Update On Lawfare And The Popehat Signal: Brett Kimberlin's New RICO Case

Law, Politics & Current Events

Last month I put up the Popehat Signal to ask for help when unrepentant domestic terrorist Brett Kimberlin sued five bloggers in an effort to silence their writing about him. I have three important updates.

Update One: The Maryland State Case

So far more than a dozen attorneys and law students (not to mention other professionals) have responded to the Popehat Signal and offered to help with research, writing, and legwork in opposition to Kimberlin's vexatious state Maryland case against his critics. Two lawyers are making appearances for some of the bloggers. Any more help — particularly anyone willing to act as local counsel or counsel of record (with substantial support by those dozen lawyers) — would be very welcome. I look forward to thanking the people who responded to the Popehat Signal at the appropriate place and time.

Even with their pro bono help, Kimberlin will succeed in inflicting costs on these bloggers. They've set up a web site soliciting contributions for their defense. I think it's a worthwhile cause, and I respectfully ask you to consider it.

Update Two: The Federal Copyright Case

As you may recall, one of the defendants in the state case is an anonymous blogger named Kimberlin Unmasked. Brett Kimberlin has filed a separate pro se federal copyright suit against Kimberlin Unmasked in the United States District Court for the District of Maryland. In that suit — which you can read here — Kimberlin claims that Kimberlin Unmasked is violating his copyright in various images and videos taken from sites he runs. Predictably, a significant part of the complaint is taken up with accusing Kimberlin Unmasked — and other bloggers who aren't even defendants in this case — of "smearing" and defaming him. The complaint itself makes it rather clear that what Kimberlin Unmasked is doing is classic fair use — a limited use of the materials for the purpose of criticism and satire. Take this collage used to illustrate criticism and analysis, for instance. Kimberlin directly supports Kimberlin Unmasked's fair use argument by complaining that the pictures are being altered to criticize him: "Kimberlin Unmasked alters some of these photographs by superimposing Plaintiff's face on to other backgrounds, for instance a Nazi uniform." (Paragraph 8.)

Kimberlin's purpose is clear: he seeks another legal avenue to pierce the veil of anonymity and identify Kimberlin Unmasked, and he means to inflict expense and worry on someone who is criticizing him for being an unrepentant wrongdoer.

If you're interested in assisting in the defense of a federal copyright case, let me know.

Update Three: Kimberlin's Bizarre New RICO Suit

The third update is the strangest one.

Last week Kimberlin filed another federal lawsuit — again in the United States District Court for the District of Maryland — against a wide array of twenty-one bloggers and media figures. His defendant list includes those he has already sued in state court: Kimberlin Unmasked, Aaron Walker, Ali Akbar, Robert Stacy McCain, and William Hoge. But he has also sued such prominent conservative media figures as Glenn Beck, Breitbart.com, and Michelle Malkin, as well as other bloggers like Mandy Nagy and Lee Stranahan. Moreover, Kimberlin sues a number of conservative blogs, like Twitchy and Redstate and Ace of Spades. Kimberlin apparently believes that a blog is a separate legal entity that you can sue. This is the equivalent of saying "I'm going to sue this episode of Here Comes Honey Boo Boo because it upset me." Kimberlin also sues Patrick Frey, who blogs as Patterico. You may recall that Ron Coleman and I succeeded in getting another vexatious and politically motivated lawsuit against Patrick thrown out earlier this year.

The heart of Kimberlin's case is his claim that the defendants falsely accused him of "swatting" his critics, repeated that accusation to the media, law enforcement, and Congress, and used it to raise money. This claim arises from incidents in which several people who wrote about Kimberlin — including Patrick Frey, Aaron Walker, and Erick Erickson — were victimized by a potentially deadly hoax.  In each case, someone called the police, posed as the victim, and claimed there had been a shooting at their home — prompting the sort of armed police response that can lead to tragedy. Kimberlin asserts that he had nothing to do with this, and that he has been falsely accused of responsibility.

Kimberlin's Claims

If nothing else, Brett Kimberlin's claims show he has a flair for the dramatic.

He begins with a RICO claim — that is, a a federal civil claim asserting the defendants are involved in a racketeering enterprise. RICO was developed to fight organized crime.  To the chagrin of judges everywhere, it's now mostly used by angry pro se litigants and uncreative and self-serious lawyers. RICO is notoriously difficult to plead correctly, and RICO claims are commonly dismissed multiple times. Both federal and state judges tend to look on RICO claims with disfavor, perceiving correctly that a complex statute devised to fight the mafia and narcotics traffickers is now being used as a sort of exclamation point on mundane civil claims. Some federal judges are so tired of bogus RICO claims that they issue standing orders requiring plaintiffs to file elaborate factual explanations of their RICO claims.1

This is not Kimberlin's first RICO claim, by the way. He filed one from prison, over unsatisfactory pornography:

In January 1987, in federal court in Madison, Wisconsin, Kimberlin sued Crest Paragon Productions, alleging false advertising, breach of contract, mail fraud, conspiracy, and violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). According to the complaint, instead of the thirty magazines and sixteen books Kimberlin expected when he responded to a back-of-the-book advertisement placed by Crest Paragon, he was sent “fifteen pamphlets and three paperback books of low quality.” He described this material to me as “real old four-by-six black-and-white pictures that looked like they were from the 1960s and came from England.” The tepid paperbacks had titles like Making a Score and Coed Habitation.

