Judge Vaughey Reprimanded, Freedom of Speech Vindicated

Another Setback to Brett Kimberlin’s Quest to Outlaw Criticism

This is the latest post in what I half-jokingly call The Kimberlin Saga^®.  If you are new to the story, that’s okay! Not everyone reads my blog.  The short version is that convicted terrorist Brett Kimberlin has been harassing me for over four years, his worst conduct being when he attempted to frame me for a crime.  I recognize that this might sound like an incredible claim, but I provide video and documentary evidence of that fact; in other words, you don’t have to believe my word.  You only have to believe your eyes.  Indeed, he sued me for saying this and lost on the issue of truth.  And more recently when his wife came to us claiming that this convicted terrorist had threatened her harm, we tried to help her leave him, and for that, he sued myself, John Hoge, Robert Stacy McCain and Ali Akbar for helping his wife and for calling him a pedophile.  He lost on the issue of truth.  Has recently lost suits against also suing Hoge, Akbar, Dan Backer, DB Capital Strategies, Patrick “Patterico” Frey, Mandy Nagy (who is significantly incapacitated by a stroke), Lee Stranahan, the National Bloggers Club, and  others alleging that we are all in conspiracy to defame him because we reported factually about the spate of SWATtings committed against myself, Frey, Erickson and others.  And he sued two senators for not appointing Merrick Garland to the Supreme Court.  So, if you are new to the story, go to this page and you’ll be able to catch up on what has been happening.

Now regular readers will recognize that name, Judge Vaughey, but I honestly don’t know how many of my readers have been following this Kimberlin Saga since May of 2012, so let me take a moment to review.

I guess it is all fair to say that this segment of the story started when I wrote this piece, probably one of the longest blog posts (assuming you follow the links to the rest of it) written in blogdom, and definitely one of the most popular and influential posts I have written.  If you are new to the story, it is hard to describe how influential it was.  In it, I lay out documentary and video evidence showing how Brett Kimberlin attempted to frame me for a crime.  Seriously, if you haven’t go read it.  That got read by a lot of people, but more importantly it convinced a lot of people that this was a bad situation, that it was serious, and it needed attention.  So other people started writing about it, who frankly had more reach than I did, and it cascaded from there.

So naturally, Brett Kimberlin tried to get a court order to stop it.  I discuss that whole saga here, here, here, here, and here.  The short version is that Maryland has an unconstitutionally broad criminal harassment statute (the constitutionality of which I am challenging, here), and then allows you to get restraining order preventing such alleged harassment called peace orders.  So he claimed that I was harassing him under two theories.

First, he said that since he set up Google alerts to let him know whenever anyone writes his name, by writing his name in a post I am causing Google to contact him and, therefore, that’s harassment.  Some case law suggests that unwanted contacts are a form of harassment, but the same statute specifically says that if you are trying to convey information to others, it is not harassment.  And besides, by that logic, if I set up a Google alert for “Barrack Obama” and Brett writes about Barrack Obama, I can claim he is intentionally contacting me.  So essentially you could use that to prevent a person from talking about clearly political matters, and that would mean the statute is unconstitutional...  oh, right, it is unconstitutional, but perhaps not in that obvious way.

Second, he said that by saying negative things about him, I was inciting violence against him.  Mind you he is not saying I advocated violence, just that if I say anything negative, that’s incitement.  Again, that is the death of journalism.  For instance, during that whole Enron debacle, do you think that Jeff Skilling got death threats?  So, we can’t report about Enron?  And certainly many employees of BP got threats when they had that giant spill in the Gulf of Mexico, so I suppose ABC News was harassing them by telling us about it.  And that mean old Woodward and Bernstein actually drove a president from office while reporting negative things about him and probably caused Nixon to get a few death threats.

