American Spectator Surrenders To Vexatious Litigant and Domestic Terrorist Brett Kimberlin

Last year I wrote about how vexatious litigant and unrepentant domestic terrorist Brett Kimberlin filed a blatantly frivolous RICO suit in federal court in Maryland seeking to silence and retaliate against those who had criticized him.

Now the American Spectator, a conservative magazine, has ignominiously surrendered to him.

Many were suspicious the Spectator had reached some agreement with Kimberlin when he abruptly dismissed the American Spectator from the RICO case. He did so without serving the Spectator and with prejudice — meaning that he cannot re-file the claim. Those suspicions were confirmed when articles about Kimberlin disappeared from the site. As Lee Stranahan first reported, past articles about Kimberlin on the site have mysteriously disappeared. Most don't seem to be cached anywhere, with the exception of this one by Robert Stacy McCain, the Spectator's co-defendant in the RICO case.1 Most are just gone.

Settling a lawsuit is generally a business decision. When clients tell me they don't want to settle because of the principle involved, I explain that the justice system is terrible at sorting out principles. It is very good at putting people in jail, and mediocre and inefficient at moving money from one person to others (mostly to lawyers), but it's a terrible vehicle for vindicating right or wrong. Generally settling a lawsuit — even a vexatious one — is a rational economic decision by a defendant, taking into account a broken system and the ruinous cost and distracting nature of litigation.

But the American Spectator is not most defendants, and Kimberlin's RICO case is not a typical vexatious lawsuit.

The American Spectator purports to be a magazine — it purports to be about journalism and vigorous expression of opinion. It's true that it's highly partisan, but not unusually so. It's sort of a Salon for people who think Hilary Clinton killed Vince Foster. De gustibus non est disputandum. But it relies upon free speech. The First Amendment is essential to its operation. Indeed, even this week it was urging defiance to what it saw as Democratic Party threats to free speech:

Will we keep the First Amendment safe from Harry Reid? asks @jpcassidy000. http://ow.ly/BEsKy

Moreover, the Spectator has traditionally urged defiance in the face of politically motivated defamation claims. Such exhortations to resist "liberal" "tyranny" are common to the Spectator. And any publication — from the New York Times to somebody's LiveJournal page — relies for any credibility upon the proposition that it will say things even if some people do not like them.

But the American Spectator caved, and removed content.

Was it about the expense of litigation? True, it's expensive. But as far as I can tell the American Spectator never sought pro bono help from any free speech networks. Even though I experienced considerable difficultly when I sought pro bono help for the individual codefendants, it is very likely that an entity like the Spectator would have been able to find free or reduced-cost help, perhaps from ideological allies. And bear in mind that some of the individual co-defendants, even though they are not lawyers, have been vigorously and successfully litigating against Kimberlin pro se.2

Did the American Spectator have doubts about the merits of the case? Did it think Kimberlin might have a point? If it thought that, it is not competent to evaluate such things. Kimberlin's Second Amended Complaint is vague and ambiguous about his claim against the Spectator:

Defendant The American Spectator published numerous defamatory articles by Defendant McCain and then removed them. Defendant McCain complained to the editor and the articles were then republished in February 2014 with different urIs. The sheer number of articles published by the American Spectator about Plaintiff demonstrates malice an intent to harm him and his business prospects. For example, in one, titled "Terror By Any Other Name," Defendant McCain imputes that Plaintiff was involved with swattings . . .

The complaint goes on to quote one of the stories at length without specifying what is false or defamatory about it.

As I have written before, the claims are patently frivolous. Some of the scrubbed articles rely on published court opinions and newspaper articles to tell Kimberlin's history. Others discuss his lawsuits seeking to quell speech. One of them quotes my analysis of why epithets used against Kimberlin are protected opinion. Moreover, even if the American Spectator honestly (but stupidly) thought that some portions of one or more of the articles were defamatory, that does not explain or excuse them scrubbing all mentions of Kimberlin from their web site. Vexatious and censorious litigants frequently demand that all mention of them be removed; actual journalists or commentators worth reading don't do it.

Most litigants settle. But some litigants are, or should be, different. Their cowardice in the face of frivolous litigation impacts everyone. Universities — which rely on free expression — are different, which is why it was unacceptable for the University of St. Thomas School of Law to pay money to vexatious litigant Joseph Rakofsky rather than defend the right to write about public court proceedings. Any institution that bills itself as a "magazine," that has pretenses to journalism or commentary, is different as well. American Spectator has a journalistic and social obligation to defend itself and therefore defend free speech against censorious litigation. By surrendering and scrubbing content, the Spectator has abetted and encouraged abuse of the legal system and emboldened people like Kimberlin to sue to remove speech they don't like. They've betrayed their purpose. That's unacceptable.

