The Volokh Conspiracy

That’s H.F. No. 826, which requires schools — including private schools that get any “public funds or other public resources” — to ban, among other things, “bullying” at school, defined as

use of one or a series of words, images, or actions, transmitted directly or indirectly between individuals or through technology, that a reasonable person knows or should know, under the circumstances, will have the effect of interfering with the ability of an individual, including a student who observes the conduct, to participate in a safe and supportive learning environment. Examples of bullying may include, but are not limited to, conduct that:

1. places an individual in reasonable fear of harm to person or property, including through intimidation;
2. has a detrimental effect on the physical, social, or emotional health of a student;
3. interferes with a student’s educational performance or ability to participate in educational opportunities;
4. encourages the deliberate exclusion of a student from a school service, activity, or privilege;
5. creates or exacerbates a real or perceived imbalance of power between students;
6. violates the reasonable expectation of privacy of one or more individuals; or
7. relates to the actual or perceived race, ethnicity, color, creed, religion, national origin, immigration status, sex, age, marital status, familial status, socioeconomic status, physical appearance, sexual orientation, gender identity and expression, academic status, disability, or status with regard to public assistance, age, or any additional characteristic defined in chapter 363A of a person or of a person with whom that person associates, but the conduct does not rise to the level of harassment.

First, what does interfering with “the ability of an individual ... to participate in a ... supportive learning environment” mean, exactly? Say that students are talking over lunch about how a classmate committed a crime, cheated, said racist things, treated his girlfriend cruelly, or whatever else, which causes people to feel hostile towards the classmate. That interferes with his ability “to participate in a ... supportive learning environment.” Presumably that’s now forbidden, right?

Second, what on earth does “creat[ing] or exacerbat[ing] a real or perceived imbalance of power between students” mean? What kind of power? Social power? Financial power? Power within student-run institutions, such as clubs or businesses that students set up?

Third, what does “violates the reasonable expectation of privacy of one or more individuals” mean? The disclosure of private facts tort doesn’t really tell us, because it is by design limited to speech said to a large group. Would a girl telling a friend that her ex-boyfriend has an STD violate the ex-boyfriend’s reasonable expectation of privacy? (What if the boyfriend is hitting on the friend?) Would revealing a secret qualify? Revealing an acquaintance’s religious or political beliefs, if the acquaintance views them as a private matter?

Fourth, “relates to the actual or perceived race, ethnicity, color, creed, religion, national origin, immigration status, sex, age, marital status, familial status, socioeconomic status, physical appearance, sexual orientation, gender identity and expression, academic status, disability, or status with regard to public assistance, [or] age ... of a person or of a person with whom that person associates” would require restrictions on a vast range of speech.

Condemning illegal aliens, Scientologists, people who marry too young, people who are flunking out of school, or people who are on welfare would have to be forbidden as “bullying.” That’s true whether one says this about a student, about the students’ family members (“person[s] with whom that person associates”), or presumably about the group as a whole: After all, even a general condemnation of illegal aliens might interfere with the ability of an illegal alien student who “observes the conduct” to “participate in a ... supportive learning environment.” (It’s not very supportive when people think that people like you should be deported, no matter how strong the case for deportation might be.)

Now public schools have broader authority to restrict student speech than does the government acting as sovereign. But even public schools’ authority is limited (see here for more details); and a public school policy that’s this broad would, I think, be unconstitutionally overbroad and thus invalid on its face, see, e.g., Saxe v. State College Area School Dist. (3d Cir. 2001) (Alito, J.). The government’s use of funds for private schools — even funds that amount to a small fraction of the school’s budget — as leverage to suppress a wide range of speech at those schools is even more constitutionally problematic, see FCC v. League of Women Voters (1984). And beyond that, the proposal’s overbreadth is bad policy as well as being unconstitutional.

For more on this topic, see my 2011 testimony before the U.S. Commission on Civil Rights about possible problems with restrictions on supposed “bullying” in K-12 schools.

Prof. Brian Leiter is apparently grossly offended that an attorney sent him an email stating “You’re a ‘Law and ______’ Professor, not a lawyer.  How would you know how to ‘think like a lawyer’?”  Leiter not only sent his correspondent a pointed lengthy response criticizing his “impertinent,” “juvenile,” and “insolent” email,  but added at the end that “I will be sure to send a copy of this entire correspondence to the name partners of your firm,” suggesting that the attorney should be punished, or at least formally reprimanded.

Of course, being a philosopher who values reason and consistency, I’m sure Prof. Leiter would seek to have the same standard of civility applied to everyone, including himself.  And writing “how would you know how to ‘think like a lawyer?’” in private correspondence, by a rather anonymous chap no less, seems relatively tame compared to some of what gets stated publicly in the blogosphere by prominent individuals, such as calling one’s professional colleagues “morally deranged,” ”crazies“, “instaignorance”, and so forth and so on–the kind of statements Leiter, certainly henceforth, would never, ever make.  But if he does, you know whom to contact to complain about “impertinent,” “insolent,” and “juvenile” postings.

