Oh, Oh, Right. THAT Brandenburg.

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


  1. C. S. P. Schofield says

    In your experience, do Judges throw tempeer tantrums when rebuked in this manner?

  2. Gal says

    Does Vaughey get any kind of censure for this? does the judicial system has the equivalent of a performance review board? I'm just shocked by the way his decision making process seems to work.

  3. Peter says

    Hopefully the court issues a restraining order on Kimberlin so that he doesn't just go get another peace order and start this mess all over again.

  4. Mad Rocket Scientist says

    I just imagine some senior, reasonable judge walking into Vaughey's office & asking him just what in the hell he thought he was doing, and then whapping him in the head with a rolled up copy of something legal & heavy.

  5. Chris says

    I imagine the judge walking into the office of his superior and being asked to turn in his robes and his gun.

  6. says

    "…asking him just what in the hell he thought he was doing…"

    Objection! Question presupposes that Judge Vaughey was, in fact, thinking at the time.

  7. GadsdenJazz says

    For this proposition, the Circuit Court cited Brandenburg.

    That, boys and girls, is what lawyers refer to as a benchslap.

    Yes, the judge signed that order, meaning he put his imprimatur on it, and it IS a benchslap. That said, Attorney Bours authored the order. The benchslap was not a product of the court's own initiative. Does that mitigate the rebuke? Decide for yourself.

  8. says

    Huzzah for a bit of sanity! And by sanity I mean actually following the
    law as it is practiced and forcing sworn judiciaries to notice when they have not. This makes me happy.

  9. Barry K says

    Brandenburg…I know ye so well. Not too often your dad represents the county in the Supreme Court. Even fewer times that he loses what becomes a landmark case.

  10. VPJ says

    In your experience, do Judges throw tempeer tantrums when rebuked in this manner?

    We can only hope so.

  11. says

    In truth, I don't think that Vaughy really gets too worked up when overturned. Whatever we may think of how he handled the Kimberlin horse manure, its not the most important thing that's ever happened to him – no matter how much its disrupted Aaron's life.

  12. says

    From a wifi in Toronto. Thank goodness! I thought the Canadian version of the NSA had taken over my iPhone.

    In a prior life I appeared before Vaughey as a local lawyer He wasn't as bad as some but Disrtiict Court's are People's Court's of fast, rough justice and US courts have FAR too many octogenarians on the Bench, in USDC' s even more than state courts. The Americans might learn from other systems.

  13. James H says

    Not even the irascible octogenarians felt like dissenting

    "When I was your age, I had to walk to the court, with all of my lawbooks on my back, uphill BOTH WAYS, through the snow, to file a cert petition. AND I LIKED IT!!"

  14. shipwreckedcrew says

    I did not get the pop up here, but I got it at Patterico for the first time ever just a few minutes ago.

    I'm guessing the one thing many of us have in common is having visited Aaron's site to read his post and the documents. I wonder if someone has planted some piece of malware there.

  15. Ancel De Lambert says

    Should Vaughey's mother seduce a Kodiak, would he demand to know whether she had asked the park ranger first?

  16. 1_Eagle (twitter) says

    Bookmarking the site. This article was more delicious to me than apple pie a la mode. Love the way you write. And what good news to hear that Kimberlin is finally smacked down in the courts (and the obviously senile bench sitter as well.) The wheels of Justice turn slowly sometimes, but with persistence, they keep on turning. Kimberlin's cat is out of the bag. If he (and his comrades) continue down this path they will end up serving time. The world is watching them now.

  17. says

    I didn't get a sitemeter popup here, but I have several other places, including my own blog. At least on my ipad, not tried it on my desktop. Its not you, its sitemeter.

  18. says

    I really have problems with the "Liberal" and "Democrat" "media bias" etc comments espoused on the A.W. and supporting sites. Most Lawfare practitioner people I have ever heard of were Republicanesque while trying to look all tea-party or taxer-truther and whatever.

    There, how did you like that? Sound unneccessary? cha. 8-)

    Really, A.W. seems to be getting victimized, but I don't think it has a wet slap to do with anything political so whats with all the poly-speak crocodile tears in the responses?

  19. says

    shipwreckedcrew, the sitemeter popup has nothing to do with Aaron's website.

    Robert White, nothing to do with anything political? Then you are utterly ignorant of the Kimberlin/Rauhauser obsession with Weiner's twitter scandal? Ignorant of their association with Occupy movement? Kimberlin/Rauhauser's vendetta against O'Keefe and Breitbart?

    It takes a lot of ignorance to believe that Kimberlin's wave of frivolous litigation and false police reports is not political.

  20. says

    For that matter, White, just read the incoherent ravings of Kimberlin in his opposition to the Maryland prosecutor's motion to nole pros the criminal complaint – read how Kimberlin tried to politicize what he claimed was harrassment of him with claims of how national and international interests were following the case.

  21. says

    Incoherence is, by definition, distancing. I don't doubt that K. is nutz. That his nutzing is interlocked with legitimate positions of any larger organization is tarring with a dirty brush.

    J. Dalmer was a Christian who wanted to make sex zombies because being gay was against God so he wanted to be as little gay as possible. That doesn't make his position "a Christian position" or "a Gay position" it makes it broken and nuts several times over.

    K.'s choice to associate himself with positions was K.'s choice.

