Brett Kimberlin’s Dilemma

by Paul Alan Levy

Readers of this blog may recall that Brett Kimberlin has filed a defamation action against two dozen bloggers and other defendants; Public Citizen is in the case for the limited purpose of defending the anonymity of one of the bloggers.  Since that blog post, there have been a number of developments, including a decision by the trial judge to follow the time-honored tradition of dumping his most burdensome and least attractive case onto the docket of a newly-appointed judge.

Last week, Kimberlin served on the defense lawyers (but not the pro se defendants) a letter, which he said he was attempting to file under seal, asking Judge George Hazel to allow him to file a motion for a preliminary injunction compelling the defendants to remove from their various web sites the various statements over which he is suing, and barring four pro se defendants from making future negative statements about him.  (The previous judge in the case, trying to cope with a large number of filing from pro se parties who plainly detest each other, imposed a pre-motion letter requirement reminiscent of the SDNY and EDNY).  Judge Hazel denied the request and granted it in part – he refused to allow Kimberlin to seek a preliminary injunction over the repetition of statements alleged in the Second Amended Complaint, saying that preliminary relief could only be sought about statements post-dating the complaint.  And even then the motion would have to be limited to four defendants identified in the letter-request (not including the anonymous blogger).

Kimberlin’s filing, and the judge’s response, raise a host of interesting issues.  For one, the judge’s approach to the pre-Amended Complaint and post-Amended Complaint dichotomy strikes me as odd, because the purpose of a preliminary injunction is to protect against irreparable injury pending a decision on the merits.  If post-complaint statements are not the subject of the litigation on the merits (Kimberlin having been instructed that his Second Amended Complaint would be the last permissible amendment), why is the judge in this case the right one to consider a preliminary injunction about those statements?  Indeed, a defamation lawsuit over the statements could not be filed in the District of Maryland as a related case because there is no diversity—two of the pro se defendants live in Maryland.

Kimberlin’s Failed Expectations About the Impact of Suing

Kimberlin’s letter request explains that he expected the suit to induce the defendants to “remove . . . the defamatory content outlined in the complaint,” but that the defendants have uniformly refused any removal while the litigation continued.  He goes on to explain the impact he had hoped his lawsuit would have: “I filed this suit because Defendants would not stop their attacks on my family and me.  I hoped that the filing of the suit would cause Defendants to [rein] in their reprehensible conduct.”  Kimberlin goes on to assert that not only have the criticisms continued, but that his children have been adversely affected by what their friends, and their friends’ parents, have learned about him as a result of the attacks, and he puts this forward as a basis for a preliminary injunction.  He indicates that, for example, that other parents won’t let their children have sleepovers with his daughter.

For the purpose of this blog post, I will assume that there are some blog posts that are having an adverse effects on his family and even on his children, although Kimberlin’s history of prevarication, and indeed convictions for crimes of dishonesty not to speak of the dishonesty to which he admitted as quoted in “Citizen K,” make it hard to take anything he says at face value.  But that does not mean he has any chance of getting the posts he does not like taken down.  

To the contrary, a public figure libel plaintiff gets relief against criticism only if he proves that the defendants have made false statements of fact (not rhetorical hyperbole) and proves by clear and convincing evidence that they made the false statements with actual malice.  And if the libel defendants truly believe in the truth of their criticisms, the effect of suing them may simply be to prompt them to repeat and even amplify their criticisms.  If the plaintiff is right about falsity and actual malice, of course, this sort of repetition is highly unwise, because it increases the damages that may be awarded.  And the fact that Kimberlin's children have to pay the price of having a notorious father is a tragedy that his critics ought to consider.  But the decision whether to run such risks rests with the defendants.

The Strict Rule Against Preliminary Injunctions Against Defamation

Moreover, the harms caused by defamation are remedied by an award of damages.  Preliminary injunctions to prevent defamation, however serious the effect of the statements on the plaintiffs’ reputation, are strictly forbidden by the First Amendment as prior restraints.  We at Public Citizen have generally taken a firm stance against preliminary injunctions in libel cases because the possibility of getting such injunctions, particularly when sought in the plaintiff’s home court against a defendant who lives elsewhere, gives plaintiffs too much incentive to pursue meritless libel claims on which they are unlikely to succeed after full and fair litigation, assuming that the defendant can get that far. It remains an open question (ably addressed by David Ardia) whether the rule against prior restraints bars a permanent injunction against statements found actionable subject to First Amendent standards after a full and final adjudication, but the general rule, followed in the Fourth Circuit whose precedents govern the Maryland federal trial court where Kimberlin filed suit, is that equity will not enjoin a libel.

