Constitutional Law, Free Speech, Media, Torts

MSNBC Analyst Calls for Liability for Boebert and Carlson … for the Colorado Shootings

We have been discussing how attacking free speech has become an article of faith for many on the left. That includes embracing corporate censorship and recently even good old-fashioned state censorship. It includes banning books and preventing opposing voices to be heard on campuses. Now, MSNBC national security analyst Frank Figliuzzi has called for Rep. Lauren Boebert (R-CO) and Fox News host Tucker Carlson to face civil liability for their commentary on transgender policies or controversies after the recent tragic shooting in Colorado. It is part of a growing movement in the media in favor of imposing criminal or civil liability on opposing viewpoints — a call that is tantamount to sawing the very branch upon which journalists and analysts sit.

For the record, I am a legal analyst for Fox News.

I have spent my entire academic and professional career opposing criminal and civil efforts to punish or chill free speech. As free speech advocates, we cannot be drawn onto the slippery slope of only defending views with which we agree or treating some as beyond the protections of free speech principles because we find their views wrong or odious.

That is a test of principle that seems increasingly beyond not just many in politics but, surprisingly, in the media.

Boebert and Carlson are outspoken in their opposition to gender transitioning for children, transgender athletes competing in girl’s sporting event, and other current controversies. Defending their right to hold such positions is not an endorsement of those positions. I would take the same view if conservatives called for Figliuzzi to be criminally or civilly liable for criticizing evangelicals or Republicans before violent attacks.

On MSNBC, Figliuzzi declared:

“We said this over and over again. But strategically, what appears to be happening is they want to deny people the safe haven and safe harbor, whether we’re talking about kids in school feeling unsafe because of guns. Black churches feeling like they are going to get shot up, like at a Bible study that’s happened in South Carolina. Whether it’s synagogues, whether it’s the gay club on a weekend night, there seems to be a concerted effort to not only instill fear but deny the safe places.

…We need to see accountability and consequences… If he’s a consumer of the people we just rattled off, from Lauren Boebert to Tucker Carlson. Let’s get it out. Let’s get it out at trial. Let’s expose it for what it is, name it, and shame it. He. is a consumer of these people, and those people should face civil consequences from the victims.”

It is not clear what those “civil consequences” would be but it is obviously meant to punish those who are critical of transgender policies or positions. We have already seen cancel campaigns against figures like JK Rowling and others for such criticisms.

The civil liability could come in the form of agency actions by the FCC against Fox, but that would not include a member of Congress. It would also not pass constitutional muster, in my view.

The most obvious form of civil liability would be some type of tort action. However, group defamation is rarely a viable basis for a defamation claim. In the United States, it is extremely difficult to maintain a “group libel” case even when there is jurisdiction.

One of the leading cases occurred in 1952 in a New York lawsuit. In Neiman-Marcus v. Lait, 13 FRD 311 (SDNY 1952), employees of that high-end store sued the author of a book titled “U.S.A. Confidential.” The book claimed that some of the models at the store and all of the saleswomen in the Dallas store were “call girls.” It further stated that most of the salesmen in the men’s department were “faggots.” The issue came down to the size of the group. With 382 saleswomen and models, the court found that the group was too large. However, with the 25 salesmen, the court found that an action could be maintained.

Moreover, arguing that these speakers induced violence under another form of tort liability would be quickly rejected under the First Amendment. Previously, MSNBC legal analyst and Michigan Law Professor Barbara McQuade told MSNBC viewers that Trump could be charged with manslaughter for his role in the January 6 Capitol riot. This would fail for the same reason.

In Brandenburg v. Ohio, the Supreme Court ruled in 1969 that even calling for violence is protected under the First Amendment unless there is a threat of “imminent lawless action and is likely to incite or produce such action.”

Indeed, even direct action causing emotional distress has been rejected on constitutional grounds.

One such case is 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 free speech in the case, even if it meant a victory for odious Westboro Church. Roberts held that the distasteful message cannot influence the analysis:

“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:” 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.”

MSNBC and Figliuzzi are perfectly within their rights to condemn Boebert, Carlson, or others for their viewpoints. That is the essence of free speech. They can respond to what they view as bad speech with better speech. However, the way to convince others that these views are wrong is not to seek the silencing of the speakers, but to present the reasons why those views should be rejected by others.

 

109 thoughts on “MSNBC Analyst Calls for Liability for Boebert and Carlson … for the Colorado Shootings”

  2. This mass shooting story will soon die a quiet death. Now that it has come to light that the shooter is a card carrying wokester the drive by media will lose all interest. The MSM couldn’t even wait until the bodies were cold before they blamed it on Republicans. Some people even let these creatures from the oozing swamp tell them how to vote. The hope is that some will come in from the dark side.

    1. TiT,
      You would think people would stop and wait for details before spouting . . . whatever.
      Not just Dems or leftists but EVERYONE!
      Some were questioning how close we were to WWIII with Zelensky demanding NATO action, before bothering to wait and see what really happened.

      As more details come out from the CO shooting, will the story get memory holed if it does not fit the narrative?

      1. Upstate, you may hope that the left will stop jumping to conclusions to feed their conformation bias but they just are not able to control their salivation at the sound of a bell.

    2. Just like the massage parlour killings of Korean girls that were initially decried as anti-Asian hate crimes by a white supremacist Trump supporter, even though his statements indicated that self-loathing over sexual lust appeared to have been at the root of it. Was an anti-Asian motive ever proved?

