The Story I Couldn’t Tell, Part V: The May 29 Hearing and Letting Freedom Ring

Update: I made an embarrassing typo when I said that the National Bloggers' Club had given me "$5,0000" so far.  Of course that is one zero too many and it has been fixed.  Thanks to Dustin for pointing out the error.

This is the fifth and final post in a series that I introduced, here.

In the first part of this story, I provided an introduction and then talked a little about the law of peace orders in Maryland.  In the second part, I talked about the petition Brett Kimberlin filed for a peace order.  In the third part, for the first time and exclusive to this site, you got to find out what he said and did at the May 22, 2012 peace order hearing.  In the fourth part, I talked about how he filed false charges that I violated the peace order, and obtained a warrant for my arrest.  And that finally brings us to the hearing of May 29, my arrest and Independence Day.

Of course I didn’t know that Kimberlin had filed these criminal charges and had obtained a warrant for my arrest.  I did sense that something was strange as Kimberlin pointed me out to a woman who was there (I believe she was a victim’s advocate, who apparently never thought to check her “victim’s” story or get the other side of the matter), but I spent most of the day concentrating on my presentation.

I have gotten some criticism for representing myself.  I won’t say I was the most stellar advocate.  Not all lawyers are trial lawyers, and I know I am not one of the great ones yet.  I hope to change that with experience.  But at the same time, I think I did an adequate job.  I don’t believe I lost because of a poor presentation.  I believe I lost because the judge disregarded the law, and it is hard to see how a more experienced lawyer could have forced a judge to follow Supreme Court precedent.  But maybe that is just my ego talking; I report, you decide.

But there was a more basic reason why I didn’t hire a lawyer.  You shouldn’t have to hire a lawyer, damn it—doubly so when you are unemployed.  You shouldn’t have to pay money in order to maintain your freedom.  That’s not freedom!  Judges in the district courts should have been sufficiently solicitous of the First Amendment that they should not have allowed a man like Kimberlin to penalize a person for protected speech.

But I don’t want to get into another rant about the short-comings of the district court system and how it can be improved.  If you are curious about how I would improve things, there, read this post.

So I sat in the courtoom and waited for a long time.  This was the end of the Memorial Day weekend.  That is a special occasion for the wife and I because that is when we celebrate the anniversary of our engagement.  I mentioned this before, here.  We spent memorial day weekend in 2003 in New York City, took in a few shows and at the end of the weekend, I asked her to marry me.  In a lapse of reason, she said yes.  And that was nine years ago, that weekend.

But the upshot that day was that with the holiday they had an overload of new petitions to hear and so they needed some help.  And it turned out that retired Judge Cornelius Vaughey would come back to court now and then to help when they had an overflow of cases, so they decided to send us to his courtroom.  Kimberlin and I chose to take separate elevators and I got to speak for a moment to some of the nice people who had shown up to support me and witness events.  I won’t share any person details about them, because the next thing you know, Kimberlin and his allies will come after them, too.  But they seemed like nice people.

I remember at some point seeing Deputy James Johnson there.  You might remember that he was there for the January 9 incident, and on February 8, I called him to testify in my case.  So I asked him if Kimberlin had subpoenaed him to be there that day.  I don’t know if he didn’t hear the question right or decided to fib, but he said, “yes.”  It turned out the reason why he was there was to arrest me.

And I don’t say that with malice toward Johnson.  Surely he was trained not to tell a person you planned to arrest them an hour ahead of time, because that probably increases the chance of the person trying to make a run for it or something.  So if he was lying, it was probably justified by training and common sense.

Anyway, Judge Vaughey was finishing up with a traffic case of some kind and then our case was called.  I think this time I will give you the transcript first and then provide some “color commentary” afterward.  I will write my commentary as though you haven’t read any of it, but I think it will enrich the experience if you read the transcript.

Kimberlin v. Walker Hearing 5.29.12 (OCR) (Redacted)

I will admit it is somewhat hard, emotionally, to read through that whole thing.  But some things do leap out at me even a month later.

The first was the sheer carelessness of the judge.  You could sense right at the beginning that he didn’t want to take the time necessary to do this right.  For instance on page 16, he says “I intend to be finished here in 10 minutes.”  And just before he ruled on page 57, he complains that he had been at it for “almost an hour.”  You see repeatedly where I ask the court to demand an examination of what I actually wrote, and the court never does that.  Kimberlin waved a bunch of papers around, but the judge never read them.  And then Vaughey kept cutting testimony short.  I wasn’t allowed to finish my cross examination of Kimberlin and I wasn’t even allowed to finish my testimony.  He indeed never even read my motion to dismiss.

