Brett Kimberlin’s Attack on Free Speech

by Paul Alan Levy

Somewhat more than 25 years ago, I represented a federal prisoner named Brett Kimberlin who made a sensational accusation against a sitting Senator who was running for Vice-President – Kimberlin claimed that, during his extensive career as a drug dealer, one of his customers had been a then-law-student who was the scion of a major newspaper publisher, Dan Quayle.  Apparently hoping to block Kimberlin’s access to the major media, prison authorities put him in solitary confinement.  Kimberlin was in prison for some horrifying crimes – the planting of several bombs in Speedway, Indiana – and we had no idea whether Kimberlin was telling the truth about Quayle.  But the Justice Department was not punishing him on the theory that his speech was deliberately false and defamatory (in which case it would have been unprotected by the First Amendment; but how would the Justice Department have known whether Quayle was or was not a drug customer anyway?), and even thugs have the right to criticize public officials.  So we pursued documents about his confinement under the Freedom of Information Act, hoping to set up a Bivens action against the responsible federal officials.  (The action under Bivens and other authorities was brought by pro bono attorneys from Arnold & Porter and was ultimately settled after several denials of summary judgment and trips to the DC Circuit and even the Supreme Court).

Lawsuits by and Against Kimberlin over Free Speech Activities

After his release from prison, Kimberlin reinvented himself as an activist on such issues as addressing flaws in electronic voting as well as encouraging young people to register to vote, but the liberal direction of his politics made him the logical target of attacks from the right-wing end of the blogosphere, which recalled his criminal career and argued that it colored everything he had done since.  Some of his non-profit activities are creditable indeed, but it seems to me that Kimberlin has been undone by overconfidence in the skills that he developed as a jailhouse lawyer:  Kimberlin has responded to the online criticism with a campaign of pro se litigation, suing both individuals and groups of critics; some of his critics have sued Kimberlin and others who support Kimberlin.    There has been plenty of excess on both sides, as far as I am concerned.

Various sides have sought my assistance in connection with various aspects of this series of lawsuits.  I had a chat with Kimberlin some time ago in which I suggested that his campaign to suppress criticism though litigation had rather gone overboard.  At the time, he told me that his critics were not just criticizing him, but were physically stalking him and criticizing his wife as well, and that he was not prepared to desist from litigation so long as that was happening.  On the other hand, at one point I agreed to represent an anonymous blogger in opposing an effort by a Kimberlin adversary to obtain her identifying information so that the adversary could sue her for defamation along with Kimberlin himself. Happily, I was able to talk the plaintiff’s lawyer out of pursuing such discovery.

Kimberlin’s Current Lawsuit

Most recently, Kimberlin has brought a RICO action that has nothing to do with physical stalking or criticism of his wife.  Kimberlin v National Bloggers Club, et al., brought this past fall in the United States District Court for the District of Maryland, names more than twenty of Kimberlin’s critics, charging them with a conspiracy to defame him as being responsible for the “SWATting” of certain online critics (SWATting refers to the triggering of a visit by a police SWAT unit to the victim’s home through the placement of a false call for help in connection a fictional violent crime).   The complaint, which runs on for 50 pages and more than 200 paragraphs, also includes a somewhat bizarre claim that his critics have improperly encouraged donations to something called the “National Bloggers Club” by falsely claiming that it enjoys tax exempt status, entitling its donors to deduct contributions to that entity.  A number of the allegations about the wrongful speech of the defendants are extremely vague, quoting selected words but asserting that they “impute” other wrongful conduct.

Among the defendants in the action is an anonymous blogger whom Kimberlin sued for allegedly “imputing” that Kimberlin was involved in SWATting. (Complaint paragraph 66, citing this blog post).  Because the blog post said nothing of the kind, I agreed to represent defendant “Ace of Spades” in opposing Kimberlin’s request for judicial permission to pursue discovery to identify Ace of Spades.  

As I usually do in these situations, I began by trying to persuade Kimberlin to drop his discovery request because the blog post in question is not defamatory.  Kimberlin responded by detailing a number of different statements that Ace of Spades had made which, Kimberlin threatened, would be made the subject of an amended complaint.  And when Kimberlin learned that I had not been dissuaded, he sent Ace of Spades an email threatening that, unless Ace immediately accepted Kimberlin’s unspecified terms, Kimberlin would unmask her and she might suffer the same fate as other bloggers whom Kimberlin had managed to identify (Kimberlin mentioned one blogger who had lost his job and suffered two years of unemployment).

Opposition to Discovery Under Dendrite

Yesterday, therefore, we joined with the ACLU of Maryland in opposing Kimberlin’s motion for leave to take discovery, arguing that the federal courts in Maryland should join the Maryland Court of Appeals in adopting the Dendrite balancing test.  Although Kimberlin has yet to identify any defamatory statements, not to speak of producing evidence of falsity, the case also presents a real possibility of employing the final, “balancing” stage of Dendrite, which the Maryland Court of Appeals endorsed in Independent Newspapers v. Brodie, because Ace has real reason to fear retaliation if she is identified.  This could involve either the economic consequences that Kimberlin threatened explicitly, or even physical consequences in light of the SWATting phenomenon visited by unknown persons on several bloggers involved in controversies with Kimberlin, not to speak of Kimberlin’s own violent past.