ECF 170 Redacted | Prior Restraint | Defamation

The Honorable George J.

Hazel
U.S. District Court for the District of Maryland
6500 Cherrywood Lane
Greenbelt, Maryland 20770
Monday, July 28, 2014
• FILED _ ENTERED
-~. - LOGtlli'O--REOEIVIiD
JUl S 82014
OLE Ai ~RSENBiI~ 'r
BY DI~~l:tVC~ 8~~~RJLi~gRi
DEPUTY
Re: Brett Kimberlin v. National Bloggers Club, et al. GJH-I3-3059; In Re Plaintiff's Request to
File Motion for Preliminary Injunction of July 22, 2014 (no ECF designation)
Dear Judge Hazel:
I write in opposition to the Plaintiff's sealed request to file a motion for a preliminary injunction.
In one phrase, the Plaintiff reveals this entire lawsuit for the grubby attempt to suppress freedom of
expression that it really is. He writes in his Request that this Court should engage in prior restraint
because "Defendant(s] Walker and Hoge" called him "a terrorist, forger, peJjurer, pedophile and other
invectives. "
This Court surely knows by now that the first three statements are proven facts. For instance, there can
be little denying that he is a terrorist. Here's how the Sixth Circuit described the same Brett Kimberlin:
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. While, 7 F. 3d 527, 528-29 (6
th
Cir. 1993). The claim he is a peJjurer is equally backed up
by citation to court cases. This Court called him a peJjurer. Kimberlin v. Dewalt, 12 F. Supp. 2d 487,
490 n.6 (D. Md 1998). And the Plaintiff is not only convicted of crimes related to document forgery,
U.S. v. Kimberlin, 805 F. 2d 210, 228 (7th Cir. 1986), but he has admitted to document forgery in two
different cases (see ECF Nos. 102 and 124) and has just been caught altering documents in a third case
(see generally Defendants' Joint Opposition to Plaintiff's Motion for Default, ECF No. 19 in Kimberlin
v. Thomas and Malone, Case No. 13-eV-02580 (D. Md 2013).
As for the claim Mr. Hoge or I called him a pedophile, that does not even belong in this Court. As I
have pointed out before, Mr. Kimberlin has a second case where Mr. Hoge and I are among the
defendants dealing with the question of whether it is actionable defamation/false light to call Mr.
Case 8:l3-cv-03059-GJH Document l70 Filed 07/28/l4 Page l of 8
Kimberlin a pedophile. In fact, Mr. Kimberlin is already seeking the same relief in that case, and there
is a hearing on his motion for a preliminary injunction on August 7, 2014. That hearing will also
determine whether summary judgment is appropriate in the Defendants' favor given that Mr. Kimberlin
has presented no evidence the statement is false. In other words, the result of that hearing might be a
determination, binding to this Court, that it is not defamation to call Mr. Kimberlin a pedophile. So he is
basically asking for two bites at the apple: asking for two courts to grant a prior restraint to silence the
same expression at the same time, in the hopes that some court, any court, would be willing to silence
us. The issue of whether it is even false to call him a pedophile does not belong in this Court.
Even if the question was before this court, there is a strong case that the claim is true. For instance, Mr.
Kimberlin has confessed in at least one forum that he is a pedophile, at least in orientation. In his career
as a rock and roll singer, Mr. Kimberlin has written two songs about having sex with underage girls and
even declared in an interview that he desired to do so. See Exhibit A. Apparently the truth is Mr.
Kimberlin doesn't mind people thinking he has this orientation, as long as you don't say it is a bad thing.
Mr. Kimberlin is not likely to win on the merits. Even if the facts were on his side, the law is not. As
the Supreme Court warned in Carroll v. Princess Anne, "prior restraints of expression come[] to this
Court bearing a heavy presumption against its constitutional validity." 393 U.S. 175, 181 (1968)
(internal quotation marks and citations omitted). Further, the Supreme Court has specifically said the
desire to prevent defamatory accusations and vigilante violence was not sufficient to justifY a prior
restraint.! Near v. Minnesota ex reI. Olson, 283 U.S. 697,722 (1931). As the Near court declared:
There is nothing new in the fact that charges of reprehensible conduct may create
resentment and the disposition to resort to violent means of redress, but this well-
understood tendency did not alter the determination to protect the press against
censorship and restraint upon publication.
