Brett Kimberlin is an Admitted Pedophile

With a title like that, you
know you are going to
need popcorn!

Update: See the end for an interesting update.

This is of course a takeoff on three prior posts I did.  One was called Brett Kimberlin is a Pedophile.  In it, I provided evidence that he was in fact a pedophile, and stated my opinion that I was convinced by the evidence.  I remain convinced, for what that is worth.  The second is called Brett Kimberlin is an Adjudicated Pedophile in which I reported that Brett had sued me for defamation for calling him a pedophile, and he lost on the issue of truth.  And the third is called A Legal Note: Brett Kimberlin is an Adjudicated Pedophile the Same Way the Amityville Horror House is Haunted, in which I explained that under the rules of estoppel he can no longer deny that he is a pedophile.  And now, through his latest filing in the state case, Brett has become an admitted pedophile.

Allow me to explain.  And yes, it will be totally Popcorn-Worthy!™

So about two weeks ago, Brett Kimberlin filed a motion for a new trial in the same defamation action he just lost.  This was posted over at John Hoge’s site, and you can read the motion itself below the fold:

   M4NewTrial

But looking over the thing, I noticed something well... funny.  An error, though I suspect it's of the Kinsley gaffe vareity: accidentally telling the truth.  I knew I couldn’t reveal it until my attorney, Patrick Ostronic, filed his response, in case he wanted to use the idea (he didn’t end up using it, focusing primarily on technicalities), but I let out hints about it on Twitter.  Really vague stuff like that Brett screwed up.  And, yes, I drove some good people crazy wondering what I saw.  My mother even called and tried to guess, although she is disqualified from John’s contest.  In fact, last I heard no one had guessed, although I suggested to John he remind his readers and tell them to get a move on, if they are going to guess.

You see, one of the silliest complaints in his motion for a new trial is that the judge didn’t consider other causes of action that he didn’t raise, on the court’s own initiative.  Indeed he wanted the judge to consider claims that were not reasonably raised by the facts, as though it is the judge’s job to play lawyer for him.  You see, there are four causes of action grouped under the umbrella of “privacy:” unreasonable intrusion upon the seclusion of another, appropriation of the other's name or likeness, unreasonable publicity given to private facts, and publicity which unreasonably places the other in a false light before the public.  Brett had only asserted that we have violated the fourth one at trial and he thought it was somehow the judge’s job to think of other causes of action to apply even though we had no notice we had to defend against them.

Now, of course, the first two clearly didn’t fit the facts.  And in the name of openness, feel free to read over the transcript, here.  Intrusion on seclusion is typically about actual surveillance such as bugging a person’s house, hiding in their closet, hidden cameras placed in a hotel room.  It doesn’t always involve a trespass, but it always involves behavior similar in terms of creepiness, which we didn’t do.  By comparison the case law has made it clear that talking to a person’s wife and getting her to tell you about how allegedly seduced her when she was fourteen years old doesn’t count.  Asking people questions is not considered an intrusion, because if they don’t want to answer, they can simply decline.  Seriously, do you think the law would create a cause of action every time two or more people dish about their respective sex lives?

Meanwhile, appropriation of likeness deals with something more like this.  Imagine if Wheaties took a picture of an athlete and put it on its cereal boxes, without that person’s permission?  Well, then that would meet the elements of the tort.  It has to be about commercial use, and most critically, it has to be trying to associate oneself with the person’s good name.  It doesn’t apply to news articles, period—even if it does theoretically sell advertisements—and it certainly doesn’t apply to negative articles.  So no, this doesn’t count:

He was very upset that he couldn't have slumber parties at his house anymore.

And the fourth cause of action straight up lost at trial.  So there’s no need to talk about that.

But what about the third?  The publication of private facts?

Well, it doesn’t apply applying to this case.  First, court records are public documents, period.  You can’t have a document put before the public and complain that someone else is giving publicity to it.  So anything arising from us publishing court documents is simply a no-go.  If it was sealed from the get-go, that might be another thing, but not if it is filed in public.

Further, the crux of his complaint is that we publicized our belief that he is a pedophile.  In each of these causes of action, there has to be a reasonable expectation of privacy—something I have mentioned before.  And “reasonable” is a key term, there.  Often it has a practical component, such as whether you were in private or in public when whatever it is happened.  That is a serious problem for much of the facts we alleged (and which he is estopped from denying).  For instance, his wife claimed that they met on a beach when she was fourteen years old and he was in his forties.  A beach is a public place for the purposes of privacy law (this is true even if it is a private beach for trespassing purposes—basically for an event to be private under the law, it basically has to be indoors).  So if you have sex with someone in your backyard in a hot tub, that is not a private act.

And privacy never applies to one’s age.  To quote from Roe v. Heap (2004):

There is no liability [for the publicity type of invasion of privacy] when the defendant merely gives further publicity to information about the plaintiff that is already public. Thus there is no liability for giving publicity to facts about the plaintiff's life that are matters of public record, such as the date of his birth, the fact of his marriage, his military record, the fact that he is admitted to the practice of medicine or is licensed to drive a taxicab, or the pleadings that he has filed in a lawsuit.

