UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION BRETT KIMBERLIN, Plaintiff,

v.
NATIONAL BLOGGERS CLUB, etal., Defendants

No. PWG 13 3059

PLAINTIFF'S RESPONSE TO DEFENDANT THE FRANKLIN CENTER'S MOTION TO DISMISS

Now comes Plaintiff and responds in opposition to Defendant The Franklin Center's Motion to Dismiss. The Court must deny a Motion to Dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure unless it "appears beyond doubt that Plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, (1957). "The question is whether in the light most favorable to the Plaintiff, and with every doubt resolved in his behalf, the Complaint states any valid claim for relief. 5A Wright & Miller, Federal Practice and
II

Procedure: Civil 2d 1357, at 336. The Court, when deciding a motion to dismiss, must consider well-pled allegations in a complaint as true and must construe those allegations in favor of the plaintiff. Scheuerv. Rhodes, 416 U.S. 232, 236 (1974);]enkinsv. McKeithen, 395 U.S. 411, 421-22 (1969). The Court must further disregard the contrary allegations of the opposing party. A.S. Abell Co. v. Chell, 412 F.2d 712, 715 (4th Cir.1969); Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) ("a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiffis entitled to no reliefunder any state offacts which could be proved in support ofthe claim. ") (emphasis added).

What Is The Franklin Center

1. The Franklin Center for Government and Public Integrity ("The Center") is a SOl(c)(3) non-profit, online news organization that publishes news and commentary on state and local government and politics from a free market, limited government perspective.

The Harm Caused To Plaintiff By The Franklin Center

2. The Franklin Center staked its reputation on the false narrative that Plaintiff was involved with four swatting attacks and had filed 100 frivolous lawsuits against conservative bloggers when it published the following press release:

Franklin Center Joins Lee Stranahan, Popehat, Aaron Walker, Mandy Nagy And Others To Discuss Protection Of The Free Press
By Tabitha Hale June 26, 2012 For Immediate Release Franklin Center Joins Lee Stranahan, Popehat, Aaron Walker, Mandy Nagy And Others To Discuss Protection Of The Free Press Tonight at 9:30pm EDT, The Franklin Center joins Lee Stranahan, Mandy Nagy, and last night's SWATting victim Aaron Walker on a webinar to discuss recent attacks on bloggers and the suppression of free speech. Convicted domestic terrorist Brett Kimberlin and his associates have repeatedly terrorized bloggers and others who highlight his story with over 100 frivolous lawsuits and 4 SWATting attacks. SWATting is a dangerous tactic that involves calling a police department to report a false crime to get a SWAT team dispatched to the victim's house. The attacks have included bloggers Patterico, Erick Erickson, and as recently as last night, Aaron Walker. Yesterday, Rep. Sandy Adams of Florida and 87 cosigners sent another letter to AG Eric Holder urging investigation of costly SWATting tactics. In her statement, Adams said "SWAT-ting is quickly becoming a scare tactic used against political bloggers in an effort to stifle their First Amendment rights." Tabitha Hale, New Media Director at the Franklin Center for Government and Public Intergrity, says "These tactics are just appalling. A free press is essential to a free society, and attempts to silence those who are telling the

truth are entirely unacceptable. We are glad to have a small part in the fight to protect the First Amendment by supporting victims of these attacks. We will always err on the side of free speech." Information on tonight's webinar is below. Learn what is at stake and learn how to protect yourself and your act of journalism. Title: Fighting for a Free Press Date: Tuesday, june 26,2012 Time: 9:30pm to 1 0:30pm EDT Reserve your space at the following link: https:jjwww2.gotomeeting.comjregisterj630051426

3. Both of these statements about Plaintiff are patently false. The Center not only published these as fact on its highly trafficked website, but it also held a webinar that many people attended and which gave voice to an attorney named Ken White who stated how to use search engine optimization to "Google Bomb" Plaintiff, and how to "use the Streisand effect" to harm Plaintiff with these false narratives. And another disgraced attorney, Defendant Aaron Walker, stated implicitly that Plaintiffswatted him and was trying to get "someone killed." Tabitha Hale, The Center's social media director, put the weight of her authority and The Center's behind these false statements and the people who participated in the defamatory statements. This webinar was tape recorded and transcribed, and spread widely to harm Plaintiff. The harm was enhanced because The Center has a reputation for sticking to the facts even if they are from a conservative viewpoint. 4. Where did The Center get this information? From members of the National Bloggers Club headed by convicted felon and Defendant Ali Akbar who falsely portrayed NBC as a 501(c)(3) and defrauded tens ofthousands from innocent conservatives based on these false narratives. Specifically, Tabitha