Kimberlin has every right to represent himself, of course, but had he consulted with a lawyer who could explain how defamation litigation works, he would have learned that filing a lawsuit does not necessarily force the defendants either to remove criticisms or to stop making criticisms.

Another way in which filing a defamation suit may cause accusations to be taken down, or at least deter the defendants from posting new criticisms, is that the defendants may retain counsel who warn of the high cost of defending against libel suits, and indeed give their clients cautious advice that discourages further criticisms.  Such impact can be exacerbated when the plaintiff either has significantly greater financial resources than the defendants, and thus can litigate them into oblivion, or where the plaintiff has sued pro se, and thus can impose the expenses of litigation on the defendants without incurring any expenses himself.  Reading between the lines of Kimberlin’s court filings and his communications with defendants and their counsel, Kimberlin may well have been encouraged to expect such consequences by defense reactions to previous pro se libel suits that he has filed; he claims to have received either damages, or promises not to repeat criticisms, from other critics.  Again I find it difficult to take anything Kimberlin says at face value given his past, but even if he is telling the truth about these past results, that would not establish that he had good grounds for his complaints about past criticisms, only that he may well have had the benefit of strike suit settlements.

In this case, that strategy has not paid off because some of the defendants are getting pro bono representation, or perhaps representation under libel insurance policies, while other defendants are just as pro se as Kimberlin is, and hence lacking in the financial incentives about litigation costs that might induce them to retract or suspend their attacks.  Moreover, many of the defendants have apparently been outraged by Kimberlin’s lawsuit against them, and are showing that they firmly believe in the truth of their criticisms, and so they are making Kimberlin the focus of their public statements even though, had he left them alone, they might well have moved on the other targets.  Some of them, indeed, may well be basking in the attention that his lawsuit has given them among other bloggers who detest Kimberlin; some are using the suit to appeal for donations.

Kimberlin has been claiming that several defendants are already in discussions with him about paying him to be dropped from the case — an apparent effort to stampede some defendants into paying up to avoid being left in the case after other defendants have paid less.  I have been asking around, though, and from what I have been told there is no defendant who admits to being in discussions about paying Kimberlin to settle out of the case.  I challenged Kimberlin on this point, and he did not give me the name of any defendant who is in discussions abut settlement for a payment of money to Kimberlin.

Kimberlin’s Effort to Keep His Materials Under Seal

Kimberlin compounded his problems by asking that his request for leave to file for a preliminary injunction be filed under seal.  The Fourth Circuit strongly disfavors the sealing of court filings, and prescribes an arduous course of notice to the public with a detailed justification of sealing, opportunity for any person to object to sealing, and then a detailed ruling that is appealable to the Fourth Circuit by any outside intervenor.  Judge Hazel made short work of Kimberlin’s attempt at sealing – he both ruled on the request and placed both his ruling, and Kimberlin’s profferred sealed filing, on the public record.  Presumably, Kimberlin was given the chance to withdraw the paper instead (as the local rules provide); perhaps he pressed on, and accepted the consequences of public filing, because he wanted a prompt ruling on whether he could move for a preliminary injunction.

Because Kimberlin offered no public justification for this request for sealing, we can only speculate about his reasoning; the best indication is the aspect of the request that says he plans to file under seal affidavits from himself and from a fifteen-year old daughter detailing the impact of the challenged statements on his family.  Presumably, he was hoping to conceal this reference from public scrutiny.

But I find it doubtful that Kimberlin will be able to keep his affidavit, or his child’s affidavit, about the harms suffered under seal. In Doe v. Public Citizen, the Fourth Circuit was unwilling to allow a company to prevent public access to litigation documents reflecting false reports that its products had caused certain consumer injuries, and showing the harm that disclosure could cause its business.  Similarly, if Kimberlin wants a court to issue unprecedented prior restraints against his critics, the public is entitled to know what harms are or are not enough to justify such drastic relief.

Will Kimberlin Subject His Daughter to a Public Trial?

