Color me at least as skeptical about this effort as my earlier level of disbelief in the chances of Texas’ lawsuit prevailing at the Supreme Court. Christopher Krebs has earned plenty of sympathy for his rough rhetorical and professional treatment by Donald Trump and his allies, and for good reason. However, his attempt to recover damages for it from Joseph diGenova, the Trump campaign, and Newsmax has about as much chance as Sidney Powell’s Kraken suits, even if this complaint is much more polished (via Memeorandum):
The former top U.S. cybersecurity official responsible for securing November’s presidential election sued the Trump campaign and one of its lawyers for defamation Tuesday, asserting that they conspired to falsely claim the election was stolen, attack dissenting Republicans and fraudulently reap political donations.
Christopher Krebs, who was fired Nov. 17 by President Trump after he refuted the president’s claims of widespread election fraud, singled out comments made almost two weeks later by attorney Joseph diGenova, who said Krebs should face the same punishment inflicted on those convicted of treason because he had asserted that the 2020 election was the most secure in history.
“He should be drawn and quartered,” diGenova said on the outlet Newsmax, a third defendant. “Taken out at dawn and shot.”
Was that a stupid and despicable thing to say? No doubt. Should Newsmax be a bit embarrassed by it? It’s tough to say why at least in terms of responsibility, as Newsmax doesn’t employ diGenova nor does it provide him a script for his extemporaneous analysis. In fact, the complaint notes in paragraph 14 that diGenova’s appearance was as Team Trump’s lawyer, not for Newsmax.
And could these remarks have been a threat? Morally, maybe — but not legally in the Brandenburg sense. That matters, because one of the allegations in this suit is “diGenova’s dangerous incitement to violence”:
It’s clear here that diGenova isn’t threatening Krebs or inciting anyone (in the legal sense) to action. He’s using hyperbole — irresponsibly, granted — to express his opinion of Krebs and his arguments. It’s akin to saying some politicians should be “tarred and feathered,” or “run out of town on a rail,” which also describe real mob actions of the past. It might be heartbreaking to hear that Krebs’ 10-year-old child worried that “Daddy’s going to get executed?”, but that’s not actionable even if true; to claim otherwise is to endorse just another version of the heckler’s veto. Critics of public officials can’t be constrained by potential unhappiness of their children, however, or by what other idiots might say in response.
Therefore, one cannot take this seriously as a purposeful threat or a defamatory statement, but even if an argument existed for the latter, it runs into another problem. Both by dint of his position as a high-ranking former government official and his actions to engage in national media, Krebs is a public person under the Sullivan standard. Krebs spoke out publicly both before and after his termination to counter the allegations made by Trump and his campaign about supposed election fraud. He engaged in a public debate on national platforms to rebut Trump and his allies, which is why diGenova responded to him on Newsmax.
Under Sullivan, it makes it difficult for any “public person” to press a defamation claim. They have to establish “actual malice” as well as demonstrate the falsity of whatever was said or published about them. There’s not even a redressable claim here, as diGenova never actually accuses Krebs in an explicit way of crime. He calls Krebs a “moron,” which is clearly opinion based on Krebs’ public statements contrary to diGenova’s own public opinion, and adds in the rest for hyperbolic emphasis. Stupidly hyperbolic emphasis, sure, but it’s still just hyperbolic opinion and not at all a serious claim of some malicious and actionable specific falsehood about Krebs.
As for Newsmax’s role in this, it’s a mystery why Krebs included them at all, except to perhaps broaden the possibilities of deeper pockets. News outlets feature guests all the time, but that doesn’t make them specifically liable for their speech. Nor should it, because to apply that kind of liability would be to kill public debate and analysis. For instance, plenty of other media outlets have aired commentary calling Trump and his team lots of unpleasant names for their efforts to overturn the election, but none of that is actionable either.
As for Krebs’ claim to deserve recompense for “intentional infliction of emotional distress,” that won’t cut it either, sympathetic as it might be. The Supreme Court settled this in Hustler Magazine v Falwell over thirty years ago. When it comes to criticism of public persons, “emotional distress” is not in and of itself actionable regardless of how outrageous the speech might be:
The State’s interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. … “Outrageousness” in the area of political and social discourse has 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, and cannot, consistently with the First Amendment, form a basis for the award of damages for conduct such as that involved here.
Finally, much of this lawsuit falls into the “generalized grievance” category rather than particularized injury. It goes on at length about Donald Trump’s actions, even though Trump himself isn’t one of the respondents in the lawsuit. It spends pages detailing the social-media reaction to diGenova, even though diGenova has no way of controlling what other people do. (Nor, it should be pointed out, does Krebs acknowledge that his insistence on defending the election had already created a monster reaction on social media even prior to diGenova’s comment.) This lawsuit is all over the place in attempting to build a case, so much so that it appears to talk itself out of its own complaint — or to bury its problems under mounds of sympathy for Krebs over his ill treatment.
As it happens, I do feel sympathy for Krebs, and think he’s gotten a raw deal. The way to address that, though, is to continue to make his case and criticize diGenova, not to push through a nonsense defamatory lawsuit. It’s no Kraken, but this won’t emerge from the depths either.