Kimberlin continues with a Section 1983 claim, which asserts that Patrick Frey violated his civil rights while acting officially as a Deputy District Attorney. If that sounds familiar to my readers, it's because it's the same bogus theory — right down to some notably similar phrases — that Nadia Naffe used in her frivolous and censorious suit against Frey. Naffe lost when a federal judge agreed with us that Frey — who scrupulously points out that he is blogging as a private citizen, not as a Deputy District Attorney — was not acting "under color of state law" when he blogged about her. In accusing Patrick Frey of acting in his official capacity when he blogs, Kimberlin is knowingly lying to the court. He cites posts in which Frey explicitly states he's blogging as a private citizen but dishonestly conceals that detail from the court:

As always, opinions on this site are my own, and do not necessarily reflect the views of my employer. I speak in my personal capacity and not my official capacity, and do not intend to speak on behalf of my office in any way.

Next Kimberlin accuses the defendants of a conspiracy to deprive him of his civil rights under Section 1985(3). He probably does that for the flair of being able to say he is suing under the Ku Klux Klan Act.

Kimberlin follows up with the usual array of Maryland state law claims: fraud, defamation, false light invasion of privacy, and intentional infliction of emotional distress.

Kimberlin filed an initial complaint, and then a First Amended Complaint in a couple of days. Are there flaws in his revised complaint? Hell yes. There are pleading defects, failures to offer necessary details, and vague legal conclusions where there should be predicate facts. Moreover, much of the speech Kimberlin attacks — like reports to police, petitioning of the government, statements in legal proceedings — is privileged, meaning that it enjoys protection from lawsuits. His attack on speech is so broad, and often so focused on petitioning the government, that he's likely triggered Maryland's rather limited anti-SLAPP statute. Am I going to explain all of the defects? No. Let him find out when he gets the motions to dismiss.

And there will be motions. Some of the people and entities Kimberlin has sued have piles of money. He sued Simon & Schuster, for God's sake. Those defendants, if Kimberlin manages to serve them, will use those piles of money to hire giant law firms with crowds of lawyers. Lawyers from giant law firms aren't better than lawyers at small firms. But lawyers at giant law firms can staff cases with platoons of lawyers and pursue every possible avenue to attack a complaint. If any part of the complaint survives, they can conduct unstinting discovery. (Kimberlin, through his complaint, has put squarely at issue his reputation and the grounds for it, the financing of his "charities," and his interactions with his confederates and friends. Those would be some interesting depositions.) You might even feel pity for the guy on the other side of the hordes of lawyers from big firms — if the guy on the other side weren't engaging in frivolous lawfare to silence critics. The salutary part of that is that it will take pressure off of the smaller defendants.  Suing the big names is a tactical error born of hubris and sociopathy.

Kimberlin's Big Lie

There is a lie at the heart of Kimberlin's new lawsuit: the lie that he's suing because the defendants accused him of orchestrating swattings. It's a lie for at least two reasons.

First, it's a lie because Kimberlin misrepresents many, if not most, of the swatting stories. Kimberlin suggests that people accuse him of being behind the swattings. But once again, he's lying to the court about the contents of the posts he complains of. His adversaries — especially the people who were swatted — typically lay out all the evidence, and let their readers decide. Consider this post by Frey, which lays out the pattern of harassment by Kimberlin and his allies against people who criticize him, but leaves the conclusion to readers. Or consider this post, in which Frey actually corrects a media outlet that attributes to him an accusation against Kimberlin:

An earlier version of the story, since corrected, appended this false phrase to the end of that last sentence: “who Frey believes is behind the attacks.” I requested a correction through contacts, and this has been corrected. I have never told anyone in the media that I believe Kimberlin was behind the attacks. As in my posts, I simply provide the facts, and allow people to draw the conclusions they find appropriate from those facts.

Or consider this post by Aaron Walker, which lays out the evidence but has explicit disclaimers:

But on the other hand, Occam’s razor tells us this was done in retaliation against me for having won today in court against Kimberlin. Which doesn’t mean Kimberlin has anything to do with it, but it suggests a motive for whoever did. And that is why I decided to interweave the worst of Brett Kimberlin’s proven misconduct with this story.

Brett Kimberlin doesn't mention those careful qualifications in his complaint because they contradict his narrative and because Brett Kimberlin, a convicted perjurer, is a dishonest person.

I don't know who swatted these people. I don't know whether it was Kimberlin, or whether it was someone acting at Kimberlin's behest, or whether it was an admirer or associate of Kimberlin acting with or without his knowledge. I do know that people who write about Brett Kimberlin have soon thereafter gotten swatted.  And I know that the evidence amassed by people like Patrick Frey and Aaron Walker is more than sufficient for a reasonable person to suspect Kimberlin was involved. That's an opinion. Like Walker's and Frey's opinions and the opinions of the other people he has sued, it's protected by the First Amendment. As I explained in my post about Kimberlin's state case, laying out facts and then drawing or inviting conclusions based on those disclosed facts is classic protected opinion. If Kimberlin wants to prove that's defamation, he has to show that the facts, not the conclusion, are false — something he has conspicuously failed to do.

