batsignalIf you are a lawyer in Maryland looking for an easy defamation case to lose, blogging attorney and right wing asshat Ken White has the opportunity of a lifetime for you! As we have already told you, Brett Kimberlin is suing Ali Akbar, R.S. McCain, Aaron Walker, and William Hoge for their libelous blog rants about him. Calling Kimberlin “evil,” White makes the following argument that the case is “vexatious” litigation:

One of the problems with Kimberlin’s complaint about being called a pedophile is that his detractors disclosed the factual basis for using that epithet against him. Among other things, they pointed out that (1) Kimberlin has said sexually creepy things about teenaged girls4; (2) Mark Singer’s book about Kimberlin describes a relationship with an underaged girl that some find inappropriate and suggestive of pedophelia5; (3) Kimberlin’s wife accused him of having sex with her before she was 16, and in 2013 filed charges against him on that basis, although prosecutors declined to prosecute the case and she apparently later retracted and disavowed the charges after the defendants wrote about them; and (4) even accepting Kimberlin’s position that he did not have sex with his wife before she was 16, by his own version of events it appears that he met her in Russia before she was 16 when he was in his 40s, she traveled to the United States, and they married when she was 16 and he in his 40s.6

In short, Brett Kimberlin is going to have grave difficulty establishing that the epithet “pedophile” isn’t a (1) opinion based on disclosed facts about his own words, (2) opinion based on his wife’s accusation in court, which is a privileged communication, and (3) opinion and protected rhetorical hyperbole based upon the apparently undisputed fact that he met her in Russia when she was under 16 and he over 40, and she came here an married him when she turned 16. You may disagree that those facts support those statements of opinion. You may say that men over 40 married girls of 16 for most of history, and it was common as recently as last century in America. That doesn’t mean the statements aren’t protected as opinion.

Good lawyers will have a wealth of strong defenses at every phase of this case.

Actually, a good lawyer (as opposed to a bad one, or a zealous true-believer like Walker) will take one look at Kimberlin’s case and tell their client to settle immediately. These particular defendants keep repeating “facts” that are actually not facts, but erroneous propaganda, and White is parroting the same error-ridden propaganda here. Let’s go point by point:

  1. In the 1990s, Kimberlin wrote a couple of rock songs with lyrics about sex with teenage girls. That theme is hardly unique to his lyrics, and it proves nothing about his character. For example, if Ken White was to apply this dubious standard fairly, he would have to come down even harder on Tea Party favorite and NRA spokesman Ted Nugent.
  2. Kimberlin successfully sued Mark Singer for libel over his book. White’s friends have cited this book many times now without ever taking this fact into account, and now White also cites Singer’s book as if Kimberlin’s successful libel suit never happened. But it did happen, and just because you repeat someone else’s libel doesn’t mean you are not responsible for your own words being libelous too. That is Journalism 101.
  3. Kimberlin’s suit maintains that Aaron Walker and William Hoge approached Tetyana with offers of material support in exchange for perjury against her husband in a now-canceled divorce proceeding. Walker submitted false charges in his wife’s name and without her signature, then published those same accusations in his blog. Not only is that considered “abuse of process” in any court in the land, it absolutely fits the standard of malice in the defamation charges in Kimberlin’s suit. White should be more careful on this point, because the truth will come out, it will be undeniable, and it will hurt.
  4. Tetyana was 17 when she came to the United States to marry Brett. That assertion just happens to match Tetyana’s Soviet-era travel document, which we showed you months ago. White’s friends have responded by dismissing the document as a forgery, but of course they have offered no proof or analysis to back that up. So without proof, White is repeating a slur on the Kimberlins’ marriage. Brett genuinely liked Tetyana when they met, he fell in love with her, and he has been a good husband to her — no matter what White and his buddies say about them. He has not broken any laws by loving his wife.
  5. We have recently seen how climate scientist Michael Mann was allowed to proceed with his libel case against two right wing bloggers for merely comparing him to a pedophile, which was a statement of opinion. Like Mann’s lawsuit, Kimberlin’s suit is “likely to succeed on the merits,” but Kimberlin is not suing anyone for “expressing an opinion” that he is a pedophile. He is suing them for actually calling him a pedophile without using words like “alleged” or “accused” or “suspected.” Surely Ken White knows the difference between an erroneous statement of opinion and an erroneous statement of fact?