Of course, unlike young attorneys, tenured law professors are largely immune from sanctions when engaging in speech related to public issues.  But that, of course, wouldn’t stop any upstanding professor from voluntarily waiving such protections and allowing himself to be penalized for the same kind of conduct he would want others punished for, now would it?  Thanks to Brian’s standard-setting, we can now look forward to a much more civil blogosphere.

UPDATE: Here is Leiter’s response, in full:

Meanwhile, the poster boy for the Dunning-Kruger Effect, David Bernstein, thinks this is all about civility and manners as opposed to stupidity and insolence–and, more seriously, in the case of some of the others, libel and malicious harassment.   I’m sure Bernstein will  do a great job moderating comments on his intervention to insure his commitment to civility!  For my own views on civility, see this short essay.

Right, because calling a professional colleague “the poster boy for the Dunning-Kruger Effect” is neither stupid nor insolent (putting aside the hairsplitting question of what exactly separates incivility from insolence). Indeed, it’s wise and respectful!

I have a challenge for Prof. Leiter.  Let’s take the adjectives with which he has described the correspondence that prompted this round: juvenile, impertinent, and insolent.  Let’s get a panel of three neutral arbitrators, perhaps chosen from ABA ethics committees.  And let’s take some of Leiter’s choicer blog posts, and let the arbitrators decide whether his posts meet the accepted definition of juvenile, impertinent, and insolent.  (We can start with the one quoted above, though that’s a relatively tame one by his standards).  And since he obviously thinks there should be professional consequences for juvenile, impertinent, and insolent writings, if the arbitrators agree that his posts meet the definition for which he chose to try to humiliate and punish his hapless correspondent, he’ll take unpaid leave from Chicago for a year.

Obviously, I don’t expect him to take the offer.  It would be foolhardy, and he’s no fool.  It’s one thing to try to provoke professional sanction against a hapless young lawyer who sent a single admittedly rude email.  It’s another to risk professional consequences to oneself, for one’s  own much more significant long-term pattern and practice of juvenile, impertinent, insolent, and may I add obnoxious, public internet blog postings.

UPDATE: More from Prof. Jacobson and Prof. Campos.

That’s what this New Mexico bill would provide:

BULLYING.–

A. Bullying consists of a pattern of intentional conduct, including physical, verbal, written or electronic communication, that creates a hostile environment and substantially interferes with another person’s physical or psychological well-being and that is:

(1) motivated by an actual or perceived personal characteristic, including race, national origin, marital status, sex, sexual orientation, gender identity, religion, ancestry, physical attribute, socioeconomic status, familial status or a physical or mental ability or disability; or

(2) threatening or seriously intimidating.

B. Whoever commits bullying is guilty of a petty misdemeanor. Whoever commits bullying that results in bodily harm or substantial emotional distress is guilty of a misdemeanor.

Note that this is not limited to speech said to a person, but could cover speech about a person — for instance, harsh attacks on a politician, community leader, academic, journalist, and the like based on the person’s religion, wealth, sexual orientation, and the like. And though the bill is being marketed as protecting children, it is not at all limited to speech about children. Indeed, the speech is not on its face limited to speech about any particular individual, and might cover offensive speech about groups as well, though it would be bad enough even if it were limited to speech about a particular person.

Such restrictions are troubling enough (and, I’ve long argued, unconstitutional when not limited to unwanted speech said to the person), when it comes to “hostile work environment harassment” law. But this bill would broaden this to cover speech everywhere, and make it a crime as well.

A new Vernon County, Wisconsin ordinance provides a $50 to $500 fine — or, if the fine isn’t paid, up to 30 days in jail — for

send[ing] information to another person by electronic means with the intent to annoy, offend, demean, ridicule, degrade, belittle, disparage, or humiliate any person

if the information “serves no legitimate purpose,” whatever that means. (A city ordinance in the Vernon County seat, Viroqua provides the same, but requires “repeatedly send[ing] information”; the Vernon County ordinance omits the “repeatedly.”)

This isn’t limited to offensive e-mail sent to a particular person that’s intended to offend that person. If you post a message about me on your Facebook page with the intent to annoy, offend, demean, ridicule, degrade, belittle, disparage, or humiliate me, that would be covered — if it “serves no legitimate purpose” — since you’re sending information “to another person” (any reader of the Facebook page) intended to annoy etc. “any person” (me). Indeed, a lawyer who spoke in favor of the law at the hearing at which it was enacted specifically stressed that the law would cover Facebook.

