Michelle Malkin » Going dark to urge congressional action: Who will protect the freedom to blog?
”The most alarming aspect of Vaughey’s hearing was the judge’s disregard for
Brandenburg in favor of a standard of free speech of Vaughey’s own making. From the transcript:
WALKER: But it is my right under the First Amendment to talk about what this man did to me. It is my right to tell the world what he did to me. That — Galloway v. State made it very specific on harassment–
THE COURT: –Within reason, my friend. Within reason. [emphasis added]
WALKER: Within reason ?
THE COURT: Within reason.
WALKER: I have had a crime committed against me. What is unreasonable about seeking justice ?
THE COURT: You know, I shouldn’t say this, but I think you’ve got it twisted. The one who decides to prosecute the crimes is the government–
WALKER: –Of course–
THE COURT: –and only the government, and not you.
WALKER: Of course, Your Honor.
THE COURT: And you’re doing this, I think, under a guise — under this new banner of, “I’ve got the right to do.” You can’t. You can’t. Suppose you didn’t like a girl and you wanted to talk about her chastity. He feels the same way. He feels violated. And [inaudible] you have to look at the reasonableness between the two of you on the content. That’s why said, “Where’s this going?”
[RRD:The convicted bombers ”feelings” are not a legal standard.And how is talking about a girls chastity–which is also protected speech if it is true– comparable to condemning a convicted felon and those who ignore his past]
Vaughey then proceeded to make Walker and his blogging responsible for Kimberlin’s unsupported claims of death threats and other harassment. When Walker told the judge that Brandenburg protected his speech, Vaughey ignored Brandenburg, then described his own sense of justice:
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.
[RRD:Forget Bradenburg ”let’s go by Vaughey”?!
Bradenberg is a SUPREME COURT RULING,it cannot be “forgotten” in lieu of Vaughey’s desires.This reads like something out of Judge Dredd… “I am the law!”]
WALKER: I’m not sure what that means, your honor.
THE COURT: –Very quickly. And I’m not going to talk about those ways, but boy, it ended fast. I even can tell you, when I grew up in my community, you wanted to date an Italian girl, you had to get the Italian boy’s permission. But that was the old neighborhoods back in the city. And it was really fair. When someone did something up there to you, your sister, your girlfriend, you got some friends to take them for a ride in the back of the truck.
WALKER: Well, Your Honor, what–
THE COURT: –That ended it. You guys have got this new mechanical stuff out here, the electronic stuff, that you can just ruin somebody without doing anything. But you started it.
[RRD:Is this man senile?He is invoking the macho vigilantism of thugs to justify prohibiting someone from pointing out a convicted bomber’s past criminal record??!!
And ”You started …”What? Condemning a convicted felon and those who seek to evade his past?I should certainly hope that someone would ”start it”,if It is criticizing a criminal for his crimes.And if he means threats or incitement then what specific comment by Walker could reasonably be understood to incite threats by the Bradenburg standard which the Judge discards in lieu of his personal whims based on his experiences growing up.]
Finally, as Judge Vaughey rendered his decision, he displayed an incredible degree of ignorance of modern forms of speech. In concert with his disregard for Supreme Court precedence, his gross ignorance resulted in an illegal prior restraint on Walker’s speech and his arrest for exercising a constitutional right:
THE COURT: Okay. All right, sir, this Order shall remain in effect until 11-15 2012. During that period of time, you not —shall commit any act that causes in person (ph) fear and apprehension of bodily harm, any act that places the gentleman in fear and apprehension of grave bodily harm, any assault, rape, attempted rape, sex offense, false imprisonment, harassment, stalking, [inaudible] or malicious destruction of property. The Respondent shall not contact the person in person, by telephone, in writing or any other means, and any other means is putting it on a blog, a Tweet, a megaphone, a — smoke signals — what else is out there — sonar, radar, laser, nothing.
WALKER: So I’m not allowed to speak about him for 6 months ? How about the First Amendment ?
THE COURT: How many times have you been interrupting? And you shall not contact or harass him in any way. You shall not enter his residence, wherever he may be living. You shall remain away from his place of employment, wherever that may be, he may be employed.
Now, let me get to the — now, should this — should you violate this order, sir, you are subject to being prosecuted by the state’s attorney’s office as a criminal case, and if found guilty, the maximum penalty for the first violation is 90 days in jail and/or it’s a $500 fine, could be a $1,000 fine. Or worse than that, you could be in contempt of this court, where you could —I could do anything that I deem necessary to keep you away from — or e-mailing him or Twitting him or Googling him or Tooting him or smoking (ph) him, whatever phrase you use. I don’t know if [inaudible]. Thank you [inaudible]. [all emphasis mine]
RRD:If you wish to see what I think of when I hear people say that “Judges must have empathy”,& that “they must not be legal automatons”,and that “they must be bring their personal experiences to bear on their rulings” this is it.
And I have witnessed this type of contemptuous disregard for the law by Judges first hand.
Yet in many states it is almost impossible to get these little dictators out of office.
Ayn Rand once observed:
…”It is a grave error to suppose that a dictatorship rules a nation by means of strict, rigid laws which are obeyed and enforced with rigorous, military precision. Such a rule would be evil, but almost bearable; men could endure the harshest edicts, provided these edicts were known, specific and stable; it is not the known that breaks men’s spirits, but the unpredictable.
A dictatorship has to be capricious; it has to rule by means of the unexpected, the incomprehensible, the wantonly irrational; it has to deal not in death, but in
sudden death; a state of chronic uncertainty is what men are psychologically unable to bear.”(fn2)
Judge Vaughey is certainly not a dictator in the literal sense used by Ayn Rand(as opposed to my phrase “little dictator”).
He has not condemned people to death.
But the dangers of non-objective,undefined laws are the same:Chronic uncertainty & fear about what is legal & what,isn’t.
This is not to say that Strict Constructionist Judges are always correct(or even sincere)in their rulings.
They may not be.
But to come to that conclusion you must first acknowledge that there is a actual law,that it has a actual objective meaning and that can be rationally understood.
“Subjective Law”,practiced consistently,is not law.
It replaces the society “of laws and not of men”(that is men’s whims) with a society of men’s whims and not of laws.
Judge Dredd (1995) – Quotes – IMDb
Judge Dredd: ”I am the law!”
“Antitrust: The Rule of Unreason,”
The Objectivist Newsletter, Feb. 1962, 5