An interesting contrast develops in two controversies. We recently talked about how legal experts were calling for Joe diGenova to be banned for recently saying that Cybersecurity and Infrastructure Security Agency head Chris Krebs should be “pulled and quartered” for his failure to protect that election . Krebs has filed a legally dubious lawsuit against diGenova. In Michigan, Governor Gretchen Whitmer and other Democrats have defended MP Cynthia Johnson, who called on “soldiers” to “do it.” [Trump supporters] pay ”for her criticism and harassment from her. Those who insisted on banning and other measures for diGenova are conspicuously silent about such overheated rhetoric from the left.
From the start, I disagree that Johnson should have been removed from committee positions. I took her video as another example of hyperbolic excess.
The Michigan attorney general has convicted both Johnson and those who threatened her in the past.
For her part, Whitmer called for “a little compassion and grace” for the legislature because she has “been through a lot”. She was referring to the high profile hearing on election fraud with Trump’s attorney Rudy Giuliani and having someone close to her Covid-19 contract.
The fact is that such rhetoric reflects our angry politics. We must take some advantage of doubting whether such comments are real or hyperbolic requirements. In legal proceedings, the courts developed the doctrine of Mitior Sensus, which was used to assume the innocent meaning of defamatory works when two different meanings (one harmful and one innocent) are possible.
In this political environment, however, such an allowance is particularly denied to the right wing. Mark Zaid stated that “no sane person” who heard diGenova demand that a person be drawn and quartered and then shot would “have considered it a” joke “.” No sane person. Randall Eliason of the Washington Post seemed to disagree that this was “just a colorful metaphor”. Professor Steve Vladeck stated, “Lawyers making such threats should be expelled. Point.”
Johnson is not a lawyer, but in the face of such statements, there is strikingly different treatment. Where Zaid claims that “no sane person” would think that someone needs to be “drawn and quartered”. . . and shot “is a joke, there is ample sympathy for Johnson and others who have used alarming rhetoric. Obviously diGenova was joking. Many of us immediately condemned the comments as inconsiderate, but Zaid’s claim reflects how often the current debate is disconnected from a legal or factual reality.
I don’t think Johnson or diGenova incited violence. Free speech must leave elbow room for reckless or hyperbolic language, but the allowance must be applied consistently.