BRETT KIMBERLIN, * INTHE Plaintiff, = CIRCUIT COURT v. * FOR NATIONAL BLOGGERS CLUB, etal, * MONTGOMERY COUNTY Defendants. * CASE NO.: 403868V ‘Track 3 — Judge Michael D. Mason * SERRA EER EERE ERE ENSURE LESSEE EERE EERE EEE ER ERR ESHER EHH EREE ET HEE EE REPLY MEMORANDUM IN SUPPORT OF MOTION OF DEFENDANTS 1LLE MALKIN AND TWITCHY TO DISMISS THE INT Kimberlin ignores many arguments Mrs, Malkin and Twitchy raise in favor of general collective allegations against all defendants. Thus, in one paragraph alone he uses “they” or “their” 16 times to describe all defendants’ supposed wrongdoing. Response, 2. He attaches un- authenticated, hearsay documents where the motion is based solely on his pleading. And he misrepresents the federal court’s rulings: Judge Hazel did not find that defendant Frey “used his official position as a state prosecutor to try to frame Plaintiff for a crime he had nothing to do with,” Response, p. 27. To the contrary, after dismissing with prejudice nearly all of Kimberlin’s federal claims, the federal court held simply that the § 1983 claim against Frey met the minimal standard to survive dismissal under Fed. R. Civ. P. 12(6)(6). Where Kimberlin does address these defendants’ arguments, he fails to overcome them. REPLY ARGUMENT 1. _ Nothing in the Response establishes a claim against Mrs. Malkin or Twitchy. Ignoring that this Court cannot credit “conclusory charges that are not factual allegations,” Morris v. Osmose Wood Preserving, 340 Md. 519, 531, 667 A.2d 624 (1995), or “bald assertions and conclusory statements,” RRC Northeast, Inc. v. BAA Maryland, Inc., 413 Md. 638, 644, 994 ‘A.2d 430 (2010), Kimberlin’s Response wallows in them. Nothing in it add fo: Bieddids =Dallegations in any permissible way and none of his new assertions should be considered — least of all his unauthenticated, hearsay “exhibits,” which would be inadmissible even if their proponent ‘were not a convicted perjurer. Paul V. Niemeyer, Linda M. Schuett & Joyce E. Smithey, Maryland Rules Commentary Rule 2-322, at 269 (4 ed. 2014) (if exhibits are attached to motion to dismiss, “{a]ll requirements of Rule 2-501, including affidavit requirements must then be met”). Kimberlin’s “affidavit,” Ex 6 to the Response, has too many flaws to catalog, but C.J.P. Art. § 9- 104 negates it entirely: Perjurers may not testify A. Kimberlin fails to salvage his false-light claim. The Response’s discussion of the false-light claim, pp. 14-15, 16, does nothing to salvage it. Kimberlin’s vague charges that “Defendants repeatedly published false statements that [he] was involved with swattings,” Response, pg. 16, 29, are the very type of “bald assertions and conclusory statements” that RRC Northeast, Inc. compels be disregarded. 413 Md. at 644. He also cites no actual statement to that effect by either Mrs. Malkin or Twitchy. 1. Kimberlin does not identify how Mrs. Malkin or Twitehy placed him before the public in a false light, Kimberlin fails to identify a specific statement by Mrs. Malkin or Twitchy that meets the applicable definition of “false,” i.e. “not substantially correct.” Piscatelli v. Van Smith, 424 Md. 294, 306, 35 A.3d 1140 (2012) (citations and quotations omitted). Nor does he explain his doctoring of the comment he attributes to Mrs. Malkin, or offer this Court an apology. See Memorandum, pp. 3-4, 6. Instead he comes back with another falsehood, asserting that Mrs. Malkin and Twitchy “state that they have only made a few defamatory references about Plaintiff and swattings....” Response, pg. 164.28. Mrs. Malkin and Twitchy never have conceded a single comment as defamatory. The discussion at pp. 6-7 of their Memorandum — including its recitationof the courts around the country that have said far worse things about Kimberlin simply by accurately recounting his record ~ stands unrebutted. 