But that's not the biggest reason Kimberlin's narrative is a lie.

Secondly, and more importantly, Kimberlin's narrative is a lie because his purpose is not to address statements about swatting at all. His purpose is to carry out a harassment campaign he promised before the swattings even occurred.

Back in 2010, a year before Patrick Frey was swatted, Brett Kimberlin wrote Frey and threatened to sue him for Frey's coverage of Kimberlin and his criminal history. Frey repeatedly asked Kimberlin to specify how Frey's stories were inaccurate; Kimberlin refused. (Here at Popehat, when we talk about defamation threats, we have a mantra: vagueness in legal threats is the hallmark of meritless thuggery.) But though Kimberlin wouldn't offer specifics about what Patrick Frey allegedly got wrong about his criminal career, he was very specific about his approach to silencing critics:

I don’t want to get into a pissing match with you. I have filed over a hundred lawsuits and another one will be no sweat for me. On the other hand, it will cost you a lot of time and money and for what.

That's what lawfare means: that evil people, acting pro se or supported by unethical attorneys, file frivolous lawsuits to attack enemies. They know that even if the lawsuits are eventually dismissed, they inflict cost in time, money, and worry on the victims. And Brett Kimberlin was threatening lawfare over coverage of him a year before the swattings even happened. Far from actually being about swattings, this lawsuit is part of a continuum of abuse of the legal system to silence or retaliate against enemies. That abuse has previously included, for instance, seeking to have people jailed for writing about him, on the theory that writing about his despicable life causes people to threaten him, and is therefore harassment. Kimberlin has even trotted out the theory that writing about him is the same as repeatedly sending him harassing emails, because, well:

Kimberlin also tried the argument that since he had set up Google Alerts—commands to Google to search the entire internet for mentions of his name and to mail him those links—that writing him on the internet was equivalent to sending him an email.

Kimberlin's motivation is clear not just from his own words, but from the words of his supporters and confederates:

SchmalfeltKimberlinBootlickerYes, that's written by Bill Schmalfeldt, the disturbed person who wrote the gleeful fantasy about a mob murdering me and Patrick Frey. One measure of Brett Kimberlin is the sort of people who are in his entourage.

Kimberlin's focus on swatting coverage is a legal and rhetorical trick, an effort to avoid the even more obvious problems he'd have if he sued over coverage of his utterly incontestable history of committing monstrous crimes, evading his duty to repay his victims, and abusing the legal system. The effort to change the narrative should fail. I believe it will.

You Can Help

Are you happy that our system allows people like Kimberlin to wage lawfare to suppress speech?

You shouldn't be. You shouldn't be even if you approve of Kimberlin's progressive views (or, more accurately, the progressive views he mouths to fluff the gullible and the vapid) and can't stand the conservative views of his targets. In fact, lawfare is more likely to be used by the rich and powerful and (in many cases) the conservative. You're a fool if you applaud it because this time it targets people you don't like.

You can help. But will you?

You can help if you're a lawyer or law student by providing pro bono assistance to the defendants who can't afford their own attorneys. Even if you can't be a local counsel or an attorney of record — and it would be great if you could — you can be part of the team. (One of Kimberlin's tactical errors is suing in federal court. It's much easier for out-of-state attorneys to appear in Maryland's federal courts than in its state courts.)

You can help if you are good at research. How? Well, it's about time that somebody stomped this cockroach. Kimberlin brags of having filed more than a hundred suits and has a demonstrated history of frivolous litigation. He's got three suits pending to suppress speech he doesn't like right now. But no court has yet found him to be a vexatious litigant and imposed restrictions on his ability to file suits. Yet both Maryland and the federal courts have procedures for doing so. It appears nobody has sought to apply them. It's time to change that situation. An effective vexatious litigant motion will amass records from each of Kimberlin's lawsuits — including the complaint and the resolution against him, and any orders or records showing misbehavior in conducting the case — as well as all records of his threats to sue. That will require research, trips to courthouses, and interviews. Those are things that any good researcher can do. That vexatious litigant motion is going to be gigantic and deprive some woodland creatures of their homes, but for a good cause.

You can help if you are willing to throw a few bucks in to fund the fight.

You can help by spreading the word about Kimberlin and what's he's doing and about this request for help. Know an attorney who might help? Tell them about it.

You can even help by educating yourself about the First Amendment, about anti-SLAPP laws, and about defamation law. The more knowledgeable the citizenry, the harder it is for lawfare specialists to intimidate. I linked some good educational resources in Step Four of this post about how to respond to a defamation threat.

Stand up. Fight against evil. Fight for what's right. Please help.

Thank you.

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Postscript: A Hope, And A Pointed Question

I live in hope that more people will help defend speech not because they agree with it, but because defending speech you hate helps defend your own speech.

But I'm a realist, and I expect that people are more likely to be motivated to defend speech they like.

I'm proud of defending conservatives. I'm proud of having defended Patrick Frey and of helping Kimberlin's targets find lawyers. But I'm just as proud of having helped skeptics and AIDS activists and rape culture critics and people who aren't particularly political.

