Patterico's Pontifications

12/8/2020

Fired Cybersecurity Chief Sues Trump Campaign, Lawyer Who Said He Should Be Shot (ADDED)

Filed under: General — Dana @ 9:31 am



[guest post by Dana]

Remember Chris Krebs? Last month, an angry President Trump fired him for doing his job:

Trump tweeted Tuesday night that Krebs had put out a statement concerning the election that was “highly inaccurate,” apparently a reference to a joint statement Thursday from CISA, the Election Assistance Commission and groups that represent the chief election officers in every state. The statement read, in part, “There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.”

Today, the New York Times reports that Krebs has filed a lawsuit against the Trump campaign, lawyer Joseph DiGenova (who demanded that Krebs be “drawn and quartered”) and Newsmax:

On Tuesday, Mr. Krebs…filed a lawsuit against Mr. DiGenova accusing him and the Trump campaign of defamation and the infliction of emotional distress.

The lawsuit, which seeks monetary damages and the removal of the threatening video from the Newsmax archives, also made a far more extraordinary claim: that Mr. Trump, members of his legal team and Newsmax have been engaging in “a calculated and pernicious conspiracy” to defame and injure not just Mr. Krebs but other members of the Republican Party who have stood up against the president’s baseless claims of fraud.

“Newsmax, the campaign, and DiGenova have a symbiotic relationship,” the lawsuit says. “Newsmax disseminates and amplifies the campaign’s and DiGenova’s attacks on perceived political threats and allegations of election stealing, which pleases viewers, prompts endorsements from President Trump, increases ratings, supports the political goals of the campaign, and helps raise more money from duped supporters.”

An interesting note about Newsmax, currently riding high since becoming the latest media outlet to carry water for Trump:

Newsmax, which was accused in the suit of aiding and abetting by amplifying Mr. DiGenova’s threat, has recently capitalized on Mr. Trump’s displeasure with Fox News and devoted itself to carrying the president’s unsupported claims of massive fraud in the elections. Its prime-time ratings have soared in the process. “People want something that tends to affirm their views and opinions,” Christopher Ruddy, its chief executive, told The New York Times last month.

Additionally:

The suit notes…that the president has attacked Governors Doug Ducey of Arizona and Brian Kemp of Georgia for failing to assist him in his attempts to overturn the vote counts in their states. It also points out that Mr. Trump and his legal team sought to persuade Republican leaders in states like Pennsylvania to go along with their scheme to “ignore certified election results” and instead have state lawmakers appoint delegates to the Electoral College.

And unsurprisingly, given the similar experiences of other election officials and employees whose professional integrity angered the President and his base, the lawsuit claims that after Krebs was fired, he too began to receive death threats. As a result, he and his family were forced to flee their home:

In his suit, Mr. Krebs said that after Mr. DiGenova attacked him on Newsmax, he received death threats in tweets and emails that labeled him a traitor. Because of the threats, Mr. Krebs said, he and his family were forced to leave their home and Mr. Krebs’s children were terrified.

How terrified were they?:

One of Krebs’ children asked him, “Daddy’s going to get executed?” the suit says.

I’m getting tired of hearing myself repeat the same old refrain but, it is a disgrace that the President of the United States continues to play this dangerous game of making baseless claims of a rigged election. It is a disgrace that he encourages his supporters to join him in protesting the election results. Decent Americans doing their jobs with integrity and professionalism are being endangered as a result of speaking the truth. The President’s behavior is an insult to every American and to our electoral process, and it needs to stop. Especially when people are receiving death threats as a result of him stoking the flames of bitterness and resentment like he just did at his rally in Georgia:

“We’re all victims. Everybody here, all these thousands of people here tonight, they’re all victims. Every one of you.”

Finally, here is an excerpt of an interview Krebs did with Jonathan Swan at Axios:

Christopher Krebs, the nation’s former top election security official, tells “Axios on HBO” that President Trump is spreading disinformation, which he described as a form of domestic “threat” that he swore an oath to defend against in his job.

“The caller was inside the house,” Krebs told me. “The president is a big part of the disinformation that’s coming out there about the rigged election, but there are absolutely others.”

Asked how he grappled with Trump’s false claims while he was still working for him, Krebs said, “One of the questions we asked: ‘What would we do if the Russians were doing this?'”