Moreover, it does not seem to me likely that submitting affidavits about claimed harm are going to be enough – the defendants he seeks to restrain are entitled to be confronted by their accusers face-to-face, and to have the chance to cross-examine; and given the intense hostility between the parties that the courts have previously noted, there is no reason to think these pro se defendants might not want to take their pound of flesh.  Indeed, considering that the judge has indicated that Kimberlin needs to make specific showings about the harm caused by the specific statements against which he wants relief, the defendants might well start asking questions about exactly why parents won’t let their daughters have sleepovers at the Kimberlin household.  Is it because they learned that he used to be a major drug dealer, importing large quantities of drugs from Mexico?  Or because he was convicted of a series of bombings that left some people severely injured?  Or is it because they learned that a newspaper article in Indiana reported on the murder of the grandmother of a pre-teen girl who was worried that Kimberlin was going out with a daughter she considered irresponsible so that he could get access to the grand-daughter?   Or maybe because, after he got out of jail, and already in his forties, Kimberlin was allegedly singing rock and roll songs about the joys of sex with teenage girls, and because a DC-area publication that interviewed him about the songs praised him for his honesty about how older men feel about attractive teenagers.  Or, was it some more recent, post-Second Amended Complaint statement that is depriving his daughter of sleepovers?

If Kimberlin seeks relief, he is going to have to show through the testimony of some person with personal knowledge just what the reasons are that his daughter’s friends parents are giving for getting in the way of his daughter’s social life.     Presumably, that would be the daughter herself.  The pro se defendants against whom relief is sought might choose to cross-examine her.

In urging me not to point to the First Amendment as a reason why he cannot get a prior restraint, Kimberlin urged me to consider “the human costs.”  But as I see it, Kimberlin needs to look in the mirror when he is thinking about who is responsible for those costs.  And he could easily make it worse if he moves for a preliminary injunction relying on the evidence he has described.  We will learn by August 28, the deadline given by the judge for the filing of a preliminary injunction motion, whether Kimberlin is so self-centered that he would put a teenage daughter though such a public spectacle just so that he can seek a narrow injunction, confined as Judge Hazel has said it must be to post-Second-Amended-Complaint statements by a handful of defendants, indeed an injunction what would be forbidden as a prior restraint and, if issued, subject to summary reversal.
                 
Kimberlin Faces a Vicious Cycle

It looks to me as if Brett Kimberlin is digging himself a deeper hole with every paper he files in the Maryland federal litigation.  The news that he was seeking a preliminary injunction against pro se defendant Walker led Walker to post the Washington City Paper interview with Kimberlin about his raunchy song lyrics, thus bringing greater attention to the very parts of his past that Kimberlin hopes to conceal.  And many of the claims in his lawsuit are so plainly frivolous that Kimberlin could easily end up being under a vexatious-litigant injunction requiring him to get permission for future pro se lawsuits.

He may well be at the point that he is the one who needs to get out of the litigation as quickly as possible, lest he make matters worse for himself and his family.  Whether he has the self-restraint, and the good judgment, to seek that way out remains to be seen.

Comments

[BKWatch]

The trial was over, and Paul Alan Levy was right. Kimberlin was wrong, and did in fact choose to put his daughter on the stand to testify that Brett hadn't molested her. The defendants did not cross the witness.

[andrews]

At the very least, the past defendants ought to get their costs if not their fees against Kimberlin. Does anyone know if they have actually received checks?

In the present case, they may want to look into the possibility that the appropriate state has an ``offer of judgment'' statute. Again, no guarantee that they would be paid, but a few of those unpaid judgments for fees and costs could make life more interesting for Mr. Kimberlin.

[DaTechGuyblog]

I think you are missing something.

I don't think Kimberlin's actual goal is "relief" of anything.

His primary goal, in my opinion, initially was to intimidate those who would write against him and/or interfere with what he was doing politically.

As that did not work due to the nature and sheer volume of the net goal #2 is to cause the maximum inconvenience to said foes.

Thus very motion, every delay, every single day that the defendants in this case constitutes a "victory" for Mr. Kimberlin et/al and of course there is always the tiny chance that one of said defendants will make a mistake that Mr. Kimberlin can pounce on.

That is what this is all about and the only price he is paying consists of time that he has plenty of.

And of course there is always the outside chance that friends may help fund all of this.

[Matthew Cline]

Is damage to the social life of the children of a plaintiff the sort of thing that counts as "damages" for a defamation suit? If so, to me it doesn't seem to be the sort of damage that could be cured by money. On the other hand, allowing that sort of thing to trigger a preliminary injunction would just encourage defamation plaintiff to bring their children into their mess.

[Aaron "Worthing" Walker]

I am the Aaron Walker mentioned in the article.

I'll mainly leave off on the merits of the various cases Brett has filed on this blog, except to say I have never written anything about Brett that I didn't believe was true. I don't want to put Paul in an awkward position.

But as for the larger point, it seems to me that the classic example of a meritorious suit for defamation that still shouldn't have been brought was the recent Chris Kyle/Jesse Ventura case. For those not in the know, basically Kyle (a famous American sniper) said that he was at a wake for a fallen special forces soldier when Ventura happened to be in the same bar. Kyle claimed that Ventura said something about us deserving to lose a few in Iraq and Kyle decked him. Then he wrote about it in his book without naming names, and then, when he was on tour, admitted Ventura was the guy he was talking about.

