Today in Circuit Court, Brett Kimberlin Lost and the First Amendment Won...

...and the Army of Davids is scary!

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Update: Talking with friends tonight, something came back to me that I forgot about.  At one point in the hearing Kimberlin made an odd statement.  He said he couldn't get the police to come out to his house, without a peace order.  Is it possible that he has made so many silly or false calls to the police that they have stopped taking his calls seriously?  That maybe they have flagged his number?  That's just speculation on my part: I don't expect to have an answer to that question, soon.


Update (II): Please note that I make a mistake below.  Kimberlin did not say The Army of Davids was an "extremist Christian militia."  He only called them a "Christian group" and suggested they were some kind of militia. I appear to have inserted my interpretation of his words into my memory of what he said and for that I apologize.  I explain more, and give you the full quote and its context, here.

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Well, with concern for the weather I missed the fireworks last night, but there were plenty of them today at my hearing against Brett Kimberlin.  And like the last time I went to circuit court, the judge found that Kimberlin’s presentation was so poor that I didn’t even have to put on a defense.  I will even share with you the court’s official findings in just a minute.  But first to set the stage a little bit...

Yesterday, I finished with my five part series “The Story I Couldn’t Tell” (introduction, Part 1, Part 2, Part 3, Part 4 and Part 5), and you may wish to read that series to get a more fulsome understanding of what was going on in this case.  In the last segment I pointed out that the next chapter was being written today and so it was.  Fortunately this story had a very happy turn.

Today in Montgomery County Circuit Court they heard the de novo appeal of Kimberlin v. Walker (II).  As I stated in Part 5 of that series, Judge Vaughey had fastened upon me a peace order on the theory that I had incited others to unlawful action directed towards Kimberlin, by writing at my blog and on the internet that Kimberlin had engaged in reprehensible conduct—namely that Kimberlin had attempted to frame me for a crime—to a general audience and that was enough to find I had incited others to allegedly threaten and harass Kimberlin, and thus I was forbidden from talking about Kimberlin on twitter or my blogs for six months.  Consider for one moment how much of modern journalism involves saying that people have engaged in reprehensible conduct and you will realize pretty quickly that this could not possibly be the law.  In fact, in Brandenburg v. Ohio, the Supreme Court laid out the Constitutional test for incitement:

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.

In the district court, when I tried to bring up Brandenburg, Judge Vaughey said “Forget Brandenburg. Let’s go by Vaughey right now, and common sense out in the world.”  And having refused to follow controlling Supreme Court precedent, Vaughey proceeded to impose a flagrantly unconstitutional peace order.

By comparison, when my attorney presented a motion for a partial stay of this unconstitutional peace order, Judge Rupp was the duty judge—the same judge Rupp who was present in the January 9, 2012 hearing that was followed by the “iPad incident” (read here to get the whole story).  Back on May 17, I wrote this assessment of Judge Rupp’s performance on January 9th:

What struck me as I listened to the other cases (Kimberlin’s was the last to be called), was that this judge had clearly done his homework.  He knew most of the files back and forth and remembered a great number of details from every case off the top of his head.

I also noted that Rupp also seemed to know the score with Kimberlin:

[H]ere’s the moment where it became the most clear that Rupp got it, that he understood exactly who Kimberlin was:

MR. KIMBERLIN: I mean, it’s like I said, this is all since November 14th, this stuff. And it’s all about my business, and it’s all about me. I mean, I was arrested 32 years ago on a case. I got out of jail. I did my time. I run two non-profits in this, in this wonderful city working with kids and congressmembers and community leaders. And you know, I have two kids and a wife. And this guy will not leave me alone. He wants to post stuff that happened 32 years ago. You know, he dug up 32-year-old mug shots of me that I had never even seen before, that had never been posted.

THE COURT: Well, that doesn’t constitute defamation.  It’s all true.

Well, indeed when he considered the motion for a stay, Rupp not only didn’t say to “forget Brandenburg,” but he indicated that he knew Brandenburg off the top of his head, which I consider to be impressive.  And it couldn’t have hurt that Rupp had already experienced one instance of Kimberlin’s abuse of the courts in an attempt to punish protected speech.

So this morning we came in with no idea which judge would be assigned.  I met with John Hoge of Hogewash (who has already shared his write up of today’s events), and there were two other kind souls who showed up just to offer moral support and their ability to witness events.  I will in all frankness leave out any personal details about these two people so as to keep them off Kimberlin’s “enemies list” but I will say that they were nice people and Kimberlin would have to be an idiot to think that this was a lynch mob.  I also saw David Hogberg there as a reporter and said hello to him.

