Judge Tosses Vexatious Litigant Brett Kimberlin's Lawsuit Against Conservative Blogger
from the 'shut-up'-he-filed-repeatedly dept
Nearly six years after Brett Kimberlin first threatened to sue blogger/prosecutor Patrick Frey (a.k.a. "Patterico") over a factual post about Kimberlin's criminal past, the courtroom battle has finally come to an end.
Free speech has won.
After nearly four years, convicted bomber and perjurer Brett Kimberlin has lost his lawsuit against your favorite blogger (that’s me!). Federal District Judge George Hazel today issued an opinion granting me summary judgment in Kimberlin’s frivolous and censorious lawsuit against me.
It is a total and complete victory. There will be no trial. I will pay nothing. I will take down no blog posts about Kimberlin. The lawsuit is simply over. (Of course, he’ll appeal. He always appeals.)
My deepest thanks go to my pro bono counsel: Ron Coleman of Archer & Greiner and the Likelihood of Confusion blog, and Bruce Godfrey of Jezic & Moyse LLC.
This should have been a simple anti-SLAPP case. Should have. Wasn't. (Part of it is Maryland's weak take on anti-SLAPP.) It took four years to resolve and tons of pro bono hours. Kimberlin claimed he had been defamed by Frey's post, which was based on four news sources and covered his conviction for bombing and his rise to dubious fame as Dan Quayle's pot dealer (back when Quayle was still VP/relevant).
Kimberlin has a long history of abusive, vexatious lawsuits -- all of them filed with the intent of shutting down criticism. His defamation claim was just the tip of iceberg. In his legal threat (all the way back in 2010), Kimberlin claimed a variety of injuries from Frey's post, accusing him of cyberstalking, cyberbullying, and "interference with business."
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.
So… basically announcing up front he sued people to harass them into silence. There's a long write-up from a couple of years back at The Daily Beast that delves into Kimberlin's litigious (and criminal) history -- one that includes filing a RICO suit against political commentators and his alleged involvement in the SWATting of defendant Patrick Frey.
It's all over now but the appeals process. Free speech was ably defended by two great lawyers working for free. (You'll probably recognize Ron Coleman as the counsel in the recent Supreme Court Tam decision, which declared the trademark's board refusal to recognize "disparaging" marks was a violation of the First Amendment.)
Even though Frey's post is upbeat, this was still a four-year bogus, censorial legal battle that cost the defendant (and his reps) time and money to defend against. Despite Kimberlin pretty much admitting he files lawsuits to harass people, no court has sanctioned him for this behavior. This court doesn't either, but it does allow Patrick Frey to dismiss the lawsuit and leave all his criticism of Kimberlin intact.
What's problematic about the long-running suit is the behavior of parties on both sides. Kimberlin has made it clear he wants to intimidate people into silence. His critics want to attribute everything from SWATtings to pedophilia to Kimberlin with little real evidence*, even though a mere factual rehashing of his past legal troubles would be damning enough. But, based on his responses to all of this, Kimberlin appears to have little interest in even factual rehashings staying alive on the web. He appears to be convinced that there's a massive conservative conspiracy trying to destroy his election-related non-profit. But rather than use his position as a minor liberal icon and the open publishing platform that is the internet to repudiate assertions, Kimberlin files lawsuits.
*UPDATE: Aaron Walker -- another critic Kimberlin sued -- wrote to me to point out the accusations of pedophilia are based on Kimberlin's and his ex-wife's own statements. He also wanted to point out that, while many have written about the SWATtings that followed criticism of Kimberlin, no one (that he's aware of) has tried to directly attribute this to Kimberlin. Details on the pedophilia claims can be found over at Popehat.
His suits are little more than a form of harassment, albeit one that can't possibly be ignored by burying comments, hitting "mute/block" buttons on social media, or simply refusing to engage in arguments with him. A lawsuit must be responded to, and those who are sued are expected to fund their own defenses even when the accusations are clearly bogus. This decision is a small win for free speech and yet another cautionary tale about the abuse of the judicial system to punish bloggers and pundits for their critical words.