And that is okay if he then decided to dismiss the peace order.  A judge is allowed to refuse to put into place a prior restraint upon a person’s Freedom of Expression with less than a perfect hearing.  But on the other hand, if the judge is going to restrain my freedom of expression, the law demands more.  As the Supreme Court said in Carroll v. President and Comm’rs of Princess Anne (1968):

The Court has emphasized that “[a] system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books v.Sullivan, 372 U. S. 58, 70 (1963); Freedman v. Maryland, 380 U. S. 51, 57 (1965). And even where this presumption might otherwise be overcome, the Court has insisted upon careful procedural provisions, designed to assure the fullest presentation and consideration of the matter which the circumstances permit. As the Court said in Freedman v. Maryland, supra, at 58, a noncriminal process of prior restraints upon expression “avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.”

Judge Vaughey didn’t allow for the fullest presentation and consideration of the matter, but that is what he had to do before he could validly fasten upon me a prior restraint on my freedom of expression.  And what he put on me was breathtaking in its overbreadth, declaring that

Respondent [Walker] shall not contact [Kimberlin] in person, by telephone, in writing, or any other means. And “any other means” is putting it on a blog, a Tweet, a megaphone, a smoke signals—what else is out there—sonar, radar, laser.  Nothing.

The judge thought he was being cute with that smoke signals routine, but what he was actually doing is rendering his order unconstitutionally vague.  When you fasten upon a person a limitation on their speech, it has to be narrowly tailored.  But his joking around rendered it vague.  I was left wondering if it was a violation of the order if I talked to a reporter with knowledge that my words might appear on the internet.  Was I allowed to talk about what happened in the case that day?  And later, I wondered if I could talk about my arrest.  The fact that I didn’t know the answer to those questions—the fact the answer could not be known—was another reason why it was invalid under the First Amendment.

And I will admit that in a weird way, this was useful.  His wild and silly commentary about smoke signals and so on, laid bare the lawlessness of Judge Vaughey’s conduct in a way that wouldn’t have been as obvious if he simply said, “And ‘any other means’ includes blogging about or tweeting about Brett Kimberlin.”  If he had been less cute and more businesslike, the injustice of the situation would have been less manifestly obvious when we sought a stay of his ruling.  I mean there is a reason why we quoted that language in the first paragraph of my motion for a stay.

And for the same reason it was oddly useful for the judge to say the now-infamous line about Brandenburg v. Ohio.  If you are one of the few people following the story who hasn’t heard it, it came in this exchange with the judge:

Q [Judge Vaughey] But you, you are starting a conflagration, for lack of a better word, and you’re just letting the thing go recklessly no matter where it goes.

A [Walker] I--

Q I mean, you get some—and I’m going to use word—freak somewhere up Oklahoma got nothing better to do with his time, so he does the nastiest things in the world he can do to this poor gentleman [Kimberlin]. What right has that guy got to do it?

A He has no right to do that, but Your Honor.

Q Because you incited him.

A But, your honor, I did not incite him within the Brandenburg standard.

Q Forget Brandenburg. Let’s go by Vaughey right now, and common sense out in the world

I won’t force you to look up what standard the judge was “forgetting”:

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.

That is the legal standard and my conduct didn’t come anywhere close to meeting it.  I didn’t advocate the use of force or any unlawful conduct toward Kimberlin at all, not to mention that I didn’t intend to cause imminent lawless action under such circumstances where such action was likely to occur.  Indeed I actually took steps to prevent vigilantism against Mr. Kimberlin as indicated in this testimony:

I have told the world about what this man did to me, but it’s all I’ve done. Now I know, your honor... that when you... say to the world, “Someone has done something evil,” that you do obviously have a risk of things like violence and things like that. It’s inescapable. But I have never incited violence. I have always told people every time they have said anything violent in my presence, I said, “I don’t endorse violence even as a joke.”...

On top of that, I put numerous, numerous, numerous primary documents on my website. Many of those documents originally had his home address, had his phone number, had his email address, etcetera, etcetera. I carefully redacted every single instance of that. I didn’t put any current photos of Mr. Kimberlin on the website[.]

I don’t want and have never wanted for anyone to commit an act of vigilante violence against him or to threaten to do the same.  All I had done was tell the truth about the man, and sought justice through the courts.

