Attorney Paul Alan Levy has been described as a “pioneer” in protecting internet anonymity, so it is not really surprising that Ace of Spades would want his representation against Brett Kimberlin’s RICO lawsuit. However, Mr. Levy will need to get his facts straight before he submits his motions, and he will need to untangle major conflicts of interest before showing up to court. When he announced that he was taking the case late Tuesday night, Levy made some glaring factual errors:
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; in fact, he had an attack of good judgment and dismissed the case altogether.
In fact, Mr. Levy agreed to represent this website in Aaron Walker’s failed 2012 lawsuit against Kimberlin. Walker had attempted to drag us into that litigation by claiming we had libeled him by calling him a “useless attorney” at the behest of Mr. Kimberlin. In order to defend us, Mr. Levy required a one-month defamation review for our 1,200-word blog post and demanded extensive, meticulous documentation. As we will demonstrate, he clearly has not applied this same rigorous approach in taking on Ace of Spades as a client. Furthermore, Mr. Levy’s assertion that he talked Dan Backer out of pursuing discovery in that case is a self-serving falsehood. Walker and Backer had their case dismissed with prejudice by Judge Motz, who did not cite Mr. Levy anywhere in his blistering decision. Mr. Backer, who had called Walker v Kimberlin, et al “the case of a lifetime,” did not suffer an attack of good judgment. That is not what happened, and Mr. Levy knows it perfectly well.
As a lawyer for Public Citizen, Levy was also involved in litigation over Kimberlin’s case more than a quarter-century ago. Obviously, he has conflicts of interest here, and he exacerbated them immediately after posting his announcement by contacting the former proprietor of this website in what appears to be an effort to influence Mr. Kimberlin’s litigation. Remember, this is a communication to someone Mr. Levy has previously defended, and who had no other role in any of these lawsuits besides reporting on them.
The heart of Mr. Levy’s argument is that Kimberlin’s lawsuit is an ‘assault on free speech.’ He asserts that Ace of Spades “has real reason to fear retaliation if she is identified.” (Levy always refers to anonymous defendants in the feminine.) We find this claim hilarious, as Ace has never been afraid to be seen in public and his pictures are available on Google. Ace has spoken at the Conservative Political Action Conference, and photographs from that event appear in his fans’ blogs — for example, we found one in this post about “the ten hottest new media guys on the right.” Is this person exposing Ace to retaliation? They have certainly opened him up for identification.
Ace’s face is well-known enough that in 2008, the Village Voice was able to commission a cartoon version for satirical purposes. Rather than worry about retaliation at the time, his fans found it flattering.
Ace has also appeared on Fox News, where his face and voice were not obscured or altered in any way. So it is actually not true that Ace “fears retaliation.” He is already a public person who, as far as we can tell, has spent more time on television in recent years than Brett Kimberlin has.
What Ace genuinely fears is that he might lose the mystique of being the “anonymous” king of right wing bloggers. As things stand, he gets to have his anonymity cake and eat it too, appearing in public and accepting the adulation of his adoring fans without using his real name. But Mr. Levy is being disingenuous by even raising this issue, because our sources tell us that Mr. Kimberlin recently offered Ace the chance to reach a settlement without giving up his identity. Kimberlin’s objectives are to be made whole and have defamatory content removed from the internet, and outing Ace is not necessary to those ends.
Speaking of defamatory content: Mr. Levy asserts that Ace has not defamed Mr. Kimberlin, but we are quite sure that he did not do a defamation review as thorough as the one he did while defending BU. Consider this post in which Ace asks Congress to pass an unconstitutional bill of attainder, declare Mr. Kimberlin guilty of an ongoing terror campaign, and forbid him from ever suing anyone ever again. It is the shortest of the three worst posts at Ace’s blog.
Released from prison in 2000, Brett Kimberlin has now turned his jailhouse lawyer skills on a new pool of victims: Bloggers who dare to publicly mention, on their small-scale electronic newspapers, Brett Kimberlin’s criminal record. And the avalanche of frivolous, vexatious, and outright malicious lawsuits begins anew, as well as more alarming harassments.
That was in June of 2012, more than a year before Mr. Kimberlin filed his first lawsuit against any of these people. Mr. Levy, who urged Mr. Kimberlin not to file any lawsuits against Ace or his fellow smear-merchants last year, is perfectly aware of the truth — but in his announcement, he seems to endorse the lie. He even echoes Ace by denigrating Kimberlin as a “jailhouse lawyer.”
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.