Then Mr. Bours informed us that we had a judge: Nelson W. Rupp Jr.!  Now do you see why I went on and on about Judge Rupp above?  So you will understand why I was smiling the moment I heard it.  I didn’t think Kimberlin had much of a chance against any of the judges in circuit court because they would do things like read what I had written before imposing judgment, but I knew the moment that Rupp was assigned to the case, Kimberlin’s chances were significantly reduced.

The hearing took place sometime close to eleven in the morning and went on for about forty five minutes.  In the April 11, 2012 hearing, Kimberlin couldn’t figure out how to enter any of my statements into evidence.  This time, he figured out that he needed to ask me to authenticate them.  In the end Rupp read my Blockbuster post on how Brett Kimberlin attempted to frame me for a crime, as well as a whole bunch of my tweets discussing different issues related to Kimberlin.  Rupp said something close to this: “the overarching theme of his writings is that he believed you attempted to frame him for a crime, and wished to see you prosecuted for perjury.”  That is emphatically not a quote, but when I get and post the transcript, I believe that will be the gist of it.  Having read those writings, Judge Rupp found absolutely none of it constituted harassment.

Unlike Judge Johnson or Judge Vaughey, Rupp seemed to know what tweeting actually was.  As I noted yesterday it is not necessary for a judge to know all the details of these modern communication technologies to get things right, legally, but it helps.  He correctly understood that this was not communication with Kimberlin, but rather about Kimberlin to a general audience.

And it is worth taking a moment to note what the case wasn’t about.  While Kimberlin made a weak attempt at claiming that my claims that he framed me were false (based on the odd idea that it was self-evident that this convicted document forger would never forge documents), Judge Rupp had no interest in determining the truth or falsity of my arguments.  And indeed under Near v. Minnesota, the Supreme Court made it clear that even defamatory information could not be subject to a prior restraint, so truth was irrelevant.  Not that we made that argument to Rupp, but...

...on the other hand, there is a real chance that Judge Rupp knew this on his own.  I continued to be impressed with Rupp’s mental acuity.  I believe having lived my life with dysgraphia, a disability that makes it difficult to write by hand and thereby take notes without a computer, that I have developed a semi-photographic memory to compensate.  I suspect Rupp has the same ability.  He recited many specific details about my case without even glancing at the file and when Kimberlin brought up Galloway v. State, he even recalled the detail that the defendant in that case had sent over 122 letters off the top of his head.

The point was there was basically no determination about the truth or falsity of my claim that Kimberlin framed me for a crime.

Of course the highlight of the hearing came when my attorney sought to cross examine Kimberlin.  Of course he gave Kimberlin an epic cross-examination back on April 11, but today he was more focused but equally effective.  Interestingly, he didn’t go through the entirety of Kimberlin’s criminal history, or indeed any of it.  But he did ask Kimberlin about when I was SWATted, about a week and a half ago and Kimberlin went into a rage at the suggestion.  He called it a “despicable” question, falsely claiming that I and others had blamed him for it “without a shred of evidence” (in fact when I wrote about the SWATting, and talked about it on the radio, I was careful not to blame him because I can’t prove he had anything to do with it).  But he was absolutely furious at even the simple question of whether or not he was involved in it, shaking his finger at my attorney in rage and saying to him, “You’re harassing me” by even asking the question.  That is, a lawyer asking a person a question in court is harassment, according to Kimberlin.

My lawyer replied by saying something close to this: “I am just asking you a yes or no question.”

Kimberlin at that point finally actually bothered to deny it, and denied asking anyone to SWAT me.

I didn’t think to look at Judge Rupp at that moment when Kimberlin accused Mr. Bours of harassing him to gauge the judge’s reaction, but I can’t think that went over well.

Another fascinating point is that Kimberlin professes to believe that I could stop all interest in his case, myself, which means he just simply doesn’t understand what is happening.  Yes, it is self-evident that my massive post kicked off this renewed interest in the career and criminal conduct of Brett Kimberlin, but first, I suspect this was going to explode onto the internet sooner or later and second, it is right now as much being pushed forward by other events as anything I have written about him.  First, even if I never wrote my post about Kimberlin, I know that sooner or later Patrick would have told his story and that might well have kicked up the same frenzy.  Or perhaps Mandy Nagy would have told you about what happened to her.  Or a fourth victim as of yet unknown.  The reason why this has happened is that Kimberlin’s conduct has been shockingly reprehensible and it seems inevitable that sooner or later someone would have told a compelling story about his vile conduct.  As such Kimberlin has no one to blame for this but himself for having engaged in the underlying conduct that has inspired such interest.

