He's also a cartoon.
Ace of Spades HQ being anonymous on television
Ace of Spades being, um, “anonymous” on television

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 althe 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.

levyemail

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.

speaking

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_of_spades_village_voice

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.

[youtube]http://youtu.be/pCU9Hs5sEy0[/youtube]

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?

  • That e-mail from Levy. It has a certain “Sopranos” quality to it. “Maybe youse could tell ya friend dat he’s makin’ a mistake.”

    As you know, I contacted Mr. Levy after his unfortunate column. His response, such as it could be called a “response”, was dismissive and rude.

    I sense that vultures are swooping in to watch the injured animal that is the defendant’s case die so they can pick the carcass.

    • Patrick Grady

      Three things Bill Schmalfeldt knows well:

      1. Sopranos-like tactics. Just ask Chris Heather or any of the several other people he has falsely identified as @guntotingteabag.
      2. Dismissive. As in, the moment he learned there was nothing he could use to embarrass or intimidate me, he became fearful and dismissive.
      3. Rude. Is Bill awake? Then Bill is rude. Perhaps it’s in his DNA.

      And by the way, Bill: I’m still waiting on that certified letter you promised. Come on. Don’t be shy.

  • Hofenbrau

    Maybe youse want to go to da mattresses eh Paulie? Joo kno any good spots on da west side?

    • Today, we have settled all family business.

      (Changes channel)

      NOW GO GET YA FUGGIN’ SHINE BOX, YA MUTT!

  • Hofenbrau

    Keep him here keep him here…Youse mudda…

  • Hofenbrau

    Paul Levy, Mob Boss…

    Paul Levy Mob Boss

  • Hofenbrau

    but it seems to me that Kimberlin has been undone by overconfidence in the skills that he developed as a jailhouse lawyer

    How has he been undone? He fails to state that Kimberlin singlehandedly won last year against the law firm of DB Capitol Strategies and their entire firm in both a state case in Virginia and a Federal case in D.C.

    Kimberlin has responded to the online criticism with a campaign of pro se litigation, suing both individuals and groups of critics

    Critics? Yeah I see he is making it like these mob enforcers and kingpins are just critics and not racketeers who have made a mountain of money spreading the demonization of Kimberlin. And all so they could gain more donation money and web traffic to fight said demon, while at the same time destroying his businesses, his personal life, and using blackhat SEO tactics to ruin his name on search engines. Yeah, they are just critics… Levy should check his lunacy medication bottles for taking this case and issuing threats to others to keep Kimberlin from fighting these wankers. Public Citizen should really check to see if this isn’t some money whoring thing they have going on with right wingers.

    It is funny however that Kimberlin got an extremist website like Ace of Spades to call on their readers to support the communist Marxist websites and Liberal orgs like the ACLU and Public Citizen. Its like having the Aryan Nations or League of the South ask their readers to support the Southern Poverty Law Center. Now that is classic folks, classic. Pretty soon he will have the entire right wing tea party calling on their donors to support liberal candidates for the mid terms.

    Kimberlin knows his stuff, that is for sure.

  • maria

    I have a serious problem with the fact that the National Bloggers Club was funded by Foster Freiss, a dark money overlord… and that Ali Akbar’s associates are connected to Karl Rove.

    I’ve long supported Public Citizen but the cognitive dissonance is striking to me.

    They are organizing the protests over the McCutcheon v. Federal Election Commission (FEC) decision. yet they’re aligning with CPAC bloggers and co-defendents of Mr. Dan Backer, who is also arguing the McCutcheon case (or at least filing “friend of the court briefs)

    So on one hand, they allegedly fight dark money forces. On the other hand, they align with dark money forces and help them defend themselves from facing consequences for libel and fraud. All paid for with dark money.

    I noticed Mr. Levy has the good sense to avoid allowing FREE SPEECH comments on his blog.

    Public Citizen is no longer an org I will hold in any esteem. They’re in bed with the enemy. Anyone can see that. Dark money orgs spend all their money trying to subvert and disempower everyday citizens. Just because Kimberlin is not an “everyday citizen” in Lecy’s worldview, does NOT discount the harm these organizations DO to everyday citizens, such as Art Pope’s Citivitas Institute doxing protestors, or the Koch brothers creating websites smearing Jane Mayer.

