First Amendment 1, Baltimore 0


Several years ago, a Baltimore resident called 911 to report a burglary and wound being beaten, tased, and arrested by the police officers who responded to the call. Her claim against the Baltimore Police Department spent several years in the courts and was finally settled. Baltimore includes a “non-disparagement” clause in such settlement agreements, so when the women spoke to the press about her experience, the city reduced her settlement payment in accordance with the non-disparagement clause.

She sued in U.S. District Court, claiming that the clause violated her First Amendment right to speak freely about the government. She was joined in the suit by the Baltimore Brew. The Brew claimed that the city’s use of such agreements violated its free press right to investigate and report on matters of public interest such as police misconduct. That suit was thrown out by the District Court on summary judgment.

The Court of Appeals for the Fourth Circuit has reversed the District Court’s granting summary judgment in Baltimore’s favor and sent the case back to the lower court.

The City has not identified a comparably compelling public good or other legitimate governmental aim that was, or could be, furthered by enforcement of the non- disparagement clause (other than a general interest in using settlements to resolve lawsuits). Consequently, the City is not entitled to summary judgment on Overbey’s First Amendment claim.

Also,

we conclude that the Brew has sufficiently pleaded an ongoing or imminent injury in fact that is both traceable to the City’s challenged conduct and redressable by the court. As discussed above, neither the parties’ arguments below nor the district court’s disposition went meaningfully beyond the pleadings in evaluating the Brew’s standing. We therefore decline to do so ourselves— even though the order under review is nominally a grant of summary judgment to the City. Instead, we remand to give the parties and the district court an opportunity to develop the evidentiary record relevant to the Brew’s claims.

It will be interesting to see how the case unfolds.

Bad First Amendment News


TechDirt reports that a state court judge in Rhode Island has issued a restraining order requiring a Massachusetts blogger to take down allegedly defamatory posts. The order was issued without a hearing, creating due process issues in addition to being clearly at odds with the First Amendment.

There’s more about the case over at The Volokh Conspiracy where Eugene Volokh points out that the First Circuit Court of Appeals (Rhode Island in in the First Circuit) has ruled that even permanent anti-libel injunctions barring the repetition of statements found to be libelous at trial are unconstitutional.

The ACLU is representing the blogger and has removed the case to federal court.

Stay tuned.

A Note on the First and Second Amendments


Journalist Andy Ngo was attacked last Saturday by a gang of AntiFa thugs because he was exercising his free press rights guaranteed by the First Amendment.

I note that while the First Amendment also grants the right to peaceable assembly, that’s not what AntifFa was doing.

AntiFa’s tactics seem to be spiraling toward ever greater violence. It’s beginning to look as if their expectation that they can act with impunity will lead them to attack someone who is willing to defend himself and prepared to do so. I suspect that they will won’t do well in such a confrontation.

I also suspect that the rank-and-file AntiFa members’ apparent ignorance of history eventually will do them in. When the Sturmabteilung became more trouble than they were worth, the long knives came out. When AntiFa is no longer useful to The Narrative, …

Team Kimberlin Post of the Day


Back in 2012, I got involved writing about Brett Kimberlin and his band of supporters and enablers as a result of his being granted a blatantly unconstitutional gag order against Aaron Walker as part of a peace order petition which should have been denied in the first place. The gag order was overturned by a higher court and the peace order was thrown out on appeal. While it took a couple of months for those appeals, it took several years for the judge who knowingly refused to follow Supreme Court precedent in granting that gag order to be disciplined. But three years ago today, I was able to report that Another Loose End had finally been tied up in that case.

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Those Gentle Readers who have not been following The Saga of Team Kimberlin from the beginning may not know what triggered the blogosphere’s interest in The Dread Pro-Se Kimberlin. Back in 2012, TDPK sought a bogus peace order against Aaron Walker, and the District Court judge who mishandled that case included an unconstitutional gag order against Aaron in the peace order he issued. The gag order was overturned on appeal. The peace order itself was also overturned. It was that brass knuckles reputation management attack on the First Amendment that got a lot of bloggers interested in Brett Kimberlin.

The judge who issued the blatantly unconstitutional order has been reprimanded by the Maryland Commission on Judicial Disabilities. Aaron Walker discusses the details here.

UPDATE—The Scribd link at Allergic to Bull is flaky, but the reprimand can be found at the State’s website.

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The peace orders The Dread Deadbeat Pro-Se Kimberlin secured against Aaron Walker in early 2012 were that last civil actions he filed and won—and they were both overturned on appeal.

He’s never withdrawn his promise of “lawsuits for the rest of their lives” for Aaron Walker, Stacy McCain, Ali Alexander, and me, but he hasn’t gone after any of us since 2016.

Perhaps he thinks he’s done with me.