The Popehat Signal isn't without its occasional critics. The most thoughtful one is my friend Scott Greenfield, who asks a troubling question: where are the other folks who should be stepping up to help their friends?

I wonder the same thing. So: I will do what I can to help Kimberlin's victims. But I have to ask a question. Conservative media is awash with power, influence, money, and contacts with giant and utterly merciless law firms. It's not entirely clear to me why, when a domestic terrorist posing as a "progressive activist" is employing lawfare to silence conservative citizen journalists, it falls to an anti-War-on-Drugs, security-state-condemning, War-on-Terror-questioning, 2008-Obama-voting, Fox-News-ridiculing criminal defense attorney from Los Angeles to do so much of the legwork looking for pro bono help for the victims. Why is that?

  1. Amusingly, one of Kimberlin's more modestly gifted allies is asserting that the defendants have been "charged with racketeering" and that the FBI will be investigating them now. That's like saying that NASA will investigate if I file a pro se complaint accusing someone of using a satellite to beam thoughts into my head.  

Last 5 posts by Ken White

61 Comments

60 Comments

  1. Matthew Cline  •  Oct 20, 2013 @7:54 pm

    Doesn't the RICO claim mean he's implicitly (or even explicitly) claiming that the defendants are coordinating with each other, or that they're all taking orders from a ringleader?

  2. Tali McPike  •  Oct 20, 2013 @8:18 pm

    as a "fledgling historian" (I have a history degree & was trained in researching, I just haven't been able to do anything with it) I'd be happy to help with research. I'm even vaguely familiar with researching vexatious litigation, as I spent a whole semester researching & writing on one man's lawsuits (granted it was Ireland in the late 1800s, but the general concepts are similar).
    I don't think he has filed any cases in courts near me, but I'd be happy to help with any online research just point me in the right direction & tell me what I should be keeping an eye out for

  3. SPQR  •  Oct 20, 2013 @8:21 pm

    Footnote one is the best.

    I tossed in a couple more bucks.

  4. W. J. J. Hoge  •  Oct 20, 2013 @9:28 pm

    Thanks for your help, Ken. Here's my answer to your postscript question:

    You and I are probably on the opposite sides of many political questions, not because we have different goals but because of honest differences in how we believe they should be achieved. One of our common goals is protection of the rights secured by the Bill of Rights.

    Not everyone on the right or the left shares that goal with us.

    The lawyers representing me in the Schmalfeldt and Kimberlin state cases were classmates in law school. One is a liberal Democrat. The other is a former conservative blogger. Neither sees the First Amendment as something that should be a partisan issue.

    Footnote 1 will be recycled with due credit to the author.

  5. Jim Tyre  •  Oct 20, 2013 @9:37 pm

    Ken,

    Taking nothing away from an excellent post:

    That's what lawfare means: that evil people, acting pro se or supported by unethical attorneys, file frivolous lawsuits to attack enemies. They know that even if the lawsuits are eventually dismissed, they inflict cost in time, money, and worry on the victims

    Ben Wittes, Jack Goldsmith, Bobby Chesney (and others) might beg to differ. Their group blog is titled Lawfare, with the definition (which is more or less the accepted definition) being:

    The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others. This latter sense of the word—which is admittedly not its normal usage—binds together a great deal of our work over the years. It is our hope to provide an ongoing commentary on America’s lawfare, even as we participate in many of its skirmishes.

    http://www.lawfareblog.com/about/

    It's a mostly conservative blog about the law of warfare, it's more liberal (and newer) counterpart being Just Security, http://justsecurity.org/ I have no involvement in either, but I think some of your readers will appreciate one, the other or both.

  6. Rob  •  Oct 20, 2013 @11:26 pm

    It's not entirely clear to me why, when a domestic terrorist posing as a "progressive activist" is employing lawfare to silence conservative citizen journalists, it falls to an anti-War-on-Drugs, security-state-condemning, War-on-Terror-questioning, 2008-Obama-voting, Fox-News-ridiculing criminal defense attorney from Los Angeles to do so much of the legwork looking for pro bono help for the victims. Why is that?

    Right now, the Republican party is more or less divided into the Establishment, composed of people like Mitt Romney and John McCain, and grassroots activists that are more-or-less comprised of Tea Party types. And as scummy as this entire situation is, it's more or less an extremely minor skirmish involving grassroots activists that doesn't really affect the Establishment in any way (at least, in their eyes), and thus is not on their radar.

  7. Billy V.  •  Oct 20, 2013 @11:49 pm

    The funny thing with the mention of RICO suit and slight hint to the GOP on Popehat… guess who got hit with a RICO suit on Friday?

    Romney… http://www.alan.com/2013/10/19/romney-bain-capital-hit-with-rico-suit/

  8. Billy V.  •  Oct 21, 2013 @1:34 am

    Grr just realized my edit never went though… should have had at the end:

    Wonder how long it will take for this to get thrown out. This loon seems to have walked up and kicked the big boys in the shins and has no idea how close he is to getting back handed.