Id. This Request is therefore frivolous,2 it is a waste of time, and it should he denied.
Respectfully,
/bdt;!lik
Aaron J. Walker, Esq.
7537 Remington Road
Manassas, Virginia 20I09
(703) 216-0455
AaronJWI972@gmail.com
! Mr. Kimberlin's claim that any Defendant has targeted or "bullied" his family is false and, since they
are not a party to this case, irrelevant.
2 Mr. Kimberlin's frivolous claim that publication on the internet violates this court's Case Management
Order (ECF No. 97), is disposed of in my letter responding to his request for a hearing for contempt
(ECF No. 167), filed simultaneously with this letter.
--------_._-_.- ~,~_._-----"-,----- _. __.. _----------------------
Case 8:l3-cv-03059-GJH Document l70 Filed 07/28/l4 Page 2 of 8
EXHIBIT A:
MUSIC REVIEW INCLUDING INTERVIEW WITH
BRETT KIMBERLIN
Case 8:l3-cv-03059-GJH Document l70 Filed 07/28/l4 Page 3 of 8
7/27/2014 Jailbird Rock. Washington City Paper
Arts & Entertainment: Music Review
By Jason Vest. February 23,1996
To knock on any door along the street would not be an exercise in courage. It's a
typical street in a sedate Maryland neighborhood, lined with spacious single-family
houses, lawns, driveways-the happy suburban domain of those on the middle/upper-
middle-class borderline.
But amid the uniformity of painted shutters and shoveled walks, there's an
ostentatious and perhaps slightly sinister anomaly. While most of the other houses
have VWs, Toyotas, or Nissans parked out front, one driveway boasts three new
Mercedes. Two are low, black, sleek; the third one's an arresting shade of red. While
not unheard of in this neighborhood, they seem a bit out of place.
But then, so does their owner. In fact, given his history, his presence in this area, let
alone this neighborhood, seems bizarre. The irony is not lost on him. "When I got
thrown in solitary back in 1988, all my friends in prison were joking that while Dan
Quayle got to go to the White House, I got to go to the shithouse," he chuckles. "Now
I'm here in Washington, and he's back in the shithouse-Indiana."
His given name is Brett Kimberlin. But political junkies (and devoted readers of
Doonesbury) are probably more likely to remember him as The Guy Who Used To
Sell Dan Quayle Pot (and who became a cause ceU~brewhen the U.S. Bureau of
Prisons wouldn't let him talk about his dealings with Quayle-and Quayle's DEA file).
Something of a business prodigy, Kimberlin, at age 16 in 1970, opened a hugely
successful Indianapolis health food store-so successful, in fact, that six years later a
city merchants' association named him businessman of the year. Ironically,
Kimberlin wouldn't be able to stay for the whole awards ceremony, owing to another
business commitment: His beeper alerted him to the fact that an H,oDo-pound
shipment of marijuana-smuggled on a U.S. Navy airstrip, no less-had just arrived.
(A licensed pilot since 16, Kimberlin came up with the idea.) Being a store owner,
many later discovered, was just one of Kimberlin's talents.
In fact, there seemed to be no end of facets to his personality. Sent to prison in 1979
on drug trafficking and explosives charges, Kimberlin quickly enrolled as a law major
in a State University of New York correspondence program. He took his bachelor's
degree, got certified as a paralegal, and became an effective jailhouse lawyer. He
started working out; within a few years, he was a nationally ranked weight lifter in
the 144-pound class. A practitioner of yoga since the mid-'7os, he became a sort of
spiritual mentor to fellow prisoners, selling many on the virtues of vegetarianism. And
when he got out of prison in late 1992, he quickly re-established himself in the
multimillion-dollar import-export business-but this time, moving legitimate
commodities.
But now, as Kimberlin prepares to mark his third year as a Washington-area resident,
yet another persona is emerging: Brett Kimberlin, alternative rocker.
"While I was in prison, I did everything I could to keep my head outside the walls,"
explains Kimberlin, a short, wiry guy who looks and sounds a bit like comedian David
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Case 8:l3-cv-03059-GJH Document l70 Filed 07/28/l4 Page 4 of 8
712712014 Jailbird Rock- Washington City Paper
Spade. "Writing songs was part of that. And when I got out, I just had a lot of rage, a
lot of feelings I needed to get out. I'd seen a lot, and felt I had a lot to say. This was
my way of saying it."
