Christopher Krebs, has filed a lawsuit against Trump attorney Joe diGenova over this controversial joke that Krebs should be “drawn and quartered” and then “shot” for his failures as the former head of U.S. cybersecurity. The lawsuit strikes me as meritless under governing tort doctrines. While Mark Zaid declared that “no rational person” who heard diGenova calling for a person to be drawn and quartered and then shot “would have taken it as ‘jest,’” many of us took the comment as an obvious use of exaggerated rhetoric. While I immediately condemned the language, I did not view it as a serious call for violence. Torts cases of defamation often turn common understanding of such expression as jokes or opinion. The lawsuit not only contradicts governing case law but threatens constitutional protections for free speech and the free press in seeking such tort relief.
Joe diGenova gave an interview to Newsmax’s The Howie Carr Show and said that Krebs should be “drawn and quartered” and then “taken out at dawn and shot.” It was a typical over-heated statement of “that guy should be shot” variety. diGenova made it even more absurd by combining it with a medieval method of execution. It was both literally and figuratively an example of overkill.
In an interview with the Washington Examiner, diGenova quickly stated that his comment was a joke and not intended as a threat. He stated “For anyone listening to the Howie Carr Show, it was obvious that my remarks were sarcastic and made in jest. I, of course, wish Mr. Krebs no harm. This was hyperbole during 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 Jim Walden, Jefferey Udell, Jacob Gardener, Rachel Brook, and Derek Borchardt of Walden Macht & Haran. It is not clear who the opposing defense counsel will be in the case.
The lawsuit reads at points more like a political screed in defending the “patriot” Krebs against the “angry mob” fueled by Trump and diGenova who is described as a conspiracy theorist.
Count I is a straight defamation claim (against all three defendants). Count II is an intentional infliction of emotional distress claim (against diGenova and the campaign). Count III is an aiding and abetting claim (against Newsmax). Count IV is a civil conspiracy claim.
From the outset, the complaint collides with controlling case law. Take Count II. The argument of Krebs would gut the first amendment and run counter to the clear precedent laid down in Snyder v. Phelps, 562 U.S. 443 (2011). I previously wrote that such lawsuits are a direct threat to free speech, though I had serious problems with the awarding of costs to the church in a prior column. I was therefore gladdened by the Supreme Court ruling 8-1 in favor of the free speech in the case, even if it meant a victory for odious Westboro Church.
Roberts held that the distasteful message cannot influence the message:
“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.” Roberts further noted that “Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
The Court in cases like New York Times v. Sullivan have long limited tort law where it would undermine the first amendment. In this case, the Court continues that line of cases — rejecting the highly subjective approach espoused by Justice Samuel Alito in his dissent:
Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underly- ing the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).
The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.” “Outrageousness,” however, is a highly malleable standard with “an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler, 485 U. S., at 55 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of . . . ‘vehement, caustic, and some- times unpleasan[t]’ ” expression. Bose Corp., 466 U. S., at 510 (quoting New York Times, 376 U. S., at 270). Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U. S. 312, 322 (1988) (some internal quotation marks omitted). What Westboro said, in the whole context of how and where it is entitled to “special protection” under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.
Ironically, these lawyers are espousing the position of the lone dissenter: Justice Alito. The dissent gave little credence to concerns over the constitutional rights raised in the case. He insisted that “[i]n order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.”
It is hard to see how any court could accept Count II and not do precisely what the Supreme Court barred in the use of this tort to limit political and religious speech.
Count III and Count IV is equally troubling. It makes sweeping and vague claims of aiding and abetting and conspiracies without support. The comment was clearly part of over-heated rhetoric now common on both ends of the political spectrum. Such claims, if successful, would gut the first amendment.
That leaves us with Count I on defamation. That claim is equally dubious from both constitutional and tort perspectives. The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. Ironically, this is precisely the environment in which the opinion was written and he is precisely the type of plaintiff that the opinion was meant to deter. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. In order to prevail, West must show either actual knowledge of its falsity or a reckless disregard of the truth. The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. Again, the Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” by articulating that standard that now applies to both public officials and public figures.
Krebs is a former public official and a current public figure under Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974) and its progeny of cases. The Supreme Court has held that public figure status applies when someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” He would have to carry the burden of proving that the defendant knew the statement was false or showed reckless disregard for its truth. The problem is the the statement is clearly opinion given in the heat of a contested election.
The Supreme Court dealt with such an overheated council meeting in Greenbelt Cooperative Publishing Association v. Bresler, 398 U.S. 6 (1970), in which a newspaper was sued for using the word “blackmail” in connection to a real estate developer who was negotiating with the Greenbelt City Council to obtain zoning variances. The Court applied the actual malice standard and noted:
It is simply impossible to believe that a reader who reached the word “blackmail” in either article would not have understood exactly what was meant: It was Bresler’s public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler’s negotiating position extremely unreasonable.
The comment here is clearly “rhetorical hyperbole” that is part of public debate over the 2020 election.