It would be inaccurate to say that the American Spectator will lose credibility generally as a result of this decision. Its breathless partisanship and assorted oddities limit its credibility to its target audience of the like-minded. Doing this will wound its general credibility in the sense that the Weekly World News would hurt its credibility by doing a very one-sided hit piece on Bat-Boy. But this surrender will, and should, eviscerate its credibility with its target audience and its readers. First, how can it be taken seriously as an institution willing to speak truth to power if it caves to a frivolous lawsuit by a domestic terrorist?3 Second, how can they be taken seriously as a conservative institution that will question liberals, when they yield to a blatant attempt to abuse the legal system to retaliate against conservative viewpoints?

No. They're done.

A number of serious thinkers and good writers have written for the Spectator over the years. It's possible for a serious person to write for an unserious publication. (I have to keep telling myself that, since I wrote a couple of things for Salon.) But at some point it's fair to ask a writer why they are associating with a particular publication. I propose that we begin to ask that of anyone writing for the American Spectator — by email, by Twitter, by whatever medium available. Take, say, Ben Stein. You're an in-print and on-screen tough guy, Ben. Why would you continue to write for an institution that acted this way? Just asking.

I wrote to the American Spectator and its Managing Editor seeking comment, but did not receive a reply. I would like to ask them some questions. Did they even attempt to find someone to offer a vigorous First Amendment defense? Did they pay Kimberlin money — money he will use to sue other critics? If they think they faced liability risk, what particular statements of fact do they think were false? And is this going to be a thing now?

  1. I have made a PDF of that archive in case it disappears.  
  2. Yes, an entity cannot appear pro se. The point is that it shouldn't be impossible to find, at least, a figurehead of a lawyer.  
  3. Maybe they are ideologically primed to think there's nothing wrong with negotiating with terrorists.  

Last 5 posts by Ken White

Comments

  1. says

    One quibble: while it's correct to note that some of Kimblerin's individual defendants are proceeding pro se, corporations which lack in-house counsel generally cannot defend themselves in this manner. In many if not most jurisdictions a corporate president, for instance, who filed an answer without indicating a bar number would have his pleadings struck.

  2. Artor says

    Kimberlin's Second Amended Complaint…

    Whew! at first skimming, I read that as Kimberlin's Second Amendment As a convicted felon, isn't he barred from having guns?

  3. En Passant says

    One possible explanation: principals relying too much on enthusiastic advice of counsel.

    "Hey! we've got an offer that will make this thing go away! We won't even have to file responsive pleadings. Should we take it?"

    "Uh, sure."

  4. TomB says

    Maybe they are ideologically primed to think there's nothing wrong with negotiating with terrorists.

    OUCH!

  5. Sad Panda says

    Now that's more like it, Ken! I thought you went too easy on that UC Berkeley chancellor, this is a much more proper beat-down of a deserving subject.

    I bet this story is going to be taking victory laps around the left side of the political blogosphere.

  6. jdgalt says

    This is the only bit I have a problem with:

    It would be inaccurate to say that the American Spectator will lose credibility generally as a result of this decision. Its breathless partisanship and assorted oddities limit its credibility to its target audience of the like-minded.

    You quote equally partisan leftish sources here all the time without similar (or any) disclaimers. Not just Salon, but HuffPo and even the New York Times deserve them more. I call BS.

  7. Kevin says

    @jdgalt Such a disclaimer would be unnecessary – all media sources can safely be assumed to be left-leaning unless otherwise specified.

  8. Dan Weber says

    Partisanship can be ugly and stupid, but one of the good things is that when there's a wacko on one side, you're supposed to be able to have the other side stand up against it. Apparently the Spectator will stand up to liberals, unless the liberals are threatening.

  9. Dan Weber says

    Is there anyone building up a repo of deleted Kimberlin articles? I've got some that TAS memory-holed.

  10. The Invisible Man says

    I had the pleasure of being sued by a local politician(party affiliation is not important – but sure is amusing). The reason?

