The joint statement is at McCain’s blog and Hoge’s blog, and reads as follows:
Convicted felon Brett Kimberlin has filed a Maryland lawsuit naming bloggers Aaron Walker, W. J. J. Hoge, Robert Stacy McCain, National Bloggers Club President Ali A. Akbar and the anonymous blogger “Kimberlin Unmasked” as defendants.
The defendants believe that the suit is without merit and is part of Kimberlin’s continued effort to use lawfare to silence journalists and bloggers who have written about Kimberlin’s criminal past. The defendants will not be made available for comment until they have finished initial consultations their respective legal counsel.
Until a complaint is made public, only limited comment can be made. A search of court records reveals the complaint is for “DEFAMATION, MALICIOUS PROSECUTION, HARASSMENT, STALKING, CONSPIRACY, INVASION OF PRIVACY AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.” It sounds like “accuse the accusers” on steroids, doesn’t it?
It will be fascinating to see how Kimberlin tries to assert that his reputation has been damaged — given that he has been convicted of setting off multiple bombs, one of which blew off a man’s leg, causing him to commit suicide. Doesn’t that tend to harm one’s reputation quite a bit more than stuff said by bloggers on the Internet?
Anyway, I just made some donations. Consider doing the same.
UPDATE: Interesting. Hoge suggests that Kimberlin is upset at having been called a “pedophile.” Ken from Popehat offers this analysis in Hoge’s comments, which I will quote in full:
To put it in boring legal terms — which are now in play –
The statement “X is a pedophile” is not defamatory if it is true; only false statements are defamatory.
In addition, it cannot be defamatory if it is a statement of opinion rather than a statement of fact. Whether or not a statement is opinion or fact depends on the context, and on whether the statement implies undisclosed facts. For instance, “I’ve reviewed Y’s tax returns and it is my opinion that he is an embezzler” implies undisclosed facts, and therefore can be defamatory even though it is couched as opinion. On the other hand “based on these two articles in the paper, Z is a thief” is classic opinion.
This can apply just as easily to a statement “X is a pedophile.” Consider Torain v. Liu, 279 Fed.Appx. 46 (2nd Cir. 2008). There the Second Circuit affirmed a summary judgment against a plaintiff who complained that the defendant called him a pedophile. The Second Circuit found that the circumstances showed that the statement was one of opinion based on disclosed facts:
“Having reviewed the statements in the overall context that they were made, see Brian, 87 N.Y.2d at 51, 637 N.Y.S.2d 347, 660 N.E.2d 1126, we conclude that a reasonable listener could not have believed that the statements were intended to convey objective facts. While Torain is correct that the term “pedophile” may be used in a way that has a precise meaning and that is capable of being proven true or false, see id., no reasonable listener could *47 have perceived Liu’s statements, in the context that they were made, to convey that Torain had committed acts of pedophilia. Rather, Liu was clearly expressing his disdain for Torain’s comments on the radio that he wanted to sexually abuse the four-year-old child of a rival disc jockey, using the term “pedophile” as an entirely warranted expression of opinion in view of the statements concerning the plaintiff’s intended conduct, statements which Liu does not dispute he made over the airwaves. Cf. Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 285, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974) (explaining that the use of the term “blackmail” to describe the plaintiff’s negotiating position was non-actionable because “even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the plaintiff’s] position extremely unreasonable”). Torain himself admits that his “war of words,” as he describes his remarks, received “extensive media coverage and commentary.” Compl. at ¶ 7. It is within this surrounding circumstance that we must examine Liu’s statements and how a reasonable listener would have perceived them.1 Thus, for example, when Liu described Torain as a “criminal” and as someone who “must be put behind bars,” a reasonable listener would have easily perceived that Liu was expressing his opinion that Torain should be imprisoned for his harassing on-the-air remarks, not for committing actual acts of pedophilia.2 In short, when examined in the context in which they were made, we conclude that none of Liu’s statements would “reasonably appear to state or imply assertions of objective fact.” Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 243, 566 N.Y.S.2d 906, 567 N.E.2d 1270 (1991).”
And that is merely the first case I found on Westlaw in about three minutes. I suspect there are more about the use of the word “pedophile” (or words to similar effect), and there are tons of cases about epithets like “crook” and “criminal” and “thief” and so on.
The context of your posts makes it clear that you are stating an opinion based on disclosed facts — namely, Kimberlin’s reported statements and the undisputed age of his wife at the time he married her. It will be very, very difficult for him to establish that your statements were ones of fact for purposes of defamation analysis.
I’m not 100% clear whether the age of Kimberlin’s wife at the time he married her is undisputed. I know that I saw documents making different claims about that point in various places. I doubt this lawsuit gets to discovery, but if it does, that’s obviously a point that will be fleshed out. If Kimberlin is truly suing for defamation for being called a pedophile, obviously any discovery would have to delve deep into any evidence regarding whether the accusation is true.
Barbra Streisand might have some advice for Kimberlin on this point. Maybe she could write him a note and attach it to one of those checks she sends him. (Does she still do that, I wonder?)
Anyway. This thing is not screaming “good judgment” or “legally meritorious” to me so far, which I have to admit does not particularly surprise me.
UPDATE x2: Instapundit with a typically incisive, one-line quote linking McCain: “BRETT KIMBERLIN’S PLAN TO AVOID UNWANTED INTERNET ATTENTION doesn’t seem very well thought-out.”
Heh, as they say. Indeed.