    Full Complaint: http://petters-fraud.com/haas_v_romney_filed_oct18_central_dist_fed_ct_la_calif_3_47_pm.pdf

  9. DarthChocolate  •  Oct 21, 2013 @2:47 am

    Is there a way to donate anonymously (i.e., by sending a money order)? I refuse to use PayPal and do not want a CC record.

  10. Pablo  •  Oct 21, 2013 @5:23 am

    It's not entirely clear to me why, when a domestic terrorist posing as a "progressive activist" is employing lawfare to silence conservative citizen journalists, it falls to an anti-War-on-Drugs, security-state-condemning, War-on-Terror-questioning, 2008-Obama-voting, Fox-News-ridiculing criminal defense attorney from Los Angeles to do so much of the legwork looking for pro bono help for the victims. Why is that?

    They're not paying attention to the blogosphere. You are. Damn shame Kimberlin didn't name News Corp.

  11. Clark  •  Oct 21, 2013 @6:33 am

    @Tali McPike

    as a "fledgling historian" (I have a history degree & was trained in researching, I just haven't been able to do anything with it) I'd be happy to help with research.

    Hmm. Interesting.

    I assumed that there was nothing that non lawyers could do. I and, I'm sure, others here have credentials like Tali's. Is there anything we can do?

  12. tsrblke  •  Oct 21, 2013 @6:42 am

    Ken,

    I cannot speak to your postscript except to echo what other's have said, that is: In general the groups with those big pockets don't care about smaller fish (and, in fact, may be more willing to cut them loose should any trouble come.)
    It's sad, but also true.

    Having said that, I think it's important that proponents of free speech, especially those without law skills help give themselves the tools to at least blunt these lawfare attacks when they arise.

    Some time ago you got me interested in the idea of grass roots lobbying for both stronger Anti-SLAPP state statutes and possibly a federal one. If you may recall, my tenacity even warranted a call from my Senator on the issue. But my life took a turn for the busy soon after that and so my tenacity waned (I am sad with myself that it happened.) I suspect though if the readers here at Popehat were to engage in a similar fashion (similar fashion BTW mostly involved writing letters until I got an answer I liked) we'd make considerable more progress and perhaps make it easier for those in trouble to find help (or at least get the tools to defend themselves.)

  13. Dan  •  Oct 21, 2013 @6:44 am

    What an awful specimen of humanity. The fact that the Popehat Signal exists—and works—helps me sleep at night.

  14. RedTonic  •  Oct 21, 2013 @6:47 am

    Not being local to the area, I'll toss my flaming liberal progressive dollars in the pot. An unrepentant terrorist like Kimberlin is not one of my natural allies. People who shine a light on his kind are.

  15. Andrew S.  •  Oct 21, 2013 @7:05 am

    I'm beginning to wonder if Kimberlin is somehow an alternative personality of Jonathan Lee Riches.

    Also, was Schmalfeldt's twitter hacked and deleted? https://twitter.com/FTRRadioNews

  16. tsrblke  •  Oct 21, 2013 @7:08 am

    @Andrew S.

    Schmalfeldt picks up and drops twitter account like my wife does shoes.

    Some people (and that's not being coy, I have no idea who) seem to be following behind and picking up his discards for a combination of parody and light shining.

  17. JWH  •  Oct 21, 2013 @7:20 am

    Moreover, Kimberlin sues a number of conservative blogs, like Twitchy and Redstate and Ace of Spades. Kimberlin apparently believes that a blog is a separate legal entity that you can sue.

    The RICO suit is a major case of TL; DR for me. But as a point of curiosity, is he suing, perhaps, LLCs or other business entities that own those blogs?

  18. Mark Draughn (Windypundit)  •  Oct 21, 2013 @7:31 am

    Shorter postscript: Where the hell is all that Koch brothers money that everyone else is supposedly getting?

  19. Mark Draughn (Windypundit)  •  Oct 21, 2013 @7:35 am

    Seriously, if the Popehat Signal movement keeps growing at this rate, you're probably only a year or two out from launching (or affiliating with) a formal charitable legal assistance organization.

  20. Burnside  •  Oct 21, 2013 @7:41 am

    Ken,

    One of the best things about Popehat is that it reaches across the aisle. Few other blogs would have authors as different as Ken and Clark writing for them. Few other blogs would reach across the aisle to help their political opposites. It makes this one of the more compelling blogs to read, day in and day out. I always learn something new, I find things I agree with, I find things I disagree with, and (wonderfully) I find where I meet in the middle.

  21. Andrew S.  •  Oct 21, 2013 @7:41 am

    For what it's worth, I'm willing to give what research help I can. I'm not a Maryland attorney, and I'm not a litigator. But I do have certain (research) skills. [You all know where I'm going with this one]

  22. Pierce Nichols  •  Oct 21, 2013 @9:38 am

    Point of curiosity: at what point does a text that insinuates that a particular person committed a crime override a disclaimer that states that no such insinuation is intended for the purposes of defamation law?

    I've read the posts in question, and it's hard to avoid the impression that Aaron Walker and Patrick Frey both intended the reader to draw the conclusion that Brett Kimberlin and his buddies were behind swatting them. I draw this conclusion largely from the fact that they both tend to discuss swatting in posts that discuss the various nasty things that Kimberlin certainly has committed.

