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BRETT KIMBERLIN, Plaintiff v. ANONYMOUS BLOGGER KIMBERLIN UNMASKED, Defendant Case No. RWT 13 CV2580
MOTION OF AARON J. WALKER, ESQ. TO FILE AN OPPOSITION AND MOTIONS AS AMICUS CURIAE IN SUPPORT OF DEFENDANT COMES NOW Aaron J. Walker, Esq., and hereby moves this court for leave to file two motions and an opposition as an Amicus Curiae in support of the anonymous writer or writers known as Kimberlin Unmasked and states the following: 1. The Plaintiff has filed an abusive lawsuit against an unknown anonymous critic or critics
who write as Kimberlin Unmasked. The purpose of this suit is not to vindicate the right of copyright— because upon information and belief, the Plaintiff does not personally own the copyright to any of the relevant materials, and each use is protected as obvious fair use. Instead, the purpose of this case is to silence and punish one or more critics who write as Kimberlin Unmasked. 2. The Plaintiff has filed, on February 18, 2014, a “Verified Motion to Find That Defendant
KimberlinUnmasked Has Been Served Under Federal Rule Of Civil Procedure 4(e)(1) and Maryland Rule of Civil Procdure [sic] 2-121.”
That motion relied on a document that appears to be forged. This allegation might
seem shocking, but the Plaintiff is in fact a convicted document forger. In U.S. v. Kimberlin, the court described how the instant Plaintiff was arrested at a printing establishment with forged documents that included the Presidential Seal: [FBI Agent] Lucas had been called to a printing establishment. He observed defendant [Kimberlin] wearing clothing with badges and insignia. The insignia was identical to that of the Security Police of the Defense Department. Defendant had in hand a facsimile of the Presidential Seal and other documents, one or more of which he attempted to chew up. He had been at the establishment the day before to have copies of the documents printed. He had been wearing the same clothing. At the printer’s instructions, he had returned to give final approval of the layout. 805 F.2d 210, 228 (7th Cir. 1986). The evidence of forgery in the instant case is presented in the proposed “Amicus Opposition of Aaron J. Walker, Esq. to Plaintiff’s Motion to Find Kimberlin Unmasked has been Served,” attached as Proposed Filing A. It should be noted that this is one of three cases the Plaintiff has filed recently, and he has been caught forging documents related to service of process in the other two cases as well, in one instance engaging in precisely the same type of forgery. Defendants will be seeking redress in the form of criminal charges. 4. However, upon information and belief, the writer or writers known as Kimberlin
Unmasked have not been able to obtain counsel in this case. Therefore, as demonstrated in the attached proposed “Amicus Motion of Aaron J. Walker, Esq. to Allow Defendant(s) to File Anonymously,” (“Mot. to File Anonymously,” attached as Proposed Filing B), Kimberlin Unmasked has no way of appearing in this court and contradicting the Plaintiff’s lies and forgeries without giving up his/her/their right to anonymous speech. 5. Mr. Walker seeks leave to file as amicus in order to prevent a substantive injustice.
