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.

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?

Kimberlin Lawfare Update: Major Pushback By Aaron Walker [Now with court documents]

Note: our prior coverage regarding Team Kimberlin's censorious activities is here.

In our last episode of the struggle against Team Kimberlin — and for free expression without legal harassment — blogger Aaron Walker was muzzled by a Maryland judge who told him to "forget" applicable United States Supreme Court precedent, and had been arrested based on Brett Kimberlin's latest bogus claim of breach of the "peace order" he obtained from a compliant Maryland court.

The tide has turned.

First, Maryland prosecutors declined to prosecute Aaron Walker based on Kimberlin's latest bogus assertion that he'd breached a peace order by blogging.

Second, Aaron Walker — assisted by Maryland counsel Reginald Bours and ridiculously overqualified First Amendment expert Eugene Volokh — has filed an emergency appeal of the latest unconstitutionally overbroad "peace order". I'll try to comment on it next week. I've been kind of busy with comics and Bigfoot and yarn, y'all.

Third, Aaron Walker has filed a federal lawsuit against Brett Kimberlin in United States District Court in Maryland. I've pulled the documents off PACER and hosted them. You can read the complaint here and the motion for a temporary restraining order here. No exhibits — too big, sorry. I will not be commenting on this lawsuit. On several occasions I attempted to assist Mr. Walker in securing local counsel. When I've written about the case I've used other sources and never revealed a confidential communication with him, except as specifically authorized in order to ask for help. However, I feel precluded from discussing his federal case, as opposed to the state court proceedings.

More next week.

Edited to add: changed the motion document to the points and authorities rather than the notice, and redacted addresses from both, even though it's a public document.

Edited June 25 to add: A Montgomery County Circuit Court has granted an emergency motion to permit Walker to resume blogging, at least until a hearing on July 5.

Misappropriation of Decency and Valor

People who have followed recent events concerning Brett Kimberlin — including our coverage here — know that Kimberlin runs a nonprofit organization called "Velvet Revolution."

That catchy name is not original. The brave, principled, nonviolent uprising against the Communist Party of Czechoslovakia, which led to the overthrow of Soviet dominance there, used the name first.

To learn more about the real Velvet Revolution — and to understand why it is singularly disgusting that Team Kimberlin has appropriated the name — check out a new blog on the topic, and on related topics of righteous defiance of tyranny: Velvet Revolution.

Especially noteworthy: Brett Kimberlin and the Justice of Google.

Shut Up, They Explained: Another Blogger Threatened With Imprisonment For Writing About Brett Kimberlin

A couple of weeks ago, a federal court representative reached out to an American citizen. She told that citizen that he could go to jail if he continued to blog about convicted perjurer and bomber Brett Kimberlin.

Given how the federal criminal justice system works, she was right.

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The Kimberlin Crew Pokes The Bull And Gets The Horns

It's time for a Brett Kimberlin lawfare update. I've added a Brett Kimberlin tag for easy browsing of past related posts. Some of the most significant ones here at Popehat are these: my Blog About Brett Kimberlin Day post about what I found in federal court decisions about Kimberlin, my post about Aaron Walker's arrest and the "peace order" against him forbidding him from blogging about Kimberlin, and my post about what was revealed in the transcript of that hearing.

Today's edition: the biting off of more than is chewable.

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Forgetting Brandenburg And The Rule of Law: Brett Kimberlin Censorship-Through-Lawfare Update

Last week I wrote about how blogger Aaron Walker was arrested at a hearing on one of Brett Kimberlin's "peace orders" in Maryland. Since then, there have been significant developments to the matter:

1. What happened to Aaron Walker: The day of the arrest, it wasn't clear why Aaron had been arrested — there was speculation that he was arrested on the original peace order, that he was arrested for contempt, that he was arrested on some new peace order, and that he was arrested on Kimberlin's false and manufactured assault allegations. Now it's clearer. It appears that Brett Kimberlin sought a new peace order after Everyone Blog About Brett Kimberlin day and contrived to have Aaron arrested on that when he came to court on May 29th. The order — provided and analyzed by David Hogberg — is shockingly conclusory and vague. Yet even with that vagueness, it's clear that Kimberlin is explicitly seeking to have Aaron prohibited from discussing Kimberlin, and equally clear that a unprincipled and limp judiciary uncritically acquiesced. Kimberlin's filing is also notable for a common theme with his crew: any threats he gets (or that he, a convicted perjurer, claims he got) may be attributed to anyone or everyone who criticized him:

Mr. Walker has tweeted on Twitter about me in alarming and annoying ways over hundreds of times in the past week and urged others to attack me. He has generated hundreds of blog posts directly and indirectly based on false allegations that I framed him for an assault.

Mr. Walker has had many people threaten me directly with death, and told me to stop talking to the police, and not show up in court or I would die.