If White imagines that Tetyana Kimberlin will back up any of the defendants’ libelous statements in court, he is in for a rude shock. What will he say if Tetyana instead offers testimony about his friends’ criminal actions? Why, he will claim that she is lying on her husband’s behalf, and that it proves how evil he is, because it is simply not possible for Ken White to be wrong. He cannot admit the possibility that his friends suborned perjury and submitted false documents to the court in Tetyana’s name. Such an admission would require him to re-orient his entire world and condemn their obvious treachery. So whereas White makes Tetyana out to be a victim here, we expect him to denounce her as a perpetrator as soon as she opens her mouth because it will be easier than admitting he was wrong.

Lastly, where does “vexatious” come from? On what does White base that description of Kimberlin’s suit, which echoes his nomination of Kimberlin for “Censorious Asshat of the Year”? To date, Aaron Walker and friends have sued Brett Kimberlin once in a Virginia court and twice in federal court until a judge told them to knock it off. We have lost count, but we recollect roughly 10 criminal charges and a half dozen peace orders launched against Mr. Kimberlin in Maryland courts, all of which have been dismissed just like Tetyana’s withdrawn perjury. And when exactly did Kimberlin approach Mrs. Walker or Mrs. Hoge with a plan to suborn perjury against their husbands? In fact, this is Kimberlin’s first lawsuit against any of these people, and it is past due.

Because if anyone here is “vexatious,” it is Aaron Walker and friends, and Ken White has approved their actions every step of the way. He says this case is about free speech, but it is not. This case is about the malicious actions and criminality of obsessive stalkers with a clear political agenda. Ken White approves of Walker and Hoge stalking Brett Kimberlin under a transparent cloak of First Amendment activity, and just like the previous efforts he supported against Kimberlin, his side will lose this battle. Our sources tell us the defendants in this case have been calling up various foundations and organizations for legal aid, but all of them have wisely declined. If White was even close to being the fair-minded attorney he pretends to be, or the brilliant litigator he wants to be seen as, he would not light his signal for these cranks and double-down on the same flawed “facts” that got them in trouble in the first place. He would know better.

  • RogerS

    I am a lawyer. Good lawyers conduct what is called a “defamation review” before taking a defamation suit. Normally, if the review shows defamation, the lawyer will advise the client either that he will not take the case, or will take the case and attempt to get it thrown out on a defensive ground, or will tell the client to settle quickly because it will cost a lot of money to defend.

    It is against the legal ethics rules to use a suit as a fishing expedition. Therefore, no lawyer will be able to use this case to, as Aaron Walker said, take depositions from Kimberlin’s daughters and daughter’s friends. In fact, that statement proves what Kimberlin alleges in his suit — that Walker is harassing and stalking him.

    I read the suit and want to point out that there are some seven counts in it, yet Popehat only focuses on the defamation. Certainly, Kimberlin has shown defamation per se with regard to most of defendants. As to Stacy McCain, I would urge Kimberlin to file an amended complaint against him in light of all the defamatory statements he has made in the past week. Ironically, McCain had the best possibility of dismissal but he piled on and apparently fell into a trap that many plaintiffs set–forcing the defendant to make things worse by making statements that can be used in trial. Any reasonable jury would see McCain’s conduct since the filing of the suit as harassment “with malice.”