This is flabbergasting stuff, because Mr. Levy is perfectly familiar with just how crazy the witch hunt has been. There have been no “logical targets,” only convenient ones. In this post, Ace called Kimberlin “nefarious” and referred to his “henchmen,” a theme that encouraged further defamation and actual litigation. Walker’s 2012 lawsuit accused two men, Ron Brynaert and Neal Rauhauser, of being Mr. Kimberlin’s ‘henchmen.’ But Mr. Kimberlin has never met Mr. Brynaert, and he has neither paid nor directed Mr. Rauhauser to do anything to anyone. Later, defendant Robert Stacy McCain made extraordinary efforts to connect a woman named Melissa Brewer with Mr. Kimberlin; she has never met or spoken to the gentleman, and contrary to McCain’s assertions she has never written for this website. For reasons that still make no sense to us, defendants also fell all over themselves trying to “prove” that one of our regular commenters is Alabama blogger Roger Shuler. The harassment campaign against these supposed “henchmen” has led William Hoge to file hundreds of criminal charges against Bill Schmalfeldt, a former writer for this site, for the “crime” of tweeting at him. Hoge, Walker, and friends have filed dozens of peace orders against Schmalfeldt and Kimberlin.
Then there are the creepy parts of this story: people calling Mr. Kimberlin’s neighbors, taking pictures of his daughters, calling and threatening his 80 year-old mother, sending him pictures of guns, signing him up for subscriptions to right wing magazines that flood his mailbox, causing his children to be bullied at school, and reporting him to the FBI so that they show up unannounced at his home and ask his family ridiculous questions. What corresponding “excesses” have been incurred by “the Kimberlin side”? Mr. Levy does not say, and cannot say — because there are none. We invite him to try.
Ace accused Kimberlin of harassment and abuse without any evidence. In his open letter to Congress, Ace accused Kimberlin of an unsolved murder and of operating a criminal scam, called him a menace to society and a “digital terrorist,” and worried that he was building bombs in his basement. There was never anything “logical” about any of this, especially the hyperbolic accusations of SWATing. If that is not defamation, we invite Mr. Levy to explain what he considers to be defamation. Given our own experience with his workflow in defamation cases, just this one open letter to Congress ought to require months of review, and it is not the only defamatory post Ace wrote about Mr. Kimberlin. Yet as near as we can tell from our sources, Mr. Levy spent days, not weeks, studying the case before he took it.
Ace seems to be very pleased with his choice of representation, but we think Mr. Levy is in real danger of being embarrassed by the “jailhouse lawyer” because he wants the court to apply a different standard of defamation. We doubt the court will agree.
Public Citizen filed a brief in opposition to that motion, arguing that the Maryland federal court should apply the same test for the identification of anonymous Internet speakers as Maryland courts, which follow the Dendrite test, and that Kimberlin has not met that test.
That is false: Maryland courts use the Brodie test of defamation. In fact, Maryland courts created the Brodie test. Furthermore, Mr. Kimberlin passed that test months ago in his state case against Walker and friends. Levy is asking a federal court to apply a higher standard of proof to anonymous persons than the one used for journalists and publications. It is true that anonymous speech shares the same protections as non-anonymous speech, but not true that anonymous speech enjoys greater protection. This is a losing argument, and surely Mr. Levy knows that it will lose. But does he even really care?
Mr. Levy has already suffered a string of embarrassments lately. For example, he recently lost a big decision in the Hadeed Carpets v Yelp case, where a business seeks to determine whether its competitors have defamed the company by posing as customers. So why would he take on Ace’s defense and offer up such a loser of an argument? The obvious answer is money. Levy’s total defense of BU amounted to a few letters to Dan Backer. He never appeared in court or submitted a single motion. But he indicated to the previous proprietor of this site that he would do so if he was paid lots of money.
Later, when Bill Schmalfeldt faced bogus criminal charges and systematic defamation, the Maryland ACLU declined to help. Mr. Levy was not interested in defending our disabled journalist friend pro bono, either. Altogether, we have been unimpressed by either the organization or the attorney. But Ace has money at his back, and that changes everything. Even if Levy gets embarrassed in the courtroom, he still stands to profit just by charging at hourly rates.
We suspect that Public Citizen and the Maryland ACLU are motivated by money as well. It is rare for either organization to insert themselves in someone else’s civil case, but Ace linked directly to their donation button and asked readers to contribute to the organization. Because his blog has some of the highest traffic in the right wing universe, they may perhaps expect a dissonant windfall.
This is a strange triangulation, a bit like Stormfront holding a fundraiser for the Southern Poverty Law Center. Ace saw it as an opening to claim the mantle of bipartisan free speech interest, but this sordid saga has never been about politics or free speech. It is about money.
The fraud charge at the heart of Mr. Kimberlin’s lawsuit is not hard to understand. Defendants spent more than a year raising money to “defend themselves” from lawsuits he had never filed, trying to spur legislation against him, suing him, and holding a social media lynch mob to call for his head, spurring genuine acts of physical stalking and harassment. Mr. Kimberlin’s RICO lawsuit against them has nothing to do with “logical targets” or political points of view. It is about them getting rich off the defamation of Mr. Kimberlin, whom they consider “libel-proof.” Apparently, the money has convinced Mr. Levy and the underpaid, underfunded, underperforming lawyers at the Maryland ACLU that the defamers are right. Who knew the champions of free speech were so easily bought?