2. No statement by either defendant would be “highly offensive to a reasonable person.” Kimberlin also identifies no statement of either Mrs. Malkin or Twitchy that would be “highly offensive to a reasonable person” as required by Restatement (2d) Torts, § 652E. Nowhere does he say where either Mrs. Malkin or Twitchy made “such a major misrepresentation of his character, history, activities, or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position.” /d, Comment c. His false-light claim against them fails. 3. The fair-comment privilege applies. Likewise, Kimberlin describes no statement by Mrs. Malkin or Twitchy that falls outside the fair-comment privilege as Piscatelli defines it. His sole attempted rebuttal, Response, pg. 20, 1.37, consists of simply “bald assertions and conclusory statements,” RRC Northeast, Inc., 413 Ma. at 644. ‘These defendants were well within the bounds of the privilege to comment on a) the State Department’s contract with a Kimberlin-run nonprofit, and b) the coincidental SWATting of + To the extent Kimberlin complains about publicity given to his lengthy felony record, he has no expectation of privacy in that. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 494-495, 95 S. Ct. 1029, 43 L. Ed, 2d 328 (1975) (“...the prevailing law of invasion of privacy generally recognizes that the interests in privacy fade when the information involved already appears on the public record....”); Doe v. Dep't of Pub. Safety & Corr. Servs., 185 Md. App. 625, 646, 971 A.2d 975 (2009) (individual’s criminal record “is part of the public domain, and is largely created and held by the judicial system itself”); G.D. v. Kenny, 205 N.J. 275, 309-311, 15 A.3d 300 (2011) (citing cases) (public comment even on an expunged conviction cannot meet the “highly offensive toa reasonable person” standard needed to establish a false-light claim; plaintiff's conviction “was not a hidden secret; the expungement did not expurgate his past”); Nilson v. Layton City, 45 F.3d 369, 372 (10% Cir. 1995) (“Criminal activity is...not protected by the right to privacy”); Eagle v. ‘Morgan, 8 F.3d 620, 625-626 (8" Cir. 1996) “[fJar from being ‘inherently private,’ the details of [plaintiff's] prior guilty plea are by their very nature matters within the public domain. ...we decide ‘without hesitation that [plaintiff] has no legitimate expectation of privacy in this material”), citing Cox Broadcasting Corp., 420 U.S. at 494-495.three of his critics. Even if these defendants had invaded Kimberlin’s privacy, which they did not, their reporting with regard to him is privileged. See Restatement (Second) Torts, § 652G (fair- report and other privileges that apply to defamation claims, also apply to false-light claims). B. _Kimberlin concedes his claim for interference with economic advantage. In addition to their defenses under the federal and state constitutions, the fair-comment privilege, and the Communications Decency Act, Mrs. Malkin and Twitchy raise three arguments based on this tort’s elements and Kimberlin’s failure to plead them. Memorandum, pp. 9-10. His Response discusses none of them. A party who does not brief a relevant legal issue has conceded it through his silence. Hennessy v. State, 37 Md. App. 559, 561, 378 A.2d 205, 206 (1977); Lumber Terminals, Inc. v. Nowakowski, 36 Md. App. 82, 96, 373 A.2d 282, 291 (1977) (party who briefed only tax treatment of pre-trial lost wages concedes issue of future wages). Kimberlin has conceded his Fifth Claim against these defendants, and dismissal is warranted. C. The emotional-distress count also fails against Mrs. Malkin and Twitehy. Kimberlin offers only rambling allegations that unspecified “defendants” engaged in various outrages against him. Response, pp. 25-28. But he fails to tie Mrs. Malkin or Twitchy to any specific act, nor does he respond to their arguments that a) his own actions render him unable to meet the standard of Batson v. Shiflett, 325 Md. 684, 602 A.2d 1191, 1216 (Md. 1992), and b) he has failed