This month, in the Kimberlin v. Walker affair, we saw how a technologically illiterate and constitutionally indifferent judge could ban a blogger from writing about a public figure, requiring the intervention of an appellate court.
Does that happen all the time? Or was it — as a lawyer would say, if the lawyer were trying to annoy people — sui generis?
Well, I don't know about "all the time." But it looks like it has happened again.
Dan Valenti blogs in muckraking style about local issues in the Berkshires of Massachusetts at Planet Valenti. He's got fans and readers and plenty of commenters, but also detractors — one local source says the blog has "several times become a center of controversy and accusations of inaccurate reporting."
When I reached out to him, Dan described his vision of the blog to me:
Our focus tends to be local. We try to provide information that otherwise would not be made available or would not see the light of day. We believe strongly in the "marketplace of ideas," and that no one has copyright on Truth. Our major premise is that We The People own the government. We try to be the "voice of the Little Guy." Mythically, my two prototypical "Little Guys" are the fictitious "Mary Jane and Joe Kapanski." They are the ordinary, everyday people who get up, go to work, pay their bills and taxes, and who too often are expected by politicians, officials, and local Poo Bahs to keep their mouths shut. I try to speak for them in an attempt to level the playing field a little bit.
No doubt it was this ethos that led Dan Valenti to focus on the story of Meridith Nilan.
Nilan is a local citizen — but also the daughter of Clifford J. Nilan, Chief Probation Officer of the Berkshire Superior Court. Nilan came to Valenti's attention — and the pages of Planet Valenti — when she was charged with a hit and run:
Meredith Nilan was driving her father's car the evening of Dec. 8 when she struck 45-year-old Peter Moore on Winesap Road as he walked his dog, according to police.
She has been charged with two misdemeanors: leaving the scene of a personal injury accident and negligent operation of a motor vehicle. Versions of the event conflict. Meredith Nilan says she didn't know what she hit and left after checking; police say she struck Moore and drove off. Moore was knocked unconscious, and says he has no recollection of being hit.
Moore was seriously injured — he suffered a broken neck and a concussion. He's lucky to be alive.
How did the case proceed in this prosecution of the daughter of a high-ranking court official? I'd say — oddly. A magistrate originally refused to find probable cause against Nilan, and barred Moore from the hearing. Later another judge overturned that ruling. Nilan's attorney sought dismissal when court documents from her case mysteriously disappeared. On June 6, prosecutors dismissed the charge of leaving the scene of an accident, and the court continued the misdemeanor negligent operation charge for six months — which is usually a preface to dismissing it if the defendant stays out of trouble.
Did Dan Valenti blog about that — about the daughter of a court official getting what appeared to be preferential treatment? Did he ever. You can't see his posts directly now, for reasons you'll see in a minute, but you can still find them in Google Cache, and see Valenti's criticism of how the case was handled, with speculation about whether political power was the cause:
Ah, the matter of the search warrant — ’tis a thing of beauty. Mysteriously, the Pittsfield police can’t get the courts in Pittsfield to issue a warrant. Was that because Cliffy Nilan knew they wouldn’t do so because of his connections there as the head of the Probation Department? Did he think police would give up or drop the case because it was politically too hot to handle?
More recently, upon the apparent resolution of the case, he wrote this:
In Central Berkshire Court yesterday, Meredith Nilan go off as expected: Lightly. The daughter of Clifford Nilan, head of probation for Berkshire Superior Court, pleaded guilty to one charge of misdemeanor negligent operation of a motor vehicle. She admitted she was the driver of her father’s SUV on Dec. 8, the night she struck and almost killed pedestrian Peter Moore, who was out walking his dog Toby. Toby stayed. Nilan drove away.
‘Continued Without Finding’
As part of the deal struck between her attorney, Tim Shugrue, and Worcester special prosecutor Joe Quinlan, Nilan’s guilty plea became a “continuation without finding of guilt.” A charge of leaving the scene of a personal injury accident was dropped. The verdict brought a combination of outrage from many who have been following this case and resignation from those who pointed out the verdict was about as expected for a first-time offender.
Apparently Meredith Nilan had enough. This week, Nilan sought and obtained a "harassment prevention order" from Central Berkshire District Court Bethzaida Sanabria-Vega — that is to say, from a judge in the same court where Nilan's father is a senior official, the same court that lost the paperwork in her case previously. Judge Sanabria-Vega not only ordered Dan Valenti to stay away from Nilan — she ordered him to take down his blog posts about her case:
In granting the harassment prevention order, Judge Bethzaida Sanabria-Vega ordered Valenti to remove "any and all references" of Nilan from "any and all websites, blogs, etc. …" The order also requires Valenti to stay 100 yards away from Nilan, stay away from both her place of employment and home, and refrain from any contact or abuse.
