Update On Lawfare And The Popehat Signal: Brett Kimberlin's New RICO Case
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.
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.
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:
Yes, 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.
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?
- 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. ▲
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