Planet Valenti Muzzled: Another Restraining Order Against A Blogger

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.

Hat tip: Radley Balko.

Last 5 posts by Ken White


  1. says

    Pretty outrageous case, hope you find some assistance for him. This one is not merely bad judging but obviously corrupt.

  2. Chris R. says

    So would Valenti get in trouble if someone mirrored whatever they could recover from cache?

  3. Rob says

    So would Valenti get in trouble if someone mirrored whatever they could recover from cache?

    IANAL, but I don't think he could, given that he doesn't control the actions of other people. On the other hand, with the judge acting as an enforcer for the local little tin poobahs, who freaking knows?

  4. says

    Nothing proves I'm a measly little blogger better than the fact that all I've been threatened with is bogus defamation lawsuits; no court or law enforcement authority has ever threatened me over my blog postings. Guess I need to try harder. At least I've been threatened with arrest for engaging in free speech.

    Seriously, I live in Massachusetts, and I've emailed my local lawyer friends to ask if any of them knows anyone who might be able to help. I've also blogged about this, though like I said, I imagine my puny little blog won't make much of a difference.

  5. says

    Sadly, such small town small-mindedness is not unusual. I know of one case that bore uncanny similiarity to another, high-profile one in which a judge's correct rulings resulted in a great deal of outcry from liberals and such. So in counter of the negative publicity, in case #2 the same judge essentially ruled the opposite in each motion. And it was very strange how things like police reports and accident scene documents were nowhere to be found when requested by the defense during the criminal proceedings but somehow made it into the hands of the civil trial lawyer.

    All I can say is that public education ain't what it used to be and we are seeing the results across the spectrum, dangerously including our judicial system.

  6. Dave says

    I wonder, would Valenti get in trouble if he put everything back up with each instance of little miss above the law's name replaced with "Censored by Court Order"? That would follow the letter of the order, right?

  7. Kara says

    Wow. I read this realizing it was exactly my situation. I worked for a couple of years with a well known person in my industry who stiffed me on a very large contract he owed me. When I blogged about it, he filed a restraining order against me and I was required to take down all the information on my blog (facts, copies of emails and contracts between us) and to not contact him again or be arrested. To this day (nearly 4 years later) there is a permanent restraining order out against me which prohibits me from attending many of my industry functions because it would put me in proximity to him. Needless to say, I never got the money he owed me for the work I did either.

  8. Jim says

    Does he have a lawyer? There should really be a legal strike force that can attack these unconstitutional restraining orders on a nationwide basis.

  9. xenia onatopp says

    Just a quick thanks for covering this. I'm the reader who called Radley Balko's attention to this story, and it's gratifying to see people taking an interest in this outrageous violation of the First Amendment. Here in Pittsfield the court system really does have the reputation of being a law unto itself, but they may have overstepped their bounds this time.

  10. Anita says

    @Scott Jacobs – That was my first reaction, too! Maybe Massachusetts thinks pedestrians are "asking for it" just by being out walking.

  11. Madison Mike says

    The Supreme Court slams down and silences the State of Arizona, telling them that the handling of illegal aliens is solely a Federal responsibility, while the Federal agencies willfully ignore the job.

    Local courts slam down and silences bloggers, telling them that the reporting of news is solely an officially recognized news entity's responsibility, while newspapers and broadcasters willfully ignore the job and produce narrative and propaganda for the Democratic party.

    Curious times we live in. It's a shame nobody ever read Milton's Areopagitica, that called the King of England out for his dishonest claims to be "protecting the people from harmful and damaging speech that might be false by only allowing those authorized by the crown in advance the right to posses the means to print and distribute speech."

    America, you've become a tyrannical state. Hope you enjoy your "reality" shows and other drivel produced for your consumption.

  12. Richard Campbell says

    This judge should be impeached, period. If this judge comes up for election, this judge should be voted out of office, forthwith. This is a ridiculous violation of the 1st Amendment.