    If I went around claiming to be God's Apointed Representative of the Internet Person known as SPQR it wouldn't be a reflection of you.

    Come-on… this is basic human reasoning here. There is no evidence of any "liberal conspiracy" in the actions of a total gang of, so far, four (?) nutjobs.

    Histrionically conflating this into a battle of liberal vs conservative bloggers world wide is rather an act of retiring to the fainting couch while clutching ones pearls and having an attack of the vapors.

  22. says

    To perhaps amplify and clarify…

    When I was nine, so like in 1973, the father of my best friend Armando, a.k.a. Mister Izzereli (spelling) was sued repeatedly by his neighbor Mr. Lampbert. The causes of action were varried. "'Your fence' is half an inch too close to my house" etc. (Mister I eventually constructed an excruciatingly correct masonry wall right along a court surveyor's mark.)

    This was clearly racism and all sorts of sour grapes turned into lawfare.

    I could, were I so inclined, to turn this into a complex instance of whole block partisanship and dirty innuendo. Indeed many people did. The very white Mr. Lampbert didn't like all the porchagese fishermen moving into the neighborhood and took it out on Mr I., even thogh Mr. I. and family was pure Italian. Then again a particular cross-section of the boys were often invited to swim in Mr. L.'s pool, Including Mr. I.'s youngest son, but not a lot of splashing was to be heard. etc.

    People started promoting agenda and making various claims. The smart people stayed out of it as much as they could but those intent and determined to see villainy at each turn just had to speak.

    The simple truth of the matter is that Mr. L. just decided to go rabid and Mr. I. was the target.

    If I rushed in and claimed that Mr. L. was in the Lion's Club and so the Lion's Club must hate all Italians because they support the porchagese, then I would be a idiot using an idiot brush to paint people with my idiocy.

    Crazy Stupid Crazy is a highly localized phenomenon which effects individuals and then does "splash damage" to their close associates.

    I suspect that everyone in the Maryland court house recognized crazy stupid crazy and didn't want to do any more than the minimum required by policy in order to keep the splash damage to a minimum. Sure that's not justice, but there is no justice when Crazy comes knocking.

    One of the most important reasons to -never- act as your own lawyer is related to the crazy effect. If you -objectively- read A.W.s filings and web page he gets repetitious in a way that sounds a little crazy too. (I am not a lawyer, but I have read a surprisingly large number of legal papers. /sigh). That A.W. crazy is understandable, its in the splash damage category, where you keep going back to the obvious flaws in someones argument as if, should you get the wording just right, all things will be made clear.

    The problem is covariant repetition is anathema to clarity. It literally boggles the mind of the reader. It comes in under the "methinks the lady doth protest overmuch" factor where humans are per-programmed to disbelieve repeated statements of innocence.

    I think the court (not counting Vaughn) and AG etc in Maryland are "naturally" being dense when A.W. represents himself because they have seen crazy before. And real crazy people have an advantage over people being driven crazy by a crazy person. The honestly crazy have practice and internal consistency for the organic nature of the crazy.

    My mom was K.-style crazy, and it took us -years- to figure out the insidious ways she could play sane to an audience. She would -usually- "win" the initial contacts with professionals, even psychiatric professionals, in any manner of disputes. I don't fault the A.G.'s office for "falling for" K.'s nut-job-ness initially because I can imagine my mother pulling it off quite easily.

    But this is crazy-guy-on-victim mental-violence and general lawfare.

    This stopped being political long, long ago. IMHO of course.

    I am glad A.W. now has good legal help. He will need it. This kind of crazy never really stops until its perpetrator moves on to juicier targets or drops dead alone in their bathroom and lies undiscovered long enough to make it stick.

  23. ShelbyC says

    Are you sure you have your latin right re "per curiam"? Wasn't Bush v. Gore per curiam?

  24. Damon says

    Sadly, the "benchslap" did not result in a physical "bitchslap" of Judge C.J. Vaughey by his boss, quickly followed up with a lawyer version of "dude, what the hell were you thinking, dumbass? Don't screw up like that again."

  25. says

    Robert White, Kimberlin is not acting alone. He's created a set of non profit organizations, and obtained substantial donations to them in large part via his nutty behavior. This is the same guy that first achieved political attention by inserting himself into the '84 election by claiming to have sold Dan Quayle marijuana.

    Currently he's inserting himself into political issues such as the Occupy movement. He and Rauhauser have strong connections with the left end of the Democrat party and they are not being excluded as a result of their actions.

    We'd like to see this become non-political and non-partisan with Left ward persons step up and condemn Kimberlin et al. But its not happening yet.

  26. luagha says

    As I'm sure people have mentioned, Vaughey is a retired acting judge. He is called in on occasion to help with workload. Most of the year he lives in the Caribbean.

    The timing of many of Kimberlin's actions is suspicious. Whether he 'has an in' on the local court system and can pick his judges or just knows how to time it by filing in off-hours so he gets a goofball not up to speed is unknown.

    So no matter how goofy he is, he can't be made to retire. He's already retired. All they can do is quit calling him in, and why bother?

    Another possibility is that all the other judges put Vaughey up on the list to deal with Kimberlin just on the basis of 'He lives in the Caribbean and he isn't on the internet. It would be a lot of time and effort for Kimberlin to harass him and Vaughey might not even notice. Let's have him be the judge.'