Likewise, if you just send an e-mail to a friend ridiculing or disparaging me, that personal e-mail is a crime, if it “serves no legitimate purpose.” What constitutes a “legitimate purpose” is never explained. Is venting about a friend who you think has betrayed you a “legitimate purpose”? Is telling a friend about an enemy’s faux pas? What about posting Mohammed cartoons, or a video of a burning Koran? Neither the ordinance nor, to my knowledge, Wisconsin caselaw defines what “legitimate purpose” would mean in this context.

Vernon County is in the Western District of Wisconsin, the district in which Madison, Wisconsin is located. I would think that challenging the ordinance would be an interesting and educational project for some University of Wisconsin law students, together with a Wisconsin law professor or lawyer, and with some public-spirited Vernonian citizen to serve as plaintiff.

Thanks to Ken (Popehat) for pointing this out, and to Jonathan Adler for blogging a link to Ken’s post; but I thought it worthwhile to discuss this in more detail.

That’s what’s provided by N.C. Gen. Stat. § 14-458.2, which will go into effect in North Carolina this coming Dec. 1. The law also bans discussing school employees’ sex lives online “with intent to ... torment,” posting other “personal ... information” about them with such an intent, and posting “an unauthorized copy of any data pertaining to a school employee” with such an intent:

(b) Except as otherwise made unlawful by this Article, it shall be unlawful for any student to use a computer or computer network to do any of the following:

(1) With the intent to intimidate or torment a school employee, do any of the following:

a. Build a fake profile or Web site.

b. Post or encourage others to post on the Internet private, personal, or sexual information pertaining to a school employee.

c. Post a real or doctored image of the school employee on the Internet....

(3) Copy and disseminate, or cause to be made, an unauthorized copy of any data pertaining to a school employee for the purpose of intimidating or tormenting that school employee (in any form, including, but not limited to, any printed or electronic form of computer data, computer programs, or computer software residing in, communicated by, or produced by a computer or computer network)....

(c) Any student who violates this section is guilty of cyber-bullying a school employee, which offense is punishable as a Class 2 misdemeanor.

What “intent to ... torment” exactly means is hard to say, because the term isn’t defined anywhere . The dictionary doesn’t help much; does the statute require an intent “to afflict with great bodily or mental suffering,” an intent “to worry or annoy excessively,” or an intent “to throw into commotion; stir up; disturb”?

Say a student learns that the principal whom the student has long disliked is having an affair with a subordinate, and thinks the principal should suffer for his dishonesty, hypocrisy, or for that matter general uncoolness. Would posting this information, coupled with a picture of the principal, constitute posting “sexual information pertaining to a school employee,” plus “a real ... image of the school employee,” “with the intent to ... torment a school employee”?

Thanks to Hans Bader and the Wall Street Journal for the pointer.

See the order, W.J.J. Hoge’s post, and Aaron Walker’s post. For more, including links to more posts, see this post by Jonathan Adler.

Disclosure: I consulted with Aaron Walker’s lawyer on the case.

The peace order barring blogger Aaron Walker (aka Aaron Worthing) from blogging about Brett Kimberlin has been modified pending a hearing in July. As Popehat notes, the circuit order included a benchslap at the lower court judge, C.J. Vaughey, for disregarding the Supreme Court’s seminal First Amendment decision in Brandenburg v. Ohio.

For background, see here and here. Disclosure: Our own Eugene Volokh has been consulting with Aaron Walker and his attorneys on his appeal.

UPDATE: It appears Aaron Walker’s not out of the woods completely. He was SWATted tonight, and he’s not the first associated with this tale.

UPDATE: Aaron Walker’s attorney comments here.

A fighting bookend for the personally abusive epitaphs case, and also an interesting issue in its own right — Svedberg v. Stamness (N.D. 1994) (emphasis added):

This case arises from what is apparently a long-running feud between Anthony Stamness and Christian Svedberg, both minors.... Testimony indicated that Stamness and others referred to Svedberg as “Dumbo,” a cartoon elephant with unusually large ears, and Stamness had, on one occasion, stated, “You had better watch it Dumbo or I will kill you.”

In addition Stamness, along with others, constructed three large snow figures that were prominently displayed throughout the community of Northwood. All of the snow figures were constructed with very large ears. After hearing the evidence the court concluded that these threats and taunts, harassment, and construction of snow figures were intended to adversely affect the safety, security, and privacy of Svedberg. As a result the court ordered that “Anthony Stamness shall have no contact with Christian Svedberg and shall cease or avoid the following specific conduct: Uninvited visits to the Petitioner, harassing phone calls to the Petitioner, calling the Petitioner abusive names (including “Dumbo”), or any other conduct which injures the Petitioner, either physically or emotionally, including the construction and public display of any effigy of Christian Svedberg.”

The court upholds the order, on the grounds that the defendant’s conduct, including the snow sculptures, were “fighting words” that justified the injunction. (Note that the injunction didn’t focus on threats, but also banned calling Svedberg “dumbo” and publicly displaying “any effigy” of Svedberg.)