Titled Escape From Hell, Kimberlin's debut album-released under the name of his
band, Payback-won't be out for at least a few months. Kimberlin describes its
musical ethos as "alternative-pJ Harvey with a dick," The album can indeed be fairly
characterized as alternative, as there's very little else out there that sounds remotely
like it. Ai; produced by Paul Mahern, who has worked with perrormers ranging from
Iggy Pop to the Judybats, almost all the songs on the album-which range from
lecherous ramblings of dubious taste to intricately arranged paeans to the human
spirit and dead relatives-have a distinctive sound. The anti-conservative, anti-PC,
and plain anti-authoritarian numbers share dark and edgy settings.
"I would say the songs are raw, heavy, and somewhat frightening-pretty much what
you would expect from someone who spent many years in prison," says Mahern.
"When I heard his four-track demos, they just seemed genuine. A lot of younger
musicians focus on what people are expecting, or perfecting one recognizable sound. I
think Brett just wants to write what he wants, and I really liked that. This is not a
record made by someone with an eye toward a marketing strategy."
There are a few radio-friendly tracks on the album: "Crash and Burn," a Randy
Newmanesque portrait of a brother's self-destructive impulses, should prove
accessible to just about anyone, while songs like "Life's a Bitch," "Sowing the Seeds of
Revolution," and "Rock and Roll World" could appeal to WHFS or DC-lOllisteners.
While Kimberlin says some degree of commercial success would be nice, he insists
that it's not his intent to try to use an album to cash in on his notoriety. "I think that
would be a normal reaction, because so many people try to jump on the Is-minute
bandwagon, do the John Bobbitt kind of thing," he says. "If people want to view this
that way, it's their choice. But they're missing out on something important."
From the cynic's point of view, it's easy to dismiss the above as the PR of a wannabe
rock star using a "fuck you if you don't like it" approach to provoke the skeptical into
buying his album. It's true, however, that he's not doing it for the money; because of
an odd set of circumstances, Kimberlin's doing quite well in the financial realm.
While in prison, Kimberlin made the acquaintance of a fellow prisoner who needed
help getting family members out of the Soviet Union; Kimberlin, the jailhouse lawyer,
read up on immigration law, and did their asylum applications. Over the years, he
handled numerous asylum cases for Russian Jews, including relatives of one Valentin
Kariman. After the U.S.S.R.'s collapse, Kariman became a high-ranking government
official in Ukraine. To show his gratitude, Kariman brokered a few deals between
Kimberlin and Ukraine; now, Kimberlin is exporting lube oil and tires to the former
Soviet republic. "That's how I got the Mercedes out front," he says.
So if it's not the money, why, then? To be sure, his com~ents about using music to
vent post-incarceration feelings of lust, rage, and contempt are valid. But those
feelings are also rooted in a subversive desire and laced with a healthy dose of
arrogance.
He sees himself, he says, as "one who speaks the truth the way ,John Lennon did."
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Case 8:l3-cv-03059-GJH Document l70 Filed 07/28/l4 Page 5 of 8
71'Z1f2D14 Janblrd Rock- WasllIngtal CityPaper
"It's like what Lennon felt when he wrote 'Revolution'-he said this is about
something; this is important," he says, then sighs. "I feel really sad for kids today,
because they don\ have any reel mdical role models like we did" Another sigh.
"Hootie and the Blowjohs? It's enough to make you puke. And all these other bands
whining .... If you wanna be brought down, be brought down, you worthless piece of
shit! What I sing about on tracks like 'Soldier of Fortune' and 'Sowing the Seeds of
Revolution' is how I'm gonns figh~and make it. I went to prison, and goddamn it
I'm not gonna let them take me downl"
NOtalIthe songs~ ~-which Mahern ~~~~-",~~any pf?duCed
~"Pretty m~~ B~"-have politi£81 ove~~ w~~~respects~yJ>e
)mfortunate: While tracks like "'I..ife's a Bit~(~o~~Q~ment ~nitCh)1I and ~,
,~~~m~iiI sex crime a~sa~on~)_h!ve__ ~_~~~~_~em}
&thers, like "Waiting to Meet" and -reen Dream" (both about having sex with teenage
~---_. ---- -- - ~- ----~ -- --~--~-~.- .
girlS)ii'eIickiIig in subtlety and tend to make one squino. But this is exactly what
,Kiriiberlin wants!
