It's time for the Popehat Signal.
I could have titled this post with more subtlety. I could have said rather neutrally "Help Bloggers Sued In Maryland," or the slightly more argumentative "Help Bloggers Fight Against A Frivolous Lawsuit," or the more direct "Help Bloggers Fight A Career Vexatious Litigant" or "Help Bloggers Sued By A Convicted Drug Dealer, Perjurer, And Bomber."
But sometimes only the most direct language will do. There is evil in this world. This is an example. The plaintiff in this case, Brett Kimberlin, has spent his life doing evil. The lawsuit at issue here is part of his pattern of abuse of the courts to silence critics of evil.
Will you help?
Who Is Brett Kimberlin?
I will let the United States Court of Appeal for the Sixth Circuit introduce Brett Kimberlin by describing some of his crimes of conviction1:
Kimberlin was convicted as the so-called “Speedway Bomber,” who terrorized the city of Speedway, Indiana, by detonating a series of explosives in early September 1978. In the worst incident, Kimberlin placed one of his bombs in a gym bag, and left it in a parking lot outside Speedway High School. Carl Delong was leaving the high school football game with his wife when he attempted to pick up the bag and it exploded. The blast tore off his lower right leg and two fingers, and embedded bomb fragments in his wife’s leg. He was hospitalized for six weeks, during which he was forced to undergo nine operations to complete the amputation of his *529 leg, reattach two fingers, repair damage to his inner ear, and remove bomb fragments from his stomach, chest, and arm. In February 1983, he committed suicide.
After being convicted of the bombings and related offenses, Kimberlin was sentenced to a fifty-year term of imprisonment for manufacturing and possessing a destructive device, and malicious damage by explosives with personal injury in violation of 26 U.S.C. §§ 5861(d) and (f), and 18 U.S.C. §§ 844(f) and (i). He received a concurrent twelve-year sentence for impersonating a federal officer, illegal use of a Department of Defense insignia, and illegal use of the Presidential Seal in violation of 18 U.S.C. §§ 912, 701, and 713, respectively, and a five-year term for receipt of explosives by a convicted felon in violation of 18 U.S.C. § 842(i)(1). Finally, he was given a four-year sentence by the United States District Court for the Southern District of Texas on an earlier, unrelated conviction for conspiracy to distribute marijuana.
Kimberlin v. White, 7 F.3d 527, 528-29 (6th Cir. 1993)
Carl Delong's widow sued Kimberlin and obtained a substantial judgment. Kimberlin spent the ensuing years litigating to prevent her from getting any recompense for her husband's death. For instance, he litigated to prevent the release of funds seized from him in satisfaction of the judgment and sued the government for telling his probation officer that he was sending money from prison to an unidentified woman rather than using it to satisfy Ms. DeLong's judgment.
More recently, Kimberlin has abused the legal system in an effort to silence his critics. Last year I described how he briefly obtained an order prohibiting a blogger from writing about him at all — not just writing to him, writing about him — on the theory that doing so is "harassment." That ridiculous order was overturned, but it demonstrates Kimberlin's willingness to abuse the legal system to retaliate against critics. That he does so is despicable; that it is often effective is a grave defect in the system — a defect that can only be remedied by the assistance of free speech supporters willing to stand up to him.
Kimberlin's Latest Lawsuit
Now Kimberlin, representing himself (but probably supported by admirers), has filed a pro se lawsuit in Montgomery County, Maryland against five bloggers who have actively criticized his behavior — Aaron Walker, William Hoge, Robert Stacy McCain, Ali Akbar, and an anonymous blogger who goes by "Kimberlin Unmasked." Kimberlin has also begun the process of seeking to identify "Kimberlin Unmasked." All five defendants might be described as conservative bloggers, and all five have written critically about Kimberlin and his efforts to silence critics — though not, as far as I can tell, before Kimberlin began using specious harassment theories to silence critics.
Kimberlin has brought claims for malicious prosecution, conspiracy to abuse process, defamation, false light invasion of privacy, harassment, intentional infliction of emotional distress, and stalking. Kimberlin's malicious prosecution and conspiracy to abuse process claims appear to be a classic "accuse the accuser" tactic — he filed a series of "peace order" requests and criminal complaints against his critics, and when some filed requests against him, he calls it malicious prosecution and abuse of process. The complaint's description of this chain of events dishonestly omits Kimberlin's own filings. The defamation and intentional infliction of emotional distress claims are premised on a wide variety of opinions and characterizations of Kimberlin. Kimberlin specifies many that are unquestionably opinion and unquestionably fully protected by the First Amendment, and cites others without explaining why they are false. The harassment and stalking claims include references to attending public court proceedings involving Kimberlin. In evaluating any claim of harassment by Kimberlin, bear in mind that he has argued that it is harassment to write about him because he has a Google alert for his name and writing about him results in him getting emails which represents direct unwelcome contact with him.
