Paul Alan Levy (Public Citizen) on the latest in the Brett Kimberlin saga

Paul Alan Levy, a leading public interest lawyer at Public Citizen, is involved in the latest phase of the Brett Kimberlin saga: “Readers of this blog may recall that Brett Kimberlin has filed a defamation action against two dozen bloggers and other defendants; Public Citizen is in the case for the limited purpose of defending the anonymity of one of the bloggers.”

The to-and-fro among the interested parties is long and complicated, and it’s not always easy to figure out exactly what’s going on. Levy, though, has in my experience been a reliable source, so I thought I’d refer interested readers to his latest post. In particular, let me note two items:

1. Kimberlin is trying to get a preliminary injunction ordering various bloggers to remove allegedly defamatory statements, and ordering defendants not to “retaliat[e] against Plaintiff in any way for bringing this action,” whatever exactly that might mean. This would, I think, be unconstitutional. Even if permanent injunctions against repeating defamation, entered after a final decision that the material is defamatory, are constitutional, preliminary injunctions entered before any such finding on the merits — and based just on a likelihood of success on the merits — are quintessential prior restraints. That’s so as to injunctions against obscenity, and I think it’s also true as to injunctions against libel (see pp. 169-80 of this article.

2. Much of Levy’s post notes the possible downside to libel plaintiffs of suing for libel. If the plaintiff is worried about his reputation, the litigation can just amplify the allegations against him, thus harming his reputation further (even if he’s eventually vindicated in court). If the plaintiff is worried about the emotional effect of the allegations on him and his family, the litigation can exacerbate that, especially if the family members have to testify in the course of the litigation.

In this instance, it’s very hard for me to feel sympathy for Kimberlin. He has repeatedly demanded unconstitutional restrictions on his critics’ speech (see, e.g., the posts discussed here; I consulted with Aaron Walker’s lawyer on the case). His past crimes make it hard to know when he is telling the truth today. And beyond this, his litigation behavior in this very case has apparently been less than candid at times — to the point that the judge who is now presiding over his libel case explicitly noted,

Given Plaintiff’s checkered past with representations to the Court, Plaintiff is cautioned that when he makes a representation to the Court, it ought to be accurate, in terms of both content and context. See e.g., ECF No. 102 at ¶ 3; ECF No. 122 at 3 (Judge Grimm’s April 28, 2014 Letter Order characterizing Plaintiff’s manipulation of summons as “clearly improper”).

Nonetheless, in other cases, where plaintiffs have indeed been defamed, and legitimately want to get permissible remedies (damages and perhaps a permanent injunction), the collateral reputational and emotional harms of litigation — in addition, of course, to the attorney fees — may well deter even justified lawsuits. I doubt that there’s anything that can be done about this, other than not filing even the meritorious claims; but it’s worth keeping in mind when we think about the practical effect of libel law (and invasion of privacy law).

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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