 pm

I am puzzled by your comment, since I was very critical of the judge’s unconstitutional ruling, and merely noted that in the past, once upon a time, I appreciate the benefits of judicial immunity from monetary damages, when it benefited me. (I didn’t say I liked judicial immunity now, only that there are pros and cons to it; the costs of judicial immunity may greatly outweigh its benefits, as law professor Glenn Reynolds has said).

I not only thought this through carefully, and wrote a lengthy blog post explaining how the judge’s order flagrantly violates the First Amendment, but I spent hours of my time writing the above item and talking to a reporter. None of which will make me a penny richer. I did it only because it was the right thing to do. As a famous inscription noted, “those alone may be servants of the law who labor with learning, courage, and devotion to preserve liberty and promote justice.”

What did you do to remedy this First Amendment violation? (I at least tried to do something). If you believe that you have “thought this through” more carefully than I have, maybe you could demonstrate that, by writing the issue up as a blog post, or as a letter to the editor of the Berkshire Eagle or Bennington Banner, which covered this case.

RivahMitch July 10, 2012 at 3:55 pm

Some things call for extralegal remedies.

PersonFromPorlock July 7, 2012 at 7:10 am

(When I was a law clerk to a federal judge, I really appreciated that immunity, given the crackpot litigants who would try to sue my boss, the late federal district judge Larry Lydick.)

However, mere mortals like brain surgeons and business executives have to take what the crackpots dish out. If you want to see real tort reform, let judges be sued.

Gliverson July 20, 2012 at 11:31 am

Well, in a way of speaking, we won this one for the 1st Amendment, but it was still a HUGE loss for all of us in that this convicted murderer and obvious twisted mind cost this innocnet man a LOT of pain and suffering for nothing.
Killer=1 The Rights of a good man = O For there was no judgement against this self acclaimed atourney for the extremist Left that cost him even a small amount of money! It is NOT enough that it was declared to be frivolous. We all lose when they walk away…. that is how the ACLU opperates on a daily basis.

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