“The oath that we pledged coming into office as a federal official is that you uphold and defend the Constitution from threats foreign and domestic. We upheld our oath, carried it out.”

When asked the obvious follow-up — is President Trump a domestic threat? — Krebs replied: “There is disinformation that he is spreading. I mean, disinformation is one type of threat.”

And like me, he would like to see real pushback on these continued attacks:

“Republican leadership needs to stand up and say that, ‘This is not, this is just not what we need to be telling the American people right now.”

“We need to be restoring confidence in the election. We need to be restoring confidence in democracy. We all just for some reason think that democracy is resilient and can withstand this sort of attack.”

“I actually think that democracy’s quite fragile. And when the institutions themselves are under attack from the inside, as you said, that’s pretty close to an existential issue. And so we need the other parts of, you know, the three-part government to actively push back and actively engage.”

I would also ask Republican leadership: if this isn’t a hill worth dying on, then for heaven’s sake, what is?

[Ed. Was Joe DiGenova’s comment an actual death threat, or was it just hyperbole? Is defamation the way to go in this lawsuit, or would unlawful termination be a more effective route?]

ADDED: Popehat explains why he doesn’t think the lawsuit is not the best of ideas:

OK, let me expand on why Mr. Krebs’ lawsuit against Newsmax, Joe DiGenova, and the Trump Campaign is unlikely to succeed and a bad idea.

Two key reminders: (1) the law isn’t what you want it to be, and (2) the law permits despicable things.

Mr. Krebs sues for two things: Defamation and Intentional Infliction of Emotional Distress (he also sues Newsmax for aiding and abetting, but that’s non-substantive — it’s just trying to put Newsmax on the hook for those claims.)

Though the complaint is extremely factually detailed, this is the heart of Mr. Krebs’ defamation claim: that DiGenova, on behalf of the Campaign, implied that he had committed treason, because drawing and quartering is the historical penalty for treason.

But defamation is making a provably false statement of fact about someone. Hyperbole, invective, insult, and crass political rhetoric aren’t defamatory because they’re not understood to be statements of fact, especially in the context of someplace like Newsmax.

Here, there’s so such provably false statement of fact. NOBODY understands DiGenova to be accusing Krebs of literal treason of the sort defined in the constitution. Rather it’s clear it’s FIGURATIVE treason — disloyalty to Trump. Krebs EMPHASIZES THIS IN HIS OWN COMPLAINT.

DiGenova’s figurative accusation of treason is despicable and un-American, but it’s not a provably false accusation of fact.

Next, intentional infliction of emotional distress.

IIED was once seen as an end-run around the limits of defamation. The Supreme Court shut that door most of the way in Hustler v. Falwell, and slammed it shut in Snyder v. Phelps, the case about Westboro Baptist Church picketing soldiers’ funerals.

Post-Snyder, the rule seems to be that public forum speech on a matter of public interest that doesn’t fall into another First Amendment exception is protected by the First Amendment from IIED claims. This qualifies.

Note that Krebs does not sue for threats or for inciting threats. Nor, likely, could he. This was not a true threat — a threat that a reasonable person would interpret as a statement by DiGenova expressing intent to do harm.

Nor, likely does it qualify as incitement outside First Amendment protection, as it was not intended and likely to cause imminent lawless action. That’s likely why Krebs didn’t try to pursue those theories.

Maryland has a weak anti-SLAPP, so Krebs may escape that. But the lawsuit is a tactical error. It just draws more attention to DiGenova’s nutty conspiracy theories, and it’s very unlikely to succeed.

Moreover, if DiGenova is nutty enough, he could litigate it rather than dismiss it and use it as a vehicle to conduct wide-ranging and disruptive discovery into all of his election conspiracy theories. That’s why you don’t sue nuts.

There could be a consequence for DiGenova. He’s a member of the bar and represents himself as part of the Campaign’s legal team, and the Campaign is embroiled in litigation that involves the subjects he’s talking about, and he’s just uttered something outrageous that at the very most charitable is a figurative call for the death of a potential witness on national television. That may well be bar-sanctionable. (Note that the application of the First Amendment to bar discipline is hazy.)