This lawsuit is yet another example of what it's so necessary to push for better anti-SLAPP laws, both at the federal level and at the state level. This kind of harassment would not have wasted nearly as much time and resources if there were a reasonable anti-SLAPP law protecting Frey from having to go through such a long and arduous process. Maryland's legislature, in particular, should be aware that it has failed to protect free speech by having a woefully limited anti-SLAPP law that allows cases like this to drag on and on, rather than adopting anti-SLAPP laws similar to those found in other states (like California and Texas) that actually protect free speech by ending these lawsuits much earlier in the process.
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Filed Under: anti-slapp, brett kimberlin, defamation, first amendment, free speech, legal process, maryland, patrick frey, slapp, vexatious lawsuits
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America
WHat about all the guys out there with no pro-bono lawyers?
HOw is this a real win if he'll just keep doing it?
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Re: America
This case is especially bad because its using all the above pitfalls intentionally.
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Re: Re: America
Can you explain how that counts as a “pitfall” of the legal system? Because I am having a hell of a time trying to figure out how both sides having legal rights within a court of law is somehow a bad thing.
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Re: America
I think this by design
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Re: America
To answer your question, the same for everywhere.
Ignorance.
People falsely think America is some kind of Democracy. It is not, it is a Constitutional Republic. They also think the President should be a popularity competition, it is not as proven by Trump's win and exactly why the founding fathers did not WANT a popular vote driving the election of the President.
People also care more about what the president is doing than how they can prevent tyranny of the state by honorably serving as a juror. Instead they let a judge and lawyer LIE to their faces about their only job being "guessing" if the person broke the law or not based on the evidence. They have ZERO idea that they are also supposed to be judging the law, its application, AND the reputation of the person being charged.
People think they are supposed to get an impartial jury, WRONG, the constitution say jury of peers! There really is a difference. The jury system was entirely predicated upon assholes getting shafted when they broke the law and nice folks getting a break. Is that fair? It's more fair than a judge that wants to pad their political numbers by looking tough on crime while sending innocent people to jail.
"HOw is this a real win if he'll just keep doing it?"
Good question. But that is what the Judges are supposed to be stopping from the get go, instead, they are paid to see the cases anyways so why bother stopping it? We don't care.
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Re: Re: America
Oh, spare us that crackpot myth. The US is indeed a democracy. It is also a republic. The two are not mutually exclusive. "Republic" just means that it's not a monarchy.
Sure, the President is elected indirectly (but still democratically.) The same goes for the Prime Minister of Canada (a Parliamentary Democracy) and most other leaders of democracies.
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Re: Re: Re: America
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Re: Re: Re: Re: America
It would be helpful if you guys actually cared about Fact.
It is a Fact that the United States is a "Constitutional Republic"
That is what the founding fathers called it!
That is what the CIA world fact book calls it!
That is what anyone with a "reasonable" brain calls it!
Should I call you Mike DumNick? Or should I refer you by the proper term?
If you are so ignorant that you cannot even get the Readily available form of Government of the Worlds largest Military super power, then perhaps you are not a smart as you think you are.
If you don't like "THE FACT" that we are a"Constitutional Republic" then go and take over the fucking Country and change it!
This is NOT secret knowledge and the fact that is not is what makes you a blithering idiot!
And here is the link for the rest of you idiots that need one and cannot look it up for yourself!
https://www.cia.gov/library/publications/the-world-factbook/geos/us.html
And here is the Wikipedia page too... go an edit that Mr. Facts... see how long you can the WRONG information on that site before you are "corrected"!
https://en.wikipedia.org/wiki/United_States
The founding fathers directly stated that they did not want a "democracy" of any kind and directly configured the structure of our government to resist the vile rat pile of stupid you idiots bring to the table on a daily basis to slowly, over time, change the meaning of democracy to mean something that it does not mean.
I hope you get a Democracy, because under that, you all would have committed suicide or invaded to comedic effect.
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Re: Re: Re: Re: Re: America
No-one disagrees with this. It is also a democracy.
Well sure, because America is indeed a republic. Just as it is indeed a democracy.
