From left-leaning blogger Popehat, some wise words:
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1. This is about everybody’s rights, not just the rights and interests of “conservatives” or any other political group. We need to transcend partisanship over this — conservatives need to transcend it because making this partisan will marginalize the situation, and liberals and others need to transcend it because this could happen to then.
2. In that vein: don’t like the figures involved? Get the [f**k] over it, or don’t pretend to be serious about free expression any more. This could happen to you. It could happen in a context utterly unrelated to politics as you understand them. Brett Kimberlin is a remorseless and amoral psycho whose crazy is currently being expressed (and joined by others) along ideological lines, but he could just as easily be doing the same things under any other flag. Crazy stalking can happen to anyone for any reason. It could happen to you because you write about politics, or law, or movies, or comic books, or a zoning dispute in your neighborhood. So if you write this off because of whose ox is being gored this time, and who seems to care, you’re a fool. People who have read this blog for a while know me well enough to understand that I hold little in common with McCain, or Malkin, or even Patterico, all of whom have written about this. That’s irrelevant.
3. Aaron’s arrest illustrates how well lawfare can work and how dangerous unprincipled rubber-stamping of protective orders can be. Imagine it: you write something about a dispute. Someone involved in that dispute goes to court in another state and accuses you of harassment and gets a “peace order” against you. That person claims that your writing is threatening, that it has led to threats, or that it constitutes persistent harassment. If you are very lucky, the judge denies the application because it is too vague, or because it seems to complain about protected speech — but if you are unlucky, the judge rubber-stamps it without even demanding to see the allegedly offending posts. (Note that here Kimberlin characterized Aaron’s posts, rather than submitting them all.) Now you’ve got a vague order against you forbidding you from contacting or harassing the “victim.” But what does that mean? Surely, you tell yourself, under a century of America’s First Amendment heritage, it doesn’t mean I can’t write a blog post discussing the dispute and explaining why the peace order application is made by a convicted perjurer and notorious domestic terrorist. Well — maybe. Or maybe not. Again, it depends upon your luck with the judge. Here, based at least on initial reports, it appears that the court construed Aaron’s blog as a violation of the peace order. I’ve read all of Aaron’s posts on the subject, and none satisfy any principled or constitutional definition of unlawful harassment. None of them incited lawless behavior. If, as reports indicate, the judge jailed Aaron based on those posts, the judge did so lawlessly because Aaron violated a vague and ambiguous prior restraint on protected speech.
4. Kimberlin’s success in this regard will embolden other practitioners of lawfare, and allow them to chill and deter speech they don’t like. Consider Aaron’s dilemma upon being informed of the new and overtly bogus peace order: was he to cease speaking on an issue of public interest regarding a public figure, or was he to spend money on a lawyer to try to get the order lifted? Now imagine lawfare practitioners demanding such protective orders in multiple jurisdictions far from the writer. Imagine the costs and legal risks, and ask yourself how many people will be willing to incur them.
…7. I’ve heard people suggest that citizens should write or call the judge. That might be an exercise of First Amendment rights. It’s also useless and, practically speaking, likely to make life more difficult for Aaron. If you want to write, and you want to help rather than just vent your spleen, write a blog post, or a letter to the editor, or a letter to local or federal authorities. If you write angry screeds to the judge you aren’t helping.
It’s a very busy week, but I will try to write more as the situation develops. Today is a setback for freedom of expression and a victory for sociopathy and the abuse of the legal system for crass political ends. But it is not over. Not by far. It’s time to pull in some First Amendment heavy hitters to assist. It’s time to get more attention to the situation, and inflict the Streisand Effect even more than Blog About Brett Kimberlin Day already did. It’s time to fight.
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