FreeSpeech and Censorship: Thread

[grarpamp]

https://jonathanturley.org/2020/12/09/krebs-files-lawsuit-against-digenova-the-trump-campaign-and-newsmax/

https://onedrive.live.com/?authkey=%21AFtCgSn%2Dq5lrL8c&cid=477107F019583E73&id=477107F019583E73%21779&parId=root&o=OneUp
http://www.altlaw.org/v1/cases/390640
https://supreme.justia.com/cases/federal/us/376/254/case.html

https://newsmax.com/
https://www.twitter.com/newsmax


Fired Pussy Christopher Krebs whines to the State to shutter FreeSpeech...


"
Fired CyberSec Head Krebs Files Lawsuit Against diGenova, The Trump
Campaign, And Newsmax

Authored by Jonathan Turley,

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
"