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Digital Hatfields and McCoys: America’s Need for Better Judges

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Every day, judges have to deal with cases involving technology they don’t understand. This is simply a fact of life. However, with the rise of cases involving the Internet, we absolutely need judges who better understand how this technology works.

The average age of our Supreme Court justices in the United States is 66, and this number is on the low side since two of the nine justices sitting on the court were appointed in the last three years. Supreme Court justices are appointed for life; they hold their position until they resign, retire, or die unless they are impeached.

And what of other courts? According to a 2010 study by ProPublica as reported here, “About 12 percent of the nation’s 1,200 sitting federal district and circuit judges are 80 years or older[…]Eleven federal judges over the age of 90 are hearing cases — compared with four just 20 years ago[…] The share of octogenarians and nonagenarians on the federal bench has doubled in the past 20 years. The demographics of the federal bench have no analogue on the state courts, where judges mostly occupy their office for a term of fixed years and generally have mandatory retirement ages, often in their 60s or 70s.”

Why is this important? As a blogger, podcaster, web TV producer, or other kind of digital content creator, why should you care about the age of judges in the United States?

Digital Hatfields and McCoys

If you’re like me, you’ve become engrossed in History‘s recent mini-series about the Hatfields and McCoys. This legendary feud between families started with a little bad blood about events happening during and after the Civil War, and the major incident causing the feud to escalate was a dispute over a pig in Hatfield possession that the McCoy family claimed belonged to them. From there, things really escalated, with the families continually fighting, suing one another, and even taking the law into their own hands. It got out of hand.

All because of a pig.

I mention this because the Internet seems to be a breeding ground for digital Hatfields and McCoys. Bloggers, podcasters, commenters, and others online are very concerned with their rights to say what they want to say. But just because you legally may have the right to say something doesn’t mean you should. Online arguments have a way of escalating very quickly, just likes the feud between the Hatfields and McCoys did in the 1800s. Too often, people on both sides resort to fighting dirty, even when the original argument was over something as stupid as a pig.

And beyond that, many Internet users do not understand laws regarding free speech. Just because you’re allowed to voice your opinions does not mean you’re allowed to threaten someone or insinuate that your opinions are facts. You can and probably will be sued if you make a habit of doing these things.

The problem is that you can also be sued and punished for writing posts that do fall under the protection of free speech, simply because the judge doesn’t understand how the Internet works.

Aaron “Worthing” Walker versus Brett Kimberlin

To see how this can easily effect digital content creators, one needs to look no further than the case of Aaron Walker (previously blogging under the pen name of Aaron Worthing, according to Popehat) and convicted Speedway Bomber Brett Kimberlin. Aaron wrote about what happened (supported with court documents, video evidence, and other facts) here, which I highly recommend checking out so you understand the background of the story.

The story is rather complicated but according to The Blaze and other sources, Kimberlin and his supporters have been attacking bloggers (like Walker) who write about him with lawsuits, threats, and more. He’s filed over 100 lawsuits to date. Walker and his wife both lost their jobs due to Kimberlin and his allies harassing their employers.  Another political  blogger “Patterico” was “swatted”.

(Edited to add: Patterico’s real name is Patrick Frey whose day job happens to be working as an assistant District Attorney in Los Angeles. – police were sent to his home after someone (allegedly from Kimberlin’s camp) placed a hoax phone call to the LA police department claiming to be Frey. Posing as Frey the caller confesses to shooting and killing his wife. This resulted in the SWAT team being dispatched to Frey’s home with guns drawn. Frey was handcuffed. His wife and children were woke by police officers to verify they were alive and safe. You can read Patterico’s account of this incident here. Did you ever think someone would send the SWAT team to your home over a blog post? – Rick)

Kimberlin was recently granted a “peace order” (which is similar to a restraining order) against Walker claiming his blog posts were harassment and that Walker had incited numerous individuals to make death threats against Kimberly via blog comments and tweets.

I’ll be honest: I personally couldn’t care less about the politics behind this all. Kimberlin’s liberal music, support of the Occupy movement, etc. in relation to his past convictions don’t bother me because, at the end of the day, he served his time. I get why many conservatives and even some liberals don’t like him. But that isn’t what my post is about.

This is about the fact that the judge in Walker’s most recent court appearance clearly does not understand the Internet. Walker was accused of violating this peace order because a blog post he wrote about it was considered “contact” with Kimberlin. Furthermore, the judge overseeing this case, insinuated that Walker is responsible for the death threats Kimberlin has been receiving. Walker was arrested for “inciting,” which is encouraging others to “act in a violent or unlawful way.”

The anti-Kimberlin camp isn’t totally innocent. According to eye witnesses, Walker did not represent himself well in court and the judge became increasingly agitated. Guys and gals, if you have to stand before a judge, get a lawyer.

In addition, those on Walker’s side who resort to anonymous threats to Kimberlin are no better than people on Kimberlin’s side who have threatened Walker or have had others “swatted.” But just like it’s not one Hatfield’s fault that another member of his family shot a McCoy, it’s not Walker’s fault that his supporters took matters into their own hands. They are the people who should be brought to trial, not Walker.

Yet Walker was arrested, simply because the judge did not understand how the Internet works. Kimberlin set up a Google alert so he knows when someone is writing about him. Walker’s post may have popped up, but this clearly does not constitute contact. Has the judge ever used Google alerts? My guess is no.

Walker’s story also inspired others to write about Kimberlin, some very negatively and even in a harassing way (imo), but inspiring action is not the same as encouraging action. If Walker had said, “Hey everyone, send this guy death threats,” that would have been another matter. He didn’t (as far as I can tell).

At the same time, I do think this has gone too far. I refer again to the idea that just because you are legally allowed to do or say something doesn’t mean you should. As deplorable as a person might be, no one, including Kimberlin, deserves to live in fear because they’re getting death threats. We have to be responsible for the things we post online, and if we’re aware that what we write or say is going to cause physical harm to another person (or death threats, which are just a step removed from physical harm), I do think we have the responsibility (morally, if not legally) to edit what we post.

Who has the Power?

Right now, I believe certain people have powerful responsibilities.

First and foremost, Kimberlin needs to stop attacking anyone who writes facts and even opinions about him online. When you do controversial things (both in the past and in the present), some people aren’t going to like you. They have a right and perhaps even a duty to stand up and say why they don’t like you, and suing these people is taking advantage of the legal system. Instead, Kimberlin should spend his time in court against people who actually send him death threats.

Second, if you’re a blogger in the anti-Kimberlin camp, you need to be fair, factual, and professional. Realize that some of your readers are not as mature as you. Do not encourage them to “take up the cause” on your behalf. They aren’t always going to represent you the way you want to be represented. Instead, encourage your readers to do their research and come to their own conclusions about Kimberlin or anyone you don’t like. Present your case and understand that there are two sides to every story.

Lastly, if you’re an America, use your vote to make the judicial system fairer for online content creators. This also applies to people living in other countries with the same  problem. Judges who admit to having no idea how the Internet works should not be involved in Internet-related cases. Term limits or forced retirement is necessary to protect younger generations from rulings by people who don’t understand the latest technology. We need to be a collective voice, demanding that the first amendment is upheld online and that bloggers and other content creators should be treated fairly.

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