Posted on | February 22, 2014 | 14 Comments
Brett Kimberlin got bad news with this past week’s decision by Public Citizen attorney Paul Alan Levy (and also the Maryland chapter of the ACLU) to defend Ace of Spades in the federal lawsuit that John Hoge calls Kimberlin v. the Universe, et al.
Kimberlin got worse news, perhaps, on Friday when attorney Mark Bailen filed his motion to dismiss on behalf of the defendants Erick Erickson, Red State, James O’Keefe and Simon & Shuster. Bailen does an excellent job of documenting key aspects of the case, notably (a) Kimberlin’s status as a public figure with a notorious reputation, and (b) the lack of specificity in Kimberlin’s allegations.
The vague nature of Kimberlin’s allegations with regard to his claims of defamation is an aspect of the case that you probably have to be a First Amendment fetishist to understand. Winning a libel suit in this country is very difficult, because the First Amendment has been interpreted by courts to grant very wide latitude when it comes to reporting and commenting about public figures. This is the bottom-line explanation for why Brett Kimberlin’s lawsuits, both the federal RICO suit and the Maryland lawsuit Kimberlin v. Walker, et al., were filed pro se — any competent attorney would have advised him he doesn’t have a case.
Having once consulted an attorney myself in 2007 regarding one particular lying son of a bitch, I remember my buddy Bert the Samoan Lawyer explaining to me that I was a public figure under the Sullivan precedent, and this would make it practically impossible for me to win a libel judgment. This is just the way the law is — lying sons of bitches are usually in the clear, if the target of their lies is a public figure per the Sullivan precedent. (Sarah Palin could tell you all about it.)
If the law protects lying sons of bitches, certainly it must protect people who tell the truth about lying sons of bitches.
“The Wizard of Odd,” as Time magazine called Brett Kimberlin, is not only a liar, but also a public figure, and so therefore any competent attorney looking at this situation would have declined to take his case. In fact, Paul Alan Levy indicates Kimberlin tried to get him to help with the RICO suit and Levy told Kimberlin “that his campaign to suppress criticism though litigation had rather gone overboard” — which was our basic point to begin with, to say nothing of the other forms of harassment Kimberlin’s critics have endured.
We cannot forget the threat Kimberlin sent to Patterico in October 2010: “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.” That could be construed to indicate vexatious intent, i.e., that Kimberlin sues people as a means of harassment and intimidation and, in Mark Bailen’s Friday filing in the RICO case, he included a crucial footnote.
“Kimberlin’s claims … are sufficiently meritless to suggest bad-faith or vexatious conduct, justifying an award of attorneys’ fees as a sanction,” Bailen argues in a footnote on page 31, citing the 2004 award of attorneys’ fees to the defendants in the Byrd v. Hopson case, in accordance with “dismissal of plaintiff’s ‘baseless’ claims, which alleged a ‘wide-ranging conspiracy against her’ that was guilty of civil rights violations, RICO violations, and state law claims, some of which were barred by the statute of limitations.”
Not being familiar with Byrd v. Hopson, I am not in a position to judge the resemblance between the issues in that case and the “meritless” Kimberlin RICO claim, but considering how many defendants there are in this case — some of whom have yet to file their motions to dismiss — what would the total cost of the defendants’ attorneys’ fees be? Many tens of thousands of dollars, for sure, and if the judge were to award attorneys’ fees to the defendants . . . Well, it would be a lesson that the students of Acme Law School would not be likely to forget any time soon.