    Also, from his second amended complaint:
    "33. As a direct and proximate result of the {site name} statements, Petitioner was not elected to the (xx)th district Illinois State Senate"

    He was trying to subpoena the ISP records, to find the ownership of the accounts. So I did what is being advised against… stand up to it, and follow it through the courts to prevent the nonsense, but mostly to make him look like an even larger idiot.

    I took no settlements, and he is now forever in the public record as losing the case. Suffice it to say, the 'brand' of politics he practices means he will never have a single supporter again as a result.

  11. Jack B. says

    I bet this story is going to be taking victory laps around the left side of the political blogosphere.

    I'd love to see how it's spun; "Conservative Website Caves In To Threats From Liberal Vexatious Litigant" doesn't exactly pave the way for a victory lap.

  12. says

    I haven't looked at any of the pleadings, I know nothing about the case, and I'm making wild assumptions and suppositions.

    But if there was something vaguely resembling a defamation claim in Kimberlin's pleaings, that would possibly trigger insurance coverage if the American Spectator has a typical commercial general liability insurance policy.

    Is it possible that an insurer was defending the case (possibly under a reservation of rights letter for the RICO and other purported claims)? In my experience representing similarly situated companies, Insurers care nothing about journalistic principles and a great deal about costs of defense, meaning they not infrequently settle well within their policy limits, often for "nuisance value" that's considerably less than their costs of defense and expenses would run. To discourage similar litigation in the future, the insurer would typically insist that the modest cash settlement amount, and all the other settlement terms, be confidential.

    Of course, if I'm right, and if it was an insurer running the show and calling the shots, then the American Spectator probably had a contractual duty (in the policy fine print) to cooperate with the insurer and not to interfere in reasonable settlements within policy limits as negotiated and paid by the insurer. They could resume control over the litigation against them, of course, so they could soldier on and vindicate journalistic principles. But they'd likely forfeit their insurance coverage — excusing the insurer of further obligation to provide a defense and of any future obligation to indemnity up to policy limits against an adverse judgment — as the cost of that independence.

  13. Wick Deer says

    @Beldar. Paying a monetary settlement would be within the insurance company's decision making authority; however, I would be very surprised if an insurance policy for a journal contained any provision allowing the insurance company to negotiate a settlement that included pulling articles.

    The duty of the insured to cooperate with the insurance company is not that broad.

  14. Wick Deer says

    @Doctor Duck If you think that all free speech defenders are liberal, I'd say that you haven't hung around here very much.

  15. Curtis says

    Why do you suppose it is that lawyers have managed to make a complete mockery of law and then turn around and mock those that refuse to play their game? You call the suit frivolous and by extension all of that lawyer clown's lawsuits frivolous but nobody within the law ever acts to restrain him at all and as he said, he can always file another thousand lawsuits because the law won't use any of the mechanisms at hand to prevent him from doing so or dismissing each case he submits after a 20 minute perusal of the frivolous suit.

    I don't blame the American Spectator, I blame lawyers.

  16. C. S. P. Schofield says

    It's sad, though frankly the quality of the American Spectator's publication has dropped off in recent years. During the Clinton administration they were an admirable gadfly group, but lately I feel they have begun to take themselves a tad seriously.

  17. David L. says

    @The Invisible Man

    I had the pleasure of being sued by a local politician(party affiliation is not important – but sure is amusing). The reason?

    Also, from his second amended complaint:
    "33. As a direct and proximate result of the {site name} statements, Petitioner was not elected to the (xx)th district Illinois State Senate"

    Is there an invisible sentence there? Or maybe a link? I'm not sure what the deal with those is, but I think they are filtered out at least some of the time.

  18. says

    Now, I know this exercise of free speech will result in a torrent of hate spam from the "free speech for me but not for thee" crowd. But his Holiness mentions Lee Stranahan as if he were an impartial observer in this mess. Now, while kudos all around for correctly identifying the shrill and demented R. Stacy McCain as a co-defendant, might not the Pontiff of Palaver have better served his readership by mentioning that Mr. Stranahan is ALSO a co-defendant in the RICO suit, and thereby his writing should be taken with a truck load of salt licks? I understand and sympathize with Pontificus Magnus and his bloody-eyed outrage at not getting his way. Yet, with freedom comes responsibility. (Paul Harvey used to say that all the time, and he was a conservative!) Part of that responsibility is, don't say something about someone that is defamatory and untrue, don't speak it to a third party and you won't be charged with slander. Don't write it in a publication that is read by other people and you won't be charged with libel. Accusations should be clearly labeled as accusations with the use of words like "allegedly" and "according to authorities." Attribution avoids asshurt.