Logic demands that when determining whether an expression constitutes fighting words, the age of the addressee must be taken into account. No one would argue that a different reaction is likely if a thirteen-year-old boy and a seventy-five-year-old man are confronted with identical fighting words....

The judge in the instant case did not err when he accepted evidence regarding Stamness’ taunts, threats including a threat to kill, and the public display of snow effigies which he concluded were constructed to harass Svedberg. In this context, when delivered to a fourteen-year-old, these actions when taken as a whole constitute fighting words, and are therefore unprotected by the First Amendment. Consequently, Stamness’ argument that he was engaged in protected activity fails.

Two concurring judges reasoned that the conduct, in context, was not fighting words but threatening: “‘Pure speech’ and expressive conduct that accompany or follow a physical threat can be, as a matter of fact, part of the threatening conduct.” The concurring opinion stressed that, among other things, Stamness’s conduct “has ... resulted in threats to the physical safety of Christian and the incessant teasing and harassing conduct has left Christian afraid to go to school, a completely unacceptable situation. The testimony also indicates that Christian suffers from depression as a result and has made suicidal statements.”

One judge dissented, reasoning that much of the speech was neither fighting words nor threats:

This case tells a sad tale of parents who failed to parent and school administrators who failed to administer. As a result, a child who should have been disciplined at home and at school, instead, was restrained by a district court from saying “Dumbo” to another child, building snowmen with big ears, and threatening and harassing the other child. He faces up to one year in prison if he violates the restraining order....

I do not disagree that context is important in looking at whether words are fighting words and that ordinary teenage children may react differently than older, ordinary folks. But I cannot agree that given the context of this case, that erecting three snowmen with big ears and calling someone “Dumbo” can be constitutionally prohibited by a court. I am sure that the derisive name, “Dumbo,” and the snowmen with big ears caused Christian to suffer humiliation and pain and embarrassment. What they did not cause and what they were not likely to cause was the risk of an immediate breach of the peace.

I have no difficulty at all agreeing with the proposition that a threat of violence is not protected speech. I have greater difficulty taking seriously the utterance of an insensitive, teenage clod, a type my children would have described as a “meanie,” especially in the context of this case. Anthony did not engage in any pushing, shoving, hitting, punching, slapping, tripping, brandishing of arms, or any other physical bullying. With the exception of the one occasion, he did not make any verbal threats. Hyperbole and bluster do not constitute a “true” threat. Anthony simply did not engage in any discernible pattern of threatening behavior. Instead, he cruelly made fun of Christian by calling him “Dumbo” and by building three snowmen. Not the stuff that violence is made of. But, even so, I might not object if the restraining order only forbade threats of violence. It goes much farther than that....

This case cries for the exercise of parental responsibility and school responsibility. It goes without saying that parents and school authorities have considerable power to control children. Rather than encourage the exercise of that control, the court steps into the breach. I think that is a mistake and that “[p]arents should be discouraged from resorting to the courts to resolve ordinary problems of daily living.” ...

I’m pleased to say that the criminal charges against Aaron Walker, arising from his blogging about Brett Kimberlin, have been dropped by the prosecutors, as the Maryland criminal court records system (sorry, no direct link, but you can search) confirms.

I’m continuing to consult with Walker and his lawyer on getting a reversal of the “peace order” that appears to ban Walker from blogging more about Kimberlin.

That’s what a Pennsylvania bill, unanimously passed last Fall by the state Senate and referred to the House — titled “cyberbullying by minors” — would provide:

A minor [i.e., an under-18-year-old] commits a misdemeanor of the third degree if:

(1) the minor knowingly transmits or disseminates any electronic communication, including a visual depiction of himself or any other person in a state of nudity, to another minor with the knowledge or intent that the communication would coerce, intimidate, torment, harass or otherwise cause emotional distress to the other minor; or

(2) the minor does any of the following involving another minor:

(i) photographs, videotapes, depicts on a computer or films the other minor in a state of nudity without the person’s knowledge or consent; or

(ii) transmits, distributes, publishes or disseminates a visual depiction of the other minor in a state of nudity where the minor depicted has not given consent or has withdrawn consent for the dissemination....

(c) Definitions.... “Disseminate.” To cause or make an electronic communication from one person, place or electronic communication device to two or more persons, places or electronic communication devices.

“Electronic Communication.” Any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo-optical system, except ... [a]ny wire or oral communication....

“Transmit.” To cause or make an electronic communication from one person, place or electronic communication device to only one other person, place or electronic communication device....

Part of the provision is a narrow ban on nonconsensual dissemination of images of nudity (or, oddly enough, of clothed images if they depict an erection). But that’s just “includ[ed].” The bill, which after all seems to be aimed at “cyberbullying” and not just sexting, would more generally ban either e-mailing (transmitting) or posting on a blog or a Facebook page or some such (disseminating)

any electronic communication ... to another minor with the knowledge or intent that the communication would ... cause emotional distress to the other minor.