Another thing I found outrageous was this exchange:

A [Walker] But it is my right, under the First Amendment, to talk about what this man did to me.  It is my right to tell the world what he did to me.  That Galloway v. State—

Q Whew.

A —made it very specific.  The harassment statute—

Q Well, I mean, within reason, my friend, within reason.

A Within reason?

Let me break in there.  At this point I was incredulous.  I could speak freely within reason?  What version of the First Amendment did he read?

Q Within reason.

A I have had a crime committed against me.  What is unreasonable about seeking justice?

Q You know I shouldn’t say this, but I think you got it twisted.  The one who decides to prosecute crimes is the government—

A Of course.

Q —and only the government and not you.

A Of course, Your Honor.

Now it is true that the State’s Attorney has absolute discretion to decide whether or not to prosecute a case.  I don’t believe there is any authority in the state of Maryland or the United States of America to force them to prosecute Brett Kimberlin as a matter of law.  Lots of people can put pressure on them, but they make the call.  There is a reason why criminal cases are called ______ v. State, because the other party to the case isn’t the victim of the crime, but the state and therefore it is the state’s decision whether or not to take the case forward.

But it doesn’t follow from that, that it’s none of my business whether he is prosecuted for the crimes he has committed against me.  It just means that the only way Kimberlin will be prosecuted is if I can persuade the authorities to prosecute him.  But it is not only my right to seek to persuade them to prosecute him, but it is a legal purpose specifically enumerated in the First Amendment: I am petitioning the government for a redress of grievances, a point I made in court.  And as you might remember from the first part, a finding that one has a legal purpose negates any claim that that person’s conduct is harassment.

Another moment of note is when Kimberlin denied knowing that he was called The Speedway Bomber:

Q [Walker] And you were known as the Speedway Bomber, were you not?

A [Kimberlin] I don’t know that.

If you listen to the illegally uploaded recording of this—by one of Kimberlin’s allies under the mistaken impression that this helped their cause—you will hear a thunking sound at this moment.  That is the sound of my jaw hitting the floor.

You can listen here.

Joking aside, it illustrates one of the problems in dealing with Kimberlin.  He is such a pathological liar, you literally can’t prepare for every lie he might tell:

Q You don’t know that you were known—

A No.

Q —as the Speedway Bomber?  You do not know that you, you’ve never read this before in your life?

A I’ve read a lot of things in my life.

He goes on denying for instance, that he read a case about him that mentioned he was called the Speedway Bomber.

Of course this claim is beyond ludicrous.  For instance, he has said that he set those Google alerts way back in the November 14 hearing with Seth Allen.  So back then he was supposedly learning about every mention of Brett Kimberlin and reading each one.  So if we run a Google search for “Brett Kimberlin Speedway Bomber” and set a custom date range of November 14, 2011, to May 15, 2012—two days before I published my mammoth post that brought all this attention onto Kimberlin, you get this:

But there is more proof than that.  For instance, on October 11, 2010, Mandy Nagy, a.k.a. Liberty Chick, wrote a piece at Breitbart’s Big Journalism entitled Progressives Embrace Convicted Terrorist.  In it, she wrote:

Infamously known as “The Speedway Bomber,” Brett Kimberlin exploded his eighth and final bomb on September 6, 1978…

…and so on.  And did Kimberlin know she wrote that?  Not only did he know of her article, but he even threatened to sue her for writing it.  So how could he claim it is defamation without, you know, reading it.

But it gets even worse!  As I told you in the big post, Kimberlin sued Seth Allen for calling him, among other things, a terrorist.  And Seth told him he was known as The Speedway Bomber to his face.  From page 88 in the transcript of the November 14, 2011 hearing:

[Allen] You have a, you’re looking for donations, for, against domestic terrorism, which is a worthy cause. But here you are, convicted of, of a, horrendous bombings in Speedway, and why you’re known as the Speedway bomber.

And you might remember that despite the injustice of the situation, Seth Allen had a permanent injunction placed against him “defaming” Brett Kimberlin.  So then Kimberlin claimed that Allen had violated this order, and sought to hold him in contempt on January 9, 2012.  And in that hearing, Kimberlin mentioned the title “The Speedway Bomber.”

THE COURT: All right. This [post written by Seth] is dated November 23rd. I don't see anything in here that would constitute --

MR. KIMBERLIN: Well, I mean—

THE COURT: —defamation.