Hale parroted a post from Defendant Robert Stacy McCain for her press release without doing one ounce of fact checking. At the time of the press release, Plaintiff had never filed a single lawsuit against any conservative blogger and did not even know what swatting was until he was falsely accused of it. Because of The Center's strong reputation on accountability, anyone who read or heard that The Center was behind these defamatory allegations automatically believed that they were true. But had Ms. Hale done even a cursory search on PACER, she would have quickly seen that Plaintiff had never filed a lawsuit against any conservative blogger. Had she called Plaintiff to ask ifhe was involved with swattings, she would have learned that he was not. People expect not only the truth from The Center, but also due diligence. 5. After the webinar, many people shared the transcripts, audio and link of the webinar, and others used The Center's reputation to give credence to the false narrative. Members of Congress were told that The Center co-signed the false narrative, and this gave more of them the necessary comfort level to join the demand that the Attorney General investigate Plaintifffor the swattings. That investigation caused the FBI to show up unannounced at Plaintiffs home, and another agent blindsided Plaintiffs wife when she was at a meeting demanding that she tell them about the swattings while insisting that she not tell Plaintiff he talked to her. There are now thousands of posts and tweets online accusing Plaintiff of swatting.

6. Because of these false narratives involving swattings and lawsuits, Plaintiff received untold number of death threats, had stalkers come to his home and take photos of him and his daughter, and had threatening calls to his elderly mother, pre-teen daughter, and all his neighbors. Plaintiiffs non-profit employer has lost an established institutional funder, and Plaintiffs daughters have been bullied at school so much that his older daughter had to change schools. He has been under siege for two years despite the fact that he does even blog, comment or tweet. The Center and others have demonized Plaintiff with false narratives that resulted in a digital witch hunt designed to create and incite a right wing mob filled with hate towards Plaintiff. This was meant to cause opprobrium to destroy him, his funding base, and his reputation as the director of non-profits. And even more, The Center conspired with and gave voice and credibility to Defendants such as Aaron Walker and Patrick Frey, who stated that their intention was to imprison Plaintiff. What greater violation could occur to a living person than being falsely accused and imprisoned for something he did not do? 7. This was a conspiracy and a shameful and tortious one at that: it has besmirched the otherwise good reputation of The Center as well as Plaintiffs name and reputation. The conspiracy continues to this day. Rather than being above the noise of the mob, The Center threw red meat to it, and the mob responded. Tabitha Hale took the word of disreputable individuals such as Defendants Ali Akbar, Aaron Walker and Robert Stacy McCain, who used these false narratives to line their pockets with iII-gotten gains, and raise

their Google rankings. This was reprehensible and immoral. And The Center did not even investigate these people before buying into their false narratives. 8. The Center falsely and recklessly broadcasted Plaintiffs name as the perpetrator of a horrible crime, and in doing so, The Center was either grossly negligent or intentionally malicious. This reporting of blatantly false information was irresponsible and outrageous. But more, the conduct of The Center violated RICO because The Center became part of the Enterprise and the conspiracy among the defendants to commit fraud, obstruction and extortion as part of their scheme of racketeering. And finally, The Center's conduct violated Plaintiffs civil rights because it was part of a conspiracy to have him falsely imprisoned in retaliation for his exercising his right to redress. Plaintiff did nothing to ask to be thrust into this false narrative situation except exercise his First Amendment right to redress when some of the Defendants engaged in tortious and criminal conduct toward him.

