Christopher Krebs has filed a lawsuit against Trump’s attorney Joe diGenova over the controversial joke that Krebs was “pulled and quartered” and then “shot” for his failure as a former head of US cybersecurity. The action appears to me to be unfounded under the rules of tort. While Mark Zaid stated that “no sane person” who heard diGenova demand that a person be drawn and quartered and then shot would “have taken it as a” joke “,” many of us took the comment as an obvious use of exaggeration Rhetoric. Although I immediately condemned the language, I did not see it as a serious call for violence. Defamation cases often change the general understanding of expressions such as jokes or opinions. The lawsuit not only contradicts current case law, but also threatens the constitutional protection of freedom of speech and the free press in the search for such an illicit act.
Joe diGenova interviewed Newsmax ‘The Howie Carr Show and said cancer should be “drawn and quartered” and then “taken out and shot at dawn.” It was a typical overheated statement of the “This guy should be shot” sort. diGenova made it even more absurd by combining it with a medieval execution method. It was an example of overkill both literally and figuratively.
In an interview with the Washington Examiner, diGenova quickly stated that his comment was a joke and not intended as a threat. He explained, “It was obvious to anyone who listened to the Howie Carr Show that my comments were sarcastic and joking. Of course, I do not wish Mr Krebs any harm. That was an exaggeration in the political discourse. “
The lawsuit names diGenova as well as the Trump campaign and Newsmax. The lawsuit is filed by Charles Fax and Liesel Schopler of Rifkin Weiner Livingston Inc. and by Jim Walden, Jefferey Udell, Jacob Gardener, Rachel Brook and Derek Borchardt of Walden Macht & Haran. It is not clear who the opposing defender will be in this case.
The lawsuit reads in some places more like a political screed in defense of the “patriot” Cancer against the “angry mob” fueled by Trump and diGenova, who are referred to as conspiracy theorists.
Graf I is a pure libel suit (against all three defendants). Graf II is an intentional infliction of emotional stress (against diGenova and the campaign). Graf III is an accessory action (against Newsmax). Count IV is a civil conspiracy lawsuit.
The complaint collides with the controlling jurisprudence from the start. Take Count II. Krebs’ argument would invalidate the first amendment and contradict the clear precedent set in Snyder v. Phelps, 562 US 443 (2011). I previously wrote that such lawsuits pose a direct threat to freedom of expression, although in a previous column I had serious problems with charging the Church. So I was delighted with the 8: 1 Supreme Court ruling in favor of freedom of speech on this case, even if it meant a victory for the hideous Westboro Church.
Roberts argued that the unpleasant message cannot affect the message:
“Language is powerful. It can inspire people to act, move them to tears of joy and suffering and – as here – cause great pain. According to the facts at hand, we cannot respond to this pain by punishing the speaker. “Roberts noted that” Westboro believes America is morally flawed; Many Americans like to see Westboro this way. Westboro’s pickets are certainly hurtful and its contribution to public discourse can be negligible. As a nation, we’ve taken a different course – to protect self-injurious speech on public issues and to make sure we don’t stifle public debate. “
In cases like the New York Times v. Sullivan, the court has long restricted the tort law where it would undermine the first amendment. In this case, the Court continues that series of cases and rejects the highly subjective approach that Judge Samuel Alito took in his dissent:
Since the Westboro speech on a matter of public interest was in a public place, that speech is entitled to “special protection” after the first amendment. Such language cannot be restricted simply because it is angry or provokes contempt. “If the first change is based on a rationale, the government cannot prohibit the expression of an idea just because society finds the idea itself offensive or unpleasant.” Texas v. Johnson, 491, US 397,414 (1989). Indeed, “the point of all language protection. . . is to only screen off the range of content that someone believes is wrong or even hurtful. “Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 US 557, 574 (1995).