MR. KIMBERLIN: —there’s a lot of stuff in there, so I could certainly find it, you know. But what does is he mixes, he posts something, and then he'll say, oh, and then Kimberlin, the speedway bomber, the terrorist, the perjurer, and the pedophile did this or that.

So, at the risk of bludgeoning a deceased equine, he very obviously knew he was called the Speedway Bomber.  Do you see what I mean when I call him a pathological liar?

Another moment of note was when Kimberlin tried, offensively, to take the mantle of the civil rights movement:

Q [Walker] Well, what words did I say to cause people to give you death threats?

A [Kimberlin] When you say that I framed you, which is not true, when you say that I've falsified records from Suburban Hospital, that I forged these documents from Suburban Hospital, and photo-shopped pictures of me with a black eye, and you're ginning up people to come after me.. You know how the Internet works. It's like somebody from the south in the 60s. A new guy whistles at the Black girl and gets a lynch mob after him. That's what you're doing. You're creating a lynch mob to harm me, and harm my family, and to harm my business, and to harm my funders, and to harm the State Department, and everybody that I work with.

Yeah, um, that’s not really generally how those lynch mobs worked.  Generally they lynched black men for showing romantic interest in white women, not white men for their interest in a black woman.  I mean that’s historically how it worked.

In any case, my Constitutional hero Thaddeus Stevens dreamed that after the Civil War “no [discrimination] would be tolerated in this purified Republic but what arose from merit and conduct.”  About a hundred years later, Dr. Martin Luther King Jr. declared that “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”  Well, we have judged Kimberlin by his merit and his conduct; we have judged the content of his character and found it to be deplorable.  And it is offensive for Kimberlin to pretend that differing treatment based what he has done, is similar to discrimination based on the color of one’s skin.

And I also found this next part to be an incredibly significant passage.  You see at one point, the judge remarkably asked Kimberlin to speculate as to why I was doing this, so he gave his usual bull about how I supposedly hate all Muslims, and therefore because he works with moderate Muslims I supposedly hate him or something (a false charge I have rebutted here, among other places).  So part of me wanted to bang my head against the table in front of me when the judge kicked this off:

THE COURT: Okay. Hang on a second. Now, this is not a valid question that.

If it is not a valid question, why are you asking this? I wondered.

THE WITNESS [Kimberlin]: I know.

THE COURT: Why do you think he's doing this?

THE WITNESS: Why do I what?

THE COURT: Why's he doing it?

THE WITNESS: I think he's obsessed. I think he's, I don't know Anybody that would generate 15,000 Tweets about somebody in a week—

THE COURT: Okay. Now, just, okay, that's fine.

THE WITNESS: Okay. You’re asking why—

THE COURT: All right. Go ahead.

THE WITNESS: why do I think he's doing it? Okay.  I'll answer your question.. Mr.. Walker is a publisher of a blog called, "Everyone Draw Muhammad."

THE COURT: What?

THE WITNESS: He's a publisher of a blog called, "Everyone Draw Muhammad." There is—

THE COURT: Everyone Draws Muhammad?

THE WITNESS: There are 800 depictions of the Prophet Muhammad on that blog in very insulting and vile depictions.  He's asking people to defile and defame the Prophet Muhammad.  And--

BY MR. WALKER: With what words did I have (unintelligible) to defame him?

A He asked me a question.

THE COURT: Hang on a second.

THE WITNESS: Okay. As part of my work on human rights and supporting Muslim artists and activists overseas, I thought that this was wrong, The State Department has said that it's wrong for him to do this, The Government of Pakistan has banned his blog, Osama Bin Laden used his blog to recruit suicide bombers to kill Americans, I felt this was wrong, And so I filed a motion in this case, in front of Judge Jordan, on this contempt—

You catch that?  The fatal error he made?  He just admitted that the entire process of using the courts to out me was a sham.  He admitted that he never really wanted my testimony, he just wanted my identity.  Now of course his supposed motivation—that he was so awfully offended by the Everyone Draw Mohammed protest in support of Freedom of Religion and Expression—is a lie, too.  But he has made plain what we knew all along: he was abusing the courts when he subpoenaed my identity.

And there is one other observation that I wanted to make, but I couldn’t until this unconstitutional prior restraint on my Freedom of Expression was removed.  It was in limited defense of Judge Vaughey.  Of course there is much that was simply awful in his conduct that day as you can sense from my outline above, and I think there is even more to be infuriated with as you read the transcript.  But there is one charge thrown at him that is perhaps not fair: that he didn’t understand the internet.