Plaintiff Adopts his Responses to Hoge, Walker and DB Capitol Strategies' Motions to Dismiss
9. The Center basically parrots the Motion to Dismiss filed by Defendant DB Capitol Strategies, and raises other arguments raised by Defendants Hoge and Walker. Therefore, Plaintiff adopts the arguments in his responses to those three defendants. These are as follows: 10. The Center defamed Plaintiff by publishing and then saying at a webinar that Plaintiff swatted four conservative bloggers and filed more than 100 frivolous lawsuits against conservative bloggers. The statute of limitations

does not apply because (1) The Center's long relationship and conspiracy with Defendant Akbar and Defendant National Bloggers Club which has repeated these false allegations within the one year SOL; (2) Plaintiff was threatened with physical harm and death ifhe went to court or talked to the authorities thereby tolling the SOL. Although some of those threats are quoted in the Complaint on page 12, a sampling of more threats is attached as Exhibit A. 11. Plaintiff has presented sufficient facts to meet the elements of a false light claim in that The Center made false statements about his involvement in a horrible crime, which a reasonable person would find offensive, and that The Center acted intentionally or with reckless disregard for the truth in making those untrue statements. 12. Plaintiff has properly alleged a RICO and RICO conspiracy case by showing that The Center joined the RICO Enterprise in order to enhance its goal of destroying Plaintiffs livelihood, driving him out of business and imprisoning him for a crime he did not commit. By joining the Enterprise and conspiracy, The Center is responsible for the predicate acts of the other Defendants. 13. Plaintiffs allegation of conspiracy to violate his civil rights under 42 USC 1985 is sufficient since he has alleged that The Center joined the conspiracy to violate his civil rights by falsely accusing him of serious crimes which was intended to have him arrested and imprisoned. Its defamatory press release and webinar included the false accusations made by Los Angeles Deputy District Attorney Patrick Frey, aka Patterico, who was attempting to have

Plaintiff arrested and imprisoned based on his false accusations of swattings by Plaintiff. Making such false accusations in conspiracy with the other Defendants is extremely irresponsible and outrageous. There are thousands of cases in the history of our country where innocent people have been falsely accused of something by an overzealous or corrupt prosecutor, and a cascading of unfortunate events then resulted in a false arrest, false imprisonment, execution or mob attack. In the instant case, The Center added a veneer of credibility to the false allegations of swatting thereby increasing the possibility of a false arrest of Plaintiff. 14. Plaintiff withdraws the allegation offraud and misrepresentation. 15. Plaintiff has clearly demonstrated Intentional Infliction of Emotional Distress because the actions of The Center in falsely accusing Plaintiff of swatting four conservative bloggers and suing 100 more were beyond all bounds of decency in a civilized society. The fact that The Center has kept this false information on its website even after being informed it is false shows malice and outrageous conduct.

Conclusion
Defendant The Franklin Center has not met its burden under Rule 12(b) (6) of showing that Plaintiff can prove no set of facts to support his claims. In fact, based on the allegations in the Complaint, as supported by the exhibits to the Plaintiffs various Responses and his affidavit, this Court must accept the allegations as true. The Center's Motion to Dismiss should be denied.

Respectfully submitted, Brett Kimberlin

I
Bethesda, MD 20817 Certificate of Service

r certify that I mailed a copy of this response to attorneys for

DB Capitol

Strategies and The Franklin Center, and to Defendants Hoge and Walker. I emailed this to Defendant Stranahan and the attorney for Defendants Frey and Nagy all this 17 th day of January, 2014. Brett Kimberlin

Thursday. January 16, 2014 8:54 PM

Subject: [Contact] Message from Aaron Date: Saturday, May 26, 2012 7:57 PM From: slapphappy@aol.com To: Justice Through Music <jtmpinfo@comcast.net>

Army Of Davids sent a message using the contact form at http://velvetrevolution.us/newvr/index.php?q=contact. Don't show up in court Tuesday or you are dead. This is your only warning. Report as inappropriate: http://velvetrevolution.us/newvr/index.php?q=mollom/report/mollom_content/ 120527f6bb7c12dOd8

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Thursday. January 16, 2014 8:54 PM

Subject: {Contact] Brett Kimberline Date: Sunday, May 27, 2012 1:24 PM From:1 l@live.com To: Justice Through Music

Loui sent a message using the contact form at http://www.jtmp.org/jtmp/index.php?q=contact. If Brett does not start to act like a grown up and quit calling the police on people like a little punk. There will be hell to pay. Report as inappropriate: http://www.jtmp.org/jtmp/index.php?q=mollom/report/rnollorn_contentl 1205271e045086b4f2

