Team Kimberlin Post of the Day


It was seven years ago yesterday that the Naffe v. Frey SLAPP lawsuit was dismissed. That was the first of the Kimberlin-related federal lawsuits filed against a blogger, Patrick Frey who blogs as Patterico. This post from seven years ago today provided a wrap up of the case.

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(Bumped. Originally posted 19 April, 2013) Stay tuned for more details. Meanwhile, congratulations to Patrick Frey and his lawyers, Ken White and Ron Coleman.

UPDATE—The noted legal blog Breitbart Unmasked (No, I won’t link to it.) predicted that

[w]e expect Frey will have more success winning the case in his blog than in court[,]

but he seems to have been successful in court after all.

UPDATE 2—Ken White has a post at Popehat with details. Note that Ken White is a great friend of the First Amendment who has worked to defend Patrick Frey, a man with whom he often strongly disagrees.

UPDATE 3—From the Popehat commentary:

Observing commentary on the case has been . . . interesting. I’d divide the coverage into three camps. There are people who are supportive of Patrick, but whose coverage really doesn’t delve into the legal issues. There are the vapid and dishonest partisan hacks who attack Patrick for political reasons, and who don’t address the legal issues at all. There’s the greasy, demi-literate, demented Hutt who wrote an extended quasi-sexual fantasy about a mob murdering Patrick and me. Fun!

UPDATE 4—Patrick Frey has comments on the case here. Among his remarks he says this:

Hi, Bill Schmalfeldt! I understand you were curious about the result of this case. I’m happy to be sharing that with you! And, your sick, twisted fantasies notwithstanding, nobody has yet beaten me or Ken with baseball bats or tire irons. No group of men has thrown us in front of a moving truck as part of a conspiracy to cause our deaths. (If you think I am exaggerating, I have uploaded a .pdf of Schmalfeldt’s violent fantasy here.)

In the interest of balance, I will make a one-time exception and publish these excerpts from a comment Mr. Schmalfeldt attempted to make to this post:

I find it interesting that you go through such lengths to find a single post from a blog to prove “wrong” …

Schmalfeldt goes on to discuss the relative merits of other legal matters, and ends with these words:

I know, I know, this comment will never appear on your blog. But YOU will see it, and in your heart you will realize what a totally disgusting fraud you are. And you will have to live with that.

I’ll let Phaedrus have the last word.

Whoever is detected in a shameful fraud is ever after not believed even if they speak the truth.

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Naffe was represented by counsel. The Team Kimberlin pro se litigators didn’t do any better.

Congratulation, Pattercio!


Popehat reports that the Ninth Circuit Court of Appeals has affirmed the District Court’s finding in the Nadia Naffe nuisance lawsuit that Patrick Frey blogs on his own and not as a county employee. That was the basis for denying Naffe’s civil rights complaint in her lawsuit. Congratulations and thanks are also due to Ron Coleman and Ken White for their pro bono defense of Patterico’s First Amendment right to free speech and right to freedom of the press.

The Ninth Circuit’s opinion isn’t binding on the courts in the Fourth Circuit, but it should be viewed as persuasive authority by U. S. District Court where Brett Kimberlin is suing Patterico under essentially the same theory as Naffe’s.

Punching Back Twice As Hard


On Friday, Patrick Frey’s lawyer filed a set of motions in the Naffe v. Frey federal lawsuit in the District Court in LA. Ms. Naffe, who seems to be connected to Team Kimberlin, has sued Mr. Frey under 18 USC 1983 for allegedly violating her civil rights by blogging truthful things about her. Here’s what the statue says.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

In order for Mr. Frey, who is a LA County Assistant District Attorney, to have been acting under color of law, he would have had to be blogging in his official capacity, but he blogs on his own with a disclaimer that nothing he writes comes from his employer. In any event, blogging truthful things garnered from public domain sources about someone isn’t illegal. It’s not surprising that two of the motions relate to dismissing the suit.

Under California’s Anit-SLAPP statute, Mr. Frey is entitled to ask that Ms. Naffe post a bond in order to continue her suit, and one of his motions does just that. He’s asking that she be required to post a $75,000 bond in order for the suit to go forward. He’s asking for a hearing on 14 February on the bond.

UPDATE—Team Kimberlin tweets a comment within a few minutes.rbrynaert21030111

Pro bono lawyers routinely ask for fees, and they are often awarded.

UPDATE 2–I would remind those who have their panties in a knot because of the title of this post that it’s the advice from Barack Obama (although certainly not original with him) about how one should deal with one’s opposition.