It might be impolite, typically, to ask a person their age, but it is not illegal to look at the date of an event, look at your birthday, and determine from both facts what your age was at the time of the event.  In short, your age is not a private fact.  Nor is the act of traveling to the U.S. a private fact, or getting married, and all one needs is the dates for both and you can deduce the age of each person when they did that.

Nor would the fact they were engaged in sex be a private act.  This is true, even if the allegations related to his sex life didn't fall into the exemption for public records (because they were contained in filings by his own wife).  Now, normally, sex is a private act.  Provided you are inside with the curtains drawn and all that, the fact a person might or might not have had sex on a certain date is typically private.  Even facts about your sexual habits are typically private.  When Bill Murray talks about a woman “who makes noises like a chipmunk when she is really excited” in Groundhog Day, the woman in question objects, but she might have also had a cause of action against him if he said that on television.  But, the problem is that the sex alleged here was criminal, and there is no reasonable expectation of privacy when it comes to criminal conduct.  For instance, in Uranga v. Federated Publications, Inc. (2003), the court found that an article did not publish private facts because the facts “involved a matter of paramount public import: the commission, and investigation, of a violent crime which had been reported to authorities.”

So legally, the cause of action is a non-starter, but that’s not the really funny gaffe that was the subject of John’s contest, though you might have guessed what it is by now through this discussion.

Look, if I write in a legal brief, “John Doe defamed me by stating X” I am alleging the following: that the person 1) published a 2) false statement that 3) harmed my reputation and therefore 4) caused me 5) damage.  This might not all be true, but it is what you are claiming happened, and can be an admission against interest.  That is, you are claiming it happened, and (as appropriate) admitting that that had happened.

So he is claiming that we engaged in “unreasonable publicity given to private facts.”  The tort has a number of different ways it is stated.  The Uranga court called it “Invasion of Privacy by Publication of Private Facts.”  And in another case, Doe v. U.S. (2000), the court calls it “invasion of privacy by publication of private facts.”  There are other variations.  But whatever you call it, the elements are the same.  From Doe:

a plaintiff must allege a) that the publicized information contains highly intimate or embarrassing facts about a person's private affairs; b) that such information was communicated to the public at large; and c) that the information is not of legitimate concern to the public

(Emphasis removed.)  And, further, you have to allege that it d) caused e) damage.  So he is alleging (and admitting) that each and every one of those elements occurred.

So he is claiming that by publishing information related to his alleged pedophilia—my opinion that he is a pedophile, allegations that he seduced his wife when she only fourteen years old, that he allegedly flew back and forth from America to the Ukraine to continue that sexual relationship, that he flew her back to the U.S. when she was only fifteen years old in order to have sex with her, that while in Maryland they did have sex over fifty times, that once she walked in on him attempting to seduce her then-twelve-year-old cousin, and that nine days after her sixteenth birthday they married—amounted to “highly intimate or embarrassing facts.”

In other words, he is alleging that all of these things are true.

The court in Roe states the obvious, pretty well: “A ‘fact’ is a proposition which correctly describes a state of affairs in the world. To say that something is a ‘fact’ is necessarily to say that it is true.”

So if he is saying that all the allegations that he is a pedophile and has engaged in underage sex is a “fact” he is admitting that it is true.  As the Roe court noted, no claim for unreasonable publicity of private facts will lie for a false statement, so the fact he alleged this cause of action means he is implicitly admitting that all of our allegations related to pedophilia are true.

So, it is no longer merely my opinion that he is a pedophile, nor is it just a subject of estoppel.  Now he has actually admitted it, and as long as that motion is in the docket, he cannot deny it, in Montgomery County Circuit court, or any other court.  After all, the courts do not allow you to talk out of both sides of your mouth.

Which, when you think about it, is pretty freaking hilarious.  In attempting to punish people for expressing the opinion that he is a pedophile he has just made a judicial admission—a Kinsley gaffe, in my opinion—that he is one.

So say it loud and proud: Brett Kimberlin is an admitted pedophile.

Update: One friend pointed out that Brett kind of already admitted it, here, when talking about his music, and in particular two songs about having sex with teenagers:

“I say things a lot of people are afraid to say. Yeah, ‘Teen Dream’ is about f*cking a teenage girl. Every guy who’s seen a good-looking teenage girl has thought about it. I’m talking about that lecherous quality that every man, though he won’t act on it, has.”

(Curse word censored.)  While that certainly has him admitting to the mere desire to make love to a teenage girl, his filing also implicitly admits to pretty much everything his wife accused him of doing, which goes a step further than what the interview says.

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My wife and I have lost our jobs due to the harassment of convicted terrorist (and adjudicated pedophile) Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the donation link on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.