I mean look, by the end of the hearing I am not sure he knew what a twitter was, or a blog or anything like that.  But you don’t really know all the details to get it as Judge Eric Johnson demonstrated in the April 11 hearing, when he said this:

This Court doesn’t blog. I don’t even know what it is. I wouldn’t know how to set-up one and I don’t know if I’ve even read one since I don’t know what it is, but I can imagine it is a medium in which published material can be made available to the public. I can imagine that a blog might be likened to a magazine except that it’s electronic and it’s not on paper, unless of course it’s printed out.

Johnson didn’t understand blogging in most ways, but he understood what was essential in terms of the law and that was sufficient.

And likewise, I believe by the end of it, Judge Vaughey might not have understood Twitter down to every detail or what a blog was.  And I can’t point at any specific word he said, but I believe that when I explained to him that this was communication to a general audience, that I was not talking to Kimberlin but to the whole world that Judge Vaughey got that.

So he may have opened himself up to criticism technological backwardness with comments about the Royal Typewriters and all of that, but I don’t think his mistake was in a failure to grasp the technology.  Like Judge Johnson, I believe he understood it well enough to reach the correct answer if he applied the correct law.  And therefore his mistake was not in his understanding of the technology but in his understanding of the law.  At least that is my sense of it.

Which admittedly is kind of a backhanded defense—a judge’s forte is supposed to be the law—but it is what I believe.

So the hearing ended with this command that I could not mention Brett Kimberlin anywhere on the internet, even to a general audience, for six months.  You might have caught Vaughey’s joke about me having the Library of Congress on my table, and indeed I had a lot of papers, a copy of Mark Singer’s book on Kimberlin, and my computer to pack up.  I was about halfway packed when Deputy Johnson approached me and placed me under arrest.

I think at that moment you could have knocked me over with a feather.  I believe I was still in the courtroom when I asked him what the charges were.  He told me it was for the prior assault.  You know by now that is not true, but it explains why there were reports that this was why I was arrested.  I don’t know why Johnson thought this to be the case, but I don’t think he meant to get that wrong.  I will say I bear to this day no ill will toward him.  I know he was just doing his job, and if I have any skill in reading body language, I don’t believe he particularly enjoyed or agreed with this action.

It is also important to stress that this was not something Vaughey ordered, either.  Indeed, I believe by law even if I won the hearing, I still would have been arrested regardless.

So Johnson took me back through their processing.  As is my regular practice when dealing with law enforcement—put into practical use two Mondays ago—I constantly said to him something like this “whatever you need me to do to make you feel safe, just say it and I will cooperate.”

I remember particularly sitting in a chair just outside a barred door, where a few moments later they would take most of my earthly possessions on me at the time and put it in a giant Ziploc style bag.  But before they did that, my hands were uncuffed at that moment and they left me mainly alone.  So I put my hands together and prayed.  I said, in my mind, “God, I really hope this is part of your plan to make this story even bigger than it was before.  Because otherwise this doesn’t seem like a particularly good turn of events.”  My thoughts and prayers were focused on the idea that a higher purpose might be served.  One of my favorite phrases from Rev. Martin Luther King Jr. declares that “God still has a way of wringing good out of evil. And history has proven over and over again that unmerited suffering is redemptive.”  I do thoroughly believe that to be true.

So they first took me to the jail below the Circuit Court building.  I was told later by a friend that he saw Neal Rauhauser—who had been there for the hearing—lurking in the area.  He believed that Rauhauser was hoping to take a picture of me or something.  From there they took me to a central processing place.  I had the full mugshot taken.  And then they put me in a cell with about five other guys, different ones being brought in and out.  This went on for hours.  And they left me with nothing at all.  No books, no pens, no paper to write on except my copy of the charges against me, no belt, no shoes, only my pants, shirt and socks.  I suppose if I had pen and paper, I might have tried to write A Letter From a Rockingham Jail, despite my difficulty in writing by hand, but I couldn’t even do that.  Instead all I could do is study the charges and make small talk with the other prisoners.  I wasn’t even particularly concerned any of them would hurt me.  They really seemed to be more interested in just passing the time than anything else.

This went on for many long hours.  The whole time I was agonizing over what was going on in the world beyond my cell.  How was my wife doing?  How was my larger family coping?  And what was happening in the rest of the world?  I knew reporter David Hogberg of Investor’s Business Daily had been there to report on events and I expected him to get out the word, but I wondered what the reaction was to this news?