The jury here was directed to hold Westboro responsible for intentionally inflicting emotional distress, as Westboro’s pickets were “outrageous”. However, “insolence” is a very malleable standard with “an inherent subjectivity” that would enable a jury to impose liability based on the taste or views of the judges, or possibly their aversion to a particular phrase. ”Hustler, 485 US, at 55 (internal quotes omitted). In such a case, it is unlikely that a jury will be neutral in terms of content [the] Language that poses a real danger of becoming an instrument of oppression. . . ‘vehement, caustic and sometimes uncomfortable[t]'”Term. Bose Corp., 466 US, at 510 (cited New York Times, 376 US, at 270). Such a risk is unacceptable.” In public debate [we] must tolerate abusive and even outrageous speech in order to give the freedoms protected by the first amendment adequate “respite”. “Boos v. Barry, 485, US 312, 322 (1988) (some internal quotation marks omitted). What Westboro said in the broader context about how and where it is entitled to “special protection” after the first change, and that protection cannot be overcome by a jury who finds the picket lines were outrageous.
Ironically, these lawyers take the position of the lonely dissident: Justice Alito. The dissent gave little credence to concerns about the constitutional rights raised in the case. He insisted that “[i]In order to have a society where public issues can be discussed openly and vehemently, it is not necessary to allow innocent victims such as petitioners to be brutalized. “
It is difficult to see how a court could accept Count II and not do exactly what the Supreme Court prohibited in using this illicit act to restrict political and religious speech.
Count III and Count IV are equally troubling. It makes sweeping and vague claims of aiding and abetting and unsupported conspiracies. The comment was clearly part of an overheated rhetoric that is widespread across both ends of the political spectrum today. Such claims, if successful, would exempt the first change.
That leaves us with Graf I on defamation. This claim is equally dubious from both a constitutional and an illicit perspective. The standard for defamation of public figures and officials in the United States is the result of a decision in the New York Times against Sullivan decades ago. Ironically, this is exactly the environment in which the opinion was drafted, and he is exactly the type of plaintiff the opinion should put off. The Supreme Court ruled that tort law cannot be used to override the First Amendment’s protection of freedom of speech or the free press. The Court sought to give the media “breathing space” by formulating this standard that now applies to both civil servants and public figures. To prevail, West must show either actual knowledge of its falsehood or a ruthless disregard for the truth. The standard for defamation of public figures and officials in the United States is the result of a decision in the New York Times against Sullivan decades ago. The Supreme Court ruled again that tort law cannot be used to defeat the First Amendment’s protection of freedom of speech or the free press. The Court sought to provide “respite” by formulating this standard which now applies to both civil servants and public figures.
Cancer is a former civil servant and current public figure under Gertz v Robert Welch, Inc., 418 US 323, 352 (1974) and his descendants of cases. The Supreme Court has ruled that public figure status applies when someone “bumps”[s] get into the vortex of [the] public edition [and] engage[s] public attention to influence the outcome. “He would have to bear the burden of proof that the defendant knew the statement was false or that he was ruthlessly disregarding the truth. The problem is that the statement is clearly an opinion given in the heat of a controversial election.
The Supreme Court saw one such heated council meeting in the Greenbelt Cooperative Publishing Association v. Bresler, 398 US 6 (1970), in which a newspaper was sued for using the word “extortion” in connection with a property developer with whom the Greenbelt City Council negotiated to obtain zone deviations. Using the actual standard of malice, the Court found:
It is simply impossible to believe that a reader who has reached the word “extortion” in both articles would not have understood exactly what was meant: Bresler’s public and completely legal negotiation proposals were criticized. No reader would have thought that either the speakers at the meetings or the newspaper articles reporting their words accused Bresler of a crime. On the contrary, even the most negligent reader must have realized that the word was just a rhetorical exaggeration, an energetic epithet used by those who thought Bresler’s negotiating position was utterly unreasonable.
The comment here is clearly a “rhetorical exaggeration” that is part of the public debate over the 2020 elections.
Ironically, I previously criticized President Trump for his calls (here and here and here and here) to change defamation laws to undermine media protection and freedom of speech. These lawyers and cancer are doing exactly what Trump has asked for.
While I find this lawsuit to be unfounded, I do not believe that any of these lawyers should be charged with legal complaints. This was the call from Democratic members and many liberal attorneys to want attorney complaints to be filed against attorneys who are contesting the election. I would also not support a campaign like the Lincoln Project (funded by many lawyers) to harass these lawyers or put pressure on their clients. In my view, the lawsuit will fail and the legal system will protect freedom of expression from such ill-considered and unsustainable legal claims.
Here’s the complaint: Cancer v. DiGenova