    I have represented many defamation clients in my 30 years, and the defendants here have several problems. First, they have multiple counts so a dismissal of a count here or there is not going to end the suit. Second, they are going to have to endure a year long process of attending hearings, fling papers, and losing on the big ticket items. Third, this is not a public interest case so the defendants will have a very difficult time finding any lawyer to take the case pro bono. Fourth, a paid lawyer (or lawyers in this case) are going to charge tens if not hundreds of thousands to defendant such a case.

    Big media companies have lawyers on staff to conduct defamation reviews prior to publication because they understand that hiring an attorney after the fact could prove to be financially disastrous.

    Contrary to Poehat’s post, this is not a First Amendment case, and only a right wing hack lawyer who has nothing better to do would accept this case. Lawyers do not like to represent clients in their personal wars against others.

    I showed this suit to another lawyer in the office here who just won a six-figure defamation suit. He sent me this email–“Hey Rog, do any of these defendants have dough? If so, maybe we should offer to represent Kimberlin. This case is a no brainer, a slam dunk. Let me know.”

    • The Watchful Avenger

      This is an interesting post. My take on it is that Ken White is more of a facilitator in getting representation for people he chooses. He has chosen RWNJ’s to support and defend while everyone else is EVIL. At any rate it will be hard to come up with any decent defense of the defamation. Not only that it will be very time consuming and expensive and Pro Bono only goes so far. Eventually there will be the standard calls for money, fundraising etc to support it. Again this happened last year, and again attorneys made off like bandits with the money from donors. Kimberlin is an industry for numerous people who try to profit off of demonizing him, and attorneys have all at first been anxious to take him on in court so they can claim a victory against their demon. I find it amazing that people like Ken White get away with it, but there it is. Ken tries to do the same thing that Dan Backer did with his case, he tied it all to free speech as the reason he was involved, however free speech memes only go so far in court. The court eventually will look at the facts and brush aside all the “grandstanding” from the attorneys who get involved.

      I think Ken White also purposely obfuscates the facts from people he requests to get involved in the case. He goes back to the 70’s like most of the RWNJ’s have done in the past on Kimberlin to claim how EVIL he is and how they need to destroy this EVIL. Backer used this meme in almost every motion he filed and the courts were not entertained, nor were they not aware that they were using this meme to attack the victim in the case which was clearly Brett. The thing that Ken White leaves out is that last years calls for help resulted in attorneys running away from Walker (Beth Kingsley) and Dan Backer who delivered the fatal blow to Walker by turning over the Walker termination letter from Jim Hodges which clearly showed that Walker had lied the entire time about losing his job because of Kimberlin. Ken White leaves off the losses from the federal bench as well where Judge Motz clearly saw that the case was a political hit job and highly partisan and dismissed it while telling Backer he could be sanctioned if he came back in his court with that nonsense.

      Ken White then leaves off the Virginia court loss from Walker where the judge admonished them so badly in his written opinion that it was clear from the start that no matter who Ken White brought in or what meme they tried to assert, that it was all bullshit and the case was dismissed with prejudice. So again Ken White clearly leaves these cases off his call to action article so as not to muddy the waters others have already suffered at the hands of Walker et al. They will of course find out eventually what a minefield of lunacy they will have to walk when getting involved in this case. But for now its all fun and games with Ken White leading the charge of the light brigade…. And into the valley road the 600…

  • Kman

    P.S. What RogerS said. Very good analysis.

  • @OccupyRebellion

    Mark Singer is silent. Ever thought why? THINK about it.

    Songs about underage teen girls have been around since the beginning of time. Every other rock song is about an underage teen girl. Is Benny Mardones a “pedophile” for his song “Into The Night”? Turns out their relationship was purely platonic. He helped take care of Heidi’s family and he paid her $50 a week to walk his basset hound Zanky.

    Look at every other 80’s teen movie where teacher/student themes are everywhere. Are those movie directors all “pedophiles”?

    • Matt Osborne compiled a very good partial list of songs like that, and I linked to it above but here it is again. The artists Popehat would have to condemn for consistency’s sake include Joan Jett, Sting and The Police, Motorhead, Steely Dan, KISS, and The Beatles.