Literally, that would prohibit:

1. an e-mail saying, “I’m sorry, but I have to break up with you,” since the sender likely knows that it will cause emotional distress to the recipient,
2. a Web page posting that faults one’s ex-lover for cheating on the poster or abusing the poster, if one knows that the ex will read that page (since that’s dissemination to the ex that likely emotionally distresses the ex, because he’ll know that he’s being publicly condemned),
3. a minor’s posting something that condemns another minor for a crime or for racism or for opposition to homosexuality (or for homosexuality), if one knows that the other minor will read it,
4. a minor’s posting something that’s allegedly blasphemous or otherwise ideologically distressing to his Web page, if he knows some other minors will read it and be emotionally distressed by it,
5. and much more.

How can this possibly make sense?

I’m pleased to say that I’ll be consulting with Aaron Walker’s defense lawyer in the case I discussed last week, in which a Maryland judge issued a “peace order” — in other states, generally called a “restraining order” — that the judge seemed to interpret as limiting Aaron Walker’s blogging about Brett Kimberlin. (See, e.g., this audio recording, starting at 46:01.)

I should note that I was approached to participate in this case only after my earlier post on the subject, which was written in my capacity as a blogger and an academic who is writing about such questions, not a lawyer. Naturally, if I blog further about this case in the future, I will note my participation in it as a lawyer.

UPDATE: Whoops, sorry, meant to say this, but forgot until a commenter reminded me — I’m participating in the case without pay.

The unfortunate situation involving the apparent arrest of Aaron Walker for blogging about the convicted bomber Brett Kimberlin leads me to post an early draft of my forthcoming Northwestern University Law Review article, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyber-Stalking”. It’s still a very early draft, with many footnotes still on the skeleton side; but it seems timely.

The article begins with a discussion of four cases where “criminal harassment” laws, “stalking” laws, or protective orders were used — (1) the prosecution of a candidate for city council (Philip Speulda) who distributed leaflets suggesting his opponent was homosexual, (2) the Renton Police Department’s attempt to use such a law to uncover the identity of someone who was publishing satirical YouTube cartoons related to the department, (3) an order barring a Berea, Ohio community activist from saying anything about the mayor’s sister (who held various civic positions), and (4) the prosecution of William Cassidy for his persistent Twitter criticism of a Buddhist leader — and then goes on:

A few decades ago, criminal “harassment” usually referred to telephone harassment — unwanted communications to a particular person. Likewise, stalking laws were originally created to deal with people who were physically following a person, or trying to talk to that person. The same has historically been true with regard to restraining orders.

But, increasingly, these laws have been reworded or interpreted in ways that also cover speech about a person, even when that speech is communicated to potentially willing listeners; this is especially true with regard to recent proposals to ban “cyber-harassment” or “cyber-bullying.” And, as the examples given above show, such laws are indeed being used in precisely these ways.

Sometimes the laws are applied to speech about an ex-spouse or a neighbor, or about someone with whom one has had business dealings, but sometimes they are applied to speech about government officials. They could equally be applied to speech about media figures, university professors, businesspeople, and the like. The question is whether such laws and restraining orders are constitutional, when applied to speech that’s outside the traditional First Amendment exceptions (chiefly threats and “fighting words,” plus perhaps libel and other knowing falsehoods), and speech that is said about the target rather than just to the target. This article will argue that the answer is generally “no.”

I’ve been hearing a lot about the latest phase of this controversy, but it’s still hard for me to figure out what is going on. A Maryland court has issued a “peace order” — basically, what most states call a restraining order — against blogger Aaron Walker, ordering him not to “harass” or contact Brett Kimberlin, a convicted bomber who is now a political activist. The order begins with a “finding[]”

That there is clear and convincing evidence that within 30 days before the filing of the Petition, [Walker] committed the following act(s):
Placed [Kimberlin] in fear of imminent serious bodily harm: COUNTLESS NUMBER OF BLOGS EITHER THREATENING DEATH [sic]

This seem like a finding that is both hard to understand and — from what I’ve heard about the story — hard to support, if it means that Walker had threatened Kimberlin with death. [UPDATE: Hans Bader (Open Market), who criticizes the injunction, suggests that it means that Walker's posts didn't themselves contain unprotected threats, but prompted some readers to threaten Kimberlin; but that would not be a proper basis for the court's enjoining or otherwise acting against Walker, at least unless there is evidence that Walker intentionally solicited such threats, or intentionally incited likely imminent threats, and I haven't heard of such evidence.] Based on this finding, the order bars Walker from injuring or threatening Kimberlin (which would be illegal in any event), contacting or trying to contact Kimberlin, “harass[ing]” Kimberlin, and entering and perhaps approaching very near to Kimberlin’s residence and place of employment. The order may well be factually unfounded, but if it were factually well-founded, and if “harass” were limited to telephone calls, e-mails, and the like to Kimberlin personally, then it would likely be constitutionally permissible. (See generally Rowan v. United States Post Office Department (1970) and lower courts cases that have mostly upheld stop-talking-to-me orders.)