Ironically, I have previously criticized President Trump for his calls (here and here and here and here) to change defamation laws to erode protections for the media and free speech. These lawyers and Krebs are doing precisely what Trump has called for.
Notably, while I consider this lawsuit to be meritless, I do not believe that any of these lawyers should be charged with bar complaints. That has been the call of Democratic members and many liberal lawyers who want to see bar complaints filed against lawyers challenging the election. I also would not support a campaign like the one at the Lincoln Project (funded by many lawyers) to harass these lawyers or put pressure on their clients. The lawsuit in my view will fail and the legal system will protect free speech from such ill-considered and unsupportable legal claims.
Here is the complaint: Krebs v. diGenova
I have wondered if Sullivan should dare to say on CNN the same things about General Flynn that he has said in the memorandum filed with his dismissal order, could he be sued for defamation? How far does his protection extend? What if he says it at a Georgetown cocktail party in front of several others while he is munching on snacks?
I imagine other judges would protect him but I would like to see them endure the humiliation of doing so.
Truth is a defense for defamation. I bet Sullivan would welcome the opportunity to show his claims about Flynn to be true.
You’d lose the bet. (Unless of course Sullivan has early stage dementia).
What did Sullivan say about Flynn that isn’t true?
Sullivan to Flynn: “Arguably, you sold your country out,”
Working for Turkey as an unregistered foreign agent while he was the incoming NSA fits the bill.
A judge has absolute immunity against defamation claims arising out of statements made in the course of and while acting within a judicial capacity. Comments made at a Georgetown cocktail party are not privileged.
Was he acting within a judicial capacity? Probably not.
He was: https://www.courtlistener.com/docket/6234142/311/united-states-v-flynn/
That just begs the question.
I bet that Flynn is going to drop his suit against his Covington and Burling lawyers. Too bad. The discovery would be interesting.
I wouldn’t be so sure that he can’t be successfully sued for defamation as it is.
According to you, what did he say that’s defamatory?
If anything, diGenova was too MILD on what the punishment for treason should be.
Krebs didn’t commit treason.
Historically you are right. Getting shot in the process would be a mercy. The usual procedure was hanging but let down alive to be castrated and then disemboweled to see your organs extracted and burned in front of you. After death you are beheaded and quartered and parts hung around the kingdom. Guy Fawkes faced the same punishment but cheated by jumping down and breaking his neck when the noose was put round. Very disappointing to the crowd. The punishment was not used with women traitors in respect shown shown to their sex. They were burned alive instead according to Blackstone.
Traitors should be re-educated, relentlessly.
Torture is never a good idea. Death sometimes is.
we have to do the small thing that can work and dispense with the tough talk that scares nobody
we have to cut off the water. stop paying taxes
it will work if millions who were cheated out of their votes, harmed by the lockdowns, and ever more marginalized and attacked, will engage in this peaceful protest together, a massive nonviolent protest can work. this one can at least.
voting accomplishes nothing. they are out to weaken and destroy us., this now comes down to self defense. this is a just aim, a feasible method, and thus it is now a moral obligation NOT to pay taxes, rather than the reverse. we must deny this regime its constant blood infusions from the people
Saloth Sar
Traitors should be re-educated, relentlessly.
What? Those terrible bias re-education courses everyone demands these days?
I might choose hanged, drawn and quartered instead.
The law matters less than we lawyers pretend
What matters more is who can hire armies of lawyers to gin up weak cases and sue their opponents into bankruptcy
Winning is not the goal, LAWFARE is the goal
Clearly Krebs has won the favor of a billionaire backer who is going to pay for this weak suit to proceed
We must attack billionaires. They are the enemy
There is only one nonviolent way of attacking them. A way that is morally justified and effective
If a sufficient number of the workers, the taxpayers, refuse to pay federal income taxes, as a nonviolent protest, by extensions, or by outright refusal, it does not matter whether this act of civil disobedience would be lawful or not; but if a sufficent number protest by not paying taxes, it will increase risk premium on Treasury financing and spell high interest rates for the US spending regime and their ownership, the billiionaires. Who deeply deserve to be smited for the injustices they have heaped on the people this year and for what other ills they have planned for us in 2021
This act of nonviolent resistance, if done by millions, will have a devestating effect on our enemies. And one not even need get off the couch to accomplish it
Saloth Sar
Kurtz, as a lawyer, you should have learned not to assume facts not in evidence (e.g., “Clearly Krebs has won the favor of a billionaire backer who is going to pay for this weak suit to proceed”). So why do you do it anyway?
CTHD- I remember that you declared some while back that you were never going to respond to Kurtz again and said goodbye with a vigorous **** you.
Young, it appears Commit didn’t tell the truth. That is more common than not.
He says: “you should have learned not to assume facts not in evidence”
Isn’t that what he does all the time? Could commit also run around as that anonymous creature that makes no sense? They don’t sound the same but this creature needs to vent so anything is possible.
The irony of you commenting on facts not in evidence while not presenting any evidence appears to be lost on you.