    This knowledge will overshadow any activity they pretend to do for the regular everyday citizen. I have to figure out how to remove myself from their email & regular mailing list.

    What a bullshit nonprofit. I wonder what THEIR 990’s look like.

  • Hofenbrau

    The 990’s are in fact interesting.

    The Directors. Paul says he works exactly zero hours of work for his pay. I wonder why that is? Oh well, I guess it is an oversight. Must be nice though to contribute zero hours for this kind of pay.
     
     
     

    Directors
     
     
     

    Fundraising. Looks like they spend quite a bit of money trying to obtain funds. So the Ace representation could in fact be just another tool or attempt to use their (Ace of Spades Website) large traffic numbers to get more donations rolling in to Public Citizen.
     
     
     

    Fundraising
     
     
     

    List Rentals. Looks like they spend a pretty penny on renting lists such as mailing lists and so forth so they can get their message out and get that donor money rolling in.
     
     
     

    List Rentals
     
     
     

    Expenses. Looks like they spend most of those donated funds for Office Expenses, Payroll and the ubiquitous “OTHER”.
     
     
     

    Expenses
     
     
     

    Contractors. Looks like about 1.5 million is spent on outside contractors, which are list rentals, marketing companies and so forth.
     
     
     

    Contractors
     
     
     

    Thanks to Xeno for help getting this comment done.

  • Ah yes, the ACLU – the last refuge of a right-wing scoundrel.

    I’m glad I’m not the only one who finds it amusing that Ace, a blogger who has railed against the ACLU for years, suddenly thinks they’re the bee’s knees.

  • maria

    Glad there are at least a half-doxen other outfits out there that aren’t playing games to get some publicity:

    I recommend Sunlight Foundation, Citizens for Ethics and Responsibility, United Republic looks good…Brennan Center for Justice is one I hadn’t heard of before today, but I’ll be looking for ways to support them. PR Watch has always been my favorite.

    I guess I will look at the 990’s for these organizations, first.

    Although I have to say you would NEVER see CREW taking the side of RW bloggers. Because, ethics.

  • Well, Hoge weighed in on this article a moment ago.

    Care to guess how much of it he got wrong?

  • Hofenbrau

    Hoge’s world view is very limited. His entire world consists of his crappy website using bot traffic to obtain higher numbers.

  • maria

    If this website disappeared, half the breitbots would have to pinch themselves to make sure they do, in face, exist. Most of their existence is validated by this website and/or LittleGreenFootballs, and of course, Right Wing Watch.

    • Hofenbrau

      I doubt very seriously that this website will disappear. It is the bane of the Breitbart world to have a counter to their fake world view. The false narratives at Breitbart.com give plenty of fodder for this website to go after for a very long time.. Just sayin lol.

  • I’ve just received two new death threats. The police are on their way.

    • Hofenbrau

      Go get em Bill. Make sure that they start doing something about these lunatics.

  • jonsey

    For some reason, I came across this image on the internet, and it seemed mighty appropriate

  • jonsey

    Ah the image didn’t stick — you’ll have to find it here:

    Blowing Smoke

  • Hofenbrau

    You have to use the img tag, I think its < img > whatever url you want to use, and then close it off with < img > making sure the img tag brackets are closed around the tag. In other words, don’t use a space and make sure you use a / img in the closing bracket. lol.

  • jonsey

    freedom of speech is a beautiful thing.. Libel and defamation are quite another beast entirely.

    thanks for helping me put up that amazing Levy fan art.

    there was a whole page of fan art where that came from, lol

    • Hofenbrau

      No problem Jonsey…

  • RogerS

    It appears to me that Mr. Levy has some very serious conflicts of interest and I cannot understand why in the world he would want to risk having a judge remove him from the case. If that happens, and I will bet it will, it will really hurt his client and poison any chance he has for a favorable ruling. If Mr. Levy is reading this, he needs to get his head out of the First Amendment cloud and read the Disciplinary Rules, and then withdraw from the case.