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Thursday, January 16, 2014 8:53 PM

Subject: let's do lunch Kimberlin Date: Saturday, June 9, 2012 3:49 PM From: Liz Rocha <spiderbyte88@live.com> To: <info@velvetrevolution.us>

I'll be bringing the straw for you. It's now not a matter of if. Brett Kimberlin, neck broken by 110lbs Female Marine. Warmly, Liz Rocha

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Thursday. January 16, 2014 9:04 PM

Subject: [Contact] JTM contributions

Date: Friday, May 25, 2012 9:42 AM From: I l@gmaiJ.com To: Justice Through Music

James sent a message using the contact form at http://www.jtmp.org/jtmp/index.php?q=contact. I can lie like you. I don't get intimidated & get on my bad side & you'll get the full wrath. Not just from but. I have my own. The extreme wing of the TP has arrived. Th~s message is for Mr. K. It would not suit the best interests of all people involved in your movement to shut the F&*K up & that includes you. I have lawyers, cash & a ready action response team & center. You don't find me on the web. I don't speak with cameras in the room or audio for the world to hear. Just as you operate in darkness as a leftist figure I do the same on the right. We've reached a crucial point. Our members are itchy. Actions are just wating for orders. This is the last time I will communicate with this organization. You have been warned & I will have all the dirty secrets make it on the national scene. Including a certain other inappropriate relationship not mentioned in this article. When you spoke th other night I was in the audience & that's when my "laser" focus came to you. I'm in your ranks & not in your ranks. OWS has no idea who the very high level mole is feeding my information. I've been able to tip off cops multiple times when the anarchists were ready to go black blocing. My tentacles have just reached a little further when soemone else in your organization has agreed to stream info to me. Someone you know of course. I hope you like the email address I created just for this post. Look behind you & that camera that flashes may just be one of our operatives. Report as inappropriate: http://www.jtmp.org/jtmp/index.php?q=mollom/report/mollom_content/ 12052595ec619fa9bb

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Thursday. January 16, 2014 8:53 PM

Subject: [Contact] prison Date: Sunday, June 10, 2012 1:09 PM From:1 I@Yahoo.com To: Justice Through Music <jtmpinfo@comcast.net>

Brett kimberlin sent a message using the contact form at http://www.velvetrevolution.us/newVR/index.php?q=contact. Hey Brett, prepare yourself! soon. Looks like you'll be going back to prison

Report as inappropriate: http://www.velvetrevolution.us/newVR/index.php?q=mollom/reportl mollom_content/1206105425ab2f7211

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Thursday, January 16, 2014 9:00 PM

Subject: [Contact] Brett Kimberlin exposed. Date: Friday, May 25, 2012 10:55 AM From:1 I@yahoo.c"'..... To: Justice Through Music

James sent a message using the contact form at http://www.jtmp.org/jtmp/index.php?q=contact. Now we know who you are you've been exposed. Report as inappropriate: http://www.jtmp.org/jtmp/index.php?q=mollom/report/mollom_contentl 1205252100cd46762c

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Thursday. January 16, 2014 8:55 PM

Subject: [Contact) Kimberlin Date: Saturday, May 26, 2012 1:15 AM From:1 I@yahoo.com To: Justice Through Music <jtmpinfo@comcast.net>

Your Enemy sent a message using the contact form at http://www.velvetrevolution.us/newVR/index.php?q=contact. We know who you are. We're coming for you. You will pay. Report as inappropriate: http://www.velvetrevolution.us/newVR/index.php?q=mollom/report! mollom content!120526ae1866472371

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Thursday. January 16, 2014 8:55 PM

Subject: [Contact] scolal Justice

Date: Saturday, May 26, 2012 7:03 AM From~ I@Jeo.gov To: Justice Through Music <jtmpinfo@comcast.net>

Ishmeal Cunshot sent a message using the contact form at http://www.velvetrevolution.us/newVR/index.php?q=contact. Brett Kimberlin is done .. the hunter is the hunted Report as inappropriate: http://www.velvetrevolution.us/newVR/index.php?q=mollom/report/ mollom content/12052694fOac6b724d