~y ~~s..!l~~e:areafr8i(\ to say. Yeab, "I'een Dream' is about fUcking~
1~-"g •. girl,E\>ery guy \\OI1o'sseen a good'looking_~g~girlli8s_thoiiilliI~
"IIl~. about th,at lecherous quality~thatevery man-;tliough llewon't act on it;
hBS.j
It's his fondest hope that consenrative presidential candidates will hear the album and
publicly condemn it. since some of the lyrics were written with them in mind ("You're
always hying to tell me not to toke/y ou're always trying to tell me what to
fear/you're always trying to tell me when to smok.e/You're always trying to tell me
what to hear"). Of course, this isn\ an album Tipper Gore will1ike, either, and if the
president hears the album's last track ("Hillary," which includes the lyric "I'd love to
tell you that you make me hot/I'd love a taste of what you've got"), he, too, might be
inclined to favor record labeling.
But on one level, what his critics think of Kimberlin's album really doesn't matter.
While everyone's life could be a book (Kimberlin's life, in fact, will become a book
later this year; New Yorker writer Mark Singer has expanded his article into a
biography), few have as many twists, turns, and bi7.arreplot developments 8S
Kimberlin's, Few have also been as unexpectedly fulfilling. While many of us might
reflect a bit wistfully on how, as children, we wanted to be a multitude of things when
we grew up, few of us have actually seen it happen-especially on our own tenns.
In fIve years'time, the album cut bYBrett Kimberlin could be remembered with
anything from admiration to disdain. But for a guy whose life has been a series of
shifting personas, what will matter for him is that he got a little press, rankled a few
people, moved on, and was able to add yet another identity-"'rnusician" at least, "rock
icon" at best-to his shadowy repertoire.
But, he acknowledges, one thing will forever elude him. "Whatever I do," he says,
wryly grinning, "'111probably never get my own exhibit in the Dan Quayle Museum."
CP
OUR READERS SAY
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Case 8:l3-cv-03059-GJH Document l70 Filed 07/28/l4 Page 6 of 8
~ CERT~CATEOFSER~CE
I certify that on the)a~day of July, 2014, I served copies of this document on the following parties
via U. S. Mail or email as noted:
Brett Kimberlin at 8100 Beech Tree Road, Bethesda, Maryland 20817
Michael Smith, Esq., for Michelle Malkin and Twitchy at smith@Smithpllc.com
Mark Bailen, Esq., for Erick Erickson, Redstate, Simon & Schuster, Glen Beck, Mercury Radio
Arts, The Blaze, and James O'Keefe at mbailen@bakerlaw.com
Lee Stranahan at stranahan@gmail.com
Mandy Nagy at libertvchickblog@gmail.com
Breitbart.com at Loconnor@breitbart.com and Larry@breitbart.com
National Bloggers Club and Ali Akbar at ali@blogbash.com
Ace of Spades at aceofspadeshg@gmail.com
Ron Coleman, Esq. for Patrick Frey at rcoleman@goetzfitz.com.
DB Capitol Strategies at DBacker@DBCapitoIStrategies.com
Linda Mericle and Justin Cameron, attorneys for The Franklin Center at
linda.mericle@verizon.net and jcameron@Jsmpa.com
Robert Stacy McCain at LS.mccain@att.net
Lynn Thomas at lmalone.thomas.legal@gmail.com
William Hoge III at himself@hogewash.com
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Case 8:l3-cv-03059-GJH Document l70 Filed 07/28/l4 Page 7 of 8
. "
PLEASE NOTE:
It is my understanding that a letter requesting permission to file for a preliminary
injunction (no ECF number is available) was filed under at least a tentative seal. I
have filed an objection to sealing that document. However, in order to respect the
fact that this Court has not ruled on whether sealing that document is proper, I
believe it is appropriate for my response to be tentatively sealed until the Court can
rule on the propriety of the Plaintiffs request to seal.
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Case 8:l3-cv-03059-GJH Document l70 Filed 07/28/l4 Page 8 of 8

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