to plead any causal connection between anything they did, and harm to him. Memorandum, pg. 11 & nn. 4 & 5. This claim as to Mrs. Malkin and Twitchy should be dismissed. D. _ Kimberlin concedes his civil-conspiracy and punitive-damage claims. Kimberlin offers no response to the Memorandum’s discussions at pp. 11-12 regarding civil conspiracy and punitive damages. Both claims should be dismissed. Hennessy, 37 Md. App. at 561, 378 A.2d at 206; Lumber Terminals, Inc., 36 Md. App. at 96, 373 A.2d at 291.IL _ Kimberlin must allege actual malice to overcome defendants’ constitutional defenses, but does not. Kimberlin essentially admits failing to plead actual malice, and relies instead on his position that he need not because he is not a public figure. Response, pp. 17-20, ${[31-36. But his ‘own pleading allegations establish him as a public figure. Thus, even if he stated a claim against Mrs. Malkin or Twitchy (which he does not), he cannot overcome the protections afforded them by the First Amendment and the Declaration of Rights. Memorandum, pp. 8, 12-14. By Kimberlin’s own account, the dispute underlying his false-light claim against Mrs. Malkin and Twitchy originated with them publicly asking in May 2012, “Why is the State Department Partnering with Speedway Bomber Brett Kimberlin?” Complaint, pp. 44-46, $9 125- 127, citing, inter alia, hitp://twitchy.com/2012/05/25/state-department-partnering-with-political- terrorist-and-bomber-brett-kimberlin/. Kimberlin at that point plainly was a public figure many times over. He was a general-purpose public figure by virtue of his lengthy felony record; his self- injection into the 1988 Presidential race via 11-hour falsehoods about having sold marijuana to one of the candidates, his published biography, etc. See Lewis v. Coursolle Broadcasting of Wis., Inc., 127 Wis, 24 105, 377 N.W.2d 166 (1985) (lawmaker who left office upon perjury conviction and participated in several bizarre schemes, including plot to blow up O*Hare control tower with laser, remained a public figure for purposes of broadcast that mistook him for Tylenol extortionist of same name; plaintiff “achieved the notoriety which the United States Supreme Court has declared makes an individual a ‘public figure for all purposes”); Rosanova v. Playboy Enters., Inc., 411 F. Supp. 440, 445 (D. Ga. 1976) (executive director of hotel owned by Teamsters’ pension fund was public figure by virtue of his ties to organized-crime figures, since he “voluntarily engaged in a course that was bound to invite attention and comment”).But beyond his past record, Kimberlin’s status as head of a nonprofit that contracted with the State Department to educate “activists” in Libya, Saudi Arabia, Yemen, Kazakhstan, and elsewhere, Complaint, {| 126, and who “works with whistleblowers to expose wrongdoing by corporations, government officials and bigots,” Response, pg. 19, {| 36, certainly makes him a public figure for purposes of comment on it. Metge v. Central Neighborhood Improvement Ass'n, 649 N.W.2d 488 (Minn. Ct. App. 2002) (executive director of nonprofit was public figure for purpose of controversies relating to it); Gleichenhaus v. Carlyle, 3 Kan. App. 2d 146, 591 P.2d 635, rev'd on other grounds, 226 Kan. 167, 597 P.2d 611 (1979) (the nature and extent of plaintiff's participation in political activities and the subsequent receipt of a public contract made him a public figure for purposes of dispute); Parsi v. Daioleslam, 595 F. Supp. 2d 99, 103 (D.D.C. 2009) (president of a nonprofit “dedicated to promoting Iranian American involvement in ‘American civil life” was a public figure); Chapin v, Knight-Ridder, Inc., 993 F.2d 1087, 1092 n.4 (4 Cir, 1993) (complaint extolling nationwide charitable activities of nonprofit of whom plaintiff ‘was President itself established him as a public figure), citing National Foundation for Cancer Research, Inc. v. Council of Better Business