And besides, there is a whole precedent that says that this is not enough.  There’s another case mentioned a lot in relation to what went on, but let me start with an older case, Near v. Minnesota.  That case concerned a court order shutting down a newspaper which was criticizing (and allegedly defaming) a local figure as a Jewish gangster (the opinion strongly suggests that this paper is being anti-Semitic), and calling out local officials for not arresting and incarcerating the individual.  In striking down this prior restraint on freedom of speech, the Supreme Court wrote that:

There is nothing new in the fact that charges of reprehensible conduct may create resentment and the disposition to resort to violent means of redress, but this well understood tendency did not alter the determination to protect the press against censorship and restraint upon publication

In other words, “yes, we recognize that sometimes reporting negative stories can get people angry enough to commit violence.  But that is not enough of a reason to justify censorship.”  So, the Supreme Court over time created a test for incitement in Brandenburg v. Ohio (meaning that incitement cannot be criminalized unless it meets this test):

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’s going to be very important in a minute.

Anyway, the links I have provided will give you a great deal more detail, but the bottom line is that on May 29, 2012, I found myself in a final peace order hearing defending my right to write freely, Judge Vaughey presiding.  Vaughey was retired at the time (I have been told that Maryland law requires all judges to retire at 70, and I have observed that many continue to sit in cases after retirement).  To his credit, Vaughey rejected this “contact by Google alerts” theory, but he focused on the theory of incitement, agreeing with Mr. Kimberlin that merely writing negative stories about him amounted to incitement.  Here’s one of the key exchanges:

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

A [me]             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                     Well, forget Brandenburg. Let’s go by Vaughey right now, and common sense out in the world

It is a rare thing to see a judge disregard controlling Supreme Court precedent by name, but there you have it.  So Vaughey declared that I could not write about Brett Kimberlin for six months.  And of course if you read the links or just know the story, you know that about a month later Judge Rupp stayed the majority of that restraining order in an order that cited Brandenburg by name.  As Ken White put it over at Popehat “That, boys and girls, is what lawyers refer to as a benchslap.”  And eventually the rest of the peace order—telling me I can’t go to Brett’s house, for instance, even though I never did and never wanted to—was vacated on July 5 of that year.

Oh, and on the same day that my essential freedom of speech was restored?  I was SWATted.  You can read where I discussed that, here.

So about a year ago, I took the time to write out a complaint against Vaughey.  Now, I am not going to share the complaint with you, mostly because I know Brett is writing complaints about judges and as much as he insults my competence, he learns a lot when he watches me in action.  He realizes I do a better job persuading people than he does and he tries his best to imitate me.  I don’t want to teach him how to write better ethical complaints, and so I won’t.

But the gist of it was this.  Front and center was the judge’s willful violation of Supreme Court precedent.  And really, any person who takes a moment to think about it realizes how dangerous Vaughey’s approach would be.  Second, I mentioned a long list of highly suspect conduct, with specific citations to the transcript of the hearing (which you can read here) and I mentioned in passing that Judge Vaughey was disrespectful toward me.  Bluntly, it barely got mentioned in my complaint because it’s the least important to me.  How can I say this?  When you grow up with disabilities like mine, you get used to people being cruel to you with no cause.  You learn not to let their ugly opinions get to you.  You learn not to care what they think.  Vaughey doesn’t like me?  Well, frankly, he was an ass, and I don’t care even a little what he thinks of me.

And, evidently, the Maryland Commission on Judicial Disabilities agrees, because about a month ago, they issued a reprimand against Vaughey for his conduct in that very case.  You can read it here (and I think you will greatly benefit from my analysis, afterward):

Update: There appears to be an attempt by some small person to prevent access to this reprimand, despite it being a public document, so that some can’t see it on Scribd.  Still, you can still read it on the Commission’s website, here.  It looks like someone is upset about this victory for freedom of speech.  I would suggest whoever it is should try to be a bigger person.

   Vaughey Reprimand by AaronWorthing

For the record, you can read it directly off the website, here.  Despite its private designation you can see if you read it that it was made public with Vaughey’s consent.  Now, a reasonable reader might say, “well, that was awful big of Vaughey.  He could have demanded that it be kept private, but he was willing to accept his reprimand in public.”  That might sound like a sign of genuine contrition, but I am inclined to think it is not.

Bluntly, this reprimand looks like a negotiated instrument.  Meaning, it is the product of what you might call a settlement agreement or a plea bargain.  I tend to think “plea bargain” is the better metaphor, because even though all of this is theoretically a civil process, the fact is potential outcomes are things that can be seen as punitive.