. . .
Sanabria-Vega issued the harassment prevention order without notifying Valenti in advance because she "determined that there is a substantial likelihood of immediate danger of harassment," according to court documents.
Nilan claims she needs such protection because of threats
Nilan told The Eagle that Valenti’s blog contained lies, innuendo and disortions about her and her family, and that she’s been the victim of threats.
"Mr. Valenti’s continued vitriol and his repeated inclination to print lies and sensationalize every aspect of my case has made me fear for my personal safety," Nilan wrote in a statement to The Eagle. A Las Vegas man is facing charges for threatening her life.
That was, apparently, the basis for her application for the order:
On her application for the harassment prevention order, Nilan stated that Valenti had been writing "lies and innuendo" about her.
. . .
On Wednesday, Nilan gave The Eagle a written statement concerning Valenti and her car accident. She said that ever since the December accident she has read "terrible, terrible things" written about her and her family, seen "lies printed in the media and online" and has been threatened "with acts of violence including murder, rape, and other atrocities on Valenti's and other websites."
Under threat of contempt and imprisonment, Valenti has complied with the judge's order, pulling the many posts about Nilan from Planet Valenti.
This, in some ways, is worse than the egregious order Brett Kimberlin got against Aaron Walker. Judge Sanabria-Vega has not merely prohibited someone from speaking about a criminal proceeding — she's ordered that person to delete what he's previously written, all without a hearing. Moreover, the theories on which Nilan sought an order — and on which Judge Sanbria-Vega apparently granted it — appear plainly unconstitutional. Prior restraint on otherwise protected speech (that is, preventing Valenti from writing about Nilan at all) is only permissible in very rare cases, and orders requiring the removal of defamatory material generally come only after a full trial on the merits. Moreover, Valenti tells me that Nilan has never informed him of what specific facts he has printed are false, and nothing in the press coverage of this order or her statement identifies any such specific facts. Remember my mantra — vagueness in legal threats is the hallmark of censorious thuggery.
As to threats, Nilan's theory appears to be similar to that of convicted domestic terrorist Brett Kimberlin — that if a blogger strongly criticizes someone, that blogger is legally responsible for reader reactions, and may be prohibited from blogging further if readers react with bad behavior like threats. As the appellate court has found in Kimberlin, that's just not the law — only incitement that is calculated to cause, and likely to cause, imminent lawless action may be prohibited or punished. That's a good thing. Otherwise, all the nuts of the internet have a heckler's veto over Dan Valenti's speech, and your speech, and mine. If we're responsible for bad people responding to critical (as opposed to genuinely inciting) speech, then the more contemptible somebody's behavior, the more dangerous it would be to write about them. Moreover, in the digital age, such an unprincipled legal rule is ripe for fraud — it's trivially easy for someone seeking a protective order to lie about receiving threats, and nearly as easy to send false-flag threats to create a justification for censorship.
Dan Valenti's case, like Aaron Walker's, highlights how protective orders can pose a grave risk to First Amendment rights if judges issue them without applying scrutiny premised on fundamental First Amendment principles. The more that judges approve applications like Brett Kimberlin's and Meredith Nilan's, the more that people will be emboldened to abuse the protective order system to silence criticism. If Dan Valenti has written false facts about Meredith Nilan, she can sue for libel, and carry the appropriate burden dictated by the First Amendment. If she's been subjected to threats, she can seek remedy against the actual culprits. But there's no excuse for judges to use their coercive power to protect her from commentary because of how unidentified strangers on the internet might react.
Threatening Nilan or her family is inexcusable. Decent bloggers should moderate threats on their blogs, and decent people should shun threateners and help the police find them. But censorship is contemptible too. The best remedy for that — the best remedy for unlawful and improvident orders like this one — is sunlight. The more often that the Streisand Effect takes effect, the less that would-be censors will seek illegitimate support from the court system.
Dan Valenti has a hearing coming up on Nilan's harassment claim on July 9, 2012. He needs a lawyer to protect his rights. He's not a rich or powerful man, and he's up against someone who seems to have the rather full support of the local court system. If any of my readers can help him — or if you know someone who can — please drop me a line. I'll be asking around behind the scenes for pro bono counsel.