In Brandenburg v. Ohio, the United States Supreme Court, writing per curiam [a legal term meaning "we all think this is bleeding obvious. Not even the irascible octogenarians felt like dissenting."] said this about how the First Amendment protects alleged "incitement":
These later decisions have fashioned the principle that 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.
Aaron Walker went to court to refute Brett Kimberlin's bizarre, dishonest, and censorious claims that Walker was inciting people against him. Walker's decision to appear without representation was stupendously foolish, but he is not otherwise a fool, and he very sensibly cited Brandenburg to Judge C.J. Vaughey for the proposition that the First Amendment does not permit the court to forbid Walker from criticizing Kimberlin online.
Judge C.J. Vaughey was having none of it, where "it" means "the rule of law":
WALKER: But, your honor, I did not incite him within the Brandenburg standard though.
THE COURT: Forget Bradenburg [sic]. Let’s go by Vaughey right now, and common sense out in the world. But you know, where I grew up in Brooklyn, when that stuff was pulled, it was settled real quickly.
Judge C.J. Vaughey seems to have forgotten Brandenburg, or wants others to forget it.
The Maryland Circuit Court has just rather forcibly reminded him. Walker reports that today the Circuit Court granted his emergency motion for a stay or modification of Judge Vaughey's order, expressly stating that Walker may write about Kimberlin so long as he does not threaten him or incite imminent lawless action against him. For this proposition, the Circuit Court cited Brandenburg.
That, boys and girls, is what lawyers refer to as a benchslap.
Edited to add: multiple sources inform me that I have set a new Popehat record for typo density.
Edited again: this post is freaking cursed. Leave a comment if you are getting a sitemeter popup on your browser.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
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