Ruling on blogger sparks First Amendment debate

Posted Tuesday, July 3, 2012 10:10 pm

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Wednesday July 4, 2012

PITTSFIELD -- In the wake of a district court judge’s ruling forcing Dan Valenti to remove references to Meredith Nilan from his blog, Planet Valenti, bloggers and attorneys are calling it a violation of the First Amendment.

"It’s clearly unconstitutional" and "a patent, flagrant violation of the First Amendment," said Hans Bader, the senior attorney for Competitive Enterprise Institute, a nonprofit think-tank based in Washington, D.C.

Last week, Judge Bethzaida Sanabria-Vega issued Nilan a harassment prevention order against Valenti. It carried a provision ordering Valenti to remove "any and all references" to Nilan from "any and all websites, blogs, etc.," to which he has complied for the time being.

Sanabria-Vega also told Nilan to let her know if Valenti continued to blog about her. Until last week, Valenti had blogging about Nilan, the driver in the December car-versus-pedestrian accident that left a local man severely injured.

Over the last week, bloggers -- including those who are practicing attorneys and another who is a law professor -- have been weighing in about the case and in defense of Valenti’s First Amendment rights.

One blogger, William G. Ryan, was able to retrieve Valenti’s purged posts about Nilan and reposted them on his own site.

Ryan wrote that Valenti had "nothing to do with this post and did not give me the content. I extracted it exclusively from the Google cache." Ryan said he believed Valenti was "illegitimately forced" to remove the posts.

University of Tennessee law professor Glenn Reynolds, writing on the blog Instapundit .com, called the judge’s order unconstitutional and bemoaned what he called the "absolute immunity" of judges.

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Radley Balko, a senior writer for Huffington Post, in a recent Twitter post called the judge’s order "outrageous."

Robert J. Ambrogi, the executive director of the Massa chusetts Newspaper Publishers Association who is a lawyer and blogger, also weighed in. He said if publishing material that portrays people in a bad light qualified as harassment "every newspaper in the country would be shut down tomorrow."

Nilan was charged with misdemeanor negligent operation of a motor vehicle and leaving the scene of a personal injury accident for a Dec. 8 accident in which the car she was driving struck 46-year-old Peter Moore of Pittsfield and left him with a broken neck and other injuries.

The case was later resolved with Nilan receiving a continuation without a finding for six months on the negligent operation charge. The charge of leaving the scene was dismissed.

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Ken White, a criminal defense lawyer in Los Angeles, wrote about the case for the law blog Popehat, giving a brief overview of the case and his opinion on the validity of the judge’s order.

According to White, "the theories on which Nilan sought" the harassment order and those on which the judge granted it "appear plainly unconstitutional."

"Prior restraint on otherwise protected speech (that is, preventing Valenti from writing about Nilan at all) is only permissible in very rare cases, and orders requiring the removal of defamatory material generally come only after a full trial on the merits," he wrote.

Bader also took exception with the judge’s order.

"This seems like a slam dunk for prior restraint," he said.

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Nilan had been the subject of numerous posts on Valenti’s blog concerning the accident.

Nilan told The Eagle that she’s been the victim of threats because of the publicity generated by the coverage. A Las Vegas man is facing charges for threatening her life.

Both Bader and White believe the judge’s order also fails to meet the standard necessary to be punished or prohibited.

"Only incitement that is calculated to cause, and likely to cause, imminent lawless action may be prohibited or punished," White wrote on his blog.

"Nothing I’ve seen would rise to that level," said Bader, who also said he didn’t believe this was a case of cyber-stalking.

Nilan told The Eagle that Valenti’s blog contained lies, innuendo and distortions about her and her family. Her father, Clifford, is the chief probation officer for Berkshire Superior Court.

The three attorneys all agree that if Nilan felt Valenti defamed her, she should sue him in civil court.

The harassment prevention order remains in effect until July 9 when a hearing will take place in District Court to determine if it should be extended. Valenti is entitled to attend that hearing. He did not immediately respond to a request from The Eagle for comment.

To reach Andrew Amelinckx:

aamelinckx@berkshireeagle.com,

or (413) 496-6249.

On Twitter: @BE_TheAmelinckx