Now, let me say that what I am about to say is a matter of speculation.  I am basing this on the reprimand before you, the transcript I shared above, and even the apparently illegal audio of the hearing, which you can listen to here.  You judge for yourself. But to me, it looks like around a 90% probability that they went to Vaughey and said, “either agree to this, or we will do something worse.”  What gives it away in my mind is the fact that it says that Vaughey “waives his right to a hearing before the Commission and subsequent proceedings before the Court of Appeals” and “waives his right to challenge the findings that serve as the basis for this Private Reprimand.”  Not every plea bargain or settlement agreement gives up the right to trial (or its equivalent) or appeal, and not every waiver of the right to trial or appeal is proof of a such an agreement.  But more often than not, if someone is giving up those kinds of rights, it is due to a plea bargain or settlement agreement.

And of course the rest of it bears the hallmarks of its contents being negotiated.  I mean, isn’t the most serious thing Vaughey did the violation of my constitutional rights?  And yet the main narrative of the reprimand seems to be all about disrespect and the decorum of the court.  There doesn’t seem to be any discussion of how Judge Vaughey pretty flagrantly violated my First Amendment rights...

...until you actually read the rules they cite.  Like, say, what is that Rule 1.1. of the Maryland Code of Judicial Responsibility?  It must be important, because it is appears to be literally the first rule, so what does that say?  Well, the title is:

RULE 1.1. COMPLIANCE WITH THE LAW

Oh, wait, that doesn’t sound particularly good for Vaughey.  But what does it say, exactly?

A judge shall comply with the law, including this Code of Judicial Conduct.

Well, logically, there are only two laws Vaughey arguably broke when dealing with me: the peace order/harassment statutes, and the frickin First Amendment  And there is no reason why they couldn’t be saying he violated both.

And then there is the very next rule, 1.2.  The title of that is:

RULE 1.2. PROMOTING CONFIDENCE IN THE JUDICIARY

Oh, that doesn’t sound good for Vaughey.  What does that rule say?

(a)        A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.

(b)       A judge shall avoid conduct that would create in reasonable minds a perception of impropriety.

Mind you, while I have done a great deal to make this look prettier, I didn’t add the boldface.  It is in my copy of the code.  So don’t take that to mean I am saying that Vaughey didn’t act like an independent actor.  But as for his impartiality...  well, they cite Rule 2.2, which says:

RULE 2.2. IMPARTIALITY AND FAIRNESS

A judge shall uphold and apply the law and shall perform all duties of judicial office impartially and fairly.

This is the part, if I was Judge Vaughey, I’d start sinking in my seat.  Rule 2.3(a) states that “A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.”  And then finally, with the citation of Rule 2.8(a) and (b) the rules talk about maintaining decorum and that the judge shall be “dignified, and courteous” when dealing with pretty much everyone.  So regardless of what the narrative portion of the text says, they have declared that Judge Vaughey 1) broke the law, 2) was biased as hell and 3) was kind of a jerk toward me.  But the narrative only talks about courtesy.

So I think this was negotiated.  I believe the Commission read the transcript, maybe even listened to the audio, and said, “holy f—k, what is this sh-t?”  Then they went to him and said, “you clearly violated the rules, and we are going to bring holy hell down on you for it, unless you agree to this reprimand.”  I further believe that the original draft said in the narrative that he was biased and violated my constitutional rights and Vaughey negotiated with them until they were willing to keep it simply in the citation of the rules to save face.  So now, most lay people reading the reprimand would think the judge was being chewed out for being a jerk, while if you look up what they are actually citing him for, they are all but saying he violated my constitutional rights and was biased, too.

Of course it is all speculation.  For all I know, Vaughey could be genuinely contrite, and the Commission could be downplaying the more serious misconduct out of respect for him.  But here’s the clincher for me.  As far as I know, there has been no attempt by Vaughey to reach out to me and apologize.  I mean, it’s not hard to find my email.  If the board wouldn’t give him my contact information, I believe my home address is the file, so why not write a letter on that Royal Typewriter of his?  And how hard is it to find my blog and my email address?  And if he wrote a nice note and asked the Commission to send it to me, wouldn’t they have?  Or at least in the letter the Commission sent me informing me of their action, they might have said, “Vaughey also wishes to convey to Mr. Walker that he is sorry for his conduct” or something like that.  But... I get nothing.  You put all that together and I feel very confident that I see exactly what happened.  But, hey, it is speculation—you make up your own mind.