And second, even if the story never would have happened but for my writing—a premise I reject—as of now it has taken a life of its own.  Events beyond my control—but not always beyond Kimberlin’s control—have caused this story’s profile to continually rise.  For instance, Robert McCain was forced to flee from his home due to Kimberlin’s intimidation.  Patrick published his account.  Erick Erickson was swatted.  Brett Kimberlin succeeded in getting me arrested based on false charges, in retaliation for having exercised Freedom of Expression and in fastening onto me a flagrantly unconstitutional peace order.  And finally I was SWATted.  Each of these events helped push the story into the stratosphere.

Kimberlin also tried the argument that since he had set up Google Alerts—commands to Google to search the entire internet for mentions of his name and to mail him those links—that writing him on the internet was equivalent to sending him an email.  Judge Rupp flatly rejected the argument.  This is indeed where Rupp mentioned the 122 letters in Galloway, and he noted that nothing I wrote constituted communication directed at Kimberlin.  As indeed they weren’t.

Kimberlin also tried to argue that I was responsible for alleged death threats he had received (remembering that it is very likely that he or his allies were planting many of these supposed threats).  I didn’t see all that he presented although it appeared to be similar, if not identical to the set of exhibits he presented at the end of his opposition to my motion for a partial stay, which you can read here.  He also attempted to blame me for the alleged misconduct of John Norton and Martin Maher but the court found Kimberlin had absolutely no evidence that I was responsible for any third party’s words or conduct.

And whereas before Glenn Reynolds was a great source of fear, this time he was in terror of The Army of Davids.  As you may or not know, the phrase the army of Davids was coined by Reynolds to describe how a group of little guys can take down a big guy.  The prime example of this was Rathergate, where a group of intrepid bloggers proved beyond any reasonable doubt that documents purporting to relate to Bush’s service in the Texas Air National Guard were cheap forgeries typed on a modern computer.  Reynolds liked the phrase enough to use it as the title of his book (see this Insta-link baiting plug for his book, here).  In other words, the different mentions of the Army of Davids was a harmless discussion of how the blogosphere worked and how a bunch of little bloggers can expose the wrongdoing of a big figure.

But in Kimberlin’s mind (or at least his words) it became something more sinister.  At one point, Kimberlin said that I had incited “the Army of Davids” against him and if memory serves, he characterized it was an “extremist Christian militia.”  (I will be sure to check the quote when I get a copy of the audio from the hearing.)

I had to resist the urge to laugh.  Judge Rupp doesn’t like laughter in his courtroom.

I also found it of note that Mr. Bours adopted my Trayvon Martin metaphor for this campaign.  I had said this in the May 29 peace order hearing:

Look at, for example, what happened with the Trayvon Martin incident, okay? A man named George Zimmerman shot this young man named Trayvon Martin.  His parents felt that [Zimmerman] deserved to be charged with a crime. The police did not charge him. So they raised a national uproar.  And what happened? They’ve now charged him.

Now, I disagree with the decision to charge Mr. Zimmerman, but that is the model of what I am trying to do.  I’m trying to create enough of a national uproar· to create pressure on [Montgomery County State’s Attorney] John McCarthy to finally charge [Kimberlin] with the crimes related to him trying to frame me for a crime. I’m trying to get justice. And he wants to shut me up.

I can’t even hope to capture Bours’ words without the aid of the audio or a transcript, but Bours made essentially the same argument—that I was trying to use the Trayvon Martin model as was my right.

And that is about all I can remember from that day.  I will get the audio very soon, and the transcript some time after that.  I can’t post the audio from the hearing, but it will help me verify my account and make any corrections as needed, and when I get the transcript I will get that to you in full.

Anyway, the point is I walked out of there with this in hand and now show it to you:

Peace Order Vacated 7.5.12

So as I joked this afternoon on twitter: “Breaking: Judge Rupp rules that saying bad things on the Internet is not harassment. The entire twitter-verse breathes a sigh of relief.”

Humor aside, as I told David Hogberg, it is a great day for the First Amendment.

And once again I will strive to be dignified in victory.  I must not gloat or...

Ah, what the hell!

Yeah, I am rocking the stuffed animal leggings, just like Flea.  What of it?

(It’s important to be a happy warrior.)

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Also, be sure to catch Lee Strahan’s coverage of today’s events.

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And there is one other thing to note.  Neal Rauhauser was there again, and seen exchanging documents with Kimberlin, further verifying their connection.

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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.