I'm not going to point out all the strong defenses the defendants will have; let Kimberlin discover them in court. Let me highlight one issue, though, to illustrate the First Amendment protection for statements of opinion. Kimberlin complains that the defendants repeatedly referred to him as a "pedophile," and he and his followers and supporters3 seem to view this as a perfectly clear example of defamation. It's not.
Statements of opinion enjoy broad First Amendment protection. Now couching something as an opinion isn't an automatic or complete defense — I might be sued for saying "In my opinion Joe Blow robbed a bank last week," because that implies undisclosed facts that may be false. But my statement is protected by the First Amendment when I disclose the facts underlying it, or when those facts are generally known. So if Joe Blow is arrested for bank robbery and it's on the front page of the paper, my statement "Joe Blow is a bank robber" is almost certainly protected opinion based on generally known facts. If I say "the newspaper says that Joe Blow was seen putting on a ski mask in the street, and bank tellers say someone with a ski mask robbed them, and I saw Joe Blow running down the street from the bank afterwards. Joe Blow is a bank robber," I have disclosed the facts that form the basis for my opinion, making it protected (unless, for instance, I lie about seeing Joe Blow run down the street.) This doctrine protects the right to opine about news stories and court proceedings.
Maryland, like any other jurisdiction, follows this rule — a statement of opinion based on disclosed facts is only defamatory if the underlying facts are defamatory and not privileged. So, for instance, it's not defamatory to offer an opinion about someone based on a statement made in a judicial proceeding, which is absolutely privileged. Piscatelli v. Smith, 424 Md. 294 (2012). In this context there is nothing magical about the epithet "pedophile" that takes it outside of First Amendment law. In Torain v. Liu, 279 Fed.Appx. 46 (2nd Cir. 2008), the United States Court of Appeals for the Second Circuit agreed that it was not defamatory to call a radio host a "pedophile" when that radio host had joked on the air about sexually abusing the child of a rival radio host; he basis of the opinion was clearly stated.
One of the problems with Kimberlin's complaint about being called a pedophile is that his detractors disclosed the factual basis for using that epithet against him. Among other things, they pointed out that (1) Kimberlin has said sexually creepy things about teenaged girls4; (2) Mark Singer's book about Kimberlin describes a relationship with an underaged girl that some find inappropriate and suggestive of pedophelia5; (3) Kimberlin's wife accused him of having sex with her before she was 16, and in 2013 filed charges against him on that basis, although prosecutors declined to prosecute the case and she apparently later retracted and disavowed the charges after the defendants wrote about them; and (4) even accepting Kimberlin's position that he did not have sex with his wife before she was 16, by his own version of events it appears that he met her in Russia before she was 16 when he was in his 40s, she traveled to the United States, and they married when she was 16 and he in his 40s.6
In short, Brett Kimberlin is going to have grave difficulty establishing that the epithet "pedophile" isn't a (1) opinion based on disclosed facts about his own words, (2) opinion based on his wife's accusation in court, which is a privileged communication, and (3) opinion and protected rhetorical hyperbole based upon the apparently undisputed fact that he met her in Russia when she was under 16 and he over 40, and she came here an married him when she turned 16. You may disagree that those facts support those statements of opinion. You may say that men over 40 married girls of 16 for most of history, and it was common as recently as last century in America. That doesn't mean the statements aren't protected as opinion.
Good lawyers will have a wealth of strong defenses at every phase of this case.
What Can You Do?
Brett Kimberlin's complaint doesn't exist in a vacuum; it's part of a history of abusing the court system to silence critics. It's also likely a maneuver to use the courts to conduct abusive discovery against other critics he hasn't sued. Such things work because lawyers are hideously expensive and litigation, even utterly bogus litigation, is exhausting and terrifying and repulsive. If people are allowed to use the courts this way, nobody's speech is safe.
You can help.
If you are a lawyer admitted in Maryland, you could help as pro bono counsel of record for one or more of the defendants. If you are an attorney elsewhere, you could help as part of a team of lawyers contributing research and writing and strategy. Even if you're not a lawyer, you might be able to contribute your factual research skills or technical skills. Moreover, even when lawyers generously give their time for free, there are always hard costs like filing fees and copying costs and transcript fees, and I'm sure there will be a legal defense fund. You can also help by getting the word out that these defendants need help. If you help, you won't stand alone. I've started the process of seeking counsel through multiple free speech entities.
Kimberlin and the Kimberlings will undoubtedly sneer that this is a right-wing issue.7 The defendants may be right-wing and Kimberlin may have convinced his followers that he is progressive, but it's not a right wing or left wing issue. It's an issue about freedom of expression.
Help fight evil.
Edited to add: Within an hour of posting this, Popehat's Twitter account started to receive a flood of spam followers — more than 20,000 in a few hours. It's a tactic used to silence people by flooding them with spam followers and then reporting them to Twitter on the bogus grounds that they have bought followers. Others who have criticized Kimberlin or the Kimberlings have also been subjected to it. But I'm sure it's just a coincidence.