    Frankly, I believe American Spectator will survive this horrible outrage. Put 100 random conservatives in a room and ask for a show of hands to the question, "Who here has ever heard of Brett Kimberlin?" If you get five or six hands raised, I will give you a shiny, new Roosevelt dime!

    The "Hate Kimberlin At All Costs to Reputation, Lives and Careers" crowd is small, loud, and very angry. But they are not "everybody."

    Thank you for allowing me to express an opinion. I have retired from this particular battle, but saw an opportunity to add a bit of context to this anger blather, so I took it. I now resume my retirement as I continue in my efforts to raise money for Parkinson's disease research.

    Be well, cool off, go watch some football. The world is not ending. Not today. I don't think so, anyway.

  19. Brian says

    Look on the bright side, Mr. Pontiff of Palaver. The guy may be littering your site with garbage, but at least you were wise enough not to take Schmalfeldt as a client, when he asked.

    And Mr. Schmaldfeldt, how's the reputation of yourself and your apparent associate Kimberlin doing? That's the sting of truth you're both feeling, and it lasts pretty much forever.

  20. David C says

    don't say something about someone that is defamatory and untrue, don't speak it to a third party and you won't be charged with slander. Don't write it in a publication that is read by other people and you won't be charged with libel.

    I think many here would take your statement to be untrue – they would argue that nothing actually "defamatory and untrue" was published and yet the Spectator WAS charged with libel. That's kind of the entire point. Few would be upset with the Spectator for caving if they thought Kimberlin had an actual case.

  21. Gramps, the original says

    @David C, et al. I think "charged" leaves one with a distorted view of things. "Charged" with slander/libel in a civil court context is more equivalent to one person (Plaintiff) being upset about something someone said or wrote about them and filing a suit. It is not quite the same as a state prosecutor evaluating the available evidence and potential defenses and deciding that they can convince a jury of a person's guilt… not that that always happens in a criminal proceeding (Zimmerman come to mind) but that is, as I understand it, how the prosecutor is supposed to make the call.

    I am certain that the attorneys out there will correct any misconceptions I might have about the processes involved.

  22. says

    Why, howdy there, Bill. I thought you had given up talking about all this stuff, again. But I may have lost track.

    Say, can you help me with something? I know a sharp journalist like you will be able to ferret it out. Can you find out anything about the status of that FBI investigation into RICO charges that all these conservative bloggers were facing? You were so confident about it, and you're so sharp, that I know it must be there.

    Oh, and hey, maybe you can give me computer advice too. I'm kind of a big dummy. It seems my Google is broken, because I can't find your post discussing Brett Kimberlin's abject failure in his state defamation case. I know you wrote one, because you covered the case so much before, and I know as a responsible journalist you would follow up and discuss what you got wrong before.

    By the way, congrats on that MacArthur Genius Grant. Truly you deserve it. Nobody else is doing such exciting work expanding the boundaries of journalism by menacing children.

  23. says

    @ Wick: Good point, well made! We agree that the insured's obligation to cooperate with a reasonable settlement being made by its insurer probably doesn't legally oblige the insured to do anything more than sign typical release papers. The take-downs presumably were part of a side deal that the American Spectator could have refused to cooperate with. And maybe, faced with that insistence, an insurer would continue satisfying its policy obligations to defend & indemnify after American Spectator had blown up the entire settlement by refusing such cooperation.

    But I've also seen and dealt with insurers who were less reasonable, and who would rather fight the coverage case than the underlying lawsuit. That sort of insurer would treat American Spectator's refusal to cooperate with the take-down — something which costs the company nothing (except for the arguable sacrifice of journalist principle) — and the resulting torpedoing of the settlement as a breach of its contractual duties as a cooperating insured under the relevant insurance policy.

    Even if the insurer backs down — bites its corporate lip at the lost settlement, and at the resultant continuing defense expenses measuring in the tens of thousands of dollars — then American Spectator is going to have to worry about how its bristly hardball dealings with its own insurer are going to affect it in the future. Are its premiums going be rated up? This insurer probably will non-renew; are there alternatives available?

    I gather from its website that the American Spectator is an LLC that is, in turn, a subsidiary of a 501(c)(3) foundation. I can imagine the responsible individuals in the senior management of such a company deciding to stand firm to vindicate journalistic principles. I've never much represented non-profits myself, so they may act differently than the private corporate clients I've represented in defamation litigation. But among the for-profit companies I've represented, I don't think many of them would have taken the risks with their insurer just in order to be able to say: "We kept our journalistic integrity lily-white and pure."