And I worried about money.  I realized I would have to re-engage the services of Reginald Bours III again.  He’s a good lawyer but he costs money.  (Psst, donate!  On the right!  Please!)  And just how bad was this bail going to be?  Finally I was brought before the jailhouse commissioner to talk about the issue of bail.  I knew what to argue when arguing the issue and convinced them to release me on my own recognizance—that is, without bail—which was understandably a huge relief.

Soon after I was released from jail, and the friend who came to court with me that day picked me up, with my wife in the car.  My wife gave me a tearful embrace; once again the cruelty of Team Kimberlin affected her more than me.  I talked to some people about what happened and then after dinner I had some snuggle time with the wife.  I remember saying to her in a faux-seductive voice, “you know, when I was inside, there was no female companionship.  I have gone a good five or six hours without seeing a woman...”  She laughed, but couldn’t believe I could joke at a time like that, except she also knew that this was precisely when I joke. 

And you know most of the rest.  The story didn’t die with me now unconstitutionally silenced.  It garnished attention to the cause just as I prayed that it would: if I had to suffer evil, let God wring some good out of it.  And the outflowing of support was awesome to behold, both in terms of donations and simple offers to help.  And of course the story had leapt in prominence.  Members of the press were disturbed by this outcome.  For instance, I admit I was really thrilled when I saw this video clip from The Sun News’s The Source with Ezra Levant:

I remember shouting to the wife to get over there at about the 3:10 mark, cheering at the sight of my blog on international television.

And of course the host of the program is himself a hero of mine.  During the Danish Cartoon controversy, Ezra Levant dared to published the forbidden cartoons of blasphemy, for which he was haled before the Canadian Human Rights Commission for supposedly being racist and anti-Muslim.  Here’s his answer to that question of intent:

And I appreciated another Canadian hero of Free Expression, Mark Steyn, who has naturally also been subject to harassment under Canada’s Human Rights regime—where apparently the right to speak freely is not considered a vital human right—when he wrote on the subject, though I would never be so disrespectful as to call Judge Vaughey “bozo.”

In court, the State's Attorney's Office quickly dropped the charges, to their credit.  Hitler was not pleased:

(And yes, I particularly laughed at the bit about checking under their cars for bombs.)

Meanwhile, I appealed Judge Vaughey’s ruling to the Circuit Court in Montgomery County.  This is what we call a de novo appeal.  That is, a wholly new trial where Kimberlin will be required to prove his case all over again.

And then about a week or so later, I got a letter from the court giving me my trial date: July 5.  And the more I thought about it, the more offended I started to get.  It dug deeper and deeper into me like a splinter I had failed to remove.  I was not going to get my Freedom of Expression back until after July 4.  I would have to watch our nation celebrate its independence and freedom with a gag on my mouth.  Finally I concluded: I would be damned if I was silent on Independence Day.

So we launched a two pronged attack on this flagrantly unconstitutional peace order.  On one end, Dan Backer has offered to help me, with the help of local counsel Bruce Godfrey by filing a federal suit.  This support starts pro-bono, but this litigation is expected to go on for some time, and these lawyers have to eat, too.  That is where donations for the top donation button goes to—directly to this federal fight.  And the National Bloggers Club, represented by the second button, has provided significant material help to defray legal expenses.  They have already given me $5,000 with more to come.  And so far Backers and company filed a federal lawsuit alleging, among other things, that Brett Kimberlin’s conduct has violated my constitutional rights.  They even filed a motion for a preliminary injunction to suspend enforcement of Vaughey’s unconstitutional peace order.

And on a parallel track, Mr. Bours and I worked together to file a motion to partially stay the peace order fastened on me in state court.  I have linked to it before, but you can read it and Brett Kimberlin’s mendacious response, here.  And you know by now I was granted that stay.  And later that night, I became the latest “enemy” of Brett Kimberlin to be SWATted.  We don’t know if Brett Kimberlin had anything to do with this, but Occam’s razor says that it was most likely committed by one of his supporters.  You can read the account of my SWATting here.

And that brings me pretty much to today, this moment, writing this.  It is Independence Day and I am not silent.  I can enjoy a song like this without any sense of bitter irony:

Yes, I am proud to be an American today, where at least I know I’m free.