To repeat: the law doesn’t do what you want, and the law permits horrific things. This is one of them. The moral equities here are stark. Krebs is a good man and DiGenova and Newsmax are evil. Their conduct is despicable and un-American.

However, the First Amendment protects saying despicable and un-American things, even if those things might encourage other despicable and un-American people to make threats — unless it is likely and intended to cause imminent lawless action.

“He should have known that using such harsh rhetoric about me would cause people on the internet to threaten me” is not a good basis for lawsuits and can be pointed at anyone. That’s why we need First Amendment guideposts.

Go to Popehat’s Twitter thread for supporting documents/references.

A copy of Chris Krebs’ complaint can be found here.

–Dana

UPDATE BY PATTERICO: I read the beginning of this post intending to add an update saying that while I think Krebs has been treated despicably, this lawsuit is meritless. I see Dana has shown us that Popehat did it for me, so . . . I work here is done.

[sic]

45 Responses to “Fired Cybersecurity Chief Sues Trump Campaign, Lawyer Who Said He Should Be Shot (ADDED)”

  1. Good morning.

    Dana (cc9481)

  2. Dana good post. I think that’s happening is a disgrace and that it’s being perpetrated by people who have no patriotism.

    That said, the statements of Trump and his lawyers are news worthy and Newsmax is within their rights to report them.

    Additionally, the statements are clearly opinion, and the anti-american’s saying them are within their right to say them.

    I think this suite is, and should be, a loser.

    Time123 (457a1d)

  3. Time123, certainly if DeGenova’s comments were just hyperbole, they are protected speech. But given that we can be reasonably sure that Trump fired him as an act of retaliation, do you think that unlawful termination would be an avenue worthy to pursue? I’m not a lawyer, so I don’t really know the intricacies involved in that. Especially when it’s a government job, and not knowing what he may have signed upon employment.

    Dana (cc9481)

  4. Dana, I’m also not a lawyer, so my answer might be based on a limited or incorrect understanding.

    Krebs was a high level appointee. The executive should have broad latitude in firing / disciplining them. In this case, I believe that Krebs was fired because he accurately stated that his boss was lying. I believe he’s right, but he publicly embarrassed his boss.

    I’m glad that Krebs stated what he did. I think Biden should re-hire him. He seems competent and more devoted to his country then politics.

    But I think he’s sufficiently senior that being fired for embarrassing his boss is reasonable. If he were an analyst that had performed technical work I would feel differently.

    I think the proper remedy is that Trump lost re-election.

    But, I’m open to being persuaded differently.

    Time123 (457a1d)

  5. Trump can fire him at will, but he can’t lie publicly about why he fired him and that lie damages Krebs’ reputation.

    nk (1d9030)

  6. Defamation probably gets a bigger reward. Then again, the jury might think “How can you defame a Trump appointee?”

    Kevin M (ab1c11)

  7. @5, that theory is interesting.

    Time123 (b0628d)

  8. Likewise, DiGenova might be protected from criminal prosecution under Brandenburg v. Ohio but he is not protected from civil damages for defaming Krebs or casting him in a false light. This would, however, depend on the “false light” and “innuendo” doctrines of the state in which the suit is filed.

    nk (1d9030)

  9. Death threats arise from very sick minds. They should be denounced, no matter their origin or who they’re directed towards, or whether it makes Trump or Trump critics look bad for not doing so.

    https://thehill.com/homenews/news/527841-carter-page-sues-over-surveillance-related-to-russia-probe

    Former Trump campaign adviser Carter Page filed a federal lawsuit alleging he was the victim of “unlawful spying” during the FBI’s Russia investigation.

    The suit, filed Friday in federal court in Washington, D.C., alleges that the FBI and Department of Justice (DOJ) made a series of errors when they submitted applications to the Foreign Intelligence Surveillance Court in 2016 and 2017 for a warrant to surveil Page, according to The Associated Press.

    The case also claims that Page has suffered as a result of his involvement in the Russia probe, according to the case. Page alleges that he has suffered economic losses, experienced death and kidnapping threats, and damage to his reputation, according to the law suit.

    beer ‘n pretzels (042d67)

  10. @9, I’m especially disappointed in how HRC’s lawyer went on Maddow and called for Carter page to be hung for treason. Hillary’s open encouragement and re-tweeting angry violent tweets at Page, and others, show that she’s as bad as Trump. Can you believe how she tried to get legislatures of states she lost of swing the election her way? I hear she was actually calling them directly to help her cheat.