  13. MD says

    I sent this post in to the Boston Herald as a news tip for Howie Carr to write about. He loves taking on corrupt judges and probation officers. Right up his alley.

  14. BML says

    I just read about this in the Berkshire Eagle this morning, and thought about reposting it. As someone who used to live there, I can say, I'm not shocked – the place is pretty corrupt. I'm not surprised that the Chief of Probation's daughter got off and then got to silence a local blogger. As a former resident I'm disgusted. As a law student about to take the bar, I'm dumbfounded. I really hope that this catches the attention of some liberty-minded lawyer.

  15. Fred Edwards says

    This court's actions are despicable to say the least. Doesn't the state's AG have a responsibility to investigate this kind of obvious corruption?

  16. Ken says

    Is it possible for the blogging community to set up a neutral site (in another jurisdiction) that can be linked via a "Things I Have Been Prohibited From Mentioning/Things I Won't Discuss" link at the harrassed site? Let the homeboys chase someone in another jurisdiction. Is it practical? Is it legal? Is it even a good idea?

  17. EH says

    Anita. She can just say the dog appeared "aggressive," and since she didn't have a gun on her to puppycide the canine, she had to take out its owner.

  18. Base of the Pillar says

    Not surprising in the least for that area. I wouldnt go so far as to call the area corrupt as I would say that you're probably ok if you know someone ;) yes, you can get out of a lot with the right "references" (says someone who was certainly a beneficiary of it in his youth). Maybe that's not unusual though.

    I'm also not surprised that this dying city doesn't have the most capable judges of the state. I'm sure they assign judges out there as penance for some affront to the Boston establishment.

    Boy do I miss that area.

  19. Kinsey says

    If anyone ever deserved to have the full weight and glare and pain of the Streisand Effect fall upon them, it's this nasty little princess.

  20. says

    So this attempt to limit the spread of information: I am a drunk British guy sitting in an hotel in Oranjewoud in the Netherlands and I know about this disgraceful episode. Right. That would be a singular lack of success in suppressing the truth. Why is the name Streisand coming to mind?

  21. Fred says

    Dont forget, the Berkshires are the ONLY county that 100% voted against Scott Brown. It's as screwed up a place as exists on Earth. And its still part of the Appalachian chain… So….

  22. xenia onatopp says

    @Fred Edwards & @Fred, two words for both of you: Martha Coakley– she is the state AG and was Scott Brown's opponent last time around. She's also from Berkshire County, with strong connections to the local Democratic party and the county DA, David Capeless. The dots pretty must connect themselves, don't they?

  23. Max015 says

    The case is continued to July 9 for a hearing to determine whether the order should be continued.

    In cases like this it is imperative that the person against whom a protective order has been obtained have 1) a court reporter and 2 competent local counsel. Perhaps a fund to help Dan Valenti could be set up.

  24. tizio volpe says

    @Base of the Pillar:
    Not sure how long it's been since you've lived here but I would definitely characterize the Pittsfield of today as 'corrupt' not simply 'ok if you know someone'. At least the 'Good Old Boy' network (Business, political, legal, media) that runs the city. The man who tried to cover up his daughter's criminal behavior, Mr. Nilan, was also involved with some nasty business involving the former president of the local credit union and an assault and battery charges on a couple of teenage male prostitutes.

  25. Sunhawk says

    If it sounds like corruption and looks like corruption… it ain't whistling Dixie.

    Considering the local scale, the only way this worked is because the blogger in question resides in the district that the court in question oversees.

    Let's hope they try something with, say, this site, or another one of the ones covering the issue.

  26. Laura K says

    Pittsfield hasn't been in a good way for a long time, to my knowledge. –And Scott, Pedestrians have an odd status in MA. Sometimes they are the sacred cow that must not be touched, sometimes they are an enormous accident liability and sometimes car owners go for the "might is right" approach and run them down.
    And corruption, dependence on connections? Hell yes. I always heard, at least, that it was having a grand old time out in western MA and the berkshires.

