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 wan
ts 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.