    Time123 (b0628d)

  11. @10: Gee, I’m even more disappointed Trumps minions didn’t doctor evidence put before a FISA court to spy on Krebs, leveraging the might of federal law enforcement against him.

    Looks like some death threats are more equal than others in your mind. Amazing. I couldn’t have asked for a better example of my point.

    beer ‘n pretzels (042d67)

  12. LOL Time123.

    You’ve been on a roll lately. I’ve also been on a roll by shutting up and not exposing my frustration.

    Dustin (4237e0)

  13. The only thing I begrudge is the drama and attention the Orange Twaddlestrudel is getting. The “lamentations of [his] women” is music to my ears, otherwise, as are his futile wrigglings on the hook.

    nk (1d9030)

  14. The “lamentations of [his] women” is music to my ears

    LOL X 2

    Dustin (4237e0)

  15. I don’t believe DiGenova made a death threat, but he shouldn’t have said it, and there’s no assurance that the watchers and listeners of Newsmax saw his comments as hyperbole, especially since Krebs received death threats.
    IANAL, but it seems that DiGenova should pay some kind of price.

    Paul Montagu (77c694)

  16. @10: Gee, I’m even more disappointed Trumps minions didn’t doctor evidence put before a FISA court to spy on Krebs, leveraging the might of federal law enforcement against him.

    Looks like some death threats are more equal than others in your mind. Amazing. I couldn’t have asked for a better example of my point.

    beer ‘n pretzels (042d67) — 12/8/2020 @ 11:05 am

    I should have been more clear since you’re not very good at understanding meaning.

    1. Death threats are despicable.
    2. Trump and his lawyer make and encourage them, which is also despicable.
    3. HRC didn’t do that.
    4. The equivalence you tried to draw here doesn’t exist outside of your own mind.

    Did you grasp it that time?

    I’ll assume so and point out, from your link

    Inspector General Michael Horowitz at the time found that the FBI was justified in investigating possible ties between the Trump campaign and Russia

    Time123 (b0628d)

  17. Since we’re talking about fired federal employees, Judge Sullivan dismissed the Flynn case because it was moot. Absent the pardon, he would’ve denied the DOJ motion and sentenced the criminal.
    I haven’t read the actual ruling, but I guess Patterico might have something to say.

    Paul Montagu (77c694)

  18. How come all of Trump’s female accomplices look like “mean girls” and/or bimbos?

    Kevin M (ab1c11)

  19. As pointless as it is to point out the obvious, I’ll point out that poor, victimized victim Carter Page and all the other poor, victimized victims of the Mueller investigation were poorly victimized while their erstwhile boss was supposedly the most powerful man in the world. Trump was as indifferent and as incompetent at protecting his own people who helped him become President as he was in protecting the rest of the country he had sworn an oath to defend.

    nk (1d9030)

  20. Is it correct for a judge to comment while dismissing a case due to a pardon? It puts his judicial temperament into question.

    While a pardon does not mean someone is actually “innocent” (did not do it) a guilty plea does not mean that someone is actually “guilty” (did do it).

    Kevin M (ab1c11)

  21. I’ve updated the post with an explainer from Popehat as to why he believes the lawsuit is a bad idea.

    Dana (cc9481)

  22. Prediction: If Trump pardons everyone else, resigns and is then pardoned by Pence it is almost assured that he will be arrested and tried by NY state, along with any accomplice they can haul up on state charges.

    Kevin M (ab1c11)

  23. I hope Krebs wins in civil court. How is this not a defamation case?

    whembly (c30c83)

  24. R.I.P. Chuck Yeager, 97.

    The Rightest of Stuff.

