There is an interesting contrast developing in two controversies. We recently discussed how legal experts demanded that Joe diGenova be disbarred for recently saying that Cybersecurity and Infrastructure Security Agency head Chris Krebs should to be “drawn and quartered” for his failure to protect this election. Krebs has filed a legally dubious lawsuit against diGenova. Yet, in Michigan, Gov. Gretchen Whitmer and other Democrats have defended Rep. Cynthia Johnson who called out for “soldiers” to “make [Trump supporters] pay” for their criticism and harassment of her. Those who insisted on disbarment and other measures for diGenova are conspicuously silent about such overheated rhetoric from the left.
From the outset, I do not agree that Johnson should have been removed from committee positions. I took her video as yet another example of hyperbolic excess.
The Michigan Attorney General has condemned both Johnson as well as those who threatened her in the past.
For her part, Whitmer called for “a little bit of compassion and grace” for the lawmaker because she “has been through a lot.” She was referring to the highly publicized voter-fraud hearing with Trump lawyer Rudy Giuliani and having someone close to her contract Covid-19.
The fact is that such rhetoric reflects our rage-filled politics. We need to apply a certain benefit of the doubt on whether such comments are real or hyperbolic demands. In torts, courts developed the doctrine of mitior sensus, which was used to assume the innocent meaning of works in defamation when two different meaning (one harmful and one innocent) is possible.
In this political environment, however, such allowance however is notably denied to those on the right. 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.’” No rational person. The Washington Post’s Randall Eliason seemed to dismiss that this was “just a colorful metaphor.” Professor Steve Vladeck declared “Lawyers who make these kinds of threats should be disbarred. Full stop.”
Johnson is not a lawyer but there is a striking different treatment given such statements. Where Zaid maintains that “no rational person” would think that calling for someone to be “drawn and quarter . . . and shot” is a joke, there is ample understanding afforded Johnson and others who have used alarming rhetoric. Obviously, diGenova was joking. Many of us condemned the comments immediately as reckless, but Zaid’s claim reflects how current debate are often untethered from any legal or factual reality.
I do not think that either Johnson or diGenova were calling for violence. Free speech must allow room at the elbows for reckless or hyperbolic language, but the allowance must be consistently applied.