On the other hand, if the order were interpreted as banning Walker’s further speech about Kimberlin — other than constitutionally unprotected “true threats” of violence — then it would be unconstitutional. And The Blaze and others have reported that Walker was arrested following the hearing at which the order was issued, which led to speculation that he was arrested for what he blogged. [UPDATE: Indeed, The Other McCain reports that "One person who attended the hearing in Montgomery County District Court said that Kimberlin asserted that Walker’s continued blogging represented a violation of a 'peace order.'"] Nonetheless, an UPDATE at the Blaze post states,

The Blaze spoke to a clerk at the District Court of Maryland for Montgomery County who confirmed that Aaron Walker was in fact arrested following his hearing with Brett Kimberlin. He was arrested on second degree assault charges that were filed by Kimberlin when Walker, following a separate court hearing, took and held at bay Kimberlin’s iPad.

So it may be that the arrest was for grabbing Kimberlin’s property out of his hands (see the transcript of an earlier hearing for more on this [UPDATE: and also this statement by Kimberlin]) and not for blogging after all. That’s what little I know about the situation, but I thought I’d pass it along for whatever it’s worth. If readers can point to credible and detailed accounts that shed more light on the matter, and especially indicate what facts the judge specifically found that justified (1) the restraining order and (2) the arrest, I’d love to see them.

UPDATE: David Hogberg (Investor’s Business Daily Politics and Markets Blog) reports that the arrest was indeed based on Walker’s blogging, which would mean that it is indeed a First Amendment violation (see, e.g., this recent case):

This was the second peace order that Kimberlin has filed against Walker, demanding that Walker cease any contact with Kimberlin. In it, Kimberlin claims that Walker has “continually harassed” him with “alarming posts, tweets, alerts that arrive in my email box, which I consider threats to me personally and to my business.” Kimberlin came to court with pages upon pages of threatening emails and tweets that he claimed had resulted from Walker’s blog posts about him. None of them, though, were sent by Walker....

Here’s what seems to have happened. Although Kimberlin’s first peace order against Walker was eventually thrown out on appeal, it appears that while it was in effect Walker wrote a blog post about Kimberlin. This triggered a Google Alert that Kimberlin had set up. Kimberlin filed criminal charges based on that, apparently claiming that constituted “contact.” The court apparently agreed, and Walker was arrested....

It seemed like Walker did himself in when the judge asked, “Where do you see this case going?”

Walker, who has tried to get the Maryland State Attorney to file charges against Kimberlin for filing what Walker claims are false criminal charges against him (see here), replied, “I hope to raise enough consciousness to get the State’s Attorney to file charges.”

“How are you going to do that?” Vaughey asked.

Walker replied, “I’ve been raising awareness. There’s now 400,000 posts on Google discussing him (Kimberlin), and I’m guessing 300,000 of them are not very pleasant. These are people calling for charges to be filed.”

If you are a judge who knows very little about the Internet, Walker has just made it sound as though he’s able to generate all of this Google traffic against Kimberlin. And Vaughey seemed to believe that is what caused Kimberlin to get death threats....

The judge then said that Walker was the type who didn’t want to get into it “mano-y-mano” with Kimberlin but “you want to get together with all of your friends, who have nothing else to do with their time, in this judge’s opinion ... and you are creating a conflagration, and you don’t care where it goes. And so you get some freak out in Oklahoma with nothing better to do with his time, so he does the nastiest things he can to this poor gentlemen (Kimberlin). What right does he have to do that?”

“He has no right to do that, your honor,” Walker replied.

“But you incited him,” Vaughey said....

At the end, the judge said, “All I’ve learned here is one guy hides behind the sheets while the other guy suffers. I don’t care what (Kimberlin’s) background is. A prostitute can also be raped. He’s an individual, he’s entitled to his own privacy and can’t be threatened. What I didn’t like is these death threats that are coming and his children are reading it. That is nasty and wrong.”

The judge signed off on the peace order, which means that Walker can’t say one word about Kimberlin for six months.

“I find that this is worse than harassment. It’s a nasty, dirty thing to do to somebody ... you’ve got people all over writing these things. He’s got 54 pages that he says come directly from you, and he’s got volumes of people who are doing it.”

This account of Walker’s having been arrested for violating the earlier order seems consistent with this docket entry for the peace orders and this one for the arrest. As I noted above, writing about someone — even with harsh criticism — remains constitutionally protected even if some listeners react by sending the target death threats. If the order is indeed understood by the judge as blocking Walker from speaking about Kimberlin, I hope that Walker promptly seeks to have the order overturned (using an emergency mandamus petition or some Maryland equivalent of that); and I expect that the appellate court will indeed overturn the order, much as the U.S. District Court (also in Maryland, as it happens) threw out the indictment in United States v. Cassidy, where the speaker’s behavior seems to have been much less justified than in this case.