    Had the great luck to meet Yeager up at Edwards AFB in October, 1997. He’d just finished breaking the sound barrier- again, in a modern fighter jet for the crowds on hand celebrating the 50th anniversary of his historic flight there over the high desert. The aircraft was a far cry from the X-1 he piloted back in 1947 — named ‘Glamorous Glennis’ – for his wife. Most memorable were his distinctive West Virginia drawl; his affable attitude as he signed a photo, now proudly displayed in my den; and his piecing eyes. His vision was extraordinary. Yeager’s WW2 record would be laudatory on it’s own and worth looking up if you’re so inclined– as were his natural piloting skills, his rivalry w/Scott Crossfield and his training w/up and coming test pilots which went on to become astronauts– like a fella named Armstrong. He wrote a popular book or two and made a cameo in the film, ‘The Right Stuff’ as well. [Look for him in the bar scenes at Pancho’s.] But it is his contribution to the advance of aviation, piloting the X-1– which is on display at the NASM in Washington along w/Lindbergh’s Spirit of St. Louis, the Wright flyer ‘Kitty Hawk’ and Apollo 11’s Columbia— which will endure.

    Ad Astra, General Yeager.

    Ad Astra.

    DCSCA (f4c5e5)

  25. @21 Just saw that addendum by Dana on Popehat’s article… I’ll defer to Popehat’s expertise here, but I wish there is something that could be done here.

    whembly (c30c83)

  26. @20

    Is it correct for a judge to comment while dismissing a case due to a pardon? It puts his judicial temperament into question.

    While a pardon does not mean someone is actually “innocent” (did not do it) a guilty plea does not mean that someone is actually “guilty” (did do it).

    Kevin M (ab1c11) — 12/8/2020 @ 11:44 am

    Judge Sullivan can do whatever he wants, especially since it’s mooted.

    That doesn’t mean had Flynn NOT gotten the pardon, he would’ve done the same thing. Because, if he had, I’d wager GOOD money that the Circuit court would then GRANT that mandamus to dismiss and possible remove Sullivan from the case for bias.

    whembly (c30c83)

  27. Judge Sullivan can do whatever he wants

    Sure, but that does not mean it wasn’t a rant from the bench.

    Kevin M (ab1c11)

  28. Paul Montagu @15-
    IANAL, but it seems that DiGenova should pay some kind of price.

    He was forced out of the Gridiron Club-that’ll teach him!

    Rip Murdock (d2a2a8)

  29. It’s not a rant, it’s a thoughtful and well-reasoned ruling:
    https://www.washingtonpost.com/context/memorandum-opinion-u-s-v-michael-flynn/892dc298-b53a-4613-8510-75565e6d742c/?itid=lk_interstitial_manual_10
    Note that he denies the Rule 48(a) motion to dismiss as moot and then dismisses the case on consent as moot.

    nk (1d9030)

  30. Is it correct for a judge to comment while dismissing a case due to a pardon? It puts his judicial temperament into question.

    Flynn and DOJ spent years cynically making a mockery of his courtroom. Taking potshots at them on their way out the door–especially at DOJ–may not be model behavior, but it doesn’t particularly trouble me.

    (Not That) Bill O'Reilly (6bb12a)

  31. Axios reports congresscriter eric fartwell swallwell was a communist chinese asset run by sex spy aptly named fang fang. Tucker carlson reports communist chinese professor says the bidens are bought and paid for by china along with wall street firms.

    asset (c8163c)

  32. At some point, doesn’t conspiracy to commit election fraud become unlawful?

    If Trump called up the governors of key battleground states before the election and said “We’re sending you the Venezuelan algorithm; I want you to ignore the votes actually cast, and throw the election to me,” wouldn’t that be a serious crime?

    Why is it any different if he asks them to do the same thing after the election?

    Dave (1bb933)

  33. . I’ve also been on a roll by shutting up and not exposing my frustration.

    Dustin (4237e0) — 12/8/2020 @ 11:06 am

    I object to this silliness and would like you to stop it right now. Frustration when commenting about what is happening with Trump is expected. It would troubling if there weren’t any frustration. You do us a disservice by not commenting, so knock it off.

    Dana (cc9481)

  34. I’m read Sullivan’s ruling. He denied as moot the original DOJ motion to dismiss, but he granted DOJ’s consent motion, based on the presidential pardon that rendered the case moot.
    The first third of the ruling is a long recitation of the case, but what stood out to me was his conclusion that the charges against Flynn were material. This was followed by a long throat-clearing of Rule 48, citing all the relevant court cases and how they applied. This part seems relevant.

    The Court is not persuaded by the government’s argument, however, because it fails to acknowledge the possibility that the “considered view of the Executive Branch as a whole” could be contrary to the public interest.