Bureaus, Inc., 705 F.2d 98, 101 (4" Cir. 1983) (charity that “thrusts itself into the public eye” through “massive solicitation efforts” is a public figure). ‘Thus, completely separate from Kimberlin’s lengthy felony record, his present activities make him ‘a public figure for purposes of comment on them. Mrs. Malkin and Twitchy were constitutionally protected in publicly asking the question: Why is the United States government contracting with this person for any reason, much less to “train” foreign “activists”? As Judge Sack’s treatise explains, Reporters routinely and necessarily ask questions in order to obtain information, and the mere asking of a question may cast a shadow on the reputation of a person about whom the question is asked, But a genuine effort to obtain informationcannot be defamatory. A contrary rule would render legitimate reporting impossible. 1 Robert D. Sack, Sack on Defamation § 2:4.8 (4" ed. 2010). Oras the D.C. Circuit recently put it, “{q]uestions can be posed to explore, to inquire, to prompt further inquiry, to frame discussion, to initiate analysis, and the like. But questions are questions.” Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328 (D.C. Cir. 2015), quoting Sack § 2:4.8. Likewise, when various individuals are SWATted after criticizing Kimberlin, that coincidence of timing also was fair material for public comment — especially since Kimberlin can identify no statement by either of these defendants that actually accuses him of having a role in the SWATtings. (His vexatious litigation conduct, the actual subject of the posting he doctors for this Court, also was properly the topic of comment). Kimberlin cannot have it both ways. He has made a career of thrusting himself into the vortices of public controversies, starting with his bombing campaign, through his jailhouse attempt to elect President Dukakis, and continuing to today, when his self-described business endeavors involve whistleblowing and sharing his organizing and musical abilities with the world via State Department contract. Complaint, $f] 122, 126. Certainly, for purposes of the public commentary on that contract, and the subsequent SWATtings of three critics, he is a public figure. Chesapeake Publ. Corp. v. Williams, 339 Md. 285, 293 n.1, 661 A.2d 1169, 1173 n.1 (1995) (father who initiated letter-writing campaign over custody case was a public figure due to “purposeful activity on his part amounting to a thrusting of his personality into the vortex of a public controversy”). Kimberlin’s failure to plead actual malice requires dismissal of the false-light claim. Ill. The Complaint is barred by Maryland’s anti-SLAPP statute. Kimberlin’s short discussion, Response, pg. 19, #9 34-36, in no way undercuts defendants? detailed analysis of the anti-SLAPP Act and application of its clear terms to the Complaint. Memorandum, pp. 14-16. His action is a SLAPP, and should be dismissed.Iv. tions Decency Act immunizes defendants from liability for others’ ‘Tweets and website comments. Kimberlin’s Response disregards that defendants’ argument under the Communications Decency Act, far from “frivolous,” forecloses his attempt to impose liability for “things like an anonymous poster’s remark that he ‘needs to wake up with a horse’s head in his bed,’ and Twitchy’s ‘compil{ing}’ of Tweets accusing him of SWATting.” Memorandum, pg. 18, citing Complaint, {¥{ 85, 97. “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Id, pg. 16, citing Zeran v. AOL, Inc., 129 F.3d 327, 330 (4th Cir. 1997) and 47 U.S.C. § 230(c)(1) (emphasis added). The CDA immunizes defendants from others’ Tweets and posted comments. To the extent Kimberlin’s newly offered “Exhibit 7” tries to expand his claim by adding more articles authored by Mrs. Malkin or Twitchy staff, itis inadmissible as 1) beyond the scope of his Complaint allegations, 2) hearsay, and 3) an unauthenticated document whose origin is