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.”
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 Instapundit.com, 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).