Of course you understand that ‘assuming facts not in evidence’ refers to an objection in a trial to a question based on facts not yet in evidence.
The rest of the time [which happens to be almost all of the time] assuming facts is perfectly legitimate and normal.
You and CTHD should brush up on your legal skills.
You should brush up on your outside-of-law knowledge instead of assuming that your “facts” are facts.
Mistah Kurtz, he dead
I know how things work. I have been involved in political cases. There are always paymasters.
“Crowdfunding” is old hat. It is now only out in the open
Billionaires are backing thousands perhaps tens of thousands of strategic cases all over our rotten and corrupt system, weak cases that are there only to financially destroy their targets. and it works. because our judicial system is also corrupt. the laws are now a joke and only money matters
We must deny them our income taxes in a nonviolent peaceful protest
This will destroy their ability to borrow, Which will frustrate their schemes, including the miltaristic ones
it is not only “Trumpers” who should resist in this nonviolent way, it is honorable Democrats and Leftists who are sick of watching the system be manipulated endlessly by the private money interests. Tired of endless wars, that not even a Republican president can cancel. Tired of the Pentagon brass calling the shots, the miilitary industrial complex ever expanding? We can’t fight them with a revolution or even mass protests.,WE HAVE ONE TOOL LEFT THAT CAN WORK. STOP PAYING TAXES
It is a moral act, and if millions do it, they will not be able to stop us. This is the one thing that can still bring real change
I do not consider you a moral person, Kurtz, given your previous comments about being willing to write off the lives of billions of people in developing countries.
I don’t seek your approval. i also don’t recall what the heck you are talking about
I do seek that you and other people act in solidarity with this cause to refuse to pay federal income taxes, by any means necesary
of course if you are closely identifying with the bloated federal bureaucracies and their schemes executed at behest of the billionaires then we understand you are, at the moment, an enemy of the people too. but, you can come across to the people, if you are reeducated. we welcome you. we love our fellow citizens as much as we hate the billionaires.
many people in both parties are deluded and will need help understanding that this corrupt plutocracy is a wicked, awful system that must be rectified and soon
Saloth Sar
“I don’t seek your approval.”
That may be true but Commit doesn’t believe in that. With power she would shut you up real fast. That is the type of individual he is.
We were discussing Amy Coney Barrett’s refusal to agree with the scientific consensus that anthropogenic climate change is occurring, and you asked “so who’s going to die if you are right? Us or the spare billions in the third world?”
“You” didn’t refer to me personally, it referred to those who accept the scientific consensus on climate change.
I already advocate against the oligarchs. We can do that work legally. You’re certainly not going to convince me with your current rhetoric.
Scientific consensus where half the papers were mislabeled and out of the other half didn’t agree with what you believe they did.
You have already been proven an errant novice when climate change is discussed.
You Mona Lisa too much
LMAO that “Mona” thinks he knows what CTHD has said about climate change.
You Mon a Lisa too much as well.
But at least we know what you think about yourself.
CTHD: “I do not consider you a moral person, Kurtz,”
***
STOP IT! I am sure you are breaking his heart.
The rest of your remark about his writing off billions of people in developing countries is rubbish.
I might consider it though.
“,WE HAVE ONE TOOL LEFT THAT CAN WORK. STOP PAYING TAXES”
That will not work! There are many other non-violent means of protest, one is slow rolling major cites with traffic only doing the minimum mph in the slow lines, aka 40-45 in major cities, towns, capitals with hazard lights on. Another suggestion I’ve heard from a few people was just marking the Traitors curbs with a bright red/orange neon paint (water base washable is what I’d suggest to avoid any legal issues… but who knows people?) a zero with a line through it, thus letting everyone one driving by know who those commie/fascist aholes are.
People that hate tyranny are going to need to get creative.
The Democrats seem to have most of the billionaires on their side, though they claim to hate the “rich.” This is done to punish anyone who supports Trump, or has not paid homage to the Democrat/Socialists. It is meant to punish and waste the time and money of the person sued. Though the suit lacks any legitimate violations of law or torts, it will harm the defendants in a monetary and time consuming way. Unfortunately, there is just enough justification for a court not to force the plaintiff to pay defendant’s legal fees in this case.
Kurtz describes the tactics of his cult leader Trump who is famous for stiffing little guys like Kurtz pretends to care about. He cares about his tax cut .
you obsessive focus on Trump marks you as a pawn of the billionaires who hate him for upsetting their apple cart
Comrade, you must enlighten yourself, about the plutocracy and its wicked schemes to tyrannize us all
https://www.businessinsider.com/billionaires-net-worth-increases-coronavirus-pandemic-2020-7
we little people must refuse them our taxes come april. and refuse to file 1040s altogether. we can start by everyone saying we will do so. the threat will be registered. and then file extensions. and another extension, and another., you do that and all they will do it tack on small interest on your estimated taxes if you pay them. for those who do not pay them it is only foregoing a pitiful refund. we do not need their pennies we need to hit back at them hard in the one way we can all do.
will you join in this noble nonviolent protest joe or do you serve the interests of the billionaires and the endless bureaucracies and the military industrial complex?
by the way did you see who is now going to be Sec Def? Austin who was on the board of Raytheon. hmmm. the war pigs are very happy to have Biden headed for the Oval office!
