The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Brett Kimberlin vs. conservative bloggers, round umpteen


Longtime readers of the blog may recall the case of Brett Kimberlin, the colorful past convict and current assiduous litigant who has been suing various conservative bloggers. He once got a court order that apparently required another blogger to stop blogging about him; fortunately, that order was vacated a month later. (I consulted on that case, on the blogger's side, pro bono.) Since then, Kimberlin has—among other things—sued a bunch of bloggers for allegedly libeling him by calling him a pedophile. (For more on the lawsuit, see this 2014 Daily Beast article and this 2014 Slate audio piece, both by The Post's David Weigel; see also this 2014 post by Paul Alan Levy of Public Citizen, and this 2014 Techdirt post by Mike Masnick.)

But at trial, Kimberlin, who represented himself, didn't actually show that the accusations were false; as the Maryland Court of Special Appeals held earlier this week,

Mr. Kimberlin … [had] to prove that they were false …—a statement that is defamatory but true isn't actionable. And although he keeps saying he has shown falsity, he declined to take the stand to deny the allegations. Whether or not his testimony would have cured the problem, we agree with the circuit court that he failed to satisfy the burden of production he bore even to get to the jury on these two claims.

Because of this, the court held, the trial judge was right to throw the case out before it was sent to the jury. (In some states, when an allegation relates to a matter of purely private concern, a defendant must prove truth rather than the plaintiff having to prove falsity. But in Maryland, a libel plaintiff must always have to prove falsity; this made it unnecessary for the court to discuss whether allegations of pedophilia, especially made about an activist such as Kimberlin, are matters of public concern.) Next stop for Kimberlin, I expect, will be a petition for review by the Maryland Court of Appeals; but I doubt that court will be inclined to review the matter (and of course there is no question of federal law here for the U.S. Supreme Court to review). So it looks like this case might be almost done.