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Friday, October 01, 2021

ICYMI: My thoughts on the Alex Jones Defamation Cases (Fall 2018--First Amendment News)

Libel, Lies, and Conspiracy Theories

       Alex Jones of Infowars certainly knows how to monetize controversy, or at least he did until now. Since 1999, Jones has built a vast audience and has made millions of dollars by peddling conspiracy theories and survivalist supplies via the radio, Internet, and social media. He’s asserted that the U.S. government was behind the attacks on 9/11, that Democratic officials were using a pizza parlor in D.C. to operate a satanic child porn ring, that the Sandy Hook Elementary School shooting was a hoax, that a man who witnessed the killing of a woman protesting against armed white nationalists in Charlottesville was actually a deep state operative and accessory to the murder, and that a Boston man who had never been to Florida perpetrated the Parkland shootings. Several of the people targeted by Jones, including the Sandy Hook parents he labelled “crisis actors,” have sued him for libel and other torts. As a result of public pressure, Jones’ content has now been “de-platformed” from Facebook, YouTube, Vimeo, iTunes, LinkedIn, Pinterest, Mailchimp, Stitcher, YouPorn, and Spotify. He has also been suspended temporarily by Twitter.

It is worth examining the Sandy Hook libel suits against Jones to gain clarity about the limits of the First Amendment and contemplate some of problems libel law faces in the “post-truth” era.

If Jones were simply peddling conspiracy theories perpetrated by unnamed actors or large anonymous groups, such as “the government” or “the CIA,” he would not be subject to tort or criminal liability for his speech. And this protection would hold even if his conspiracy theories targeted broad groups such as African-Americans, Jews, or Muslims with hateful or pejorative lies.

Although the Supreme Court has held that false information has “no constitutional value,” lies that do not cause direct, tangible harm to individuals are constitutionally protected. The government may not censor such lies (though private actors such as Facebook and Twitter may). For at least the last fifty years, the Court has not deemed interests such as preserving the dignity of a group or protecting society from “fake news” as sufficient to justify imposing liability upon speakers who peddle lies. Moreover, the Supreme Court has repeatedly said that the State may not punish individuals simply for holding disfavored views, although it may punish incitement, discrimination, threats, crimes, and defamation.

The reason for protecting vague conspiracy theories and the theorists who propound them rests in part upon an unwillingness to unleash the government to serve as a roving truth commission. The government’s temptation to suppress criticism would be far too great, and the history of censorship is replete with examples of the suppression of truth and enshrinement of error. In general, therefore, the remedy for false speech is counterspeech. As the Court stated in Dennis v. United States: “the basis of the First Amendment is the hypothesis that speech can rebut speech, propaganda will answer propaganda, [and] free debate of ideas will result in the wisest governmental policies.”  A further pragmatic rationale for letting even hateful conspiracy theorists seek adherents (as long as their theories do not target individuals) is that government suppression can sometimes lend them and their theories more legitimacy (as I’ve discussed here). In such situations, it is better to leave them peddling their wares in the back alleys of the marketplace of ideas than risk bringing them to the fore by censoring them.

Jones crossed a critical line, however, when he went beyond vague conspiracy theories to disparaging the parents of murdered children by accusing them of fabricating their children’s deaths. As libel cases go, this is about as easy a case as one can imagine. Inventing supposed “facts” that cause reputational harm to vulnerable individuals is the essence of the tort of defamation. The central issue in a defamation claim is whether the defendant published or posted a statement that was false and defamatory. Here, copiously available evidence testifies to the falsity of his statements, and the accusation that parents fabricated a child’s death to advance a social agenda is certainly one that would harm their reputation in the eyes of their community.

Jones’ lawyers have argued that his statements are not defamatory because they are mere opinion. They are not—at least not in the constitutional sense that would bring them within the mantle of First Amendment protection. In considering protection for opinion, the Supreme Court held that the government may not award plaintiffs damages for harm to their reputations based upon a defendant’s publication of statements about matters of public concern that are unverifiable or cannot reasonably be interpreted as stating actual facts about the plaintiff.

