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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.
/1 https://twitter.com/alanfeuer/status/1336332021879095303?s=20
Two key reminders: (1) the law isn't what you want it to be, and (2) the law permits despicable things.
/1 https://twitter.com/alanfeuer/status/1336332021879095303?s=20
/2 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.)
/3 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.
/4 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.
/5 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.
/6 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.
Next, intentional infliction of emotional distress.
/7 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.
https://www.law.cornell.edu/supct/html/09-751.ZO.html
https://www.law.cornell.edu/supct/html/09-751.ZO.html
/8 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.
/9 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.
/10 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.
/11 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.
/12 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.
/13 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 ....
/14...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.)
/15 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.
/16 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.
/17 "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.
/18 In conclusion, though, seriously, do everything you can to shun DiGenova and his ilk; they're bad people doing bad things to the country. /end