There are times in our history, even after we won our freedom from the British, where we had to fight for our freedom just to express ourselves.  In the earliest days of the Republic, for instance, Congress passed a monstrosity called the Alien and Sedition Acts, which outlawed criticism of the federal government.  Here’s the text, taken from this site:

And while traditionally truth was a defense to claims of defamation, the Federal Judges interpreted out that traditional rule, so that any criticism of the government was illegal and people were imprisoned for it.  No Supreme Court decision saved us, so we the people rose up and enacted the revolution of 1800.  It was a peaceful revolution of the ballot rather than the bullet, and it repudiated this threat to Freedom of Expression.

And then in the run up to the Civil War, Freedom of Expression found itself under assault again.  The South was so filled with fear of insurrection by the slaves that they sought to suppress abolitionist speech in the North as they believe it tended to stir up such rebellions.  Elijah Lovejoy, for instance, was murdered defending his press from an anti-abolitionist mob in Illinois.  And when Massachusetts Senator Charles Sumner criticized South Carolina’s Senator Andrew Butler, accusing him of frequenting the “harlot slavery” that sly reference to the dreadful practice of slave rape drove his nephew, Representative Preston Brooks, to beat Sumner on the floor of the Senate so severely that he could not regain his seat for three years.  This is one particularly famous political cartoon about the incident.

What was horrifying about it was not merely the fact that one man acted out, but that across the South, Brooks was hailed as a hero who did the right thing.  In his Cooper’s Union Speech, Abraham Lincoln used brilliant reverse psychology telling us what it would take to appease the South, in order to rally the North to reject talk of compromise.  So what would appease the South, according to Lincoln?

This, and this only: cease to call slavery wrong, and join them in calling it right. And this must be done thoroughly - done in acts as well as in words. Silence will not be tolerated - we must place ourselves avowedly with them. Senator Douglas' new sedition law must be enacted and enforced, suppressing all declarations that slavery is wrong, whether made in politics, in presses, in pulpits, or in private. We must arrest and return their fugitive slaves with greedy pleasure. We must pull down our Free State constitutions. The whole atmosphere must be disinfected from all taint of opposition to slavery, before they will cease to believe that all their troubles proceed from us.

I am quite aware they do not state their case precisely in this way. Most of them would probably say to us, "Let us alone, do nothing to us, and say what you please about slavery." But we do let them alone - have never disturbed them - so that, after all, it is what we say, which dissatisfies them. They will continue to accuse us of doing, until we cease saying.

I am also aware they have not, as yet, in terms, demanded the overthrow of our Free-State Constitutions. Yet those Constitutions declare the wrong of slavery, with more solemn emphasis, than do all other sayings against it; and when all these other sayings shall have been silenced, the overthrow of these Constitutions will be demanded, and nothing be left to resist the demand. It is nothing to the contrary, that they do not demand the whole of this just now. Demanding what they do, and for the reason they do, they can voluntarily stop nowhere short of this consummation. Holding, as they do, that slavery is morally right, and socially elevating, they cannot cease to demand a full national recognition of it, as a legal right, and a social blessing.

Nor can we justifiably withhold this, on any ground save our conviction that slavery is wrong. If slavery is right, all words, acts, laws, and constitutions against it, are themselves wrong, and should be silenced, and swept away. If it is right, we cannot justly object to its nationality - its universality; if it is wrong, they cannot justly insist upon its extension - its enlargement. All they ask, we could readily grant, if we thought slavery right; all we ask, they could as readily grant, if they thought it wrong. Their thinking it right, and our thinking it wrong, is the precise fact upon which depends the whole controversy. Thinking it right, as they do, they are not to blame for desiring its full recognition, as being right; but, thinking it wrong, as we do, can we yield to them? Can we cast our votes with their view, and against our own? In view of our moral, social, and political responsibilities, can we do this?

Wrong as we think slavery is, we can yet afford to let it alone where it is, because that much is due to the necessity arising from its actual presence in the nation; but can we, while our votes will prevent it, allow it to spread into the National Territories, and to overrun us here in these Free States? If our sense of duty forbids this, then let us stand by our duty, fearlessly and effectively. Let us be diverted by none of those sophistical contrivances wherewith we are so industriously plied and belabored - contrivances such as groping for some middle ground between the right and the wrong, vain as the search for a man who should be neither a living man nor a dead man - such as a policy of "don't care" on a question about which all true men do care - such as Union appeals beseeching true Union men to yield to Disunionists, reversing the divine rule, and calling, not the sinners, but the righteous to repentance - such as invocations to Washington, imploring men to unsay what Washington said, and undo what Washington did.