  23. Rich Rostrom  •  Oct 21, 2013 @10:17 am

    Well, it's about time that somebody stomped this cockroach.

    That's a very unfair comparison. Cockroaches are filthy parasites whose behavior coincidentally spreads diseases, but they don't intentionally harm anything.

    BK? A viper.

  24. Dustin  •  Oct 21, 2013 @10:32 am

    Pierce Nichols,

    There's nothing defamatory about laying out the facts of the SWATtings and saying 'I leave it up to you to draw conclusions', even if the facts that are laid out tend to drive reasonable people to the opinion that Brett Kimberlin and his supporters are the prime suspects.

    That's because Patterico and the others let the facts make whatever point they make.

    Obviously someone committed the crimes. Lay out the facts and let the reader decide who they think the facts point to. You ask at what point this 'overrides' them saying they aren't accusing anyone… I can tell you. At the point where they are lying about the facts or otherwise defaming someone.

  25. rmd  •  Oct 21, 2013 @10:47 am

    You can help if you are willing to throw a few bucks in to fund the fight.

    Is there a place to donate for this specific purpose or do you mean to hit the individual bloggers' tip jars?

  26. Dan Weber  •  Oct 21, 2013 @11:31 am

    rmd: search this page for "contributions". I wouldn't want to tip jar these guys' blogs but a legal defense is another matter entirely.

  27. En Passant  •  Oct 21, 2013 @1:47 pm

    I read the complaint, though quickly. I never practiced civil, but it strikes me as being too much of a muchness.

    He's piggybacking his RICO and Civil Rights claims upon underlying defamation claims. In a defamation claim, plaintiff must prove the defamatory statement was false. But he never specifies the particular statements upon which any defamation claims might be based. He only alleges a "smear campaign" of "false narratives", whatever those are.

    Where he does mention specific words published by defendants, they aren't defamatory.

    Maybe he hopes nobody will notice. Or maybe he doesn't care, if he can stay in court long enough to beggar the defandants.

    Or maybe I didn't read the complaint thoroughly enough. After all, he's a jailhouse lawyer, and I'm not.

  28. Ted H.  •  Oct 21, 2013 @1:48 pm

    This is an interesting case. How would someone interested in helping get in touch with the appropriate party?

  29. deskmerc  •  Oct 21, 2013 @2:21 pm

    I got a bit of a bonus a month ago for dealing successfully with a recalcitrant customer, now I know what to do with it.

    What I want to know is, where does Kimberlin get the resources to generate all this nonsense?

  30. SPQR  •  Oct 21, 2013 @2:35 pm

    deskmerc, from dubious non profit organizations like JMTP. And there seem to be family money.

  31. tmitsss  •  Oct 21, 2013 @2:37 pm

    the Maryland District Court has a standing order requiring an order of the court before the Clerk can issue a Summons in a Pro Se case.

    http://www.mdd.uscourts.gov/Misc/2012-04.pdf

  32. rmd  •  Oct 21, 2013 @3:37 pm

    Dan,

    Thanks. I was looking all over in the margins and even clicked the "become a member" tab. If I hit the lottery, I'm signing up!

  33. Bill  •  Oct 21, 2013 @3:59 pm

    @Clark – I feel stupid now, I just assumed all the Popehat crew were atty's. As far as non-legal help goes though – if software dev/computer help is needed, count me in.

  34. NI  •  Oct 21, 2013 @5:35 pm

    I'm having trouble understanding why Mr. Kimberlin is seeking out the kind of publicity that these lawsuits are certain to generate. If I were a convicted terrorist, I'd concentrate on finding a quiet way to make an honest living and keep my head down. Does he not realize that every time his name makes it into a news article, his past is going to get a mention?

  35. David  •  Oct 21, 2013 @6:21 pm

    do you have a list of residences of kimerlin over the last 20 years? if he sued, he likely filed where he lived.

  36. ChrisTS  •  Oct 21, 2013 @7:00 pm

    I'm a fairly garden-variety liberal and would like to help out. But, like another commenter, I don't have anything to do with PayPal anymore and would like to see some alternative way of contributing.

  37. Parallax  •  Oct 21, 2013 @7:21 pm

    I think the answer to your question is found on another site that I read daily.

    John Wesley Hall runs this site: http://www.fourthamendment.com/blog/

    As you scroll down the right hand side of the page, there are two quotes that both fit your circumstances and answer your question. Together, they are:

    "If it was easy, everybody would be doing it. It isn't, and they don't."
    —Me (John Wesley Hall)

    “You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
    —Pepé Le Pew

    To me, the second quote explains the first, and taken together they are why others don't do what you do. Here's why I think you do what you do, again in terms of Mr. Hall. He strikes me as a kindred spirit, jealously guarding his particular section of the Bill of Rights, as you do yours. He does heavy lifting for a world that may not seem to appreciate it, while maintaining a very necessary sense of humor. Mr. Hall's work runs the risk, as does your use of the Popehat Signal and this blog in general, of benefiting unsavory characters. (Of course, that depends on your personal definition of unsavory.) Uncompromising fidelity to principle can permit such things.

