If 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:
- 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.
- 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.
- 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.
- 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.
- 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.