    Again, this is TOTAL speculation on my part. Maybe insurance wasn't involved, in which case, I can only quote the immortal Emily Litella and say: "Oh! Never mind."

  24. DavidB says

    Ken White
    September 21, 2014 at 10:40 am

    Why, howdy there, Bill. I thought you had given up talking about all this stuff, again. But I may have lost track.

    Ouch! That's gonna' leave a mark.

    Wonder if he'll crawl away or come back for more. Standing by with popcorn and soda, ring side seats are so cool.

  25. En Passant says

    Why, howdy there, …

    Y'know, soaking my keyboard with coffee doesn't bother me much. They're a dime a dozen. But snorting coffee out through my nose hurts.

  26. EPWJ says

    Careful Ken he may trash you in one of those

    Whatever you do Ken, don't ask Bill how are his 37 books selling..

  27. Dragonmum says

    Ken,
    I'm a very occasional poster, but I've been following this saga almost as closely as the Prenda fiasco…

    @db48x
    If you go to the archived "terror" post you mention, and click the link for "The Kimberlin Files", you'll get to http://web.archive.org/web/20120814062916/http://theothermccain.com/2012/08/06/exclusive-kimberlin-associate-neal-rauhauser-accuses-brandon-darby-of-fake-swat-calls-obstruction-of-justice/ on RSM's blog that has a comprehensive list of his posts, but I don't think they're the American Spectator pieces. I think Ken linked to some of them in earlier posts about BK. Fascinating how one man can create so much chaos. Interesting to see he's been involved with a group named for Barbara Streisand. Coincidence?

  28. Rich Rostrom says

    TAS is not a conspiracy-peddler or hate-monger. It is combative, snarky, and often humorous. Their excavations of the morass of corruption around the Clintons were brilliant.

    This cowardly retreat is unworthy of a journal whose masthead lists as its legal counsel "Solitary, Poor, Nasty, Brutish, and Short".

  29. Sami says

    I don't know who Bill Schmalfeldt is, but I am in certain respects impressed by his writing.

    Most people rely on unnecessary polysyllabicisms to produce text that actively subtracts from the reader's comprehension of a subject. Mr Schmalfeldt didn't use any difficult words at all, yet having read his comment, I am left to ponder that I have *no idea what the fuck he is talking about*, even though I just read the article upon which he was commenting.

    Nobody here claims to be a pope, though. He could at least have called Ken the Papal Millinery.

  30. Techno Jinxx says

    It really should be mentioned that in his state Rico case, Kimberlin had 5 of 7 charges thrown out, THEN lost by directed verdict on the last two. The main reason being there was NO evidence of illegality by the defendents. None at all.
    Mr. Schmalfeldt's statement of "don't say something about someone that is defamatory and untrue, don't speak it to a third party and you won't be charged with slander. Don't write it in a publication that is read by other people and you won't be charged with libel." none-withstanding, as Kimberlin could provide no evidence that they did, the defendants in the state case were found innocent of doing any of that.

    When you consider the federal case is basically the same except with more names attached, then it makes one wonder, why did Am Spec cave on a case that has already been lost by the plaintiff in another court?

  31. Sad Panda says

    Sami++

    I tried to figure out what the hell this Bill S guy is talking about by reading some of his stuff and got nowhere. It's like word salad with a slightly higher than usual setting for the grammar slider.

  32. kimmy says

    If you don't like what Schmalfeldt wrote, don't worry, he'll soon delete everything and start writing again.

    And much hilarity will ensue.

    As an aside, nobody should go on any blog or other website he runs without proper ID protection. He like to out people who visit his sites. Just read his twitter feed (now @BlitzParkinsons, but it changes constantly) to see some real bat-shit crazy.

  33. jimbeaux says

    I just searched for 'Kimberlin' on spectator.org and when the web page refreshed with zero results the text in the search box had changed to 'lazy drunk.' Heh.

  34. QHS says

    You know it's going to be a humdinger when the post starts with "Now, I know this exercise of free speech will result in a torrent of hate spam from the "free speech for me but not for thee" crowd."

  35. says

    Trackbacks not turned on here? Bummer. Anyhow, I linked in. Sorry to see AmSpec have to do that. But, I ask the people griping; are you going to pay their attorney fees? If not, shut up.

    that is all.

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