  38. Pablo  •  Oct 22, 2013 @2:50 am

    rmd, the defense fund is at http://bombersuesbloggers.com/

  39. AlphaCentauri  •  Oct 22, 2013 @6:06 am

    I realize they need real names for credit cards, but whatever possessed them to post a list of the donors on the site?

  40. Steve  •  Oct 22, 2013 @7:07 am

    The Statute of Limitations in Maryland for contending libel or slander is 1 year. I don't understand why we need to donate to defendants that clearly fall under this statute and are thereby irrelevant to this suit that insists libel occurred and whereby everyone understands that RICO does not apply.

    Any thoughts?

  41. Anonymous Coward  •  Oct 22, 2013 @11:47 am

    @Steve

    The suits are very likely to be unsuccessful, but that didn't stop them from being filed and they still must be defended against.

  42. Dan Weber  •  Oct 22, 2013 @1:31 pm

    I realize they need real names for credit cards, but whatever possessed them to post a list of the donors on the site?

    What? Is rally.org posting all donors, or only those who wish to publicize themselves?

  43. Clark  •  Oct 22, 2013 @1:52 pm

    @NI

    I'm having trouble understanding why Mr. Kimberlin is seeking out the kind of publicity

    I've dealt with a handful of literal, diagnosable psycopaths and narcisistic personality disorder sufferers.

    Their behavior doesn't make sense to normal people because normal people think "I could be wrong", or "Even if I'm right, people might perceive me as an asshole".

    People like this think that they are the smartest, most capable, best people on the planet, and everyone will realize it in short order. And those who don't are horrible evil people who must be destroyed.

  44. luagha  •  Oct 22, 2013 @3:33 pm

    And of course, the process is the punishment. A reasonable judge with skills will slap this down before it goes any distance; but a goofyheaded one will let it go a ways and cost time and money.

    And Brett Kimberlin does appear to be lucky on getting the goofyheaded ones now and again.

  45. Joy McCann  •  Oct 22, 2013 @3:58 pm

    The issue of why it is that it falls to liberal free-speechers to defend right-leaning bloggers is interesting, and it might be part of the larger issue of why the right blogosphere is underfunded–corporate entities that are theoretically sympathetic to the cause of free markets lets righty bloggers drift along without support, whereas left-bloggers often get stipends to support what they are doing. (Obviously, plenty of people on both sides blog alongside "real jobs," and this is desirable because it preserves the blogger's independence.)

    I think that 1) a lot of deep pockets on the right are too focused on ROI to want to subsidize political speech, and 2) they are fixated on the Koch brothers' heads on spikes atop the castle wall. After all, a lot of people with a medium level of political knowledge believe quite sincerely that the Koch brothers belong on the "far right," and these folks are in the dark about Charles and David Koch being anti-drug war, anti-war-on-terror, anti-foreign intervention, and lavish funders of cancer research and the arts.

    This can't *help* with the problem of cowardice among right-leaning rich people . . . though it doesn't justify it in the least.

  46. Josh C  •  Oct 22, 2013 @5:57 pm

    I don't think the Vast Right Wing Conspiracy is as vast, organized, or well funded as you think it is.

  47. Joe Pullen  •  Oct 22, 2013 @9:57 pm

    I like Tali and Clark's idea. A bit of additional research may be in order to determine just exactly why Kimberlin hasn't yet been declared a vexatious litigant.

    As you already know, I'm pretty good at finding things (cough). Happy to help in the effort.

  48. Adjoran  •  Oct 22, 2013 @10:45 pm

    Isn't there a federal rule prohibiting sworn filings by convicted perjurers?

  49. En Passant  •  Oct 23, 2013 @7:35 am

    Joe Pullen wrote Oct 22, 2013 @9:57 pm:

    I like Tali and Clark's idea. A bit of additional research may be in order to determine just exactly why Kimberlin hasn't yet been declared a vexatious litigant.

    Particulars for declaring a litigant vexatious vary by jurisdiction. Sometimes state statutes control it. For example, see California's rules here [PDF].

    Courts generally are reluctant to sanction pro se litigants as vexatious because they do not want to be perceived as making justice inaccessible to ordinary citizens.

    So, long story short, it isn't always easy for courts to declare a litigant vexatious.

  50. Tali McPike  •  Oct 23, 2013 @9:10 am

    "So, long story short, it isn't always easy for courts to declare a litigant vexatious."

    True, but as Ken points out in the OP collecting evidence of all the suits he's filed (particularly illegitimate ones that get thrown out pretty quickly) will make it easier for the courts. If they aren't aware of his history, they have no reason to assume he's a problem

  51. En Passant  •  Oct 23, 2013 @1:06 pm

    Tali McPike wrote Oct 23, 2013 @9:10 am:

    True, but as Ken points out in the OP collecting evidence of all the suits he's filed (particularly illegitimate ones that get thrown out pretty quickly) will make it easier for the courts. If they aren't aware of his history, they have no reason to assume he's a problem

    True, and once declared vexatious in one court, it's easier for another to make the same finding and ruling. It can cascade to avalanche once it starts.

    But some of the rules for the initial ruling require a fairly high threshold, as the CA document illustrates:

    In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.