    Sullivan needed a reason from DOJ why Flynn’s prosecution was contrary to the public interest but he didn’t get a good answer as most of the reasons were pretextual, “particularly in view of the surrounding circumstances”, a big part of the “surrounding circumstances” being Trump’s attempts to put his thumb on the scale of justice.

    And simultaneous to the President’s “running commentary,” many of the President’s remarks have also been viewed as suggesting a breakdown in the “traditional independence of the Justice Department from the President.”

    It’s just true that Trump corrupts and corrodes everything he touches.
    Sullivan questioned DOJ’s motives on their materiality and reasonable doubt arguments, and he knocked down both legs of their argument. On materiality, Sullivan found that DOJ’s “new use of the narrowed definition of ‘materiality’ is perplexing” and contradictory. On reasonable doubt, he was basically unpersuaded by DOJ’s new rationales.
    Sullivan finished by saying that Flynn was pardoned but not “innocent” of the charges. Case closed.

    Paul Montagu (77c694)

  35. hat Mr. Trump, members of his legal team and Newsmax have been engaging in “a calculated and pernicious conspiracy” to defame and injure not just Mr. Krebs but other members of the Republican Party who have stood up against the president’s baseless claims of fraud.

    He has to prove malice, that they knew it was false, or had a reckless disregard for the truth.

    But in addition, it has to be defamatory. Saying Krebs was mistaken would not be defamatory. Even saying that Krebs was careless would not be very strong defamation. The worst accusations may not be actually endorsed by Trump. This is bigger than Trump.

    I think it’s important to get to the bottom of who is inventing these various claims about election fraud etc. Those are the people who need to be exposed. I suspect some people who are actually independent of Trump. It;s hard to see at this point Sidney Powell as following Trump’s direction. We just don’t know what’s going on here – but I don;t think she or Lin Wood ;s crazy.

    Now we can this about Trump: Throughout his life, in filing lawsuits, he has not cared about the validity of his claims (although, of course he would prefer better ones) and he learned this from Roy Cohn. There are lots of things that can lead to that conclusion.

    This may have carried over to his discussion of public matters. We can see that in the way he will re-tweet it seems virtually anything as long as it supports his position.

    I suppose that Krebs; true motive is to get them to stop or retract. If so, it’s actually too soon. He might, however, make them a bit cautious about personalizing this about him. It may be also that the disinformation has started to focus on him because he’s now taking a very public position in fighting the claims that the election was stolen, so for what they say to be true, he has to be intentionally lying, so that was almost to be expected.

    There might be some cause of action for instigating death threats – you have to figure it out. Maybe issue a demand that DiGenova calm things down, if you could figure out what would do it. It can’t be like a hostage video. One thing id sure; By no standard was what DiGenova wrote a reasonable statement.

    Sammy Finkelman (63d78b)

  36. Dana & Dustin, I agree that Dustin should comment more. I’m not trying to be inflammatory lately. I just don’t have the patience for the lies people are pushing about this election. I know random commenters on the internet aren’t subject matter experts, but politicians are knowledgeable about how the process works. Their silence, obfuscation and lies are really getting on my nerves.

    Time123 (457a1d)

  37. IANAL, but it seems that DiGenova should pay some kind of price.

    In days gone by, Mr. Krebs would have sent his second over to the home of Mr. DiGenova, whereby the latter man would be presented with a card demanding satisfaction. I’m not so sure that wasn’t the more honorable way than slogging it out in court.

    JVW (ee64e4)

  38. Texas AG ken paxton has taken time off from defending himself in court on numerous criminal charges to try and overturn the 2020 election in the supreme court, saying unlike texas where the keep as many people as possible from voting ga, mi, pa. and wi. didn’t follow the will of their republican legislatures to prevent as many democrats as possible from voting. Evedently hoping the republicans on the supreme court will pull another 2000.

    asset (c8163c)

  39. Breaking-

    SCOTUSblog
    @SCOTUSblog
    The Supreme Court has rejected a Pennsylvania Republican congressman’s request to prevent Pennsylvania from certifying its presidential election results in favor of Joe Biden.

    Rip Murdock (d2a2a8)

  40. UPDATE BY PATTERICO: I read the beginning of this post intending to add an update saying that while I think Krebs has been treated despicably, this lawsuit is meritless. I see Dana has shown us that Popehat did it for me, so . . . I work here is done.