Saloth Sar
But trump is a billionaire who doesn’t pay his taxes.
Elvis Bug
Lack of knowledge is not an excuse for making dumb statements.
So why do you do it?
The law matters less than we lawyers pretend
What matters more is who can hire armies of lawyers to gin up weak cases and sue their opponents into bankruptcy
Bankruptcy judges are the best judges around. Most of these defendants would be better off filing a bankruptcy petition and fighting the battle on abstention. In this case, though, a 12I(b)(6) and Rule 11 motion should do the trick.
Doesn’t seem like a good case to take on a contingency fee.
i can guarantee that he has lawyers who are paid hourly from a law firm that has billionaire backing and approval
Krebs will not have to worry about the bill, only cooperate with his backers
We must rise up in a massive tax protest, which is totally morally justified against the Federal government, in a wide general strike of nonviolent resistance, and refuse them taxes. if a million or more do so and register their objection to this heinous year of tyranny, it will affect the ability of the US billionaire controlled government to borrow more money at near to nothing interest. if interest raises to 5% on the federal debt, they will DEFAULT and the schemes to control us all and lock us up and cheat us in elections will crumble
this immoral and tyrannical system needs rebellion and this is the only nonviolent way of doing it that can work. but it must be done widely over the next year
spread the word
#TAXPROTEST2020
Krebs might have to worry about a counterclaim. Something might be ginned up. When the matador enters the arena waving to the crowd with aristo confidence on his face he should not forget that bulls have horns.
he has no worry. if he loses they will pay that too. this is LAWFARE and the billionaires and their lackeys have every advantage
look at how they grew fat this year while we suffered
https://www.businessinsider.com/billionaires-net-worth-increases-coronavirus-pandemic-2020-7
it is now IMMORAL TO PAY INCOME TAXES. quit going along with the puppet government of the plutocracy. this is the only way to fight back
its obvious “voting” accomplishes NOTHING
I don’t think we did vote this year. We just filled out forms. Google and China voted.
and the SCOTUS has washed their hands of it now
which is why it is morally licit and indeed required for us to TAX PROTEST
this nonviolent resistance will starve the beast and be noticed
spread the word, the time is now or never. by april we must have millions on board for it to work
nobody is going to be organizing PACs for this purpose, and the social media will suppress the message
it must spread through word of mouth and one by one
but all they have to do, is do nothing. stop paying the protection money to these racketeers in the hire of the billionaires
it can be done and it must be done., we have no other peaceful means left which will work
Saloth Sar
“When the matador enters the arena waving to the crowd with aristo confidence on his face he should not forget that bulls have horns.”
*********************
My I do like that line. Kudos and I’m stealing it.
Hmm! So a radical leftist can riot, tear down statues, beat up conservatives, vandalize and loot a business, burn a building, and harm or harass a policeman without fear of consequence. An election can be stolen. A business is not allowed to operate based on a mayor or governor’s personal definition of “science”. However, it is no longer OK to exert free speech. Doesn’t anyone see anything wrong with this?
deny the immoral regime your taxes
they are wicked tyrants and the only way to clean house is destroy their ability to finance more trillions in debt
federal income tax receipts from individuals are 50% of the budget. if enough of us refuse to pay we can cause the debt premium to rise and they will default
then all these schemes to oppress our people will tumble down
we have little to lose, they have a lot
RESIST
#TAXPROTEST2020
“Meritless” is a leftist characteristic which is better than another of their characteristics which is a never ending quest of power over the individual and their right to free speech.
That is why on issues like this one the left is totally inconsistent. …For thee not for me… They are not interested in free speech. They are interested in power.
This is a stupid lawsuit. Meanwhile, what do you think of the state v. state lawsuits in the SCOTUS, professor? Here’s my take:
https://strikelawyer.wordpress.com/2020/12/09/outmanuevered/
That’s a stupid suit, and although SCOTUS could choose to hear it, I doubt that they will.
There are plenty of lawyers pointing out problems with the suit. A couple of examples:
https://twitter.com/steve_vladeck/status/1336312379408322560
https://twitter.com/nycsouthpaw/status/1336643024269533185
Have you read the declaration from Charles Cicchetti that they rely on for the ridiculous claim that “The probability of former Vice President Biden winning the popular vote in the four Defendant States—Georgia, Michigan, Pennsylvania, and Wisconsin—independently given President Trump’s early lead in those States as of 3 a.m. on November 4, 2020, is less than one in a quadrillion, or 1 in 1,000,000,000,000,000”? At least it was good for a laugh.
” At least it was good for a laugh.”
I think that was demonstrative of an election loaded with fraud.