I. LEAVE TO FILE AN AMICUS IS APPROPRIATE 6. This Honorable Court has allowed amicus curiae participation where amicus “provide[s]
helpful analysis of the law, ... they have a special interest in the subject matter of the suit, ... or existing counsel is in need of assistance.” Bryant v. Better Bus. Bureau of Greater Maryland, 923 F.Supp. 720, 728 (D. Md., 1996). Although only one factor is necessary to justify granting of such leave, all three factors are present here. A. Mr. Walker Has a Special Interest in the Subject Matter of the Suit 7. Mr. Walker is a Yale-Law-School-educated attorney who has a deep commitment to
freedom of expression and freedom of religion. This is a commitment to something greater than just the First Amendment because, even as incorporated through the Fourteenth Amendment, the First Amendment still only limits government action. It provides no protection against private violence or private threats of violence designed to silence others or to coerce their religious expression. As an attorney, Mr. Walker has helped many persons whose freedom of expression was threatened through abusive lawsuits and threats of such suits. As a citizen, he has helped in protests designed to protect freedom of speech in practical ways.1 For instance, Mr. Walker was one of many organizers of the Everyone Draw Mohammed Day protest in 2010. This protest grew up in light of the increasing problem of Islamofascist terrorists threatening to murder any person who was deemed to have blasphemed Mohammed, a central figure in the Islamic faith. According to these terrorists, any depiction of Mohammed, however benign, was blasphemous and they specifically threatened to murder the creators of the TV show South Park for their inoffensive depiction of Mohammed. Accordingly the participants in the Everyone Draw Mohammed Day protest decided to commit the same “offense” as the creators of South Park by making their own drawings of Mohammed—some objectively offensive and some not—and thus make it, as a practical matter, impossible to carry through on their threat to kill every person who depicted Mohammed. Mr. Walker proudly participated in this protest and served as a minor organizer in it. In order to better understand 3
Furthermore, Mr. Walker has an interest in the right to speak and write anonymously. As
the Supreme Court wrote in McIntyre v. Ohio Elections Comm’n, the right to write anonymously is a precious one, grounded deeply in the traditions of this country: Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Great works of literature have frequently been produced by authors writing under assumed names. Despite readers’ curiosity and the public’s interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.2 Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment. 514 U.S. 334, 341-342 (1995). Indeed, several of the founders and those who opposed the ratification of the present Constitution wrote anonymously under names such as Publius on the pro-ratification side, and names like Brutus and Federal Farmer on the anti-ratification side. 9. Up until approximately two years ago, Mr. Walker was himself an anonymous writer on
the internet, writing as “A.W.” and “Aaron Worthing.” Then, the very same Plaintiff sought Mr. Walker’s identity because he claimed an urgent need for Mr. Walker to testify against one of Mr.
Mr. Walker’s motives and methods, a copy of the Mission Statement Mr. Walker composed is attached as Exhibit A. 2 Respectfully, the Supreme Court missed an obvious, additional reason why a person may wish to write anonymously: so their words will be read without prejudice. For instance the Brontë sisters published as Currer, Ellis, and Acton Bell, with the three women intentionally picking male pseudonyms. According to Charlotte Brontë, “we did not like to declare ourselves women, because... we had a vague impression that authoresses are liable to be looked on with prejudice.” Elizabeth Cleghorn Gaskell, THE LIFE OF CHARLOTTE BRONTË 218 (1870). 4
Walker’s own clients in the case of Kimberlin v. Allen, (Md. Mont. Co. Cir. Ct. 2011) case number 339254V. 10. Mr. Walker argued in a “John Doe” motion before that court that the subpoenas designed
to reveal Mr. Walker’s identity should be quashed in part because he predicted that, once the Plaintiff learned of Mr. Walker’s identity, the Plaintiff and his allies would begin to harass Mr. Walker. Although the Plaintiff learned of Mr. Walker’s identity through other means, Mr. Walker’s prediction has borne out. This convicted terrorist3 has attempted to stalk, oppress, and harass Mr. Walker and his wife for more than two years, his conduct including 1) repeated frivolous, and unsuccessful lawsuits, 2) repeated criminal charges,4 3) actual in-person stalking of Mr. Walker and his wife and publishing
The Plaintiff is an infamous terrorist known as the Speedway Bomber. The Sixth Circuit summed up the worst of his extensive criminal history as follows: Kimberlin was convicted as the so-called “Speedway Bomber,” who terrorized the city of Speedway, Indiana, by detonating a series of explosives in early September 1978. In the worst incident, Kimberlin placed one of his bombs in a gym bag, and left it in a parking lot outside Speedway High School. Carl Delong was leaving the high school football game with his wife when he attempted to pick up the bag and it exploded. The blast tore off his lower right leg and two fingers, and embedded bomb fragments in his wife’s leg. He was hospitalized for six weeks, during which he was forced to undergo nine operations to complete the amputation of his leg, reattach two fingers, repair damage to his inner ear, and remove bomb fragments from his stomach, chest, and arm. In February 1983, he committed suicide.