  • Any day now (and there are whisperings of it already), the defendants will all start turning on each other or heading to parts unknown. The Maryland Court of Appeals (I’m told by the Clerk of Courts) will likely hear and rule on my motion to reconsider Hoge’s lawyer’s fanciful piece of fiction that they used when they denied my motion to stay Hoge’s peace order on Sept. 4. If that motion gets stayed pending action on my petition for a writ of certiorari (which Hoge’s lawyer is answering at this moment — and not for free!), Hoge has spent a BOATLOAD of money on losing cases. I am currently 13-0 against him in the criminal arena, and if he loses his one victory, his peace order, he has spent an incredible amount of money for NOTHING! If the Court of Appeals takes the case and asks for briefs (likely that they’ll take the case considering the circumstances in which they got the case in the first place), that’s gonna cost Hoge MORE money. His best hope is that the court grants my motion, stays the peace order, grants my writ, decides based on the already-submitted briefs, says that a County Circuit Court judge cannot overrule settled law as determined in a Federal court in the case of US v. Cassidy, and I walk away without him having to spend another dime on me. Unless Kimberlin leaves a scrap of meat on his bones.

    God, to think about it. The price one pays just for not wanting to admit he made a mistake. Not even talking about taking Tanya, trying to talk her into committing perjury against Brett. Just the madness of Hoge’s legal goose chase against me. All that money he has spent and will have to spend, and for what?

    I’ll let everyone know if I hear anything tomorrow, although I’m sure I wouldn’t get any notice until Saturday at the earliest. Hoge’s lawyer better get her clerk typing that answer to my supplemental. Clock’s ticking!

    • Bill, please do let us know right away.

      I am fascinated to have your read on Hoge and his vainglorious lawfare. When I was a young man growing up in Athens, we had a word for that: “hubris.” We see more hubris on display from Hoge and Walker in any given day than your average Sophocles script.

  • Oh, have I mentioned that Roger S. is one of two very cool people who live in Alabama?

    Everyone should read his latest. A very “stiff” portrayal of a Federal Judge.

  • @OccupyRebellion

    And there will always be ultra-“conservative” Ted Nugent who paid the parents of an underage teen to have him adopt her so he could marry her. So he technically married his legal DAUGHTER.

    • Between Kimberlin and Nugent, which one do you suppose is more likely to have actual bomb-making materials in his basement?

      • @OccupyRebellion

        Ted Nugent. Already got a visit from the Secret Service after threats to Obama.

  • @OccupyRebellion

    Mandy Nagy (@Liberty_Chick) finally tweeted something about all this with a link back to crooked attorney Kenneth P. White’s hate blog. After a month of not saying anything to them, someone must have gotten to her telling her to support them in some way. She then tweeted how it never ends. What never ends are criminals and parasites like her constantly stalking a man and his children and taking advantage of his wife while she was going through the problems she was. What never ends is when they target people and lie about them in order to generate a story and beg for money because there’s nothing creative in them to write anything original and earn an honest living.

    Others are still crowing about pimp/pornographer Lee Stranahan and street hooker/failed porn star Lauren Boxer Stranahan neglecting the welfare of their unborn baby which led to the child’s death. How dare we questioned how a baby died when the “parents” gave four different versions to how she died. Stranahan also blamed ANONYMOUS and took every chance he could to attack them. I remember looking back at every mention to him that month and no one from Anonymous said a word to him about his baby. WHY WOULD THEY?? Stranahan is the one still dragging around the child’s corpse for money, sympathy, and attention.

    Stranahan went back attacking Trayvon Martin one day after his own baby died. What human being would attack someone’s murdered son one day after his own baby died?? There was also no obituary for the baby. They gave four different versions to how she died. And he took every advantage to blame others when the blame falls solely on both Lee & Lauren for their twin baby dying.