I've actually read Aaron's blog posts and Twitter comments. None of them urge anyone to "attack" Kimberlin, unless by "attack" you mean "criticize." Moreover, as Lee Stranahan points out, easily available public information shows that Kimberlin lied when he said that Aaron arranged "Blog About Brett Kimberlin Day." A judiciary that was not asleep at the wheel — a judiciary that took its role seriously, particularly when First Amendment rights are at stake — would have demanded to see the particular blog posts and tweets Kimberlin was referencing. But that would have required effort, attention, responsibility, and a vague grasp of the technology that the judges here were ruling upon. Rubber-stamping is much easier.

[Of course, criminal defense attorneys like me will tell you that rubber-stamping is not the exception — it is the rule.]

2. What passed for a hearing: Audio tape of the Walker/Kimberlin hearing has been released, and folks are beginning to create unofficial transcriptions. Patterico has audio, transcriptions, and commentary here. The tape is both deeply familiar to anyone who practices law (especially criminal law) and deeply depressing. The "hearing" was a farce. It was governed not by the rule of law, but by the rule of Judge C.J. Vaughey, two rules that proved rather starkly incompatible. Nowhere is this as stark as when Judge Vaughey says, rather shockingly explicitly, that he doesn't care what the law is, and that Aaron is responsible for anything that anyone does (or might do) based on Aaron's criticism of Kimberlin:

THE COURT: –You’ve decided to battle, and he comes back. And see, you’re — you — you’re the kind of guy, you don’t want to get into this to settle this, mano y mano. You want to get all these friends who got nothing else to do with their time, in this judge’s opinion, because — my God, I’m a little bit older than you are, and I haven’t got enough time in the day to do all the things I want to do. And I thought by retirement, I would have less to do. I got more! Because everybody knows I’m free! So they all come to me. But you, you are starting a — a conflagration, for lack of a better word, and you’re just letting the thing go recklessly no matter where it goes. I mean, you get some — and I’m going to use word I (ph) — freak somewhere up Oklahoma, got nothing better to do with his time, so he does the nastiest things in the world he can do to this poor gentleman. What right has that guy got to do it?

WALKER: He has no right to do that, Your Honor.

THE COURT: Well, he’s — you incited him.

WALKER: But, your honor, I did not incite him within the Brandenburg standard though.

THE COURT: Forget Bradenburg [sic]. Let’s go by Vaughey right now, and common sense out in the world. But you know, where I grew up in Brooklyn, when that stuff was pulled, it was settled real quickly.

WALKER: I’m not sure what that means, your honor.

THE COURT: –Very quickly. And I’m not going to talk about those ways, but boy, it ended fast. I even can tell you, when I grew up in my community, you wanted to date an Italian girl, you had to get the Italian boy’s permission. But that was the old neighborhoods back in the city. And it was really fair. When someone did something up there to you, your sister, your girlfriend, you got some friends to take them for a ride in the back of the truck.

WALKER: Well, Your Honor, what–

THE COURT: –That ended it. You guys have got this new mechanical stuff out here, the electronic stuff, that you can just ruin somebody without doing anything. But you started it.

Brandenbug, as I mentioned in my earlier post, is the United States Supreme Court case that articulates the relevant standard: speech may only be banned on the theory that it is incitement when it is intended to create, and likely to create, a clear and present danger of imminent lawless action. But Honey Vaughey don't give a shit. In his courtroom, he is the law, and he's suspicious of all this new-fangled stuff, and he'll impose any damn standard he wants. And so he forbade an American citizen from writing about a public figure — a convicted domestic terrorist — for the next six months based on that convicted perjurer's vague and undocumented claims that he had suffered threats from unidentified people.

It appears that Judge Vaughey has had a respectable career. Moreover, I am sympathetic to the notion that everyone, including judges, makes mistakes. But I believe that Judge Vaughey's behavior — whether it is based on hostility to free expression and modern technology or merely mundane black-robe fever — is so extreme that it should be his legacy. Judge Vaughey ought to be remembered henceforth as a lawless Luddite indifferent at best, and scornful at worst, to the most fundamental rights Americans possess.

3. This will not stand: People aren't accepting Judge Vaughey's ruling meekly. It will be fought. It will be overcome. First Amendment demigod Eugene Volokh is assisting. I'm doing what modest things I can to round up more help. People are organizing, writing more, defying Kimberlin and his clan.

4. Aaron is not the only target of lawfare by the Kimberlin crew. The Examiner reports that a lawyer named Kevin Zeese — possibly the political activist of the same name — is now threatening Ali A. Akbar of the National Bloggers Club on behalf of "Velvet Underground Revolution," a charity associated with Kimberlin. Zeese's threats will sound familiar to people who follow this blog and read about legal threats calculated to chill speech:

According to Zeese, the information that has been provided by a number of conservative blogs regarding Kimberlin is false, but he would not elaborate what information, specifically, was incorrect.

He was also unwilling to state what threats had been made, and was unwilling to provide any documentation when pressed.

"Get your facts straight," he said repeatedly.

