Lyrissa Lidsky is the Dean and Judge C.A. Leedy Professor of Law at the University of Missouri School of Law. Her latest article is titled “#I🔫U: Considering the Context of Online Threats,” California Law Review (forthcoming).
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 millionsof 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 manwho 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 parents’ 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 “the government” or “the CIA,” he would not be subject to tort or criminal liability for his speech. And his First Amendment 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 from government censorship (though not from censorship by Facebook or other private platforms). 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 the speech of conspiracy theorists 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 they 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 when he went beyond touting 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—at least assuming that the claim is not barred by Texas’ one-year statute of limitations. Inventing supposed “facts” that cause reputational harm to vulnerable individuals is the essence of the tort of defamation (which encompasses libel and slander). 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 Jones’ 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 has 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 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 violenceor threats of violence against those Jones accused of wrongdoing.
Jones’ lawyers also assert he lacked actual malice. “Actual malice” is a legal term of art: public officials or public figures who sue for libel must prove that the speaker knew his statement about them was false or recklessly disregarded the truth. To prove actual malice, plaintiffs must present “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” The Supreme Court has provided examples of conduct evincing actual malice, and these examples 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 question whether granting media interviews after one’s child is murdered is enough to transform a person into a public figure for libel purposes. Be that as it may, the parents suing Jones should be able to prove actual malice even if they are deemed to be public figures due to the nature of his remarks.
Jones may assert, however, that he did not recklessly disregard the falsity of his statements because he irrationally believed 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 live in a post-truth era after all.