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Think about politicians or pundits: When they want to express an outrageous idea, they phrase the idea as a question, so they can disavow its import.
Take two recent examples:
“Maybe the attack on Paul Pelosi was an inside job. Or the supposed assailant was a male prostitute. I’m not saying that these things are true, but we have to ask questions, don’t we? How could you possibly object to asking questions?”
Or:
“I’m not saying that the 2020 presidential election was rigged. But people have questions about the election. Why do you object to people asking questions? We have to get to the truth.”
This is outrageous without seeming to be outrageous. Suppose we turned the tables, and a pundit or politician were asked:
“I’m not saying that you’re a recidivist rapist ax-murderer. But surely that’s an important question to ask. We should answer it.”
After the politician huffed and sputtered, the questioner could go on:
“You’re getting terribly upset when I ask whether you’re a recidivist rapist ax-murder. Why do you get so defensive when I ask the question? Methinks thou doth protest too much. Maybe there’s something there after all.”
Courts have a way of dealing with this: Any question that you pose in court must have a reasonable basis in fact. If you have evidence suggesting that something is true, then you can ask a question about the subject. But you can’t make stuff up and say that you’re just asking questions.
Thus: If you had evidence that the attack on Pelosi was an inside job, you could ask a question about it. But if you had no reason to think that was true, the question would be off-limits.
So, too, with the 2020 election or recidivist rapist ax-murderers.
There is, of course, no way to enforce this legal rule outside of court, but isn’t it a good one?
If you have reason to think something is true, ask away. If you’re just making stuff up, be quiet and take a seat.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.
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