    [sic]

    Patterico (115b1f)

  41. Popehat makes a reasoned argument, but I disagree. The 1rst Amendment is not absolute. The old saying is, you can’t cry fire in a crowded theater. You can if there’s a fire. However, if there’s not and your intention was to cause panic, possibly leading to injury in a frightened, fleeing crowd, that’s an actionable offense. DiGenova’s reprehensible rhetoric was so incendiary it led to multiple death threats that were frequent or serious enough the Kreb family was forced to flee their house and go into hiding. That’s extreme emotional disturbance, and Kreb should have some recourse. I doubt he’ll win the case for defamation, but at least DiGenova, the Trump campaign and Newsmax should be fined to compensate him for any economic distress he experienced as a result of this vile rhetoric. Also, I think the FBI should be tasked with tracing the death threats and those that can be found to have made them should be charged with harassment. It is a crime to threaten someone with violence.

    Gawain's Ghost (b25cd1)

  42. 41. With all due respect, Popehat’s right, and I don’t think it’s a close call. DiGenova, the Trump campaign, Newsmaxx and of course Trump himself, should be pilloried and purged from polite society. But what they said was protected speech, and properly so. The price we pay for the First Amendment is high, but on balance worth it.

    The people who made actual death threats should be pursued and charged, obviously.

    lurker (d8c5bc)

  43. Well, lurker, I didn’t go to law school, but I’ve read enough law books and studied enough case files, while earning and maintaining my real estate license I could probably pass the bar exam if I put my mind to it. That’s all that’s required to become a licensed attorney in Texas, simply pass the bar. You don’t need a college or law degree. Anyone fresh out of high school can become an attorney just by going to a law library, studying court procedure and rules of evidence, sitting in on a few trials to observe, and passing the bar exam. As a realtor, the only thing I can’t do that a lawyer can is write a contract and represent someone other than myself in court. But I do know real estate law, contract law, business law, marketing, advertising, and so forth.

    Plus, I’ve watched every episode of Law & Order, multiple times over. Ha! Yeah, I know it’s a dramatization, but it’s very well written and doubtless legal experts were consulted in the screen writing.

    Anyway, here’s how I look at it. Incendiary speech that incites violence or death threats is not protected speech. If I were a lawyer trying Kreb’s case in court, I would ask the relevant question. What is the reasonable expectation of someone using incendiary rhetoric, calling for innocent citizens to be lynched, drawn and quartered, or taken out and shot?

    Thankfully, in this case, it didn’t escalate to actual violence, thus far. But we have seen violence on the streets this year, protestors being run over and killed, people being shot and killed, so death threats have to be taken seriously. If the threats against the Kreb family were so frightening that they felt they had to leave their house and go into hiding, then the persons or publications responsible for inciting them should be held accountable.

    I don’t think Kreb has a case for defamation, but I do think he has a case for emotional disturbance and economic distress. If I were on the jury in this case, should it go to trial, I would vote for compensation, payable by DiGenova, the Trump campaign and Newsmax.

    Gawain's Ghost (b25cd1)

  44. That’s all that’s required to become a licensed attorney in Texas, simply pass the bar. You don’t need a college or law degree.

    A hundred years ago, maybe. Not any recent time. For more than a little while now, you need graduation from an ABA accredited law school to sit for the bar exam in Texas. DRJ already corrected you once on this.

    nk (1d9030)

  45. GG, I’m not criticizing your credentials. Lawyers are wrong about the law all the time, myself very much included.

    Anyway, here’s how I look at it. Incendiary speech that incites violence or death threats is not protected speech. If I were a lawyer trying Kreb’s case in court, I would ask the relevant question. What is the reasonable expectation of someone using incendiary rhetoric, calling for innocent citizens to be lynched, drawn and quartered, or taken out and shot?

    Incendiary speech is only unprotected if it falls into a clearly delineated First Amendment exception. For DiGenova’s speech to lose FA protection it has to be either a true threat (per Popehat, “a threat that a reasonable person would interpret as a statement by DiGenova expressing intent to do harm”) or incitement (“intended and likely to cause imminent lawless action”). It’s neither.

    lurker (d8c5bc)


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