  3. As i suspected:

    Colorado club shooting suspect is nonbinary, attorneys say
    https://www.axios.com/2022/11/23/colorado-club-shooting-suspect-non-binary-attorneys-say
    The public defenders for the suspect in the mass shooting at a Colorado Springs LGBTQ nightclub said in a Tuesday night court filing …that their client is nonbinary and uses they/them pronouns.

    Nancy Pelosi, MSNBC, et al, took a hammer to Republicans and tried to bludgeon them with culpability of this terrible incident in Colorado Springs. They engaged in yet more disinformation in promoting hatred of Americans by Americans. As I told people who told me about this story, the assailant was likely a peer of the folks that patronize Club Q gay bar. This wasn’t a “hate” crime, it was a mentally disturbed individual committing terrible acts.

    I recently stated, the left wing media uses these types of gay tragedies to create propaganda consistent with DNC political narratives, all for the sake of power.

    1. Zir’s(?) self identification verbiage will be blamed on Tucker, too. “He made me non-binary!”

  4. This Just In: The shooter who is suspected of gunning down five people at a Colorado Springs LGBTQ nightclub Saturday identifies as “non-binary” and uses “they/them” pronouns, attorneys said Tuesday according to a court filing obtained by The New York Times.

  5. “MSNBC national security analyst Frank Figliuzzi has called for Rep. Lauren Boebert (R-CO) and Fox News host Tucker Carlson to face civil liability . . .”

    Some people are missing an important fact: Figliuzzi was the head of the FBI’s Clevelend Division (among his many other *FBI* appointments).

    Still feel that the FBI is not politicized, and that it does not have a habit of creating political “criminals*?

    1. The public support for the likes of an Eric Swallwell as voiced in his ‘Twitterverse’ lends further concern to your observations herein. The fault lies in ourselves.

      1. “The fault lies in ourselves.”

        Partly — among those who do not see the pattern, and therefore fall for it, again, in the future.

        But the primary fault is with those who do not seek the truth. Whose characteristic habit of “thinking” is: Arbitrary assertions and the ends justifies the means.

        Upon seeing that he was mistaken, a conscientious person would say: I see that I was mistaken. Thank you for the correction.

        But such conscientiousness is in short supply today.

  6. According to his lawyer, the suspect is “nonbinary.” Some in the media are already changing the narrative to suggest the cause was online bullying several years ago.

    1. Please dont let this turn out he shot up the club from having his advances rejected and this was some kind of twisted revenge killing.
      No sarc implied. Serious.

  7. Does Fugliuzzi really believe his position? One the one hand, it seems impossible to be that ignorant of the 1st Amendment. That would mean he knows it’s baloney and is doing this for the team. On the other hand, some of these folks are very radical and were taught by radicals. Unbelievable.

  8. Newsflash! Breaking news! Breaking news! While we’re on the subject of disinformation here’s some real information that you might be interested in knowing. https://katv.com/news/nation-world/doj-san-francisco-da-disagree-on-facts-of-key-moment-in-paul-pelosi-attackjustice-department-david-depape-paul-pelosi-hammer-attack-indicted-federal-charge-nancy-pelosi-san-francisco-home-assault-attempted-kidnapping-united-states-political-extremism. That is if you want to know the truth.

  10. “Lauren Boebert, Gun Lover and Anti-LGBTQ Troll”

    – Daily Beast
    ——————

    Congressman Lauren Boebert – A Consummate Great American:

    Let’s

    Get

    Biden

    To

    Quit

  11. “MSNBC Analyst Calls for Liability for Boebert and Carlson … for the Colorado Shootings”

    – Professor Turley
    ______________

    Conservatives call for Elon Musk to buy NBC…

    oh, and CBS, ABC, CNN, PMSNBC, NPR, AP, Reuters, NY and LA Slimes, 60 Minutes, Meet the Depressed, et al.,

    and for the DOJ to prosecute those entities for election corruption, election fraud, vote tampering, etc., in 2020, precisely what Real President Donald J. Trump referenced.

  12. “Now, MSNBC national security analyst Frank Figliuzzi has called for Rep. Lauren Boebert (R-CO) and Fox News host Tucker Carlson to face civil liability for their commentary on transgender policies or controversies after the recent tragic shooting in Colorado.”
    *********************************
    Speaking as one myself and now as self-appointed Membership Director, I can now enthusiastically welcome paisan Figliuzzi into the Dumb Dago Club.

  13. What’s good for the goose should be what’s good for the gander. If it’s alright to prosecute Tucker Carlson for disinformation it should be alright to prosecute the Mainstream Media (fake news) for its spreading of disinformation about disinformation. You don’t have to watch all twenty minutes because you will soon get the point. https://m.youtube.com/watch?v=s8Tnq2QFBXo. So the question must come to mind. Has Tucker been lying to you or has the Mainstream Media been lying to you all along? A follow up question must then be asked. Have you been played for a sucker from the start? Honest answers would be appreciated.

  14. Well, if we are being asked to consider civil liability for news organizations and public figures, that allegedly uttered speech that facilitated harm/damages to the American people, then we’re going to need a bigger boat.

  15. This is the sort of tripe which the proposed law protecting LGB..et al rights is being called into question about. That any opposition, verbal or otherwise to brain dead pursuits by their tribal groups would be declared unlawful. The axiom of ‘your rights end where my rights begin’ must be preserved to assure and maintain balance.

  16. In retrospect, am I wrong in stating that cable television station MSNBC employs, contracts with, and features pundits, speakers with opinions, etc., who seem to go ‘over the line’ on a constitutional basis — repeatedly?

    2. I just want to be quietly hurried at a veterans cemetery. That’s all. The sooner the better.

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