Neither let us be slandered from our duty by false accusations against us, nor frightened from it by menaces of destruction to the Government nor of dungeons to ourselves. LET US HAVE FAITH THAT RIGHT MAKES MIGHT, AND IN THAT FAITH, LET US, TO THE END, DARE TO DO OUR DUTY AS WE UNDERSTAND IT.

So in 1860 we had another revolutionary election.  It was the hope and prayer that it could be a revolution of ballots and not bullets, but the secession of the South necessitated that election of Lincoln be enforced with arms.

And again in the 1960’s, Freedom of Expression was being denied, specifically to African Americans—not to mention the right to vote, the equal protection of the law and so on—or anyone advocating for full equality of opportunity between the races.  In 1963, Martin Luther King, Jr. and his allies wanted to protest and boycott the businesses in downtown Birmingham, Alabama, but Bull Connor refused to grant them the appropriate parade permits.  And when the protesters chose to ignore that rule and risk getting arrested, a local court issued an injunction against them.  And again the protesters ignored the law and were arrested.  And Dr. King was in the Gaston Motel on a Good Friday with several other leaders deciding whether or not to break that rule, too.  He was being told by his friends that he couldn’t go to jail.  There were already many others who were in  jail and if he went to jail, there would be no one out there to raise bail money for them.  And he contemplated his options, the pros and cons of it.  As he wrote in his autobiography:

I sat in the midst of the deepest quiet I have ever felt, with two dozen others in the room.  There comes a time in the atmosphere of leadership when a man surrounded by loyal friends and allies realizes he has come face-to-face with himself and with ruthless reality.  I was alone in a crowded room.

I walked to another room in the back of the suite, and I stood in the center of the floor.  I thought I was standing at the center of it all that my life had brought me to be.  I thought of the twenty four people, waiting in the next room.  I thought of the three hundred, waiting in prison.  I thought of the Birmingham Negro community, waiting.  Then my tortured mind leaped beyond the Gaston Motel, past the city jail, past the city and state lines, and I thought of the twenty million black people who dreamed that someday they might be able to cross the Red Sea of injustice and find their way into the promised land of integration and freedom.  There was no more room for doubt.

I whispered to myself, “I must go.”

So he chose to break this injunction against him and be arrested by Bull Connor and his men and risk their “tender mercies.”  And in his Letter from a Birmingham Jail he justified his own and his movement’s willingness to disobey the law, addressing himself to his fellow clergy:

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.

And of course even this law-breaking was in line with his non-violent principles:

One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust. and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

Now in the last few paragraphs, I have compared myself on some level to Thomas Jefferson, Abraham Lincoln and Dr. Martin Luther King, Jr.  Of course I pale in comparison to these giants, and when compared to those historical threats to Freedom of Expression I just outlined, the threat posed by Brett Kimberlin comes up short.  I don’t draw those comparisons to lift myself up.  Instead it is to explain why I almost feel compelled to keep fighting on this Independence Day.  I am humbled by the risks these giants took on, the enormity of the fear they must have felt and overcome.  Two of them died as martyrs for their causes.  And I think of the thousands of American soldiers who gave their last full measure of devotion to defend freedom and democracy and the thousands more who gave smaller sacrifices so I could be free.  As they say, all gave some, some gave all.  The risk and the sacrifice they have made dwarfs the risk posed by Kimberlin, so how can I refuse to stand up?  How can I refuse to do so little, when they did so much?  Our inheritance of freedom was won with the blood of patriots and it would dishonor them and myself if I discarded that inheritance in the face of this petit tyrant.

So how does this story end?  Obviously I cannot say.  Tomorrow I go to court and we write a new chapter in the story.  At best, I hope to have this entire peace order--and the stimga it brings--removed.  At worst, the judge could in theory reimpose the same unconstitutional restraint on my Freedom of Expression as Vaughey did, although it seems unlikely that two judges will refused to follow Supreme Court precedent by name.  And if you want to witness it live, and you happen to live in the area, you can learn how to watch here.  So I can’t say how this will end, except I will not stop in my peaceful struggle against Brett Kimberlin until there is justice, preferably with him being returned to prison where he belongs.

And I will take you along for the ride, if you want to join me.

Enjoy your Independence Day.

Do honor to those who gave you the rights you enjoy.

And let freedom ring.

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Disclaimer:

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.  As you will see by the time I am done telling my story 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.