Yes, you can find all sorts of quotes from the founding fathers warning about the "tyranny of the majority" problems of democracies. (Which is why - like other successful democracy - they enacted a Constitution and Bill of Rights to protect minority rights.) But they don't deny that America is a democracy.
My irony meter just pegged.
Your link makes no such claim.
Your link states "The United States is the world's oldest surviving federation. It is a representative democracy, "in which majority rule is tempered by minority rights protected by law".
The Soviet Union, East Germany, China and North Korea were/are all republics. Reread your statement for more comedic effect.
"Republic" only means that America doesn't have a monarch. You can have democracies that are republics or not, and you can have republics that are democracies or not.
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Re: Re: Re: Re: Re: Re: America
*blink*
republic
n.
A political order whose head of state is not a monarch and in modern times is usually a president.
n.
A nation that has such a political order.
n.
A political order in which the supreme power lies in a body of citizens who are entitled to vote for officers and representatives responsible to them.
And
---
Government by the people, exercised either directly or through elected representatives.
n.
A political or social unit that has such a government.
n.
The common people, considered as the primary source of political power.
---
We do NOT directly or indirectly exercise any form of power through our elected officials.
We vote the people in, they can do whatever they want after. All we can do is not vote for them again.
There is a counter to that issue, and that is the Jury System, of which many of you remain exceptionally ignorant of.
America is not a Democracy of any kind. Your elected officials don't have to do a single fucking thing you tell them!
I apologize for traumatizing you with the facts, but incidentally, facts don't care about your opinions or feelings!
America was rigorously configured to resist democracy at almost every turn, so why do you ignorantly hang onto that term?
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Re: Re: Re: Re: Re: Re: Re: America
---
---
Is for Democracy!
Sorry about that folks!
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Re: Re: Re: Re: Re: Re: Re: Re: America
In your "Republic" definition, the key criteria that applies to the US "whose head of state is not a monarch."
The third criteria, the "body of citizens who are entitled to vote", would apply to communist countries where only a small percentage of citizens are allowed into the party and entitled to vote. Most citizens have no say. It does not apply to the US. (Not even via the Electoral College. That's indirect democracy, but still democracy.)
Meanwhile your Democracy definition fully applies to the US.
Your claim of "We vote the people in, they can do whatever they want after." has a lot of truth, but it's equally true in non-Republic democracies.
Sure, there are some differences between countries: A Canadian Prime Minister with only minority support in Parliament can be kicked out of office, while a US President becomes a "lame duck." But that's not a republic vs. non-republic thing.
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Re: Re: Re: Re: Re: Re: Re: America
So for a government to count as a "representative democracy", the representatives have to be legally bound to do the will of the electorate? Which governments do legally bind elected representatives that way?
That's a pretty strong incentive for them to do what their constituency wants (except when they're on the last term of a term limit), meaning that the electorate does have indirect control.
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Re: Re: Re: Re: Re: Re: Re: America
When a particular public office is up for election, if two opposing people run for that office, each one will act differently that the other in office if he wins. Since they'll act differently, which one wins makes a difference, meaning which one wins will have some influence on the government. And since which one wins depends upon citizens voting, their votes will indirectly influence the government.
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Re: Re: Re: Re: Re: America
I know the left likes to hide and rewrite history. It's the same B.S. as the Constitution is a living breathing Document. NO IT'S NOT! They don't give a crap about facts.
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Re: Re: Re: Re: Re: Re: America
Weird; even with that section open, "constitutional" shows up in a search but "republic" does not.
In any case, the page says nothing whatsoever to the effect that the US is not a democracy. In fact it has multiple mentions of the electoral process and election results.
His other link directly calls the US a democracy.
And "the left?" What does this have to do with the left?
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Re: Re: Re: Re: Re: Re: Re: America
I feel like my simple "block anons and MyNameHere" blocker is doing just fine, but I am tempted to take another crack at writing one that weights all the trolls' little verbal tics. Like the guy who keeps ranting about leftists, the guy who writes novels in the subject line, the guy whose sole knowledge of US history consists of George Washington's farewell address...
(The phrase "republic, not a democracy" would definitely go in there too. Because the next time I see someone use that phrase who actually has something relevant to add to the conversation, it'll be the first.)