If your clerk sells bagel at $2 a piece and gives you $100 but all 100 bagels are gone that same statistician might say the clerk stole 50% of the profits. You would probably laugh at that as well. In both situations a mathematical calculation was made but all the variables weren’t taken into account. These two examples are not that different. In the case of the election one could say it was stolen and in the bagel case one could say it was stolen as well. Both cases can end up in front of a judge and the judge can look at all the evidence to determine if either was stolen. In the election case a lot of state law passed by the legislature were broken and there are questions of ballot stuffing in multiple fashions.
Say what?
Committed:
“There are plenty of lawyers pointing out problems with the suit. A couple of examples:”
***************************************
I guess that’s why you cited the case with glowing approval yesterday before you found out its was mud on a sheet and that Krebbs is a government official in the process. Oh, and I am happy to see your statistical acument matches your legal acumen. You are so transparently dumb but undaunted. There’s some grace in that I suppose.
Mespo, I’ve been ignoring you because I believe you to be a troll, so engaging with you is a waste of time. But I have to admit, you’re sometimes exceedingly amusing, as here, where you can’t even keep track of what case is being discussed.
My claim that “There are plenty of lawyers pointing out problems with the suit. A couple of examples…” was about Texas v. Pennsylvania et al. I did not not “cite[] the case with glowing approval yesterday.” In fact, I noted Steve Vladeck’s criticism yesterday too:
https://jonathanturley.org/2020/12/08/is-biden-about-to-help-make-the-case-for-a-self-pardon/comment-page-1/#comment-2034065
My statistical understanding is just fine. No need to believe me, if you want to inform yourself about Cicchetti’s ignorance, here’s a decent overview:
https://reason.com/volokh/2020/12/09/more-on-statistical-stupidity-at-scotus/
TX v. PA has nothing to do with Kreb’s defamation suit, as would have been exceptionally clear if you’d bothered to read the links or even just paid attention to the news. But you’re too lazy and hate-filled to do that; you simply see a comment from me and criticize out of habit without knowing what you’re talking about. I didn’t cite Kreb’s “case with glowing approval yesterday” either. I simply noted that the case had been filed and that you were mistaken about him currently being a government official. The rest is imagination on your part because you are so hate-filled that you invent errors where they do not exist. I truly feel sorry for you and anyone who has to deal with you IRL.
Committed:
Like a puppet, you’re easily manipulated. Waiting for more pronouncements I can skewer.
LMAO that your response to having your ignorance called out is to lie and proclaim victory. Your desire to manipulate people is sick, mespothelioma, seek help.
Anonymous is a bit dull and is easily manipulated. When he wants to do some of his own manipulation he goes into his bathroom.
I hope Krebs wins, and the case goes to the Supreme Court as a chance to reverse the misplaced logic of the Sullivan decision.
Citizens are not obliged under the Constitution to uphold defamatory and violence-promoting threats to their own personal safety as “free speech”. The 1st Amendment only constrains the government from taking action or making threats against someone based on expression of political viewpoint. Torts as a deterrent is NOT the action of the government….the government is a neutral arbiter in such conflicts.
The idea that the 1st Amendment goes so far as to weaken the government from acting as a neutral arbiter in torts-based anti-defamation deterrence is…..an extreme and absurd stretching of its constraint over censorship. Domestic tranquility benefits from
civilized and constructive criticism in the public sphere. The equal protection of the law was eclipsed from “public persons” in the Sullivan decision, and it’s on that basis that it should be reversed.
Please don’t relay this misguided take on the law of defamation and free speech to your clients.
DeGenova is not a kid and as an attorney – despite so much evidence to the contrary here by our host and multiple commentators – should be smart enough to know the power of incendiary words with the audience he and his cult leader incite. Not surprisingly Turley finds excuses for another Trump team member, or how would he still have a network to get invited on?
Sure, Di Genova knows the power of his words, which is precisely none. That’s why Krebs is still alive and chewing gum.
The words weren’t incendiary — they didn’t light any fire anywhere — nor would any reasonable person expect them to. They were an opinion, not a threat.
Should Krebs “joke” that DiGenova should be “taken out at dawn and shot” and “drawn and quartered”?
Turnabout is fair play, right?
Krebs is getting death threats right now as a result of what DiGenova said…
This is more than the average demogoguery. It’s not within the bounds of your normal ‘both sidism’ lens, professor. To equate this suit with the bogus election challenges that trump is seeing tossed out of court is misleading. I hope Krebs wins. And short of outright victory in the suit, I hope he sets precedent for hitting back at trump and his clown car.
Congrats to Krebs for a) maintaining his integrity in monitoring the election, and b) and since DiGenova is just acting out trump’s dirty goat impulses, not kowtowing to trump’s standard script for bullying dissent within his administration (and life).
Elvis Bug
All of us should acknowledge that if this was a 16YO kid who said this about one of his teachers, “zero tolerance” (AKA “zero common sense”) would be invoked and the kid would be booted out of school.
+10
Elvis Bug
You know why there is zero tolerance for this from a 16 year old? Because there’s a good chance that the kid acts out on his threat.