- Kimberlin's convictions were affirmed by the United States Court of Appeal for the Seventh Circuit, and the United States Supreme Court declined to grant certiorari. In addition his various post-conviction collateral attacks were rejected by the same courts. United States v. Kimberlin, 805 F.2d 210 (7th Cir.1986), cert. denied, 483 U.S. 1023, 107 S.Ct. 3270, 97 L.Ed.2d 768 (1987); United States v. Kimberlin, 781 F.2d 1247 (7th Cir.1985), cert. denied, 479 U.S. 938, 107 S.Ct. 419, 93 L.Ed.2d 370 (1986); United States v. Kimberlin, 692 F.2d 760 (7th Cir.1982) (table), cert. denied, 460 U.S. 1092, 103 S.Ct. 1792, 76 L.Ed.2d 359 (1983); United States v. Kimberlin, 673 F.2d 1335 (7th Cir.1981) (table), cert. denied, 456 U.S. 964, 102 S.Ct. 2044, 72 L.Ed.2d 489 (1982); United States v. Kimberlin, 898 F.2d 1262 (7th Cir.), cert. denied, 498 U.S. 969, 111 S.Ct. 434, 112 L.Ed.2d 417 (1990); United States v. Kimberlin, 776 F.2d 1344 (7th Cir.1985), cert. denied, 476 U.S. 1142, 106 S.Ct. 2251, 90 L.Ed.2d 697 (1986); United States v. Kimberlin, 675 F.2d 866 (7th Cir.1982). ▲
- This is the United States of America. Therefore, despite the fact that Kimberlin is a convicted perjurer, your government and mine used Brett Kimberlin as a jailhouse snitch on at least one occasion. U.S. v. Sarmiento-Perez, 724 F.2d 898, 900 (11th Cir. 1984). ▲
- People follow and support Brett Kimberlin for several reasons. First, like many sociopaths, he is superficially charming and socially adept. People support him for the same reason that people got into Ted Bundy's Volkswagen Bug. Second, he mouths the right political platitudes. America is full of people who will support you if you congratulate their preconceived notions, whatever you've done and however you treat actual human beings. Kimberlin has chosen to mouth progressive platitudes, and gullible and unprincipled people on that side of the spectrum accept him at face value. I firmly believe that Kimberlin could just as easily have achieved the same result with a different crowd of followers on the right, had he chosen to shout "Benghazi!" instead of "Diebold!" Third, Kimberlin has convinced followers that criticism of him is purely politically motivated and calculated to smear progressive causes. This is very persuasive to the type of vapid and amoral people who, before they stand up to a convicted bomber who abuses the legal system to silence critics, ask "well, which side will this help?" ▲
- In an interview about his music, this is what Kimberlin said:
"Not all the songs on his album—which Mahern characterizes as minimally produced and “pretty much Brett”—have political overtones, which in some respects may be unfortunate: While tracks like “Life’s a Bitch (For a Government Snitch)” and “Who’s Next” (a song about unfounded sex crime accusations) have a definite edge to them, others, like “Waiting to Meet” and “Teen Dream” (both about having sex with teenage girls) are lacking in subtlety and tend to make one squirm. But this is exactly what Kimberlin wants.
“I say things a lot of people are afraid to say. Yeah, ‘Teen Dream’ is about fucking a teenage girl. Every guy who’s seen a good-looking teenage girl has thought about it. I’m talking about that lecherous quality that every man, though he won’t act on it, has.”" ▲
- Singer writes:
"For three consecutive summers, 1974 through 1976 [when the child was aged ten through fourteen], they took vacations of a week or longer in Disney World, Mexico, and Hawaii. Sandi [her mother] couldn’t get time off from work, so on these summer trips it was just the two of them—Brett and Jessica.
Eyebrows levitated. A drug-dealing colleague had memories of conversations with Kimberlin that struck him as odd: “We’d see a girl who was pubescent or prepubescent, and Brett would get this smile and say, ‘Hey, what do you think? Isn’t she great?’ It made me very uncomfortable.” Another recalled Kimberlin introducing Jessica as “my girlfriend,” and if irony was intended, it was too subtle to register. To a coworker at IU-PUI, Sandi confided that Kimberlin was “grooming Jessica to be his wife.”"
Citizen K at Page 78 ▲
- With respect to this, one of the bloggers noted that Kimberlin apparently posted a Ukranian travel document for his wife listing one birth date in 1978, but in seeking a protective order against her listed a birthdate in 1980. ▲
- Kimberlin's little friends have already asserted that I only ever help or seek help for extreme conservatives. This is an extremely incisive statement demonstrating a profound connection to the cosmos. AIDS activists, blogger critics of rape culture, critics of sexual harassment in the science fiction and fantasy community, and skeptic science bloggers are part of a secret conservative plan to destroy America that only very special people can perceive. ▲
Last 5 posts by Ken White
- A Rare Federal Indictment For Online Threats Against Game Industry - July 28th, 2016
- John Hinckley, Jr. and the Rule of Law - July 27th, 2016
- Reverence For The Blue - July 21st, 2016
- Lawsplainer: Are Milo's Faked Tweets Defamatory? - July 20th, 2016
- Cynicism And Taking Clients Seriously - July 18th, 2016