But again all this depends on exactly what the basis of the arrest decision was, and (relatedly) how the judge is interpreting the “peace order.” If people have more details on this, I’d love to hear them.

Thanks to InstaPundit for the pointer. FURTHER UPDATE: Patterico’s take on this is similar to David Hogberg’s.

I’m writing an article that indirectly touches on this question, and I thought I’d ask our readers for their take on it. I’d particularly like to hear from people who are knowledgeable about privacy law, and who (unlike me) support information privacy speech restrictions, such as the disclosure-of-private-facts tort.

Minnesota has an interesting statute that allows courts to enjoin speech that “ha[s] a substantial adverse effect ... on the ... privacy” of a person, Minn. Stat. Ann. § 609.748. Five months ago it was used to issue an injunction banning online speech by a person about his ex-girlfriend, Johnson v. Arlotta (2011), but it has been used before as well.

I’m curious what people think of this — again, especially people who generally support the disclosure tort — given the lack of a statutory or judicial definition of what constitutes “privacy” for purposes of the statute, and the criminal penalties for violating the order. How should the statute be read, and is it constitutional? Should “privacy” be read as tortious invasion of privacy, with all the common-law twists on that (e.g., the exception for newsworthy speech, and the requirement that the speech be said to the public and not just as gossip within a circle of friends)? Is that sufficiently clear for an order that can be enforced through criminal penalties? Also, are temporary restraining orders under the statute — which may be issued ex parte — unconstitutional prior restraints?

Here’s the relevant excerpt:

(a) “Harassment” includes:
(1) a single incident of physical or sexual assault or repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target;
(2) targeted residential picketing; and
(3) a pattern of attending public events after being notified that the actor’s presence at the event is harassing to another....

(c) “Targeted residential picketing” includes the following acts when committed on more than one occasion:
(1) marching, standing, or patrolling by one or more persons directed solely at a particular residential building in a manner that adversely affects the safety, security, or privacy of an occupant of the building ....

Subd. 4. Temporary restraining order. (a) The court may issue a temporary restraining order ordering the respondent to cease or avoid the harassment of another person or to have no contact with that person if the petitioner files a petition in compliance with subdivision 3 and if the court finds reasonable grounds to believe that the respondent has engaged in harassment. When a petition alleges harassment as defined by subdivision 1, paragraph (a), clause (1), the petition must further allege an immediate and present danger of harassment before the court may issue a temporary restraining order under this section....

(b) Notice need not be given to the respondent before the court issues a temporary restraining order under this subdivision....

(c) The temporary restraining order is in effect until a hearing is held on the issuance of a restraining order under subdivision 5. The court shall hold the hearing on the issuance of a restraining order if the petitioner requests a hearing. The hearing may be continued by the court upon a showing that the respondent has not been served with a copy of the temporary restraining order despite the exercise of due diligence or if service is made by published notice under subdivision 3 and the petitioner files the affidavit required under that subdivision.

(d) If the temporary restraining order has been issued and the respondent requests a hearing, the hearing shall be scheduled by the court upon receipt of the respondent’s request. Service of the notice of hearing must be made upon the petitioner not less than five days prior to the hearing. The court shall serve the notice of the hearing upon the petitioner by mail in the manner provided in the Rules of Civil Procedure for pleadings subsequent to a complaint and motions and shall also mail notice of the date and time of the hearing to the respondent. In the event that service cannot be completed in time to give the respondent or petitioner the minimum notice required under this subdivision, the court may set a new hearing date....

Subd. 5. Restraining order. (a) The court may grant a restraining order ordering the respondent to cease or avoid the harassment of another person or to have no contact with that person if all of the following occur:
(1) the petitioner has filed a petition under subdivision 3 [and the order has been served on the respondent];
(2) the sheriff has served respondent with a copy of the temporary restraining order obtained under subdivision 4, and with notice of the right to request a hearing, or service has been made by publication under subdivision 3, paragraph (b); and
(3) the court finds at the hearing that there are reasonable grounds to believe that the respondent has engaged in harassment.
A restraining order may be issued only against the respondent named in the petition; except that if the respondent is an organization, the order may be issued against and apply to all of the members of the organization. If the court finds that the petitioner has had two or more previous restraining orders in effect against the same respondent or the respondent has violated a prior or existing restraining order on two or more occasions, relief granted by the restraining order may be for a period of up to 50 years. In all other cases, relief granted by the restraining order must be for a fixed period of not more than two years. When a referee presides at the hearing on the petition, the restraining order becomes effective upon the referee’s signature....

