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.3 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.4
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?5 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?