  27. tizio volpe says

    @ Richard Campbell: Judges in Massachusetts are appointed for life, not elected and, generally, are not subject to any scrutiny with consequences. They operate completely independently and have a history of acting accordingly, sometimes, like in this case, ignorantly.

    This whole case stinks so badly it needs a complete public airing. So many people on the public payroll have acted completely without ethics that the only place to start is to make it as public as possible and expose them.

  28. Steve Johnson says

    Yes, the hypocrisy and utter shamelessness of the left is magnified 100X in Berkshire County. Having moved here 12 years ago from the Pacific Northwest (which has more than it's share of left wing lemmings as well), my eyes have been opened by the breathtaking leaps of irrational intolerance taken by the lefties here when you dare to question them. It's gotten to the point where you cannot even place a non-Obama sticker on your vehicle without encountering some rude cat calls or worse on a daily basis. In 04 I had a Bush/Cheney sticker on my bumper and it was defaced inside of a week. That is the mindset we are dealing with in the Berkshires. It's not surprising they close ranks around a child of one of their own.

  29. andrews says

    It may help to explain things if I point out that this is the same area where one Arlo Guthrie and one Richard Robins were arrested, jailed, and eventually convicted of littering. The police overreaction then appears to continue even unto the present day.

  30. tizio_volpe says

    @Steve Johnson:
    I don't think that this is a 'leftie' or 'rightie' thing. It seems that it's a sleazy, greasy 'machine politics/lawyer/courthouse' thing. And, fwiw, it has been my experience that it is usually the crazy 'righties' and crazy 'christians' who want to trample all over our rights and dictate moral behavior.

  31. Christopher Swing says

    @Steve Johnson
    It must be terrible going through life believing you're so beset upon no matter where you go.

    Corruption isn't exclusive to the left, right, or middle. It doesn't matter what "side" these officials on, what matters is their corrupt behavior.

  32. Fred says

    The judge's name, Bethzaida Sanabria-Vega, needs to be plastered over every blog post about this travesty. I just googled her name and it's not showing up yet…

  33. says

    So, how long has it been that lawyers, judges and law professor/lecturers don't have to actually read the Constitution, Declaration of Independence, Bill of Rights or the history of this nation? 40 years, 30 years? I seem to remember having to read it in school but that was back when teachers actually taught fact not fiction, taught instead of indoctrinated.

  34. mojo says

    "Sorry, your honor, but I am unable to comply with an unconstitutional order." could cause some fun – if you like jail food.

  35. Jess says

    It's too bad this case isn't getting more airtime. We are just too facinated by the train wreck that is Carreon. I'm going to watch this one closely and hope that some Planet Valenti gets to write about this in more detail in the future. Meanwhile other sites are picking up his historical postings so hopefully Nilan will begin to feel the Streisand Effect soon.

  36. tizio volpe says

    Actually, I have a lot of problems with this editorial but for now I'll give you just one: A judge is infringing on someone's free speech rights. Period. No buts; no excuses; no lame justifications. A person who has the power and resources to remove your liberty has declared that you (the blog) do not have the right to say or write about what you want. The main purveyor of free speech in this same judge's geographical area should be outraged; should be calling for her to rescind her order; should be supporting, without prejudice, the individual's right to say whatever they want whether it's good, bad or indifferent. The Berkshire Eagle would certainly defend their own right, without prejudice, to communicate freely (as they have in the past) and they have an obligation, in my opinion, as the main seller of information in this market, to stand up when an injustice is done to someone who is doing the same thing as they are in their market. Quite simply, they failed to do this. Imagine that you are an elementary school teacher discussing free speech rights with your class. Do you think that you could take the Eagle's editorial position as a positive example of explaining free speech to kids? Hmmmm…

  37. says

    Like you, I would have liked the writer of the editorial to have been more forceful, but I think they did support the blogger, implicitly if not explicitly, and I can't seem to find within myself the same level of outrage as you over the fact that their condemnation of the judge as not stronger.
    I also agree with you that they shouldn't have used this incident as a jumping off point for a gratuitous swipe at citizen journalism. Yeah, that was pretty obnoxious.
    But it's their editorial page, and they have the right to focus on whatever they think is important. And, frankly, I agree with them that much of what passes for citizen journalism in the blogosphere is crap.

