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Hijack This Thread

One of the things about having a blog in America is that you get to post pretty much whatever you want, whenever you want. If you are wise, and care enough to do so, you will engage in a little bit of self-censorship. But it’s still the case that — until now — the United States government is not likely to bust down your door because of something you’ve written. The ink on the United States Constitution has faded quite a bit over the years, but the one value that still gets a modicum of protection is the First Amendment right to freedom of speech.

And why not? For the most part, there is so much misinformation out here in the blogosphere — in fact, there’s just so much blogosophere out here — that the majority of us are highly unlikely to ever be a real threat to the government, using just words, so we get to say whatever we want without worrying too much about repercussions.

Most of the time.

As I said, the government hasn’t typically been much of a direct threat to bloggers in the United States. Lately, however, there is word that at least one individual — Brett Kimberlin — has figured out a way to change that, to his advantage.

Kimberlin is not the first “target” of bloggers who has tried to find some way to stop people from saying things about him that he doesn’t want others to hear. I’ll wager that nearly any blogger with anything significant to say has had someone try to shut them up before. In fact, within my own reading and writing circle — Scott Greenfield, Brian Tannebaum, Mark Bennett, and a few others who will probably complain about me not naming them here — we’ve had to deal with our own “problem child.”

A couple of years back, someone was “repurposing” our blog posts. That is, he was scraping our posts for another lawyer’s blog, making it appear the other lawyer was the author of the posts originally written by us. When he was called on it, he went on the attack. We followed by each writing about the incident and laying out the facts. That individual responded by setting up bogus websites attacking us and defaming us. With nothing else to do all day except seek revenge for our complaints about his theft of our material — and because he made what I took as actual plausible threats — he created enough of a problem that law enforcement became involved.

Law enforcement is not typically disposed in favor of criminal defense attorneys, even when people threaten us. Perhaps they see it as proper karma because we resist their efforts to lock people up. Whatever the reason, we finally gave up trying to get something done about the individual who was causing so much trouble, and the one thing the cop did was help broker a deal. Our attacker agreed to stop breaking the law and to stop defaming us; the threats stopped, and the websites he’d built up were (slowly) taken down. In exchange, we all removed the posts which had offended that individual.

But Brett Kimberlin has found a different way to silence bloggers. It’s potentially a more permanent way. According to the stories, Brett Kimberlin launched an actual war on certain bloggers. The weapons he uses are cops and courts.

From Scott Greenfield’s post, “Blog About Brett Kimberlin Day,” I learned that a conservative Los Angeles County prosecutor got a far bigger taste of the craziness we experienced. Scott’s post lead me to the Patterico’s own post about the incident where, as he rightly puts it, his blogging nearly got him killed.

Strange as it may sound, though, this post isn’t really about Kimberlin. Many others have written about Kimberlin and what he does to silence bloggers. In fact, when I originally thought about whether I should write a post about Kimberlin, I decided not to, because I like to write primarily about things relating to criminal defense, and all the Kimberlin stories were about freedom of speech, silencing bloggers, with some about the need for a bipartisan response to Kimberlin’s cult.

Then I read Mark Bennett’s post.

Did I mention above that I wasn’t really going to write about Kimberlin? Did I mention that it was because I primarily like to write about criminal defense issues?

In the midst of Mark’s post, I found this:

When the bad guys are getting your house raided and having you tossed in jail, a “blog burst” is an effete response. Since retaliation in kind is not an option, you need to get law enforcement working on it; failing that you need to lawyer up, get investigators hired, and get subpoenas issued.

To my way of thinking, there is a far bigger problem here than Brett Kimberlin. After all, Kimberlin is pretty much just one guy with, perhaps a bunch of friends and supporters, all of whom may be more than willing to harass others who disagree with them. But Brett Kimberlin doesn’t really have the power of the government behind him. It just looks that way because, well, because cops and courts have abandoned the United States Constitution on other issues, not necessarily related to freedom of speech.

As I mentioned above, the government doesn’t really care what most of us have to say, because there’s little our words can do which will really hurt the government. I constantly rail against the overreaching of the government — as I’m doing in this post — but almost nobody really listens.