Kimberlin v. White, 7 F.3d 527, 528-29 (6th Cir. 1993). 4 The Plaintiff has filed so many frivolous criminal charges that, upon information and belief, the Montgomery County State’s Attorney set up a special process by which charges were fast-tracked to dismissal when Mr. Kimberlin filed them. That is, they ensured that within forty-eight hours they would review the charge and determine if it had any validity. Mr. Kimberlin’s criminal charges—which has included against Mr. Walker, against the paramour of Mr. Kimberlin’s wife, against other random persons—have in each case resulted in a nolle prosequi. 5
photos he had taken of both of them on the internet, 4) causing Mr. Walker and his wife to lose their jobs, and 5) even causing Mr. Walker to be arrested on false charges.5 The Plaintiff has an incredible disdain for the freedom of speech of others and employs “brass knuckle reputation management” in order to suppress reasonable criticism of his past and present criminal activities and his abuse of the legal process. The Plaintiff is a walking “chilling effect.” Dombrowski v. Pfister, 380 U.S. 479, 487 (1965) (“[t]he chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure”). 11. Furthermore, despite claiming an urgent need for Mr. Walker’s testimony in a specific
hearing, and the Plaintiff did not call him to testify at that hearing. Mr. Walker was present for that hearing and the Plaintiff knew this. After that hearing, Mr. Walker confronted the Plaintiff with his dishonesty, saying, “[t]he truth is you didn’t want my testimony, you just wanted my identity.” The Plaintiff replied, “and I got it!” Consequently, Mr. Walker believes that the Plaintiff’s representations that he needed Mr. Walker’s testimony were not true and that his real agenda was to abuse the court’s process to assist him in oppressing and harassing Mr. Walker.6
As noted previously the charges were quickly dismissed. Indeed, often identification of the defendant is be the main point of the litigation aimed at an anonymous speaker, in that plaintiffs often identify their critics and then seek no further relief from the court. Thompson, On the Net, in the Dark, CALIFORNIA LAW WEEK, Volume 1, No. 9, at 16, 18 (1999). Some lawyers admit that the mere identification of their clients’ anonymous critics may be all that they desire to achieve through the lawsuit. An early advocate of using discovery procedures to identify anonymous critics has urged corporate executives to use discovery first, and to decide whether to sue for libel only after the critics have been identified and contacted privately. Fischman, Your Corporate Reputation Online (available at http://www.fhdlaw.com/html/corporate_reputation.htm) visited February 23, 2014; Fischman, Protecting the Value of Your Goodwill from Online Assault (available at http://www.fhdlaw.com/html/bruce_article.htm) visited February 23, 2014. Lawyers who represent plaintiffs in these cases have also urged companies to bring suit, even if they do not intend to pursue the 6
Mr. Walker can also speak uniquely to the barriers an anonymous person faces when
attempting to fight for the right to remain anonymous which has been recognized in several courts. Independent Newspapers v. Brodie, 966 A.2d 432 (Md. 2009); In re Does 1-10, 242 SW3d 805 (Tex. App. 2007); Mobilisa v. Doe, 170 P.3d 712 (Ariz. App. 2007); Doe v. Cahill, 884 A.2d 451 (Del. 2005); Dendrite v. Doe, 775 A.2d 756 (N.J. App. 2001). The attached proposed Mot. to File Anonymously addresses that concern and is based in significant part on a motion Mr. Walker filed through counsel in the Allen case. B. Mr. Walker Can Provide Helpful Analysis of the Law. 13. While Mr. Walker is not an attorney in Maryland and consequently not admitted to
practice in this court, he is a legal scholar,7 a graduate of Yale Law School and attorney in good standing in Virginia and the District of Columbia who has previously worked in First Amendment cases. In addition to those credentials, Mr. Walker invites this court to read the attached motions and opposition and decide for itself whether they are helpful to this court in seeking the most just outcome. Mr. Walker is confident that they are.