  38. tizio volpe says

    @Jonatathan Kamens:
    What you characterize as 'implicit' support I would characterize as perfunctory, unprincipled support and therein lies the problem. Free speech is not something that should be treated with indifference particularly by a full-service newspaper in a small market. Imho, newspapers (read editors and publishers), who trade in free speech, MUST be vigorous, enthusiastic supporters of anyone's free speech rights; bloggers and individuals included (bloggers, in particular). It is a newspaper's stock and trade and they defend THEIR rights vigorously and enthusiastically. I feel strongly that they have an obligation to us as bloggers and as individuals to defend our rights also. In this defense, they make their own rights more secure; it is a simple, logical line to draw. The more I think about it the more disgusted i get.

    There is also something more insidious going on here. The Eagle is using well-known pr techniques (framing) to change or alter the dialogue about this sordid incident. They are clearly trying to reconstruct the "social reality" about Ms Nilan and Mr. Nilan's behavior.

    "To frame is to select some aspects of perceived reality and make them more salient in the communicating text, in such a way as to promote a particular problem definition, causal interpretation, moral evaluation and/or treatment recommendation for the item described."

    Whether this is being done willfully or not it is obvious that the Eagle is doing this here. I find this as disconcerting as their failure to support Mr. Valenti's free speech rights and am equally disgusted by this strategy.

    Finally, one person's crap is another person's fertilizer. It doesn't matter how anyone feels about a particular blog, blogger, commenter or 'citizen journalist' (and their content). What matters is that they are allowed to say what they want when they want to say it without threat to liberty by a constitutionally indifferent judge who clearly doesn't understand her responsibilities.

  39. Kate says

    Just lost a longer post so..condensed version.

    Kudos for sending the story to Boston Herald. Everyone should send it anywhere and everywhere they can think of. Only critical eyes beyond the Berkshires will have any effect.

    This judge is new, nominated in 2012, and was a DA and sole practitioner so I doubt she's a constitutional scholar but it doesn't even take a law degree to see the huge First Amendment issue here. The Commission on Judicial Conduct in MA accepts complaints against judges and investigates. There's a Code of Judicial Conduct which highlights several areas of concern in this case.

    Lastly, I almost didn't post because of the political barbs. I'm a lifelong Berkshire County resident and didn't vote for Bush or Scott Brown and fail to see how this determines my character. This is garden variety crony corruption that exists regardless of political affiliation and which is brought to light by people of good will acting cooperatively rather than insulting each other about uninvolved political candidates and party ideology.

    Lastly, I hope Mr. Valenti is securing competent representation. I don't know much about him as I don't live in Pittsfield or normally follow Pittsfield politics but I assume he is smart and savvy enough to contact someone appropriate, preferably someone who likes to make noise.

    This is what I've been doing for my 4th of July, reading up on this issue and spreading it around. Our system of government doesn't work unless it works the same for everyone.


  1. […] Maybe being a Carreon isn't what it's cut out to be after all. It seems to me being a Nilan is where the dinosauce(R) is. Take Meredith Nilan for instance, this girl goes around hitting people with her car one night and then doesn't even stop, what happens to her? Nothing. Yeah that's right. Clifford J. Nilan, Chief Probation Officer of the Berkshire Superior Court is her pops, her daddy-o, her old man. It pays knowing people in the court, I bet I could subjugate many a blogger for dinosaurs if I had someone like that in my corner. The best part? The only guy blogging about it not only gets ordered to stop, but has to delete all his old posts. I mean these Nilans got dinosaur blood running through their veins. Nilan's attorney sought dismissal when court documents from her case mysteriously disappeared… […]

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