If you ask me, what we really should be talking about is not that Brett Kimberlin is trying to silence people he doesn’t like — that goes on every day all around the blogosphere. Sometimes it’s just someone saying, “This is my space, and I will decide what’s said here.” (And I don’t disagree, by the way, that that is their right.) Other times it’s someone like Kimberlin saying, “I don’t care what space you’re trying to speak in, I don’t want you doing it.”

But Kimberlin is not really the problem here. Because if the government honored the other amendments — not just the First Amendment, but at least also the Fourth — then Kimberlin would never be able to almost get Patterico killed.

Now I know that my way of thinking may not be all that popular right now. From what I understand, it used to be, though. And I’m not just talking about the American Revolution. It used to be the law that if law enforcement illegally invaded your home, and you defended yourself, you had a defense if you were charged with a crime, based on the illegality of the initial law enforcement invasion. Although the government has finally gotten powerful enough to change the laws that allowed that, and “probable cause” now means whatever the cops say it means, and defending yourself against overreaching officers is no longer allowed in most (all?) states of the former United States of America, I think it still should be.

And I say so.

And I said so in response to what Mark had posted.

What ensued were a series of back-and-forth comments between myself and Mark until I was told that my comments were not welcome.

My post was clearly not about whether to resist the government. So either your reading comprehension sucks—as in “please don’t let this guy near a client” sucks—or you’re deliberately threadjacking this post.

Either way, you’re done.

I think anyone who knows me, or just reads my blog, knows that my reading comprehension probably doesn’t suck. I think Mark knows that, too.

For my part, I did not think I was — nor did I intend — to be “threadjacking”Mark’s post. Mark disagrees, and I can understand why. Most of what I’ve called my “reading and writing circle” tend to write more narrowly-focused posts than I do. I tend to be the kind of guy who doesn’t have a problem, when I’m sitting and chatting with friends, if one of them says in response to my comments, “Well, yeah, but the real problem is….” One reason I don’t comment as often on the other blogs is that the “circle” I primarily read does not seem to feel the same way about that. Comments which stray a little bit to a connected issue which was not the primary topic of which they wrote are not infrequently swatted down (not in the Kimberlin sense, but in the “pesky fly” sense; it’s not what they want to talk about, and so no one else should, either — at least not on their blog).

This isn’t always the case, though. It kind of depends on what you say. For example, if I were to have made comments about Kimberlin’s activities against bloggers in the comments, they would probably have been left to stand, even though the post was “really” — if you read the title and most of what was actually said — about why leftists are bipartisan and right-wingers aren’t the need for a bipartisan response to attempts to stifle speech. In other words, the post wasn’t actually “about” Kimberlin’s activities themselves, but if I’d commented on them, those comments would probably be “okay.” I suspect the same would have been true if my comments were about how many of the right-wing writers are willing to sacrifice their belief in freedom of speech when it comes to Kimberlin’s activities vis-à-vis “their common enemies.”

Yet notwithstanding my little jab in the previous paragraph, using strikethroughs, the last paragraph of Mark’s post was really akin to dicta. His post is “about” the need for a bipartisan response and I strayed from that topic by honing in on what I see as “the real problem”: the fact that we have a government which, on the strength of mere and unverified complaints, is willing to bust down people’s doors and threaten to shoot them (or their dogs) — or in some cases to actually do so.

Ultimately, as Scott Greenfield is fond of pointing out to commenters on his blog who make the same mistake of straying in ways of which he does not approve, there’s nothing wrong with this: it’s Mark’s blog. The mistake is mine for not picking up sooner on the idea that he was disagreeing with me not to engage me in the discussion, but because his post was “about” something other than what I find to be the primary problem demonstrated by the Kimberlin affair. I have no doubt, from prior conversations, that Mark also disagrees with the meat of my comments. But, as he said — although I did not intend it that way — given the narrow point he believes his post to be about (ignoring the dicta), I guess I have to admit that I committed the heinous threadjacking crime by talking about the bigger problem.

And while I disagree with the approach to comment moderation that stops people from discussing anything related to what I post, Defending People is Mark Bennett’s blog.

But that’s why I have Probable Cause. No doubt you’ve heard: it’s The Legal Blog with the Really Low Standard of Review.

So have at it, hijack this thread. As long as you aren’t selling something, or just posting contentless threats and nastiness, your comments get posted.

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