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Thursday. January 16, 2014 9:03 PM Subject: [Contact] Forgot to mention one other thing Date: Friday, May 25, 2012 10:07 AM From: I I@gmail.com To: Justice Through Music

jamesctheman sent a message uSlng the contact form at http://www.jtmp.org/jtmp/index.php?q=contact. If anyone of the minions who do your dirty work even so much as show up around my house which is not likely or subject anyone I know to any sort of intimidation we will activate. Come after one single person I know including me & I will shut you down. THIS IS YOUR ONLY WARNING AND I'M DROP YOU DEAD SERIOUS. Try me. Keep upi your attacks rapist. Keep your attacks terrorist. I don't bow to pressure or tactics. I have friends on the swat team in my town. Pretty sad you're compensating for a small penis size by attacking others. Report as inappropriate: http://www.jtmp.org/jtmp/index.php?q=mollom/report/mollom_content I 12052595ged5ge3cef

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c
::- Apps

U charliefoxtrotblog.blogspot.com/2012/06/dear-brett-kimberlin.html?m= 1
Stream your iTu el

6107/2012

Dear Brett Kimberlin...

I won't be moving to an undisclosed location...

(No slight intended to the esteemed 0 , who obviously felt the actual threat required such action. I just saw the picture in my bJog history, and the idea popped into my head...)
Cha Foxtrots

Robert Stacy McCain

'1

Follow

...

Pump-action 12-gauge is very simple to operate. Just sayin' ... RT BrianAS9 Buy a gun and learn to use it if you don't already know.
... Reply

t..

Retweet

Favorite

2
T

PI1 - 21 ' Icl

eEl

In

c.

T.

pet

Q 38 Dustin ~ 11h rsmccaln I'm glad free citizens can protect themselves. but it sucks that a blogger has to worry abt how to protect his family. BrianA59

Q 43 richard mcenroe I' '" rsmccain BrianA59 s'why I bought a .44 SA. Pull this, pUll this. repeat
Lid

Q 60 Rick Wilson rsmccain Aim center-mass

)1'"

11h

DQ37 Brian A rsmccatn Works for me too!

......_ - ' Detal S
12h

1:150 Ellie Lockwood rsmccain bnana59 Recently passed Basic Pistol and have applied for concealed carry Thinking a 12gauge is a good idea too.

--""""""-------=~-

LowlyLawStudent
TIle thought of a terrorist attempting to bully a fellow American makes my blood boil. There are extra bedrooms. plenty of food, free high speed internet, quick access to an international airport, and enough guns and ammo to last for days a\'ailable at absolutely no cost to you in the Commonwealth of Kentucky. Just let me know and it's all yours.
:2

cia: sago -l Likes

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"Arm yourself and your family. And nail the bastard to the wall." rSInccain theothennccain.COnl/2012/05/21/neY...
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werewife
I ha\'e this bizarre fantasy image of you Glenn Reynolds, and Bill \\''hittle holding down Kimberlin while Ace snaps his neck as a sacrifice in honor of the spirit of Andrew Breitbart. Hey, a girl can dream, and "honi soit qui mal y pense."
2

days ago

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Chris \Vysocki Blogger. Dad. Curmudgeon. Long :utferirg ...

Hey, Tony Soprano is my *neighbor*. Just sayin'
~

day:: ago :; likes

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Pathfinder's wife
I don't think the LoL is exactly the place you'd be looking for, so won't even offer. But pig farms vIe do ha\'e, just in case.

Taxpayer1234. Teaching college kids to think since 1984.

Colorado: Has a "Make My Day" law, Also, mountains and stuff. PS--I hit your tip jar. Best wishes for a safe relo!
~

days ago

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JoIn Fast
"Kimberlin lo\'es to sue people to shut them up," eM \-Vell, he can ha\'e a piece of me, I ha\'e lawyers, guns, and money, Plus I'm judgement-proof, and *lo\'e* spending time in court. Hey, maybe somebody should sue him and name his non-profit orgs as codefendants. I belie\'e the ci\'il component of the RICO Act applies here. Am I o\'erlooking something'?
1

da\" aao <::>

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