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Re: Re: Re: America
Now now. The US is no more a democracy than any other place in the world. It may have some characteristics that match some definition of what a democracy is. But since there is no universal meaning to democracy, you would need to define precisely how the US is a democracy.
All people are not equal before the law, there are groups that have special privilege such as LEO's etc. Your vote doesn't give your even indirect control or influence in law making (see how many commercial organisations control the legislative agenda's). No government hierarchy is responsible to the people in any way (see current FCC/FBI/etc shenanigans).
In effect, the name as applied is meaningless for the majority of the population. As is the case all around the world, the general population is fed a load of cods-wallop at "election time" and those that get "elected" are in reality no different to those that they have replaced.
Democracy may be good in theory but, in practise, it doesn't exist. Any rights you may have under the constitution and the law are whittled away so that you are in effect serfs or villains (in the traditional meaning of the word), ruled by a elite class and their lackeys.
This is irrespective of any leanings (left, right or middle) that the "voters" in the democracy may have.
Is there a solution? I don't think so at this time. Any solution that would moderate the problems today would be aborted before coming full term. The interests of those who would not benefit with these changes would against such changes.
However, on the positive note, working towards such a change could possibly gain traction in a similar way to the work of Martin Luther King Jr. You won't know unless you try. So for all sides, give it a go. Yo never know until you do so. The worst that can happen is that you are executed for treason, the best is that you may get what you ask for.
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Re:
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Re: Re:
Sure it can help, but it really means nothing. Courts will not take their jobs seriously until Congress starts destroying courts for taking on stupid cases and rendering bullshit judgements.
There is a simple solution, to which, everyone just keeps ignoring and "acting" like they know what the fuck they are talking about.
Kinda like you!
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Re: Re: Re:
They can, they don't need an anti-SLAPP law to call a bullshit suit bullshit!
Yes, they can call a bullshit suit bullshit... but civil procedure still matters. An anti-SLAPP law makes it possible to (1) dismiss early (2) stop discovery (3) assign legal fees. Not so easy without it. Civil procedure still does mean something.
Sure it can help, but it really means nothing.
Uh, it means a whole hell of a lot.
Courts will not take their jobs seriously until Congress starts destroying courts for taking on stupid cases and rendering bullshit judgements.
Holy separation of governmental powers, batman. You DO NOT want Congress "destroying courts." That's a constitutional crisis you're describing there, buddy.
There is a simple solution, to which, everyone just keeps ignoring and "acting" like they know what the fuck they are talking about.
Your "simple" solution is basically to ignore the rule of law and separation of powers. That's... not simple. It's idiotic.
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Re: Re: Re: Re:
Fix that, because you cannot FIX the legal system while it remains.
"Holy separation of governmental powers, batman. You DO NOT want Congress "destroying courts." That's a constitutional crisis you're describing there, buddy."
Go read the Constitution, it is literally a part of their responsibilities and power to setup, manage, and destroy lower courts. They just can't do that to the Supreme Court, so get your separation of power "alternative facts" straight! You are an editor of a news medium, so do a better job! Article 3 contains the information you are ignorant of. And you can look up the Judiciary Act of 1789 as well. You might have information at your disposal, but you certainly are not taking advantage of it!
I keep telling you that you are far to often ignoring where most of the power is at, but you won't or can't listen. You pretty much IGNORE congress while attending to the Judicial and Executive branches to a very unbalanced degree. I can understand why, because they are just easier to report on, there goes the laziness of humanity again, but Congress does more and has more!
Watching you guys constantly get facts wrong and being mislead around by your noses is painful. But I am still here to try to help you understand, regardless!
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Re: Re: Re: Re: Re:
Watching you guys constantly get facts wrong and being mislead around by your noses is painful. But I am still here to try to help you understand, regardless!
You really may be the most ignorant person we've had commenting here. And that says a lot. But I enjoy the comedy of one so sure of his rightness, while being so absolutely clueless. It's funny stuff.
You should be glad you're not logged in, because your statements feel like a kid in college who has just discovered philosophy and thinks he invented the world. You'll learn how embarassingly wrong you are soon enough. What you learn in intro classes does not tell the whole story. Perhaps one day you'll learn.