unknown, and about which Kimberlin cannot testify. Maryland Rules Commentary Rule 2-322, at 269; C.LP. Art. § 9-104)? V. Kimberlin fails to carry his burden of establishing personal jurisdiction. Nothing in Kimberlin’s Response, pp. 20-23, meets his burden of establishing Maryland jurisdiction over Mrs. Malkin or Twitchy. Calder v. Jones, 465 U.S. 783, 789-790 (1984), is factually inapposite by Kimberlin’s own description: the conduct there was “expressly aimed” at plaintiff's home state, California. In contrast, Kimberlin does not and cannot allege that either 2 To the extent Kimberlin tries to impose on Mrs. Malkin liability for posted Tweets due to Twitchy’s former status as “her...blog site” [sic], Response, pg. 24, that, too, fails under the CDA. Ascentive, LLC v. Opinion Corp., 842 F. Supp. 2d 450, 474 (E.D.N.Y. 2011) (officers of website that is an “interactive computer service” under CDA are immunized as “providers” of an interactive computer service under § 230(c)) (citing cases). 8Mrs. Malkin or Twitchy acted “with the manifest intent of targeting Maryland readers.” ‘Memorandum, pp. 18-20 (citing cases). Nor can Kimberlin use the conspiracy theory of personal jurisdiction of Mackey v. Compass Mitg,, Inc.,391 Md. 117, 128, 892 A.2d 479, 485 (2006). In Strudwick v. Whitney, 2009 MDBT 8, 2009 Md. Cir. Ct. LEXIS 7 (Montgomery Cir. Ct. 2009), cited in the Memorandum, pg. 19, Judge Cannon relied on Mackey in holding that plaintiff could not establish Maryland jurisdiction over defendants for purposes of a false-light claim: To plead successfully facts supporting application of the conspiracy theory of jurisdiction a plaintiff must allege both an actionable conspiracy and a substantial act in furtherance of the conspiracy performed in the forum state. [Strudwick, 2009 Md. Cir. Ct. LEXIS 7, *61 (emphasis added), citing Mackey, 391 Ma. at 128, Gemini Enterprises, Inc. v. WFMY Television Corp., 470 F. Supp. 559, 564 (M.D.N.C. 1979), and Textor v. Bd. of Regents, 711 F.2d 1387, 1392-93 (7" Cir, 1983)). Because Strudwick failed to allege “a substantial act in furtherance of the conspiracy” performed in Maryland, the conspiracy theory was unavailable. /d., citing Textor, 711 F.2d at 1392. Kimberlin asserts that defendant Hoge’s Maryland residency, and “tortious acts” by “(t]he other Defendants,” suffice to extend jurisdiction under the conspiracy theory. Response, pp. 21- 22. They do not. Because Kimberlin can point to no “substantial act in furtherance of the jion does not extend to these non-Marylanders.> conspiracy performed in” Maryland, its juris. CONCLUSION/RELIEF REQUESTED For the above reasons and those stated in their Motion and Memorandum, defendants Michelle Malkin and Twitchy ask this Court to enter an order dismissing the Complaint with 3 Mackey also requires an actionable conspiracy, 391 Md. at 128, 147 (citations omitted), which here is absent. The Federal court has ruled that Kimberlin pleaded no RICO conspiracy, and as discussed above, through his silence Kimberlin essentially concedes to dismissal of his state-law conspiracy claim.prejudice and awarding them their costs, including attorney fees, and such additional Court deems just. Date: August 26, 2015 Respectfully submitted, Mt fiir Michael F. Smith The Smith Appellate Law Firm 7566 Main Street, Suite 307 Sykesville, MD 21784 (202) 454-2860 smith@smithplle.com Counsel for defendants Michelle Malkin and Twitchy 10CERTIFICATE OF SERVIC! THEREBY CERTIFY, that on this 26" day of August, 2015, a copy of the foregoing Reply Memorandum in Support of Motion of Defendants Michelle Malkin and Twitchy to Dismiss the Complaint, was mailed, postage prepaid, first class U.S. mail, to Brett Kimberlin Bethesda, MD 20817 and, pursuant to agreement, emailed to counsel of record for all defendants and all. pro-se defendants who by this date have appeared in this matter, according to the Ma yyland Judiciary Case Search.