Elvis Bug
The points of the lawsuit are (1) gut free speech (2) keep Krebs in relevant.
So does the Professor advocate that frees speech protects the person that yells FIRE in a crowded theater? It was only a joke. That is where we are at this point in history. We have protestors showing up in front of people’s homes with bull horns yelling and screaming. Is this not intimidation? This is happening all too frequently. Michigan a week or so ago, last night in Boise, Idaho, over a meeting to discuss if masks should be mandatory. In my opinion, protesting in front of peoples houses is an act of terrorism. There is only one reason to hold the protests there, intimidate the person into doing as they wish. The same is true in this case, Those words have meaning, they incite people to action, action that could cause serious harm or death. Stop it, stop it now. And one way to stop it is to hold people accountable for the words they speak. I do hope he wins and he wins a very very large settlement.
Interesting, you call what happened in Michigan last night a terrorist attack, how do you feel about antifa/blm who BURNED, LOOTED, KILLED people? Pretty quiet then, right zippy?
It’s disgusting and should be prosecuted to the fullest extent of the law. But is totally different than mass protesting in front of an elected officials house, or a commission member. Imagine your child 12 or 14 years old in the house, home alone while your attending a meeting and a bunch of people show up outside your house with guns, air horns, loudspeakers talking about how disgusting you are because you are holding a meeting to talk about community health. Protesting in front of peoples houses is nothing short of terrorism and should be prosecuted to the fullest extent of the law. Some of the people I saw and the way they acted, 10 years in prison would be a fair price to pay. People that burn down business is arson plain and simple and they should pay a price. Just because I called out some protestors as bad does not mean I support other protestors doing illegal activity.
“In my opinion, protesting in front of peoples houses is an act of terrorism.”
On a public street? You have an odd idea of what terrorism is.
There are other laws on the books. If applicable, how about disturbing the peace? Frankly, your words calling people terrorists should definitely be called an abuse of speech based on your lack of thought. Should you be sued?
Sure, sue me. There is only one reason to do this on a residential street in front of the house of a public official. Intimidation. If you want to protest, do it in front of city hall, the county building, the state capitol. Not in front of a house. Yes, people with guns in front of a house protesting making noise is terrorism.
Tell that to Antifa.
A claim of treason is downright stupid.
Why would I want to sue you. That you don’t understand the difference between protest and terrorism is obvious. That you don’t realize that there are laws to take care of harassment is something you don’t seem to know.
It’s OK for you to call peaceful protest terrorism. I just wouldn’t want to hear that from my 8 year old.
Di Genova expressed an opinion about the actions of a government official. It’s not even close to crossing the line into illegality. If it were, John Brennan and millions of other Americans would owe President Trump an aggregate sum in the hundreds of billions of dollars for all their asinine claims that Trump is a traitor for beating Hillary and being *diplomatic* (if that don’t take the cake!).
I don’t believe Di Genova protested in front of anyone’s house. Nor did he encourage anyone to do so.
Can you really sue over a joke?
I fully agree with Prof Turley on the need to fully protect speech – even when it is so-called “hate speech.” However, in this day and age when provocateurs can reach out to millions of crazies through social media, I can understand why Krebs and his lawyers felt it necessary to sue here. Even if they lose – which they should – the lawsuit may give pause to anyone like diGenova who feels the urge to use public violent hyperbole against someone they don’t like.
we should draw and quarter and hang 700 billionaires. that would be a good start on the path to greater justice and democracy
it’s insufferable that they and all their mercenaries so openly control it all. smite them with righteous anger
or, we could just stop paying income taxes, as an act of nonviolent resistance. if enough people do it, it will work
Saloth Sar
Elizabeth Warren had a better solution, one that’s legal: create a wealth tax.
Warren. She had some good ideas over the years and the best one was to allow cram down of home mortgage secured interests. this was during the bankruptcy crisis. nobody listened to her. it was the best idea anybody had in the whole mess.
the rest of her ideas have been weaker and some very weak. but that one was superb, brilliant. and WALL STREET which owns the media insured that NOBODY heard her or took it seriously
we never corrected the excesses which lead to the foreclosure mess. today all they have done is paper over it all with created billiions flooded into bond markets by the fed
this is why they got richer in 2020 as we suffered. badly
they deserve to be removed from power. the oligarchs and all their petty mercenaries from one end of the country to the other
taxprotest is the one nonviolent form of resistance that can actually break this system and the time has come for it. now or never
“the best one was to allow cram down of home mortgage secured interests. ”
I don’t remember what she said but Marty Feinstein had a great idea if modified.
Start with Trump Kurtz. Then we’ll know you’re serious.