    Five losses in seven years is a fairly high threshold.

  52. Captain Obvious  •  Oct 23, 2013 @5:29 pm

    I present for eveyones amusement Matt Osborne, Kimberlin mouthpiece http://www.twitlonger.com/show/n_1rmmjth

    Mr. Osborne’s ridiculous screed was a result of my daring to tweet my opinion that an article posted on BreitbartUnmasked was an unsubstantiated smear of Ken. Mr. Osborne, being the intrepid investigative journalist that he is, immediately assumed I was daring to speak of Brett Kimberlin -despite the fact my tweet never mentioning Kimberlin. Mr. Osborne then alluded I could potentially be joined the lawsuit against McCain, Hoge, and Worthing because he is of course all about the 1st amendment.

    While it appears from his screed that Mr. Osborne has cornered the market on tin-foil, what shouldn’t get lost in his utterly ridiculous rant supporting Kimberlin is this . . . .

    No one has accused you of breaking any laws, libel, or defamation…yet. I emphasize the "yet" because Aaron Walker has in fact stalked, defamed, and abused legal processes in his relentless pursuit of Brett Kimberlin. Mr. Kimberlin is indeed extraordinarily litigious, just like his reputation, and he is quite ready to sue as many people as he likes forever and ever now, thanks to the incredibly stupid actions of Aaron Walker and William Hoge.

    Mr. Osborne deliberately overlooks the fact Kimberlin’s reputation for filing multiple frivolous lawsuits has been in place long before Aaron Walker crossed his path. Bill Schmalfeldt has made similar statements to the effect Kimberlin will sue anyone and everyone. These statements further demonstrate Kimberlin’s use (rather abuse) of the courts is motivated purely to silence his critics. I won’t get into the sheer hypocrisy that is Matt Osborne’s excuse for defending Mr. Kimberlin’s associate, Craig Gillette, who has served time in prison for possession of child porn.

    In any event, it seems a worthwhile endeavor to pull information together. Perhaps former cases Kimberlin filed and won either because the defendant could not pay to defend themselves or didn’t show up, and those cases where he lost or which were thrown out due to being clearly frivolous. Such research, along with comments such as those above, might not be enough to have him declared a vexatious litigant but I wonder if they could be helpful to anyone else that has to deal with Mr. Kimberlin either now or in the future.

  53. Ken White  •  Oct 23, 2013 @5:53 pm

    I can't really tell whether Matt Osborne is one of the vapid useful idiots I mention who buy Kimberlin's con, or whether he's pro-Kimberlin just because he's anti-folks that Kimberlin is against, or whether he's evil, or nuts. He doesn't seem significant enough for anyone to care.

  54. Patterico  •  Oct 23, 2013 @7:20 pm

    Osborne is, at a minimum, nuts — as this fantasy about torturing Rush Limbaugh demonstrates.

    I get that he is trying to make a point about hypocrisy about torture. But the way he does it — and the glee with which he describes the fictional torture — is more than a little unsettling.

    Funny how Kimberlin seems to attract people like this.

  55. Captain Obvious  •  Oct 23, 2013 @7:34 pm

    @Ken – agreed. Personally I think Osborne is a warped but generally insignificant annoyance. What I thought was interesting was his comment about the litigious nature of Kimberlin. I don't believe he understands that promoting that fact along with Schmalfeldt is not necessarily enhancing Mr. Kimberlins already questionable reputation.

    In any event, collecting information about his many filed lawsuits and penchant for lawfare under the guise of shutuppery might be helpful to others.

  56. Dustin  •  Oct 24, 2013 @3:21 pm

    Dan Weber • Oct 22, 2013 @1:31 pm

    What? Is rally.org posting all donors, or only those who wish to publicize themselves?

    There's a toggle marked "keep this donation anonymous" if you don't want your name posted. And it's quite reasonable for a donor to use that.

  57. Dustin  •  Oct 24, 2013 @3:23 pm

    " I don't believe he understands that promoting that fact along with Schmalfeldt is not necessarily enhancing Mr. Kimberlins already questionable reputation."

    It doesn't help him in court, but he's not going to prevail in court anyway. I believe that kind of statement does help silence most of those who oppose what he's doing. That's what he's really going for. This is about controlling speech on the internet.

  58. AliceH  •  Oct 26, 2013 @4:58 pm

    The whole "where are the conservatives' friends" bit is perplexing to me.

    Why would conservative bloggers be in a better position to deal with these 1st amendment lawsuits than any of the other parties helped by the Popehat signal? As bloggers, they might be better able to rally some more funding than a secret shopper dissatisfied with an amber necklace, but that's hardly enough to properly prepare and defend against this lawfare.

  59. Ken White  •  Oct 26, 2013 @5:48 pm

    @AliceH: I'm not talking about conservatives in the abstract. I'm talking about conservative media.

  60. AliceH  •  Oct 27, 2013 @6:24 am

    Okay.

    I don't mean to be snotty here. I often am puzzled by what people consider "media" and "MSM", and am sincerely curious where you think this story should be getting coverage. Or what supportive action (besides reporting) may be supplied by them. I'll assume Fox News is one source. Where/Who else?

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