So Ventura sued. As i understand it Ventura didn't sue over the claim he was decked--there are apparently enough witnesses to that to put it beyond reasonable dispute--but over the claim that he said something about our troops deserving to die. Then Kyle was tragically shot to death and Ventura continued the suit against Kyle's grieving widow.

And just last week he evidently won, a bit over $1 million. I am always reluctant to second guess a jury, out of a combination of 1) trust in the regular folks and 2) I wasn't there, so I don't know all that they saw. I am concerned, however, that since Chris Kyle is dead, that his estate might've merely lost because it could not longer effectively defend itself.

But let's assume the jury was right, Ventura was slimed and all that. Even so, right now there are few people who think this helped Ventura's reputation and people like Dana Loesch are digging out some other crazy stuff that Ventura verifiably said that makes what he was alleged to have said not very damaging by comparison. I have gone as far to say that if I was Ventura's lawyer, i would tell him to publicly announce that he was going to forfeit the debt, now that he got his moral victory. I think the majority of people would agree that even if Ventura was technically right in all of this, he was morally wrong, and the suit should have ended with Chris Kyle's death.

So even where a defamation suit is meritorious it is often a bad idea to actually sue.

Or take another case, Falwell v. Hustler Magazine. (I forgot whether it was styled Falwell v. Hustler or Hustler v. Falwell, in the Sup. Ct. but whatever.) Now aside from the fact that parody is protected speech, one really has to wonder how on earth it advanced Falwell's goals to bring this suit. First, it puts him on the wrong side of a freedom of expression debate, and second, you want to talk about Streisand effects? There is a copy of the offending parody ad in my constitutional law casebook! There is a movie starring Ed Norton (and others) largely about the case. If Falwell just let the whole thing go, no one would remember this lame attempt at humor any more than people would know the name 2Live Crew but for the attempt to censor them.

As a lawyer, I see my job as not so much to sue people, but to help my client find a solution to a problem. The best lawyers know that sometimes the answer is not to sue. Sometimes it is even just to let things go.

[Mr Minority]

I have been following the disgusting antics of Brett Kimberlin for years since I read the legal BS he put Mr Walker through.

This man (and I use that term loosely) will have no qualms putting his daughter through the wringer just so he can say that the defendants in the case were out to get him and his family.

Brett Kimberlin displays the traits of a narcissistic sociopath, whose only goal is to inflict harm on others that don't agree with him, hold a opposing political view, or plainly get in his way of what he wants to do (whether it is to inflict pain or financial burdens on others or file his lawfare suits). He is a morally corrupt man and unfit to be a father.

So I would not be surprised if he did file the affidavit of his daughter and have her go though the pain of cross examination in a public trial.

Because in the end it is all about Brett Kimberlin and no one else in his demented mind.

[Amy]

Kimberlin is employing the time-honored tactic of cowards everywhere: using children as shields. I hope the judge throws him out on his whiny behind.

That said, it *is* sad if Kimberlin's children have to face the consequences of their father's pathological, sociopathic behavior. But it's also sad that people like Kimberlin can have children in the first place. And the fact that his children suffer is Kimberlin's fault, and the blame lays squarely with him. But that is in no way the fault of the people that Kimberlin harasses who fight back.

[Nervous Commenter]

Mr. Levy, I immensely enjoyed reading this crystal-clear presentation of the issues relevant to the controversies surrounding Brett Kimberlin. To be perfectly blunt about it, the antics of said Brett Kimberlin have strongly tempted me to vigorously repost and amplify the many accusations made against the man by various other bloggers. Sadly, I lack the financial resources necessary to adequately deal with the inevitable, vicious attacks from a convicted terrorist bomber, known perjurer and notorious liberal zealot who has been closely linked to fraudulent false SWAT calls that have left homes in shambles and innocent people shaking in fear for months.

I suppose I should stop here, or a certain person we all know and heartily detest will add me to his frivolous, thuggish lawsuits against journalists and other brave souls.

[DonM]

Has good judgement been previously displayed in Brett Kimberlin's life?

[Pablo]

He indicates that, for example, that other parents won’t let their children have sleepovers with his daughter.

That looks to be a public service provided by the defendants, particularly considering the kiddie porn convict he has recently had living with said daughters.

[Sarahw]

Two points...there have been no "attacks" on his family. And he never specifies statements that he contests.