Jones’ lawyers have asserted that no reasonable readers or listeners could interpret Jones as stating actual facts about his targets. I have long and repeatedly argued that context is crucial in discerning whether speech is asserting actual facts or instead is mere hyperbole. Although Jones’ statements as a whole should certainly be taken with a grain of salt by reasonable readers, there is little about his statements targeting the Sandy Hook parents by name that brand those statements as non-factual. Admittedly, Jones uses a ranting or hectoring tone in many of his videos, and it is public knowledge (easily discoverable via a Google search) that some of his prior conspiracy theories have been proven false. But Jones appears to have taken pains to bolster his credibility with segments of his very large audience and overcome any assumptions that he might be engaging in schtick or hyperbole. On the Infowars website, Jones asserts that his radio show, which is “syndicated on over 160 stations across the country . . . routinely breaks huge stories in addition to featuring some of the most insightful and news making guests from across the world.” He touts his “team of news reporters who provide cutting edge analysis” and his past interviews with prominent political figures such as Rand Paul and Noam Chomsky. He has also been praised by President Trump, who appeared on his online show. Moreover, Jones knows that some of his audience members clearly do not view his statements as mere hyperbole, because at least two of them are in jail for responding to his statements with violence or threats of violence against those Jones accused of wrongdoing.

The other argument Jones is likely to employ in the libel cases against him is that he lacked actual malice. “Actual malice” is a legal term of art that entails actual knowledge of falsity or reckless disregard of the truth on the part of the speaker. The Supreme Court has stated that actual malice requires “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” The very examples of actual malice given by the Court describe Alex Jones’ conduct to a T. In St. Amant v. Thompson, the Court said that actual malice exists if a defendant invents a story, bases it on “an unverified anonymous telephone call,” publishes statements that are “so inherently improbable that only a reckless man would have put them in circulation,” or publishes them despite “obvious reasons to doubt the veracity of [an] informant or the accuracy of his reports.” Granted, it is not clear that the parents will even have to prove actual malice, because they may be private rather than public figures. It is an open quesiton whether granting media interviews after one’s child is murdered is enough to transform a person into a public figure for libel purposes. This is a hard and important issue that deserves clarification by the Supreme Court. Be that as it may, the plaintiffs suing Jones ought to be able to prove actual malice even if they are deemed to be public figures due to the nature of his remarks.

Another defense Jones might assert is one that might be dubbed the “Courtney Love defense”—namely that Jones did not recklessly disregard the falsity of his statements because he irrationally believe them to be true. As my co-author RonNell Andersen Jones and I pointed out with regard to the Twitter libel cases against Courtney Love, there is no insanity defense to a libel claim. However, the determination of whether a defendant acted with actual malice is subjective, meaning that a defendant’s delusional belief in the truth of his own lies might absolve him of responsibility for libel. It would be highly problematic, however, to give mentally disordered or vengeful defamers license to embark on campaigns of character assassination based on fantasies they concoct. As a practical matter, the problem is likely to be solved by the skepticism of juries, for it is hard to believe a jury would accept Alex Jones’ assertions that he believes his own baseless accusations. Moreover, one can hardly conceive of more sympathetic plaintiffs than the parents of murdered children who were subjected to death threats because of one man’s cruel accusations.

            Even ardent defenders of free expression must concede there are limits to the right lest they lose credibility. Drawing the line is easy when purveyors of malicious lies are harming the reputations of innocent individuals, such as the Sandy Hook parents. Defamation law exists to enforce baseline norms of civility and respect for the dignity of the individual.  It also rewards the investment of individuals in their good names by giving them redress when those names are smeared by unscrupulous speakers such as Jones. Moreover, defamation law helps guarantee that public discourse retains a necessary anchor in truth, because public discourse without such is meaningless.

            Given these important interests, proper resolution of an easy case is a good way for the law to remind speakers like Jones that we do not truly live in a post-truth era.

Posted by Lyrissa Lidsky on October 1, 2021 at 01:53 PM | Permalink


Howard, for non-lawyers like me, a very informative post. It is comforting to know that for private people and "non-public persons" there are limits, or at least guardrails to what can be espoused before the purveyor crosses the line of defamation. Thank you.

Posted by: Paul S | Oct 1, 2021 8:16:03 PM

Great post, extremely important these days.

Just worth noting:

In ST.Amant v. Thompson, the court emphasized, that this standard of " Reckless disregard" is not rigid. Must be observed case by case, and become subject to further development in time. I quote:

"Reckless disregard," it is true, cannot be fully encompassed in one infallible definition. Inevitably its outer limits will be marked out through case by-case adjudication, as is true with so many legal standards for judging concrete cases, whether the standard is
provided by the Constitution, statutes, or case law.

End of quotation:

Also, we must distinguish between one journalist, and laymen or ordinary persons. It doesn't make sense simply, to grant them both, the same treatment in defamatory suits or issues. Journalists, must be bound by higher, ethical, professional and legal standards, than laymen. Lack of such distinction, is eroding the public trust, generally speaking, and particularly, concerning traditional media. The results, have been well demonstrated in that post ( although it is far greater more complicated than what has been presented in that post, as if black v. white, truth era v. post-truth era).


Posted by: El roam | Oct 1, 2021 3:23:39 PM

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