action to a conclusion, because “[t]he mere filing of the John Doe action will probably slow the postings.” Eisenhofer & Liebesman, Caught by the Net, 10 BUSINESS LAW TODAY NO. 1 (Sept.-Oct. 2000), at 40. These lawyers have similarly suggested that clients decide whether it is worth pursuing a lawsuit only after finding out who the defendant is. Id. Indeed, in Swiger v. Allegheny Energy, 2006 WL 1409622 (E.D. Pa. May 19, 2006), a company represented by the largest and most respected law firm in Philadelphia filed a Doe lawsuit, obtained the identity of an employee who criticized it online, fired the employee, and then dismissed the lawsuit without obtaining any judicial remedy other than the removal of anonymity. 7 Aaron J. Walker, “No Distinction Would Be Tolerated”: Thaddeus Stevens, Disability, and the Original Intent of the Equal Protection Clause, 19 YALE L. & POL’Y REV. 265 (2000). 7
Kimberlin Unmasked is in Need of Assistance. 14. The third factor listed in Bryant, is that “existing counsel is in need of assistance.” 923
F.Supp. at 728. But here, there isn’t even counsel to assist. Right now, Kimberlin Unmasked literally has no one to speak for him/her/them and, indeed, cannot speak for him/her/themselves. This is because the Federal Rules of Civil Procedure inadvertently puts anonymous writers like Kimberlin Unmasked in a Catch-22. While the right of self-representation is supposed to be preserved in 28 U.S.C. §1654, Fed. R. Civ. P. 11(a) effectively requires an anonymous writer to give up that anonymity as the cost of defending oneself. Specifically, Rule 11(a) states that: “[e]very pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name—or by a party personally if the party is unrepresented. The paper must state the signer’s address, e-mail address, and telephone number.” With no attorney, Kimberlin Unmasked would have to sign him/her/themselves and implicit in that rule that signature must be in their real name or names, as well as providing definite addresses, email addresses and phone numbers. Thus, Kimberlin Unmasked, who, upon information and belief, does not have a lawyer in this case, is caught between the Scylla of leaving him/her/themselves undefended as a convicted perjurer8 and document forger has run of this court without contradiction, and the Charybdis having to give up his/her/their right to anonymous speech without a fight. 15. Mr. Walker has run into precisely this same problem when he attempted to defend
himself against Mr. Kimberlin’s abusive subpoenas in the Allen case and was able to work out a solution with the judge. Mr. Walker believes it would benefit the court to hear what the Montgomery County Circuit Court did in response to this issue. In this sense, Mr. Walker can help this court ensure that there
Kimberlin v. White, 798 F. Supp. 472, 482 (W.D. Tenn. 1992). 8
is a “complete and plenary presentation”9 of the delicate balancing of interests between preserving a person’s First Amendment right to anonymous speech against a plaintiff’s right to recover for genuine harms.
For these reasons this court should grant Mr. Walker leave to file as an amicus and this court should accept the following proposed filings and give them due consideration:
Proposed Filing A:
Amicus Opposition of Aaron J. Walker, Esq. to Plaintiff’s Motion to Find Kimberlin Unmasked has been Served, Amicus Motion of Aaron J. Walker, Esq. to Allow Defendant(s) to File Anonymously Amicus Aaron J. Walker, Esq.’s Motion to Dismiss
Proposed Filing B:
Proposed Filing C:
This court should further grant to Mr. Walker and/or Kimberlin Unmasked all other relief that is just and equitable.
Friday, February 28, 2014
Aaron J. Walker, Esq. Proposed Amicus Curiae [personal information and verification page redacted]
NAACP v. Town of Harrison, N.J., 940 F.2d 792, 808 (3rd Cir. 1991). 9
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