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.
Filed Under: anti-slapp, brett kimberlin, defamation, first amendment, free speech, legal process, maryland, patrick frey, slapp, vexatious lawsuits