Sure that’s what you and the other billionaires would like. but you have been saying for years he is not really a billionaire so he makes the cut
plus he did more to oppose the plutocracy than any president since FDR. I think Elon Musk as an industrialist and true producer of value and not just a financial parasite, should make the cut too. but the issue is their class not their individual merits. Class, they are an overclass of 700 people who control America. Do you serious deny that? Perhaps you do.
but you are a social climber who wishes to curry favor with them. sad, that you harbor such illusions as you do. I am just a nobody, not an important person like you, who harbor aspirations. i know my paltry savings is insignificant and in fact. keep in mind a billion is a million millions. a million is hard to imagine and a billlion is so much more. a hundred billion is ridiculous sum and we should be ashamed we have let so few grow so fat and reduce us all into their unwitting servants and tax-slaves
the moral thing to do for us all, the workers and middle class people of good will, is not violence but it is nonviolent mass resistance in the form of tax protest. refuse them our money one by one is nothing, but together– we can drown them alive if we will only spit in their faces all at once.
excuse me duh a billion is a thousand millions. same difference
Didn’t think you were serious Kurtz.
You don’t advocate any positions that help working people and your cult leader doesn’t deliver any, but he sure does help his friends and family.
“President Trump kicked off his holiday weekend at Mar-a-Lago Friday night at a dinner where he told friends, “You all just got a lot richer,” referencing the sweeping tax overhaul he signed into law hours earlier.”
you’re too conventional and dull to figure it out. years of being a social climber grasping at airs has dulled your wits. you are ever the servant of the billionaires you admire
you need reeducation, comrade
Saloth Sar
Switch from buying on Amazon to buying from smaller companies whose lifeblood was drained by politicians who gave large multi billionaires the ability to capitalize on Covid.
that’s a good idea but it lacks the precise aim that a widely done tax protest would accomplish
they will never cut federal spending which means their foot will ever weigh heavier on our necks
we have to slay the best and the only way is to induce a debt default.
individual tax recietps are 50% of federal revenues
some people just get all theirs sucked out in withholding. they may not be able to do much besides refuse filling 1040s and forego the pitiful refunds.
that too should be done however
we must fight back with peaceful nonviolent protest whether it is supposedly legal or not. it is moral and must be done
look at blm anyhow,. were they arrested for all their rioting, wanton property destruction, etc? very few
our people are not the kind to riot. but this is one thing they would do and they must. and very few will feel any consequences at all, but together, eventually good ones
spread the word. this is a moral act to refuse paying taxes now.
The only problem is that a tax protest will not occur in large numbers for fear of arrest. However, individuals can legally change who they buy from. This will increase the competition to those billionaire types while depriving them of a small percentage of profit. Those billionaire types take note of even small reductions in volume. If people aren’t willing to spend additional resources on changing who they buy from they certainly won’t risk a jail term and the costs of litigation with the federal government.
I actually totally agree with Allan here.
Elvis Bug
Saloth Kurtz presses the smite button!!
I’m totally curious how you square your current hatred of billionaires with a) trump being a billionaire, and b) trump’s kowtowing to the billionaire class while in office?
Elvis Bug
this question has been asked and answered in case you havent noticed
1. you people have been saying for four years that “he really isnt a billionaire, he inflated his values to get on the list.” OK! i take your word for it.
2. he has rebelled against his class, obviously, by upsetting the “free trade” apple cart. he is as much a rebel against his class as FDR was. a truly great president and I apologize for all the bad things i ever said about FDR
3. Trump has a troubled relationship with financiers. this is also old news.
4. trump knows how powerful they are, unlike most people who don’t get it. he did kowtow to them too much I totally agree. he should have gone at them hard and fast, but he tried to negotiate. we can see that even now he refuses to name the true enemy. in this he has failed.
I hope that is a satisfactory explanation and we can move on to the next thing. Whehter or not you will join in this righteous cause?
or will you keep sending the Pentagon and the teeming bureaucracies and their billionaire masters, your shekels like a good tax slave?
everyone who reads this should ask the same
Dont fear a federal debt default folks. that is precisely the aim.
if you do not have a portfolio of laddered treasuries in the tens of millions you will not even notice when their ox is finally gored. we will all benefit when they finally get their due
Saloth sar
Hmmm, myself and some friends, some quite in the public eye, have periodically made symbolic shows of not paying taxes for a period of time to protest out of control militarism…, guess what happens??? You go to jail, my friend. You, personally, might be able to avoid it because you’re a lawyer, white and male and therefore are exempted from a good slice of the consequences that go along with that set of conditions. Take your chances, I say.
Elvis Bug
And Trump is just a b hole and always been such afflicted. You guys in flyover seem to have bought the schtick, which is too bad, because Trump is cheating you just as badly as he treats everyone else…, but your powers of denial are impressive, I guess.
Elvis Bug
Necessary to sue? What tare you talking about? Suing wouldn’t ameliorate any threat if there were one. There was no harm and no threat of harm.
It’s just powerful people persecuting dissidents.
What is the ethnicity if the Jumping Joe guy here? Does he have “papers”? Is he from New York? Yorkies need supervision. Like that Guiliani guy who spreads corvid.
CommitToHonestDiscussion:
Oh look, CommittedtoSophistry exactly how I analyzed your citation of this case yesterday. But what do JT and I know, we’re just tort lawyers. And yes Krebbs is, for purposes of this suit, a public official and also a public figure. Time for you to pivot to another bit of confident ignorance..