(c) If the court orders relief for a period of up to 50 years under paragraph (a), the respondent named in the restraining order may request to have the restraining order vacated or modified if the order has been in effect for at least five years and the respondent has not violated the order....At the hearing, the respondent named in the restraining order has the burden of proving by a preponderance of the evidence that there has been a material change in circumstances and that the reasons upon which the court relied in granting the restraining order no longer apply and are unlikely to occur. If the court finds that the respondent named in the restraining order has met the burden of proof, the court may vacate or modify the order. If the court finds that the respondent named in the restraining order has not met the burden of proof, the court shall deny the request and no request may be made to vacate or modify the restraining order until five years have elapsed from the date of denial. An order vacated or modified under this paragraph must be personally served on the petitioner named in the restraining order.

Subd. 6.... (b) Except as otherwise provided in paragraphs (c) and (d), when a temporary restraining order or a restraining order is granted under this section and the respondent knows of the order, violation of the order is a misdemeanor.
(c) A person is guilty of a gross misdemeanor who knowingly violates the order within ten years of a previous qualified domestic violence-related offense conviction or adjudication of delinquency.
(d) A person is guilty of a felony and may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if the person knowingly violates the order:
(1) within ten years of the first of two or more previous qualified domestic violence-related offense convictions or adjudications of delinquency;
(2) because of the victim’s or another’s actual or perceived race, color, religion, sex, sexual orientation, disability as defined in section 363A.03, age, or national origin;
(3) by falsely impersonating another;
(4) while possessing a dangerous weapon;
(5) with an intent to influence or otherwise tamper with a juror or a judicial proceeding or with intent to retaliate against a judicial officer, as defined in section 609.415, or a prosecutor, defense attorney, or officer of the court, because of that person’s performance of official duties in connection with a judicial proceeding; or
(6) against a victim under the age of 18, if the respondent is more than 36 months older than the victim....

A pleasant story of the law being fixed as a result of public criticism — much of it online — just as in Arizona last month:

Last year, the Tennessee Legislature enacted a statute that essentially banned the online posting of images that cause “emotional distress” “without legitimate purpose.” As I blogged on June 6, the law made it a crime to

(4) Communicate[] with another person or transmits or displays an image in a manner in which there is a reasonable expectation that the image will be viewed by the victim by [by telephone, in writing or by electronic communication] without legitimate purpose:

(A) (i) With the malicious intent to frighten, intimidate or cause emotional distress; or

(ii) In a manner the defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and

(B) As the result of the communication, the person is frightened, intimidated or emotionally distressed.

The law therefore applied not just to one-to-one communication, but to people’s posting images on their own Facebook pages, on their Web sites, and in other places if (1) they were acting “without legitimate purpose,” (2) they caused emotional distress, and (3) they intended to cause emotional distress or knew or reasonably should have known that their action would cause emotional distress to a similarly situated person of reasonable sensibilities. So,

1. If you had posted a picture of someone in an embarrassing situation — not at all limited to, say, sexually themed pictures or illegally taken pictures — you’d likely have been a criminal unless the prosecutor, judge, or jury concludes that you had a “legitimate purpose.”
2. Likewise, if you had posted an image intended to distress some religious, political, ethnic, racial, etc. group, you too could have been sent to jail if a government decisionmaker thought thinks your purpose wasn’t “legitimate.” Nothing in the law required that the picture be of the “victim,” only that it be distressing to the “victim.”
3. The same would have been true even if you hadn’t intend to distress those people, but reasonably should have known that the material — say, pictures of Mohammed, or blasphemous jokes about Jesus Christ, or harsh cartoon insults of some political group — would have “cause[d] emotional distress to a similarly situated person of reasonable sensibilities.”
4. And of course the same would have applied if a newspaper or TV station had posted embarrassing pictures or blasphemous images on its site.

After — I can’t say whether because of — the June 6 post, there was a good deal of criticism of the new law, and it looks like the Tennessee Legislature listened. Last week, it passed (unanimously in the Senate, 76-14 in the House) and sent to the Governor a bill that basically limited the statute to threats; if the Governor signs the bill, then the law would be limited to making it a crime to

(4) Communicate[] with another person or transmits or displays an image without legitimate purpose with the intent that that the image is viewed by the victim ... [when the communicator]:

(A) Maliciously intends the communication to be a threat of harm to the victim; and

(B) A reasonable person would perceive the communication to be a threat of harm.

This seems to be limited to speech that fits within the “true threats” exception to First Amendment protection (at least if “harm” is reasonably interpreted as a threat of illegal physical harm or vandalism, rather than a threat of, say, boycott or social ostracism, which are generally constitutionally protected).

So it looks like public criticism of speech restrictions, even ones that seem to target supposed “bullying” or “harassment,” has worked in this instance; I’m very glad to see that. For more on the change in the law, see this TN Report article posted yesterday.