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In Canada
Canada's provincial bar associations also generally frown on contingency fees, although they're allowed.
I recall reading recently about a class action lawsuit that failed to get off the ground because they could not afford the bond to support paying the company's legal fees if they lost...
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Re: In Canada
Perhaps, though I suspect it would cut down on legitimate ones too.
I'm definitely in favor of more "loser pays" rules in place for suits that are clearly vexatious (including, but not limited to, SLAPP suits). I'm not sure I support them across the board for all civil suits, though.
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Re: Re: In Canada
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Re: Re: Re: In Canada
when a rape victim loses their case against a rapist like say... Bill Cosby because they are rich and famous the rape victims need to be raped one last time by the system that failed to deliver them justice.
Court needs to be FREE! Associating ANY cost to Justice by Plaintiff or Defendant on that fact alone ensures that Justice will only be available to the rich and powerful.
It sure is funny that some might think that Health Care should be universally available to rich and poor but NEVER the fucking justice system!
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Re: Re: Re: Re: In Canada
Good comparison, incorrect conclusion.
Health Care is universally available in Canada. It covers emergencies quickly and for free (1). But the less of an emergency you're facing, the more likely you are to encounter fees and waiting lists (2).
The US court system is already set up much that way. The criminal justice system universally available for free, serving rich and poor alike. Then you have small claims court, for a small fee. Then full civil court for large fees.
1) er, free by American standards. Canadians pay taxes for healthcare, but they pay less taxes per capita for healthcare than Americans. Americans often must pay a second time, even for emergencies.
2) Both of which you can avoid with private insurance. Private insurance which is much cheaper than in the US because of what the public insurance covers.
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Re: Re: Re: Re: Re: In Canada
No, not even close. The cost to do business with the courts are wildly out of control. Just ask anyone in a nasty divorce or custody battle. Not only is there a direct imbalance of power, the costs are prohibitive.
"The criminal justice system universally available for free, serving rich and poor alike."
Another ignorant statement. Here in America, your wife can hit you, call the police and have YOU arrested for assault, unless you have proof you did not hurt them. Let's not even get into the number of innocents in Jail. If you have money... you get the O.J. treatment, if you don't you get the "Roger Logan" treatment where you spend 17 years in jail for a crime you did not commit.
"Then you have small claims court, for a small fee."
That "small fee" is the difference between a few meals or starvation for some. This is not a joke, I have been there as a child. The best days were a can of green beans and butter. You will not believe how tasty food is after going without food. You can experience the effect by going on a 3 day water fast. But do not try it without medical supervision, especially if you have any health issues. When hungry, you will eat things you might take a bullet before eating if you have a full stomach.
"Then full civil court for large fees."
This is nothing but an excessive in how has the most money, even even then it is rigged with all sorts of preconceived notions of who should get what in certain scenarios. It is entirely rigged to benefit the state, NOT the citizens.
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Re: Re: Re: Re: In Canada
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Re: Re: Re: Re: Re: In Canada
The point is that is is wrong to create a barrier to entry into the judicial system. Businesses can often afford to bring frivolous suits and close people down even under loser pays.
You may not be aware of this, but the process of the lawsuit alone, injunctions to the sale of a product or motions for and expensive discovery or anything else that can seriously damage your cash flow is still a problem enough to shut you down BEFORE you can reach summary judgement.
Heck just having to take the time off of work to defend yourself could financially WRECK YOU!
It is amazing how fast you ninnies break out of the wood work with your pseudo "gotcha" knowledge!
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Re: Re: Re: In Canada
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Re:
It's mainly that when an Indianapolis-area grandma tried to stop a young drug dealer Brett Kimberlin from dating a girl he met while she was 10, that grandma ended up dead. Shot by a longtime drug running associate of Brett Kimberlin.
When the police came calling to his door as part of their investigation, the Speedway Bombings (for which Brett is currently out of parole) started just days after.
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Europe
In a lot of European countries, there are laws against republishing even truthful information about an individual's prior criminal convictions.
And at the same time, Europe is generally soft on crime, except speech crime.
So thanks for the First Amendment.
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