When asked what, specifically, Akbar had done to spur the alleged threats, Zeese again responded by saying people should "get their facts straight."

As I have said repeatedly in the context of many different threats, ambiguity in a legal threat is a hallmark of empty thuggery and bad-faith censorious aims.

Should Mr. Zeese escalate to filing suit — or should his bumptious threats continue — I'll offer Mr. Akbar what I've offered all sorts of bloggers of all political persuasions: I will try to find you pro bono counsel and assist you myself to the extent I can.

[I'm feeling chuffed about the potential value of my own help today; we won another SLAPP motion for a client. Booyah.]

Kimberlin allies have also posted a picture of the home of Akbar's mother, apparently on the justification that one of Mr. Akbar's organizations uses that address in one of its filings. In context, given the connection to a convicted bomber, it's rather clearly intended to terrorize Akbar and his family.

5. Akbar is not the only additional victim. I'm trying to help another blogger faced with particularly despicable lawfare, apparently by Kimberlin allies. I put up the Popehat signal here. I've gotten some responses, but I'm still looking for federal criminal practitioners in the Middle Districts of Florida and Tennessee.

6. I asked people to transcend partisanship on this issue. Some are. Some aren't. There's still a disappointing tendency on the right to frame this as "see why the Left is full of evil people." There's still on the Left either too much silence or too much "lol it's just wingnut hysteria." That's regrettable. But I'm warmed by that support that has come from both sides. Keep it up. Support someone whose views you hate.

Sending Up the Popehat Signal: Help In Florida For A Victim of Censorious Thuggery

The Popehat Signal

I'm putting up the Popehat Signal. As regular readers know, it usually goes up to seek pro bono help for people threatened with unjust censorship.

Today I need a federal criminal practitioner in the Middle District of Florida, or admitted there and familiar with its courts. I need this person to help and advise a blogger who is being unjustly threatened with criminal consequences for his blogging. I believe, based on what I've seen, that this person is being threatened with criminal consequences because of what he has written about Brett Kimberlin and his crew. That is, of course, completely consistent with what our system allows to happen to people who want to exercise their First Amendment rights regarding Kimberlin and his crew. Because of this person's health, and the state of health care in our prisons, the unjust consequences he faces are quite literally life-threatening.

In connection with the same matter, I also need someone in the Middle District of Tennessee, or at least admitted there and familiar with its courts.

Please do not speculate on the identity of the person. It's not helpful.

Thanks in advance for any help. If you care about the Kimberlin matter, this one is worth it.

Brett Kimberlin and Aaron Worthing: Censorship And Retaliation Through Lawfare

Despite what you believe, you can be imprisoned in America for writing about public controversies. Aaron Walker — who until recently blogged as Aaron Worthing — found that out today.

I first wrote about Aaron when I sent out the Popehat Signal seeking pro bono help for him in Maryland in connection with his disputes with convicted bomber and perjurer Brett Kimberlin. Much more recently, I wrote about him when he revealed how Kimberlin had pursued him in retaliation for his writing, including making a demonstrably false criminal accusation against him.

After Aaron temporarily prevailed over Kimberlin and told his story, Kimberlin sought, and obtained, a new "peace order" (Maryland law-speak for a restraining order) against Aaron, trying to portray Aaron's protected expression as harassment and threats.

Today Aaron showed up in court in connection with that order, and was taken into custody for violating it — apparently on the grounds that by blogging about Kimberlin's behavior, he had violated the peace order.

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Wikipedia Is Bullshit

Okay, that title is a little harsh. Wikipedia is not exclusively bullshit. Wikipedia represents an astounding amount of work, much of it by well-informed people, on a dizzying array of topics. It provides almost almost unlimited free entertainment, and is often an effective starting point for an inquiry on a subject. And recently for some reason I've spent many hours wandering around the pages about prehistoric civilizations.

But you'd be a damn fool to rely on it for anything remotely controversial. Patterico has a jaw-dropping post about how Wikipedia — largely under the authority of one editor, it would seem — memory-holed the entire post about convicted bomber Brett Kimberlin.

I'm a firm believer in reading a wide array of sources and adjusting one's skepticism and bias-detection level accordingly. But it's hard to adjust for bias when a resource decides to handle a controversy by avoiding mention of it entirely.

Wikipedia's defense, perhaps a fair one, is probably this: "all right, smart-ass, compared to what?"

Blog About Brett Kimberlin Day

Lee Stranahan declared today "Blog About Brett Kimberlin Day," which only seems reasonable. Kimberlin is scary-evil, and a threat to free expression. Threats to free expression should be called out and exposed — hopefully without descending into pure partisanship.

Since people refer to this as a law blog, and my secretary keeps claiming I am a lawyer and that I am supposed to be working on law-stuff, I thought I would focus on law. I went on Westlaw and searched federal cases for Mr. Kimberlin.

There are quite a few. But today, let's just look at some highlights.

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