(And before you ask, I am not sharing the letter they sent telling me about this reprimand because it literally adds nothing.)

Perhaps some enterprising journalist will find and ask Vaughey if he is sorry, but I don’t think it is wise for me to do so.

Now, a few cynical people might say, “big deal.  He was reprimanded.  So what?”

Well, the “so what” is found in the first paragraph.  As I mentioned in the beginning, Vaughey is retired.  He was retired when he heard this case.  And as stated in the first paragraph of the reprimand, he can only sit in cases at the pleasure of the Court of Appeals.  I spoke with a person involved in the investigation and this is what he told me.  He said that of course he wouldn’t talk at all about the investigation and the formation of the reprimand due to the confidentiality rules covering the rest of the process.  That was disappointing but not surprising.  And he said, naturally, the Commission has no control over what the Court of Appeals does.  But you can observe that when X happens that Y tends to follow and he has observed that when this sort of thing happens, the Court of Appeals is likely to review and ultimately revoke a retired judge’s authorization to sit in on cases.  This is probably the end of his career as a judge.

I’m not a vicious man.  If I was told 1) I’d never have to deal with him again, and 2) he will never sit on a case involving First Amendment issues again, I would be more than satisfied.  I wouldn’t assume he can’t handle the other work of that courthouse.  I saw one ugly slice of his personality on one day, but I wouldn’t assume it is his whole being.  But I ain’t going to shed too many tears over this outcome, either, because his conduct was pretty outrageous, too.

I will say frankly that friends urged me to think long and hard before I filed my complaint.  I understood the risks, but I also remembered what Mark Steyn wrote about Vaughey’s behavior toward me:

Over the years, I’ve faced unsympathetic judges in various courts around the world, but I can’t recall ever listening to such a stream of unjudicial drivel from the bench as that which poured from Judge Vaughey. If Andy McCarthy or Ed Whelan or our other legal eagles can help me here, I’m genuinely curious: Is this Vaughey clod unusually awful? Or all too typical?

I said to myself, the answer couldn’t be that this was typical, and thus acceptable.  A couple of years ago, I found myself defending a person in court who had seen combat who was asking for protection from the violence of others, and I said something like this to the judge:

We say people like him fight for this country.  But what does that mean?  Does that mean he simply fought for a piece of dirt that someone called “America?”  It seems to me that America is more than a peace of dirt, that it is bundle of ideas.  Freedom and democracy is a big part of it, but there is also a whole web of ideas that go along with it that maybe we don’t even quite articulate when we declare that we love this great nation.  One of the big ones is that might doesn’t make right, in America.  Rather we have the rule of law and ideally most of our cases are decided based on those rules, blind to who is before them whether they are rich or poor, black or white, or whatever.

Okay, I probably wasn’t that eloquent, but you get the idea.  As I said, Vaughey’s disrespect didn’t offend me overly much because I don’t allow myself to be offended.  I don’t give people like him that kind of power over me.  But the idea that a judge could behave so atrociously on the bench and not face any consequences?  The idea that the Supreme Court itself and common sense could both be on your side and that might not be enough to protect your sacred right of freedom of expression?  Yeah, that does offend me and I wasn’t willing to let that stand.

And the fact that this is a ball-kick to Brett Kimberlin’s arguments against us is a nice bonus.  How many times has he whined that we criticized Judge Vaughey.  Well, the state of Maryland just told us we not only had a legal right to do so, we right, factually, to do so.

Anyway, so I will accept that victory with dignity and grace and...

Ah, who are we kidding?  Let’s do a little victory dance!

Always stay happy warrior, people.  Keep your powder dry and your popcorn fresh.

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My wife and I have lost our jobs due to the harassment of convicted terrorist (and adjudicated pedophile) Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the donation link on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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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.  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.