Oh look, mesblow, JT thought it worth writing a column about.
All Commit did was point out the suit. You insulted her solely because you’re a troll who gets off on insulting liberals, and now you double down, when you cannot point to anything she said that was ignorant. She corrected you that Krebs is not currently a government official. JT agrees with her, characterizing Krebs as “a former public official.” Will you call JT confidently ignorant too?
Aninny:
Oh the ignorance on display. As I said, “for purposes of this suit,” he’s a public official. And to suggest that our absent-in-shame Commit didn’t throw out the suit as red meat to her meathead followers like you takes lying to the highest level. Congrats you’re on top!
You didn’t say “for purposes of this suit” yesterday –
https://jonathanturley.org/2020/12/08/is-biden-about-to-help-make-the-case-for-a-self-pardon/comment-page-1/#comment-2034031
You’re a troll, mespothelioma, congrats!
Aninny:
Sure I did. You just having a reading comprehension issue. Don’t ashamed. Get help!
Ah yes, simply insisting that you’re right is soooooo convincing.
Mespo usually (maybe always here) right.
You and mesblow are fond of making claims without evidence.
There he goes again the know nothing Anonymous spouting his little nothings.
Isn’t he impressive? LOL
Aninny:
Then quote me directly to prove your point. Semper necessitas probandi incumbit ei qui agit!
I linked to your comment yesterday to prove my point. That’s as good as a quote. You need me to repeat it here because you’re too lazy to click on a link?
That gray anonymous is a stupid one. He can be compared to a radish.
Robert T:
The stupid is strong with that one but at least radishes serve a purpose.
Aninnymind:
“I linked to your comment yesterday to prove my point. That’s as good as a quote. You need me to repeat it here because you’re too lazy to click on a link?”
***********************
Par usual you linked to the wrong quote. Never expected anything better. Here’s the part you obviously don’t understand where I explained your colossal dumbness. Others did too. You whiffed as always:
“December 8, 2020 at 6:57 PM
Aninny:
You never have a point and if you ever did, like this one, you’d be wrong. Krebbs was criticized in his official capacity for official acts, and that makes him a public official for purposes of NYT v. Sullivan. Not sure who’s dumber. You or the suddenly missing Committed? It’s close.”
If its any consolation, you just passed Committed on the race to Stupid.
” you just passed Committed on the race to Stupid.”
Anniny had a head start. He started off stupid.
LMAO that you made my point for me and are so stupid that you don’t even recognize it. Do you know how to read a timestamp?
Justice Alito makes a very good point in my view when he spoke about the harm to a “particular innocent victim” which means funerals for members of the military killed in action.
I can see and agree with the need to tolerate offensive speech…I get it.
However, when that offensive speech targets anyone not engaged in the conduct, support, participation, or activity which might make them the target…..and certainly being. killed in combat ostensively in defense of Free Speech…..then I would suggest there is a limit to conduct that would cause harm to those innocent individuals and their families.
For the record….I absolutely hate Westboro Baptist Church and everything they stand for and proclaim and flatly reject any notion they have to disrupt a funeral for a fallen soldier because they have singled out that as the way they shall present their vile message.
If Westboro wishes to demonstrate on the public square, in front of a military recruiting office, or in front of my house….they are welcome.
But…when it comes to what they try to do….disrupt, demean, and obstruct the solemnity of the burial of a fallen Soldier….that crosses the line and is NOT Free Speech….it is an attack and that never should be tolerated.
If we must tolerate Westboro doing what they do….then I suggest my free speech rights allow me to let the air out of all of their tires and encourage all the Tire Repair shops to close for the day…..as that should be our Free Speech Rights.
Consider it is Actions and not words…..that Westboro and I would be engaged in…..which is not speech.
I stand with Alito on this one.
I think Westboro’s “speech” at military funerals directly incites violence and ought to be limited in some manner. Distance comes to mind.
I agree completely. The 1st Amendment should be interpreted narrowly to constrain federal government acts of censorship. It should not have any constraint on the ability of private citizens and groups to uphold norms of civility and public decorum, if necessary through local ordinance and torts.
It also should be obvious that it is impossible to erect a rule-based system which defines civility, the devious creativity of the human mind capable of gaming the rules. The judgment and power of the the people in defending community standards, albeit case-by-case by necessity at times, is not constrained by the 1st Amendment.
For the record….I absolutely hate Westboro Baptist Church and everything they stand for and proclaim and flatly reject any notion they have to disrupt a funeral for a fallen soldier because they have singled out that as the way they shall present their vile message.
You don’t get it. Westboro isn’t a church. It’s a litigation factory run by provocateurs. It doesn’t have a “vile message”, or any message at all other than “watch your p’s and q’s, or we’ll sue!”
When does Kathy Griffin get out of jail for taking a picture with the severed head of Trump?
If Madonna can say burn down the White House and nothing happens I think this spineless chief of cybersecurity should just sink back in to the pit from where he came.
Good points from both of you.